Tatvadarshi Bandhu Pvt. Ltd. And ... vs Smt. Farhat Sheikh
2007 Latest Caselaw 170 Del

JUDGMENT

Swatanter Kumar, J.

1. This Regular First Appeal under Order 41 Rule (1) of the CPC is directed against the judgment and decree dated 23.10.2004 passed by the learned Additional District Judge, Delhi in Suit No. 7/2003.

2. The facts necessary for disposal of this appeal are that the respondent herein filed a suit for recovery of Rs. 12,37,500/- together with interest under the provisions of Order 37 of the CPC. The respondent claimed to be a resident of Mumbai and was looking for a suitable place/plot of land and she got in touch with the defendants for this purpose. She agreed to purchase two plots of land measuring about 200 sq. yds each from the defendants and the parties entered into two memorandums of understanding dated 12.4.1996 under which the plaintiff advanced a sum of Rs. 2 lakhs against the said two plots by cheques. She also paid a sum of Rs. 10 lakhs in cash. The terms of the agreement also provided that if she did not desire to acquire the plots after expiry of one year, the defendants would have to refund Rs. 6,20,000/-each towards the principal amount plus interest. She had entered into the two agreements in relation to each plot separately with the defendants. Appellant No. 2 had further wanted to extend the MOU for a period of six months and agreed to pay a sum of Rs. 13,60,000/- to the plaintiff by 12.10.1997. The first two memorandums of understanding were superceded by two new memorandums of understanding. She vide her letter dated 15.9.1997 informed the defendants that she was not interested in the two plots and she wanted refund of Rs. 13,80,000/- from the defendants. The defendants made a total payment of Rs. 6 lakhs in four installments and they issued a letter in the nature of promissory note on 6.6.98 acknowledging the liability of ten lakhs and agreed to pay and refund the said amount by 19th July, 1998 along with simple interest @ 24% p.a. Despite request, the amount was not paid to the plaintiff, resulting in filing of the suit for recovery of Rs. 12,37,500/- in terms of subsequent memorandum of understanding entered into between the parties.

3. Summons in the suit under Order 37 of the CPC were issued to the defendants who filed an application for leave to defend the suit. In the application for leave to defend, the defendants took up the plea that the plaintiff had created false and fabricated evidence and no cause of action had arisen in her favor. It was also their plea that no rate of interest and its basis had been stated in the plaint. The investment was made in terms of MOU dated 12.4.1996. It was also the case of the defendants that the payment of Rs. 6 lakhs had not been disclosed by the plaintiff in her plaint and the letter dated 1.9.2000 could not be considered as a promissory note and they prayed for dismissal of the suit. However, the learned ADJ trying the suit, vide order dated 23.10.2004 dismissed the application for leave to defend and passed a decree for recovery of Rs. 12,37,500/- with @ 24% simple interest per annum from the date of institution of the suit till realization.

4. As already noticed, aggrieved from the said judgment and decree, the defendants in the suit filed the present appeal stating that the impugned judgment and decree was illegal, devoid of facts and law and was an error in law. The defendants were able to create shadow of grave doubt in the case of the plaintiff and were entitled to leave to defend to defend the suit unconditionally. It was also that stated that the letter dated 15.9.1997 was a fabricated and false document, as such, could not be relied upon by the plaintiff. They also submitted that there was violation of the principle of audi alteram partem and the case should have been put to trial. We have already noticed that the learned trial court while relying upon the various judgments including judgments of this Court had concluded that the letter dated 1.9.2000, the memorandum of understanding, was amounted to and was a promissory note within the ambit and scope of Order 37 of the CPC and the suit as framed was maintainable. The court found the defense raised by the defendants in the suit to be baseless, their plea was sham and thus decline to grant leave to defend to the defendants. The Memorandums/Letters which were written by the appellants read as under:

TATVADARSHI BANDHU (LTD.) CO.

