Delhi High Court
Hari Niwas Gupta vs M/S Om Propmart (P) Ltd. & Ors. on 2 February, 2012
Author: Manmohan Singh
Bench: Manmohan Singh
.* HIGH COURT OF DELHI: NEW DELHI
Order pronounced on: 02.02.2012
+ I.A. No.17784/2010 in CS (OS) No.951/2010
HARI NIWAS GUPTA ..... Plaintiff
Through Mr. D.K.Rastagi, Adv. with
Mr. Asim Naeem, Mr. Amit Jagga
& Mr. B.S. Bagga, Advs.
versus
M/S OM PROPMART (P) LTD & ORS ..... Defendants
Through Mr. Akhil Sibal, Adv. with
Mr. Rajesh Pathak & Mr. Pradeep
Kumar, Advs.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. By this order I shall dispose of the present application filed by the defendants under Order XXXVII, Rule 3(5) CPC praying for unconditional leave to defend the instant suit of the plaintiff.
2. The plaintiff has filed the present suit for recovery of Rs.50,00,000/- (Rs. Fifty Lac).
Plaintiff's Case
3. As per the plaint the facts are that one of the business acquaintances of the plaintiff introduced him to defendant Nos. 2 to 4 who represented themselves to be reputed estate agents carrying on business under the name and style of defendant No.1, company and they were its directors and were I.A. No.17784/2010 in CS(OS) No.951/2010 Page No.1 of 18 carrying on their business of estate agents in the locality of Loni, Tronica City and all adjoining areas of Ghaziabad, Baghpat, Baraut, Meerut, etc.. On further inquiry, the plaintiff found out that defendant No.1 is a duly registered company under the provisions of the Companies Act, 1956, having its registered office at B-2/426, Yamuna Vihar, New Delhi.
4. As the defendants learnt about the plaintiff‟s desires of purchasing industrial lands, the defendant Nos. 2 to 4 represented to the plaintiff that they could help the plaintiff acquire industrial plots in the state of Uttar Pradesh and stated that in order to secure a reasonably priced and hassle- free land he should be prepared to invest money being "advance consideration/earnest money" to the tune of atleast Rs.50,00,000/- thereafter, they induced the plaintiff to invest money through them by drawing crossed cheques in favour of the defendant No.1 company. The plaintiff also agreed to give certain advances i.e. "finance" in the name of defendant No.1 company to enable the defendant Nos. 2 to 4 to clinch the deals by making spot payments of earnest money/advance consideration ot the prospective sellers.
5. The plaintiff initially paid a sum of Rs.15,00,000/- to the defendant No.1 by a cheque dated 02.04.2008, bearing No.717624 drawn on the Union Bank of India, and further, paid a sum of Rs.35,00,000/- by a cheque dated 28.05.2008 bearing No.717641 drawn on the Union Bank of India. The said two cheques were encashed by the defendants on 04.04.2008 and 31.05.2008 respectively and thus, total sum of Rs.50,00,000/- was received by the defendants from the plaintiff. It is stated by the plaintiff that after receiving Rs.50,00,000/- the defendants failed to procure the land for the I.A. No.17784/2010 in CS(OS) No.951/2010 Page No.2 of 18 plaintiff as promised by them. Further, it is stated that when the plaintiff insisted the defendants ought to keep their promise that the defendants while expressing their inability and issued five post-dated crossed cheques payable to plaintiff drawn on HDFC Bank Ltd.. The details of the said five cheques is given is as follows:
Cheque No. Dated Amount (in Rupees)
507609 12.07.2008 2,50,000/-
507610 12.08.2008 2,50,000/-
507611 12.09.2008 2,50,000/-
507612 12.10.2008 2,50,000/-
507613 12.11.2008 40,00,000/-
TOTAL 50,00,000/-
6. When he presented the first cheque bearing No.507609 for encashment on 12.07.2008 the bankers of the defendants returned the said cheque "unpaid" with their endorsement "Insufficient Account Balance/Funds Insufficient". Thereafter, the remaining four cheques issued by the defendants also when presented for encashment were returned "unpaid" with their endorsement "Funds Insufficient". It is stated that these four cheques were dishonored by the defendant‟s bankers on different dates during the month of February, 2009. Therefore, the plaintiff served a legal notice dated 09.03.2009 upon the defendants in terms of Sections 138 to 142 of the Negotiable Instruments Act, 1881 asking the defendants to pay their acknowledged dues of Rs.50,00,000/-. On 21.03.2010 the advocate of the defendants herein sent a reply, acknowledging the issuance of the above I.A. No.17784/2010 in CS(OS) No.951/2010 Page No.3 of 18 mentioned five cheques and contending that the aforesaid five cheques ought not to have been issued by his clients but were issued for the purpose of maintaining "long business terms".
