Delhi High Court
Pooja Pahwa vs Mahinder Singh on 23 January, 2018
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 23rd January, 2018
+ C.R.P. 14/2018 & CM Nos. 2598-99/2018
POOJA PAHWA ..... Petitioner
Through: Mr. Ravinder Kumar Yadav &
Ms. Preeti Singh, Advs.
versus
MAHINDER SINGH ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The impugned order was passed on 01.12.2017 by the trial
Judge on the file of the summary suit (CS No. 453/17) instituted by
the respondent (the plaintiff) against the petitioner (the defendant)
under Order XXXVII of the Code of Civil Procedure, 1908 (CPC)
founded primarily on a document styled as a promissory note and
receipt (copy at page 36 of the paper book), dated 06.04.2016. The
defendant (i.e. the petitioner) had moved an application seeking leave
to defend which was considered by the trial judge through the
impugned order. Though leave to defend has been granted, the
defendant has been called upon to deposit in the Court an amount of
Rs.5.50 lakhs as mentioned in the above-mentioned document dated
06.04.2016 in the form of fixed deposit receipt (FDR), initially taken
out for a period of one year with provision for auto renewal, such
deposit being a condition attached to the grant of leave to defend. It is
the imposition of the said condition which is sought to be assailed
through the petition at hand.
2. The suit filed by the plaintiff is for recovery of Rs. 6,60,000/-
based on the afore-mentioned document. It does appear that in the
part of the document under the heading "promissory note", there is
some error in that the name of the defendant appears even in the space
wherein the name of the creditor was to be mentioned. But then, the
document read as a whole, prima facie, confirms, particularly upon
perusal of the other portion under the heading "receipt", that money
had been passed on by the plaintiff to the defendant who
acknowledged its receipt on 06.04.2016.
3. While seeking leave to defend it was pleaded by the
defendant/petitioner that on account of friendly relations, she and her
husband had been recipient of financial assistance from the plaintiff.
As per her case, the amount due towards the plaintiff as on 15.07.2016
by her and her husband was in the sum of Rs. 70 lakhs. She stated in
para 7 of the said application that the said amount had been "duly
repaid" by her on 15.07.2016. In this context, she would refer to a
transaction represented by another document described as Agreement
to Sell and Purchase/Bayana dated 15.07.2016 purportedly executed
by her for sale of her property described as property bearing no. J-
13/29, second floor, Rajouri Garden, New Delhi in favour of one Jugal
Arora (copy filed as Annexure D-1). In the said document, to which
the plaintiff of the case purports to be a marginal witness, the
defendant is shown to have received from Jugal Arora, an amount of
Rs. 78 lakhs, partly by cheque in the sum of Rs. 8 lakhs and balance in
cash in the sum of Rs. 70 lakhs, the second part having been reflected
as "by cash adjustment of previous dealing with Sh. Mahinder Singh,
R/o AD-44 Tagore Garden, New Delhi -110027 witness in the same
agreement". The defendant also relies on another document styled as
"receipt" (copy Annexure D-2) purportedly executed by her on
15.07.2016 to which the plaintiff of the case is also stated to be a
witness where the above-mentioned acknowledgement of Rs. 70 lakhs
"by cash adjustment" is reflected.
4. It may be observed here that the above documents do not clarify
in any manner as to what was the "previous dealing" that is to say as
to who was the creditor and who was the debtor in such previous
transaction and further as to how it could be treated as "cash
adjustment" inasmuch as there is no document shown executed by the
plaintiff acknowledging having received a sum of Rs. 70 lakhs on
account of previous debt owed to him by any of the parties to the
Agreement to Sell.
5. In the reply to the application for leave to defend, the plaintiff
stated that the amount of Rs. 70 lakhs was the amount owed to him by
the husband of the defendant rather than the amount owed by her. The
fact that the document in the nature of promissory note-cum-receipt
has continued to be in the power and possession of the plaintiff of the
case, even after the transaction of 15.07.2016 between the defendant
and Jugal Arora as represented by the said other two documents,
prima facie substantiates the case of the plaintiff.
6. In the above circumstances, there are reasons to suspect that the
defence set up by the petitioner in the suit may not be a bona fide one.
Thus, the ruling in Babbar Vision India Pvt. Ltd. vs. Rama Vision Ltd.
(2002) 99 DLT 556 (DB) does not assist the petitioner.
7. In the above facts and circumstances, the condition imposed in
the grant of leave to defend by the impugned order cannot be said to
be unreasonable or unfair.
8. The petition and the accompanying applications filed therewith
are dismissed.
R.K.GAUBA, J.
JANUARY 23, 2018
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