Mamta Khurana vs Laxman Singh Solanki
2018 Latest Caselaw 5019 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.690/2018

%                                                   24th August, 2018

MAMTA KHURANA                                         ..... Appellant
                          Through:       Mr. Chayan Sarkar, Advocate
                                         (M. No.9911741110).


                          Versus

LAXMAN SINGH SOLANKI                                   ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No.33975/2018(exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

RFA No.690/2018 and C.M. Nos.33974/2018(for condonation of delay) & 33976/2018(for ex-parte stay)

2. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit

impugning the Judgment of the Trial Court dated 11.4.2017 by which

trial court has decreed the suit for recovery of moneys filed by the

respondent/plaintiff/Advocate with respect to litigation fees in the suit

filed in the original side of this Court titled as Saminder Singh Reen

Vs. Satya Khurana, then the proceedings in the appellate side of this

court, as also before the Supreme Court by filing an SLP, and finally

in the execution proceedings.

3. At the outset, it has to be noted that the impugned

judgment is an ex-parte judgment as the appellant/defendant did not

file any written statement nor led any evidence. This Court is

informed that the application under Order IX Rule 13 CPC was filed

but the same was dismissed inasmuch as the appellant/defendant did

not comply with the conditional order of deposit of amount.

4. This appeal is filed with a huge delay of 450 days and

there is no reasonable cause for condonation of delay because except

making self-serving averments that appellant/defendant was duped by

her Advocate, it is not stated that what steps the appellant/defendant

took to remain in touch with the Advocate during the pendency of the

subject suit for recovery of moneys. Therefore in my opinion there is

no reasonable cause for condonation of delay, however in spite of the

same, this Court has examined the case on merits.

5. The suit filed by the respondent/plaintiff was that he was

a practicing lawyer and had represented the mother-in-law of the

appellant/defendant in CS(OS) No.79/2012 titled as Saminder Singh

Reen Vs. Satya Khurana. The Advocate also further appeared in the

appeals before the Division Bench of this Court and he also filed an

SLP before the Supreme Court and lastly the

respondent/plaintiff/advocate appeared in the execution proceedings.

Amount claimed in the suit is towards the balance fees payable for the

aforesaid proceedings. The respondent/plaintiff also at the request of

the appellant/defendant had engaged the services of a Senior Advocate

Mr. Vinay Garg and to whom the payment was to be made. The

respondent/plaintiff pleaded that a payment of Rs.3,35,000/- was

made, but there remained due a balance fees amount of Rs.13 lacs, and

which was not paid. The appellant/defendant in part payment had

handed over two cheques of Rs.1 lakh each which were dishonoured,

and therefore the respondent/plaintiff had sent a Legal Notice dated

24.6.2015 which was replied to vide Reply dated 14/16.7.2015

admitting to the charges payable but claim was made that the entire

payment was made. On account of the cheques of Rs.2 lacs having

been dishonoured, complaint under Section 138 of the Negotiable

Instruments Act, 1881 was filed and which was settled for a sum of

Rs.1.50 lacs, and which amount the appellant/defendant paid. The

balance amount of Rs.11 lacs was not paid, hence the subject suit was

filed for recovery of that amount alongwith interest totaling to the

figure of Rs.12.65 lacs.

6. As already noted above, the appellant/defendant was ex-

parte and such ex-parte proceedings against the appellant/defendant

have become final on the dismissal of the application under Order IX

Rule 13 CPC. It is seen that respondent/plaintiff has proved his case

by stepping into the witness box and proving his case. The

dishonoured cheques were proved as Ex.PW1/1 and Ex.PW1/2 along-

with the dishonoured memos as Ex.PW1/3 and Ex.PW1/4. The Legal

Notice dated 24.6.2015 was proved as Ex.PW1/5 along-with track

report as Ex.PW1/7. Reply dated 14/16.7.2015 sent by the

appellant/defendant was filed and proved as Ex.PW1/8. Proceedings

before the Metropolitan Magistrate under Section 138 of the

Negotiable Instrument Act whereby for the amount of Rs.2 lacs

settlement took place at Rs.1.50 lacs have been filed and proved as

Ex.PW1/10. Consequently, in my opinion, trial court has rightly

decreed the suit for recovery of the moneys being the balance fees due

to the respondent/plaintiff.

7. Counsel for the appellant/defendant placed reliance upon

the reply given by the appellant/defendant dated 14/16.7.2015 to argue

that this reply shows that entire dues of the respondent/plaintiff were

paid, however it is seen that in this reply while admitting the total due

to be Rs.17.38 lacs, it was stated that all the due amounts were paid

towards this amount essentially by cash except for three cheques. It is

however noted that it is not the case of the appellant/defendant that

while giving cash, any receipt was taken or any other document taken

to show payment of this alleged cash payment. Therefore the

contention on behalf of the appellant/defendant cannot be believed

that entire dues of the respondent/plaintiff stand paid off and this is all

the more so that if all the dues were paid off then where was the

question of issuing two cheques of Rs.1 lakh each and which were

dishonoured.

8. In view of the above, neither there is any merit in the

application for condonation of delay nor in the appeal, and therefore,

the appeal and all pending applications are dismissed.

VALMIKI J. MEHTA, J AUGUST 24, 2018 Ne