Delhi High Court
Mr. Om Kumar & Anr. vs Mr. Dinesh Bansal on 20 October, 2009
Author: Manmohan Singh
Bench: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ I.A. No.4455/2008 in C.S. [OS] No.589 /2007
Reserved on: 13th August, 2009
% Decided on: 20th October, 2009
Mr. Om Kumar & Anr. ...Plaintiffs
Through : Mr. Ajay Goswami, Adv. with
Mr. Diwakar Singh, Adv.
Versus
Mr. Dinesh Bansal ....Defendant
Through : Mr. Manoj Sharma, Adv. with
Mr. R.D. Sharma, Adv.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may No
be allowed to see the judgment?
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
MANMOHAN SINGH, J.
1. The present application being IA No.4455/2008 has been filed by the defendant seeking leave to defend the suit.
2. The brief facts of the present case are that the plaintiffs (husband and wife) filed the suit for recovery of Rs.59,85,000/- (Rupees Fifty Nine Lac Eighty Five Thousand) with pendente lite and future interest under Order XXXVII of Code of Civil Procedure, 1908.
3. The plaintiffs entered into an agreement for sale of two floors i.e. ground floor and 1st floor of the property bearing No.G-115,Saket, New Delhi (hereinafter referred to as 'suit property') to the defendant for a CS (OS) No.589/2007 Page 1 of 9 total consideration of Rs.50,00,000/- (Rupees Fifty Lac).
4. The plaintiffs submit that they were handed over five cheques by the defendant for a sum of Rs.10,00,000/- (Rupees Ten Lac) each against the sale consideration, the details of which are given as under:-
Cheque No. Amount Date of Payment 104382 10,00,000/- 06.04.2005 104383 10,00,000/- 06.04.2005 104384 10,00,000/- 07.04.2005 104385 10,00,000/- 08.04.2005 104386 10,00,000/- 10.04.2005 5. A joint account in the name of plaintiffs bearing
No.CLSB/60/050014 was opened in the Corporation Bank, Sector 22, Noida by the defendant. The defendant suggested the plaintiffs to give a loan of Rs.50,00,000/- (Rupees Fifty Lac) to M/s. Gasoline, his proprietary concern as an investment and assured the plaintiffs of 18% p.a. returns on it. The plaintiff No.1 on assurance that defendant will fill the cheques in favour of M/s. Gasoline (his proprietorship firm) gave five blank cheques signed by him to the defendant1, the details of which are mentioned as under:-.
Cheque No. Amount Date of Collection 246861 10,00,000/- 06.04.2005 246862 10,00,000/- 06.04.2005 246863 10,00,000/- 07.04.2005 246864 10,00,000/- 08.04.2005 246865 10,00,000/- 10.04.2005
6. The defendant, however issued a cheque of Rs.50,00,000/- (Rupees Fifty Lac) bearing No.284646 dated 7th April, 2005 drawn on Corporation Bank, Noida favouring plaintiffs as security to their CS (OS) No.589/2007 Page 2 of 9 proposed loan investment.
7. It is alleged in the plaint that since the defendant does not have the necessary cash to pay earnest money to the plaintiffs, he asked the plaintiffs for a temporary loan of Rs.5,00,000/- (Rupees Five Lac) for payment as earnest money. As alleged in the plaint, the said amount was given to the defendant as loan out of Rs.13,00,000/- (Rupees Thirteen Lac) received by plaintiffs from Mr. Sarabjit Singh.
8. It is contended by the plaintiffs that the defendant also deesired to purchase most of the household items like refrigerator, air conditioners and other expensive electronic items of the plaintiffs for a sum of Rs. 10,00,000/- (Rupees Ten Lac) and handed over cheque No. 104391 for a sum of Rs.10,00,000/- (Rupees Ten Lac) on 10th April, 2005 drawn on Corporation Bank, NOIDA in favour of the plaintiffs.
9. It is averred by the plaintiffs that simultaneously, the defendant also asked for a further loan of Rs.10,00,000/- (Rupees Ten Lac) from the plaintiffs which was given to the defendant vide cheque No. 246866 on the same date by the plaintiffs in favour of M/s Gasoline.
10. Therefore, as per the plaintiffs, the defendant issued another cheque of Rs.15,00,000/- (Rupees Fifteen Lac) against loan of Rs.10,00,000/- (Rupees Ten Lac) and cash of Rs.5,00,000/- (Rupees Five Lac) paid as convert.
