D.K. KAUNTAE Vs. SURESH KUMAR (HAVILDAR)

JUDGEMENT

(1.) (Oral) CM No. 33590/2016 (exemption) Exemption is allowed subject to all just exceptions.

(2.) The petitioner/plaintiff has filed the suit under Order 37 CPC for recovery of Rs. 2.50 lacs. It is stated that the petitioner is an Advocate by profession and was engaged by the respondent and a fee of Rs.3 lacs was agreed upon. The respondent is said to have signed the vakalatnama and handed over a sum of Rs.50,000/- in cash on 23.10.2015. He is also said to have handed over a cheque drawn on ICICI Bank for a sum of Rs.2.50 lacs as remaining professional fee. The plaintiff/petitioner states that when he presented the cheque on 29.10.2015, the same was returned with the remarks Non CTS . The cheque was presented again and was dishonoured with the remarks payment stopped by drawer . A legal notice is said to have been sent on 21.11.2015 under Section 138 of the Negotiable Instruments Act. Based on this, the present suit was filed.

(3.) The trial court by the order dated 21.07.2016 concluded that the respondent has been served by speed post and registered AD on 29.04.2016 and 02.05.2016 respectively and has not entered appearance within the prescribed period of 10 days. It notes that in such an event, a decree should follow in favour of the petitioner. It further notes that a cheque is bill of exchange and a suit based on a bill of exchange would be maintainable under Order 37 CPC. It also notes that there is a presumption under Section 118 and Section 139 of the Negotiable Instruments Act that unless contrary is proved, a holder of a cheque received a cheque for discharge in whole or in part of any debt or any liability and the same was made or drawn for a consideration. This presumption of course is rebuttable, it further states.