Full Judgment Text
$~20.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2978/2012
Date of Decision: 12.08.2015
IN THE MATTER OF
JOGINDER KHURANA .... Plaintiff
Through : Mr. Rohit Sharma, Advocate
versus
RAJINDER BHATIA ....Defendant
Through : None
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J. (Oral)
1. The plaintiff has filed the present summary suit under Order
XXXVII of the Code of Civil Procedure, praying inter alia that a decree
for recovery of a sum of ` 1,50,75,000/- be passed against the
defendant along with pendente lite and future interest @ 18% p.a.
2. Before considering the submission made by learned counsel for
the plaintiff, it is considered necessary to recapitulate the brief facts of
the case as averred in the plaint. The plaintiff has averred that the
defendant had contacted him at his Rohini address in Delhi, expressing
his willingness to sell four plots of land bearing Nos.63,64, 66 and 67,
situated at VGD Nagar, Bhuneshwar Nagar, Velachery, Chennai. As
CS(OS) 2978/2012 Page 1 of 8
the plaintiff had evinced interest in purchasing the said plots of land,
the parties had entered into an agreement whereunder, they had
agreed that the defendant will sell the subject plots to the plaintiff for
a total sale consideration of ` 1,50,00,000/- . The Receipt/Agreement
to Sell was executed by the defendant on 19.4.2011 wherein, he had
confirmed having received the earnest money of ` 1,00,00,000/-
( ` 30,00,000/- through RTGS in February 2011, ` 10,00,000/- through
RTGS on 19.4.2011 and cash of ` 60,00,00,000/- on 19.4.2011). The
defendant had also agreed that before the sale deed is executed, he
shall get all necessary clearances from the Government authorities
and he shall also free the subject plots from all encumbrances. It was
recorded in the Receipt/Agreement to Sell that the balance sale
consideration shall be paid by the plaintiff on or before 30.6.2011.
3. It is averred in the plaint that as per the understanding with the
defendant, the plaintiff had written to him on 24.6.2011, informing
him that the balance sale consideration is ready and the sale deed in
respect of the subject plots be executed in his favour on or before the
agreed date, i.e., 30.6.2011. However, on 27.6.2011, the defendant
had visited the plaintiff at his residence in Delhi and admitted to the
fact that he was not the owner of the subject plots and therefore, the
deal could not be materialized. The defendant had then proceeded to
CS(OS) 2978/2012 Page 2 of 8
issue a cheque dated 29.9.2011, drawn on Punjab National Bank,
Anna Nagar, Chennai in favour of the plaintiff for a sum of
1,50,00,000/- towards the earnest money for a sum of
`
` 1,00,00,000/- received by him from the plaintiff at the time of
executing the Agreement for Sale along with a sum of ` 50,00,000/-,
as penalty.
4. When the plaintiff presented the aforesaid cheque issued by the
defendant to his bankers, namely, Vijaya Bank, Rohini Branch, the
same was returned vide memo dated 29.9.2011, stating inter alia that
the drawer had insufficient funds in his account. Aggrieved by the
dishonour of the cheque, the plaintiff had to serve a legal notice dated
19.10.2011 on the defendant calling upon him to pay a sum of
` 1,50,00,000/-, being the value of the dishonoured cheque within 15
days, failing which, he would be constrained to file a criminal
complaint under Section 138 of the Negotiable Instruments Act. The
said notice was dispatched to the defendant by registered AD post and
courier and duly served through courier, on 25.10.2011. However, the
defendant did not reply to the said notice.
5. Learned counsel for the plaintiff submits that having failed to
receive any response from the defendant, his client was compelled to
file a complaint case against him under Section 138 of the Negotiable
CS(OS) 2978/2012 Page 3 of 8
Instruments Act, in the court of the learned MM, Rohini, registered as
CC No.15194/01/11, on which summons were issued to the defendant
vide order dated 3.12.2011. He submits that after service, the
defendant had appeared on a couple of dates whereafter, he had
abruptly stopped appearing and non-bailable warrants had to be
issued against him, which are pending service.
6. The plaintiff has averred that before filing the present suit, he
had served a legal notice dated 10.4.2011 on the defendant intimating
him about the pendency of the criminal complaint and calling upon him
to pay the value of the dishonoured cheque, i.e, a sum of
` 1,50,00,000/- along with interest @ 12% p.a. The aforesaid legal
notice was dispatched to the defendant by registered AD post and
courier. The registered AD card shows proof of receipt of notice by the
defendant on 16.4.2012. The tracking report of the notice despatched
to the defendant through courier, has also been filed by the plaintiff.
