Goodwill Appartments Pvt Ltd vs Spml Infra Ltd & Anr
2013 Latest Caselaw 4162 Del

        THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 13.09.2013

+       FAO(OS) 415/2013
        GOODWILL APPARTMENTS PVT LTD                           ..... Appellant

                      Versus


        SPML INFRA LTD & ANR                                   ..... Respondents

Advocates who appeared in this case:
For the Appellant            :         Mr L.M Asthana, Mr Siddhant Asthana and
                                       Mr P.R Singh.

For the Respondents          :         None

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE VIBHU BAKHRU

                                   JUDGMENT

BADAR DURREZ AHMED, J (ORAL) CM No. 14358/2013

The exemption is allowed subject to all just exceptions.

FAO(OS) 415/2013 & CM No. 14357/2013

1. This appeal is directed against the order dated 05.08.2013 passed by a learned Single Judge of this court in IA No. 4562/2013. That application was filed by the respondents / defendants seeking leave to defend inasmuch as the appellants / plaintiffs had filed the suit (CS(OS) No. 3287/2012)

under Order XXXVII CPC. The basis of the suit are four cheques each of the value of Rs 50 lakhs which have been referred to in the impugned order. The total value of the recovery sought in the suit is Rs 3.05 crores which obviously includes the value of the said four cheques along with the interest thereon.

2. The learned Single Judge noted that all the said cheques were apparently dated 20.10.2009, 20.11.2009, 20.12.2009 and 20.01.2010. It has been alleged by the plaintiffs that the cheques were provided by the respondents / defendants as consideration for the consultancy services provided by the appellants / plaintiffs to the respondents / defendants. This has of course been controverted in the leave to defend application filed on behalf of the respondents / defendants. In the leave to defend application, the respondents / defendants had set up the defence that the plaintiffs had represented that they were the owners of the property bearing No. E-82, Greater Kailash - I, New Delhi. It was claimed that the said property was a three storeyed building along with the basement and each level had a carpet area of 2,700 sq. feet. Furthermore, the defendants claimed that the plaintiffs had represented that the said property was situated on a plot measuring 500 sq. yards and the parties had agreed for sale of the said property by the appellants / plaintiffs to the respondents / defendants for a sale consideration of about Rs 20 crores. The case of the respondents / defendants is that a proposal was discussed with the plaintiffs, and particularly, between plaintiff No. 2 and defendant No. 2 in April 2009 when the four cheques which according to the defendants were post dated were issued to the appellants / plaintiffs as token amounts on the

understanding that the plaintiff No. 2 would provide the title deed and other related documents of the said property to the defendants within six months for necessary title search and verification. However, plaintiff No. 2 failed to provide the necessary documents and accordingly on 15.10.2009, stop payment instructions were issued in respect of the four cheques by the respondents / defendants to their bank.

3. The learned Single Judge after having examined the claims of the plaintiffs and the claims of the defendants as reflected in the leave to defend application, came to the conclusion that there were several triable issues. This conclusion was based on several factors, one of them being that the plaintiffs had not produced any document to show that they had provided consultancy services to the defendants. Even the legal notice sent after dishonour of the cheques in October and November, 2009 was issued only in August, 2012 and apart from this there was no other correspondence between the parties. It is in these circumstances that the learned Single Judge came to the conclusion that triable issues had been raised by the defendants in their leave to defend application. Consequently, the learned Single Judge allowed the application and granted unconditional leave to defend. We are of the view that once the learned Single Judge came to the conclusion that triable issues had been raised, there was nothing wrong in the learned Single Judge allowing the application for leave to defend without any condition. This is in conformity with the decision of the Supreme Court in Mechalec Engineers and Manufacturers v. Basic Equipment Corporation: 1976 4 SCC 687. In that decision the Supreme Court approved a decision of the Calcutta High Court in S. Kiranmoyee

Dassi v. Dr J. Chatterjee: AIR 1949 Calcutta 479 wherein it was observed that if the defendant raises a triable issue indicating that he has a fair or bona-fide or reasonable defence although not a positively good defence, the plaintiff is not entitled to a signed judgment and the defendant is entitled to unconditional leave to defend. We find that the present case falls in that category and therefore, there was nothing wrong in the learned Single Judge in allowing the leave to defend application without any condition.

4. In view of the foregoing, the appeal is dismissed. There shall be no order as to costs.

BADAR DURREZ AHMED, J

VIBHU BAKHRU, J SEPTEMBER 13, 2013 SU