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TMI Blog2017 (2) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... ave to defend application, the appellant/defendant has stated that the parties were known to each other as both of them belong to Bihar and have common relatives and friends. On a bare reading of the admitted documents, it is crystal clear that the appellant/defendant had issued four post-dated cheques totalling to a sum of ₹ 1,40,00,000/- in favour of the respondent/plaintiff towards repayment of the principal amount along with interest and all the said cheques were dishonoured on presentation. It is also an undisputed position that the respondent/plaintiff had served two legal notices dated 28.6.2014 and 7.5.2014 on the appellant/defendant calling upon him to pay the amounts, subject matter of the post dated cheques. Pertinently, the appellant/defendant did not give a reply to the said notices. When the respondent/plaintiff filed four criminal complaints against the appellant/defendant under Section 138 of the NI Act on account of dishonour of the aforesaid cheques, the latter had contested the said complaints. It is an admitted position that the appellant/defendant has been convicted by the learned MM in the said complaints. On a consideration of the facts of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executing a Sale/Conveyance Deed. 4. The respondent/plaintiff approached the appellant/defendant well before the due date to execute the Sale Deed but he expressed his inability to sell the subject land to him. After some deliberations between the parties, the appellant/defendant agreed to refund the sum of ₹ 1,40,00,000/- to the respondent/plaintiff, which included the amount received by him towards part sale consideration along with interest/profit. Consequently, a Memorandum of Understanding dated 06.6.2013 (hereinafter referred to as the MOU ) was executed between the parties, which recorded the fact that the appellant/defendant had received a sum of ₹ 1,06,50,000/- from the respondent/plaintiff in terms of the Agreement to Sell dated 05.11.2010 and that the said deed stood cancelled vide Cancellation Agreement dated 20.1.2012, with an understanding that the appellant/defendant shall return a sum of ₹ 1,40,00,000/- to the respondent/plaintiff, which included the profit element and interest. The appellant/defendant agreed that he shall pay the said amount to the respondent/plaintiff in three instalments i.e. ₹ 25 lacs in June, ₹ 50 lacs in July ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheques worth ₹ 1,40,00,000/- with an assurance that they would not be presented for encashment till the flats could be sold at a reasonable price. 8. All the aforesaid contentions were however denied by the respondent/plaintiff in his reply to the application for leave to defend and he reiterated the averments made in the plaint. 9. After examining the pleas taken by the appellant/defendant in the leave to defend application and observing that he had admitted to the execution of the Agreement to Sell dated 5.11.2010, the MOU dated 6.6.2013, Letter of Commitment dated 14.12.2014 and confirmed having received a sum of ₹ 1,06,50,000/- from the respondent/plaintiff, the learned trial court held that it was very difficult to accept the explanation offered by him that he had never agreed to sell the suit premises to the respondent/plaintiff and had only received moneys from him for undertaking construction of flats. It was further noticed that nowhere did the Agreement to Sell dated 5.11.2010 refer to any agreement between the parties of sharing the profits from the sale proceeds from the flats proposed to be constructed by the appellant/ defendant. Lastly, the trial c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled to leave to sign judgment and 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 positively good defence the plaintiff is not entitled 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 plaintiff's 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, it is considered necessary to examine the documents executed between the parties. 