The application for summary judgment and the application for leave to defend are taken up together and disposed of by this common order.
2. The plaintiff has filed a suit under order 37 of the Code of Civil Procedure for recovery of a sum of Rs.75,75,140/- on the basis of a dishonoured cheque for Rs.72,48,938/- purported to have been issued by the defendant in favour of the plaintiff towards the balance price of the goods sold and delivered by the defendant to the plaintiff. After filing of the suit the plaintiff has taken out an application in GA No.1955 of 2017 for a summary decree for the aforesaid sum. Upon service of summons the defendant had taken out an application being GA No.2028 of 2017 for leave to defend.
3. Both the applications are taken up for consideration.
4. The plaintiff has stated that from time to time the plaintiff had sold supplied and delivered to the defendants Iron and Steel goods e.g. M.S. Sheets/plates, steel rods etc. and the defendant used to make part payments from time to time against the invoices raised by the plaintiff upon the defendant in respect of such goods. The parties maintained running and continuous account. Upon settlement of accounts, the accounts stated as on 31st March, 2015 would show a sum of Rs.92,15,236/- as due and payable by the defendant to the plaintiff. The said account for the year ending 31st March, 2015 has been settled between the parties and the balance carried forward to the next financial year. Between 24th September, 2015 and 18th March, 2016 the plaintiff sold and delivered further goods to the defendant from time to time and the defendant had made part payment to the plaintiff from time to time. After adjustment of accounts a sum of Rs.72,48,938/- has remained due and payable by the defendant to the plaintiff as on 31st March, 2016. The defendant has acknowledged and confirmed its liability to pay the aforesaid sum by signing the confirmation of accounts dated 1st April, 2016 for a period from 1st April, 2015 to 31st March 2016. The plaintiff has relied upon confirmation of accounts alleged to have been signed by the defendant on 31st March 2016 acknowledging the aforesaid sum. The plaintiff alleged that in acknowledgement of its dues the defendant had issued a cheque being No.000673 dated 4th January, 2017 drawn upon Standard Chartered Bank, 19, N.S. Road, Kolkata - 700001 in favour of the plaintiff for the aforesaid sum. The said cheque however, was dishonoured on presentation and returned to the plaintiff by its bank, Kotak Mahindra Bank with the remarks "Account closed". After dishonour of the cheque the plaintiff has demanded payment of its dues by a legal notice dated 2nd February, 2017. In spite of service of such notice the defendant did not pay the aforesaid sum. The defendant however, by a letter dated 9th February, 2017 raised false and frivolous allegations with a view to delay payment of debts.
5. The defendant in the application for leave to defend has alleged that the entire claim of the plaintiff is based on disputed facts which cannot be decided in a summary manner. The suit is barred by limitation. The defendant has made payments to the plaintiff by way of cheques/RTGS/NEFT which needs to be adjusted. The defendant in paragraph nine of the application for leave to defend has disclosed various payments made by the defendant to the plaintiff and has stated that such payments are required to be set off against the amount claimed by the plaintiff. The defendant further alleged that the defendant is having a factory/manufacturing unit at Baidyabati, Hooghly, and office at 167-A, Vivekananda Road, Kolkata and for the purpose of proper business transaction with different parties, the defendant company used to keep signed blank cheques in the office of the defendant. The plaintiff used to visit the office of the defendant in connection with the said business transaction and had easy access to the office premises of the defendant. In the month of August, 2016 it was detected that two signed blank cheque books bearing cheque numbers 000651 to 000700 and 000701 and 000750, which were issued in the name of B.P. Projects Pvt. Ltd. having current Account no.331-0-514216-8 with Standard Chartered Bank, 19, N.S. Road, Kolkata - 700 001 were missing from the office of the defendant at premises no.167A, Vivekananda Road, Kolkata - 700 006. Accordingly, the Authorized Signatory of the defendant company on 6th August, 2016 lodged a complaint with the Burtolla Police Station. Subsequently, the defendant company by a letter dated 22nd August, 2016 informed the Standard Chartered Bank about the loss of two signed blank cheque books bearing the aforesaid cheque numbers. However, to the utter surprise of the defendant a legal notice dated 2nd February, 2017 issued under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 was received by the defendant where the demand for payment of a sum of Rs.72,48,938/- was made on the plea that a cheque for the said sum issued by the defendant was dishonoured on presentation. The defendant has stated that the cheque no.000673 is one of the missing cheques which was lost and/or missing in the month of August 6, 2016. The said purported notice dated 2nd February, 2017 was duly replied in which the defendant has disputed the claim of the plaintiff. In the said