Full Text
Judgement Reserved on : 08.01.2015
Judgement pronounced on : 16.01.2015
M/S BHARAT BUILDTECH PVT LTD Plaintiff
Through Ms.Vibha Mahajan, Adv.
Through Mr.Narendra Vashistha, Adv.
JUDGMENT
1. This is an application filed under Order 37 Rule 3 CPC (5) by the defendant for unconditional leave to defend the suit. The plaintiff has filed the suit for recoveiy of Rs.60 lacs under Order 37 CPC.
2. As per averments in the plaint, in May-June, 2012 one Shri Rajesh Kumar Dhir approached the plaintiff company for the purpose of making certain investments in real estate/land and properties. Amutual agreement took place between the plaintiff and the said Sh. Rajesh Kumar Dhir. Tiie plaintiff company for the purpose of investment in land/properties of the defendant company at the instance ofShri Rajesh Kumar Dhir issued cheque No.287102 dated 26.6.2012 drawn on HDFC Bank for a sum ofRs.60 lacs infavour ofthe defendant. The cheque was duly encashed by the defendant on 28.6.2012.
3. It is further stated that the terms and conditions of the proposed sale CS(OS)2489/2013 Pagel.of[9] 2015:DHC:11876 could not be finalised. Hence the parties agreed that the said Sh, Rajesh Kumar Dhir would get the advance of Rs.60 lacs from the defendant and return the same to the plaintiff. Accordingly, towards refund of money received the defendant gave cheque No.822019 dated 8.10.2012 drawn on Banlc of Maharashtra, Vasant Kunj, New Delhi for a sum of Rs.60 lacs. However, when this cheque was deposited in the plaintiffs account the same got dishonoured on 9.10.2012 on account of insufficient funds. The defendant/Sh. Rajesh Kumar Dhir was approached several times but to no avail. Legal notice was sent on 8.1.2013, 16.4.2013 and 5.8.2013. Hence, the present suit under Order 37 CPC.
4. The defendant has filed the present application seeking unconditional leave to defend. The application states that there is no privity of contract between the parties. It is urged that defendant company in May 2012 entered into an Agreement to Sell with one Mr.Chander Kant for purchase ofa family owned land for Rs.l crore. Later on, it was revealed that the land had been acquired by Delhi Metro. Llence, it is urged that the transaction was cancelled by the defendant company and the said Mr.Chander Kant promised to refund the amount by NIFT/RTGS. Accordingly, the said Mr.Chander Kant deposited Rs.60 lacs on 29.6.2012 in the account of the defendant. A balance sum of Rs.40 lacs is still stated to be outstanding fi-om the said Mr.Chander Kant.
5. Hence, itis urged that the payment received by the defendant is from Mr. Chander Kant. Regarding the status ofSh. Rajesh Kumar Dhir itis stated that he never approached on behalf of the plaintiff company, the defendant company. The said Sh. Rajesh Kumar Dhir is stated to be abusiness partner of Mr. Bharat Verma, brother in-law of one of the Directors of the defendant CS(OS)2489/2013 p,g^2of[9] company. It is further urge-d that it was the said Sh.Rajesh Kumar Dhir who in first week of October 2012 infomied the defendant of one good property in S- Block, Greater Kailash-II, New Delhi which was under bank auction by the Debt Recovry Tribunal, Jhandewalan, New Delhi. The defendant was persuaded to make a bidastheproperty could possibly have been bought below the market price. In order to bid, a security cheque was required and hence a blank account payee cheque bearing No.822019 drawn on Bank of Maharashtra, Vasant Kunj, New Delhi was duly signed by the signatory and given to the said Sh. Rajesh Kumar Dhir and Mr.Bharat Verma. It was informed to the defendant that the cheque had been deposited with the auctioneer before giving the bid but the auction did not succeed. It is only later on after the defendant received summons from this Court that they realised that the cheque has been misappropriated by the plaintiff company Sh. Rajesh Kumar Dhir and Mr.Bharat Verma. Liberty has been sought in the application to take appropriate proceedings against the culprit. This in essence is the defence ofthe defendants and he seeks unconditional leave to defend on this defence.
6. Learned counsel appearing for the defendant /applicant submits that triable issues have been raised and the defendant is entitled to unconditional leave to defend and an opportunity to lead evidence. I.eamed counsel further submits that the notices alleged to have been sent by the plaintiff, namely, notices dated 8.1.2013, 16.4.2013 &5.8.2013 are make belief and were never received by the defendant and no proofofdispatch ofthe said notices have also been placed on record by the defendant.
