Joginder Khurana vs Rajinder Bhatia
2015 Latest Caselaw 5864 Del

$~20.

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        CS(OS) 2978/2012

                                            Date of Decision: 12.08.2015

IN THE MATTER OF
JOGINDER KHURANA                                     .... Plaintiff
                         Through : Mr. Rohit Sharma, Advocate

                         versus

RAJINDER BHATIA                                          ....Defendant
                         Through : None


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

1. The plaintiff has filed the present summary suit under Order

XXXVII of the Code of Civil Procedure, praying inter alia that a decree

for recovery of a sum of `1,50,75,000/- be passed against the

defendant along with pendente lite and future interest @ 18% p.a.

2. Before considering the submission made by learned counsel for

the plaintiff, it is considered necessary to recapitulate the brief facts of

the case as averred in the plaint. The plaintiff has averred that the

defendant had contacted him at his Rohini address in Delhi, expressing

his willingness to sell four plots of land bearing Nos.63,64, 66 and 67,

situated at VGD Nagar, Bhuneshwar Nagar, Velachery, Chennai. As

the plaintiff had evinced interest in purchasing the said plots of land,

the parties had entered into an agreement whereunder, they had

agreed that the defendant will sell the subject plots to the plaintiff for

a total sale consideration of `1,50,00,000/- . The Receipt/Agreement

to Sell was executed by the defendant on 19.4.2011 wherein, he had

confirmed having received the earnest money of `1,00,00,000/-

(`30,00,000/- through RTGS in February 2011, `10,00,000/- through

RTGS on 19.4.2011 and cash of `60,00,00,000/- on 19.4.2011). The

defendant had also agreed that before the sale deed is executed, he

shall get all necessary clearances from the Government authorities

and he shall also free the subject plots from all encumbrances. It was

recorded in the Receipt/Agreement to Sell that the balance sale

consideration shall be paid by the plaintiff on or before 30.6.2011.

3. It is averred in the plaint that as per the understanding with the

defendant, the plaintiff had written to him on 24.6.2011, informing

him that the balance sale consideration is ready and the sale deed in

respect of the subject plots be executed in his favour on or before the

agreed date, i.e., 30.6.2011. However, on 27.6.2011, the defendant

had visited the plaintiff at his residence in Delhi and admitted to the

fact that he was not the owner of the subject plots and therefore, the

deal could not be materialized. The defendant had then proceeded to

issue a cheque dated 29.9.2011, drawn on Punjab National Bank,

Anna Nagar, Chennai in favour of the plaintiff for a sum of

`1,50,00,000/- towards the earnest money for a sum of

`1,00,00,000/- received by him from the plaintiff at the time of

executing the Agreement for Sale along with a sum of `50,00,000/-,

as penalty.

4. When the plaintiff presented the aforesaid cheque issued by the

defendant to his bankers, namely, Vijaya Bank, Rohini Branch, the

same was returned vide memo dated 29.9.2011, stating inter alia that

the drawer had insufficient funds in his account. Aggrieved by the

dishonour of the cheque, the plaintiff had to serve a legal notice dated

19.10.2011 on the defendant calling upon him to pay a sum of

`1,50,00,000/-, being the value of the dishonoured cheque within 15

days, failing which, he would be constrained to file a criminal

complaint under Section 138 of the Negotiable Instruments Act. The

said notice was dispatched to the defendant by registered AD post and

courier and duly served through courier, on 25.10.2011. However, the

defendant did not reply to the said notice.

5. Learned counsel for the plaintiff submits that having failed to

receive any response from the defendant, his client was compelled to

file a complaint case against him under Section 138 of the Negotiable

Instruments Act, in the court of the learned MM, Rohini, registered as

CC No.15194/01/11, on which summons were issued to the defendant

vide order dated 3.12.2011. He submits that after service, the

defendant had appeared on a couple of dates whereafter, he had

abruptly stopped appearing and non-bailable warrants had to be

issued against him, which are pending service.

6. The plaintiff has averred that before filing the present suit, he

had served a legal notice dated 10.4.2011 on the defendant intimating

him about the pendency of the criminal complaint and calling upon him

to pay the value of the dishonoured cheque, i.e, a sum of

`1,50,00,000/- along with interest @ 12% p.a. The aforesaid legal

notice was dispatched to the defendant by registered AD post and

courier. The registered AD card shows proof of receipt of notice by the

defendant on 16.4.2012. The tracking report of the notice despatched

to the defendant through courier, has also been filed by the plaintiff.

