Defendant entitled to conditional leave to defend if a fair or bona fide or reasonable defense is raised, even if not a positively good defense.

G.S. Sistani, J. (Oral):

I.A.NOS.12762 of 2013 & 3928 of 2014

1. Plaintiff has filed the present suit under the provisions of Order XXXVII of the Code of Civil Procedure for recovery of Rs.57,40,000/- along with pendente lite and future interest at the rate of 18%, per annum. Present suit is based on dishonour of four cheques in the sum of Rs.10.00 lakhs, each. Plaintiff also seeks a decree on admissions.

2. Reliance is placed by the plaintiff on a copy of the application drafted and signed by the parties under Order XXIII Rule 3 CPC wherein the defendant had agreed to pay a sum of Rs.62.00 lakhs in full and final settlement to the plaintiff.

3. I.A.No.12762/2013 has been filed by plaintiff under Order XII Rule 6 CPC for passing judgment on admissions. I.A.No.3928/2014 has been filed by defendant seeking leave to defend. Both the applications have been heard together and are being disposed of by a common order.

4. The brief background of the present case is that the plaintiff entered into an Agreement to Sell dated 05.07.2009 with the mother of the defendant (Late Smt. Jaya Prada) with respect to a DDA LIG Flat bearing No.9-A, Ground Floor, admeasuring 1100 sq. feet, situated at Ber Sarai, New Delhi. Late Smt. Jaya Prada was the exclusive owner of the said property and she agreed to sell the same for a total sale consideration of Rs.22.00 lakhs, out of which the plaintiff claims to have paid Rs.10.00 lakhs, as earnest money, at the time of signing of the Agreement to Sell. As per the terms of the said agreement, sale transaction was to be completed on or before 04.10.2010.

5. Thereafter on 24.02.2010, mother of the defendant requested the plaintiff for more payment and assured the plaintiff to execute the necessary transfer documents in his favour on or before 04.10.2010. Pursuant to the request made by the mother of the defendant, plaintiff made a further payment of Rs.10.00 lakhs on 24.2.2010. Late Smt. Jaya Prada, mother of the defendant, even after taking substantial part of sale consideration from the plaintiff, failed to fulfill her obligations under the agreement to sell dated 05.07.2009.

6. Further, as per the plaint, the defendant took upon himself the responsibility to liquidate the liability of his mother, subsequent to which a Memorandum of Understanding dated 28.10.2010 was executed between the plaintiff and Late Smt. Jaya Prada, whereby, Late Smt. Jaya and her son i.e. defendant, agreed to pay to the plaintiff a total sum of Rs. 40 Lakhs. Pursuant thereto, defendant alongwith his mother issued four post dated cheques of Rs.10 Lakhs each in favour of the plaintiff. The said cheques were issued from a Bank Account held in the joint names of Late Smt. Jaya Prada and defendant. However, said cheques were returned dishonored on presentation with remarks “Funds Insufficient”.

7. A legal notice dated 26.03.2010 was issued by the plaintiff to both, defendant and his mother, calling upon them to make the payment of Rs.40 Lakhs within 15 days. On defendant?s failure to make the payment, plaintiff filed a criminal complaint under Section 138 of Negotiable Instruments Act, which is pending adjudication. During the pendency of the criminal complaint, plaintiff came to know that the mother of the defendant expired on 17.10.2011.

8. Plaintiff has claimed from the defendant Rs. 40 Lakhs alongwith interest @ 18% p.a., which as on the date of filing of the present suit is calculated at Rs.57,40,000/- (i.e. Rs.40,00,000 plus Rs.17,40,000).

9. Plaintiff also prays for a decree under Order 12 Rule 6 CPC. It is submitted by counsel for the plaintiff that during the pendency of the suit parties entered into an amicable settlement and the parties signed an application under Order 23 Rule 3 CPC. The defendant agreed to pay to the plaintiff a sum of Rs.62.0 lacs along with interest @ 18% per annum w.e.f. 20.9.2013 till realization, besides agreed for certain other conditions. Counsel submits that the defendant had disputed his si