Delhi High Court
Manjeet Singh Kohli vs M/S.Anant Raj Agencies Pvt. Ltd. on 5 August, 2015
Author: Pradeep Nandrajog
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: August 05, 2014
+ RFA (OS) 39/2015
MANJEET SINGH KOHLI .....Appellant
Represented by: Mr.Gurbaksh Singh, Advocate
with Ms.Richa Samlita, Advocate
versus
M/S. ANANT RAJ AGENCIES PVT. LTD. .....Respondent
Represented by: Ms.Biji Rajesh, Advocate with
Mr.Rajeev Yadav, Advocate
CORAM:
HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
PRADEEP NANDRAJOG, J. (Oral)
CM No.5713/2015
1. Though no convincing grounds have been pleaded for delay of
1864 days in filing the appeal to be condoned, we do so for the reason the
appellant has suffered an ex-parte decree.
2. The application is allowed.
3. Delay in filing the appeal is condoned.
RFA (OS) No.39/2015
1. Mediation has failed.
2. We have heard learned counsel for the parties and have perused the
record of the suit.
3. The respondent filed a suit for recovery of `28,80,000/- (Rupees
Twenty Eight Lacs and Eighty Thousand only). The appellant and one
Sh.Harmeet Singh Vohra were impleaded as defendant No.1 and
defendant No.2 respectively. As per the plaint, the two defendants
represented that they were the owners of land detailed in paragraph 2 of
the plaint and agreed to sell the same to the plaintiff for `65,00,00,000/-
(Rupees Sixty Five Crores only). On November 11, 2004 an agreement
to sell was executed and as recorded therein the appellant and Harmeet
Singh Vohra received `11,00,000/- (Rupees Eleven Lacs only) each vide
cheque bearing No.452677 and 452678 in their respective names and
additionally received `2,00,000/- (Rupees Two Lacs only) in cash and
said fact was mentioned in the agreement to sell. It was pleaded that the
defendants failed to obtain the necessary permissions which were
required for sale-deed to be executed. It was pleaded that the plaintiff
revoked the agreement to sell under the circumstances and vide notice
dated June 04, 2005 called upon the defendants to return `24,00,000/-
(Rupees Twenty Four Lacs only) received by them together with interest
@ 24% per annum. Pleading that the defendants did not return the
money the suit was instituted to recover `24,00,000/- (Rupees Twenty
Four Lacs only) paid to the two defendants and pre-suit interest in sum of
`4,80,000/- (Rupees Four Lacs and Eighty Thousand only).
4. Though instituted as a suit under Order XXXVII of the Code of
Civil Procedure, the suit was registered as an ordinary suit. The
defendants evaded service and with great difficulty the appellant who was
impleaded as defendant No.1 was served for October 12, 2007 and so was
his co-defendant. Service was effected on both on October 05, 2007.
None of them appeared and thus were proceeded against ex-parte. The
plaintiff led ex-parte evidence and proved Ex.PW-1/1 being the resolution
by the Board of Directors authorizing Anil Sareen and Mr.Pankaj Nakra,
Board Directors of the company to institute the suit and sign and verified
the pleadings. The agreement to sell was proved as Ex.PW-1/2. Ex.PW-
1/4 was the bank statement of account of the plaintiff showing
encashment of the two cheques given to the two defendants. Ex.PW-1/5
was the legal notice dated June 04, 2005 and Ex.PW-1/6 collectively
were the two postal receipts under which the legal notice was sent.
5. Testimony of the witness of the plaintiff given on oath not being
challenged, vide impugned decree dated December 22, 2009 the suit was
decreed but pendente lite interest and future interest was restricted to 9%
per annum.
6. Appellant filed an application under Order IX Rule 13 of the Code
of Civil Procedure for setting aside the ex-parte decree, which was
dismissed on February 09, 2015. Thereafter, instant appeal was filed in
March, 2015 challenging the decree dated December 22, 2009.
7. At the outset we must note that the appeal is liable to be dismissed
on account of the appellant not impleading the co-defendant Sh.Harmeet
Singh Vohra as a respondent in the appeal for the reason learned counsel
for the appellant is challenging a decree which fastens joint liability on
the two; apart from the liability in severalty and the argument of the
appellant is that since he received `11,00,000/- (Rupees Eleven Lacs
only) by cheque and `1,00,000/- (Rupees One Lac only) in cash, and so
did his co-defendant, the liability of each would be to pay `12,00,000/-
(Rupees Twelve Lacs only) with interest.
8. But we overlook said defect for the reason the only worthwhile
argument advanced is as aforenoted and we find no merit in the argument
because the appellant does not dispute that he and Harmeet Singh Vohra
were the joint owners of the land in respect of which they had agreed to
sell the land for a consideration of `65,00,00,000/- (Rupees Sixty Five
Crores only) and had received `24,00,000/- (Rupees Twenty Four Lacs
only); albeit `12,00,000/- (Rupees Twelve Lacs only) each. There being
jointness in the liability to sell the land and `24,00,000/- (Rupees Twenty
Four Lacs only) were received as part sale consideration to jointly sell the
land, the liability to refund the part sale consideration received on being
proved to be in default would be joint.
9. At this stage counsel argues another point. Counsel points out that
his client has not signed the agreement to sell Ex.PW-1/2.
10. A perusal of Ex.PW-1/2 would show that after it was scribed, for
some reasons unknown the appellant's signatures were not obtained
thereon.
11. But, the witness of the plaintiff has deposed that both joint owners
had agreed to sell the land and had received `11,00,000/- (Rupees Eleven
Lacs only) each by two cheques and `2,00,000/- (Rupees Two Lacs only)
in cash and since the appellant and his co-defendant did not cross-
examine the witness of the plaintiff, said testimony having gone
unchallenged would require the Court to hold that there was indeed an
agreement to sell between the parties. Besides, an acceptance of a written
offer by parole can be proved. That apart, in the appeal the appellant
admits having received `11,00,000/- (Rupees Eleven Lacs only) by
cheque and has not denied having received `1,00,000/- (Rupees One Lac
only) in cash. The appellant has not explained as to under what
transaction he received the said amount. As per the appellant he gave the
money to his co-owner Harmeet Singh Vohra.
12. There is thus no merit in the appeal which is dismissed but without
any order as to costs.
CM No.5712/2015
Dismissed as infructuous.
(PRADEEP NANDRAJOG)
JUDGE
(MUKTA GUPTA)
JUDGE
AUGUST 05, 2015
mamta
