The court found that the suit was maintainable under Order XXXVII of CPC and not barred by limitation due to the deposit of TDS by the defendant. The court also found that the defendant had raised a substantial defence regarding the plea of set off/adjustment.

JUDGMENT :

NAVIN CHAWLA, J.

I.A. 15634/2018

1. The present Summary Suit has been filed by the plaintiff under Order XXXVII of the Civil Procedure Code, 1908 (hereinafter referred to as the ‘Act’) seeking recovery of Rs. 11,79,83,525/- (Rupees Eleven Crores Seventy-Nine Lakhs Eighty-Three Thousand Five Hundred and Twenty-Five only) along with pendente-lite and future interest till the realization of the amount in full from the defendant.

BRIEF FACTS

2. It is the case of the plaintiff that the plaintiff is a leading company in the Real Estate sector, and is engaged in the business of development of residential townships, multistorey high-rise buildings, shopping and commercial plaza, etc. The defendant is also a registered company involved in the business of Real Estate.

3. In the plaint, it has been pleaded as under:

i. Sometime in the month of July, 2012, the defendant had approached the plaintiff-company and requested the plaintiff to undertake the work of development on a parcel of land admeasuring 1.75 Acres falling in Rectangle No. 97, Kila No. 23.2 (1-7), Kila No. 18 (6-13) and Kila No. 23/1 (6-13) situated in ‘A’ Block of the integrated residential colony called ‘ESSENCIA’ in the revenue estate of Village Badshapur, Tehsil & District Gurgaon (part of Sector 67 of Gurgaon-Manesar Urban Complex Plan 2031).

ii. The defendant had represented to the plaintiff that the said property was free from all sorts of encumbrances, charge, mortgage and/or lien, and that there would be no impediment to the development work undertaken by the plaintiff-company.

iii. It was further represented to the plaintiff-company that the defendant had an agreement with one Universal Buildwell Pvt. Ltd. (hereinafter referred to as “UBL”), which stood terminated vide Notice of Termination dated 20.10.2011.

iv. Based on the above-mentioned representations, the plaintiff-company agreed to invest its money for the Real Estate project and entered into a Memorandum of Understanding dated 12.07.2012 (in short ‘MOU’) with the defendant.

v. As per Clause 3 of the MoU, the plaintiff advanced a sum of Rs. 12 Crores to the defendant-company, for enabling the defendant-company to successfully conclude the termination of the Agreement dated 27.12.2010 with UBL within a period of 4 months. In case the defendant-company failed to conclude the termination of the agreement with UBL within the stipulated time, then the plaintiff-company had the option of either calling for a refund of the entire Rs. 12 Crores with interest @ 24% p.a. or to extend the time period.

vi. The defendant-company failed to get the termination of the Agreement concluded, on the other hand, got the already terminated Agreement with UBL alive/affirmed/ratified by way of compromise and the undertaking recorded in the order dated 17.04.2013 before the Learned Additional District Judge, Gurgaon in Arbitration Case No. 43/2011.

vii. A Deed of Cancellation was duly signed and executed between the parties herein whereby the MoU dated 12.07.2012 was mutually cancelled, and it was agreed that the defendant-company shall refund the entire amount of Rs. 12 Crores with interest @ 24% p.a. to the plaintiff. As per the terms of the Cancellation Deed, the defendant was obligated to liquidate its entire liability towards the plaintiff on or before 31.12.2013.

viii. Due to financial constraints, the defendant-company, through its director Mr. S.K. Jain, approached the plaintiff-company for an extension of time for making the repayment. It was further assured that the defendant-company shall liquidate the entire outstanding liability alongwith interest @ 24% p.a. on or before 31.03.2015. Thereafter, the time for repayment was extended till 31.03.2015.

ix. The defendant-company has been deducting TDS @ 10% on the interest accrued and has even been depositing the same to the credit of the government, but still hasn't paid any amount to the plaintiff-company after 27.03.2015.

x. It is further stated that the last ‘on account’ paymen