Delhi District Court
Gurmeet Singh vs Vijay Kumar Chawla on 11 May, 2016
IN THE COURT OF SH. LALIT KUMAR:
ADDITIONAL DISTRICT JUDGE 01 SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI.
CS No. 162/2014
Gurmeet Singh
S/o. Sh. Tian Singh
R/o. S364, Greater KailashI
New Delhi.
............Plaintiff
Versus
Vijay Kumar Chawla
S/o. Sh. G.D. Chawla
R/o. S192, Greater KailashI
New Delhi - 110048.
.........Defendant
ORDER:
1. Vide this Order I shall dispose off application on behalf of applicant / defendant u/O XXXVII Rule 3(5) Cpc r/w Sec. 151 CPC for grant of leave to defend to defendant.
Brief summary of the Case :
2. Plaintiff has filed the present suit for recovery of Rs.
5,00,000/ with interest @ 9% per annum on the basis of cheque bearing no. 142946 dated 27.12.2012 for a sum of Rs.
CS No. 162/2014 Gurmeet Singh Vs. Vijay Kumar Chawla pg. 1 of 15 5,00,000/ drawn on Axis Bank, G.KI, New Delhi, (hereinafter referred to as 'said cheque') issued by the defendant as a surety during the course of sale /purchase of the property transaction between the plaintiff and defendant with a condition that in case the defendant is not able to perform his obligation then plaintiff would entitle to encash the said cheque. However, on presentation of the said cheque, the same got dishonoured.
Defence of the defendant :
3. Defendant has taken the defence that he never issued the said cheque and the said cheque was stolen and that plaintiff has not performed his part of contract as per agreement and as such the earnest money is forfeited by the defendant.
Decision :
4. Application of defendant for leave to defend dismissed and the suit of the plaintiff is decreed.
Brief facts as per the plaint :
5. Plaintiff deals in sale/purchase of the property in South Delhi and defendant being owner of basement and ground floor of property no. M15, Greater Kailash, PartII, New Delhi, entered into a Memorandum of Understanding on 06.02.2012 in respect of the abovesaid property of the defendant for a sale consideration of Rs. 2,90,00,000/ (Two crores ninety lakhs). Both the parties were agreed to enter into an agreement to sale if the defendant shows the property to the plaintiff from CS No. 162/2014 Gurmeet Singh Vs. Vijay Kumar Chawla pg. 2 of 15 inside within fortnight from 06.02.2012 and only after inspection was approved, the plaintiff entered into an agreement to sale with defendant and would pay a further sum of Rs. 5,00,000/ 30,00,000/ and 40,00,000/ in favour of the banks within 90 days from 20.02.2012. It is further averred that plaintiff at the time of agreement dated 06.02.2012, paid a sum of Rs. 5,00,000/ to the defendant by cheque no. 370547 drawn on City Bank which had been encashed by the defendant in the month of February, 2012. It is further averred that defendant also issued the said cheque to the plaintiff as a surety in case defendant is not able to perform his obligation, then plaintiff would be entitled to encash the above said cheque. It is further averred that on different occasions plaintiff asked the defendant to show the property from inside as per the MOU but defendant avoided the same on one pretext or the other. Consequently, failure on the part of the defendant to perform his contractual obligation, despite having received a sum of Rs. 5,00,000/ from the plaintiff. The plaintiff left with no option except to present the said cheque issued by the defendant for encashment to the bank of the defendant which was bounced and returned with the remarks 'Insufficient Funds'. Hence, the plaintiff prayed for recovery of Rs. 5,00,000 @ 9% per annum.
Appearance of the defendant :
6. Defendant was served with the summons for judgment from CS No. 162/2014 Gurmeet Singh Vs. Vijay Kumar Chawla pg. 3 of 15 this Court on 17.04.2015 i.e. on Friday and present application as well as affidavit under provisions of Order XXXVII Rule 3(5) CPC is being filed within statutory period of 10 days from the date of service of the summons for judgment.