7. It is alleged by the plaintiff that as it became clear from the acts of the defendant Nos. 2 to 4 that they have no intention of refunding the advance of Rs.50,00,000/- the plaintiff filed the instant suit for recovery of the said amount. The plaintiff has also instituted a criminal complaint against the defendants in terms of Sections 138 to 142 of the Negotiable Instruments Act, 1881and the said matter is subjudice in the court of Metropolitan Magistrate At Tis Hazari, Delhi since 2009.
8. Mr. Rastagi, learned counsel appearing on behalf of the plaintiff has referred the following judgments in support of his case and he submits that the application filed by the defendants for leave to defend be dismissed with costs:-
(i) Aashrit Exports vs. Tulsi Dass Sharma, reported in 2001(6) AD (Delhi) 592.
(ii) Pact India vs. Sanjiv Bhasin @ Lucky Bhasin, reported in 2001 V AD (Delhi) 667.
(iii) Dheeraj vs. State (NCT of Delhi), reported in 2001 V AD (Delhi) 672.
9. Upon service and after completion of other formalities in the suit of Order XXXVII CPC, the defendants have filed the present application as well as affidavits for grant of leave to defend without any conditions.
Defendants' Case
10. The contention of the defendants is that the suit filed by the plaintiff against them is not maintainable, as the plaintiff has failed to disclose I.A. No.17784/2010 in CS(OS) No.951/2010 Page No.4 of 18 material facts before this Court. It is stated in the application that the entire plaint is false and fabricated and the defendants have no liability to pay any amount to the plaintiff.
11. As per the defendants, the real facts are that the plaintiff is known to them since 2005-2006, as the plaintiff has been dealing with them for liaison work of sale, purchase and for getting transfer of plots at Tronica City, Loni Ghaziabad (UP). The plaintiff represented himself as a businessman and desirous of purchasing for himself an industrial land with a view to set up industrial units in the locality of Tronica City. According to the defendants, the plaintiff is not a genuine industrialist, but, in fact, he is an investor and financer in properties and had purchased 6-7 industrial plots, but did not set up any industrial unit till date. The plaintiff besides purchasing and selling the industrial plots through the defendants also got their services for preparation and lodging of documents with the authorities of UPSIDC Ltd. at Tronica City, to facilitate the transfer of plots.
12. In order to prove the averments, the defendants have filed copies of the transactions/documents of the plots purchased by the plaintiff through other estate agents or through the defendants, as Annexures D-1 to D-6 collectively. The defendants further submit that apart from the aforesaid plots, the plaintiff entered into a deal with defendant No.1 for purchase of an industrial plot, bearing No.G-186, Sector D-1/P3, Industrial Area, Tronica City, Loni Ghaziabad (UP) vide agreement to sell dated 02.04.2008 duly executed and signed by both the plaintiff and defendant No.1 in the presence of the witnesses. The said plot was the subject matter of I.A. No.17784/2010 in CS(OS) No.951/2010 Page No.5 of 18 agreement to sell dated 01.04.2008 between one Shri Sanjay Tyagi (owner of the plot) and defendant No.1.