11. It is mentioned in the plaint that when the plaintiffs demanded their invested money from the defendant, he refused to hand over the full money and gave a cheque of only Rs.20,00,000/- (Rupees Twenty CS (OS) No.589/2007 Page 3 of 9 Lac) vide Cheque No.406102 dated 05.05.2005 to the plaintiffs who have acknowledged the said amount in the plaint. But despite repeated demand by the plaintiffs for the balance money, the defendant did not pay the same rather as per the plaintiff, they were threatened. Therefore, the present suit is filed by the plaintiffs seeking recovery of balance amount of Rs. 45,00,000/- (Rupees Forty Five Lac) along with interest @ 18% per annum which comes to Rs 59,85,000/- (Rupees Fifty Nine Eighty Five Thousand) (under the provision of Order XXXVII of the Code) on the basis of two cheques issued by the defendant against the loan amount.
12. Summons for judgment was issued by this Court to the defendant on 26th March, 2008 through the process server.
13. The defendant filed an application being I.A. No. 4455/2008 for leave to defend allegedly raising a large number of triable issues and inter alia, contending that the plaintiffs were holding the cheques in an illegal manner as they were issued as security for the proposed loan investment by the plaintiffs and were thus without any consideration. It is contended that the suit amount is investment and is not a commercial transaction thus, it will not be covered under Order XXXVII of CPC.
14. It is further stated that the plaintiffs have been guilty of intentionally concealing and suppressing material facts from this court and have not come before this court with clean hands. The details of the defenses raised by the Defendant are given in para 12.1 to 12.16 of the application wherein it is averred that various payments were made to the CS (OS) No.589/2007 Page 4 of 9 plaintiffs from time to time inclusive of the payment of Rs.30,00,000/- (Rupees Thirty Lac) paid in cash but the plaintiffs have not disclosed the same in the plaint.
15. However, the Defendant has admitted that the two cheques for the amount of Rs 15,00,000/- (Rupees Fifteen Lac) and Rs.50,00,000/- (Rupees Fifty Lac) were handed over by him to the plaintiffs on their specific assurance that the plaintiffs would return those cheques to the defendant upon the final outcome of the another dispute between the plaintiff and Sarabjit Singh (third party and their sons). Therefore, the defendant had given Rs. 65,00,000/- (Rupees Sixty Five Thousand) to the plaintiffs being Rs. 50,00,00/- (Rupees Fifty Lac) for the sale consideration and other Rs.15,00,000/- (Rupees Fifteen Lac) for settling the dispute. The defendant submits that amount of Rs 60,00,000/- (Rupees Sixty Lac) was rotated back by the parties through the account of M/s Gasoline while the remaining Rs 5,00,000/- (Rupees Five Lac) remained with the plaintiffs as earnest money paid to them in cash on 16.02.2005 in the presence of one Sh Rajiv Mangla who confirmed this payment as witness by way of an affidavit, but no receipt was issued by the plaintiffs in this regard.
16. As per the defendant since no settlement could be arrived between the plaintiffs and their son in another matter, plaintiffs had agreed with the defendant on the proposal given by the defendant that he sell the said property purchased by him from the plaintiffs to any other buyer. The defendant, thereafter sold the first floor of the suit property to one M/s CS (OS) No.589/2007 Page 5 of 9 Anged Developers Pvt. Ltd, of S-5, Panchsheel Park, New Delhi, through its Director Shri Surinder Sehlot, resident of B-9, Saket, New Delhi-110017 for a total sale consideration of Rs 65,00,000/- (Rupees Sixty Five Lac) against the sale deed dated 29.04.2005 which had been duly witnessed by the plaintiff No. 1. As per the defendant, he paid a sum of Rs. 6,00,000/- (Rupees Six Lac) and Rs. 15,00,000/- (Rupees Fifteen Lac) respectively to the plaintiffs after collecting the same in cash from the said buyer on 27.4.05 in presence of witnesses.
17. Finally on 20.05.2005, the defendant allegedly paid a sum of Rs. 4 ,00,000/- (Rupees Four Lac) in cash to the plaintiffs in the presence of two witnesses i.e. Shri Rajiv Mangla and Raj Kumar Mittal, therefore, the defendant urged that he has cleared all the outstanding payment towards the plaintiffs.
