ABHILASH KHIMABHAI DELWADIA Vs. DIPAK SUDHIR MANOHAR

JUDGEMENT

(1.) Heard learned advocate Mr. Indravadan Parmar for the petitioner and learned advocate Mr. Saurabh Amin for the respondent.

(2.) The petitioner - original plaintiff invoking the provisions of Article 227 of the Constitution, has approached this Court as learned Civil Court granted unconditional right of defense to the defendant by granting application Exh.15, inter alia contending that the learned trial court has wrongly granted the right of unconditional defense to the defendant as the defendant was owing the amount, for which, the suit is filed for recovery. It is contended that the learned trial court, without appreciating the documentary evidence in the nature of agreement and undertaking and wrongly interpreting the same, arrived at a conclusion that there was no existing liability and the cheque in question, which was issued by the defendant to the plaintiff, was not issued for any existing liability.

(3.) Having heard learned advocates for the respective parties and having gone through the application Exh.15 as well as reasons assigned by the learned trial court, more particularly in paragraphs 12 to 16 of the impugned order, this Court is convinced that there appears no perversity in the impugned order passed by the learned trial court. However, learned advocate for the petitioner - plaintiff submitted that the defendant had issued the cheque in question for a sum of Rs.40,68,122/ ? towards the existing liability and that could be presumed in view of clear provisions of Section 138 of the Negotiable Instruments Act as the cheque in question came to be issued by the defendant. The documentary evidence in the nature agreement and undertaking clearly indicates that the plaintiff was required to transfer the shares to the defendant and in consideration and as security thereof, the aforesaid cheque came to be issued by the defendant. The record & proceedings indicates that the defendant bona fide performed his part of contract, however since the plaintiff failed to perform his part of contract and committed breach of contract, he would not be entitled to recover the amount from the defendant, unless by way of adducing any cogent, concrete or clinching evidence before the learned trial court he proves that the aforesaid liability was existing. Learned advocate Mr. Parmar further contended that the learned trial court wrongly placed reliance upon the decision in case of Mechelec Engineers and Manufacturers vs. M/s. Basic Equipment Corporation reported in AIR 1977 SC 577 in view of decision in case of IDBI Trusteeship Services Limited vs. Hubtown Limited reported in (2017) 1 SCC 568. This Court has gone through the aforesaid both the decisions. The principles stated in Mechelec (supra) have been superseded in IDBI Trusteeship Services Limited (supra). The guidelines issued in the judgment of 1977 have also been issued in the judgment of 2017. Precisely, the plaintiff failed to make out the existing debt recoverable from the defendant and consequently, he would not at all be entitled for summons in judgment. The learned trial court rightly granted unconditional leave to defend to the defendant which calls for no interference.