Shri Ravinder Kumar Gulati And ... vs Shri Naresh Kumar
2006 Latest Caselaw 890 Del

JUDGMENT

Swatanter Kumar, J.

CM 6463/2006

1. This is an application for exemption.

CM 6463/2006 is allowed, subject to just exceptions.

RFA 305-04/2006 and CM 6462/2006

2. This Regular First Appeal is directed against the judgment and decree dated 23rd August, 2005 passed by Additional district and Sessions Judge, Delhi. The plaintiff filed a suit for recovery of Rs. 14,26,000/- against the defendant as a summary suit under the provisions of Order 37 CPC. According to the plaintiff, he was carrying on business in three shops, in the basement of property bearing No. 11/4A, Tilak Nagar, New Delhi under the name and style of M/s Swati Boutique. The defendant No. 1 approached the plaintiff to hand over his business, shop and goodwill to him and also to handover the premises, for which the defendant No. 1 had agreed to pay a sum of Rs. 16,75,000/- as compensation to the plaintiff. The amount was to be paid in installments.

3. The parties entered into four agreements dated 13.3.2000, 13.2.2001, 19.4.2001 and 06.01.2004 In pursuance to the said agreements, part payments were made. Defendant No. 2, in order to discharge the liability of defendant No. 1, issued three cheques: two cheques for Rs. 4 lakhs each and the third for Rs. 3.50 lakh. All these cheques were dishonoured on presentation. The suit of the plaintiff was based upon these three cheques for Rs. 11,50,000/-. The plaintiff added a further sum of Rs. 2,76,000/- on account of interest on the said amount of Rs. 11,50,000/-. Thus, the suit for above amount was filed. The suit was contested by the defendants. They filed an application for leave to defend the suit. The grounds taken by them were that possession of the shops was handed over to them, which were the tenanted shops of the plaintiff and as such the plaintiff was not entitled to recover any amount. The alleged agreement between the parties was hit by Section 23 as well as barred under Section 5(3) of Delhi Rent Control Act. The learned Trial Court vide judgment and decree dated 23rd August, 2005 held that defendants were not entitled for leave to defend. While passing the decree in favor of the plaintiff, the Court held as under:

12. The execution of the four agreements between the parties, is not disputed by the defendants. The agreement dt. 6.1.2004 clearly provides that the defendants have agreed to pay Rs. 16.75 lacs to the plaintiff towards the goods, which were lying in the shop, earlier occupied by the plaintiff. Once the agreement dt. 6.1.04 specifically provides this, no scope is left for the defendants to dispute the agreements later on, on the pretext that the agreement was barred under the law contained in Section 5(3) of the DRC Act.

13. Not only this, the defendant No. 1 has complied with the agreement in part, in as much as he had paid, admittedly, a sum of Rs. 5.25 lacs to the plaintiff and further the defendant No. 2, towards the remaining liability, gave three cheques amounting to Rs. 11.50 lacs to the plaintiff, which later on, on presentation were bounced.

14. Further, it is evident from the aforesaid agreement that the plaintiff did not take any amount in lieu of vacating the premises and a sum of Rs. 16.75 lacs was agreed to be paid to the plaintiff by the defendant No. 1 for the costs of the goods. As such, the agreement is not hit by either Section 23 and 24 of the Indian Contract Act or by Section 5(3) of the DRC Act.

15. The conduct of the defendants, therefore, shows that they not only executed all the said agreements between the parties, rather they came forward to act upon the terms and conditions of those agreements, in as much as, they have paid part of the total agreed money and for the remaining, the cheques were issued to the plaintiff.

4. On the above findings, the judgment and decree for recovery of Rs. 11.50 lacs with interest at the rate of 6% p.a. with effect from 6.1.04 till realisation was passed by the trial Court, giving rise to the present petition. Learned Counsel appearing for the appellants argued that the findings recorded by the trial Court is erroneous in law and in fact is inequitable inasmuch as the alleged four agreements were not even filed by the plaintiff along with the plaint or otherwise. It is further argued that in view of the facts and grounds stated in the application to leave to defend, the appellants were entitled to an unconditional leave to defend the suit as the said agreements were void.

5. Firstly, this argument has been dealt with in the impugned judgment.

6. The approach of the trial Court cannot be said to be erroneous in law and on the facts of the case. Secondly, in the application filed by the defendants under Order 37 Rule 5 CPC seeking unconditional leave to defend, no friable issue has been raised. The so called objection for non-production of agreement could be of any consequence if the execution and contents of these agreements were disputed. On the contrary, in the application for leave to defend, the defendants have admitted execution and contents of the agreement and themselves have filed copy of those agreements in the present appeal. These agreements were for sale of property. The agreement dated 13th February, 2001 executed between the parties opens with the word ?This agreement of deal has been executed?. Even in the other agreements, it has been referred as ?This agreement of sale has been executed between Ravinder Kumar s/o Shri Padam Lal Gulati r/o 11/4-A, Tilak Nagar ? the owner of the property and Naresh Kumar s/o Laxman Dass r/o 23/30,Tilak Nagar ? the tenant of three shops, in the basement.... This itself shows that it was not a case of creation of tenancy. The parties had entered into a regular transaction of sale/deal in regard to transfer of 3 shops in favor of the present appellants and the cheques were issued in lieu thereof. Strangely, in paragraph 9 of the application, it has been stated that in 2nd agreement dated 13.2.200, there is no mention of transfer of any property, goods, furniture etc. etc. but has been fraudulently mentioned that possession has been handed over on 13.2.2001. Mere fact that agreement dated 13.2.2001 does not mention about the goods etc. would not forward the case of the appellants as in the subsequent agreements this is so stated. In the entire application for leave to defend, there is not a single averment to say why the defendants had issued three cheques particularly when as per their own admission they had been put into possession of the property. The suit of the plaintiff was based on the three cheques issued by the defendants, which on presentation had been dishonoured.

7. In these circumstances, we are of the considered view that the approach of the trial Court cannot be faulted. The application for leave to defend does not raise any friable issue either on facts or in law, which would justify grant of leave to defendants to contest the suit and that too unconditionally. We may also notice here that the present appeal is barred by time. There is considerable delay in fling the appeal. CM No. 6462/2006, an application filed by the appellants for condensation of delay, hardly gives any reason except blaming to its counsel. The judgment was pronounced on 23rd August, 2005 while the present appeal was filed on 24th April, 2006. It is stated that the appellants had filed a review application before the trial Court, which was also dismissed vide order dated 16th March, 2006. As there is hardly any merit in the appeal itself, we are not inclined to condone the delay of 163 day in filing the present appeal. CM 6462/2006 is accordingly dismissed.

8. In view of the above discussion, the appeal being RFA 303-304/2005 and applications being CM and 6462/2006 are dismissed in liming while leaving the parties to bear their own costs.

CM 6461/2006

9. This application does not survive in view of the above order.

CM 6461/2006 is accordingly dismissed.