13. The contention of the defendants is that the plaintiff, after examining the agreement dated 01.04.2008 and satisfying himself, entered into the agreement to sell dated 02.04.2008 with defendant No.1 for purchase of the abovementioned plot for a total agreed consideration amount of Rs.60,00,000/-, out of which a sum of Rs.15,00,000/- as advance was paid vide cheque No.717624 dated 02.04.2008 drawn on Union Bank of India, Overseas Branch, Connaught Place, New Delhi, at the time of signing the said agreement, to the defendant No.1-Company. He further agreed to pay the balance amount of Rs.45,00,000/- on or before 12.06.2008 and the said agreement was duly signed by both the parties in the presence of the witnesses, namely, Pawan Tyagi and Dev Kumar. It is stated by the defendants that Dev Kumar is the same person to whom the plaintiff had sold his plot No.C-27, Sector A1 at Tronica City, Loni Ghaziabad (UP). The defendants stated that the original agreement dated 02.04.2008 is with the plaintiff and only the photocopy thereof is available with them and the same has been filed along with the application as Annexure D-8.
14. The further contention of the defendants is that the plaintiff has deliberately concealed the above said agreement in the plaint which was entered into between them. The relevant clauses No.3, 5 & 6 of the agreement read as under:-
"3. That in case the first party cancel the deal or rebute from the deal after receiving the earnest money, the first party will pay the double amount of earnest money to the second party. On the other, if second party does not paid the full and final I.A. No.17784/2010 in CS(OS) No.951/2010 Page No.6 of 18 payment to the first party within the stipulated time, the money paid by the second party will be forfeited by first party.
4. x x x x x
5. That all expenses on account of file charges, stamp duty, registration charges and transfer charges will be payable by the second party...........
6. That the second party will be at liberty to sale/contact/ contract/engage/advertise for the sale of this plot to other parties."
15. It is also contended by the defendants that after entering into the agreement dated 02.04.2008, the plaintiff studied the real estate market and due to recession and on pressing demand for the balance payments by the defendants for the plot which is the subject matter of the agreement to sell dated 02.04.2008, the plaintiff backed out from the deal on the ground of recession and informed the defendants that he was not interested in blocking his further money, when the defendants pointed out to him Clause-3 of the agreement, the plaintiff with the intervention of the market persons, namely, Pawan Tyagi and Dev Kumar, after certain rounds of meeting entered into a Memorandum of Understanding (hereinafter referred to as the "MOU") on 24.05.2008 with the defendants in writing which was signed by the parties and witnessed by said Pawan Tyagi S/o Sh. Shiv Raj Tyagi, R/o Flat No.F-4, Plot No.A-95, Krishna Apartment, Dilshad Colony, Delhi and Dev Kumar S/o Sh. Jaswant Singh, R/o 146-B, Pocket-F, Mayur Vihar-II, Delhi. The understanding was arrived at between them by way of the MOU. The defendants referred Clauses-8 to 10 of the MOU which read as under:-
I.A. No.17784/2010 in CS(OS) No.951/2010 Page No.7 of 18 "8. That the client agreed to make part of the balance payment of Rs.35,00,000/- (Rupees Thirty Five Lacs only) to the company subject to the condition that the company will issue cheques of Rs.50,00,000/- (Rupees Fifty Lacs only) as a security of the payment made to the company, to the client of Some future date. This was agreed between both the parties that these cheques will be lodged for payment only on sale of the said plot.
9. That the client also agreed to pay balance consideration of Rs.10,00,000/- (Rupees Ten Lac only) before 12.06.2008 i.e. the date of completion of sale in agreement dated 02.04.2008.
