Delhi High Court
Skylink Construction Pvt.Ltd. & Anr vs Sachin Mittal & Anr on 25 July, 2022
Author: V. Kameswar Rao
Bench: V. Kameswar Rao
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: July 25, 2022
+ CS(OS) 387/2020, I.As. 5167/2021 & 4556/2022
SKYLINK CONSTRUCTION PVT.LTD. & ANR
..... Plaintiff
Through: Mr. Sunil Dalal, Sr. Adv. with
Ms. Deepa Sharma, Mr. Devashish
Bhadauria, Ms. Manisha Saroha,
Ms. Pratibha Varun and Mr. Gunraj
Bakshi, Advs.
versus
SACHIN MITTAL & ANR
..... Defendants
Through: Mr. Ravi Gupta, Sr. Adv. with
Mr. Sachin Jain, Mr. Himansh Yadav
and Mr. Rajiv Taneja, Advs.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
V. KAMESWAR RAO, J. (ORAL)
1. By this order, I shall decide I.A. No. 5167/2021 filed by the defendant No.1 for setting aside the decree dated March 9, 2021 whereby this Court decreed the suit filed by the plaintiffs under Order XXXVII CPC in so far as the defendant No.1 / applicant is concerned for ₹4 Crores along with interest @ 18% per annum w.e.f. March 12, 2018 till realisation on the ground that despite service through e-mail on February 6, 2021, defendant No.1 / Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV CS(OS) 387/2020 Page 1 Signing Date:26.07.2022 19:02:06 applicant has not appeared in the proceedings. The order dated March 9, 2021, reads as under:
"1. The hearing has been conducted through video conference.
2. There is no appearance on behalf of defendant No.1 despite service through email on 06th February, 2021. The plaintiff's suit is, therefore, decreed for Rs. 4 crore along with interest at the rate of 18% per annum w.e.f. 12th March, 2018 till realisation in favour of the plaintiff and against defendant No.1.
3. Defendant No.2 was served on 15th February, 2021 and defendant No.2 filed the memo of appearance on 23rd February, 2021 i.e. within 10 days of the service.
4. Learned counsel for the plaintiff submits that she would be filing an application for issuance of summons for judgment to defendant No.2.
5. List for further hearing as a part heard matter on 06 th April, 2021.
6. Defendant No.2 shall remain present before this Court on the next date of hearing.
7. The order be uploaded on the website of this Court forthwith."
2. The brief facts for considering this application are, the suit has been filed by the plaintiffs under Order XXXVII CPC for recovery of ₹4 Crores against two defendants along with interest @ 18% per annum from the date of default, i.e., March 2, 2018.
Signature Not Verified Digitally Signed By:ASHEESHKUMAR YADAV CS(OS) 387/2020 Page 2 Signing Date:26.07.2022 19:02:06
3. It is the case of the plaintiffs that plaintiff No.2 is the owner of a freehold property bearing No. B-8, admeasuring 500 Sq. Yds., Green Park Main, New Delhi - 110016 vide sale deed executed on December 9, 2009. Being the absolute owner, plaintiff No.2 entered into a collaboration agreement with plaintiff No.1 for reconstruction / redevelopment of the suit property. Pursuant to the collaboration agreement, plaintiff No.1 reconstructed the suit property comprising of basement / stilt, ground floor, first floor, second floor and third floor with terrace after dismantling the old structure. As agreed in the collaboration agreement, the entire basement of the said property had fallen to the share of the plaintiff No.2 and entire ground floor, first floor, second floor and third floor with terrace along with stilt area for car parking along with 22.5% indivisible / undivided and impartibly freehold ownership rights in the land underneath had fallen to the share of the plaintiff No.1.
