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High Court Of Delhi
NANDAN PRASAD GUPTA - Appellant
Versus
SUNIL GUPTA - Respondent
Suit 167 of 2002
Decided On : 02/28/2003
Held :
Under Order 37 CPC, a suit is maintainable on the basis of the agreement. In the present case, the agreement to sell Has been made the basis of the suit, the claim of the plaintiff is to refund the balance of the amount advanced by the defendant under the said agreement. The amount claimed by the plaintiff is the ascertained amount. The defendant has made the payment of three cheques each amounting to Rs. 2 lakhs on 23.12.99, 19.4.2000, 14.6.2000 each after the plaintiff has asked to refund his amount advanced under the agreement to sell. The defendant admits the payment of this cheque amount to the plaintiff. Since the plaintiff has asked for the refund of his amount because of the failure of the defendant to hand over the possession on the appointed day, i.e. 30.6.2000, on the ground that the defendant has failed to complete the sale transaction. The plaintiff has exercised his option to cancel the agreement to sell for default of the defendant. As such, the claim of the plaintiff for the refund of the remaining ascertained amount of Rs. 7,50,000/- (Rupees Seven lakhs and fifty thousand only) comes within the purview of the Order 37 CPC. As stated above, the defendant has already acknowledged his liability by refunding Rs. 4.5 lakhs to the plaintiff out of Rs. 12 lakhs in part performing and has acted upon the option exercised by the plaintiff for the refund of the money. In view of these circumstances, the claim of the plaintiff on the basis of agreement to sell in the suit, on the basis of agreement to sell for the ascertained amount is within the purview of the Order 37 CPC.
Leave to defend is not to be granted where the defense is sham or illusory. I may have considered the grant of conditional leave but in this case the counter claim, if any, is not only contrary to the written documents and based on oral evidence which, prima facie, appears to be contrary to the provisions of Sections 91 & 92 of the Evidence Act, but furthermore is a claim against a third party i.e. Son of the defendant. Even the consideration of such a defense would merely cause unnecessary delay in the disposal of the suit.
If the defendant has any such claim against the plaintiff, he can bring a separate suit in that behalf. Even otherwise in the present case, the counter claim tried to be set up by the defendant as a ground to entitle him leave to defense is not sought against the plaintiff, but against the third party, i.e., Shri Ashok Gupta who happens to be the son of the plaintiff. As such, the same cannot be taken to constitute a ground against the claim of the plaintiff by way of even as a counter claim.
For the reasons stated above the application for leave to defend is dismissed.
( 1 ). THE plaintiff has filed the suit under Order 37 CPC on the basis of the sale agreement agreement executed by the defendant in his favour for the sale of the first floor of the property bearing No. D-68, East of Kailash, New Delhi for a total sale consideration amounting to Rs. 25 lakhs.
( 2 ). IT is stated that the plaintiff has paid Rs. 6 lakhs through cheque No. 481325 dated 30. 10. 99 drawn on Bank of India, Haus Khas, New Delhi. The possession of the property was to be handed over after completion of construction on or before 30. 6. 2000 and simultaneously the sale of documents were to be executed and registered besides the balance consideration of Rs. 19 lakhs was to be paid at the time of registration of the documents. It is further stated that the defendant from time to time approached the plaintiff and expressed need for money on the ground that construction is going on and he is short of money. The plaintiff believed his representation and entrusted a sum of Rs. 6 lakhs in three installments of Rs. 2 lakhs each on 23. 12. 99, 19. 4. 2000, 14. 6. 2000. All the payments were made through cheques. As per the plaintiff he has made a total payment of Rs. 12 lakhs to the defendant under the agreement to sell. However, as per the plaintiff, he found that the progress of work is at a snail speed the defendant would not be able to give the possession and execute sale documents by the agreed date i. e, 30. 6. 2000. The apprehension of the plaintiff proved true and the date passed off without the plaintiff getting anything into his hands. As such, the plaintiff became suspicious and the defendant to refund his money advanced under the agreement to sell as the defendant had no intention to complete the sale transaction. As per the plaintiff, the defendant agreed and handed over a sum of Rs. 4. 5 lakhs through cheque dated 8. 8. 2000 towards the refund of monies advanced by the plaintiff. The defendant undertook to repay the balance of Rs. 7. 5 lakhs alongwith 25% interest within two months. However, lateron, the defendant failed to fulfill this promise as well. Hence a notice dated 5. 12. 2001 was served asking the defendant for payment of balance amount of Rs. 7. 5 lakhs with interest. @ 24% per annum w. e. f. 23. 12. 1999, in alternative to execute the agreement of sale in favour of the plaintiff.
( 3 ). THE suit is under Order 37 CPC Defendant filed the leave to defend after the service of summons for judgment. The grounds raised by the defendant in the application for leave to defend are that firstly, the present suit is not maintainable under Order 37 as there is no acknowledgement of debt that in writing. Secondly, the defendant has stated that there was an oral agreement between the defendant and one Shri Ashok Gupta who is the son of the plaintiff. Under the said oral agreement, it was agreed that the defendant alongwith Shri Ashok Gupta would invest equal amount under the collaboration agreement with Mrs. Vinay Tuli who is the owner of the property in the reconstruction of the premises bearing No. D-68, East of Kailash Colony, New Delhi. In terms of the said oral agreement, Shri Ashok Gupta started making investment towards his share in the construction. However, he wanted to secure his interest and accordingly, he persuaded the defendant to execute an agreement to sell with regard to the first floor of the property in favour of his father, i. e, the plaintiff Nandan Prasad Gupta. Accordingly, the agreement to sell was executed by the defendant in favour of the plaintiff. However, there was no intention between the plaintiff and the defendant to enforce the agreement to sell and it was only a piece of paper and was executed only to secure finance invested by Shri Ashok Gupta, son of the plaintiff. It is also pleaded that the agreement to sell did not confer any right or create any interest in favour of the plaintiff. The defendant also pleads that Shri Ashok Gupta has not obeyed the collaboration agreem
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