Jsl Media Ltd vs Metro Communications
2014 Latest Caselaw 5204 Del

$~19.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+        CS(OS) 2033/2012
%                                          Judgment dated 16.10.2014
         JSL MEDIA LTD                                ..... Plaintiff
                  Through:            Mr. Abhimanyu Bhandari and Ms. Aanchal
                                      Mullick, Advs.

                             versus

         METRO COMMUNICATIONS                      ..... Defendant
                 Through: Mr. J.P. Sengh, Sr. Advocate with Mr. Vivek
                          Tandon and Mr. Summet Batra, Advs.

         CORAM:
            HON'BLE MR. JUSTICE G.S.SISTANI

G.S. SISTANI, J (ORAL)
I.A.17132/2013
    1.

Plaintiff has filed the present suit for recovery of Rs.1,55,00,000/-

(Rupees One Crore Fifty Five Lacs only) along with cost and interest @24% under the provisions of Order XXXVII of the Code of Civil Procedure.

2. As per the amended plaint, the plaintiff has various Bus Queue Shelters (hereinafter referred to as "BQS") which the plaintiff gainfully uses for displaying advertisements. Various purchase orders were placed by the defendant with the plaintiff for display of advertisements at various BQS. The purchase orders were signed by the parties, copies of which have been placed on record.

3. It is the case of the plaintiff that bills were raised against purchase orders placed by the defendant but defendant failed to make payments. Twenty seven purchase orders were executed between 31.01.2009 and 02.06.2009. Legal notice dated 05.01.2012 was issued calling upon the

defendant to pay a sum of Rs.1,55,00,000/- failing which the defendant would be liable to pay interest @24% per annum.

4. Leave to defend is sought primarily on the ground that the parties entered into an amicable settlement by which the defendant agreed to hand over various properties in lieu of the outstanding amount of Rs.1,55,00,000/-. It is also the case of the defendant that in furtherance of the settlement, various documents were executed in favour of the plaintiff by which the title of the properties were transferred in favour of the plaintiff (which fact is disputed by the plaintiff).

5. Mr. J.P. Sengh, learned senior counsel appearing for the defendant submits that the defendant is entitled to unconditional leave to defend as the plaintiff has suppressed the settlement agreement dated 09.09.2010. Leave is also sought on the ground that once the parties had entered into a settlement, the purchase orders would be of no relevance and cannot be the basis of filing the present suit under Order XXXVII of Code of Civil Procedure.

6. It is the stand taken by the plaintiff at this stage that the plaintiff has been tricked by the defendant into signing the settlement agreement as the properties which have been handed over are of negligible value in comparison to the value assessed by the defendant.

7. It is also the stand of the plaintiff that when the plaintiff visited the properties they were shocked to see the condition of the properties thus the settlement agreement cannot be relied upon. Counsel for the plaintiff further submits that the settlement agreement relied upon by the defendant admits and acknowledges that defendant is liable to pay Rs.1.55 crore and thus the defendant should be granted conditional leave and be called upon to deposit this amount. To the contrary Mr. J.P. Sengh, learned senior counsel for the defendant submits that since the present suit is not based

on the settlement agreement and since the plaintiff disputes the settlement agreement, he cannot on one hand negate the terms of the settlement of the agreement and on the other hand derive the benefit of the same especially when this settlement was withheld and suppressed from this Court when the suit was instituted. Learned counsel for the defendant submits that he has been able to raise a triable issue and a strong plausible bona fide defence.

8. I have heard the learned counsel for the parties. It is now in dispute that when the plaintiff filed the present suit, no reference was made to settlement agreement. However, when the plaint was amended a reference was made to a settlement agreement. Paragraph 11 of the amended plaint reads as under:

"The plaintiff verbally replied to the letter dated 21.10.2011 thereby denying the contention of the defendant of transferring the properties in lieu of the outstanding payments. No settlement of whatsoever nature was ever entered into between the plaintiff and the defendant regarding the transfer of properties, as the properties did not belong to the defendant but were in name of some third party. No property of whatsoever nature was ever received by the plaintiff from the defendant in lieu of the pending/outstanding bills. As a matter of fact the plaintiff only received the letter dated 9.9.2010 only in October 2011 along with the letter dated 21.10.2011. In fact no such letter dated 9.9.2010 was ever counter signed by the plaintiff."

9. The short question which arises for consideration is whether the defendant has been able to raise triable issues in the application for leave to defend. The Court also has to consider as to whether the defence raised by the defendant is bona fide or whether it is sham or moonshine. Reading of the original plaint which has been filed would show that the plaintiff did not refer to any settlement arrived between the plaintiff and the defendant. In the amended plaint as well the plaintiff has not admitted that the

settlement agreement was signed by the parties but stated that a copy of the settlement letter of 9.9.2010 was received in the month of October, 2010. The documents placed on record by the defendant reveals a slightly different story. The defendant has placed on record the account reconciliation held between the parties which bears the signatures of one of the employees of the plaintiff which is undated. The documents also show that the letter of 9.9.2010 was issued by the plaintiff to the defendant. The letter dated 9.9.2010 reads as under:

"Letter of Settlement Date: 09.09.2010 To The Director/Business Partner, Parivartan City Infrastructure Ltd.