4. In the year 2017, the defendant No.1 who is known to plaintiff No.1, along with defendant No.2 visited the office of the plaintiff No.1 and showed his willingness and desire to purchase the entire basement and entire ground floor of the freehold property bearing No.B-8, Green Park Main, New Delhi - 110016. After due consideration of the offer made by the defendant No.2, the plaintiffs agreed to sell the property to defendant No.2 for a total consideration of ₹ 10 Crores and the defendant No.1 being the intermediary between the plaintiffs and defendant No.2, facilitated the sale and purchase of the property of the plaintiffs.
Signature Not Verified Digitally Signed By:ASHEESHKUMAR YADAV CS(OS) 387/2020 Page 3 Signing Date:26.07.2022 19:02:06
5. It is the case of the plaintiffs that during the finalisation of the transaction it was represented by defendant Nos.1 and 2 that defendant No.1 holds a sum of ₹4 Crores of the defendant No.2, assured and represented that out of the total consideration of ₹10 Crores, ₹6 Crores shall be paid by defendant No.2 and the remaining balance of the total consideration for the purchase of the said property amounting to ₹4 Crores shall be paid by the defendant No.1 to the plaintiffs. Accordingly, a Memorandum of Understanding ('MoU', for short) was entered between the plaintiffs and the defendant No.1 on September 14, 2017.
6. It is the case of the plaintiffs that as per the agreement in the MoU, defendant No.1 represented / declared / assured / undertook to pay the remaining balance consideration amount of ₹ 4 Crores towards the purchase of the property by defendant No.2 by way of five cheques. A sale deed dated September 15, 2017, was executed and registered with the Sub-Registrar on September 18, 2013.
7. It is also the case of the plaintiffs that the said cheques when deposited have returned back for insufficient funds. In fact, even on re-presentation, the same were dishonoured which resulted in the filing of the present suit.
8. This application is premised on the facts, as contended by Mr. Ravi Gupta, learned Sr. Counsel appearing for the defendant No.1 / applicant that the non-appearance of the defendant No.1 is because, the service of the summons / notice regarding the suit was not effected on the defendant No.1, on February 6, 2021.
Signature Not Verified Digitally Signed By:ASHEESHKUMAR YADAV CS(OS) 387/2020 Page 4 Signing Date:26.07.2022 19:02:06 Rather, it was effected on March 1, 2021 and as per the requirement of Order XXXVII Rule 3 CPC, defendant No.1 was under an obligation to put in appearance in the Court within ten days, i.e., on or before March 11, 2021 and March 11, 2021 being holiday, the last date for putting in appearance was March 12, 2021. He also stated the e-mail ID of the defendant No.1 is [email protected]. In ordinary course of business, defendant No.1 used the said e-mail ID for personal use and has been using the same for the last eight years.
9. Mr. Gupta contested the mail ID given by the plaintiffs in the memo of parties as [email protected] for effecting service. According to him, the said e-mail ID has been created in the past by an employee in the office of the defendant No.1 for official use wherefrom purely official communications were sent and received and with the passage of time and also perhaps the employee leaving the office of defendant No.1, the said e-mail ID has been rendered redundant and it is hardly checked even by the other staff of the defendant No.1. Mr. Gupta would submit, no e- mail containing the summons / notice issued in the above case by this Court had ever been received by the defendant No.1 in the mail box under the ID [email protected], after the passing of the impugned order.
10. In substance his submission is even after the passing of the impugned order / decree no such e-mail could be located in the mail box showing issuance of summons / notice.
Signature Not Verified Digitally Signed By:ASHEESHKUMAR YADAV CS(OS) 387/2020 Page 5 Signing Date:26.07.2022 19:02:06
11. Mr. Gupta stated, the appearance of defendant No.1 was put in March 9, 2021 and copy of the application along with copy of Vakalatnama was sent to the plaintiffs and their counsel on March 10, 2021. The requirement of provisions of Order XXXVII Rule 3 CPC having been complied with, the decree need to be set aside.
