Sukrita Bajaj & Anr. vs Sundeep @ Sandeep Sehgal
2018 Latest Caselaw 2311 Del

$~2 (OS)
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                          DECIDED ON : APRIL 13, 2018

+     CS(OS) 172/2017 & IA Nos.8222/2017 [u/O 37 R-3(4) r/w
      Section 151 CPC], 4667/2017 (u/O 39 R-1 & 2 CPC).

      SUKRITA BAJAJ & ANR.                       ..... Plaintiffs
               Through : Ms.Sonali Malhotra with Mr.Amit
                           Sanduja, Advocates.
                    versus

      SUNDEEP @ SANDEEP SEHGAL                           ..... Defendant.

                   Through :    Mr.S.K.Khukla, proxy counsel with
                                Defendant in person.

      CORAM:
      HON'BLE MR. JUSTICE S.P.GARG
S.P GARG, J. (ORAL)

IA No.2193/18 [u/O 37 R-3(5) CPC], 2194/18 (u/S 151 CPC)

1. Sukrita Bajaj and Sumita S.Chadha (hereinafter 'the plaintiffs') have filed the present suit for recovery of `3,66,62,760/- against Sundeep @ Sandeep Sehgal (hereinafter 'the defendant') under Order XXXVII CPC.

2. The plaintiffs' case is that their father late G.L.Tandon had three demat accounts with M/s Alankit Assignment Ltd. On the representation of the defendant to open demat account with M/s Apollo Sindhoori Capital Investments Ltd. with which he was a registered sub- broker, on 27.04.2005 G.L.Tandon opened three demat account therein.

It is averred that while transferring the share portfolio from M/s Alankit Assignment Ltd. to M/s Apollo Sindhoori Capital Investments Ltd., the defendant wrongfully transferred 90% of the shares in his account and in the account of his wife Sapna Sehgal during the period between 2003 to 2008. The defendant did not give consideration and misappropriated the shares. It is further averred that the defendant forged letters dated 13.09.2008, 24.09.2008 and 06.10.2008 of M/s Apollo Sindhoori Capital Investments Ltd. and as also of National Security Depository Limited. A cheque No.415821 dated 03.02.2009 of `2.5 crores of Standard Chartered Bank was issued by the defendant to late Sh.G.L.Tandon. G.L.Tandon also wrote several letters dated 18.03.2009, 26.05.2009, 24.12.2009 and 16.04.2010 requesting the defendant to return his shares. `68,00,000/- were transferred in the name of G.L.Tandon though, the value of the shares was around `4 crores and 60 lacs. The defendant thus duped G.L.Tandon of his hard earned money. FIR 155/2012 was lodged against the defendant at the Police Station EOW for commission of offences punishable under Sections 409/420/468/471/120B IPC.

3. It is further pleaded that Memorandum of Understanding (hereinafter 'the MOU') dated 03.04.2013 was executed between the defendant and Rajesh Kumar Ranjan and Ajay Bajaj, wherein admitting his liability, the defendant promised to pay a sum of `4 crores by way of issuance of cheques. Pursuant to the settlement, the defendant issued 12 post-dated cheques in the name of the plaintiffs out of which three cheques were honoured on presentation. However, when the other nine post-dated cheques were presented to the bankers, they were

dishonoured. The defendant requested extension of time to make the payment of the outstanding amount but he failed to do so. The defendant, thus, is liable to pay `3,66,62,760/- to the plaintiffs i.e. `2,81,25,000/- towards principal and `85,37,760/- towards interest till 31.03.2017.

4. The defendant on appearance filed application for leave to defend. It was averred that the plaintiffs were guilty of suppressing material facts; they did not mention the factum of cancellation of defendant's bail on 19.09.2014. After the cancellation of the bail and arrest of the defendant in the criminal case, the MOU executed between the parties became null and void and had no effect. The plaintiffs were not party to the MOU. Moreover, it was specifically recorded in Clause 10 of the MOU that no party would file any civil or criminal case against the other in any court of law in future. The plaintiffs have not furnished any proof of their being daughters or legal heirs of the deceased G.L.Tandon. No letter was ever forged by the defendant and present suit has been filed to extort money from him.

5. The application is contested by the plaintiffs. It is urged that no triable issue has been raised by the defendant to grant leave to defend to the suit. The criminal proceedings are still pending against the defendant and no final decision has yet been taken therein. The present suit has been filed by the plaintiffs to seek recovery of outstanding dues which were admitted in clear and unambiguous terms by the defendant. The filing of the proceedings under Section 138 Negotiable Instruments Act and under Order XXXVII CPC are two separate and different

remedies. The contentions raised by the defendant in the instant applications are unmerited.