Jindal Centre, 12, Bhikaji Cama Place, New Delhi-110066 Subject: Transfer of property to parivartan for settlement of dues by Metro Communications

Dear Sir,

We are pleased to inform you that today we, Mr. Anuj Jain, Mr.Harendra, Mr. Piyush Tiwari and me have met at our office and agreed on the followings:

1. We agree that as on 31.08.2010 there is an total outstanding of Rs.1,55,00,000/- (Rupees one crore fifty five lacs only) including service tax & an amount of Rs.18,00,000/- due on LSTL Media Ltd. to be paid to you. The final settle account is enclosed as annexure.

2. However due to certain unavoidable reasons, we are unable to pay the abovementioned outstanding because the firm has not received the payment against the advertisement from the parties and received properties/villa's in barter, and thus we offer you to accept the transfer of the properties (details mentioned herein

below) to you towards your aforesaid outstanding as final settlement:

                   Particulars/location        Area           Amount
                  Villa No.B-107,           115 Yard         21,25,000/-
                   NRI, Lake City
                   Kashipur Road,
                   Ruderpur, UK

                  Villa No.B-120,           115 Yard         21,25,000/-
                   NRI, Lake City
                   Kashipur Road,
                   Ruderpur, UK

                  Villa No.B-111,           115 Yard         21,25,000/-
                   NRI, Lake City
                   Kashipur Road,
                   Ruderpur, UK

                  Villa No.C-103,           200 Yard         35,00,000/-
                   NRI, Lake City
                   Kashipur Road,
                   Ruderpur, UK

                  Villa No.B-105,           115 Yard         21,25,000/-
                   NRI, Lake City
                   Kashipur Road,
                   Ruderpur, UK

                  Villa No.C-113,           200 Yard         35,000/-
                   NRI, Lake City
                   Kashipur Road,
                   Ruderpur, UK
                   Total                                      1,55,00,000/-

3. For the sake of removal of any doubts, ambiguity it is hereby clarified that the transfer of all/any of the property stated above have to takes effect in a reasonable time, if the transfer of the above property does not effect in a reasonable time without any fault of ours in that case we are not liable for any further compensation. However we will provide complete assistance and support in the transfer process.

4. The value of property as agreed/accepted above may further re- valued by you by an independent property valuer/Chartered valuer of good repute. However, the independent valuer is to be nominated by you and we will have no objection whatsoever as to the valuation done by the said independent valuer. This clause is specifically inserted in order to avoid any dispute as to the value of the properties.

5. Further if based on the valuation as stated above it is found that the value of the properties to be transferred/transferred exceeds the amount of your aforesaid outstanding then you shall be liable to refund the excess amount, if any & vice versa.

6. It is submitted that as on today there is no outstanding loan against the above said properties/villa.

7. We would further like to clarify and assure you that these property, is presently in the name of Mr. Vijayant Jaiswal, Partner of Metro Communications and Advert Communications B-9/Model Town- II, New Delhi, Noida and the same was acquired by Metro against their outstanding with the respective builder. Thus, Mr. Vijayant Jaiswal and Advert Communications jointly assures & undertakes:-

That neither Vijayant Jaiswal nor Advert Communications Metro have an objection to such settlement and properties will be transferred to you/Parivartan free from all/any encumbrances.

8. Further it is undertaken and assured that all the above stated properties are free of any claims, charges, liens etc.

9. Further it is clear that after this settlement there is nothing due on metro communication and the account is settle in full.

10.The last signature date shall be deemed as the Effective Date of this settlement which will be in force till the transfer of the properties to Parivartan. The terms of this settlement shall be binding on all the parties.

Yours truly, Rajeev Agrawal, Partner, Metro Communications"

10. Reading of the aforesaid letter shows that the plaintiff has acknowledged the meeting held in the office of the defendant on 9.9.2010. The letter also acknowledges that the plaintiff had agreed for final settlement of Rs.1.55 crore in lieu of six properties in the NRI City Ruderpur. The plaintiff categorically stated in this letter that only after the properties are transferred No Due Certificate would be issued to the defendant. Copy of the agreement has also been placed on record by the defendant to show that the transfer documents were prepared by the plaintiff by Shri Harendra whose name finds mention in the letter of 9.9.2010 as the person authorised by the plaintiff to coordinate with the defendant. The various e-mails placed on record would show that every effort was being made by the parties to give effect to the terms of the settlement. Documents also show that a request was made on behalf of the defendant to the Managing Director of the builders where the property was situated informing them that the defendant had transferred those villas to the plaintiff. The defendant called upon the builder to carry out the necessary transfer in their record and also issue a No Due Certificate. Counsel for the plaintiff submits that the properties allegedly handed over to them are junk properties and are not worth the amount therein.

11. To my mind these issues can only be decided upon the evidence. The defendant has been able to raise triable issues. The defence raised is plausible, bona fide and cannot be termed as sham or moonshine. Accordingly, application is allowed. Defendant is granted unconditional leave to contest the suit.

12. Written statement be filed within 30 days. Replication be filed within 30 days thereafter. Documents be filed within the same period.

13. List this matter before Joint Registrar on 17.12.2014 for admission/denial of documents. List this matter before Court on 08.02.2015.

G.S.SISTANI, J OCTOBER 16, 2014 ns