Based on the aforesaid averments, counsel for the plaintiff states that

his client is entitled to recover a sum of `1,50,00,000/- from the

defendant along with interest thereon calculated @ 18% p.a., till

realisation.

7. A perusal of the file reveals that summons were issued in the

suit on 28.9.2012, returnable on 21.1.2013. The defendant was

served with the summons through ordinary process on 12.12.2012.

The prescribed period of 10 days for filing the memo of appearance, if

reckoned from 13.12.2012, would have expired on 23.12.2012. Since

23.12.2012 was the first holiday after the High Court had closed for

the winter vacations, the defendant ought to have filed the memo of

appearance on the court reopening on 2.1.2013. However, he failed

to take necessary steps in that regard. Nor was a memo of

appearance filed even thereafter. On 13.9.2013, learned counsel for

the plaintiff had stated before the Joint Registrar that he had received

an advance copy of an application, described as a leave to defend

application, but no such application was found to be on the record, nor

had the defendant appeared directly or through counsel to offer for

any explanation. The position remains the same till date. The leave

to defend application purportedly filed by the defendant, is not on

record. Counsel for the plaintiff states that while the index of the

advance copy of the leave to defend application furnished to him

mentions that the same is running into 10 pages, only four pages were

served on him. In any case, the defendant has not taken any steps to

file the memo of appearance, nor has any application been filed for

seeking condonation of delay. Resultantly, summons of judgment

could not be issued in the suit and therefore, the question of filing the

leave to defend application or taking it on record, does not arise.

8. Counsel for the plaintiff states that he has filed the certified

copies of the documents relied upon by him under index dated

31.8.2012. The originals thereof are stated to have been filed before

the learned MM, Rohini Courts, in CC No.15194/01/11 that is pending

adjudication. The certified copies of the documents filed by the

plaintiff include a copy of the Agreement to Sell dated 3.12.2011

executed by the defendant in respect of the four plots in question

wherein, he had acknowledged having received a sum of `30,00,000/-

from the plaintiff in February 2011 through RTGS, another sum of

`10,00,000/- through RTGS on 19.4.2011 and a cash amount of

`60,00,000/-, on 19.4.2011. The statement of account maintained by

the plaintiff with Vijaya Bank, Rohini Branch shows two RTGS entries

and mentions the defendant as the beneficiary for `30,00,000/- on

20.2.2011 and of `10,00,000/- on 19.4.2011. Plaintiff has filed a

photocopy of the cheque dated 29.9.2011 issued by the defendant in

his favour for a sum of `1,50,00,000/- drawn on Punjab National

Bank, Anna Nagar, Chennai along with the return memo issued by the

plaintiff's bankers, Vijaya Bank, Rohini Branch indicating that the

captioned cheque had been dishonoured on account of insufficient

funds. Apart from the aforesaid documents, the plaintiff has filed

copies of the legal notices dated 19.10.2011 and 10.4.2012

despatched to the defendant, duly accompanied by the proof of

delivery on him. Copy of the complaint dated 15.10.2011 filed by the

plaintiff against the defendant with the SHO, PS Prashant Vihar and

copies of the proceedings before the learned MM, Rohini Courts arising

out of CC No.15194/01/11 have been filed with the list of documents.

9. After being served with the summons in the suit in the

prescribed format, the defendant has failed to enter appearance or file

his memo of appearance. As a result, the averments made in plaint

have remained uncontested and are deemed to be true and correct.

In view of the averments made in the plaint, the documents placed on

record and the submissions made by the learned counsel for the

plaintiff, the present suit is decreed in favour of the plaintiff and

against the defendant for a sum of `1,50,00,000/-. As for the interest

claimed by the plaintiff on the cheque amount, it has been noticed that

in the legal notice dated 10.4.2012, issued by the plaintiff, he had

demanded interest @ 12% p.a. which is found to be reasonable. It is

ordered that if the defendant pays the decretal amount to the plaintiff

within three months from today, then the interest payable on the

principal amount will be maintained @ 12% p.a., failing which the

interest payable shall be raised to 18% per annum, till realization. The

plaintiff is also awarded costs of the suit.

10. Decree sheet be drawn accordingly.

11. The suit is disposed of.

HIMA KOHLI, J AUGUST 12, 2015 mk/ap