Defendant's Version as per the application for Leave to defend :
7. It is stated in the application that the plaintiff has agreed to purchase the house /property of the defendant i.e. property bearing no. M15, G.KII (Basement + ground) for a total consideration of a sum of Rs. 2,90,00,000/ and it was clearly told to the plaintiff that there are loans from banks on the said property and same is also amply clear from the terms of the alleged agreement. It is further submitted that the plaintiff who has not performed his part of contract and as such the earnest money / bayana amount was forfeited by the defendant. The defendant had issued the said cheque to the plaintiff rather the plaintiff has stolen the said cheque bearing no. 376175 dated 21.03.2014 drawn on Axis Bank, Nehru Place Branch, Delhi and from the bare perusal of the said cheque the defendant submits the cheque bears only the signature of the defendant and the other details filed up in the said cheque are not in the writing of the defendant rather same are forged and fabricated by the plaintiff by materially altering the said cheque. The plaintiff had made several false and misleading statements in the present suit and has also concealed the material facts to CS No. 162/2014 Gurmeet Singh Vs. Vijay Kumar Chawla pg. 4 of 15 bring the suit within the preview of Order XXXVII of CPC.
8. It is further submitted that there is no liability on the part of the defendant to pay any alleged amount to the plaintiff and same is also clear from the contents of the alleged agreement, moreover bare perusal of the pleadings shows that the time limit for completing the contract was 90 days from 06.02.2012 which lapsed on 07.05.2012 whereas the said chquue is of 31.03.2014 which clearly shows the malafide on the part of the plaintiff. It is further submitted that it is not the case of the plaintiff that the earnest money was returned by the defendant as the same is not there in writing, moreover if the averments made by the plaintiff is believed to be true for the sake of arguments then, there is no question of plaintiff retaining the original agreement as it holds no logic for the plaintiff to retain the original agreement if he has taken back the alleged earnest money. Further, the plaintiff has not filed any case u/S. 138 of NI Act although the alleged notice was sent within limitation which was never sent to the defendant, therefore there was no occasion for the defendant giving the reply to the alleged legal notice.
9. It is further submitted that the signatures appearing on the alleged agreement are not of the defendant and same are forged and fabricated and that the defendants reserve their right to file criminal case /FIR against the plaintiff for forging and fabricating the impugned cheque of the defendant. It is CS No. 162/2014 Gurmeet Singh Vs. Vijay Kumar Chawla pg. 5 of 15 also submitted that proper stamp duty has not been paid on the alleged agreement and thee is no revenue stamp or receipt, therefore same cannot be read against the defendant. It is further submitted that there are triable issues in the present suit, therefore it is prayed that defendants may kindly be granted leave to defend.
Reply to leave to defend application:
10. In reply to the present application, the plaintiff has denied the allegation and reiterated the contents as mentioned in the plaint. Further, the plaintiff has stated that the Whatsapp conversations between the plaintiff and the defendant from 05.05.14 till 04.09.14 makes it clear that the defendant is only trying to delay the matter and trying to make a fool out of the plaintiff and misleading this Court. It is submitted that defendant did not take any steps such as filing the complaint with the police registration of FIR etc. with regard to cheque bearing no. 376175 having been stolen.
11. It is further submitted that the agreement dated 06.02.2012 nowhere mentions in case of nonperformance by the plaintiff the defendant has suffered any loss. It is submitted that it was the defendant who is guilty of nonperformance of his contractual obligation. It is further submitted that there is no forgery or fabrication by the plaintiff on the cheque. It is also submitted that defendant did not place on record any document showing its performance of obligations and calling CS No. 162/2014 Gurmeet Singh Vs. Vijay Kumar Chawla pg. 6 of 15 up the plaintiff to perform his part of the obligations.
12. It is further averred that the defendant on one hand is admitting the contents of the MOU dated 06.02.2012 while on the other hand is denying its execution. It is also averred that the suit of the plaintiff is based on the cheque and not on the MOU dated 06.02.2012 hence there is no requirement of any stamp duty. However, the defendant has nowhere denied his signatures, hence the present suit deserves to be decreed.
Hearing of arguments on Leave to Defend:
13. I have heard the arguments at length and have perused the record. The material grounds as emerged from leave to defend application of the defendant as averred by the defendant, are surfaced as under :
(i) that the plaintiff has not performed his part of contract as per agreement and as such the earnest money / bayana amount is forfeited by the defendant.
(ii) that defendant has never given any cheque to the plaintiff and rather the plaintiff has stolen the cheque bearing no.
376175 dated 21.03.2014 drawn on Axis Bank, Nehru Place Branch. The said cheque bears only the signature of the defendant and other details filled up in the said cheque are not in the writing of defendant, whether same is forged and fabricated.
(iii) There is no liability on the defendant to pay the alleged CS No. 162/2014 Gurmeet Singh Vs. Vijay Kumar Chawla pg. 7 of 15 amount to the plaintiff as the time limit for completing the contract was 90 days from 06.02.2012 which lapse on 07.05.2012 whereas the said cheque is of 31.03.2014, which clearly shows the malafide on the part of the plaintiff.