Based on the aforesaid averments, counsel for the plaintiff states that
his client is entitled to recover a sum of ` 1,50,00,000/- from the
defendant along with interest thereon calculated @ 18% p.a., till
realisation.
CS(OS) 2978/2012 Page 4 of 8
7. A perusal of the file reveals that summons were issued in the
suit on 28.9.2012, returnable on 21.1.2013. The defendant was
served with the summons through ordinary process on 12.12.2012.
The prescribed period of 10 days for filing the memo of appearance, if
reckoned from 13.12.2012, would have expired on 23.12.2012. Since
23.12.2012 was the first holiday after the High Court had closed for
the winter vacations, the defendant ought to have filed the memo of
appearance on the court reopening on 2.1.2013. However, he failed
to take necessary steps in that regard. Nor was a memo of
appearance filed even thereafter. On 13.9.2013, learned counsel for
the plaintiff had stated before the Joint Registrar that he had received
an advance copy of an application, described as a leave to defend
application, but no such application was found to be on the record, nor
had the defendant appeared directly or through counsel to offer for
any explanation. The position remains the same till date. The leave
to defend application purportedly filed by the defendant, is not on
record. Counsel for the plaintiff states that while the index of the
advance copy of the leave to defend application furnished to him
mentions that the same is running into 10 pages, only four pages were
served on him. In any case, the defendant has not taken any steps to
file the memo of appearance, nor has any application been filed for
CS(OS) 2978/2012 Page 5 of 8
seeking condonation of delay. Resultantly, summons of judgment
could not be issued in the suit and therefore, the question of filing the
leave to defend application or taking it on record, does not arise.
8. Counsel for the plaintiff states that he has filed the certified
copies of the documents relied upon by him under index dated
31.8.2012. The originals thereof are stated to have been filed before
the learned MM, Rohini Courts, in CC No.15194/01/11 that is pending
adjudication. The certified copies of the documents filed by the
plaintiff include a copy of the Agreement to Sell dated 3.12.2011
executed by the defendant in respect of the four plots in question
wherein, he had acknowledged having received a sum of ` 30,00,000/-
from the plaintiff in February 2011 through RTGS, another sum of
10,00,000/- through RTGS on 19.4.2011 and a cash amount of
`
` 60,00,000/-, on 19.4.2011. The statement of account maintained by
the plaintiff with Vijaya Bank, Rohini Branch shows two RTGS entries
and mentions the defendant as the beneficiary for 30,00,000/- on
`
20.2.2011 and of ` 10,00,000/- on 19.4.2011. Plaintiff has filed a
photocopy of the cheque dated 29.9.2011 issued by the defendant in
his favour for a sum of 1,50,00,000/- drawn on Punjab National
`
Bank, Anna Nagar, Chennai along with the return memo issued by the
plaintiff’s bankers, Vijaya Bank, Rohini Branch indicating that the
CS(OS) 2978/2012 Page 6 of 8
captioned cheque had been dishonoured on account of insufficient
funds. Apart from the aforesaid documents, the plaintiff has filed
copies of the legal notices dated 19.10.2011 and 10.4.2012
despatched to the defendant, duly accompanied by the proof of
delivery on him. Copy of the complaint dated 15.10.2011 filed by the
plaintiff against the defendant with the SHO, PS Prashant Vihar and
copies of the proceedings before the learned MM, Rohini Courts arising
out of CC No.15194/01/11 have been filed with the list of documents.
9. After being served with the summons in the suit in the
prescribed format, the defendant has failed to enter appearance or file
his memo of appearance. As a result, the averments made in plaint
have remained uncontested and are deemed to be true and correct.
In view of the averments made in the plaint, the documents placed on
record and the submissions made by the learned counsel for the
plaintiff, the present suit is decreed in favour of the plaintiff and
against the defendant for a sum of ` 1,50,00,000/-. As for the interest
claimed by the plaintiff on the cheque amount, it has been noticed that
in the legal notice dated 10.4.2012, issued by the plaintiff, he had
demanded interest @ 12% p.a. which is found to be reasonable. It is
ordered that if the defendant pays the decretal amount to the plaintiff
within three months from today, then the interest payable on the
CS(OS) 2978/2012 Page 7 of 8
principal amount will be maintained @ 12% p.a., failing which the
interest payable shall be raised to 18% per annum, till realization. The
plaintiff is also awarded costs of the suit.
