Delhi High Court
Rakesh Kapoor vs Bal Kishan Virmani on 8 December, 2008
Author: Pradeep Nandrajog
15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.265/2008
Date of decision: 08th December, 2008
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RAKESH KAPOOR ..... Appellant
Through : Mr. Rakesh Kumar and
Mr. Rajesh Kumar, Advs.
versus
BAL KISHAN VIRMANI ..... Respondent
Through : Mr. S.K. Sinha, Adv.
CORAM :-
THE HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may
be allowed to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be
reported in the Digest?
Pradeep Nandrajog, J. (Oral)
1. Heard learned counsel for the parties.
2. The impugned order is dated 13.02.2008. The
appellant's application seeking leave to defend has been
dismissed. The summary suit has been decreed in sum of
Rs.5,00,000/- together with interest thereon @ 18% per
annum.
3. The foundation of the suit were three cheques issued by
the appellant to the respondent; dated 20.02.2004,
20.03.2004 and 02.04.2004. Two cheques were in sum of
Rs.1.5 lakhs each. The third cheque was in sum of Rs.2 lakhs.
The case pleaded was that the respondent and the appellant
desired to purchase property No.401B, Mangolpur Kalan,
Pathar Market, New Delhi from one Chander Wati. The
bargain was settled at Rs.70 lakhs. Rs.19 lakhs was given to
Chander Wati as earnest money. Rs.5 lakhs was the
contribution of the respondent. That the respondent learnt
that the appellant had managed to procure the sale deed from
Chander Wati in his sole name; when confronted the
respondent agreed to refund Rs.5 lakhs to him for which the
cheques were issued. Stating that the cheques were
dishonored when presented for encashment, suit was filed.
4. In the application seeking leave to defend, it was
pleaded by the appellant that the respondent was a confidant
of Chander Wati and was a tenant in a part of the property.
That the appellant wanted to purchase the property from
Chander Wati; respondent told the appellant that Chander
Wati would be very confident to sell the property if even he
i.e. the respondent was included as a beneficiary. For said
reason, name of the respondent was recorded as the co-
intended purchaser under the agreement to sell with Chander
Wati. It was stated that the cheques in question were handed
over to the respondent for payment to Chander Wati. That,
when drawn out, the three cheques were blank.
5. In a nutshell, the case of the appellant was that the
respondent did not contribute Rs.5 lakhs when part sale
consideration in sum of Rs.19 lakhs was paid to Chander Wati.
6. In the reply to the application seeking leave to defend,
the respondent referred to a writing executed by the appellant
on 08.01.2004 as also another writing dated 06.02.2005;
alleging that the same evidenced a Panchayati settlement
pursuant where to the three cheques were issued.
7. The appellant did not file any rejoinder to the reply filed
by the respondent.
8. Holding that no case was made out to grant leave to
defend to the appellant, the learned Trial Judge has recorded
that the cheques in question are dated 20.02.2004,
20.03.2004 and 20.04.2004, a date much after the date
23.04.2003; the date notified under the agreement to sell for
the sale to be concluded. Conclusion drawn is that the three
cheques could not relate to the transaction in question.
9. Learned counsel for the appellant urges that the learned
Trial Judge failed to appreciate that the case of the appellant
was he had issued blank cheques bearing no date. Thus, if
somebody put a date on the cheques much late than
23.04.2003, no adverse inference could be drawn against the
appellant more so while considering the plea pertaining to
grant of leave to defend. Second contention urged is there is
no proof of the respondent having contributed Rs.5 lakhs
when Rs.19 lakhs was paid to Chander Wati. Counsel states
that the only recital in the agreement to sell is of the
appellant and the respondent paying Rs.19 lakhs to Chander
Wati, for which the case of the appellant is that name of the
respondent was inserted in the agreement to sell as a comfort
factor for Chander Wati.
10. A cheque is presumed to be for a consideration, but the
same is a rebuttal presumption.
11. While granting leave to defend focus of the court has to
be on the pleadings of the plaintiff in the plaint and the
application seeking leave to defend.
12. In this context, it is of significance that in the plaint
there is no reference to any writings executed by the
appellant.
13. On the other hand, the fact that in the agreement to sell
the names of the appellant and the respondent as the
intending purchasers have been recorded; with further recital
that they have paid 19 lakhs to Chander Wati has also to be
kept in mind.
14. We are of the opinion that the totality of the
circumstances make out a case to grant a conditional leave to
defend. The condition being that the appellant shall deposit
Rs.5 lakhs as a term of defending the suit.
15. The appeal is allowed. Impugned order dated
13.02.2008 and the consequent decree passed thereon are
set aside. Application filed by the applicant seeking leave to
defend stands disposed of granting appellant conditional
leave to defend; condition being that within 6 weeks from
today the appellant shall deposit with the learned Trial Judge a
sum of Rs.5 lakhs and simultaneously file a written statement.
16. The amount deposited by the appellant would be
permitted to be received by the respondent on furnishing
security to the satisfaction of the learned Trial Judge.
17. No costs.
18. Parties are directed to appear before the learned District
and Sessions Judge on 18th December, 2008. Successor court
would be identified before whom the parties shall appear and
before whom the appellant shall do the needful.
19. A copy of this order be supplied Dasti to learned counsel
for the parties.
PRADEEP NANDRAJOG, J
J.R. MIDHA, J
DECEMBER 08, 2008
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