ANUJ TRADING CO Vs. ELECTROLUX KELVINATOR LTD

JUDGEMENT

(1.) The present appeal has been preferred by the appellant / plaintiff being aggrieved by the order dated 9th September, 2005 whereby the interim applications IA No.6912/2003 and 2098/2005 were disposed of holding that prayer (a) and (b) of IA No.6912/2003 cannot be granted at the present stage because the appellant is yet to prove that he had handed over 16 cheques to the defendant / respondent and that cheque No.804340 has been forged later on by inserting figures therein. It was also held that prayer (c) also cannot be granted. Consequently, both the aforesaid applications were disposed of by the aforesaid order.

(2.) In the suit it was pleaded by the appellant that it was appointed as the sole distributor by the respondent / defendant by agreement dated September, 1999. It could not be disputed that a settlement took place between the parties in respect of the account for the period September, 1999 to 24.11.2001, which envisaged that the appellant / plaintiff would be liable to pay Rs.84.44 lacs to the respondent / defendant. The appellant issued ten cheques of Rs.5 lacs each and two cheques were left blank to be filled in on 27.11.2001 after further clarification in respect of accounts. The aforesaid two cheques were subsequently filled in for a sum of Rs.3,57,039/- and Rs.2,14,235/-. According to the appellant it has been issuing blank cheques and that some of them were utilised by the defendant / respondent in consultation with the appellant but then there are still 16 cheques which are lying with the respondent / defendant.

(3.) The aforesaid statement of the appellant is disputed by the respondent / defendant, who has stated that there is only one cheque No.804340, which on presentation, was dishonoured. Consequently, the respondent filed a complaint under Section 138 of the Negotiable Instruments Act, which is pending disposal before the Judicial Magistrate, Gurgaon. Consequent thereto, the appellant instituted the aforesaid suit as plaintiff for five reliefs extracted in the impugned order. By filing an application (IA No.6912/2003), the appellant sought a direction to the respondent for return of the 16 cheques allegedly deposited with the respondent / defendant, and for cancellation of writings / additions made by them in cheque No.804340, and also restraint order against the proceedings under Section 138 of the Negotiable Instruments Act. In the other IA No.2098/2005, the appellant has made a specific prayer that the respondent / defendant be restrained from proceeding with the complaint filed under Section 138/141 of the Negotiable Instruments Act.