10. That as per understanding in para No.8 above, the company issued five cheques, a security, per following denomination and particulars to the client:-
S.No. Cheque No. Dated Amount
1. 507609 12.07.08 2,50,000/-
2. 507610 12.08.08 2,50,000/-
3. 507611 12.09.08 2,50,000/-
4. 507612 12.10.08 2,50,000/-
5. 507613 01.11.08 40,00,000/-
(Total Rupees Fifty Lac only)
16. The contention of the defendants is that in view of the said terms mentioned in the MOU with the agreement to sell dated 02.04.2008, it is clear that the payment made by the plaintiff is only towards purchase of plot No.G-186, Sector D-1/P-3, situated at Tronica City, Industrial Area, Loni Ghaziabad (UP) and not towards any other account whatsoever as alleged by the plaintiff. As it is evident from the counter-slip of the cheque book of the defendant-company issued by its Banker, i.e. HDFC Bank and its statement of account for the period 01.04.2008 up to 31.07.2009 which I.A. No.17784/2010 in CS(OS) No.951/2010 Page No.8 of 18 is filed as Annexure D-10 collectively, which shows that the plaintiff issued cheque of Rs.35 lacs, bearing No.717641 dated 28.05.2008 drawn on Union Bank of India, Overseas Branch, Connaught Place, New Delhi to the defendant-company in view of MOU dated 24.05.2008 and after receiving the five security post-dated cheques for a total sum of Rs.50 lac from the defendants. The defendants state that the said security cheques which were issued, were allowed to be encashed only after sale of the plot and not in discharge of any debt or liability, as there was no existing debt or liability of the defendants towards the plaintiff.
17. It is also alleged by the defendants that the said plot which is the subject matter of the agreement to sell dated 02.04.2008, has not been sold by the defendants to anyone till date, and the defendants are still ready and willing to complete the sale transaction of the said plot on the terms and conditions as agreed under the said agreement and the subsequent MOU, subject to the plaintiff‟s making the balance payment of Rs.10 lac to the defendant-company with reasonable rate of interest.
18. In reply to the application for leave to defend, the plaintiff has specifically denied all the points raised by the defendants. The plaintiff has submitted that the defence raised by the defendants is not triable, therefore, the suit of the plaintiff is liable to be decreed. The plaintiff has specifically denied the agreement to sell dated 02.04.2008 as well as the alleged MOU dated 24.05.2008. According to him, both the documents are forged and fabricated. The reason given by Mr. Rastagi during the course of arguments, is that if the said agreement and MOU were executed between the parties, then why the defendants did not mention the same in the reply I.A. No.17784/2010 in CS(OS) No.951/2010 Page No.9 of 18 dated 21.03.2009 given to the legal notice dated 09.03.2009 issued by the plaintiff.
19. The plaintiff has also specifically denied any dealing with Dev Kumar. According to Mr. Rastagi, Dev Kumar never met the plaintiff till 31.10.2010. The plaintiff has also denied having ever entered into any such deal with Dev Kumar for the sale of plot No.C-27, Sector A-1, Tronica City, Loni Ghaziabad (UP). He submitted that in fact, the said plot was sold to Smt. Sunita and Smt. Rachna Verma for a consideration of Rs.20 lac which was paid by one of the vendees, namely, Smt. Rachna Verma, to the plaintiff by a cheque. The alleged agreement referred by the defendants, dated 20.02.2008 is a fabricated document with collusion of Dev Kumar.
20. As regards the plot of land bearing No.G-186, the plaintiff has submitted that it was allotted by the UPSIDC Ltd. to Shri Sanjeev Kumar son of Shri Amrit Lal on or about 04.01.2007 for a total sale consideration of Rs.11,92,500/- which was to be paid in 10 installments and the said Sanjeev Kumar has not paid the said amount except one installment. Under these circumstances, it is not possible to believe, as to why said Sanjeev Kumar would sell the same for a sum of Rs.55 lacs to the defendants by way of the agreement to sell dated 01.04.2008 and it is unbelievable that the rates of the land would overnight escalate by Rs.5 lac. It is specifically mentioned by the plaintiff in the reply that said Sanjeev Kumar has even confirmed that the above said plot was never ever contemplated to be sold, transferred or conveyed in any manner whatsoever, much less to defendant No.1 at any point of time. He has also confirmed that he is not the „Sanjay Tyagi‟. Therefore, the alleged agreement dated 01.04.2008 is also a I.A. No.17784/2010 in CS(OS) No.951/2010 Page No.10 of 18 fabricated document which has been created by the defendants for the purpose of overreaching this Court.
