Prathiba M. Singh, J.

CM No. 15296/2015 (filing of additional documents)

1. By way of this application, Appellant seeks to bring on record the copy of the record slip in respect of the cheque book from which the cheques were issued to the Plaintiff as also the copy of the legal notice dated 7th December, 2009 on record.

2. A perusal of the documents reveals that the same are relevant for the adjudication of the appeal and this application was filed at the initial stage of the appeal itself. The said documents are taken on record.

3. Application is allowed and disposed of in the above terms.

CM No. 20167/2017 (condonation of delay)

4. This is an application seeking condonation of delay in depositing the amount of Rs.2 Lakhs with the Registrar General of this Court. Delay in depositing the amount is condoned.

5. Application is allowed and disposed of in the above terms.

RFA 545/2015

6. This is an appeal against the impugned judgment and decree dated 18th April, 2015 by which the learned Trial Court decreed the suit of the Respondent/Plaintiff (hereinafter, 'Plaintiff') in the following terms :

“(a) A money decree in the sum of Rs.6,00,000/- (Rupees Six Lacs Only) as principal amount;

(b) Pendentelite interest @ 12 % per annum from the date of institution of suit till the date of decree and future interest @ 6% per annum till the date of realization.

(c) Parties to bear their own costs.”

7. The plaint was based upon an agreement to sell dated 30th May, 2009 for property bearing no. Flat No. 587, 2nd Floor, Pocket-2, Phase -II, Sector 14, Dwarka, New Delhi. It is the case of Plaintiff that a sum of Rs.6 Lakhs was paid by Plaintiff to the Appellant/Defendant (hereinafter, 'Defendant') as bayana. It is the case of the Plaintiff that the Defendant was not willing to perform the agreement to sell and accordingly, a legal was issued and the Defendant offered to return the amount. Accordingly, a cheque for a sum of Rs.6 Lakhs bearing no.721954 dated 2nd May 2010 drawn on Syndicate Bank, Lodhi Road, New Delhi was issued by the Defendant in favour of Plaintiff. Plaintiff further states that the cheque was presented by the Plaintiff but was dishonoured for “funds insufficient” on 7th July, 2010. Plaintiff further submits that by issuing notice dated 16th July, 2010, the Defendant was called upon to honour the payment, which was not done, and hence the Plaintiff filed the subject suit for recovery of Rs.6 Lakhs along with interest. Along with the plaint, Plaintiff filed the original cheque dated 2nd May, 2010 bearing no.721954 for the sum of Rs.6 Lakhs, bank memo with remarks “funds insufficient” and notice dated 16th July 2010.

8. In the leave to defend application, the Defendant pleaded that the agreement to sell as claimed by the Plaintiff was never signed by the Defendant. It was also denied that the amount of Rs.6 Lakhs was paid as bayana by the Plaintiff to the Defendant. Defendant put up the plea that the cheque was issued to one Mr. Amit who had been an agent for sanctioning of loan from ICICI Bank, Pitampura Branch. The Defendant, therefore, submitted that the cheque having not been issued to the Plaintiff, it appears that some collusion has happened between Mr. Amit and the Plaintiff and that the Defendant is not aware as to how the cheque which was given for the ICICI Bank was found in the possession of the Plaintiff.

9. The Trial Court, after hearing arguments, held that since the cheque itself is admitted, the Defendant has taken a lame excuse and she does not have any defence in her favour.

10. After hearing learned counsel for the parties, it is found that the Trial Court had initially not issued notice in the suit under Order XXXVII of Code of Civil Procedure, 1908 (hereinafter, 'CPC'). The Trial Court had called for the original agreement to sell and sought some clarifications. Plaintiff had, in his statement, recorded on 25th August, 2010, stated as under :

“Suit No. 225/10

25.08.2010

Statement of Sh. Santosh Shukla Son of Sh. M.P.