application the defendant has categorically stated that the defendant had never issued any cheque in favour of the plaintiff and is not at all liable to pay any amount to the plaintiff. The suit has been filed on the basis of a stolen cheque as well as on certain documents which were never signed by the authorized signatories of the defendant. The defendant also refers to a complaint lodged with the Officer-inCharge of the Burtolla Police Station on 14th April, 2017 regarding the misuse of stolen cheque by the plaintiff. The defendant has also referred to a petition of complaint being case no.23488 of 2017 filed by the defendant in the Court of the Learned Additional Chief Metropolitan Magistrate - I, Calcutta against the plaintiff alleging offences under Section 420/380/467/471/120B of the Code of Indian Penal Code and the order passed by the Metropolitan Magistrate in the said application on 5th July, 2017. Mr. Sumon Dutt, learned Counsel representing the plaintiff has submitted that from the confirmation of accounts it is evident that the defendant has given credit for all part payments made in the financial Year from 1st April 2015 to 31st March, 2016. Mr. Dutt has referred to the balance confirmation dated 1st April, 2015 purported to have been issued by the defendant in favour of the plaintiff showing a sum of Rs.92,15,236 as closing balance. The subsequent balance confirmation from the plaintiff to the defendant dated 1st April, 2016 has been shown to establish that after 1st April, 2015 further supplies were made for which the defendant had also made part payments. It is submitted that the confirmation of accounts dated 1st April, 2016 would show that after adjustment of the payments received after April, 2015 closing balance as on 31st March, 2016 is Rs.72,48,938/-. Mr. Dutt submits that it is inconceivable that a prudent business man would keep two blank cheque books duly signed by the defendant unattended and would not even take care of such unsigned cheque books since 2013 as it is alleged by the defendant that the account with the Standard Chartered Bank is inoperative since 2012. Mr. Dutt wonders that what prompted the defendant to keep such signed cheque books for all these years when according to the defendant the said account was closed in 2012. Mr. Dutt submits that the plaintiff has not denied the transaction and in fact has prayed for set off against the claim of the plaintiff which clearly shows that the defendant has acknowledged the transaction and that further sums due and payable by the defendant to the plaintiff. Mr. Dutt submits that the defendant has failed to explain the reason for issuance of the cheque. Moreover, the defendant has not denied its signature on the cheque. Mr. Dutt submits that taking into consideration that the two several confirmation of accounts as well as the issuance of the cheque for the amounts mentioned in the said cheque, there is no issue that calls for trial. Mr. Dutt accordingly, has prayed for a summary judgment for a sum of Rs.72,48,938/- together with interest.
6. Mr. Jishnu Saha, the learned Senior Counsel representing the defendant has submitted that the defendant had disclosed payments made to the plaintiff for the goods supplied and presently there is no amount due and payable by the defendant to the plaintiff. Mr. Saha submits that much prior to the issuance of notice under Section 138 of the Negotiable Instruments Act, 1981, the defendant had lodged a complaint with the local police station on 6th August, 2016 and thereafter informed the branch Manager of Standard Chartered Bank on 22nd August, 2016 regarding the lost Cheque Books and requested the bank to stop payment of cheques in account no.331-0-514216-8.
7. Mr. Saha submits that although the plaintiff has alleged that a sum of Rs.72,48,938/- is due and payable as on 31st March, 2016 but curiously no demand was made until the said notice was issued. It is submitted that there is no letter of demand for the said sum prior to the aforesaid notice. The defendant has clearly contended that the plaintiff somehow managed to procure the signed cheque in question and misused the same by filling up the said cheque with the sum of Rs.72,48,938/-. It is submitted that the plaintiff has not disclosed the invoices by which goods worth Rs.72,48,938/- were alleged to have been delivered to the defendant. In absence of any invoice showing delivery of goods to the defendant for the aforesaid sum coupled with the fact that the dishonoured cheque was procured illegally and misused to create a liability the defendant should be allowed to defend the suit.
8. Mr. Saha in this regard has referred to a decision of the Hon'ble Supreme Court in State Bank of Hyderabad vs. Rabo Bank reported at, (2015) 10 SCC 521 and submits that in the said decision the Hon'ble Supreme Court has approved the conditions required to be taken into consideration in deciding the application for leave to defend.
9. The claim in the suit is on the basis of the dishonoured cheque.
10. The nature of the disputes between the parties has been summarized above. There are two versions of the transactions and at this stage it needs to be seen on the basis of the quality of the defence as to whether the defendant is at all entitled to leave to defend and if so, conditionally or unconditionally.