12. That apart, he highlighted the fact that Suit is based on falsehood and fraud inasmuch as from the bare perusal of the sale deed relied upon by the plaintiffs, the consideration fixed for sale of the property was ₹ 6 Crores only and the full amount of consideration has been paid by defendant No.2 to the plaintiffs. Nothing remains to be paid by anybody on account of transfer of the suit property in favour of defendant No.2. He stated, even otherwise, in the agreement to sale and purchase dated August 3, 2017 entered into between the plaintiffs and the defendant No.2 pertaining to the suit property, the amount of consideration being at ₹ 6 Crores, the plaintiffs have deliberately avoided bringing the agreement to sale on record without giving any explanation. The alleged MoU brought on record by the plaintiffs was never executed between the plaintiffs and the defendant No.2. More than proving, the alleged MoU shall disprove the allegation as contained in the application. It bears the signatures of the plaintiffs and the defendant No.1. The fact that it does not bear the signatures of defendant No.2 has not been explained either by the plaintiffs or by the defendant No.2. It appears that same is with a view to absolve the defendant No.2, the actual purchaser of the Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV CS(OS) 387/2020 Page 6 Signing Date:26.07.2022 19:02:06 property of the consequence of non-payment of the balance of consideration. He further stated that the MoU having not been registered it has the effect of creating / taking away the rights in respect of immoveable property and must be registered, otherwise in terms of Section 49 of the Indian Registration Act, 1908, the same cannot be read in evidence. He also argued that as the suit has been filed against two defendants, that defendant No.2 also and there is no agreement with defendant No.2, the Court could not have decreed the suit, but should have converted the same as an ordinary suit and put it on trial.
13. Mr. Gupta in support of his above submissions has drawn my attention to the documents filed by the defendant No.1 along with the application as well as the additional documents. He prays for grant of the prayer. In support of his submissions, he has relied upon the following Judgments:
1. A.G. Aerovision Electronics Pvt. Ltd. and Ors. v.
Tata Capital Financial Services Ltd., 2019 (1) R.A.J. 558 (Del)
2. National Small Industries Corp. Ltd. v. Myson Electronics P. Ltd. and Ors. CS(OS) 1164/2002
3. Rajni Kumar v. Suresh Kumar Malhotra and Ors. Civil Appeal No. 2538/2003
14. On the other hand, Mr. Sunil Dalal, learned Sr. Counsel appearing for the plaintiffs would submit that the present application is liable to be dismissed as defendant No.1 has failed to make out a special circumstance both in regard to the illegality in deeming service of summons as well as facts sufficient to entitle Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV CS(OS) 387/2020 Page 7 Signing Date:26.07.2022 19:02:06 him to defend the suit. He stated that defendant No.1 has been duly served in the matter at all addresses mentioned in the memo of parties. The services of the summons had duly been effected by defendant No.1 vide speed post as well as through process server, but however the same was deliberately avoided by defendant No.1 for the reasons that "addressee left and no such person at this address". He stated admittedly all the addresses as mentioned in the memo of parties are of the defendant No.1 and the said fact is not disputed by the defendant No.1. Even the addresses mentioned in the affidavit by defendant No.1 is of S-370, LGF, Panchsheel Enclave, New Delhi. The said address was duly visited by the process server on February 19, 2021 and February 23, 2021 for the service of summons, however the same was refused by the agent of the defendant No.2 deliberately for one reason or the other. He stated that in view of the provision of Order V Rule 9 CPC, defendant No.1 stands duly served as the defendant No.1 has intentionally avoided the summons thereby refused to take the delivery of the postal articles containing the summons and summons through process server at all the addresses. He stated, in fact, as per the case of the defendant No.1, service was effected on the defendant No.1 on the same address as mentioned in the memo of parties by the mode of postal service on March 1, 2021 which makes it apparent that previously, defendant No.1 had been avoiding the service of summons through process server and registered speed post in order to