7. The defendant has placed on record aphotocopy ofan Advance Receipt CS(OS)2489/2013 cum Agreement to Sell alleged to have been executed on 12.9.2011 between Mr.Chander Kant Verma and the defendant for sale of some land based in village Sutanpur with a built up farm house for a total consideration of Rs.l[6] crores. The Agreement acknowledges receipt of part consideration of Rs.[1] crore. The defendant has also filed a statement alleged to be a cash statement from 1,4,2012 to 31.3.2014 stating that it has sufficient funds in hand.
8. The plaintiff has placed on record a photocopy of the cheque issued in favour of the defendant for Rs.60 lacs dated 26.6.2012. The bank statement showing encashment of the cheque on 28.6.2012 by the defendant from HDFC Bank is also placed on record. The original cheque issued by the defendant for Rs.60 lacs dated 8.10.2012 drawn on Bank of Maharashtra and the original return memo dated 9.10.2012 showing that the cheque has been returned unpaid for insufficient funds have also been placed on record.
9. A perusal of the documents on record and the submission of the defendant would show that the defence raised by the defendant is a complete moonshine.
10. There are two explanations given by the defendant to defend the allegations in the plaint in its application for leave to defend. The first explanation is that though a sum ofRs. 60 lacs was received in the defendants account on 29.06.2012, this amount Is supposedly deposited by Sh. Chander Kant on account of a refund he had to make for the advance of Rs. 1 crore received vide Agreement to Sell which has been duly cancelled. The second explanation is that it is admitted that a cheque was given for Rs.60 lacs in October, 2012. However, it is said that this was ablank cheque given as a security for an auction to be held in DRT pertaining to some property in GK. II, CS(OS)2489/2013 - New Delhi. I can now deal with the merit of these two contentions.
11. The first contention pertains to the explanation about receipt of Rs. 60 lacs in its account.
12. The defendant admittedly received Rs.60 lacs in its account on 29.06.2012. The explanation given for receipt of the said Rs.60 lacs in its account is that it relates to some Agreement to Sell executed with Mr. Chander Kant Sharma whereby an advance of Rs.l crore was made. It is urged that it was on account ofpart refund ofthis money, that Rs.60 lacs was deposited on 29.6.2012 by NIFT/RTGS in the account ofthe defendant. As per the leave to defend application the defendant company in May 2012 entered into an Agreement to Sell with Mr. Chander Kant Sharma and paid Rs.l crore but later on it was revealed that the land had been acquired by Delhi Metro and hence the transaction was cancelled.
13. Aperusal of the Agreement to Sell copy of which has been placed on record shows that it is dated 12.9.2011 and not May 2012, as stated in the application. It states the total consideration is Rs.l[6] crores. It fiarther states that DMRC has acquired Rs.1.616 acres in the area and what is being sold is 5 bighas 9 biswas of land with built up farm house sanctioned from MCD with completion and boundary wall in village Sultanpur which is land adjoining to Metro Depot. This description ofthe transaction as given in the Agreement to Sell is at complete variance with what is mentioned in the application by the defendant. The application ofthe defendant states that later it was revealed that DMRC had acquired the land. The agreement to sell states that part ofthe land IS already acquired by DMRC i.e. prior to 12.09.2011 the date of the Agreement to Sell. As to when the balance land forming part ofthe Agreement CS(OS)2489/2013 d ^ Page 5 ot 9 to Sell was also acquired is not clear or brouglit on record. Further as per the application of the defendant the sum of Rs.60 lacs was received by the defendant by NIFT/RTGS. The defendant has failed to show that this amount ofRs. 60 lacs was received by NIFT/RTGS or it was deposited in its account by Sh. Chander Kant Sharman. The absence ofsuch crucial details, including the bank statement of the defendant shows that the explanation lacks credibility. In fact in the course of arguments, learned counsel for the defendant accepted that the payment has been received through clearing by the defendant and not by NIFT/RGTS. Tlie assertion about the Agreement to Sell dated 12.09.2011 with the said Mr. Chander Kant Sharma for some land in Village Sultan Pur appears to be astoi-y and amake beliefcontention.
