Sunita Rani vs. Chahat Creations Pvt Ltd

* IN THE HIGH COURT OF DELHI AT NEW DELHI

• RSA 20/2016

SUNITA RANI & ANR ..... Appellants Through: Mr.S.S.Tomar, Advocate with appellant No.1 in person.

versus

CHAHAT CREATIONS PVT LTD ..... Respondent Through: Mr.Manish Kaushik, Advocate.

CORAM: HON'BLE MS. JUSTICE PRATIBHA RANI

	O R D E R
%	13.02.2017

RSA 20/2016

1. Civil Suit No.367/11 under Order XXXVII CPC was filed by Chahat Creations Pvt. Ltd, respondent herein for recovery of 2,95,801/- with future interest @ 24% per annum in respect of the goods allegedly supplied to the appellants/defendants in the name of their firm M/s Bru International. The application seeking leave to defend was dismissed by learned Trial Court on 14th August, 2013. The suit was decreed for a sum of 2,95,801/- with pendentelite and future interest @ 18% per annum along with costs of the suit.

2. Against the order declining leave to defend to the appellants/defendants, RCA No.100/2013 was preferred which was also dismissed on 23rd October, 2015.

3. Now the appellant has invoked the jurisdiction of this Court under RSA 20/2016 Page 1 of 4

$~4

Section 100 of the Code of Civil Procedure impugning the judgment of both the Courts below contending that there was no evidence to prove that the goods were supplied to the appellants/defendants and to discharge that liability the two cheques were issued. It has been contended that the complaint under Section 138 of Negotiable Instrument Act filed by the respondent/plaintiff has also been dismissed by the learned Metropolitan Magistrate vide judgment dated 12th February, 2015 and in the given circumstances the matter required trial and the appellant was entitled to unconditional leave to defend.

4. During hearing of this second appeal on 24th August, 2016, this Court passed the following order:-

"1. The crucial issue in this case is as to whether respondent/plaintiff had supplied goods to the appellants/defendants. The case of the appellants/defendants is that no goods were supplied under the subject cheques on the basis of which the suit for recovery has been filed by the respondent/plaintiff. Learned counsel for the appellants relies upon the cross-examination conducted of Sh. Sanjay Kumar Sethi, Director of respondent/plaintiff in the criminal case filed under Section 138 of the Negotiable Instruments Act, 1881 in which it has come out that goods were not personally delivered at the premises of the appellants/defendants by the respondent/plaintiff but actually lorry receipts/transportation receipts with respect to goods were delivered to one Mr. Kapil Malhotra of the appellants/defendants.

2. Counsel for the respondent/plaintiff states that he has been recently engaged and he will examine the file as to whether any documents were filed by the respondent/plaintiff in the trial court that goods were actually delivered whether by means of lorry receipts/transportation receipts being handed over to Sh. Kapil Malhotra of the appellants/defendants or whether a certificate has been taken from the transporter with respect to

RSA 20/2016 Page 2 of 4

delivery of goods at the place of the consignee being the appellants/defendants in the present case.

3. All other arguments of the parties and other documents, if filed, in the trial court would be examined by this Court on the next date of hearing. Counsels for the parties will file the necessary record as was available before the trial court at the stage of arguments on the leave to defend application and counsels for the parties are also at liberty to file all other documents provided they are impeachable documents in support of their respective cases.

4. List on 8th November, 2016."

5. Pursuant to the above direction the respondent filed additional affidavit along with a communication (in original) by the appellant/plaintiff dated 13th February, 2011 (Annexure A-3) which is on the letter head of the company of the appellant.

6. Pursuant to the direction of the Court the appellant No.1 has appeared in person and has also filed her affidavit. After seeing Annexure-A3 (original) to the additional affidavit filed by the respondent, the appellant No.1 has stated that though the letter head on which this document dated 13th February, 2011 is prepared, is of the appellants but the same is not signed by her.

7. Learned counsel for the appellants submits that in view of the plea taken by the appellant No.1, who was defendant No.1 in Civil Suit No.367/2011 filed under Order XXXVII CPC, it was a case for grant of unconditional leave to defend the suit.

8. With the consent of the parties, the appeal is allowed and impugned orders dated 23rd October, 2015 passed in RCA No.100/2013 by the First Appellate Court and order dated 14th August, 2013 passed in Civil Suit RSA 20/2016 Page 3 of 4

No.367/2011 by the learned Trial Court are set aside granting the appellants leave to defend subject to the following conditions:-

(i) The leave to defend the Civil Suit No.367/2011 is granted to the appellants subject to the condition of depositing the amount of ₹2,95,801/ i.e. the amount of dishonoured cheques within two weeks from today with the learned Trial Court and written statement shall also be filed within two weeks.

(ii) After the above amount is deposited, the learned Trial Court shall direct the amount to be kept in FDR with a nationalized bank for a period of one year with auto renewal facility.

(iii) Disbursement of this amount alongwith the accrued interest thereon shall be subject to the outcome of Civil Suit No.367/2011.

(iv) It is made clear that if the amount of ₹2,95,801/- is not deposited within two weeks from today and written statement not filed within two weeks, the appeal shall stand dismissed.

(v) The learned Trial Court shall try to expedite the disposal of the appeal preferably within a period of one year.

9. The appeal stands allowed in above terms.

10. The parties are directed to appear before the learned Trial Court on 1st March, 2017.

11. A copy of this order be sent to the concerned Trial Court for compliance and be also given dasti to learned counsel for the parties under the signature of the Court Master.

12. Registry is directed to sent back the LCR & ACR through special messenger alongwith copy of this order.

CM No.2239/2016

Dismissed as infructuous.

FEBRUARY 13, 2017/'st' PRATIBHA RANI, J.

RSA 20/2016 Page 4 of 4