delay the court proceedings. He also justifies that the e-mail ID [email protected] Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV CS(OS) 387/2020 Page 8 Signing Date:26.07.2022 19:02:06 belongs to the defendant No.1 and he has been operating the same e-mail ID as late as August, 2021 as is clear from the website of the defendant No.1. So, today, according to him, the stand taken by the defendant No.1 that the said e-mail is inoperable / redundant is purely an afterthought only to wriggle out the decree passed against him by this Court. That apart, he also stated that in another matter filed by the plaintiff No.1 against Madhu Sawhney and Ors. being CS (OS) 385/2020, which is pending before this Court, wherein defendant No.1 has been arrayed as one of the defendants in the said suit, the defendant No.1 has been duly served on the same address in the said suit. Even the counsel of Mohinder Singh, defendant No.2, i.e. Mr. Amit Kumar Sinha, Adv. who has filed his appearance on February 23, 2021 in the present suit has been appearing for the defendant No.1 in CS(OS) 385/2020. In this regard, he has drawn my attention to the order passed by this Court in CS(OS) 385/2020. Hence, it cannot be presumed that defendant No.1 had no notice about the pendency of the present suit against him. Even on merits, he stated that the defendant No.1 had executed the memorandum of understanding on September 14, 2017, whereby defendant No.1 has admitted his liability and represented, declared, assured and undertook to pay the consideration of ₹4 Crores towards the purchase of the property to the plaintiffs and has issued various cheques in favour of the plaintiffs from time to time for the payment towards the above debt, outstanding liability which were dishonored on presentation of the same for encashment. In other words, it is his Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV CS(OS) 387/2020 Page 9 Signing Date:26.07.2022 19:02:06 submission, there is no triable issue entitling him to leave to defend. In support of his submissions, he has relied upon these two judgments:
(i) Manjari v. Ranjit Singh v. 2007 (2) AD (Delhi) 473,
(ii) IFCI Factors Ltd. v. Maven Industries Ltd. and Ors., 225 (2015) DLT 32.
15. Having heard the learned counsel for the parties, the only issue which arises for consideration is whether this Court, on a finding that the defendant No.1 having been served through e-mail on February 6, 2021 and despite service, he not being represented, had rightly decreed the suit against him for ₹ 4 Crores with interest @ 18% per annum.
16. The broad submissions of Mr. Ravi Gupta, learned Sr. Counsel appearing for defendant No.1 / applicant are the following:
i. The e-mail ID as mentioned in the memo of parties is not in use by the defendant No1 and all the communications between the plaintiffs and defendant No.1 in the past were done on [email protected] ii. The suit is not maintainable under Order XXXVII as defendant No.2 has no liability in the suit under Order XXXVII and the decree is claimed against both the defendants.
iii. The MoU dated September 14, 2017 is signed only by the plaintiffs and the defendant No.1.Signature Not Verified Digitally Signed By:ASHEESH
KUMAR YADAV CS(OS) 387/2020 Page 10 Signing Date:26.07.2022 19:02:06 iv. The MoU dated September 14, 2017 and the sale deed dated May 15, 2017 are not in conformity. v. The decree dated March 9, 2021 could not have been passed for non-appearance as no summons for judgment was issued by the plaintiff to the defendant No.1 and his appearance on March 9, 2021 was not required.
17. At the outset, I must state that the purpose of Order XXXVII CPC is to provide an expeditious disposal of suits by summary proceedings.
18. The Supreme Court in the case of Neebha Kapoor v. Jayantilal Khandwala & Ors., 2008 3 SCC 770 has in Para 12 held as under:
"12. Order 37 of the Code has been prescribed in terms of the provisions contained in Clause (f) of sub-section (2) of Section 128 of the Code so as to expedite trial of suits specified therein. We have no doubt in our mind that the underlying public policy behind Order 37 is expeditious disposal of suits of commercial nature. It provides for such disposal as expeditiously as possible by prescribing time-frame therefor. Where, however, applicability of Order 37 of the Code itself is in question which appears to be the principal reason behind the impugned judgment, in our opinion, grant of leave may be permissible. The court before passing a decree was entitled to take into consideration the consequences therefor."
