Ajay Goel v. J.S. Bagga

1. This is a suit for recovery under Order XXXVII CPC filed by the plaintiff against the defendant.

2. Brief facts as stated in the plaint are that the defendant had approached the plaintiff for sale/purchase of the House No.8, Anand Lok, New Delhi-110049 (hereinafter referred to as the “suit property”). It is averred that the plaintiff under the defendant’s undue influence executed Power of Attorney dated 18th October 2008 in favour of defendant authorizing him to sell the property on behalf of the plaintiff. Thereafter, the plaintiff made payment of Rs. 26,00,000/- by way of cheque and Rs.4,00,000/- by way of cash to the defendant. However, inspite of the encashment, the defendant did not perform his obligations and subsequently the plaintiff revoked and cancelled the said Power of Attorney executed by him in respect of the suit 2014:DHC:4263 property in favour of the defendant by publishing in National Newspaper “The Statesman” dated 1st August 2009.

3. It is also the case of the plaintiff that the plaintiff sent a legal notice dated 31st July 2010 for recovery of amount of Rs.30,00,000/along with interest and thereafter the defendant vide reply dated 16th August 2010 admitted that he received the money for doing the liaison work at DDA,MCD for obtaining the certified copies of the order.

4. The present suit for recovery of the said amount under Order XXXVII CPC is filed. The defendant was served with the summons under Order XXXVII CPC to enter appearance on 15th November

2010. However an application being I.A.No. 16833/2010 for appearance was filed by the defendant and hence an application being I.A.No. 13899/2012 under Order XXXVII Rule 3 CPC was filed by the plaintiff for issuance of summons for judgment to the defendant. Defendant was duly served with summons for judgment on 10th September 2013 and in response thereto the defendant has sought leave to defend in an application being I.A.No.15145/2013 contending the following:- (a) The suit is not maintainable under Order XXXVII CPC. (b) The plaintiff has not even placed on record the receipt dated 8th November 2007 containing payment of Rs

(c) The plaintiff has deliberately withheld the amount of

(d) The plaintiff is not law abiding citizen as he is involved in about 13 criminal cases at Delhi and Haryana.

5. The defendant has filed the receipt dated 8th November, 2007 of sum of Rs.30 lac which is admittedly signed by the plaintiff. The contents of the receipt read as under: “I, the undersigned, agree, confirm to knowledge to have received amount of Rupees Thirty Lacs (Rupees Third Lacs Only) from Shri Ajay Goel S/o Shri Jai Shri Ram Goel, r/o 5, Link Road, Jangpura, New Delhi for agreeing to undertake liaison work with DDA Delhi. This amount is not refundable. The agreed amount is (agreed amount Rs.[1] Crore Only) and the balance amount will as per (balance amount of Rs.65 lacs plus 5 lacs) on completion of work entrusted to the undersigned pertaining to his property bearing no.8, Anand Lok, New Delhi. xxx xxx xxx xxx”

6. It appears from the receipt that the said amount was not refundable. The said fact has not been mentioned in the plaint by the plaintiff. It was argued by the learned counsel for the plaintiff that in the reply dated 16th August, 2010 to the legal notice dated 31st July, 2010 issued by the plaintiff, the defendant has admitted that after having received the said amount he undertook to liaison work with the DDA on behalf of the plaintiff. Therefore, the plaintiff is entitled for the recovery of the said amount. The case of the defendant is that the said amount is non-refundable amount and the said amount is not crystallized amount as the defendant had spent money besides his time, engaged a lawyer and is entitled to remuneration on the said account besides having made payments to MCD for and on behalf of the plaintiff through his bank.

7. In the application for leave to defend, the defendant has stated that the suit filed by the plaintiff is not maintainable as the plaintiff has not filed the receipt dated 8th November, 2007 before this Court wherein it is stated the said amount is non-refundable and the present suit has been filed as a counterblast to settle the scores with the defendant who has been duped by the plaintiff to the tune of Rs.1,25,00,000/-. Admittedly, an FIR bearing No.36/2012 stands registered against the plaintiff and the proceedings are pending.

8. It is settled position that Order XXXVII CPC has been included in the Code of Civil Procedure in order to allow a person, who has a clear and undisputed claim in respect of any monetary dues, to recover the dues quickly by a summary procedure instead of taking the long route of a regular suit. If the affidavit discloses a triable issue by way of plea which is at least plausible then the leave should be granted but, defence should be legal and even though it ultimately may not turn out to be a good defence.

9. In the case of Sunil Enterprises and Another vs. SBI Commercial & International Bank Ltd. reported in (1998) 5 Supreme Court Cases 354, it was observed:- “4. The position in law has been explained by this Court in Santosh Kumar vs. Mool Singh, AIR 1958 SC 321, Milkhiram (India) Private Ltd. vs. Chaman Lal Bros., AIR 1965 SC 1698 and Michalec Eng. & Mfg. vs. Bank Equipment Corporation, AIR 1977 SC 577. The propositions laid down in these decisions may be summed up as follows:- (a) If the defendant satisfies the Court that he has a good defence to the claim on merits, the defendant is entitled to unconditional leave to defend. (b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence, although not a possibly good defence, 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, if the affidavit disclosed that at the trial he may be able to establish a defence to the plaintiff claim, the court may impose conditions at the time of granting leave to defendthe conditions being as to time of trial or mode of trial but not as to payment into Court or furnishing security.

(d) If the defendant has no defence, or if the defence is sham or illusory or practically moonshine, the defendant is not entitled to leave defend. (e) If the defendant has no defence or the defence is illusory or sham or practically moonshine, the Court may show mercy to the defendant by enabling him to try to prove a defence but at the same time protect the plaintiff imposing the condition that the amount claimed should be paid into Court or otherwise secured.”

10. The receipt filed by the defendant does bear the signature of the plaintiff who has not denied the same. The plaintiff has not filed the said receipt in which it is mentioned that the said amount is not refundable. The plaintiff in his plaint has actually not disclosed the said fact. It is the duty of a party who is seeking the relief of this nature particularly in summary proceedings to disclose all the material facts otherwise the purpose of summary proceedings are defeated.