9911796707
TMI Blog2020 (2) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... Crores was granted to the defendants to contest the suit filed by respondent/plaintiff under Order XXXVII CPC. 2. Reverting to Review Petition No.225/2019, the learned counsel for defendants/applicants urge the order dated 03.04.2018 suffers from infirmity as the said order is based on the Memorandum of Understanding dated 14.06.2010 (hereinafter referred as "MoU‟) which runs into 11 pages and whereas the plaintiffs have filed only four pages thereof and deliberately did not file Annexures I and II attached to MoU, which fact could not be pleaded earlier. 3. The case of petitioner is as per the MoU, the plaintiff paid a sum of Rs. 3.00 crore to defendant no.1 viz Rs. 1.00 crore on 14.06.2010 and Rs. 2.00 crore on 01.07.2010 by cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demanded the money and the defendants on 05.10.2010 issued six Post Dated Cheques of Rs. 50.00 Lacs each which were also dishonoured for reasons of 'payment stopped‟. Admittedly, in the complaint cases under Section 138 Negotiable Instruments Act, 1881 a settlement agreement was executed wherein it was revealed that an amount of Rs. 3.00 Lacs was deposited by the defendants in Fixed Deposit Receipts but they did not pay a single penny to the farmers for acquisition of their lands. 6. However, the learned counsel for the defendants urge this review is necessitated as the MoU with annexures was never placed on record in original, hence suit under Order XXXVII CPC would never lie; and secondly, the complaint cases under Section 138 NI A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." 9. In the meanwhile, final decree was passed on 10.12.2018 in this suit. The defendants challenged the decree dated 10.12.2018 by filing LPA No.272/2019 but it was also dismissed on 29.08.2019. The Division Bench rather noted:- "4. The order granting conditional leave to defend in the civil suit, dated 3rd April, 2018, was challenged by the appellants in LPA 634/2018. The said appeal was not entertained by this Court vide order dated 20th November, 2018 (Annexure A-1 to the memo of this appeal). Thus, the order passed in CS(OS) 82/2014 dated 3rd April, 2018 granting conditional leave to defend under Order XXXVII Rule 3 (5) CPC has attained finality. 5. It further appears from the facts of the case that the amount to be deposited by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attained finality in the said LPA hence, order dated 03.04.2018 merged in order dated 29.08.2019 of LPA No.272/2019. 11. The impugned order dated 03.04.2018 has since been examined and upheld by the Division Bench on two occasions and stood merged in such orders, thus seeking liberty to challenge interim / conditional order has no meaning. 12. Even otherwise, much has been urged about Annexure I & II to the MoU dated 14.06.2010, being very relevant to the controversy; if were not placed on record by the plaintiff, then what stopped the defendants to place it along with its application for leave to defend. It cannot be believed, the defendant No.1 being a company, having received Rs. 3.00 Crores and expected to act under the MoU for seeki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a settlement was also arrived at between the parties on 29.01.2015 in the complaint cases which read as under:- "The accused No. 2 Rajnish Soni has agreed to pay first himself and on behalf of accused No. 1 KONARK INFRA DEVELOPERS PVT LTD Rs. Three crores to the complainant INDIA AFFORDABLE HOUSING SOLUTIONS, which also includes the claims if any of GoWO towards accused No. 1 & 2 in the following manner: 1. Accused No. 2 shall pay first installment of Rs. Fifty Lakhs to the complainant on 31.07.2015; 2. Accused No. 2 shall pay second installment of Rs. Fifty Lakhs to the complainant on 30.11.2015; 3. Accused No. 2 shall pay third installment of Rs. One Crore to the complainant on 01.01.2016; 4. Accused No. 2 shall pay final inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admissions of defendants made in CC Nos.671/1/2011 and 672/1/2011 and before this Court on 29.03.2015, all goes to belie the claim for review. I find no error apparent on face of record. Rather the conduct of the defendants needs to be condemned. 16. The dismissal of cases under Section 138 NI Act by the learned Magistrate on the basis of non-filing of Annexures I & II without examining the MoU and import of dishonoured cheques, would even otherwise be not binding upon this Court. Oral submissions of any alleged loss without an iota of written record allegedly placed by defendants, cannot be entertained, the impugned order having being merged in orders of LPAs". 17. Even otherwise, there is much delay in filing of review application. 18. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