19. Suffice to state that the proceedings in a Suit under Order XXXVII of the CPC are regulated by strict timelines as laid therein. The failure on the part of a defendant to appear in the Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV CS(OS) 387/2020 Page 11 Signing Date:26.07.2022 19:02:06 proceedings resulting in decree can only be reversed if such circumstance exists within the meaning of Order XXXVII Rule 4 CPC. The order XXXIV Rule 4 CPC came to be interpreted by the Supreme Court in Rajni Kumar v. Suresh Kumar Malhotra & Anr. (2003) 5 SCC 315, wherein the Supreme Court has in paragraph 11 has held as under:
"11. It is important to note here that the power under Rule 4 of Order 37 is not confined to setting aside the ex parte decree, it extends to staying or setting aside the execution and giving leave to appear to the summons and to defend the suit. We may point out that as the very purpose of Order 37 is to ensure an expeditious hearing and disposal of the suit filed thereunder, Rule 4 empowers the court to grant leave to the defendant to appear to summons and defend the suit if the court considers it reasonable so to do, on such terms as the court thinks fit in addition to setting aside the decree. Where on an application, more than one among the specified reliefs may be granted by the court, all such reliefs must be claimed in one application. It is not permissible to claim such reliefs in successive petitions as it would be contrary to the letter and spirit of the provision. That is why where an application under Rule 4 of Order 37 is filed to set aside a decree either because the defendant did not appear in response to summons and limitation expired, or having appeared, did not apply for leave to defend the suit in the prescribed period, the court is empowered to grant leave to the defendant to appear to the summons and to defend the suit in the same application. It is, therefore, not enough for the defendant to show special circumstances which prevented him from appearing or applying for leave to defend, he has also to show by affidavit or otherwise, facts which would entitle him leave to defend the suit. In this respect, Rule 4 of Order 37 is different from Rule 13 of Order 9."Signature Not Verified Digitally Signed By:ASHEESH
KUMAR YADAV CS(OS) 387/2020 Page 12 Signing Date:26.07.2022 19:02:06
20. Even a Coordinate Bench of this court in the case of Dr. K.N. Shukla v. M/S. B.L.A Chit Fund Limited & Ors. CRP 472/2003 decided on January 14, 2008 has in Para 9 held as under:
"Indeed, an application under Order 37 Rule 4 CPC differs vis-à-vis an application under Order 9 Rule 13 CPC for the reason an application under Order 37 Rule 4 CPC is a composite application determination whereof, if in favour of the applicant, results in not only the ex-parte decree being set aside but leave to defend being granted to the party concerned. It is for this reason law requires that the defendant, in addition to show special circumstances which prevented him / her from appearing, must additionally disclosed facts entitling him / her to obtain leave to defend."
21. Having the noted position of law, it has to be seen whether defendant No.1 has shown special circumstance for this Court to set aside the decree passed against him on March 9, 2021.
22. The plea of Mr. Ravi Gupta, learned Sr. Counsel as noted above is that the service which was effected on defendant No.1 / applicant on February 6, 2021 was on the e-mail ID [email protected] which according to him was not in use and in fact plaintiff and defendant No.1 in the past had exchanged the communications on [email protected].
23. This submission of Mr. Gupta is contested by Mr. Dalal by showing me the web-page of the plaintiffs at Annexure-C of the documents, filed by defendant No.1 on August 9, 2021 with filing No. 654099/2021. The printout of the web-page is dated August 26, 2021 with address as D-1, Third Floor, Shopping Centre-II, Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV CS(OS) 387/2020 Page 13 Signing Date:26.07.2022 19:02:06 Vasant Vihar, New Delhi - 110057 and the email ID as [email protected].
24. Suffice to state, the printout of the web page taken much after the decree was passed, i.e., on August 26, 2021 it still reflect the email ID details of the defendant No.1 as [email protected].
