Delhi District Court
Mr. Jagdish Ram Sharma vs Mr. Sandeep Gupta on 6 September, 2022
IN THE COURT OF MS. RAVINDER BEDI,
ADDITIONAL DISTRICT JUDGE-02 (SHAHDARA),
KARKARDOOMA COURTS, DELHI.
CS NO. 495/2020
CNR No. DLSH01-006359-2020
In the matter of :-
Mr. Jagdish Ram Sharma
S/o late Luther Ram Sharma
R/o C-7, Naveen Shahdara,
Delhi-110032.
.........Plaintiff.
Versus
Mr. Sandeep Gupta
S/o Sh. Ashok Kumar Gupta
R/o C-348, Chankya Marg, Chajjupur,
Shahdara, Delhi -110032.
........Defendant
Date of Institution of Suit : 23.10.2020
Date of arguments : 28.07.2022
Date of Order : 06.09.2022
RAVINDER Digitally signed by
RAVINDER BEDI
BEDI Date: 2022.09.14 15:39:33
+0530
CS No. 495/2020
Mr. Jagdish Ram Sharma vs. Mr. Sandeep Gupta Page no. 1 of 7
JUDGMENT
1. Plaintiff has filed the present suit under Order XXXVII of CPC for recovery of Rs.75,00,000/- (Rupees Seventy Five Lakhs) against Defendant.
2. In nutshell, it is averred by plaintiff that he is a senior citizen about 83 years of age and had purchased two flats at Village Sikdarpur, Delhi. The defendant in April 2015 approached the plaintiff and represented himself as a builder/collaborator dealing with residential small projects at Naveen Shahdara. He further stated that he had entered into a Collaboration Agreement dated 17.11.2014 with one Vinay Seth in respect of a property at Naveen Shahdara also. Defendant knowing that plaintiff also wanted to dispose off his flats to buy a bigger one at Naveen Shahdara, offered the plaintiff to sell the first floor of flat and showed his willingness to purchase the same. An agreement to sell was entered between the parties on 23.04.2015 and Defendant acknowledged the receipt of money of Rs.62,00,000/- and the remaining amount of Rs.13,00,000/- was agreed to be paid at the time of registration of Sale Deed of the First Floor of the Flat at House no. G-8, Naveen Shahdara, Delhi on or before 30.01.2016. The defendant also gave two security Cheques of Rs.30 lacs each to Plaintiff to ensure his commitment. The plaintiff paid an amount of Rs. Thirteen Lakh in three installments i.e. Rs.4,50,000/- on 12.10.2015; Rs.3,50,000/- on 16.12.2015 and Rs.5,00,000/- on 20.12.2015 to the Defendant. The Defendant after receiving whole amount of Rs.75 lakhs started creating disputes with the owner party under Collaboration Agreement just to avoid the registration of the Sale Deed. The period of such registration was extended on request of defendant. However, despite many requests, defendant kept seeking time from plaintiff for registry of the said flat.
Instead of returning the amount, Defendant started misbehaving and threatening the Plaintiff on account of which, Plaintiff had to lodge a police Complaint on 05.07.2017 vide DD no. 39B against Defendant at PS Shahdara. Defendant later on agreed to return the entire amount of Rs.75 lakh along with interest and entered into an MOU dated 03.08.2017 whereby he admitted his liability and offered to pay this amount Digitally signed CS No. 495/2020 by RAVINDER Mr. Jagdish Ram Sharma vs. Mr. Sandeep Gupta RAVINDER BEDI Page no. 2 of 7 BEDI Date:
2022.09.14 15:39:41 +0530 through 4 post dated cheques of Rs.19 lakh each. Thus, defendant in furtherance of MOU dated 03.08.2017, issued four post dated cheques of Rs.19 lakhs each in favour of plaintiff with assurance of their encashment on time. The details of the Cheques are mentioned in para no. 6 of the Plaint. All these Cheques when presented with the banker by plaintiff were dishonored on 27.12.2017 for the reasons 'funds insufficient'. Plaintiff also filed a criminal complaint under Section 138 of Negotiable Instruments Act (NI Act) against the defendant and in which defendant was finally convicted by the court of Ld. MM, Karkardooma, Shahdara.
3. Summons for appearance in prescribed Form 4 Appendix B of CPC were issued upon the Defendant. Defendant entered his appearance and furnished his address for service of summons for judgment. The defendant also moved an application seeking leave to defend the present suit under Order XXXVII Rule 3(5) CPC and it is the said application which is under consideration.
