Jayant Nath, J.

Ia No.1344/2018

1. This application is filed by the defendant under Order 37 Rule 3(5) CPC seeking unconditional leave to defend the suit.

2. The accompanying plaint is filed under Order 37 CPC for recovery of Rs.71,86,00,000/- along with interest. The case of the plaintiff is that the plaintiff and the wife of the plaintiff, namely, Mrs. Ranjana Garg had 40% shares in the company Vikas Telecom Pvt. Ltd. They entered into two share purchase agreements with Embassy Ventures Office Pvt. Ltd. (hereinafter referred to as Embassy) on 23.04.2014. The plaintiff and Mrs. Ranjana Garg agreed to sell their shareholding of Vikas Telecom Pvt. Ltd. Various agreements were executed i.e. two share purchase agreements, Escrow Agreement-I, Escrow Agreement-II and an Amendment Agreement. It is pleaded that under the Share Purchase Agreement I monies were to be deposited into a Cash Escrow Account maintained by HDFC bank. A separate Escrow Agreement dated 23.04.2014 was also executed between the same parties i.e. Embassy, the plaintiff and his wife, namely, Mrs. Ranjana Garg. Similarly, Share Purchase Agreements II was also executed and signed on 23.04.2014 wherein the balance 11% of the Share Capital owned by the plaintiff and Mrs.Ranjana Garg was transferred to Embassy. Even as per this share purchase agreement, monies were to be deposited into a cash Escrow Account maintained by HDFC Bank and a separate Escrow Agreement was executed. Monies were duly received by the plaintiff and his wife in two tranches pursuant to the said Share Purchase Agreements.

3. The defendant in the present suit i.e. Mr. Jitendra Virwani was holding the position of a Chairman of the Embassy Group at the time when the transaction took place. A Non-Solicitation and Fee Agreement was executed between plaintiff and defendant in order to prevent the plaintiff from soliciting employees, customers, clients, vendors and/or suppliers of the Company-Vikas Telecom Pvt. Ltd. The defendant was to pay to the plaintiff in terms of Clause 4 of the said Agreement a sum of Rs. 71,86,00,000/-. Post dated cheque dated 23.07.2014 of the said sum of Rs. 71.86 crores duly signed by the defendant drawn on ING Vysya Bank, Bangalore was presented to the plaintiff under the Agreement. The defendant subsequently issued a second post dated cheque dated 24.12.2014 for a sum of Rs. 77,52,33,753/-to confirm the intention to pay, as a replacement for the initial cheque dated 23.07.2014. The second cheque included interest accrued due to the delayed payment. However, on 17.12.2014, the defendant intimated to the plaintiff that it was the obligation of the plaintiff to settle the claims of one Sh. Satish Kumar Gaur and if the same were not done, the defendant would issue stop payment instructions to stop encashment of the post dated cheque dated 24.12.2014. It is pleaded that the said letter dated 17.12.2014 of the defendant was only an excuse to wriggle out of its commitment. The plaintiff sought to encash the cheque dated 24.12.2014. However the cheque was returned unpaid with the endorsement "Payment Stopped by the Drawer?. On 03.07.2017, a legal notice was sent to the defendant.

4. It is reiterated by the plaintiff that the two Share Purchase Agreements have been closed to the complete satisfaction of the plaintiff and the defendant in 2014. No complaint has been raised by any of the parties before any court or forum. The consideration for the said agreements have been accepted by the plaintiff. For the purpose of putting closure to the matter at hand, an amendment agreement was also executed between the Embassy, the plaintiff and his wife and also Vikas Telecom Pvt. Ltd. The said agreement expressly discharged the plaintiff of all representations, liabilities and/or obligations arising out of the Share Purchase Agreement. Hence, the present suit is filed for recovery of the stated sum under the Non-Solicitation and Fee Agreement.

5. I may only note that in this case initially