25. The plea of Mr. Ravi Gupta that the parties have exchanged communications with each other at [email protected], and there was no reason for the plaintiffs to provide the email of defendant No.1 as [email protected], though looks appealing on a first blush, but on a deeper consideration, it is clear that the defendant No.1 was also using his email ID as [email protected] and the same was active even after the decree dated March 9, 2021 at least till August 26, 2021 as is clear from the web page itself which is a print out of that date, it must be held that the e-mail ID [email protected] on which summons / notices were issued were rightly sent.
26. During his submissions Mr. Gupta has relied upon a screenshot of some pages of a mail to contend that the defendant No.1 had not even received the e-mail supposed to have been sent by the High Court.
27. The said submission is not appealing for two reasons, firstly, the screenshot of the e-mail ID on which reliance has been placed by Mr. Gupta is that of [email protected] on which admittedly the summons were not sent. He has not placed on record the screen shot of [email protected]. Even Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV CS(OS) 387/2020 Page 14 Signing Date:26.07.2022 19:02:06 otherwise, during the course of hearing this Court had called the officer of the Registry (of this Court) to ascertain what is the process followed by the High Court for serving notice through e- mail. He disclosed to the Court that the summons / notice sent through e-mail are duly received if the same is not bounced back. If it is bounced back a report in that regard is received by the High Court within 48 hours. In this case no report is received by the High Court. So, it follows the summons / notice were duly served. Hence the first submission of Mr. Gupta is liable to be rejected.
28. The second submission of Mr. Gupta is that the suit is not maintainable under Order XXXVII against defendant No.2 as the MoU was executed by defendant No.1, and even the cheques were issued by him. In the absence, thereof, a claim vide the suit under Order XXXVII CPC shall not be maintainable. In support of this submission Mr. Gupta has relied upon the judgment of a Coordinate Bench of this Court in the case of IFCI Factors Ltd. v. Maven Industries Ltd. CS(OS) No. 2950/2015 wherein the Coordinate Bench in the said case has held that Order XXXVII is not intended to allow parties to extend the scope of Order XXXVII CPC so as to allow filing of the suits when amounts which are claimed in the suit do not directly spring and arise from the written document or the dishonourd bill of exchange or cheque. In other words, the cause of action in the suit for recovery of money which is filed under Order XXXVII concludes as regards the averments on the existence of the cause of action to the written document Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV CS(OS) 387/2020 Page 15 Signing Date:26.07.2022 19:02:06 containing the liquidated amount or the dishonoured bill of exchange or cheque.
29. If in the suit / plaint besides the averments of the cause of action of the written contract containing the specific liquidated amount which is specifically claimed in the suit, necessary further facts, averments and cause of action has to be pleaded for the plaintiff to show the amount claimed in the suit, then, such a suit is not based on the written document only or the dishonoured bill of exchange or cheque only because other facts are to be established to show the liability of the defendant in the suit, and thus such a suit was not intended by the legislature to be filed under Order XXXVII CPC. The Court was also of the view that therefore a suit cannot be filed where it is pleaded to be maintainable against one defendant being defendant no.1, (in that case) whereas against other defendant nos.2 and 3/guarantors the suit does not lie under Order XXXVII CPC as they are not parties to the Contract dated January 28, 2011 which as per the plaintiff contains a liquidated amount which is sought in the suit.
30. No doubt, this Court has in the above Judgment by relying upon three more judgments in the cases of (i) Order dated November 04, 2015 in CS(OS) No.3316/2015 titled as Krishan Kumar Wadhwa & Ors. Vs. Arjun Som Dutt & Ors., (ii) Order dated November 16, 2015 in CS(OS) No.1369/2015 titled as Vinod Kumar Abbey vs. Mountain Fall India Pvt Ltd & Ors. and (iii) Judgment dated October 16, 2015 in CS(OS) Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV CS(OS) 387/2020 Page 16 Signing Date:26.07.2022 19:02:06 No.2552/2011 titled as GE Capital Services India Vs. Dr. K.M. Veerappa Reddy and Ors. has held as above.
