* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) No.609/09 & CM No.17781/09
DINESH BANSAL .....Appellant through
Mr. N.N. Aggarwal, Sr. Adv. with
Mr. Kapil Gupta & Ms. Barnali
Basak, Advs.
versus
OM KUMAR & ORS. ......Respondent through
None
% Date of Hearing : December 11, 2009
Date of Decision : December 23, 2009
CORAM:
* HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether reporters of local papers may be
allowed to see the Judgment? No
2. To be referred to the Reporter or not? No
3. Whether the Judgment should be reported
in the Digest? No
VIKRAMAJIT SEN, J.
1. This Appeal lays a challenge to the Order dated 20.10.2009 passed by the learned Single Judge granting the Appellant Leave to Defend the Summary Suit for the recovery of Rupees 59,85,000/- together with pendente lite and future interest conditional on the Appellant/Defendant depositing a sum of Rupees 30,00,000/-.
2. From a reading of the Plaint, it appears that the Appellant/Defendant had approached the Plaintiff for FAO(OS)609/2009 Page 1 of 5 purchasing two floors of the property, namely, G-115, Saket, New Delhi which was the subject matter of a previously failed Sale Agreement. The sale consideration was Rupees 50,00,000/-. It is alleged that on the ruse of purchasing the Stamp Paper, the Defendant persuaded the Plaintiff to give the Defendant a loan of Rupees 5,00,000/- in cash. This amount was allegedly paid from the sum of Rupees 13,00,000/- already received by the Plaintiff from the earlier buyer. The sale transaction was completed and the Defendant paid to the Plaintiff the sum of Rupees 50,00,000/- by five cheques of Rupees 10,00,000 each.
3. It appears that there was also an Agreement that the Defendant would purchase most of the household items, refrigerators, air-conditioners and other expensive electronic items belonging to the Plaintiff, for a sum of Rupees 10,00,000/-.
4. It has next been pleaded that the Defendant persuaded the Plaintiff to invest the said sum of Rupees 50,00,000/- in his proprietary concern and assured them that it would fetch interest at the rate of 18 per cent per annum. It is admitted that this amount of Rupees 50,00,000/- (sale consideration received/paid) was invested by the Plaintiff with the Defendant, who had furnished a cheque for a sum of Rupees 50,00,000/- dated 7.4.2005 drawn on Corporation Bank, Noida, and Rupees 15,00,000/- by cheque dated 11.4.2005, as security for the FAO(OS)609/2009 Page 2 of 5 investment. The Plaintiff states that the total sum of Rupees 65,00,000/- was advanced by it to the Defendant as loan/investment. The Plaint states that on the demand of the Plaintiffs, the Defendant returned a sum of Rupees 20,00,000/-. Repeated requests by the Plaintiff for return of the remaining loan only led to they being threatened by the Defendant.
5. The Plaint contains the necessary averments to the effect that no relief, which does not fall within the ambit of Order XXXVII, has been claimed and that the suit is based on negotiable instrument, that is, cheque for Rupees 50,00,000/- bearing No.284646 dated 7.4.2005 and cheque dated 11.4.2005 bearing No.104389 for a sum of Rupees 15,00,000/-. The interest on the amount at the rate of 18 per cent per annum has also been claimed.
6. In essence, the defence to the Summary Suit is that the cheques held by the Plaintiffs were retained in an illegal manner as they were issued as security for the proposed loan/investment by the Plaintiffs and were without any consideration. It is further contended that the Plaintiffs had already encashed one of the five cheques of Rupees 10,00,000/- each which is not mentioned in the Plaint. Further, it is his contention that Rupees 5,00,000/- remained with the Plaintiffs as Earnest Money for which no receipt was given, Rupees FAO(OS)609/2009 Page 3 of 5 21,00,000/- had been paid to the Plaintiff on 27.4.2005 in cash, Rupees 20,00,000/- has been paid by cheque (which is admitted) and Rupees 4,00,000/- in cash on 24.5.2005. Loan payment of Rupees 5,00,000/- in cash for purchase of non-judicial Stamp Paper has been outrightly denied by the Defendant. Thus, as per the Defendant, it had paid a sum of Rupees 30,00,000/- to the Plaintiffs in cash. No receipt is forthcoming for this cash transaction. It is evident that it was for this reason that the learned Single Judge had granted the Appellant Leave to Defend the Summary Suit, subject to his depositing the sum of Rupees 30,00,000/-. In other words, so far as the rest of the claim was concerned, keeping in view the convoluted transaction between the parties, the learned Single Judge rightly concluded that Leave to Defend should be granted.
7. We are in complete agreement with the conclusion arrived at by the learned Single Judge. No proof, whatsoever, has been made available by the Appellant in support of his plea that a sum of Rupees 30,00,000/- was paid in cash to the Plaintiff. The defence in this regard is nothing but moonshine. Law demands that transactions of this magnitude must be in writing. We find no error in the impugned Order.
8. Since the Plaintiff was granted four weeks time from 20.10.2009 for depositing the said sum of Rupees 30,00,000/-, FAO(OS)609/2009 Page 4 of 5 we enlarge the time for doing so upto 6.1.2010. On the failure to make the deposit with the Registrar-General of this Court within the stipulated time, it will be deemed that the suit stands decreed.
9. Appeal as well as the pending application is dismissed with costs of Rupees 10,000/-.
( VIKRAMAJIT SEN )
JUDGE
December 23, 2009 ( SUNIL GAUR )
tp JUDGE
FAO(OS)609/2009 Page 5 of 5