11. The courts have so long until recently applied the tests laid down in Mechelec Engineers & Manufacturers vs. Basic Equipment Corporation reported at, (1976) 4 SCC 687 however in IDBI Trusteeship Services Ltd. vs. Hubtown Ltd. reported at, (2017) 1 SCC 568, the Hon'ble Supreme Court after noticing the amendment of order 37 Rule 3 of the Code of Civil Procedure has held that the principle stated in paragraph 8 of Mechelec case would stand superceded and the binding decision of four Judges in Milkhiram (India) Pvt. Ltd. vs. Chamanlal Brothers reported at, (1965) AIR SC 1698 shall apply.
12. On consideration of the authorities on this point the following principles have been laid down in IDBI Trusteeship (supra) while considering whether to grant leave to defend in a summary suit:
(i) If the defendant satisfies the Court that he has a substantial defence, that is, a defence that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit;
(ii) if the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the plaintiff is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend;
(iii) The question whether the defence raises a triable issue or not has to be ascertained by the court from the pleadings before it and the affidavits of parties and it is not open to it to call for evidence at that stage.
(iv)even if the defendant raises triable issues, if a doubt is left with the trial judge about the defendant's good faith, or the genuineness of the triable issues, the trial judge may impose conditions both as to time or mode of trial, as well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit or security;
(v) if the Defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires.
(vi) if the Defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith;
(vii) if any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court.
13. In State Bank of Hyderabad (supra) the Hon'ble Supreme Court followed the principles laid down in as early as in 1949 in Kiranmoyee vs. J. Chatterjee reported at,1949 AIR Calcutta 479 summary of which is indicated above. The principles that emerge from consideration of all the authorities appears to be that if the court is satisfied that the defendant has raised a triable issue or a reasonable defence, the defendant is entitled to unconditional leave to defend. If on consideration of the facts disclosed by the defendant in the application for unconditional leave to defend, the court forms an impression that although it does not disclose the defence so convincing but there is a little hope or chance of establishing such defence at the trial, leave may be granted on conditions. Only in the case where the defence set up is illusory or sham or practically moonshine the plaintiff is entitled to leave to sign judgment. In such a proceeding the interest of both the parties needs to be looked into and it needs to be seen whether the defendant raises a real issue and not a sham one. The court may not reject the defence on the ground of implausibility or inconsistency if the Court is otherwise convinced that the defence disclosed may likely to succeed at the trial. The cautious approach of the court is because unlike a prolonged trial the suit is decided summarily on the basis of affidavit evidence. The instant case comes close to clauses (iv) and (v) of IDBI (supra) and an opportunity is given to the defendant to contest the suit on conditional. The reason for granting conditional leave to defend is on the premise that at the trial the defendant may be able to establish that the goods worth Rs.72,48,938/- were never supplied and accordingly the question of issuing any cheque for the said sum would not arise. However, the two confirmations of accounts one originated from the defendant and the other from the plaintiff cannot be brushed aside, altogether. This is followed by the cheque which is now disputed. It prima facie constitutes acknowledgment of liability. It is submitted on behalf of the defendant that it had never been a past practice to issue balance confirmations which may be a matter to be taken into consideration at the trial. It is also to be seen that some of the payments disclosed by the defendant were made by cheques. A cheque duly signed by a party in favour of a payee raises a strong presumption of indebtedness. The signature of the defendant on the cheque is not denied. It is also unusual and implausible if not absurd that an en
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tire cheque book duly signed by the defendant in blank is left uncared and unattended. The defendant has also not disclosed the date on which the said account with Standard Charted Bank was closed. In case of closure of accounts the unused cheque books are surrendered. A business man would not keep a blank signed cheque book when there is a possibility of such cheques being misused. It is equally possible that the defendant has purposely issued the cheque knowing fully well that the said cheque would not be honoured. In the instant case the parties appear to have long standing relationship and it is difficult to accept that plaintiff would enter the office of the defendant to steal the cheque book. The defendant did not deny supply of goods beyond October 2015. On such consideration the defendant is granted leave to defend upon furnishing cash security of Rs.35 lakhs within a period of three weeks from date with the Registrar High Court Original Side, in default, the plaintiff shall be entitled to sign judgment for Rs.72,48,938/- together with interest at the rate of 8% per annum from the date of filing of the suit until realisation. 14. In the event the cash security is furnished in terms of this order the defendant shall be permitted to file written statement on or before 31st January, 2018. 15. The Registrar, High Court Original Side shall invest the said amount Rs.35 lakhs in a suitable fixed deposit account in any nationalised bank yielding highest return and shall keep the said account renewed from time to time till the disposal of the suit. 16. Both the applications being G.A. No.2028 of 2017 and G.A. No.1955 of 2017 are disposed of accordingly. 17. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties on usual undertaking.