ENABLE TECHNOLOGIES PVT LTD Vs. SHANKAR KRISHNA MURTHY

JUDGEMENT

(1.) C.M. Appl. No. 25770/2018 (for exemption)

(2.) This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant no. 1 in the suit impugning the judgment of the trial court dated 21.2018 by which trial court has dismissed the leave to defend application filed by the appellant/defendant no. 1/company under Order XXXVII Rule 3(5) CPC and has decreed the suit on the basis of dishonoured cheque for the sum of Rs.10, 92, 748/- along with statutory interest at 18% per annum as per Section 80 of the Negotiable Instruments Act, 1881 and pendete lite and future interest however only at 6% per annum.

(3.) Trial court has rightly applied the principles of grant of leave to defend application in an Order XXXVII CPC suit in terms of the recent judgment of the Supreme Court in the case of IDBI Trusteeship Services Ltd. Vs. Hubtown Ltd., (2017) 1 SCC 568. Trial court has noted that the defence of the appellant/defendant no. 1 was that the subject cheque and the letter dated 31.8.2012 are forged and fabricated, but if that was so, then why the appellant/defendant no. 1 after becoming aware of the alleged forgery took no steps to bring the respondent/plaintiff/culprit before the law. Trial court also rightly notes that the leave to defend application is silent as to how forgery has been done and which is specially so because the cheque bears the signatures of the appellant/defendant no. 1, the cheque was not returned for discrepancy of signatures but only on account of insufficient funds. Also, if the forgery was of 2013, then the trial court rightly notes that till the filing of the suit in 2016 no action was taken by the appellant/defendant no. 1. Trial court also rightly noted that except stating that the cheque was not issued towards any enforceable liability, there were no other details which were given. Trial court has further rightly noted that there is a presumption that a cheque is drawn for consideration due and payable. Trial court thereafter by applying Section 80 of the Negotiable Instruments Act, and which provides for a statutory rate of interest on a dishonoured cheque, has granted interest at 18% per annum till filing of the suit with pendente lite and future interest at 6% per annum. The relevant paragraphs of the impugned judgment are paragraphs 8 to 12 and these paragraphs read as under:-