31. But I am afraid such a plea of behalf of defendant No.1 (in this suit) shall not be sustainable. This I say so for more than one reason, firstly, the judgment on which reliance has been placed by Mr. Gupta was decided at the initial stage of the admission of the suit by the Court itself, when no summons were issued to the defendants therein. In other words, the said objection was not at the behest of the Court. Secondly, the said objection cannot be raised by the defendant No.1 herein when admittedly the Order XXXVII CPC suit qua defendant No.1 was filed in respect of a memorandum of understanding dated September 14, 2017 which was entered between the plaintiffs and the defendant No.1 and the memorandum of understanding clearly stipulates that the defendant no.1 shall pay an amount of ₹ 4 Crores in respect of the transaction with regard to the property in question and it is also the case of the defendant No.1 that he had issued cheques for ₹ 4 Crores in favour of the plaintiff No.1 which were dishonoured. Hence the claim of the plaintiffs against defendant No.1 was maintainable under Order XXXVII CPC. Hence the decree qua defendant No.1 cannot be faulted at this stage.
32. The judgment of the Coordinate Bench has to be read in the facts as were prevailing in that case. This plea of Mr. Gupta is also liable to be rejected.
33. Another plea of Mr. Gupta is that the MoU dated September 14, 2017 and the sale deed dated September 15 2017 Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV CS(OS) 387/2020 Page 17 Signing Date:26.07.2022 19:02:06 are not in conformity. I am not impressed by this submission of Mr. Gupta for the simple reason that the MoU in clear and unequivocal terms states that the defendant No.1 shall pay an amount of ₹4 Crores to the plaintiff No.1 and in fact in furtherance to such obligation cheques of ₹4 Crores were issued to the plaintiff No.1 which were subsequently dishonoured.
34. Suffice to state that the case of the plaintiffs is based on the MoU and the cheques issued by the defendant No.1, which have not been contested by the defendant No.1 and hence the issue that the MoU and the sale deed being not in conformity is a triable issue does not appeal to the Court.
35. One of the submissions of Mr. Gupta is that the decree dated March 9, 2021 could not have been passed for non- appearance as summons for judgment was issued by the plaintiffs to the defendants and the defendant No.1 was not required to appear on March 9, 2021 is also not appealing. This I say so, assuming for a moment, the summons were received by the defendant No.1 on March 1, 2021, the defendant was conscious about the date of hearing being March 9, 2021, but he did not care to appear before the Court on the said date and at least file the appearance in the Court itself which he did not do. In fact, Mr. Gupta has submitted that the plaintiffs had put in his appearance on March 9, 2021 and the copy of the application along with Vakalatnama were sent to the plaintiffs and their counsel on March 10, 2021. This aspect has been denied by the plaintiffs in their reply. That apart, I find from the notings of the Registry Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV CS(OS) 387/2020 Page 18 Signing Date:26.07.2022 19:02:06 there is no reference to any application having been filed by the defendant No.1 either on March 11, 2021 or March 12, 2021 when the 10 day's time had expired. It means the defendant No.1 has not filed his appearance within ten days of receipt of summons on March 01, 2021
36. Hence, this Court is of the view that defendant No.1 has not disclosed any facts which shows special circumstance which prevented him from appearing and additionally, he has also not disclosed any facts entitling him to obtain leave to defend.
37. In view of my above conclusion, I do not see any reason to grant the prayers as made in the application. The application must fail. It is ordered accordingly. The application is dismissed. CS(OS) 387/2020, I.A. 4556/2022 List on October 07, 2022 when connected EX.P 56/2021 is listed.
V. KAMESWAR RAO, J
JULY 25, 2022/jg
Signature Not Verified
Digitally Signed By:ASHEESH
KUMAR YADAV CS(OS) 387/2020 Page 19
Signing Date:26.07.2022
19:02:06