Vijay Chaudhary vs Uma Khosla
2017 Latest Caselaw 2476 Del

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*IN THE HIGH COURT OF DELHI AT NEW DELHI
+             FAO(OS) No.154/2017 and CAV 485/2017 &
                 CM Nos.18670/2017 - 18672/2017

%                                  Date of decision : 17th May, 2017

       VIJAY CHAUDHARY                               ..... Appellant
                   Through :             Ms. Shikha Khandelwal and
                                         Ms. Ruchika Mittal, Advs.
                          versus

       UMA KHOSLA                                   ..... Respondent
                          Through :      Mr. V.Dabas and
                                         Mr. Ashim Vachcher, Advs.

       CORAM:
       HON'BLE THE ACTING CHIEF JUSTICE
       HON'BLE MR. JUSTICE NAVIN CHAWLA
                          JUDGMENT (ORAL)

GITA MITTAL, ACTING CHIEF JUSTICE CM No.18672/2017 (exemption) Allowed, subject to just exceptions.

The application is disposed of.

Caveat No.485/2017 As the Caveator is represented and has been heard, the caveat stands discharged.

CM No.18671/2017 (delay in refiling)

1. We have heard ld. counsel for the parties on this application.

2. We are satisfied that the appellants have adequately explained the circumstances in which the delay in re-filing this appeal has occasioned. The delay in re-filing the appeal is condoned.

3. The application is disposed of.

FAO(OS) 154/2017 & CM No.18670/2017 (stay)

1. The appellant assails the order dated 15th February, 2017 passed in I.A.No.10473/2015 which was filed by the appellant herein under Order XXXVII Rule 3 (5) of the Code of Civil Procedure praying for leave to defend CS(OS)No.1062/2014, a suit for recovery of `10,06,37,716/- (page 30) with pendente lite and future interest.

2. It is an admitted position that monetary amounts were advanced by the respondent/plaintiff to the appellant with regard to certain property transactions. It is the case of the appellant herein that as the land transaction did not fortify, the parties entered into an agreement dated 18th March, 2011. We are informed that this agreement was placed by the appellant before the ld. Single Judge. The respondent/plaintiff however, has claimed under the agreement dated 18th March, 2011, wherein the respondent is referred to as the first party of the first part and the appellant/defendant as the party of the second part. We extract hereunder the relevant clauses of this agreement: (tick mark portion P 4,5 and 6) "4. That the party of the Second part hereby acknowledges and admits and agrees that the Party of the Second Part is liable to pay a sum of Rs.4,25,00,000/- (Rupees Two Crore twenty-five lac only), inclusive of

interest as on that date. However, since a compromise has been arrived at between the parties hereto, the Party of the First Part has agreed to reduce the rate of interest annual compounded quarterly, which was originally agreed to between the parties and which was liable to be paid by Party of the Second Part, to 15% per annum compounded quarterly.

5. That the Party of the Second Part hereby acknowledges and admits and agrees that the Party of the Second Part is liable to pay, as on 31.12.2010 a sum of Rs.6,27,39,2822.00 (Rupees Six crores twenty seven lakh thirty nine lakh two hundred eighty two only), inclusive of the agreed rate of interest of 15% per annum compounded quarterly as on that date to the Party of the First Part. It has been duly acknowledged by the parties hereto that the said calculation has been arrived at by the parties by adjusting the amounts already paid by the Party of the Second Party to the Party of the First Part.

6. That the Party of the Second Part has agreed to pay the said total outstanding dues of Rs.6,27,39,282.00 (Rupees six crores twenty seven lakh thirty nine lakh two hundred eighty two only) as on 31.12.2010, along with interest @ 15% per annum compounded on a quarterly basis on the said sum, as agreed between the parties within a period of two years commencing from 1 st January, 2011 and on or before the 31st December, 2012."

3. The application for leave to defend was contested by the respondent herein who filed a detailed reply. During the course of hearing on the I.A.No.10473/2015, the appellant on 29 th November, 2016 sought time to place a proposal for settlement which was placed

before the trial court by way of affidavit of January, 2017 wherein also the appellant stated as follows: (page 128A) "2. I say that I had received Rs.84 Lakhs on 17.04.2007, Rs.24 Lakhs on 22.06.2007, Rs.40 Lakhs on 23.07.2007, Rs.50 Lakhs on 17.01.2008 and Rs.40 Lakhs on 20.02.2008, totalling to Rs.2.38 crores from the plaintiff for the purchase of certain land parcels for the plaintiff.

xxx xxx xxx

4. I say that I am ready and willing to pay the amount received from the plaintiff for the purchase of land parcels on her behalf after deducting the amount which was paid by me to the Defendant which comes to (Rs.2.38 crores- 30 lakhs) Rs.2.08 Crores (Rupess Two Crores Eight Lakhs Only)"

4. The schedule which envisage payment of the said amount to be made up till 31st December, 2019 was enclosed. No timeline was indicated within which the amount would be paid and the appellant remained evasive when queried about the manner in which the payment, which was undertaken to be made, would be made.

5. The demeanour of the appellant has been noted by the ld. Single Judge in the judgment. We extract hereunder the relevant portion thereof:

"In the affidavit thus filed, there is no indication as to the timeline within which the defendant is ready and willing to pay the said amount of money. On this issue being raised, and the counsel for the defendant being asked to clarify, she was totally evasive, her response being that the defendant expects receipt of some monies by March-April of this year whereafter he would be agreeable to pay the

above-mentioned amount by instalments. On being repeatedly asked to specify the amount of instalments, their number and the specific timelines, the defendant who is present in person and his counsel would not come with any clear response. The plaintiff's counsel submitted that outside the Court he had been told by the other side that the defendant would be making the said above-mentioned payment within one and half years to two years to which he is not agreeable."

6. Persuaded thereafter by the conduct of the appellant on the 29 th November, 2016 as well as the evasiveness to make firm commitment regarding the manner in which the payment would be made on the 15th of February 2017 coupled with the admissions in the memorandum of understanding dated 18th March, 2011 wherein the appellant had admitted liability to pay `6,27,39,282/- with interest, (such calculations as having been made by the 31st of December 2010), by the impugned judgment dated 15th December, 2017, the ld. Single Judge has granted leave to defend the suit to the appellant upon making the deposit of the said amount of `6,27,39,282/- within a period of one month of the order. Further order with regard to the manner in which the said amount would be disbursed/reserved has also been made in the impugned order.

7. Given the facts noted by the ld. Single Judge and the conduct of the appellant who despite the firm commitment made as back as on 18th March, 2011 and not even today to give firm commitment as to the date on which the principal amount would be made in the court,

we have queried to the appellant so as to give a firm date by which the principal amount of `2,38,00,000/- would be deposited in Court. The learned counsel is unable to give any such statement.

8. In view thereof, there is no infirmity in the impugned order dated 15th December, 2017 passed by the ld. Single Judge. The appellant is not entitled to exercise of any indulgence.

The appeal and the pending applications are dismissed

ACTING CHIEF JUSTICE

NAVIN CHAWLA, J MAY 17, 2017 mk