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2017 (8) TMI 1077 - HC - Indian LawsRecovery with interest till the date of realization on the basis of a written agreement - Complaint case under section 138 Negotiable Instruments Act - Held that - The dispute herein being an independent dispute than was amongst directors of M/s SPL in CS (OS) No.1148/2008, would not absolve the defendant of his liability to repay the loan taken by him. If the intention of the parties in CS (OS) 1148/2008 was to absolve the directors of their personal liabilities inter se and with outsiders, the settlement would have mentioned the same. If the IA No. 15482/2008 in CS(OS) No.1148/2008 has taken note of other pending suit numbers, criminal complaints, property particulars, details of the cheques issued, then why these five PDCs of ₹ 45.00 lac each were not brought within the fold of such settlement. The defendant is trying to mix two disputes into one which disputes are obviously distinct. The agreement clearly stipulate that the defendant has taken loan(s) for purchase of land admeasuring 7 bighas in Satbari and that such land is not connected with the business of M/s SPL. In this agreement, the defendant has unequivocally admitted to repay the loan amount within three year lest an action can be taken against him. The cheques also were given in advance and the defendant has also agreed to suffer proceedings if such cheques are not honoured. No linkage can be drawn between the agreement dated 15.11.2008 and with the terms of settlement stated in IA No.15482/2008 in CS (OS) No.1148/2008. As the defence raised in his application for leave to defend is contrary to what the defendant had stated in his application under Section 145(2) Negotiable Instruments Act in proceedings under Section 138 Negotiable Instruments Act, so the defence of the defendant though appear to be illusionary but he is allowed to proceed on his depositing the principal amount of ₹ 2,25,00,000/-(Rupees Two Crore Twenty Five Lacs) with the Registrar General of this Court within four weeks from today. The application stands disposed of in above terms.
Issues Involved:
1. Application for leave to defend under Order 37 Rule 3 (5) of the CPC. 2. Allegations and defenses raised by the defendant. 3. The impact of previous settlements and agreements on the current suit. 4. The validity and enforceability of the written agreement dated 15.11.2008. 5. The nature and purpose of the post-dated cheques (PDCs) issued by the defendant. 6. The relevance of the compromise in CS (OS) 1148/2008 to the current dispute. 7. The defendant's liability under the written agreement and the cheques issued. 8. The admissibility of oral agreements to contradict the written agreement. 9. The timeline and statute of limitations for filing the suit. 10. The conditions for granting leave to defend. Detailed Analysis: 1. Application for Leave to Defend: The defendant filed an application under Order 37 Rule 3 (5) of the CPC for leave to defend in a suit filed by the plaintiff for recovery of ?2.25 Crore with interest. The defendant sought unconditional leave to defend, alleging various defenses. 2. Allegations and Defenses Raised by the Defendant: The defendant alleged that the plaintiff and his wife, along with two other individuals, formed a company named M/s Saj Properties Limited (M/s SPL) to exploit the real estate market. The defendant claimed that the loan amount in question was part of an investment in M/s SPL and that the written agreement dated 15.11.2008 was subject to an oral understanding. The defendant also alleged that the suit was time-barred and that the PDCs were issued as security. 3. Impact of Previous Settlements and Agreements: The court examined whether the settlement in CS (OS) 1148/2008 among the directors of M/s SPL had any bearing on the agreement dated 15.11.2008. The compromise deed in CS (OS) 1148/2008 did not refer to the dispute raised in the current suit and was limited to disputes among the directors of M/s SPL. 4. Validity and Enforceability of the Written Agreement: The court found that the written agreement dated 15.11.2008 was self-sufficient and unequivocally recorded the defendant's liability to repay the loan amount. The agreement did not mention any oral understanding or condition related to the defendant's wife's share in M/s SPL. 5. Nature and Purpose of the PDCs: The defendant admitted to issuing five PDCs for ?45 Lac each, which were dishonored. The court noted that the agreement explicitly stated that the cheques were given in advance and that the defendant agreed to suffer proceedings if the cheques were not honored. 6. Relevance of the Compromise in CS (OS) 1148/2008: The court held that the compromise in CS (OS) 1148/2008 did not absolve the defendant of his liability under the agreement dated 15.11.2008. The compromise was limited to disputes among the directors of M/s SPL and did not cover personal agreements or liabilities. 7. Defendant's Liability: The court concluded that the defendant's liability under the written agreement dated 15.11.2008 was independent of the disputes in M/s SPL. The defendant could not claim any adjustment based on hypothetical amounts payable to his wife or losses incurred in a separate land deal. 8. Admissibility of Oral Agreements: The court cited precedents, including Roop Kumar vs. Mohan Thedani and Yash Chhabra vs. Maya Jain, to emphasize that oral pleas contradicting a written agreement are not tenable under Section 91 of the Indian Evidence Act, 1872. The court rejected the defendant's oral pleas as they had no foundation in the written agreement. 9. Timeline and Statute of Limitations: The court did not find merit in the defendant's claim that the suit was time-barred, as the agreement explicitly provided a three-year repayment period from 15.11.2008. 10. Conditions for Granting Leave to Defend: The court found the defendant's defenses to be illusory and inconsistent with his statements in other proceedings. However, the court allowed the defendant to proceed on the condition that he deposits the principal amount of ?2.25 Crore with the Registrar General of the Court within four weeks. Conclusion: The court disposed of the application for leave to defend by requiring the defendant to deposit the principal amount of ?2.25 Crore. The written statement was to be filed within four weeks thereafter, and the case was listed for compliance and completion of pleadings. The court emphasized that the written agreement dated 15.11.2008 was enforceable and that the defendant's liability was independent of the disputes in M/s SPL.
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