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TMI Blog2018 (9) TMI 928X X X X Extracts X X X X X X X X Extracts X X X X ..... shows that the same have been only signed by the Defendants and not by the Plaintiff. In any event, these escrow agreements were prior to the Settlement Agreement, which supersedes the escrow agreements. This Court has no option but to decree the suit along with a higher rate of interest - Suit is disposed off. - CS (OS) 3789/2014, I.As. 14043/2016, 14131/2016 & 9555/2018 - - - Dated:- 7-9-2018 - PRATHIBA M. SINGH J. Plaintiff Through: Mr. Raghavendra S. Srivastava and Ms. Komal Mundhra, Advocates with Mr. Prabhar Tiwari, AR in person. Defendants Through: Mr. Niraj Gupta and Mr. Umair Ahmad Siddiqui, Advocates. JUDGMENT Prathiba M. Singh, J. 1. The Plaintiff is a wholly owned subsidiary company of M/s HCL Infosystems Ltd. and is engaged in the business of importing, distributing, selling and servicing of various products and accessories. The Defendants were appointed as resale/distribution cum stockists of the Plaintiff s goods. Agreements dated 26th November, 2012 and 29th October, 2012 were entered into with M/s. Stalco Consultancy System Pvt. Ltd.- Defendant No.1 and M/s. Sylvesa Infotech Pvt. Ltd. - the Defendant No. 2. 2. Various goods were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inant put up on 04.09.2014. 4. The matter was thereafter listed before the concerned Court on 4th September, 2014 on which date, the following order was passed. 04.09.2014 Present: Sh. R.K. Goal, Ld. Counsel for complainant. Sh. Neeraj Gupta, Ld. Counsel, for accused. File perused. In view of the judgment passed by Hon'ble Supreme Court in Dashrath Rupsingh Rathod Vs. State of Maharashtra Anr., CrI. Appeal No. 2287 of 2009, passed on 01.08.2014 hereinafter Dashrath (supra) , this court has no jurisdiction to try the present complaint as the bank of the accused is situated outside the territorial jurisdiction of this court. Vide the said judgment the Hon'ble Apex Court has observed in para 19 as under: .We clarify that the Complainant is statutorily bound to comply with Section 177 etc. of the CrPC and therefore the place or situs where the Section 138 Complaint is to be filed is not of his choosing. The territorial jurisdiction is restricted to the Court within whose local jurisdiction the offence was committee, which in the present context is where the cheque is dishonoured by the bank on which it is drawn . It was furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction, the payment is not liable to be made. 6. According to the Plaintiff a sum of ₹ 1,42,72,612/- was due from the Defendant No.1 and ₹ 3,96,15,896/- was due from the Defendant No.2 coming to a total of ₹ 5,38,88,509/-. Since the Defendants did not make the payments, the present suit under Order XXXVII CPC came to be filed. The suit was registered under Order XXXVII CPC and thereafter, summons for judgment was filed by the Plaintiff. The Defendants filed their leave to defend. The grounds taken in the leave to defend are similar to the reply to the legal notice i.e. since the settlement was not recorded, no payment is liable to be made. Submissions have been heard on behalf of both the parties. 7. Learned counsel for the Plaintiff has submitted that the Settlement Agreement having been entered in legal proceedings and the same having been filed before the Court where the Section 138 complaint was pending, and the said Court having been taken the agreement on record, the agreement is completely binding on the parties and the Defendants ought to be held to be bound down to the same. He submits that only because of the judgment of the Supreme Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking the payment, however, the Defendants would not pay any interest. This clearly shows that the Defendants are avoiding their liability to make the payment of a huge amount of money, which is admittedly due. 12. The Defendants took the advantage of the Settlement Deed due to the closure of the criminal complaint pending under Section 138 of the NI Act and are clearly choosing to escape from their responsibility of making payment. The entire sum due as per the settlement is an admitted debt, for which a suit under Order XXXVII CPC would clearly be maintainable. The effect of the Settlement Agreement being taken on record, is that it has been approved with the seal of the Court. 13. This court need not to venture into the question as to whether the said taking on record would constitute a decree by the Court in terms of the settlement as the Plaintiff has not filed an execution but a suit under Order XXXVII CPC seeking implementation of the admitted Settlement Agreement. 14. The stand of the Defendants is dishonest and unscrupulous to say the least. In a suit under Order XXXVII CPC all that the Court needs to see is as to whether the Defendants have raised a triable issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court . 15. The Defendants have not only enjoyed the entire sum which was to be paid to the Plaintiff since 2014, but even as of 2018, when submissions were heard in the matter, the Defendants were not willing to make the payment. Repeatedly, the matter was adjourned on various occasions including on 16th July, 2018, 18th July, 2018 and 24th July, 2018 and finally on 9th August, 2018 the submissions were heard and the judgment was reserved. On all these occasions, learned counsel for the Defendants had taken the stand, that if the settlement is recorded now, the payments would be as per the instalments in the Settlement Agreement and even now the Defendants are not willing to make the entire payment at one go. The Defendants categorically asserted before the Court that no interest is liable to be paid by them. 16. After judgment was reserved, Defendants have sought to rely on escrow agreements dated 19th June, 2013 and 7th December, 2012. Firstly, both of these escrow agreements were not relied upo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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