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TMI Blog2018 (9) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... e through. These e-mails do not, in our opinion, furnish any reason and ground for grant of leave to the appellant-defendant. Appeal dismissed. - Regular First Appeal (OS) (COMM) No. 19/2018 - - - Dated:- 31-8-2018 - MR. SANJIV KHANNA AND MR. CHANDER SHEKHAR JJ. Appellant Through: Mr. Tanmaya Mehta, Advocate with Mr. Abhishek Mishra, Advocate. Respondent Through: None. SANJIV KHANNA, J. (ORAL) The present Regular First Appeal under Section 96 read with Section 104 of Code of Civil Procedure, 1908 (Code, for short) and Section 13 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 impugns order dated 23rd July, 2018 passed in IA No. 21843/2014 in CS(COMM) No. 599/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant-defendant had repaid ₹ 1 crores and ₹ 50 lacs, a fact accepted in the impugned order. Dishonoured cheques were given by the appellant-defendant to the respondent-plaintiff as a mere security. Reference was made to the e-mail dated 18th January, 2012, sent by Satish Luthra on behalf of the respondent-plaintiff. These pleas were specifically raised in the application for leave to defend. Lastly, the respondent-plaintiff has filed complaints under Section 138 of the Negotiable Instruments Act, 1882, ('N.I. Act' for short) against the appellant- defendant and others which are pending. The decision could adversely impact the defence of the appellant-defendant in the criminal proceedings. 4. The last contention does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . All Clauses mentioned in the clause No. 2,3,5 6 is essence of this Agreement. 8. This Agreement shall not constitute a Partnership between both the Payer and Receiver and none of the Parties hereto shall act/and or hold out as the agent or the Partner of the other parties hereto within the meaning of the Indian Partnership Act, 1932. 9. The Agreement shall also not constitute as Joint Venture or A.O.P. or Money Lending transactions between the Receiver and the Investor. 10. Above terms are agreed, confirmed and binding to Receiver without any type of dispute. There is no doubt that the MoU mentions the word investment but a perusal of the terms and clauses of the MoU would reveal that the appellant-defendant h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a position to refund the amount invested or there was a profit in terms of the sharing arrangement. Contention is incorrect and sham. 7. It is not the case of the appellant-defendant that while making payments of ₹ 1crore and ₹ 50 lacs, they had notified the respondent-plaintiff that the amounts paid should be first adjusted towards the MoU and not towards ₹ 50 lacs paid by the respondent-plaintiff by way of two cheques of ₹ 25 lacs each on 13th June, 2011 and 15th June, 2011, respectively. In these circumstances, it was open to the respondent-defendant to adjust the payments made against ₹ 50 lacs paid by way of two cheques of ₹ 25 lacs each on 13th June, 2011 and 15th June, 2011, respectively. More ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-defendant that the cheques were given as mere security and were not meant be honoured on presentation again does not impress us. The cheques issued were not to be kept in a show-case and were meant to be honoured on presentation. The e-mails placed on record show that the appellant-defendant had not disputed its liability to pay, albeit the appellant-defendant was praying for time as they were facing a liquidity crunch and waiting for certain deals to come through. These e-mails do not, in our opinion, furnish any reason and ground for grant of leave to the appellant-defendant. 11. The appellant-defendant accepts the MoU. The appellant-defendant also accepts having received ₹ 2 crores as mentioned in the MoU and ₹ 50 lacs b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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