Mr. Om Kumar & Anr. vs Mr. Dinesh Bansal
2009 Latest Caselaw 4201 Del

*     HIGH COURT OF DELHI : NEW DELHI

+     I.A. No.4455/2008 in C.S. [OS] No.589 /2007

                   Reserved on: 13th August, 2009

%                  Decided on:     20th October, 2009

Mr. Om Kumar & Anr.            ...Plaintiffs
          Through : Mr. Ajay Goswami, Adv. with
                    Mr. Diwakar Singh, Adv.

             Versus

Mr. Dinesh Bansal                     ....Defendant
            Through :     Mr. Manoj Sharma, Adv. with
                          Mr. R.D. Sharma, Adv.
Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may       No
   be allowed to see the judgment?

2. To be referred to Reporter or not?              No

3. Whether the judgment should be reported         No
   in the Digest?

MANMOHAN SINGH, J.

1. The present application being IA No.4455/2008 has been filed by

the defendant seeking leave to defend the suit.

2. The brief facts of the present case are that the plaintiffs (husband

and wife) filed the suit for recovery of Rs.59,85,000/- (Rupees Fifty

Nine Lac Eighty Five Thousand) with pendente lite and future interest

under Order XXXVII of Code of Civil Procedure, 1908.

3. The plaintiffs entered into an agreement for sale of two floors i.e.

ground floor and 1st floor of the property bearing No.G-115,Saket, New

Delhi (hereinafter referred to as 'suit property') to the defendant for a

total consideration of Rs.50,00,000/- (Rupees Fifty Lac).

4. The plaintiffs submit that they were handed over five cheques by

the defendant for a sum of Rs.10,00,000/- (Rupees Ten Lac) each against

the sale consideration, the details of which are given as under:-

Cheque No.          Amount                Date of Payment

104382                      10,00,000/-   06.04.2005
104383                      10,00,000/-   06.04.2005
104384                      10,00,000/-   07.04.2005
104385                      10,00,000/-   08.04.2005
104386                      10,00,000/-   10.04.2005

5.    A    joint   account     in   the    name    of     plaintiffs   bearing

No.CLSB/60/050014 was opened in the Corporation Bank, Sector 22,

Noida by the defendant. The defendant suggested the plaintiffs to give

a loan of Rs.50,00,000/- (Rupees Fifty Lac) to M/s. Gasoline, his

proprietary concern as an investment and assured the plaintiffs of 18%

p.a. returns on it. The plaintiff No.1 on assurance that defendant will fill

the cheques in favour of M/s. Gasoline (his proprietorship firm) gave

five blank cheques signed by him to the defendant1, the details of which

are mentioned as under:-.

Cheque No.          Amount                 Date of Collection

246861                      10,00,000/-        06.04.2005
246862                      10,00,000/-        06.04.2005
246863                      10,00,000/-        07.04.2005
246864                      10,00,000/-        08.04.2005
246865                      10,00,000/-        10.04.2005

6. The defendant, however issued a cheque of Rs.50,00,000/-

(Rupees Fifty Lac) bearing No.284646 dated 7th April, 2005 drawn on

Corporation Bank, Noida favouring plaintiffs as security to their

proposed loan investment.

7. It is alleged in the plaint that since the defendant does not have

the necessary cash to pay earnest money to the plaintiffs, he asked the

plaintiffs for a temporary loan of Rs.5,00,000/- (Rupees Five Lac) for

payment as earnest money. As alleged in the plaint, the said amount

was given to the defendant as loan out of Rs.13,00,000/- (Rupees

Thirteen Lac) received by plaintiffs from Mr. Sarabjit Singh.

8. It is contended by the plaintiffs that the defendant also deesired to

purchase most of the household items like refrigerator, air conditioners

and other expensive electronic items of the plaintiffs for a sum of Rs.

10,00,000/- (Rupees Ten Lac) and handed over cheque No. 104391 for a

sum of Rs.10,00,000/- (Rupees Ten Lac) on 10th April, 2005 drawn on

Corporation Bank, NOIDA in favour of the plaintiffs.

9. It is averred by the plaintiffs that simultaneously, the defendant

also asked for a further loan of Rs.10,00,000/- (Rupees Ten Lac) from

the plaintiffs which was given to the defendant vide cheque No. 246866

on the same date by the plaintiffs in favour of M/s Gasoline.

