FAISAL ARAB, J.--- (1) This is a summary suit filed under Order XXXVII, rule 2, C.P.C. for recovery of the amount of four dishonoured cheques issued by the defendant to the plaintiff.
2. The case of the plaintiff is that in May and June, 2003, he paid Rs,5,700,000 to the defendant as an investment for a monthly return of Rs,1,25,250 as profit on the invested amount. This investment was made for eleven months commencing from August, 2003 and ending in June, 2004. The principal amount of Rs,57,00,000 was to be returned at the end of contract period i.e. June, 2004.
The plaintiff received monthly profit uptil March, 2004. Thereafter following four cheques issued by the defendant to the plaintiff were dishonoured upon presentation to bank on account of insufficiency of funds:--
(i) Cheque No,976865, dated 30-4-2004 Rs,1,25,250
(ii) Cheque No,976866, dated 30-5-2004 Rs,1,25,250
(iii) Cheque No,976867, dated 30-6-2004 Rs,58,25,250
(iv) Cheque No,976875, dated 30-4-2004 Rs,19,250 Total amount of dishonoured cheques Rs,60,95,000
3. The defendant in his leave to defend application admits plaintiff's investment of Rs,57,00,000 with the defendant and also admits that a return of Rs,1,25,250 per month was payable by him for eleven months commencing from August, 2003 to June, 2004, however, he claims that monthly payments were not profit but were rent of the machines purchased from the amount invested by the plaintiff with the defendant.
4. Now it is to be examined whether the defendant has made out a case for leave to defend the suit in his application.
5. In paragraph 6 of the affidavit filed in support of leave to defend application, the defendant states:-- "It was the plaintiff who expressed his consent to invest Rs,57,00,000 in the said business of the defendant by purchasing the machinery through the defendant and give the said machines to the defendant on rent."
"... the defendant purchased 4 embriodery machines and other assets from local market on behalf of the plaintiff, which was required to be used by the defendant and rent of Rs,1,25,250 per month was agreed to be paid by the defendant to the plaintiff for a period of 11 months commencing from August, 2003 to June, 2004 and as per the agreement, upon completion of 11 months, it was also agreed that the defendant shall purchase the machines and assets from the plaintiff against the principal amount subject to adjustment of payment of rent...."
6. From the above two excerpts of paragraph 6 of the defendant's affidavit it is evident that the business was solely of the defendant and that defendant admits that plaintiff invested a sum of Rs,57,00,000 in defendant's business. It is also an admitted position that a return of Rs,1,25,250 per month was payable thereon by the defendant for eleven months i.e. from August, 2003 to June, 2004. It is also evident that at the end of investment period the plaintiff was to receive back his entire principal amount of Rs,57,00,000 invested with the defendant. Though the defendant maintains that the monthly return Rs,1,25,250 on the investment was rent for the machinery which was purchased from the invested amount.
7. The defendant in paragraphs 7 and 8 further proceeds to state as follows:-- From paragraph 7 It is however, correct to the effect that the cheques were issued, however, it is pertinent to place it on record that such cheque was forcibly obtained by the plaintiff from the defendant for the payment of rent of Rs,1,25,250 for the month of March, 2004, knowingly that the plaintiff is not in a position to pay the said amount, as such the, same could not be encashed due to the aforesaid reasons, however, later on the defendant arranged and made the payment of such cheque in cash but the plaintiff due to ulterior motive, did not return the cheque to the defendant.."
It is respectfully submitted that due to on-payment of rent the plaintiff demanded from the defendant the entire principal amount as against the machines/assets. The plaintiff forcibly compelled to the defendant and obtained cheques from the defendant and retained the possession of the machines/assets with him with the intention that he will sell these machines/ assets and pay off the principal amount to the plaintiff. Though the defendant tried to make arrangement for the payment however, due to the fact that the machines of the plaintiff could not be sold, the cheques issued by the defendant were not honoured."