21. It is also alleged by the plaintiff that Sanjay Tyagi is a fictitious person who has been set-up for no purpose but to thwart these proceedings for as long as possible. He is the cousin of defendant No.3. Similarly, one Kapil who is propounded to have signed the agreement in question is the brother-in-law of defendant No.4. The plaintiff has specifically stated that both the agreements dated 01.04.2008 and 02.04.2008 are the created documents. The plaintiff never paid to the defendants any advance for the purchase of the said plot in a consideration of Rs.60 lac, as alleged by the said defendants.
22. The plaintiff has also alleged in the reply that he never had any business dealings with Shri Pawan Tyagi. The plaintiff has come to know that said Pawan Tyagi who is the alleged witness to the agreement dated 02.04.2008 is the cousin of defendant No.3. In nut-shell, the plaintiff has denied all the documents, i.e. the agreement dated 02.04.2008, the MOU dated 24.05.2008, as well as the sale of industrial plot No.C-27 to Dev Kumar, mainly on the ground that these documents are false, forged and fabricated.
23. Mr. Sibal, learned counsel appearing on behalf of the defendants in order to demolish the case of the plaintiff, has referred the original agreement to sell entered into between the plaintiff and Dev Kumar, dated 20.02.2008. Mr. Sibal states that this document clearly proves the falsehood and dishonesty of the plaintiff who has specifically denied such agreement in the reply to the application for leave to defend. Mr. Sibal has I.A. No.17784/2010 in CS(OS) No.951/2010 Page No.11 of 18 also strongly referred to the original agreement to sell dated 01.04.2008 entered into between Sanjay Tyagi and defendant No.1 which shows that said Sanjay Tyagi has agreed to sell the suit plot No.G-186 to the defendant No.1 for a total consideration of Rs.55 lac. The photocopy of the receipt dated 12.06.2008 as advance amount received by Sanjay Tyagi has also been placed on record. Mr. Sibal states that it was merely a transaction, as defendant No.1 agreed to purchase the said plot from Mr. Sanjay Tyagi for a sum of Rs.55 lac, and on the next day, as a business, defendant No.1 entered into the agreement to sell dated 02.04.2008 with the plaintiff to sell the same for Rs.60 lac in order to earn Rs.5 lac.
24. The learned counsel further states that the plaintiff‟s case is false on the face of it that in the reply, the plaintiff has stated that he came to know about Dev Kumar only in the year 2010 whereas the original agreement dated 20.02.208 produced by the defendants along with the rejoinder bears the signatures of the plaintiff and said Dev Kumar. Mr. Sibal states that in view of the incorrect statement made by the plaintiff, on this reason itself, the defendants are entitled to seek leave to defend, as the plaintiff has denied that he ever executed and signed the agreement. On seeing the original agreement to sell dated 20.02.2008, it falsifies the theory of the plaintiff that he had no dealings with Dev Kumar prior to the year 2010 when he himself had sold plot No.C-27 to Dev Kumar. It is stated that the plaintiff sold the plot to Dev Kumar only, by way of agreement to sell dated 20.02.2008 without getting transfer from UPSIDC and the same was again sold to Smt. Sunita and Smt. Rachna Verma and in fact, they later on got transferred the same from UPSIDC being end user.
I.A. No.17784/2010 in CS(OS) No.951/2010 Page No.12 of 18
25. In the rejoinder, it is also stated that the plaintiff was the seller in respect of plot No.C-27, Sector A-1 to Dev Kumar, and purchaser in respect of plot No.G-186, Sector D-1/P-3 from defendant No.1. Therefore, said Dev Kumar is in possession of the original signed documents of the transaction and the plaintiff got the original agreement to sell dated 02.04.2008 in respect of plot No.G-186 (supra).
