Delhi District Court
Yogesh Bansal Anr vs Amrit Pal Singh on 5 September, 2024
IN THE COURT OF SH. RAKESH KUMAR SINGH
DISTRICT JUDGE-02, NORTH-WEST
ROHINI COURT: DELHI.
CS DJ No. 76669/16
Sh. Yogesh Bansal,
S/o Sh. Vilayati Ram,
R/o 189, Bharat Appartments,
Sector-13, Rohini,
New Delhi-110085. ......Plaintiff
VERSUS
1. Sh. Amrit Pal Singh,
S/o Sh. Bachhittar Singh Meet,
R/o Kothi no. 2-3, Kacha Thrikey Road,
Octorai Post, Ferozapur Road,
Ludhiana-141001 (Punjab). ....Defendant.
Date of institution : 02.01.2010
Date of Arguments : 28.08.2024
Date of Judgment : 05.09.2024
SUITS FOR RECOVERY OF MONEY.
JUDGMENT:
1. This is a suit for recovery of money filed by the plaintiff against defendant Sh. Amritpal Singh.
2. The case projected by the plaintiff is that both the plaintiffs were director of a company namely Bloom Infotech Ltd. and that the defendant joined the company as Director in September, 2001. Later on dispute arose between the parties and defendant was expelled from the company. Thereafter, the defendant filed a suit for injunction and also lodged FIR against the plaintiff for offense of cheating. There was also a cheque bounce case filed by a CS DJ no. 76669/16 Yogesh Bansal Anr. Vs. Amrit Pal Singh Page no. 1 of 11 proprietorship firm which in the opinion of plaintiffs was at the instance of defendant. Plaintiffs claim that when the cases were pending the parties arrived at a mutual understanding by settlement deed dated 29.12.2006 whereby the total amount of Rs. 8 lacs was paid to the defendant in installment in pursuance whereof the plaintiffs had given four cheques of Rs. 2,00,000/- each to the defendant. The defendant was required to facilitate withdrawal of all his cases against the plaintiffs. Two out of four cheques were encashed by the defendant but he did not withdraw the civil suit and also did not sign the affidavit which was to be filed with the petition for quashing of the FIR. The plaintiffs claimed that since the defendant did not perform his part of the settlement agreement, he has no right on the amount of Rs. 4 lacs which was encashed by him. Therefore, the plaintiffs has filed the instant suit for recovery of the said amount of Rs. 4 lacs from the defendant.
3. On summons being served, the defendant appeared and filed WS. He has not denied that there was a settlement deed between the parties or that he had received four cheques from the plaintiffs. He contended that in terms of the settlement deed, the plaintiffs are required to pay double the amount of cheque which gets dishonored and that the plaintiffs have not allowed the remaining two cheques to be encashed. He further claimed that he was agreeable to sign the affidavit and to withdraw the cases if the plaintiffs were agreeable to pay the amount of Rs. 8 lacs. In the WS itself, the defendant also pleaded a counter claim for recovery of Rs. 8 lacs from the plaintiffs. In the replication, the plaintiffs also responded to the said counter claim by denying the claim of defendant.
CS DJ no. 76669/16 Yogesh Bansal Anr. Vs. Amrit Pal Singh Page no. 2 of 11
4. On basis of pleadings, the Ld. Predecessor vide order dated 19.07.2012 framed the following issues:
1. Whether the plaintiff is entitled to recovery suit amount of Rs. 4 lacs, as prayed for?OPP
2. Whether the plaintiff is entitled for pendente and future interest@15% from the date of filing the suit till realization? OPP
3. Whether the counter claim filed by defendant is time barred and is liable to be dismissed? OPP
4. Whether the defendant has no cause of action to file the counter claim as the plaintiff is ready to comply with the terms and conditions of settlement arrived at between the parties? OPP
5. Whether the defendant/counter claimant is entitled to recover a sum of Rs. 8 lacs along with interest, as prayed for in the counter claim? OPD
