RFANo.265/2008 Page 1 of 5 15 * IN THE HIGH COURT OF DELHI AT NEW DELHI + RFA No.265/2008 Date of decision: 08th December, 2008 % RAKESH KAPOOR ..... Appellant Through : Mr. Rakesh Kumar and Mr. Rajesh Kumar, Advs. versus BAL KISHAN VIRMANI ..... Respondent Through : Mr. S.K. Sinha, Adv. CORAM :- THE HON'BLE MR.JUSTICE PRADEEP NANDRAJOG THE HON'BLE MR. JUSTICE J.R. MIDHA 1. Whether Reporters of Local papers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? Pradeep Nandrajog, J. (Oral) 1. Heard learned counsel for the parties. 2. The impugned order is dated 13.02.2008. The appellant’s application seeking leave to defend has been dismissed. The summary suit has been decreed in sum of Rs.5,00,000/- together with interest thereon @ 18% per annum. 3. The foundation of the suit were three cheques issued by the appellant to the respondent; dated 20.02.2004, 20.03.2004 and 02.04.2004. Two cheques were in sum of Rs.1.5 lakhs each. The third cheque was in sum of Rs.2 lakhs. RFANo.265/2008 Page 2 of 5 The case pleaded was that the respondent and the appellant desired to purchase property No.401B, Mangolpur Kalan, Pathar Market, New Delhi from one Chander Wati. The bargain was settled at Rs.70 lakhs. Rs.19 lakhs was given to Chander Wati as earnest money. Rs.5 lakhs was the contribution of the respondent. That the respondent learnt that the appellant had managed to procure the sale deed from Chander Wati in his sole name; when confronted the respondent agreed to refund Rs.5 lakhs to him for which the cheques were issued. Stating that the cheques were dishonored when presented for encashment, suit was filed. 4. In the application seeking leave to defend, it was pleaded by the appellant that the respondent was a confidant of Chander Wati and was a tenant in a part of the property. That the appellant wanted to purchase the property from Chander Wati; respondent told the appellant that Chander Wati would be very confident to sell the property if even he i.e. the respondent was included as a beneficiary. For said reason, name of the respondent was recorded as the co- intended purchaser under the agreement to sell with Chander Wati. It was stated that the cheques in question were handed over to the respondent for payment to Chander Wati. That, when drawn out, the three cheques were blank. 5. In a nutshell, the case of the appellant was that the respondent did not contribute Rs.5 lakhs when part sale RFANo.265/2008 Page 3 of 5 consideration in sum of Rs.19 lakhs was paid to Chander Wati. 6. In the reply to the application seeking leave to defend, the respondent referred to a writing executed by the appellant on 08.01.2004 as also another writing dated 06.02.2005; alleging that the same evidenced a Panchayati settlement pursuant where to the three cheques were issued. 7. The appellant did not file any rejoinder to the reply filed by the respondent. 8. Holding that no case was made out to grant leave to defend to the appellant, the learned Trial Judge has recorded that the cheques in question are dated 20.02.2004, 20.03.2004 and 20.04.2004, a date much after the date 23.04.2003; the date notified under the agreement to sell for the sale to be concluded. Conclusion drawn is that the three cheques could not relate to the transaction in question. 9. Learned counsel for the appellant urges that the learned Trial Judge failed to appreciate that the case of the appellant was he had issued blank cheques bearing no date. Thus, if somebody put a date on the cheques much late than 23.04.2003, no adverse inference could be drawn against the appellant more so while considering the plea pertaining to grant of leave to defend. Second contention urged is there is no proof of the respondent having contributed Rs.5 lakhs when Rs.19 lakhs was paid to Chander Wati. Counsel states that the only recital in the agreement to sell is of the RFANo.265/2008 Page 4 of 5 appellant and the respondent paying Rs.19 lakhs to Chander Wati, for which the case of the appellant is that name of the respondent was inserted in the agreement to sell as a comfort factor for Chander Wati. 10. A cheque is presumed to be for a consideration, but the same is a rebuttal presumption. 11. While granting leave to defend focus of the court has to be on the pleadings of the plaintiff in the plaint and the application seeking leave to defend. 12. In this context, it is of significance that in the plaint there is no reference to any writings executed by the appellant. 13. On the other hand, the fact that in the agreement to sell the names of the appellant and the respondent as the intending purchasers have been recorded; with further recital that they have paid 19 lakhs to Chander Wati has also to be kept in mind. 14. We are of the opinion that the totality of the circumstances make out a case to grant a conditional leave to defend. The condition being that the appellant shall deposit Rs.5 lakhs as a term of defending the suit. 15. The appeal is allowed. Impugned order dated 13.02.2008 and the consequent decree passed thereon are set aside. Application filed by the applicant seeking leave to defend stands disposed of granting appellant conditional RFANo.265/2008 Page 5 of 5 leave to defend; condition being that within 6 weeks from today the appellant shall deposit with the learned Trial Judge a sum of Rs.5 lakhs and simultaneously file a written statement. 16. The amount deposited by the appellant would be permitted to be received by the respondent on furnishing security to the satisfaction of the learned Trial Judge. 17. No costs. 18. Parties are directed to appear before the learned District and Sessions Judge on 18th December, 2008. Successor court would be identified before whom the parties shall appear and before whom the appellant shall do the needful. 19. A copy of this order be supplied Dasti to learned counsel for the parties. PRADEEP NANDRAJOG, J J.R. MIDHA, J DECEMBER 08, 2008 aj