14. As far as the cheque for Rs.60 lacs which has been returned unpaid is concerned, the explanation given by learned counsel for the defendant is that the same was duly signed by the defendant company but was given in blank to Sh. Rajesh Kumar Dhir/ Shri Bharat Vernia as securityto enable them to bid in an auction before the DRT, New Delhi.
15. What is surprising about this explanation is that no terms and conditions ofthe auction bid are placed on record. There is nothing to show that the said Sh. Bharat Verma/Sh. Rajesh KumarDhir/defendam made abid in any auction that took place by the DRT. In fact there is nothing to show as to whetherany suchauction at all tookplace.Evenno details aregiven e.q. date ofauction, bid amount, address ofproperty etc.
16. It is also suiprising that in October 2012, the defendant claims to have jedablankcheque. Theyclaimtohaveknowledgeofmisappropriationof thechequeonlywhentheyreceivedsummons ofthepresentSuitwhichasper record was served on them on 3.3.2014. Hence, for nearly VA years the defendant surprisingly took no steps whatsoever to recover the blank cheque stated to have been issued to Sh. Rajesh Kumar Dhir/Sh. Bharat Verma. Even after receipt of the summons and knowledge that the blank cheque has allegedly been misused, no complaint of any sort has been filed by the defendant before any authorities. The said explanation for the issue ofacheque for Rs. 60 lacs in favour ofthe plaintiff isa contention with no merits. There is nothing to show that it is even aplausible explanation. 17^ What follows. The defendant admits receipt ofRs.60 lacs. The defendant admits issue of the cheque which was returned unpaid. The explanation given for receipt of the money and for issue of the cheque have no legs to stand on. The contentions are entirely make beliefand cannot be believed whatsoever.
18. In M/s Mechalec Engineers Manufacturers v. M/s Basic Equipment Corporation AIR 1977SC 577 in para 8, the Hon'ble Supreme Court has held as follows: "In Smt. Kiranmoyee Dassi and Anr. v. Dr. J. Chatterjee 49 C,W.N. 246, Das. J.,after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by order 17 C.P.C. in the form of the following propositions (at p. 253): (a) Ifthe Defendant satisfies the Court that he has agood defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the Defendant is entitled to unconditional leaveto defend. (b) Ifthe Defendant raises atriable issue indicating that he has afair or bona fide or reasonable defence although.not a positively good defence the plaintiff is not entitled CS(OS)2489/2013 p to sign judgment and the Defendant is entitled to unconditional leave to defend.
(c) If the Defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defence, yet, shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiffs claim the Plaintiff is not entitled to judgment and the Defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security.
(d) If the Defendant has no defence or the defence set up is illusory or sham or practically: moonshine then ordinarily the Plaintiff is entitled, to leave to sign judgment and the Defendant is not entitled to leave to defend. - (e) If the Defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the Plaintiff is entitled to- leave to sign judgment, the Court may protect the Plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the Defendant on such condition, and thereby show mercy to the Defendant by enabling him to try to prove a defence."
19. InNeetu Aggarwal vs. R.L.Gupta,95 (2002) DLT167this Court held as follows:-
11. The.defendant is, as such entitled to leave to defend unconditionally if he has a good defense, a fair or bonafide or reasonable defense, or raises a tribal issue. But if the defendant has (1) no defense at all; or (2) defense is sham; or CS(OS)2489/2013. (3) illusory and practically moonshine he will not be entitled to the leave. In case the defense raised is plausible and may be established by evidence adduced during trial the leave may still be granted putting conditions as to time of trial or mode of trial but not on deposit of such amount or furnishing security. Even where the defense put forward by the defendant seems illusory or sham or practical moonshine, in appropriate cases depending uponthe peculiar facts the leave may be granted to the defendant to prove his case imposing condition as to the security either by deposit of the amount claimed in the suit in the court or it is otherwise secured. 20.- Clearly the explanation given by the defendant is make-belief None of the contentions can be believed. No plausible grounds as stated by the defendant which may be deemed sufficient to entitle the defendant to defend the present suit are made out. The present application is accordingly dismissed.
21. In view of the above application for leave to defend of the defendant having been dismissed, the suit is decreed for a sum of Rs.60 lacs (Rupees Sixty Lakhs Only) in favour of the plaintiff and against the defendant. The plaintiff shall also be entitled to pendent lite interest @10% per annum from the date offiling ofthe suit till recoveiy. The plaintiff shall also be entitled to costs.
I. JAYANT NATH, J JANUARY 08, 2015 n