Harjinder Pal Singh vs Ravinder Singh Anand
2013 Latest Caselaw 1237 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Date of decision: 13th March, 2013

+                            CS(OS) No.2537/2010

       HARJINDER PAL SINGH                                .....   Plaintiff
                   Through:             Mr. Rajat Aneja, Adv.

                                    Versus

       RAVINDER SINGH ANAND                  ..... Defendant
                    Through: Mr. B.S. Randhawa, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

IA No.18966/2011 (of the defendant u/O 37 Rule 4 CPC), IA
No.9638/2012 (of the plaintiff u/O 39 R-1&2 CPC) & IA No.21440/2012
(for stay of decree)

1.

The plaintiff had instituted this suit under Order 37 of the CPC for recovery of Rs.55,20,000/- on the basis of two dishonoured cheques of Rs.27,00,000/- each. It was the case of the plaintiff in the plaint (i) that the defendant had agreed to sell his undivided one-half share of private flat No.G-1, measuring 3000 sq. ft. super area, built on the Ground Floor with Basement (towards property No.F-11) in the built up property No.F-10, Rajouri Garden, New Delhi to the plaintiff vide Agreement to Sell dated 19.03.2009 for a sale consideration of Rs.80,00,000/-; (ii) that the plaintiff paid Rs.27,00,000/- to the defendant as earnest money; (iii) that though the plaintiff was ready and willing to perform his part of the Agreement but the

defendant failed to perform his part; (iv) that it was a term of the Agreement to Sell that upon such default by the defendant, he would be liable to pay double of the amount of earnest money i.e. Rs.54,00,000/- to the plaintiff;

(v) that the defendant handed over the said two cheques for Rs.27,00,000/- each in discharge of his said obligation and which were returned dishonoured for "insufficiency of funds" in the account of the defendant.

2. Summons for appearance were issued to the defendant and were served on the defendant on 09.01.2011; neither any appearance nor any Vakalatnama was filed on behalf of the defendant; when the suit was listed before the Joint Registrar on 21.02.2011, the counsel for the plaintiff informed of receipt of a letter from Kulbhushan Mehta & Co., Advocates stating that appearance had been filed; however since neither any appearance nor any Vakalatnama in favour of Kulbhushan Mehta & Co., Advocates was on record, a notice was directed to be issued to the said Advocates; thereafter, Vakalatnama in favour of Mr. B.S. Randhawa, Ms. Pukhraj and Mr. Atul Verma, Advocates was filed on 18.10.2011 and Ms. Pukhraj, Advocate appeared before this Court on 02.11.2011.

3. This Court vide order dated 02.11.2011, finding that no appearance on behalf of the defendant had been filed within the prescribed time and the Vakalatnama in favour of Mr. B.S. Randhawa, Ms. Pukhraj and Mr. Atul Verma, Advocates was filed more than nine months after receipt of summons by the defendant, decreed the suit for recovery of Rs.55,20,000/- with costs, pendente lite and future interest at the rate of 6% per annum.

4. It was thereafter that this application under Order 37 Rule 4 CPC was filed on 22.11.2011 stating (i) that the defendant upon receipt of summons on 09.01.2011 had contacted Kulbhushan Mehta & Co., Advocates and the said Advocates had prepared an application for appearance with supporting affidavit verified on 13.01.2011 and told the defendant that his appearance will be filed within time; (ii) that the defendant believed his advocate; (iii) that the summons for judgment were not served upon the defendant for a long; (iv) that the defendant thereafter contacted the present counsel who inspected the file and which revealed that the appearance was not on record;

(v) that the defendant had filed a complaint against Kulbhushan Mehta & Co., Advocates to the Chairman, Delhi Bar Council; (vi) that there exist special circumstances to set aside the decree as the defendant had contacted Kulbhushan Mehta & Co., Advocates well in time and the defendant should not allowed to suffer for omission of the said advocate; (vii) that the plaintiff after giving loan cheque for Rs.10,00,000/- to the defendant made demand for interest at 18% per annum and the defendant had handed over cheques for Rs.48,000/-, Rs.45,000/- and Rs.3,000/- towards interest for three months and towards principal; (viii) that the Agreement to Sell was intended to secure the loan given by the plaintiff to the defendant; (ix) that no cash had been given by the plaintiff to the defendant; (x) that the defendant never intended to dispose of his share in property No.F-10, ground floor with basement, Rajouri Garden, New Delhi.

5. The plaintiff along with the application aforesaid filed copy of a complaint dated 17.11.2011 made to the Chairman, Delhi Bar Council against Kulbhushan Mehta & Co., Advocates and statement of his bank

account to show debit of the cheques for Rs.48,000/-, Rs.45,000/- and Rs.3,000/- in his account.

