MAHAVIR GUPTA Vs. SHOBHA RAM SARAN

JUDGEMENT

(1.) C.M. Appl. No. 35925/2016 (for exemption) Exemption allowed subject to just exceptions.

(2.) The facts of the case are that respondent/plaintiff filed the suit for recovery of Rs.2,10,000/-, of which Rs.1,50,000/- was the principal amount and the balance interest. It was pleaded that the respondent/plaintiff had given a friendly loan of Rs.1,50,000/- to the appellant/defendant vide cheque no. 184104 dated 5.9.2011 drawn on State Bank of India, Dilshad Garden, Delhi and which was encashed. It was pleaded in the plaint that the appellant/defendant paid interest till September, 2013, but thereafter did not make payment of the interest amount. Ultimately, the appellant/defendant issued a post dated cheque of Rs.1,50,000/- on 7.2.2015 being cheque no. 000046 dated 5.5.2015 for repayment of loan amount, which was dishonoured, and therefore the subject suit was filed under Order XXXVII CPC to recover the principal amount of Rs.1,50,000/- along with interest at the rate of 24% per annum. Appellant/defendant appeared in the suit and filed his leave to defend application. In the leave to defend application, the appellant/defendant pleaded that he had returned the cheque amount, however, no proof was filed for showing as to how the cheque amount was paid back. Appellant/defendant also pleaded that there was no loan transaction because actually the respondent/plaintiff only wanted to show to his family that he had given a loan to the appellant/defendant. It is noted that the appellant/defendant had issued the subject cheque on the basis of which Order XXXVII CPC suit was filed and which was dishonoured.

(3.) The leave to defend application was dismissed by the trial court observing that the defence is moonshine, inasmuch as, no proof was filed as to how the loan was repaid as claimed by the appellant/defendant and also there was no name of any witnesses before whom the so called repayment was made. The trial court also noted that the appellant/defendant had taken inconsistent pleas because on the one hand taking of loan itself was denied whereas on the other hand besides pleading return of loan it was also pleaded that the suit was barred on account of violation of the Punjab Registration of Money-Lender's Act, 1938. The trial court also found it to be unbelievable that why would the appellant/defendant accept a cheque of the respondent/plaintiff on a story that the respondent/plaintiff wanted to show to his own family that he had given a loan to the appellant/defendant to show that respondent/plaintiff had no monies, and that again allegedly the respondent/plaintiff approached the defendant to give a blank signed cheque for showing to his family of having given the loan and with a promise given to the appellant/defendant by the respondent/plaintiff that this cheque would not be misused. Accordingly, by applying the principles for grant of leave to defend laid down in the judgments of the Supreme Court in the cases of Mechalec Engineers & Manufacturers Vs. Basic Equipment Corporation, 1977 AIR(SC) 577 and V.K. Enterprises and Another Vs. Shiva Steels, 2010 9 SCC 256 , the leave to defend application was dismissed. The relevant paragraphs of the trial court judgment are paragraphs 8 to 10 and which paragraphs read as under:-