6. Relief.
5. Matter was put to trial. However, subsequently, the plaintiff no. 2 Sh. Rajesh Tandon filed an application under Order 23 Rule 1 CPC for withdrawal of the case on settlement. The Ld. Predecessor, vide order dated 18.01.2014 allowed the said application and deleted the plaintiff no. 2 from the array of parties. Thereafter, the matter continued for further proceedings. The plaintiff side came up with an amendment application on account of deletion of plaintiff no. 2 which was allowed by the Ld. Predecessor vide order dated 24.09.2016. Thereafter, the Ld. Predecessor again framed issues on 26.07.2017 which are as follows:
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1. Whether the plaintiff is entitled to recovery of Rs. 2 lacs from the defendant with interest & cost, as prayed for in the amended plaint filed before this court on 27.11.2014? OPP
2. Whether the plaintiff has no locus standi to file the present suit against the defendant, as mentioned in WS? OPD
3. Whether the plaintiff has not approached this court with clean hands, as mentioned in WS? OPD
4. Whether the plaintiff dishonestly and wrongfully got encashed the cheque of defendant of amount of Rs. 2 lacs, as mentioned in the WS? OPD
5. Relief.
6. The matter was again put to trial wherein the plaintiff Sh.
Yogesh Bansal tendered his affidavit in evidence and was cross- examined on behalf of defendant. In turn, the defendant tendered his affidavit in evidence and was cross-examined on behalf of the defendant. Final arguments have been heard. The instant judgment shall dispose of the case.
7. The entire case is very simple and is based on the undisputed settlement deed dated 29.12.2006. In the absence of any dispute in respect of this settlement deed, its terms have to be given due value. Perusal of the said settlement deed shows that the same is a contract having reciprocal promises. The plaintiffs were required to pay Rs. 8 lacs which they did by handing over four cheques of Rs. 2 lacs each. The defendant was required to appear in all courts/offices to CS DJ no. 76669/16 Yogesh Bansal Anr. Vs. Amrit Pal Singh Page no. 4 of 11 convey that he had no complaint against the plaintiffs. He was also required to facilitate the quashing and withdrawal of all the cases. There was also a term indicating that if any of the cheques is returned unpaid, the defendant would be paid double the amount of such cheques. There was a further condition that the defendant shall bring his mother to the court/offices for giving her statement regarding no complaints against the plaintiffs and if he fails to do so, he shall refund the whole amount and cheques.
8. Section 51 & 52 of the Contract Act talk about performance of reciprocal promises. The instant settlement agreement does not fix the mode and manner of performance of reciprocal promises and therefore, the same has to be gathered from the nature of transaction.
9. The plaintiffs were only required to pay an amount of Rs. 8 lacs to the defendant. It was their promise in respect of the settlement agreement. All other acts of the settlement agreement were to be performed by the defendant and the same were his promise. The plaintiff had handed over four cheques to the defendant as recorded in the settlement agreement itself. A payment by cheque is no lesser than the payment in cash. Whether and on which date the payee presents the cheque for encashment is virtually immaterial. It is for the payee to present the cheques for encashment within its validity period. So far as the drawer of the cheques is concerned, delivery of cheques itself completes the negotiation in terms of Section 46 of the Negotiable Instruments Act. It is clear that the plaintiffs had performed their promise by delivery of CS DJ no. 76669/16 Yogesh Bansal Anr. Vs. Amrit Pal Singh Page no. 5 of 11 cheques. Thereafter, it was for the defendant to perform his promise by presenting himself before courts/offices to give statement that he did not have any complaint against the plaintiffs and also by bringing his mother for the same purpose. He was additionally required to withdraw the civil and criminal cases.
10. It is not the case of defendant that he has withdrawn the civil case or has assisted the plaintiffs in getting the criminal case quashed. It is also not his case that he was available to be presented to any court/office regarding statement of no complaint against plaintiffs or that he was also willing to bring his mother for the said purpose. It is clear from the written statement of the defendant that he was not intending to perform his promise made in the settlement agreement.
