JUDGMENT :

JAYANT NATH, J.

IA No.2927/2018

1. This application is filed by the plaintiff under Order 13A seeking pronouncement of Summary Judgment against the defendants. The plaintiff has filed the present suit for recovery of a sum of Rs.17,91,00,750/- apart from other reliefs. The case of the plaintiffs is that defendant No.2 claiming himself to be the Director of defendant No.1 company after negotiations and deliberations entered into a Money Receipt Agreement with the plaintiffs dated 5.5.2014 signed on 6.5.2014 for transfer of the entire shareholding in defendant No.1 company in favour of plaintiffs free from all encumberances for Rs.42,25,00,000/-. The plaintiff is also said to have paid Rs.9,00,00,000/- to defendant No.2 at the same time. It is stated that by 11.5.2014 defendant No.2 received total amount of Rs.12,00,00,000/- from the plaintiffs. Besides, defendant No.2 also received various cheques on 11.5.2014 in the name of defendants No.1,3,4 and 5 for Rs.1,50,00,000/-. One cheque of Rs.50,00,000/- issued in favour of defendant No.1 was never presented by the defendants. On 5.12.2014 it is pleaded that the defendants got a pre-printed M.O.U. executed from the plaintiff re-fixing the total consideration as Rs.40,12,50,000/-. On 14.2.2015 a third agreement was executed. The price was refixed by the defendants at Rs.36,00,00,000/- by giving a credit of Rs.6,25,000/- already paid. It is pleaded that by this time the plaintiff has already paid to the defendants a sum of Rs.17,91,00,750/-.

2. In August 2015 the defendant No.3 is said to have unilaterally and willfully decided to cancel the contract. On 2.9.2015 the plaintiff received a letter from defendant No.3 threatening to forfeit the amount already received. Hence, it is pleaded that from the aforesaid facts it is clear that defendant No.2 has for and on behalf of the other defendants received a sum of Rs.11,00,00,000/- whereas defendants No.3 to 5 have received an amount of Rs.6,91,00,750/- from the plaintiffs in collusion with each other.

3. In the written statement defendants No.1, 3, 4 and 5 have pleaded that defendant No.2 is not a party to the MOU dated 14.2.2015. It is further stated that any payments made to defendant No.2 are distinct and independent of the MOU and have nothing to do with the said defendants. Similar pleas are made regarding the Agreement dated 5.12.2014. It has been stated that payments received by defendant No.2 are not admitted and cannot be subject matter of claim against the answering defendants. It is further pleaded that an amount of Rs.4,91,00,000/- was received as earnest money by the said defendant. MOU dated 5.12.2014 specifically provided that if the balance consideration was not paid by the plaintiffs on or before 26.12.2014 the same was liable to be forfeited. Further, as per that MOU dated 14.2.2015, the last date of payment of balance amount was mutually revised to 30.4.2015. As the plaintiff failed to make the payment within the said stipulated period the defendants claim to have forfeited the earnest money paid to the said defendants.

4. Defendant No.2 has in his written statement denied the entirety of the submissions of the plaintiff stating that nobody would pay Rs.42,25,00,000/- to buy a petrol pump which is only a dealership with Bharat Petroleum. The land on which the petrol pump is built is also a tenanted property. It is also denied that a sum of Rs.9,00,00,000/- was paid in cash to defendant No.2. Defendant No.2, however, does not deny his signatures on the said agreement. However, he states that the purpose and intent to sign these documents was to help the plaintiff get a loan from a bank. No money was received by the said defendant No.2.

5. I have heard learned counsel for the parties.

6. Learned senior counsel for the plaintiffs has vehemently argued that defendant No.2 all along represented himself to be the shareholder/Director of the respondent company. He has signed the agreement dated 5.12.2014 alongwith Ravi Tal