TaxTMI 
TaxTMI 
2025 (4) TMI 63
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....ant, it was contended that the respondent had filed a false, malicious and frivolous case against him under Section 138 of the Negotiable Instrument Act, 1881 ["the Act"] [CC No. 13144/2016], which was decided in favour of the appellant by an order of the learned Metropolitan Magistrate ["MM"] dated 19.08.2017. It was specifically stated in the plaint, that the respondent had failed to prove any alleged liability/debt against the appellant. The appellant sought recovery of an amount of Rs. 1,37,500/-, which had been tendered by him to the respondent in the course of the proceedings under Section 138 of the Act, alongwith interest at the rate of 2.5% per month, amounting to a total of Rs. 4,47,562.50/- as on date of filing of the suit. 6. The respondent filed a written statement, in which the details of the alleged transactions between the parties were stated in detail. Pertinently, it was stated that the appellant had borrowed a sum of Rs. 1,00,000/- from the respondent on 30.12.2008 for a period of three months which carried interest at rate of 2.5% per month. According to the respondent, the amount was secured by a post-dated cheque dated 30.03.2009 for the sum of Rs. 1,00,000....
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....permanent, and mandatory injunction against the appellant [Suit No. 32/2014], in respect of a collaboration agreement dated 05.05.2005, which was decreed in their favour on 26.03.2015. The appellant has filed an appeal against the said judgment and decree before this Court [RFA No. 295/2015], which remains pending. However, these proceedings are not germane for the present purpose. 9. The respondent also filed an application under Order VII Rule 11 of the CPC, reiterating the contents of the written statement, and seeking rejection of the plaint on the ground that it did not disclose a cause of action. 10. By the impugned judgment, the learned Trial Court allowed this application and rejected the plaint. It noted the submission of the respondent that the judgment of the learned MM dated 19.08.2017, records the fact that the appellant had taken a loan of Rs. 1,00,000/- from the respondent, and that the payment of the sum of Rs. 1,37,500/- by him to the respondent was by way of compromise. In paragraph 12 of the impugned judgment, the learned Trial Court recorded the submission on behalf of the respondent that the learned MM had not returned a finding that there was no debt or ....
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....ndon S.P. & I Assn. Ltd. v. M.V. Sea Success I [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] which reads as : (SCC p. 562, para 139) "139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed." 23.12. In Hardesh Ores (P) Ltd. v. Hede & Co. [Hardesh Ores (P) Ltd. v. Hede & Co., (2007) 5 SCC 614] the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. D. Ramachandran v. R.V. Janakiraman [D. Ramachandran v. R.V. Janakiraman, (....
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.... liability. It was for the accused to rebut this presumption which he has been able to rebut. xxxx xxxx xxxx 13. In the present case, the complainant has gone on to vehemently argue that she had given loan of Rs . 1 lakh to the accused for the purpose of completion of the work on the second floor of her premises. The collaboration agreement dated 05.05.2005 has not been placed on record by the complainant during the entire trial, The complainant stated that in the collaboration agreement it was not written that the construction of the house was to be completed within ten months but the accused had given his oral assurance. But the complainant did not lead any evidence to prove the above stated fact. When the complainant was asked that whether she could show any reference in the Ex.CW1/1 that the friendly loan was given for the purpose of construction of house then the complainant answered that "The same fact was mentioned in the deleted para of the Ex.CW1/1 at point 3. I am having another photocopy of the said loan agreement and the same is Ex.CW1/1(i)". The exhibition of the photocopy of a loan agreement i.e. Ex.CW1/1(i) was objected by Ld. Counsel fo....
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....upplied) 15. While analysing the judgment of the learned MM, the learned Trial Court, in the impugned judgment has observed as follows: "21. Even Ld.MM has recorded the fact of payment by plaintiff in para 17 of the aforesaid judgment and nowhere in the said judgment, it has been recorded by Ld.MM that defendant had failed to prove that cheque was not issued in discharge of legally enforceable debt or liability. Even otherwise, debt or liability stood admitted by plaintiff at the stage of framing of notice under Section 251 Cr.P.C.as recorded in para 3 of the judgment and at the stage of recording of statement of accused/plaintiff under Section 313 Cr.P.C. as mentioned in para 4 of the said judgment. 22. Even the issuance of cheque was not disputed by plaintiff. Therefore, the aforementioned judgment clearly records the fact that plaintiff had made payment of cheque amount in discharge of his liability and even compensation of Rs. 37,500/- was paid by plaintiff to the defendant. 23. It was nowhere the defence of plaintiff in the criminal complaint that she had not taken friendly loan of Rs. 1 lac or cheque was not issued in discharge of liability. ....