11. It is in the aforesaid circumstances that we have to see as to whether there is any evidence that defendant was willing to perform his part of settlement agreement or not. Cross-examination of plaintiff shows that he wanted to project a plea that he had filed an application for withdrawal of his suit. He also relied upon copy of a document as Mark-P1/X. The suggestion was denied by the plaintiff. Therefore, the defendant was required to establish his claim. The Mark-P1/X is an application filed in a civil suit with a prayer that the court may proceed with merits instead of compromise. What is of some interest is that this document P1/X is signed in original by the defendant. If the signed application is available with the defendant, it is clear that he had not filed this application before the concerned court in the year, 2007. Had it been CS DJ no. 76669/16 Yogesh Bansal Anr. Vs. Amrit Pal Singh Page no. 6 of 11 so, he would have filed a certified copy after obtaining the same from the judicial record. No value can be given to this document. In his evidence, he has relied upon copy of application dated 17.04.2007 filed before Tis Hazari Courts with a view that he had sought postponement of such suit because of conduct of the opposite side. This copy is not a signed document. It is only a printed document. There is nothing to suggest that this document was ever filed before any court. If the defendant wanted to show that he was inclined to withdraw the civil suit but did not do so due to the conduct of the opposite side, he ought to have filed a certified copy of the document after obtaining the same from the concerned court. An unsigned document that too without reference material to show any connectivity with the concerned court, cannot be accepted in evidence for any purpose. It is therefore, held that the defendant has not been able to show that he was intending to withdraw the suit but did not withdraw the same due to the conduct of the plaintiff. It is held that defendant never intended to withdraw the civil suit no. 299/2005 from the concerned court. This was clearly a term of settlement agreement and was required to be performed by the defendant.
12. So far as the criminal case is concerned, there is nothing on record to show that the defendant ever acted to withdraw the said FIR against the plaintiff Sh. Yogesh Bansal. In the evidence laid by the defendant, he has not produced any documentary proof. In his cross-examination, the defendant has accepted that he never moved any compromise application or quashing petition in respect of the criminal case. He even accepted that he did not sign the quashing CS DJ no. 76669/16 Yogesh Bansal Anr. Vs. Amrit Pal Singh Page no. 7 of 11 petition sent by the plaintiffs. He accepted that the plaintiff was ultimately discharged from the criminal case. This court is of the view that such a scenario itself is a clear proof of the fact that the defendant never withdrew his criminal case against the plaintiff Sh. Yogesh Bansal. It is held that the defendant did not perform nor was intending even to perform his promise made in the settlement agreement.
13. There is also another condition in the settlement agreement that the defendant would be responsible to bring the proprietor of M/S Sonu Enterprises (who filed the cheque bounce case) against the plaintiffs for settlement of the said cheque bounce case. In the cross-examination, the defendant has specifically accepted that he has not got the cheque bounce case compromised. This also shows that the defendant did not perform his part of the settlement agreement.
14. The defendant is harping on one clause of the settlement agreement which shows that in case any cheque is dishonored, the plaintiff would be liable to pay double the cheque amount to the defendant. Pertinently, two out of four cheques have been encashed by the defendant without any consideration. Reason is obvious. He has not withdrawn the civil suit or the criminal case and therefore, he was not entitled for the said amount. In such situation, the plaintiffs apparently stopped the payment of remaining two cheques. Clearly, the said clause of the settlement agreement cannot be invoked when the settlement itself could not fructify due to the conduction of the defendant. The said clause would have been invoked if the defendant had performed his part and despite that the CS DJ no. 76669/16 Yogesh Bansal Anr. Vs. Amrit Pal Singh Page no. 8 of 11 plaintiffs had stopped the payment of cheques. In the absence of performance of promise by the defendant, he cannot claim to become a payee or holder of the cheques for consideration and therefore, he cannot created any kind of liability in respect of the cheques. The entire counter claim of the defendant is based on the aforesaid clause of the settlement agreement. Since the said clause cannot be invoked, the defendant cannot maintain the counter claim at all.
