ARUN KUMAR CHATURVEDI Vs. SUBHADRA

JUDGEMENT

(1.) This revision is directed against an order dated 23.2.1985 dismissing the application of the defendant/petitioner under Order XXXVII Rule 3 read with Rule 7 and under Section 151, Civil Procedure Code and decreeing the suit.

(2.) The relevant facts giving rise to the present revision are as under : The respondent/plaintiff filed a suit under Order XXXVII for recovery of Rs. 50,000.00 on the basis of three cheques; one of Rs. 30,000 .00 dated 30th April, 1982; another for Rs.lO,000.00 dated 5th May,1982 and the third one for Rs.l0,000.00 dated 8th May, 1982. These three cheques were issued by the petitioner in favour of the opposite party in consideration of payment of taxi charges hired by the opposite party for the business purposes of the defendant/petitioner between 11.11.1981 upto middle of February, 1982. All the three cheques were dishonoured. The plaintiff/respondent has filed a suit for recovery of amount under Order XXXVII.

(3.) According to the petitioner's version he put in appearance on 23.10.1982 and filed address. The plaintiff/respondent thereafter got the summons for judgment issued. It was served on the defendant on 26.8.1983. According to the petitioner he suffered a attack of spondalites, high blood pressure and eye-rites and thus , remained totally immobilised between 20.7.1983 to 14.9.1983. He was advised not to move out of bed and in case he did so he would be doing so at the cost of his life. In these circumstances, he could not contact his Counsel and brief him to prepare defence and could not put his defence accordingly. Consequently he could not file the application for leave to defend in time. On 15th September, 1983, he moved two applications; one under Order XXXVII Rule 3 read with Section 151, Civil Procedure Code and another under order XXXVII Rule 3(7) read with Section 151, Civil Procedure Code submitting that for these foregoing reasons, delay in moving an application for leave to defend and contest the suit was not intentional. He accordingly sought condonation of delay. The defendant/petitioner also sought leave to defend to contest the suit inter alia on the ground that he never approached the respondent/plaintiff for helping him in business activities or to pay the amount of hire charges of taxies allegedly hired for his business. As a matter of act the petitioner requested the plaintiff to help him in getting a videoset.There upon the respondent/plaintiff approached the Televista Company and brought one set of video for the defendant/petitioner. But as it was found defective the video set was returned. The three blank cheques were given for payment to the plaintiff/respondent for payment to Televista Company after signing them. These cheques were left with the plaintiff/respondent in the hope that she would bring video set for the petitioner but she filled up her own name and she also kept the video. When the plaintiff/respondent was requested to return the said cheques she failed to deliver them on the pretext that the same were not readily available and she would return them as and when she would find the cheques. As such these cheques were without consideration and the petitioner was not liable to pay anything.