4. In his application seeking leave to defend, it is contended by Counsel for defendant that the present suit is barred by limitation as the Agreement /Ikrarnama dated 23.04.2015 was signed by both parties in respect of sale of two flats but the present suit has been filed on 20.10.2020 and thus is time barred; that plaintiff suppressed material facts from the court and intentionally did not fulfill his part of agreement and failed to make payment in time; that Plaintiff filed the false complaint against defendant at police station and got registered false FIR no. 49/19 under Section 420 IPC against him.
Ld. Counsel for the defendant argued that there were several triable issues as to how plaintiff paid the alleged amount of Rs.75 lakhs and how the Cheques came in possession of the plaintiff. Ld. Counsel in support of his submissions has placed reliance upon the Judgments of
1.T. Arivandandam v. T V Satyapal, 1977 LawSuit (SC) 307
2.Somma & Anr. v. State of UP and ors. DOD -18.04.2014,
3.Sangita Rehan & Ors. v. Surinder Kishan Grover & Ors. DOD- 13.10.2014
4.Kishorbhai Premchand Shah v. Hirji Bhojraj & Sons Kutchi Oswal Jain Digitally signed CS No. 495/2020 by RAVINDER Mr. Jagdish Ram Sharma vs. Mr. Sandeep Gupta Page no. 3 of 7 RAVINDER BEDI BEDI Date:
2022.09.14 15:39:45 +0530 Chhatralay Trust & Ors. DOD -02.09.2013
5.T. Muralidhar v. PVR Murthy DOD -07.11.2014.
5. Counsel for plaintiff per contra submits that plaintiff has an undisputed liquidated claim against the defendant and the application does not raise any substantial defence or triable issues and thus plaintiff is entitled to summary Judgment.
6. I have heard Ld. Counsel for parties and have perused contents of application seeking leave to defend with supporting affidavit in the light of the relevant statutory provisions of Order 37 CPC.
7. Order 37 of CPC is a special enactment which provides for summary procedure of recovery in special circumstances. The essence of the summary procedure is that defendant is not, as in an ordinary suit, entitled as of right to defend the suit, and for defending the suit, he must apply for leave to defend within span of 10 days from the date of service of summons, and leave will be granted only if affidavit of Defendant discloses such facts as will make it incumbent upon Plaintiff to prove consideration or such other facts as court may deem sufficient.
8. Apart from the legal propositions, I am aware of the judicial opinions expressed and the principles laid down in cases titled as:- (I) B.L. Kashyap & Sons Ltd. vs. M/s JMS Steel and Power Corporation (DOD as 18.01.2022 by Hon'ble Apex Court) (ii) Goyal MG Cases Vs. Premium International 138(2007)DLT 259.
(iii) S.C. Rastogi Vs. Renu Kalra & Another 127 (2006) DLT 793 and (v) Sunil Enterprises Vs. SBI Comm. & International Banking AIR 1998 SC 2317.
9. In the case of IDBI Trusteeship Services Ltd. Vs. Hubtown Ltd 2017(1) SCC 568, Hon'ble Apex Court modulated the principles laid down in Mechelec Engineers & Manufacturers v. Basic Equipment Corpn., (1976) 4 SCC 687] and it was observed as follows: -
" 17. Accordingly, the principles stated in para 8 of Mechelec case Digitally signed CS No. 495/2020 by RAVINDER Mr. Jagdish Ram Sharma vs. Mr. Sandeep Gupta RAVINDER BEDI Page no. 4 of 7 BEDI Date:
2022.09.14 15:39:50 +0530 [Mechelec Engineers & Manufacturers v. Basic Equipment Corpn., (1976) 4 SCC 687] will now stand superseded, given the amendment of Order 37 Rule 3 and the binding decision of four Judges in Milkhiram case [Milkhiram (India) (P) Ltd. v. Chamanlal Bros., AIR 1965 SC 1698 : (1966) 68 Bom LR 36] , as follows:
17.1. If the defendant satisfies the court that he has a substantial defence, that is, a defence that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit.
17.2. If the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the plaintiff is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend.
17.3. Even if the defendant raises triable issues, if a doubt is left with the trial Judge about the defendant's good faith, or the genuineness of the triable issues, the trial Judge may impose conditions both as to time or mode of trial, as well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit or security.
17.4. If the defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security.
As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires.
17.5. If the defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith.
17.6. If any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit,(even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court......"