15. The first relevant document is the Agreement to Sell dated 5.11.2010 executed by the parties, the recital whereof and the clauses are reproduced hereinunder for ready reference: AGREEMENT TO SELL This Cancellation Agreement is made at New Delhi on 05.11.2011 between MR. MUKESH KUMAR SINGH S/o Shri BINAY KUMAR SINGH R/o FLAT NO.266, VEER AWASH SECTOR 18A, DWARKA, NEW DELHI 110075 hereinafter called the FIRST PARTY/SELLER; AND MR. SATISH CHANDRA MISHRA S/O LATE SHRI GUNJAN MISHRA R/O 33A, CHANDRANATH CHATERJEE STREET, MERLINE JASMINE BHOWANIPUR, KOLKATA-25 (WEST BENGAL) hereinafter called the SECOND PARTY/PURCHASER. WHEREAS the Second party was owner and in possession of Entire under construction building which is on PROPERTY NO.120-A, which total land area admeasuring 128 square yards, out of KHASRA NO.20/13, situated in the area of VILLAGE MATIALA, New Delhi, colony known as JAIN COLONY PART-1, T-BLOCK EXTENSION, UTTAM NAGAR, NEW DELHI-110059 and entire property is bounded as under: EAST : ROAD 20 FEETS WEST : GALI 5 FEETS NORTH : PLOT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first party fails to execute the sale documents within stipulated period in favour of the second party or his/her/their nominee(s) or neglects to do so or any defect is found in the title of the first party then the second party shall have the right to get the double of the earnest money from the first party or get completed this transaction through court of law. 7. That the first party shall not create any charges over the said property after the execution of this agreement and first party has no right to sell it to anybody else after the signing of this agreement, however second party has got rights to sell the said property to anybody else without any objection from the first party. 8. That the first party hereby further confirms and declares that this agreement is irrevocable and shall be final and binding on his/her/their heirs, executors, administrators and assigns and is enforceable through the competent court of law. 9. That the expression of the parties shall mean and include their legal heirs, successors, executors, representatives and assigns respectively. 16. It is evident from a plain reading of the aforesaid document that no reference has been ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OU is made at New Delhi on 06.06.2013 between : MR. MUKESH KUMAR SINGH S/o Shri BINAY KUMAR SINGH R/o FLAT NO.266, VEER AWASH SECTOR 18A, DWARKA, NEW DELHI 110075 hereinafter called the FIRST PARTY/SELLER; AND MR. SATISH CHANDRA MISHRA S/O LATE SHRI GUNJAN MISHRA R/O 33A, CHANDRANATH CHATERJEE STREET, MERLINE JASMINE BHOWANIPUR, KOLKATA-25 (WEST BENGAL) hereinafter called the SECOND PARTY/PURCHASER. WHEREAS the Second party was paid sum of ₹ 1,06,50,000/- (Rupees One Crore Six Lakh and Fifty Thousand Only) to the first party seller vide agreement to sell dated 05.11.2010 against Entire under construction building which is on PROPERTY NO.120-A, which total land area admeasuring 128 square yards, out of KHASRA NO.20/13, situated in the area of VILLAGE MATIALA, New Delhi, colony known as JAIN COLONY PART-1, T-BLOCK EXTENSION, UTTAM NAGAR, NEW DELHI-110059. That after the cancellation of above property deals vide cancellation agreement dated 20.01.2012 first has assures to second party that I will return you ₹ 1,40,00,000/- (Rupees One Crore Forty Lakh only) including profit of above said property in part time to time. That after many comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring him that this will be the final commitments that I will pay all the amount given post dated cheque by me. The issues cheques details are as mentioned below : . Sr.No Amount Cheque No. Date Drawn on 1 35,00,000/- 064480 10.03.2014 ICICI Bank Ltd.Sector-5, Dwarka, N. Delhi 2 50,00,000/- 064481 15.04.2014 ---- Do---- 3 25,00,000/- 064482 10.05.2014 ---- Do---- 4 30,00,000/- 064483 20.05.2014 ---- Do---- Declaration: Above said statement are given by me in my own belief faith. (Mukesh Kumar Singh) 22. The aforesaid documents when read together, make it abundantly clear that there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich was to sell the entire under-construction building to the respondent/plaintiff for a certain amount. The MOU goes on to record that the parties had agreed to cancel the Agreement to Sell on the assurance of the appellant/defendant that he would return the sum of ₹ 1,40,00,000/- to the respondent/plaintiff, which included the profit element. The Letter of Commitment dated 14.2.2014 executed by the appellant/defendant records that he had to pay a sum of ₹ 1,40,00,000/- to the respondent/plaintiff, which included the principal amount invested by him and he had had failed to abide by his earlier commitments made in this regard and had issued four post-dated cheques for returning the said amount to the respondent/plaintiff. 27. In the light of aforesaid documents, it does not lie in the mouth of the appellant/defendant to set up an entirely different story in his leave to defend application which is not borne out from any of the documents on the record. All the aforesaid documents and the conduct of the parties when examined together, leaves no scope of doubt that the appellant/defendant had entered into an Agreement to Sell with the respondent/plaintiff in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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