18. It is mentioned by the defendant that when he demanded the return of the aforesaid two cheques for Rs.50,00,000/- (Rupees Fifty Lac) and Rs.15,00,000/- (Rupees Fifteen Lac), the plaintiffs did not return those cheques on the plea that those had been stashed away in certain important records and were not immediately available and assured the defendant that the same would be returned immediately on finding the same.
19. After a couple of demands for such cheques from the plaintiffs who were putting off the matter on one pretext or the other and since the cheques were for high denominations, the defendant apprehended some mischief and reported the matter to his bank and to the local police vide CS (OS) No.589/2007 Page 6 of 9 letter dated 30.05.2005 addressed to the police station Sector-20, Noida, Distt. Gautam Budh Nagar. Alleging the abovementioned circumstances, the defendant prayed for an unconditional leave to defend the suit.
20. The plaintiffs have specifically denied having received cash payment of Rs. 30,00,000/- (Rupees Thirty Lac) as alleged by the defendants in his application for leave to defend. Learned counsel for the plaintiff has argued that no receipt of any cash amount referred by the defendant has been placed on record.
21. It is denied by the plaintiffs that the defendant had handed over a cheque for Rs.10,00,000/- (Rupees Ten Lac) to them vide cheque No.104391 dated 10.4.2005 to help them to tide over their financial difficulties. It is stated that the said payment was made by cheque to the plaintiffs against the purchase of house-hold items.
22. The learned counsel for the plaintiffs has specifically denied the fact that there was no commercial transaction and the suit filed by the plaintiffs under Order XXXVII of the Code is not maintainable. It is contended by the learned counsel for the plaintiffs that the said cheques issued by the defendant as security against the loan amount are to be invested by the defendant in his proprietorship firm, which were never paid back by the defendant to the plaintiffs. Therefore, the plaintiffs, on the basis of the cheques issued by the defendant and in order to recover the balance amount of Rs.45,00,000/- (Rupees Forty Five Lac) filed the suit.
CS (OS) No.589/2007 Page 7 of 9
23. As far as the evidence filed by the parties is concerned, it is clear from the record that the plaintiffs have filed two original cheques one bearing No.284648 dated 7th April, 2005 for Rs.50,00,000/- (Rupees Fifty Lac) drawn on Corporation Bank, Noida and other bearing No.401389 dated 11th April, 2005 for Rs.15,00,000/- (Rupees Fifteen Lac) drawn on Corporation Bank, Noida issued by M/s.Gasoline, a proprietorship of the defendant in favour of the plaintiff. The plaintiff has also filed a Photostat copy of the Passbook in order to show that during the period 6th April, 2005 to 10th April, 2005 Rs.60,00,000/- (Rupees Sixty Lac) have been credited in the name of M/s.Gasoline. The statement of account for the period 1.4.2005 to 30.4.2005 has also been filed by the plaintiff.
24. On the other hand, the defendant has filed copy of the statement of account as well as the bank certificate issued in the name of Mrs. Poonam Bansal and Mr.Vivek Bansal certifying that the cheques of Rs.60,00,000/- (Rupees Sixty Lac) have been debited from the account of the defendant in saving bank Account No.29141 during the period 6.4.2005 to 10.4.2005. No other documents pertaining to the transaction have been filed by the defendant except the Photostat copies of the earlier litigation between Sarabjit Singh and the plaintiff in Suit No. 669/2005.
25. After hearing the rival contentions of the parties and giving my thoughtful consideration, I am of the view that plaintiffs are not entitled for a decree as claimed straightaway as there exist certain grounds in the CS (OS) No.589/2007 Page 8 of 9 application for leave to defend which requires trial. But at the same time, as far as the contention of the defendant about the payment of Rs.30,00,000/- (Rupees Thirty Lac) in cash is concerned, it appears prima facie that the said defence raised by the defendant is unreliable as no evidence in support of it has been produced. Therefore, the defendant is entitled to conditional leave to defend.
28. In the interest of justice, equity and fair play, I direct that the leave to defend is granted to the defendant to defend the suit subject to the condition of depositing Rs.30,00,000/- (Rupees Thirty Lac) by the defendant within a period of four weeks from today with the Registrar General of this court who shall keep the said amount in a Fixed Deposit initially for a period of two years.
29. The written statement be filed by the defendants within six weeks from today. Replication thereto be filed within four weeks thereafter. The documents relied shall also be filed by the parties. List the matter before the Joint Registrar on 3rd February, 2010 for admission/denial of the documents.
MANMOHAN SINGH, J OCTOBER 20, 2009 SD CS (OS) No.589/2007 Page 9 of 9