Radhey Shyam And Ors. vs Jaibir Singh
1997 Latest Caselaw 19 Del

JUDGMENT

K. Ramamoorthy, J.

(1) The plaintiffs have filed the suit for recovery of Rs. 7,50,000.00 from the defendant on the basis that the defendant issued three post dated cheques and the defendant did not pay the amount. Hence this suit.

(2) Briefly stated the case of the three plaintiffs is that the defendant entered into an agreement with Mr. Radhey Shyam and Lakhi Ram, plaintiffs I and 3 to purchase the land situated in the Village Kakraula for a total consideration of Rs. 32,00,0000.00 . The defendant had paid a sum of Rs. 24.50 lakhs. By a deed of agreement dated 15.1.1992 the defendant acknowledged the dues of Rs. 7.5 lakhs towards the balance consideration of the sale. Accordingly to the plaintiffs the defendant issued postdated account payee cheques with the amounts and the name of the Banks mentioned in the following manner : Date Cheque No. Amount Drawn on In favour of 15.6.92 000384 2,50,000.00 Bank of Radhey Shyam Baroda Nawada Branch Delhi 59. 7.7.1992 000385 2,50,000.00 -do- Pawan Kumar 8.6.1992 000383 2,50,000.00 -do- Lakhi Ram

(3) The plaintiffs I and 3 presented the cheques for payment but the Bank did not encash the cheques because the defendant had issued stop payment directions to the Bank.

(4) There was exchange of notice between the parties and the defendant failed and neglected to pay to the plaintiffs, the plaintiffs had filed the suit under Order xxxvii, Civil Procedure Code for recovery of Rs. 7,50,000.00 . The summons for judgment was issued to the defendant and the defendant has filed the application being Ia 9234 / 94 under Order xxxvii Rule 3, Civil Procedure Code read with Section 151, Civil Procedure Code for leave to defend and contest the above suit unconditionally.

(5) In the application the defendant has set out the facts culminating in the filing of the suit. The defendant has accepted the fact that there was an agreement for sale and he had paid Rs. 24.50 lakhs and the balance was Rs. 7,50,000.00 . But according to the defendant, the plaintiffs did not act in accordance with the terms of the agreement and the defendant was prevented from performing his obligation under the contract and, therefore, he had to stop the payment of the cheques. As a matter of fact, the defendant had filed Suit No. 343/93 for the relief of specific performance.

(6) The plaintiffs had filed reply to the application and I do not want to set out what is stated in the reply because it is almost a repetition of the allegations made in the plaint.

(7) The matter lies in a very narrow campass. The facts are admitted. The case of the defendant is that the plaintiffs having executed an agreement for sale and had not acted in the terms of the agreement and trusting the plaintiffs the defendant had invested a huge sum of money and, therefore, the plaintiffs are not entitled to file a suit for the recovery of Rs. 7,50,000/. In the light of the facts that the defendants have filed the suit for specific performance wherein the question who had committed the breach would be gone into and the obligation of the defendant to pay a sum of Rs. 6,50,000.00 to the plaintiffs would depend upon the findings that may be rendered by this Court in that suit. I am of the view, the defense raised by the defendant would give rise to triable issue and, therefore, the defendant is entitled to defend the suit unconditionally.

(8) Accordingly, Ia No. 9234/94 filed on behalf of the defendant under Order xxxvii Rule 3, Civil Procedure Code read with Section 151, Civil Procedure Code for leave to defend and contest the suit unconditionally is allowed.

(9) The defendant shall file the written statement to the suit within four weeks with advance copy to the learned Counsel for the plaintiff to enable him to file replication, if any within two weeks thereafter. Post this suit alongwith Suit No. 343/93 for further proceedings on 29.4.1997.