14. To appreciate the controversy, I think it appropriate to reproduce the contents and terms of agreement dated 06.02.2012, herein below:
(a) Rs. 5 lakhs by cheque, sellter accepts and promises to show the property from inside within a fortnight i.e. 20.02.2012 (20th Feb 2012)
(b) After Inspection, if approved, proposed buyer gets into an agreement to sell.
(c) Proposed buyer then pays Rs. 5 lacs and Rs. 30 lacs in favour of banks or 40 lacs in favour of banks.
(d) Total tune agreed is 90 days from 20.02.2012 or after the agreement.
(e) Total cheque amount to relate with OTS with bank/s.
(f) Total consideration of the property M15, G.K.II (Basement + ground) in the name of Mr. Vijay Kr,. Chawla R/o S192, G.K.I, New Delhi to be Rs. Two crore Ninety Lacs only.
(g) The cheque favouring Mr. Vijay Kr. Chawla drawn on Citi Bank, bearing # 370546 for Rs. 5 lacs (Rs. Five lacs only) Analysing of grounds :
15. Now I will deal with each of the ground separately.
CS No. 162/2014 Gurmeet Singh Vs. Vijay Kumar Chawla pg. 8 of 15
(i) that the plaintiff has not performed his part of contract as per agreement and as such the earnest money / bayana amount is forfeited by the defendant.
16. This ground of the defendant is not tenable as the agreement dated 06.02.2012, nowhere finds mentioned on the aspect of nonperformance by the plaintiff that the defendant has right to forfeit the earnest money / bayana. Moreover, the defendant neither has averred nor placed on record any document to show that on account of failure / nonperformance by the plaintiff, defendant has suffered any loss. Further, the defendant has not placed on record any document showing on his part that he had shown the property to the plaintiff from inside within a fortnight from 20.02.2012 and the same was inspected by the plaintiff. Assuming that it was the plaintiff's fault, even then also the defendant has no right to forfeit the amount as there is no such condition in the agreement dated 06.02.2012. More so, if defendant did not show property from inside to the plaintiff, as a result of the same, the memorandum of understanding / agreement itself become a nonstarter.
(ii) that defendant has never given any cheque to the plaintiff, rather the plaintiff has stolen the cheque bearing no. 376175 dated 21.03.2014 drawn on Axis Bank, Nehru Place Branch. The said cheque bears only the signature of CS No. 162/2014 Gurmeet Singh Vs. Vijay Kumar Chawla pg. 9 of 15 the defendant and other details filled up in the said cheque are not in the writing of defendant, whether same is forged and fabricated.
17. This ground of defendant has also not been supported with any document with regard to theft of cheque as alleged in the present application. It is also remained clueless, how can defendant keep signed blank cheque with him or his office. It is also not mentioned where from the cheque has been stolen as alleged by the defendant. No FIR / complaint has been made in this regard, which itself show that its only a bald assertion made by the defendant because not a single document has been placed on record by the defendant to support the stand taken by him in his application for leave to defend.
18. It is further submitted that there is no forgery or fabrication by the plaintiff on the cheque. It is further submitted that according to the terms of the agreement, the plaintiff paid a sum of Rs. 5 lakhs and the defendant received the said sum of Rs. 5 lakhs and this fact of recovery of Rs. 5 lakhs through cheque has not been denied by the defendant in his entire application for leave to defend. Despite receiving the said amount, defendant did not perform any of its contractual obligations contained in the agreement dated 06.02.2012. Also defendant has nowhere denied his signatures on the cheque or that the cheque does not pertains to his account. It CS No. 162/2014 Gurmeet Singh Vs. Vijay Kumar Chawla pg. 10 of 15 is a settled preposition of law that mere denying handwriting on the cheque is not a ground for leave. Hence, this ground is also not tenable and accordingly rejected.
(iii) There is no liability on the defendant to pay the alleged amount to the plaintiff as the time limit for completing the contract was 90 days from 06.02.2012 which lapse on 07.05.2012 whereas the said cheque is of 31.03.2014, which clearly shows the malafide on the part of the plaintiff.