10. Decree sheet be drawn accordingly.
11. The suit is disposed of.
HIMA KOHLI, J
AUGUST 12, 2015
mk/ap
CS(OS) 2978/2012 Page 8 of 8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2978/2012
Date of Decision: 12.08.2015
IN THE MATTER OF
JOGINDER KHURANA .... Plaintiff
Through : Mr. Rohit Sharma, Advocate
versus
RAJINDER BHATIA ....Defendant
Through : None
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J. (Oral)
1. The plaintiff has filed the present summary suit under Order
XXXVII of the Code of Civil Procedure, praying inter alia that a decree
for recovery of a sum of ` 1,50,75,000/- be passed against the
defendant along with pendente lite and future interest @ 18% p.a.
2. Before considering the submission made by learned counsel for
the plaintiff, it is considered necessary to recapitulate the brief facts of
the case as averred in the plaint. The plaintiff has averred that the
defendant had contacted him at his Rohini address in Delhi, expressing
his willingness to sell four plots of land bearing Nos.63,64, 66 and 67,
situated at VGD Nagar, Bhuneshwar Nagar, Velachery, Chennai. As
CS(OS) 2978/2012 Page 1 of 8
the plaintiff had evinced interest in purchasing the said plots of land,
the parties had entered into an agreement whereunder, they had
agreed that the defendant will sell the subject plots to the plaintiff for
a total sale consideration of ` 1,50,00,000/- . The Receipt/Agreement
to Sell was executed by the defendant on 19.4.2011 wherein, he had
confirmed having received the earnest money of ` 1,00,00,000/-
( ` 30,00,000/- through RTGS in February 2011, ` 10,00,000/- through
RTGS on 19.4.2011 and cash of ` 60,00,00,000/- on 19.4.2011). The
defendant had also agreed that before the sale deed is executed, he
shall get all necessary clearances from the Government authorities
and he shall also free the subject plots from all encumbrances. It was
recorded in the Receipt/Agreement to Sell that the balance sale
consideration shall be paid by the plaintiff on or before 30.6.2011.
3. It is averred in the plaint that as per the understanding with the
defendant, the plaintiff had written to him on 24.6.2011, informing
him that the balance sale consideration is ready and the sale deed in
respect of the subject plots be executed in his favour on or before the
agreed date, i.e., 30.6.2011. However, on 27.6.2011, the defendant
had visited the plaintiff at his residence in Delhi and admitted to the
fact that he was not the owner of the subject plots and therefore, the
deal could not be materialized. The defendant had then proceeded to
CS(OS) 2978/2012 Page 2 of 8
issue a cheque dated 29.9.2011, drawn on Punjab National Bank,
Anna Nagar, Chennai in favour of the plaintiff for a sum of
1,50,00,000/- towards the earnest money for a sum of
`
` 1,00,00,000/- received by him from the plaintiff at the time of
executing the Agreement for Sale along with a sum of ` 50,00,000/-,
as penalty.
4. When the plaintiff presented the aforesaid cheque issued by the
defendant to his bankers, namely, Vijaya Bank, Rohini Branch, the
same was returned vide memo dated 29.9.2011, stating inter alia that
the drawer had insufficient funds in his account. Aggrieved by the
dishonour of the cheque, the plaintiff had to serve a legal notice dated
19.10.2011 on the defendant calling upon him to pay a sum of
` 1,50,00,000/-, being the value of the dishonoured cheque within 15
days, failing which, he would be constrained to file a criminal
complaint under Section 138 of the Negotiable Instruments Act. The
said notice was dispatched to the defendant by registered AD post and
courier and duly served through courier, on 25.10.2011. However, the
defendant did not reply to the said notice.
5. Learned counsel for the plaintiff submits that having failed to
receive any response from the defendant, his client was compelled to
file a complaint case against him under Section 138 of the Negotiable
CS(OS) 2978/2012 Page 3 of 8
Instruments Act, in the court of the learned MM, Rohini, registered as
CC No.15194/01/11, on which summons were issued to the defendant
vide order dated 3.12.2011. He submits that after service, the
defendant had appeared on a couple of dates whereafter, he had
abruptly stopped appearing and non-bailable warrants had to be
issued against him, which are pending service.
6. The plaintiff has averred that before filing the present suit, he
had served a legal notice dated 10.4.2011 on the defendant intimating
him about the pendency of the criminal complaint and calling upon him
to pay the value of the dishonoured cheque, i.e, a sum of
` 1,50,00,000/- along with interest @ 12% p.a. The aforesaid legal
notice was dispatched to the defendant by registered AD post and
courier. The registered AD card shows proof of receipt of notice by the
defendant on 16.4.2012. The tracking report of the notice despatched
to the defendant through courier, has also been filed by the plaintiff.