26. As regards the plot No.G-186, the cheques in question were issued pursuant to the MOU dated 24.05.2008. According to the learned counsel for the defendants, the agreement dated 02.04.2008 was actually an investment-cum-finance in real estate and since there was recession in the market, therefore, the MOU dated 24.05.2008 was executed after several rounds of meetings. The defendants have denied the allegations made by the plaintiff that the agreement and the subsequent MOU were the forged and fabricated documents and the signatures of the plaintiff were used by modern technology. The defendants have reiterated that the said plot was purchased from Sanjay Tyagi. It is stated that the plot in question exchanged hands and ultimately purchased by said Sanjay Tyagi who further sold the same to the defendant No.1. It was specifically stated that none of them got transferred it from UPSIDC and, therefore, the name of Sanjeev Kumar who was the original allottee, is still on the record of the UPSIDC. All the earlier agreements and other original documents are lying with the defendants and the same have been filed before this Court. As far as the relations of two attesting witnesses i.e. Sanjay Tyagi and Kapil are concerned, it is stated that it will not make these transactions doubtful, especially when there is a written document to that effect and there is no bar in law to transact with the relatives.
I.A. No.17784/2010 in CS(OS) No.951/2010 Page No.13 of 18
27. Mr. Sibal has made a statement that since the plaintiff has spent money towards purchase of plot G-186 (supra) by virtue of agreement dated 02.04.2008, the defendants have no objection that he may purchase the same from them at any point of time. He further submits that the counter-slip of the cheque book of the defendant-company issued by its Banker, i.e. HDFC Bank and its statement of account for the period 01.04.2008 up to 31.07.2009 would go to show that the plaintiff issued cheque of Rs.35 lac, bearing No.717641 dated 28.05.2008 drawn on Union Bank of India, Overseas Branch, Connaught Place, New Delhi to the defendant-company vide MOU dated 24.05.2008 after receiving the five post-dated security cheques for a total sum of Rs.50 lac and the defendants, under these circumstances, are willing to complete the transaction of the said plot in terms of the agreement and the MOU after the plaintiff‟s making the balance payment of Rs.10 lac to the defendants with reasonable rate of interest.
28. The learned counsel for the defendants has referred the judgment passed in the case of Sunil Enterprises and another vs. SBI Commercial & International Bank Ltd. reported in (1998) 5 Supreme Court Cases 354, the relevant para of which reads as under:-
"4. The position in law has been explained by this Court in Santosh Kumar vs. Mool Singh, AIR 1958 SC 321, Milkhiram (India) Private Ltd. vs. Chaman Lal Bros., AIR 1965 SC 1698 and Michalec Eng. & Mfg. vs. Bank Equipment Corporation, AIR 1977 SC 577. The propositions laid down in these decisions may be summed up as follows:-
I.A. No.17784/2010 in CS(OS) No.951/2010 Page No.14 of 18
(a) If the defendant satisfies the Court that he has a good defence to the claim on merits, the defendant is entitled to unconditional leave to defend.
(b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence, although not a possibly food defence, the defendant is entitled to unconditional leave to defend.
(c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is, if the affidavit disclosed that at the trial he may be able to establish a defence to the plaintiff claim, the court may impose conditions at the time of granting leave to defend- the conditions being as to time of trial or mode of trial but not as to payment into Court or furnishing security.
(d) If the defendant has no defence, or if the defence is sham or illusory or practically moonshine, the defendant is not entitled to leave defend.
(e) If the defendant has no defence or the defence is illusory or sham or practically moonshine, the Court may show mercy to the defendant by enabling him to try to prove a defence but at the same time protect the plaintiff imposing the condition that the amount claimed should be paid into Court or otherwise secured.
In fact in identical matters on the file of the said High Court in summary suit No. 2963 of 1990, Dena Bank vs. M/s. Sunil Enterprises and summary suit No.1193 of 1989, Bank of India vs. Mahendra Sarabhai Choksi, leave to defend had been granted to defendants."
