IMPORTANT POINT
The application for summary judgment is not maintainable due to triable issues, including limitation and withdrawal of the suit.

JUDGMENT :

1. This application has been filed by the plaintiff seeking for summary judgment against the defendants in terms of the suit prayers as the plaintiff contends that the defendants have no real prospect of successfully defending the suit claim.

2. In the forthcoming paragraphs, the parties are described as per their litigative status in the main suit. The plaintiff is the land owner and the first defendant is the builder. The defendants 2 to 4 are the Directors of the first defendant company. The plaintiff had paid a sum of Rs.1,50,00,000/- as advance to the first defendant, for construction of a building. The plaintiff thought it fit not to proceed with the construction thereafter and therefore, sought for refund of the advance from the first defendant. The first defendant had also not commenced the construction work on receipt of the advance amount of Rs.1,50,00,000/- from the plaintiff. The cheque issued by the first defendant towards refund of the advance amount to the plaintiff was also returned dishonoured for 'insufficiency of funds', which resulted in the plaintiff filing the suit as well as filing parallel proceedings before the National Company Law Tribunal under the Insolvency and Bankruptcy Code, 2016. The National Company Law Tribunal had dismissed the application of the plaintiff and aggrieved by the same, the plaintiff had preferred an appeal before the National Company Law Appellate Tribunal. The National Company Law Appellate Tribunal, after setting aside the order of the National Company Law Tribunal, remanded the matter back to the National Company Law Tribunal for fresh consideration. The above stated facts are un-disputed facts.

3. However, before the National Company Law Tribunal (NCLT), subsequent to the order of remand passed by the National Company Law Appellate Tribunal, the plaintiff and the first defendant represented by the second defendant entered into a Memorandum of Compromise dated 14.09.2019. Under the Memorandum of Compromise, the first defendant undertook to pay towards full and final settlement of the plaintiff's claim a sum of Rs.1,25,00,000/- in two tranches, as detailed hereunder:

(a) Rs.55,00,000/- (Rupees Fifty Five Lakhs) on withdrawal of the Company Petition vide two Demand Drafts dated 13.09.2019 bearing D.D. No.102847 for Rs.20,00,000/- drawn on Axis Bank and D.D. No.000910 for Rs.35,00,000/- drawn on Axis Bank;

(b) Rs.70,00,000/- (Rupees Seventy Lakhs) vide Cheque No.001114 dated 31.03.2020 drawn on ICICI Bank Limited.

4. The plaintiff and the first defendant had also entered into another Memorandum of Compromise dated 14.09.2019 in respect of the interest amount payable by the first defendant to the plaintiff, which was quantified at Rs.45,00,000/-. The Memorandum of Compromise dated 14.09.2019 was recorded by the National Company Law Tribunal and after recording the same, the Company Petition stood dismissed as withdrawn by the order of the National Company Law Tribunal dated 16.09.2019. In terms of the Memorandum of Compromise dated 14.09.2019, the plaintiff encashed the Demand Draft for a sum of Rs.55,00,000/- given by the first defendant under the Memorandum of Compromise dated 14.09.2019. However, the post-dated cheque dated 31.03.2020 given by the first defendant for a sum of Rs.70,00,000/- towards the balance principal amount, on presentation by the plaintiff was returned dishonoured for the reason ‘insufficient funds’.

5. The plaintiff filed Interlocutory Application before the National Company Law Tribunal in I.A. No.936 of 2021 seeking to revive the insolvency proceedings, which was dismissed as withdrawn earlier on account of the Memorandum of Compromise entered into between the plaintiff and the first defendant dated 14.09.2019. By order dated 15.02.2022, the National Company Law Tribunal dismissed the I.A. No.936 of 2021 filed by the plaintiff on the ground of maintainability. An appeal against the said order dated 15.02.2022 passed in I.A. No.936 of 2021 has als