Digitally
signed by
RAVINDER
CS No. 495/2020
Mr. Jagdish Ram Sharma vs. Mr. Sandeep Gupta
RAVINDER BEDI Page no. 5 of 7
BEDI Date:
2022.09.14
15:39:54
+0530
10. Though in the case of IDBI Trusteeship (supra), Hon'ble Apex Court observed that principles stated in paragraph 8 of Mechelec Engineers' case (supra) shall stand superseded in the wake of amendment of Rule 3 of Order XXXVII but, on the core theme, the principles remain the same that grant of leave to defend (with or without conditions) is ordinary rule and denial of leave to defend being an exception. Thus, prayer for leave to defend cannot be allowed in such cases where defendant has practically no defence or is unable to give out even a semblance of triable issues before the Court.
11. Coming to the facts of the present case, the plea of the defendant is the suit is barred by law of limitation. In support of this, ld. Counsel for the defendant has placed reliance upon various Judgments. Perusal of these Judgments would indicate that these are not applicable to the present factual matrix. The decision of Hon'ble Apex Court in T. Arivandandam (Supra) is related to rejection of Plaint under Order 7 Rule 11 CPC. The decision of Hon'ble Allahabad High Court in Somma & Anr. (supra) & Sangita Rehan (supra) also relates to the law related to rejection of Plaint. Further more, the decision in T. Muralidhar (supra) relates to the matter wherein the plaintiff had sought directions against defendant for execution of sale deed besides the consequential relief of injunction. Therefore, none of the Judgments relied upon defendant are of any help to the case of defendant.
12. In Ajanta Raj Proteins Private Limited vs. Himanshu Foods Pvt. Ltd. RFA no. 2/16 (decided on 31.01.2018), one of the issues was of limitation in filing an Order 37 CPC suit based upon a dishonoured cheque. It was held as below :
".....In the case of Order XXXVII of the CPC, a suit which is based on monetary instruments for recovery of amounts that are due and payable, the Court would have to see as to when the cause of action for filing of the suit arose. In a case like the present one, where there were a series of transactions between the parties and some amount remained outstanding, the giving of the cheque, which was given as a security, would not by itself construe the cause of action. It is only when the payment is not made and the person in whose favour, the cheque has been issued, seeks to encash the cheque and Digitally signed CS No. 495/2020 by RAVINDER Mr. Jagdish Ram Sharma vs. Mr. Sandeep Gupta BEDI Page no. 6 of 7 RAVINDER Date:
BEDI 2022.09.14
15:39:58
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it is thereafter dishonoured, that the right to sue itself arises. Until and unless the cheque is dishonoured, the Plaintiff cannot maintain a suit under Order XXXVII of the CPC in case of a cheque. There could be a situation where a cheque which has been issued as security for a future payment would be presented only when amounts become due and payable in future. The law of limitation has been designed not to reject claims of parties but to only ensure that old claims are not re- agitated and there is a finality after a particular period....."
13. In view of the settled position as above, the plea of Defendant is untenable under law. The amount claimed is a liquidated amount emerging from Cheques in question which is subject matter of Order 37 CPC. Having observed thus, I find that grounds/ defence taken by Defendant are non-substantive and unfounded. During submissions, Ld. counsel for plaintiff stated that the process of NBW was issued by the court of Ld. MM as the Defendant has been absconding from Court of Law.
14. I find in present case Defendant has no triable issues established on record nor is there some fact that needs to be proved contrary to facts established on record by Plaintiff of its claim of outstanding amount payable against Defendant which require any adjudication through trial as an ordinary suit. Consequently, application of defendant under Order 37 Rule 3(5) CPC for grant of leave to defend the suit stands dismissed.
Accordingly, Plaintiff is entitled for a judgment/decree of claim prayed for. Plaintiff is entitled to a money decree for an amount of Rs.75,00,000/- (Rupees Seventy Five Lakhs) along with an interest @ 8% per annum from the date of dishonourment of Cheques till its realization. Plaintiff is also entitled to costs.
15. Decree sheet be prepared and file be consigned to record room after due compliance as per rules. RAVINDER Digitally signed by RAVINDER BEDI Announced in the open court. BEDI Date: 2022.09.14 15:40:03 +0530 On 06.09.2022 (RAVINDER BEDI) Additional District Judge-02, Shd/KKD/Delhi06.09.2022.
CS No. 495/2020Mr. Jagdish Ram Sharma vs. Mr. Sandeep Gupta Page no. 7 of 7