6. I have heard the learned counsel for the plaintiffs and the defendant in person and have examined the file.

7. Undisputedly FIR No. 155/2012 under Sections 409/420/468/471/120B IPC was lodged against the defendant at Police Station EOW in which he was arrested. The matter was settled and MOU incorporating various terms and conditions was executed on 03.04.2013 before the court of learned Additional Sessions Judge, Saket; the defendant was granted conditional bail. It is also not in dispute that pursuant to the said settlement, certain amount was paid by the defendant to the plaintiffs. When the defendant failed to make the entire payment in terms of the said settlement, application for cancellation of bail was filed. It was, however, dismissed with the direction to the defendant to comply with the terms and conditions of the settlement within two months as requested by him. It did not have any impact on the defendant. Second application for cancellation of bail was filed on 17.07.2014 and by an order dated 19.09.2014 the conditional bail was cancelled and the defendant was arrested. After the filing of the charge-sheet in the court, the defendant has been granted regular bail without any condition.

8. On perusal of the contents of the MOU executed before the court whereby the defendant was granted conditional bail, the defendant had admitted his liability to pay of `4.0 crores. `25,00,000/- were paid by a cheque. For payment of `3,75,00,000/-, he handed over 12 post-dated cheques in the sum of `31,25,000/- each. Some of the cheques were

encashed on presentation. However, when the other cheques were presented to the bankers for encashment, they were returned with the remarks 'insufficient fund'. The matter was brought to the notice of the defendant and during the extended period, despite his repeated assurance/ promise, the payment was not made. The plaintiffs were constrained to file application for cancellation of bail on the strength of which conditional bail was granted to the defendant, it was cancelled. Various letters written by the defendant to the plaintiffs have been brought on record to show that the defendant had clearly and unambiguously admitted his liability to pay to the amount to the plaintiffs. The cheques in question which were dishonoured on presentation were issued in the names of the plaintiffs as reflected in the MOU. It also records that the plaintiffs were daughters of G.L.Tandon who has since expired.

9. The defendant's only plea is that due to cancellation of conditional bail, MOU dated 03.04.2013 executed between the parties became null and void and its terms and conditions cannot be enforced. This submission is untenable and flawed. When the defendant did not comply with the terms and conditions of the MOU executed before the court, the plaintiffs were within their right to avail legal remedies seeking cancellation of bail for violation of terms and conditions of MOUs. Learned Additional Sessions Judge committed no error in cancelling the conditional bail due to non-compliance of terms and conditions of MOU. The MOU did not debar the plaintiffs to avail civil remedies to recover the said amount. Settled position of law is that the criminal and civil proceedings are two different and separate

independent remedies. Filing of the FIR and even of the proceedings under Section 138 Negotiable Instruments Act did not debar the plaintiffs to avail the civil remedy to recover the outstanding amount. The defendant's arrest pursuant to the cancellation of bail did not absolve him of the liability to pay the outstanding dues.

10. On perusal of the application for leave to defend, it is clear that the defendant has not raised any triable issues. The facts disclosed in the application do not indicate if the defendant has any substantial defence to raise. Seemingly the defence raised by the defendant is frivolous and sham. It does not satisfy the court if he (the defendant) has a good defence to the claim on merits. It is an afterthought to avoid legal consequences.

11. In view of the above discussion, this Court finds no sufficient ground to grant leave to defend to the defendant.

12. The applications are dismissed.

CS(OS) 172/2017

13. Since the defendant has not been permitted to defend, the plaintiffs are entitled to the judgment forthwith under Order XXXVII Rule 3 (5) CPC.

14. The suit is decreed in the sum of `2,81,25,000/- with proportionate costs as per schedule.

15. The plaintiffs have claimed interest @ 10% p.a. amounting to `85,37,760/- till 31.03.2017. It is relevant to note that there was no agreement between the parties to pay interest. The defendant admitted his liability to pay `4.0 crores as per the terms and conditions incorporated in the MOU dated 03.04.2013. As observed above, three

cheques towards the said liability were honoured on presentation. The post-dated cheques issued for the subsequent dates, however, were returned with the remarks 'insufficient funds' and were dishonoured. Apparently, the plaintiffs would be entitled to interest only from the date each cheque bounced on presentation.

16. Both the parties were directed to file their calculation of interest @ 10% p.a. from the date each cheque bounced till 31.03.2017. The parties have given the same calculation i.e. `56,13,870/- to be the interest @10% p.a.

17. Relying upon the judgment IUP Jindal Metals & Alloys Ltd.vs.M/s Conee Chains Private Ltd. [CS(OS) No.576/2010] decided on 15.04.2013, `56,13,870/- in all are awarded as interest to the plaintiffs from 03.04.2013 till the date of institution of the suit. The plaintiffs shall be entitled to interest @ 10% p.a. from the date of decree till its realization.

18. Decree sheet shall be prepared accordingly.

S.P.GARG (JUDGE) APRIL 13, 2018/sa