29. After having gone through the plaint and the pleadings in the application in hand, prima-facie, it appears that the defence raised by the defendants is more reasonable and plausible than the theory of the plaintiff stated in the pliant. The reasons are given as under:-
I.A. No.17784/2010 in CS(OS) No.951/2010 Page No.15 of 18
(a) The plaintiff in his reply to the application for leave to defend has denied all the transactions mentioned by the defendants therein.
He has denied his signatures on all the documents, though the defendants have filed the copies of various transactions conducted by the plaintiff to purchase plots from various dealers including the defendants at Tronica City, Industrial Area, Loni Ghaziabad (UP).
(b) The plaintiff has also denied his signatures on the alleged agreement dated 20.02.2008 entered between the plaintiff and Dev Kumar pertaining to the plot No.C-27, Sector A1 at Tronica City, Loni Ghaziabad (UP), as admittedly Dev Kumar was the witness to the MOU entered between the parties on 24.05.2008. The plaintiff has also denied the alleged agreement to sell dated 02.04.2008 arrived at between him and defendant No.1 in respect of plot No.G-186 as well as the MOU dated 24.05.2008.
Obviously, in case, the plaintiff would admit the transaction of plot No.C-27, he was supposed to admit the MOU dated 24.05.2008, rather the plaintiff has chosen to make the statement in his reply that he has not met with Dev Kumar prior to 2010. It appears that the plaintiff was totally on denial mode in his reply.
(c) On the other hand, the defendants have filed the alleged original agreement dated 01.04.2008 arrived at between defendant No.1 and Mr. Sanjay Tyagi which is one day prior to the alleged agreement dated 02.04.2008 executed between the plaintiff and defendant No.1. The defendants have also filed the alleged I.A. No.17784/2010 in CS(OS) No.951/2010 Page No.16 of 18 original agreement dated 20.02.2008 between the plaintiff and Dev Kumar. They have also produced the counter-slip of the cheque book of the defendant-company issued by its Banker and its statement of account for the period 01.04.2008 up to 31.07.2009 which shows that the plaintiff issued cheque of Rs.35 lac to defendant No.1 after receiving the five post-dated security cheques for a total sum of Rs.50 lac, as all the said cheques were dated subsequent to the date of the alleged MOU.
30. Order XXXVII CPC has been included in the Code of Civil Procedure in order to allow a person, who has a clear and undisputed claim in respect of any monetary dues, to recover the dues quickly by a summary procedure instead of taking the long route of a regular suit. If the affidavit discloses a triable issue by way of plea which is at least plausible then the leave should be granted but, defence should be legal and even though it ultimately may not turn out to be a good defence. The defendants in the present case have challenged the correctness of the facts of the plaint.
31. In view of the above, it appears that the plaintiff has not made full disclosure of the facts in the plaint even though it is necessary under the law to disclose all the true facts in summary proceedings. Prima-facie, I do not admit the contention of the learned counsel for the plaintiff that the signatures appearing on the alleged agreement dated 20.02.2008 between the plaintiff and Dev Kumar are not similar with the signatures of the plaintiff in the plaint. However, it is a question which has to be determined at the time of trial. At this stage, I am of the considered view that the defence raised by the defendants is called for allowing the present I.A. No.17784/2010 in CS(OS) No.951/2010 Page No.17 of 18 application, as the issues raised by the defendants are triable. The application is accordingly allowed.
CS(OS) No.951/2010The defendants are granted four weeks‟ time to file the written statement with an advance copy thereof to the learned counsel for the plaintiff who may file the replication within four weeks thereafter.
The parties shall file their original documents within four weeks from today. List the matter before the Joint Registrar on 09.04.2012 for admission/denial of the documents. Thereafter, the same shall be listed before the Court on 25.05.2012 for framing of issues and directions for trial.
MANMOHAN SINGH, J.
FEBRUARY 02, 2012/ka I.A. No.17784/2010 in CS(OS) No.951/2010 Page No.18 of 18