Based on the aforesaid averments, counsel for the plaintiff states that
his client is entitled to recover a sum of ` 1,50,00,000/- from the
defendant along with interest thereon calculated @ 18% p.a., till
realisation.
CS(OS) 2978/2012 Page 4 of 8
7. A perusal of the file reveals that summons were issued in the
suit on 28.9.2012, returnable on 21.1.2013. The defendant was
served with the summons through ordinary process on 12.12.2012.
The prescribed period of 10 days for filing the memo of appearance, if
reckoned from 13.12.2012, would have expired on 23.12.2012. Since
23.12.2012 was the first holiday after the High Court had closed for
the winter vacations, the defendant ought to have filed the memo of
appearance on the court reopening on 2.1.2013. However, he failed
to take necessary steps in that regard. Nor was a memo of
appearance filed even thereafter. On 13.9.2013, learned counsel for
the plaintiff had stated before the Joint Registrar that he had received
an advance copy of an application, described as a leave to defend
application, but no such application was found to be on the record, nor
had the defendant appeared directly or through counsel to offer for
any explanation. The position remains the same till date. The leave
to defend application purportedly filed by the defendant, is not on
record. Counsel for the plaintiff states that while the index of the
advance copy of the leave to defend application furnished to him
mentions that the same is running into 10 pages, only four pages were
served on him. In any case, the defendant has not taken any steps to
file the memo of appearance, nor has any application been filed for
CS(OS) 2978/2012 Page 5 of 8
seeking condonation of delay. Resultantly, summons of judgment
could not be issued in the suit and therefore, the question of filing the
leave to defend application or taking it on record, does not arise.
8. Counsel for the plaintiff states that he has filed the certified
copies of the documents relied upon by him under index dated
31.8.2012. The originals thereof are stated to have been filed before
the learned MM, Rohini Courts, in CC No.15194/01/11 that is pending
adjudication. The certified copies of the documents filed by the
plaintiff include a copy of the Agreement to Sell dated 3.12.2011
executed by the defendant in respect of the four plots in question
wherein, he had acknowledged having received a sum of ` 30,00,000/-
from the plaintiff in February 2011 through RTGS, another sum of
10,00,000/- through RTGS on 19.4.2011 and a cash amount of
`
` 60,00,000/-, on 19.4.2011. The statement of account maintained by
the plaintiff with Vijaya Bank, Rohini Branch shows two RTGS entries
and mentions the defendant as the beneficiary for 30,00,000/- on
`
20.2.2011 and of ` 10,00,000/- on 19.4.2011. Plaintiff has filed a
photocopy of the cheque dated 29.9.2011 issued by the defendant in
his favour for a sum of 1,50,00,000/- drawn on Punjab National
`
Bank, Anna Nagar, Chennai along with the return memo issued by the
plaintiff’s bankers, Vijaya Bank, Rohini Branch indicating that the
CS(OS) 2978/2012 Page 6 of 8
captioned cheque had been dishonoured on account of insufficient
funds. Apart from the aforesaid documents, the plaintiff has filed
copies of the legal notices dated 19.10.2011 and 10.4.2012
despatched to the defendant, duly accompanied by the proof of
delivery on him. Copy of the complaint dated 15.10.2011 filed by the
plaintiff against the defendant with the SHO, PS Prashant Vihar and
copies of the proceedings before the learned MM, Rohini Courts arising
out of CC No.15194/01/11 have been filed with the list of documents.
9. After being served with the summons in the suit in the
prescribed format, the defendant has failed to enter appearance or file
his memo of appearance. As a result, the averments made in plaint
have remained uncontested and are deemed to be true and correct.
In view of the averments made in the plaint, the documents placed on
record and the submissions made by the learned counsel for the
plaintiff, the present suit is decreed in favour of the plaintiff and
against the defendant for a sum of ` 1,50,00,000/-. As for the interest
claimed by the plaintiff on the cheque amount, it has been noticed that
in the legal notice dated 10.4.2012, issued by the plaintiff, he had
demanded interest @ 12% p.a. which is found to be reasonable. It is
ordered that if the defendant pays the decretal amount to the plaintiff
within three months from today, then the interest payable on the
CS(OS) 2978/2012 Page 7 of 8
principal amount will be maintained @ 12% p.a., failing which the
interest payable shall be raised to 18% per annum, till realization. The
plaintiff is also awarded costs of the suit.
10. Decree sheet be drawn accordingly.
11. The suit is disposed of.
HIMA KOHLI, J
AUGUST 12, 2015
mk/ap
CS(OS) 2978/2012 Page 8 of 8