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Aarti Infra Projects Pvt. Ltd. & Others v/s S.P. Fabritech

    Second Appeal No. 140 of 2014
    Decided On, 20 March 2014
    At, In the High Court of Bombay at Nagpur
    For the Appellants: S.V. Bhutada, Counsel. For the Respondent: M.I. Mourya, Counsel.

Judgment Text
Oral Judgment:

1. This second appeal is directed against judgment and order dated 24.2.2014, passed by the learned District Jude-12, Nagpur, in Regular Civil Appeal No.191 of 2013, whereby the appeal was dismissed, which arose from judgment and order dated 25.2.2013, passed by the learned Third Joint Civil Judge Junior Division, Nagpur, in Regular Civil Suit No.58 of 2011, which was decreed in the sum of Rs.4,80,000/- with interest at the rate of 12% per annum from the date of suit till realization of amount from defendant Nos.1 to 8 who were held jointly and severally liable to pay the decreetal amount to the plaintiff.

2. It appears that the decree was based upon the negotiable instrument in the form of Cheque bearing No.153009 dated 3.3.2009 drawn on ICICI Bank Ltd., Ramdaspeth Branch, Nagpur whereby sum of Rs.4,80,000/- was payable to the plaintiff. This cheque was presented for encashment with ICICI Bank Ltd., Ramdaspeth Branch, Nagpur. The said cheque was dishonoured and returned back with endorsement as 'Insufficient Funds' on 4.3.2009. The plaintiff through Banker was informed of dishonour of cheque on 7.3.2009. Thereafter, the plaintiff issued a legal notice dated 28.3.2009 to defendant No.5 through his Counsel by R.P.A.D.. Though defendant No.5 received legal notice on 2.4.2009, whereby he was called upon to pay the cheque amount within a period of fifteen days from the date of receipt of the notice, he did not make the payment of cheque amount.

Under these circumstances, even Summary Criminal Complaint bearing No.5979 of 2009 was filed against defendant No.5 under Section 138 of the Negotiable Instruments Act, 1881 (for short, "the Act") which is stated as pending.

3. It appears that in the summary civil suit instituted under Order XXXVII of the Civil Procedure Code, summons for judgment was issued to the defendants and in the present case conditional leave to defend the suit was also granted though it is contended that defendants did not file any written statement nor complied with the conditions for leave to defend. Thus, the learned trial Judge proceeded under Order XXXVII Rule 3(6) of the Civil Procedure Code on the ground that though the defendants appeared in the Court and sought leave to defend the suit which was conditionally granted, the defendants did not bother to file the written statement in the suit. It is under these circumstances, the trial Court observed in following terms in paragraph No.4 of the judgment, thus:

"As the defendants have not contested the suit by filing their written statement the plaint averments shall be deemed to have been admitted by the defendants. Therefore, the plaintiff is entitled to recovery of Rs.4,80,000/- from the defendants jointly and severally."

4. Thus, the decree in the sum of Rs.4,80,000/- with interest at the rate of 12% per annum from the date of suit till realization of amount was granted. The decree was challenged in Regular Civil Appeal No.191 of 2013. The learned District Judge-12, Nagpur by impugned judgment and order confirmed the decree bearing in mind the statutory presumption available under Section 118 of the Negotiable Instruments Act, 1881, that the cheque was made or drawn for consideration and it was for the defendants to establish that the cheque was not drawn upon for consideration.

5. Thus, the averments made in the plaint regarding the cheque drawn in the sum of Rs.4,80,000/- payable to the plaintiff, the fact that the cheque was dishonoured by non-payment and presumption of law under Section 118 of the Act, the decree was confirmed as passed by the trial Court.

6. Shri S.V.Bhutada, learned counsel appearing for appellants, submits that in the summary suit the averments as to drawing of cheque in the sum of Rs.4,80,000/- was not corroborated by production of evidence such as bills or extracts of accounts by the plaintiff. Learned counsel made reference to the ruling in the case of Neebha Kapoor vs. Jayantilal Khandwala and others, reported at (2008)3 SCC 770 to argue that in paragraph No.13, the Supreme Court considered the contingency "when the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to a leave to sign judgment and the defendant is entitled to unconditional leave to defend and when the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to judgment and the defendant is entitled to unconditional leave to defend."

In paragraph No.13 making reference to the judicial precedent in earlier case Mechelec Engineers & Manufacturers vs. Basic Equipment Corpn. reported at (1976)4 SCC 687 the Court was considering legal position stated when the defendant can satisfy the Court regarding good defence to the suit claimed on merits. However, ruling could not be attracted in the facts and circumstances of the present case. When despite the fact that the conditional leave to defend was granted, no written statement was filed nor the defendants moved for waiver of conditions subject to which leave to defend the suit was granted.

7. Under these circumstances, therefore, Shri M.I. Mourya, learned Counsel appearing for the respondent, rightly submitted that the judgment in summary civil suit which was decreed by the trial Court on merits and confirmed by the first appellate Court, such judgments having recorded concurrent finding of facts regarding joint and several liability of the defendants to pay the amount of Rs.4,80,000/- arising from dishonoured cheque on 3.3.2009. It is thus contended that there would be no substantial question of law on basis of which the second appeal can be entertained.

8. Having considered the submissions before me and considering both these impugned judgments passed by the Courts below as also the rulings relied upon on behalf of the appellants, I do not find existence of any substantial question of law so as to disturb the decree which was passed by the trial Court and confirmed by the first appella

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te Court on merits. Hence, second appeal deserve to be dismissed. In the result, Second Appeal No.140 of 2014 is dismissed. There shall be no order as to costs. 9. Shri S.V. Bhutada, learned counsel appearing for appellants, prays for interim stay to the operation of the decree passed. Since it is money claim decreed with interest at the rate of 12% per annum, I am not inclined to grant stay to the operation of the decree. According to the learned Counsel, the decreetal amount is being deposited in the executing Court within a period of two weeks. Hence, until expiry of the period of two weeks, there would be no coercive steps to recover the decreetal sum.