Delhi High Court
Dinesh Bansal vs Om Kumar & Ors. on 23 December, 2009
Author: Vikramajit Sen
* 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
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
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
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/-,
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
