S C RASTOGI Vs. RENU KALRA

JUDGEMENT

(1.) SWATANTER KUMAR, 3. The plaintiff has filed a suit for recovery of Rs.82,37,500/- under the provisions of Order 37 CPC.

(2.) It is the case of the plaintiff that the plaintiff is ' karta' of S.C. Rastogi & Co., a Hindu Undivided Family. Defendant No.1 is carrying on the business of manufacturing and sale of 'Papad' under the name and style of M/s Ridhi Enterprises under the brand name ' Laziz Papad'.Defendant No. 2 is husband of defendant No.l and has family relations with the plaintiff. The plaintiff has been the tax consultant of the defendant No.l. In various taxation proceedings, the plaintiff had represented the defendant No.1. Somewhere in the year 1992, defendant No.1 represented to the plaintiff that she had got bulk supply order from Kendriya Bandhar, Nafed and Super Bazar and was not having sufficient money to make payments for these supplies on cash terms. She requested the plaintiff for financial assistance. The plaintiff paid a total sum of Rs.74.50 lakhs. Despite friendly relations, the plaintiff insisted upon written guarantee from defendant No.2 for repayment of the said amount and the written Deed of Indemnity-cum-Guarranty at Delhi was executed. The details of various amounts, which the plaintiff claims to have given to the defendants, have been spelled out in para 7 of the plaint. These amounts were not paid to the plaintiff and it appears that the defendants had deceited the plaintiff and the plaintiff lodged an FIR 113/94 against the defendants on which the defendants were released on bail. Defendant No.1 had issued 5 cheques bearing Nos. 209127, 209128 & 209129 dated 10.10.1993, 24.10.93 and 7.11.1993 respectively, all drawn on State Bank of India, Karol Bagh, New Delhi for Rs.10,00,000/- each, and cheque bearing No.484397 dated 14.2.1994 for Rs.10,00,000/- drawn on State Bank of India, Kamla Nagar, Delhi and cheque bearing No.484398 dated 26.2.1994 for Rs. 15,00,000/- drawn on State Bank of India, Kamla Nagar, in favour of the plaintiff. These cheques were towards the part payment and out of them three were dishonoured upon presentation and the plaintiff filed a complaint under Section 138 of Negotiable Instruments Act, which is still pending. Three cheques out of the aforestated five cheques were returned to the plaintiff with the remarks 'refer to drawer' and the remaining two cheques were not presented by the plaintiff, the total of which was Rs.27 lakhs. Having failed to recover this amount, the plaintiff has filed the present suit for recovery of Rs.55,00,000/- towards principal amount and Rs.27,37,500/ - towards interest @18 p.a. making a total of Rs.82,37,500/-. The cause of action, according to the plaintiff, arose in the year 1992 when the plaintiff had made various payments to the defendants, on 10.10.93, 24.10.93 and 7.11.93 when the defendants issued three cheques of Rs.10 lakhs each towards part payment, on 17th March, 1994 when the cheques were dishonoured and on 31st March, 1994 when the plaintiff had served a notice through his counsel upon the defendants for payment of the said loan. The present suit was filed in October, 1996.

(3.) To the above claim of the plaintiff, the defendants, having been served, filed appearance and thereafter filed an application being IA 4539/97 under Order 37 Rule (3) 5 CPC seeking unconditional leave to defend the suit. This prayer was made by the applicants on the ground that the plaintiff has blackmailed the defendants as he was a tax consultant of defendant No.1 from 1986 to 1993 and was dealing and handling all her Income Tax and Sales Tax matters and other cases relating thereto. It is submitted that during those proceedings, the plaintiff had obtained signatures of defendant No.l on many papers, receipts, cheques, letter heads and other documents. Some of them were blank and some of them were written on the pretext that the said papers/documents were required immediately while dealing with the authorities concerned. These very documents including the cheques have been misused by the plaintiff. It is stated that the plaintiff has filed number of other suits and all these suits have been transferred to one Court and the suits are based upon false and fabricated documents. It is stated that the address of the Ridhi Enterprises in the bank is that of the plaintiff himself i.e. F-47, .Desh Bandhu Gupta Road, Delhi. It has been stated that no documents have been placed by the plaintiff on record so as to justify even prima facie basis of the claim raised in the plaint. It is also stated that plaintiff is a lawyer and cannot do any other business except practice. It is unethical and unprofessional for the plaintiff to have entered into the alleged loan transactions. It is also stated that in January, 1994 by fraud and misrepresentation, the plaintiff borrowed a Car bearing No. DL2CD 9429 from the answering defendants on the plea that he wanted the same urgently for few days but later did not return the same and for which an FIR was lodged against the plaintiff being FIR No. 262/96 in the Police Station Roop Nagar under Section 406 IPC. According to the defendants, the case of the plaintiff is false and fabricated. There are various litigations pending between the parties wherein claims and counter claims have been raised. It will be appropriate to refer to the following pleas taken in the application for leave to defend :-