10. Therefore, as per the plaintiffs, the defendant issued another

cheque of Rs.15,00,000/- (Rupees Fifteen Lac) against loan of

Rs.10,00,000/- (Rupees Ten Lac) and cash of Rs.5,00,000/- (Rupees

Five Lac) paid as convert.

11. It is mentioned in the plaint that when the plaintiffs demanded

their invested money from the defendant, he refused to hand over the

full money and gave a cheque of only Rs.20,00,000/- (Rupees Twenty

Lac) vide Cheque No.406102 dated 05.05.2005 to the plaintiffs who

have acknowledged the said amount in the plaint. But despite repeated

demand by the plaintiffs for the balance money, the defendant did not

pay the same rather as per the plaintiff, they were threatened.

Therefore, the present suit is filed by the plaintiffs seeking recovery of

balance amount of Rs. 45,00,000/- (Rupees Forty Five Lac) along with

interest @ 18% per annum which comes to Rs 59,85,000/- (Rupees Fifty

Nine Eighty Five Thousand) (under the provision of Order XXXVII of

the Code) on the basis of two cheques issued by the defendant against

the loan amount.

12. Summons for judgment was issued by this Court to the defendant

on 26th March, 2008 through the process server.

13. The defendant filed an application being I.A. No. 4455/2008 for

leave to defend allegedly raising a large number of triable issues and

inter alia, contending that the plaintiffs were holding the cheques in an

illegal manner as they were issued as security for the proposed loan

investment by the plaintiffs and were thus without any consideration. It

is contended that the suit amount is investment and is not a commercial

transaction thus, it will not be covered under Order XXXVII of CPC.

14. It is further stated that the plaintiffs have been guilty of

intentionally concealing and suppressing material facts from this court

and have not come before this court with clean hands. The details of the

defenses raised by the Defendant are given in para 12.1 to 12.16 of the

application wherein it is averred that various payments were made to the

plaintiffs from time to time inclusive of the payment of Rs.30,00,000/-

(Rupees Thirty Lac) paid in cash but the plaintiffs have not disclosed the

same in the plaint.

15. However, the Defendant has admitted that the two cheques

for the amount of Rs 15,00,000/- (Rupees Fifteen Lac) and

Rs.50,00,000/- (Rupees Fifty Lac) were handed over by him to the

plaintiffs on their specific assurance that the plaintiffs would return those

cheques to the defendant upon the final outcome of the another dispute

between the plaintiff and Sarabjit Singh (third party and their sons).

Therefore, the defendant had given Rs. 65,00,000/- (Rupees Sixty Five

Thousand) to the plaintiffs being Rs. 50,00,00/- (Rupees Fifty Lac) for

the sale consideration and other Rs.15,00,000/- (Rupees Fifteen Lac) for

settling the dispute. The defendant submits that amount of Rs

60,00,000/- (Rupees Sixty Lac) was rotated back by the parties through

the account of M/s Gasoline while the remaining Rs 5,00,000/- (Rupees

Five Lac) remained with the plaintiffs as earnest money paid to them in

cash on 16.02.2005 in the presence of one Sh Rajiv Mangla who

confirmed this payment as witness by way of an affidavit, but no receipt

was issued by the plaintiffs in this regard.

16. As per the defendant since no settlement could be arrived between

the plaintiffs and their son in another matter, plaintiffs had agreed with

the defendant on the proposal given by the defendant that he sell the said

property purchased by him from the plaintiffs to any other buyer. The

defendant, thereafter sold the first floor of the suit property to one M/s

Anged Developers Pvt. Ltd, of S-5, Panchsheel Park, New Delhi,

through its Director Shri Surinder Sehlot, resident of B-9, Saket, New

Delhi-110017 for a total sale consideration of Rs 65,00,000/- (Rupees

Sixty Five Lac) against the sale deed dated 29.04.2005 which had been

duly witnessed by the plaintiff No. 1. As per the defendant, he paid a

sum of Rs. 6,00,000/- (Rupees Six Lac) and Rs. 15,00,000/- (Rupees

Fifteen Lac) respectively to the plaintiffs after collecting the same in

cash from the said buyer on 27.4.05 in presence of witnesses.

17. Finally on 20.05.2005, the defendant allegedly paid a sum of

Rs. 4 ,00,000/- (Rupees Four Lac) in cash to the plaintiffs in the

presence of two witnesses i.e. Shri Rajiv Mangla and Raj Kumar Mittal,

therefore, the defendant urged that he has cleared all the outstanding

payment towards the plaintiffs.