Date :6.6.1998

A sum of Rs.10,00,000/- (Rupees Ten Lacs) was deposited by Mrs. Farhat Sheikh W/o Mohd. Isa Sheikh, R/o________________________________in the month of April, 1996, out of which a sum of Rs. 6,00,000/- (Rupees Six Lacs) has already been refunded in two installments of Rs. 2,00,000/- (Rupees Two Lacs) and Rs. 4,00,000/- (Rupees Four Lacs) respectively. The balance has to be refunded till 31st July, 1998 Along with the simple interest @ 24% on 10 Lacs, and thereafter, for further three months i.e. up to 31st October, 1998, the interest @ 36% will be given and if the payment would have not been refunded till 31st October, 1998 a plot measuring 311 Sq. yds. In Kant Enclave would be allotted in her name in lieu of her payment. We also pay a lumpsum of Rs. 50,000/- (Rupees Fifty Thousand) to her if she comes from London.

For Tatvadarshi Bandhu Pvt. Ltd.

Sd/-

Dinesh Kumar Aggarwal Director

__________________________________________________________

Regd. Office: 42, Community Centre, Zamrudpur, New Delhi - 110048 Tel.:6213148, 6423130, 6220880 Fax : 91-11-6451398

TATVADARSHI BANDHU (PVT.) LTD.

Date :01-09-2000

A sum of Rs. 10,00,000/- (Rupees ten Lac Only) was deposited by Mrs. Farhat Sheikh w/o Mohd. Isa Sheikh, R/o S-218 G.K. II NEW DELHI in the month of April, 1996, out of which a sum of Rs. 6,00,000/- (Rupees Six Lac) has already been refunded in four installments of Rs. 2,00,000/- , 1,00,000/-, 1,00,000/- and 2,00,000/- on date 15/11/97, 05/12/97, 15/12/97 and 30/05/98 respectively. The balance has to be refunded till 7th April 2002 Along with the simple interest @ 24% i.e. a sum of Rs. 12,37,500/- (Twelve Lac thirty seven thousand five hundred only)

For Tatvadarshi Bandhu Pvt. Ltd.

Sd/-

Director

________________________________________________________

Regd. Office: J-1811, Chitranjan Park, New Delhi - 110019 Sales Office. : 42, Community Centre, Zamrudpur, New Delhi - 110048 Tel.:6213148, 6423130, 6220880

5. The bare reading of the above letters and particularly the letter dated 1.9.2000 shows that the appellants had, in unambiguous terms, admitted the amount of Rs. 10 lacs deposited by the plaintiff out of which the sum of Rs. 6 lakhs was paid on the dates indicated therein and the balance amount with interest i.e. Rs. 12,37,500/- was to be refunded by 7th April, 2002. This letter is a clear agreement to pay and satisfies all the essentials of a document to be covered under the provisions of Order 37 of the CPC. The contents of the letter are otherwise supported by the admitted case between the parties. In the application for leave to defend which was filed on 11th May, 2004, the appellants in paragraphs 5 and 6 of the affidavit had admitted the case of the respondent. The said paragraphs read as under:

5. I further say that the plaintiff has failed to disclose that after making the payment of Rs. 6,00,000/- by the defendants and on the balance payment what was the agreed terms and conditions between the parties. All this requires a matter of trial and can be establish by leading their respective evidence.

6. I further say that the letter dated 01.09.2000 cannot be treated as a Promissory Note. It is simply a letter written by defendant No. 2 about the balance amount of the plaintiff lying with them.

6. The above admitted facts clearly show that execution of the said letter was clearly admitted. Though according to the appellants, the letter could not be treated as a promissory note. This contention even if accepted, would not further the cause of the appellants inasmuch as even a written agreement between the parties for payment of money could form valid basis for invoking the provisions of Order 37 of the CPC. The payment of Rs. 6 lakhs by the appellants to the respondent is admitted by both the parties. A vague averment without proper documents or specific evidence would not be a ground to grant leave to defend to the appellants, conditional or otherwise. The provisions of Order 37 are intended to try such claims by the summary procedure provided therein and such procedure cannot be frustrated on the mere asking of a defendant particularly in face of series of written documents to which the appellants have no plausible or reasonable defense.

7. We are unable to find any error of law or even in appreciation of factual controversy in the judgment impugned in the present appeal. Consequently, the present appeal is dismissed with costs.

8. The file be consigned to Record Room.