19. The contents of agreement clearly shows that there was a time limit of a fortnight to the defendant to show the premises from inside to the plaintiff before proceeding further with the agreement. This ground taken by the defendant is of 90 days for completion of the agreement is also not tenable as the first part of the agreement with regard to the inspection of the premises within fortnight was not completed. It was the first ground in the agreement that the premises was to be inspected from inside within a fortnight. Without completing the first condition, further conditions of the agreement could not be brought into force. It is nowhere mentioned in the averments of the defendant that he has offered for inspection of the premises from inside within the first fortnight. Nothing has been brought on record by the defendant in support of fulfillment of this part of the agreement.
CS No. 162/2014 Gurmeet Singh Vs. Vijay Kumar Chawla pg. 11 of 15
20. The case has been filed on the basis of cheque, alleged to have been issued by the defendant. It is seen that the cheque pertains to year dated 31.03.2014, the MOU pertains to 06.02.2012, which is within the period of limitation of 3 years as per the Limitation Act. Since, the defendant himself has issued the cheque dated 31.03.2014, i.e. much after the alleged completion of the contract, Therefore, now he cannot take Uturn on the ground of malafide of the plaintiff, therefore this ground also stands rejected.
21. In support of its arguments Ld. Counsel for plaintiff also relied upon judgments N.P. Jain & Co. Vs. Moti Lal Gupta 2004 (113) DLT 724, Aashrit Exports Vs. Tulsi Dass Sharma 2001(6) AD (Delhi) 592 and Anil Tyagi Vs. S.D. Infosys & Ors. 2014(210) DLT 678.
22. The aforesaid case law relied upon by the plaintiff, however holds the correct preposition of law but distinguishable from the facts and circumstances of the present case, as in the above referred case law, the controversies regarding the issuance of cheque towards liability denied by the defendant one or the other grounds and leave to defend was granted conditionally considering the situation of the each case, which is different from the case in hand.
CS No. 162/2014 Gurmeet Singh Vs. Vijay Kumar Chawla pg. 12 of 15
23. Further in Rinku Aggarwal Vs. Smt. Kanta Kumari's case, the Hon'ble High Court of Delhi has held as under:
"...before leave to defend can be granted to the defendant, she has to satisfy the Court that she has a good defence to claim on merits. Defendant has to raise triable issues indicating that she has a fair or bona fide or reasonable defence though it may not be positively a good defence. In case defendant discloses triable issues by raising plausible and reasonable defence, she is entitled to leave to defend the suit conditionally or unconditionally. However, if defendant sets up an illusory or sham or vexatious defence, she would not be entitled to leave to defend the suit."
Conclusion :
24. Having gone through the averments and perusal of the record and after hearing arguments, I find that the defendant has raised only a shame and false issue and has not produced any cogent document in support of his contention and in absence of any cogent document defendant is not able to raise any triable issue. All the contentions of the defendant has been duly clarified by the plaintiff in his reply to leave to defend as well as in his arguments. Defendant has failed to raise any triable issue and defendant has raised a vexatious defence against the suit. Hence, the application of defendant for grant of leave to defend the present suit does not have any merit and does not disclose any triable issue, therefore, the same CS No. 162/2014 Gurmeet Singh Vs. Vijay Kumar Chawla pg. 13 of 15 deserves to be dismissed and is accordingly dismissed.
25. As the application for grant of leave to defend has been dismissed, consequently plaintiff has become entitled for a decree. Accordingly, a decree for recovery of Rs. 5,00,000/ (five lakhs) is passed in favour of the plaintiff and against the defendant alongwith pendentlite and future interest @12% per annum. Costs of the suit is also allowed to the plaintiff. Decree sheet be prepared accordingly. File be consigned to the record room.
Announced in the open (LALIT KUMAR) Court on 11.05.2016. Additional District Judge 01(SE), Saket Courts, New Delhi.
(This judgment contains fourteen pages and each page bears my signatures) CS No. 162/2014 Gurmeet Singh Vs. Vijay Kumar Chawla pg. 14 of 15 CS162/2014 Gurmeet Singh Vs. Vijay Kumar Chawla 11.05.2016 Present : None Vide separate Order announced today, the application of defendant for grant of leave to defend has been dismissed, a decree for recovery of Rs. 5,00,000/ (five lakhs) is passed in favour of the plaintiff and against the defendant alongwith pendentlite and future interest @12% per annum. Costs of the suit is also allowed to the plaintiff. Decree sheet be prepared accordingly. File be consigned to the record room.
(LALIT KUMAR) Additional District Judge 01(SE), Saket Courts, New Delhi.
CS No. 162/2014 Gurmeet Singh Vs. Vijay Kumar Chawla pg. 15 of 15