@JUDGMENTTAG-ORDER
1. Heard learned counsel for the parties.
2. Vide impugned order dated February 19, 2013 suit filed by the respondent against the defendants; a partnership firm and its three partners has been decreed for the reason application filed by the defendants being IA No. 1804/2012 under Order XXXVII Rule 3(5) of the CPC has been dismissed.
3. It is apparent that the suit instituted by the respondent was under Order XXXVII of the Code of Civil Procedure.
4. The foundation of the suit was a cheque bearing No. 0998688 dated October 10, 2008 drawn on the Union Bank of India, Branch Dehradun, in sum of Rs. 21,21,550/- (Rupees twenty one lacs twenty one thousand five hundred fifty only).
5. It was the case of the respondent that he and the second defendant, Tarun Gautam were known to each other when both were working in a company called T.I. Diamond Chain Ltd. The second defendant left the employment with the company and became a partner along with defendants No. 3 and 4 of the firm Imaginations Agri Exports. It was pleaded that having known the business skills of the respondent, defendant No. 2 persuaded the respondent to join the firm as a working partner with an assurance that as and when the partnership firm makes profit the same would be shared 50:50 and till then the monthly expenses of the respondent would be borne on actual basis by the partnership firm. That the investment made by the respondent in the firm would be treated as a loan bearing interest at the rate of 2% per month. It was pleaded that the respondent worked honestly and diligently after joining the firm. It was pleaded that two sums of Rs. 5,00,000/- (Rupees five lacs only) each were paid to the firm from out of the account of the respondent maintained with the United Bank of India. It was pleaded that from time to time payments in cash or in cheque were also made to the account of the firm.
6. In paragraph 11 of the plaint the break-up of the amounts payable, totalling Rs. 21,21,550/-(Rupees twenty one lacs twenty one thousand five hundred fifty only) were detailed, in a tabular form. It was pleaded that under cover of a letter dated October 12, 2008, sent by registered post from Dehradun to the respondent at Delhi, cheque in question bearing No. 0998688 dated October 10, 2008 in sum of Rs. 21,21,550/- (Rupees twenty one lacs twenty one thousand five hundred fifty only) was tendered to the respondent and when presented for encashment at the collecting bank of the respondent being United Bank of India Branch Soami Nagar, New Delhi the said cheque was returned dishonoured with the remarks ''Amount Not Arranged'' by the banker on whom the cheque was drawn. In spite of demand notice dated December 15, 2008 which was duly received neither was a reply received nor payment tendered. As per the plaint the respondent filed a complaint u/s 138 of the Negotiable Instruments Act, 1881 before the learned Metropolitan Magistrate, New Delhi Courts.
7. In the application seeking leave to defend the appellants did not dispute that the cheque in question bearing No. 9986888 bore signatures of defendant No. 2. It was pleaded that the cheque in question was stolen in the year 2007. As regards the averments in the plaint that the cheque in question was received by the respondent under cover of a letter dated October 12, 2008 sent under the signatures of the second defendant, it was simply pleaded that the letter is a forged document.
8. The jurisdiction of the courts at Delhi was denied on the plea that no cause of action has accrued at Delhi. It was pleaded that the defendants reside in Delhi. In the application seeking leave to defend it was admitted that Rs. 12,20,000/- (Rupees twelve lacs twenty thousand only) received as loan were payable.
9. The learned Single Judge has declined leave to defend holding that the averments in the application seeking leave to defend were insufficient for a leave to defend to be granted.
10. Noting that there was an admission that the cheque which was the foundation of the suit was issued by defendant No. 2 and bore his signatures, dealing with the projected defence that the cheque was stolen, the learned Single Judge has noted that no complaint whatsoever was pleaded to have been filed with anybody or information given to the bank that the cheque in question was missing from the cheque book issued by the bank to the defendants. In other words, the plea has been treated by the learned Single Judge to be a sham. With reference to the averment in the plaint that the cheque was tendered to the respondent under cover of a letter dated October 12, 2008 the learned Single Judge has noted that there was specific pleadings that the cheque was sent by a letter under registered AD post and that the photocopy of the envelop had been filed along with the suit.
11. The learned Single Judge has reasoned that merely to plead that the letter was forged neither here nor there. The learned Single Judge has noted that there was no specific pleading and specially a denial to the positive assertion in the plaint that the letter in question enclosing the cheque was posted from Dehradun, the situs of the partnership firm and the residence of the three partners thereof.
12. We concur with the reasoning of the learned Single Judge.
13. Leave to defend has to be granted to a defendant if such facts are pleaded which upon proof would non-suit the plaintiff. On the facts of the instant case, the defendants having admitted the cheque being issued by one of its partners i.e. defendant No. 2 from an account maintained and under the control of managing partner i.e. defendant No. 2, the plea that the cheque was stolen in the absence of any assertion that intimation was sent to the bank that the cheque was stolen, would warrant it to be held that the plea is a sham. In this context it also assumes importance to note that when the cheque was dishonoured a notice was served upon the partnership firm and its partners requiring them to ensure payment as per the cheque. In spite of service there was no response to the legal notice. Further with respect to the letter dated October 12, 2008, the assertion that the letter was never issued and is a forged document is a mere assertion sans a fact. There is a distinction between an assertion and a fact. With respect to the plea that a document is a sham or a forged document the facts constituting the plea wherefrom an inference would be drawn whether at all the document is a forged document requires to be pleaded.
14. We simply highlight that whether a document is a forged document is a matter of law and fact. In the absence of facts pleaded wherefrom an inference could be drawn upon proof thereof that a document is a forged document, it has to be held that the plea is a sham plea.
15. Though not highlighted by the learned Single Judge, we highlight that in the application seeking leave to defend, not an effort has been made to explain the tabulated statements of account pleaded by the respondent in paragraph 11 of the plaint.
16. We affirm the impugned decision and dismiss the appeal.
17. We note that under an interim order passed by this court, as a condition for stay of the impugned decree the appellants were required to deposit Rs. 11,20,000/- (Rupees eleven lacs twenty thousand only) with the Registrar General of this Court. The amount was directed to be kept in a fixed deposit.
18. As noted hereinabove irrespective of the pleas taken in the application seeking leave to defend there is an admission of liability to pay the said amount. This amount in any case would go to the coffer of the respondent.
19. Be that as it may, since the appeal is being dismissed, we direct the Registrar General of this Court to either endorse the receipt in respect of the sum of Rs. 11,20,000/- (Rupees eleven lacs twenty thousand only) in the name of the respondent or alternatively to encash the receipt and pay over the same realised therefrom which would mean the sum of Rs. 11,20,000/- (Rupees eleven lacs twenty thousand only) together with the interest accrued thereon to the respondent.
20. Needless to state the said amount received by the respondent would be treated as part payment under the decree.
21. Parties shall bear their own costs in the appeal.