8. From the above two quotes of paragraphs 7 and 8 of the defendant's affidavit-it is evident that defendant made monthly payments uptil March, 2004 and thereafter issued four post-dated cheques to the plaintiff which were dishonoured on presentation. Admittedly these dishonoured four cheques include Cheque No,976867 dated 30-6-2004 for a sum of Rs,58,25,250. This Cheque for Rs,58,25,250 is obviously inclusive of the principal amount of Rs,57,00,000 and June, 2004's monthly return of Rs,1,25,250. Thus; it becomes quite clear that through this cheque the principal amount was being returned irrespective of the two different versions set up by the parties in their respective pleadings as the common element in both the versions is payment of Rs,1,25,250 per month for eleven months as return on the invested amount of Rs,57,00,000. Therefore, with the issuance of dishonoured cheques, the contract of investment came to an end. The only thing, which was left' in the matter was the clearance of the issued cheques as the clearance of cheques would have discharged the defendant from his obligation towards the plaintiff. This did not happen as the cheques were dishonoured, which led to filing of the present suit.
9. In view of the fact that defendant issued cheque also for the principal amount in June, 2004 when the entire arrangement between the parties was to come to an end, all subsequent pleas raised in paragraph 9 and onwards seem to be set up to avoid the consequences of dishonouring of cheques.
10. The defendant has also taken the plea that the four cheques which were dishonoured were forcibly obtained from him by the plaintiff. This is nothing but an attempt to avoid consequences of default committed on cheques. Such a plea is of no legal consequence for the reason that firstly, what kind of force was used is not stated by the defendant. Secondly, no criminal complaint was lodged by the defendant from which one can ascertain the nature of force applied. There is always an element of force or pressure a creditor in similar circumstances applies which do not have the colour of criminal intent. This is done by making nagging demands for return of one's money or creating physiological pressure by visiting several times at the debtor's residence or place of business and pressing for settlement of one's claim which is usual practice in our society. But all this is done only to seek recovery of one's stuck up amount. Therefore, nothing turns on the bald and vague plea of "forcibly obtained cheques". The cheques were issued not for an amount which was not payable to the plaintiff. These cheques were in fact for the amount which the defendant was contractually bound to pay to the plaintiff. In such circumstances also the plea of use of force loses its significance. The defendant who has himself not honoured his contractual commitment, cannot now present himself as an innocent person on the basis of some vague allegation of use of force not even described in the application for leave to defend.
11. It does not appeal to reason that in the background of mistrust created on account of dishonour of four cheques parties would come to a new arrangement as set up in paragraphs 9 and 10 of the leave to defend application without putting down new terms in writing. Even the return of the dishonoured cheques was not sought from the plaintiff. In this background the plea of the defendant that he handed over the machines and other assets to the plaintiff and that too in absence of any acknowledgment of handing over of the machinery is nothing but an afterthought just to claim regular trial. Such a plea also amounts to setting up an altogether a new and independent case. On such plea plaintiff's case cannot be defeated. The defendant having put an end to the entire transaction by issuing cheque for return of the principal amount, cannot seek leave in this suit to establish his own case of handing over his machinery to the plaintiff. The business was admittedly of the defendant and had the defendant's plea of plaintiff taking away the machinery to be bona tide, which is not, the defendant had the remedy to file separate suit against the plaintiff for wrongful takeover of defendant's machinery. The dishonoured cheques are still in the custody of the plaintiff which the defendant should have sought back from the plaintiff if the defendant was allowing the plaintiff to take over the custody of the machinery. This was the normal course of event in such a situation which did not happen. This leads to the inescapable conclusion that such a plea was raised only to prolong the trial in order to delay the consequence of not honouring the cheques.
12. Considering the facts in their totality, the defendant's pleas taken in paragraphs 9 and 10 of the leave to defend application are not real. There exists no fair dispute to be tried and in absence of a serious conflict, grant of leave to the defendant on the basis of untenable pleas would only facilitate defendant to prolong the litigation. The whole object of Order XXXVII, C.P.C. is to curtail defendant's ordinary right to raise a defence and seek full trial of the suit. He has to first establish that he is entitled to grant of leave to defend the suit. Any defence, which is eyewash and intentionally fabricated just to avoid the A consequence of a clear and admitted default committed on a negotiable instrument cannot be entertained in summary jurisdiction.
In view of the above discussion there exists no fair dispute to be tried. The defendant's leave to defend application is dismissed. Resultantly, the contents of the plaint are deemed to be admitted and this suit is decreed with costs for the sum of Rs,6,095,000 with interest at the rate of 8% per annum payable from the date of dishonour of the cheques A till the recovery of the entire decretal amount.