18. It is mentioned by the defendant that when he demanded the return

of the aforesaid two cheques for Rs.50,00,000/- (Rupees Fifty Lac) and

Rs.15,00,000/- (Rupees Fifteen Lac), the plaintiffs did not return those

cheques on the plea that those had been stashed away in certain

important records and were not immediately available and assured the

defendant that the same would be returned immediately on finding the

same.

19. After a couple of demands for such cheques from the plaintiffs

who were putting off the matter on one pretext or the other and since the

cheques were for high denominations, the defendant apprehended some

mischief and reported the matter to his bank and to the local police vide

letter dated 30.05.2005 addressed to the police station Sector-20, Noida,

Distt. Gautam Budh Nagar. Alleging the abovementioned

circumstances, the defendant prayed for an unconditional leave to

defend the suit.

20. The plaintiffs have specifically denied having received cash

payment of Rs. 30,00,000/- (Rupees Thirty Lac) as alleged by the

defendants in his application for leave to defend. Learned counsel for the

plaintiff has argued that no receipt of any cash amount referred by the

defendant has been placed on record.

21. It is denied by the plaintiffs that the defendant had handed over a

cheque for Rs.10,00,000/- (Rupees Ten Lac) to them vide cheque

No.104391 dated 10.4.2005 to help them to tide over their financial

difficulties. It is stated that the said payment was made by cheque to the

plaintiffs against the purchase of house-hold items.

22. The learned counsel for the plaintiffs has specifically denied the

fact that there was no commercial transaction and the suit filed by the

plaintiffs under Order XXXVII of the Code is not maintainable. It is

contended by the learned counsel for the plaintiffs that the said

cheques issued by the defendant as security against the loan amount

are to be invested by the defendant in his proprietorship firm, which

were never paid back by the defendant to the plaintiffs. Therefore, the

plaintiffs, on the basis of the cheques issued by the defendant and in

order to recover the balance amount of Rs.45,00,000/- (Rupees Forty

Five Lac) filed the suit.

23. As far as the evidence filed by the parties is concerned, it is clear

from the record that the plaintiffs have filed two original cheques one

bearing No.284648 dated 7th April, 2005 for Rs.50,00,000/- (Rupees

Fifty Lac) drawn on Corporation Bank, Noida and other bearing

No.401389 dated 11th April, 2005 for Rs.15,00,000/- (Rupees Fifteen

Lac) drawn on Corporation Bank, Noida issued by M/s.Gasoline, a

proprietorship of the defendant in favour of the plaintiff. The plaintiff

has also filed a Photostat copy of the Passbook in order to show that

during the period 6th April, 2005 to 10th April, 2005 Rs.60,00,000/-

(Rupees Sixty Lac) have been credited in the name of M/s.Gasoline.

The statement of account for the period 1.4.2005 to 30.4.2005 has also

been filed by the plaintiff.

24. On the other hand, the defendant has filed copy of the statement of

account as well as the bank certificate issued in the name of Mrs.

Poonam Bansal and Mr.Vivek Bansal certifying that the cheques of

Rs.60,00,000/- (Rupees Sixty Lac) have been debited from the account

of the defendant in saving bank Account No.29141 during the period

6.4.2005 to 10.4.2005. No other documents pertaining to the transaction

have been filed by the defendant except the Photostat copies of the

earlier litigation between Sarabjit Singh and the plaintiff in Suit No.

669/2005.

25. After hearing the rival contentions of the parties and giving my

thoughtful consideration, I am of the view that plaintiffs are not entitled

for a decree as claimed straightaway as there exist certain grounds in the

application for leave to defend which requires trial. But at the same

time, as far as the contention of the defendant about the payment of

Rs.30,00,000/- (Rupees Thirty Lac) in cash is concerned, it appears

prima facie that the said defence raised by the defendant is unreliable as

no evidence in support of it has been produced. Therefore, the defendant

is entitled to conditional leave to defend.

28. In the interest of justice, equity and fair play, I direct that the leave

to defend is granted to the defendant to defend the suit subject to the

condition of depositing Rs.30,00,000/- (Rupees Thirty Lac) by the

defendant within a period of four weeks from today with the Registrar

General of this court who shall keep the said amount in a Fixed Deposit

initially for a period of two years.

29. The written statement be filed by the defendants within six weeks

from today. Replication thereto be filed within four weeks thereafter.

The documents relied shall also be filed by the parties. List the matter

before the Joint Registrar on 3rd February, 2010 for admission/denial of

the documents.

MANMOHAN SINGH, J

OCTOBER 20, 2009 SD