15. It needs to be noted that neither the civil suit was withdrawn nor the criminal case was quashed at the instance of defendant. The criminal case against the plaintiff Sh. Yogesh Bansal has resulted into his discharge. It shows that the settlement agreement was not performed by the defendant. The civil case was dismissed by the concerned court and this fact is not in dispute. However, the defendant claims that the said civil suit was taken up in appeal and was partly allowed in his favor. No certified copy of any record from any appellate court has been exhibited by the defendant in support of his claim. Be that as it may. Even if it is accepted, the same will give rise to an inference that the defendant persisted on prosecuting the civil suit in defiance of the settlement agreement dated 29.12.2006 and therefore, it has to be accepted that the defendant did not perform his part of the said settlement agreement.
16. It is not in dispute that the defendant had encashed two cheques of the plaintiffs out of which one pertains to the plaintiff Sh. Yogesh Bansal for a sum of Rs. 2 lacs. Meaning thereby that defendant has retained the money of plaintiff Sh. Yogesh Bansal that CS DJ no. 76669/16 Yogesh Bansal Anr. Vs. Amrit Pal Singh Page no. 9 of 11 too without any consideration. Section 70 of the Contract Act says that if something has been delivered to a person without intending to do so gratuitously, he is bound to refund the same. In the instant case, it is not the claim of the defendant that plaintiff had gratuitously handed over the cheque of Rs. 2 lacs to him. Therefore, the defendant is bound to refund the cheque. Since he has already encashed the cheque, obviously he will not be able to deliver back the cheque to the plaintiff. The only option then will be for the defendant to hand over an amount of Rs. 2 lacs i.e. the cheque amount to the plaintiff Sh. Yogesh Bansala. There is no escape for the defendant from this conclusion.
17. We can now take up the issues for consideration. Issue no. 1 relates to entitlement of plaintiff for recovery of amount with interest. The aforesaid discussion shows that plaintiff is so entitled for recovery of said amount. So far as interest is concerned there is no material to support any contractual interest. Therefore, a simple interest @6% per annum from 01.01.2007 (the date when cheque was encashed) is allowed till the realization amount. The issue no. 1 is decided accordingly in favor of the plaintiff.
18. Issue no. 2 relates to the locus standi of the plaintiff. Plaintiff Sh. Yogesh Bansal was party to the settlement agreement and had given the cheque to the defendant and therefore, he does have the locus to claim the amount. The issue no. 2 is decided against the defendant.
19. Issue no. 3 relates to plaintiff not approaching the court with clean hands. The plaintiff has clearly averred all the material facts in CS DJ no. 76669/16 Yogesh Bansal Anr. Vs. Amrit Pal Singh Page no. 10 of 11 the case. The defendant has nowhere indicated as to what concealment has been done by the plaintiff. The entire case is based on a settlement deed which is not in dispute. The issue no. 3 is decided against the defendant.
20. Issue no. 4 relates to a claim of defendant that plaintiff had encashed his cheque dishonestly. It seems that the said claim basically relates to a period which was prior to the settlement deed for which the plaintiff had lodged the criminal case. The said claim cannot be a matter of adjudication in this case. Therefore, no finding is required to be returned on the issue no. 4.
21. We have also seen that defendant has failed to establish a case for invoking any clause of settlement deed regarding payment of double the cheque amount. In such circumstances, his counter claim cannot be sustained. His counter claim is therefore dismissed.
22. In view of the aforesaid, the instant suit is decreed in favor of plaintiff Sh. Yogesh Bansal and against the defendant Sh. Amrit Pal Singh for a sum of Rs. 2,00,000/- which shall carry a simple interest @6% per annum from 01.01.2007 till realization of amount. Cost of the suit is also awarded in favor of the plaintiff and against the defendant. Counter claim of defendant is dismissed. Decree be prepared accordingly.
Announced in the Open Court
RAKESH Digitally signed
on 5th day of September, 2024. by RAKESH
KUMAR Date: 2024.09.05
KUMAR SINGH
SINGH 04:57:19 +0530
(RAKESH KUMAR SINGH)
District Judge-2 (North-West)
Rohini Courts: Delhi
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