6. The plaintiff has contested the application by filing a reply pleading that the plaintiff had also filed a complaint of offence under Section 138 of Negotiable Instruments Act, 1881 (NI Act) against the defendant and the defendant is absconding and that the application did not disclose any sufficient ground for setting aside the decree. It is highlighted that the defendant in the said application has not denied the execution of the Agreement to Sell and the receipts and / or the issuance of the two cheques of Rs.27,00,000/- lacs each. The plaintiff has explained that the cheques for Rs.48,000/-, Rs.45,000/- and Rs.3,000/- were with respect to a separate transaction and has denied that the defendant did not intend to sell his property aforesaid to the plaintiff.

7. The defendant has filed a rejoinder but nothing new is stated therein.

8. The counsel for the defendant commenced the hearing by stating that the defendant is willing to, in terms of the Agreement to Sell, sell his property to the plaintiff. Though the counsel for the plaintiff after obtaining instructions expressed readiness but the counsel for the defendant thereafter stated that the Agreement is only for sale of half of the ground floor and basement in possession of the defendant and not for the entire.

9. The counsel for the plaintiff controverted stating that the said ground floor and basement, in the Sale Deed in favour of the defendant also is similarly described. The counsel for the defendant rejoined by stating that besides the Sale Deed on which the plaintiff is relying, there is another Sale

Deed also for the remaining half but expressed difficulty in producing the same as the defendant is absconding.

10. In the circumstances, no settlement was possible and the counsels have been heard on merits.

11. Though in the earlier era the litigants were not burdened with the mistakes of their advocates but finding that the advocate‟s name was being used to cover their own defaults, the test in that regard has been made stringent. The defendant though has paid lip service to the said test by pleading having complained against the advocate engaged by him and who is alleged to have defaulted in entering appearance but on enquiry from the counsel now appearing for the defendant as to what has happened in the said complaint, the counsel states that the defendant has not taken any steps after filing the same. The complaint is dated 17.11.2011. More than one year has elapsed; if the defendant had felt aggrieved from the action of the advocate, the defendant would not have remained quiet and would have pursued the complaint. Moreover, there is nothing at all to show that the defendant in fact had engaged the said advocate or that the said advocate had meted out any assurance as claimed, to the defendant. There is not even an averment of the payment of any fee by the defendant to the said advocate, lest any proof thereof. Though the defendant claims that an affidavit in support of appearance was sworn but no copy thereof has been filed. No effort has been made to produce copy of any entry in the register required to be maintained by the Oath Commissioner before whom the affidavit may have been sworn, to show that such affidavit was indeed sworn.

12. The conduct of the defendant thereafter also is not in consonance with the normal human behaviour. Had the defendant engaged M/s Kulbhushan Mehta & Co. Advocates, the defendant, upon non receipt of summons for judgment would have contacted the same advocate and not a different advocate. It is not even the plea of the defendant that the defendant contacted the said advocate. In fact there is nothing even to show that any such advocate even exists.

13. No fault can therefore be found in the procedure leading to the decree which is sought to be set aside.

14. There is another significant fact. The suit as aforesaid was decreed on 02.11.2011 in the presence of the counsel for the defendant. The application under Order 37 Rule 4 of the CPC as aforesaid was filed on 22.11.2011 i.e. after 20 days. Order 37 of the CPC provides for time of 10 days for filing the leave to defend. The defendant ought to have filed the application under Order 37 Rule 4 of the CPC at least within 10 days of the decree dated 02.11.2011 passed in the presence of the counsel for the defendant.

15. I also do not find the application of the defendant to be disclosing any ground for leave to defend. As highlighted by the plaintiff in his reply, the defendant has not controverted the issuance of the two cheques of Rs.27,00,000/- each on which the suit is based or the execution of the Agreement to Sell. Though in the application, receipt only of Rs.10,00,000/- by cheque from the plaintiff is admitted but the counsel for the defendant during the hearing did not deny receipt of Rs.27,00,000/- from the plaintiff and rather argued that the defendant was willing to refund the same with

interest. However upon being asked whether the defendant was willing to deposit the said amount in this Court, the counsel contended that the defendant will be able to pay the same only after selling the property and which he should be allowed to sell by vacating the interim order restraining the defendant from doing so in this proceeding. He further stated that the defendant has no other means to pay the amount.

16. There is another aspect of the matter, this Court vide order dated 03.08.2012 had directed personal presence of the defendant. The defendant failed to appear and it was informed that he had been declared as a Proclaimed Offender. The defendant cannot, in one proceeding before the Court be declared as a Proclaimed Offender and be permitted to contest the proceedings in another Court and thereby so abuse the process of the Court.

17. I therefore do not find any merit in the application under Order 37 Rule 4 CPC and accordingly dismiss the same. Axiomatically, the application of the defendant for stay of the decree is also dismissed. The plaintiff has applied for execution of the decree. The orders restraining the defendant from dealing with the property to continue during the pendency of execution proceedings.

18. However in the circumstances, no costs.

RAJIV SAHAI ENDLAW, J MARCH 13, 2013 „gsr‟..