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DELHI HIGH COURT
Sanjeev Narula, J.
Avtar Kaur – Appellant
versus
Zuleikha Karnik – Respondent
Civil Suit (Os) No.153 of 2018
Decided on 26.3.2019
Sukhbir Singh and Tajinder Singh, Advocates
IMPORTANT POINT
Money suit – Leave to defend cannot be granted where defence raised is moonshine, sham, illusionary and raises no triable issue.
Headnote:
Civil Procedure Code, 1908 – Order XXXVII Rule 3 (5) read with Section 151 – Money suit – Leave to defend – Agreement to sell – Defendant has only made payment of Rs.10,000,00/- to Plaintiff – Said payment cannot in any manner be considered as a complete discharge of obligations recorded in settlement terms before Mediation Centre – Terms of settlement recorded before Mediation Centre, at the highest can be construed to be suspension of obligations of parties subject to fulfilment of terms of settlement – Defendant, not having complied with said terms, cannot be permitted take benefit of said settlement – Plaintiff is entitled to pursue its remedy in terms of MOU – Said agreement cannot be said to be unenforceable or superseded particularly in view of the default and breach committed by the Defendant – Defence raised in present case is clearly moonshine, sham, illusionary and raises no triable issue – Application is completely devoid of merit and is liable to be dismissed – Suit decreed in favour of Plaintiff and against defendant for recovery of amount of Rs.2,65,00,000/- as principal amount due to Plaintiff in terms of MOU – Further decree passed in favour of Plaintiff for Rs. 25,00,000/- towards damages and due to Plaintiff as per MOU. (Paras 10, 11, 13, 16 and 17)
Result: Suit decreed.
JUDGMENT
Sanjeev Narula, J.—I.A. 921/2019 (delay)
1. For the reasons stated in the application, the delay in filing the application is condoned and the application is disposed of.
I.A. 4150/2019 (delay)
2. For the reasons stated in the application, the delay in re-filing the application is condoned and the application is disposed of.
I.A. 920/2019 (Application under Order XXXVII Rule 3 (5) read with Section 151 CPC)
3. The Plaintiff has approached this Court by invoking Order XXXVII of Code of Civil Procedure, 1908. The prayers made in the suit read as under;
“(i) To pass a decree for Rs.2,65,00,000/- (Rupees Two Crore & Sixty Five Lacs only), being the amount of bill of exchange, under Order XXXVII CPC, in favour of the plaintiff and against the defendant.
(ii) To pass a decree for a sum of liquidated damages for Rs.25,000,00/- (Rs. Twenty Five Lac only), under Order XXXVII CPC, in favour of the plaintiff and against the defendant.
(iii) To allow the cost of litigation, in favour of the plaintiff and against the defendant.”
Brief facts
4. Before dealing with the grounds urged in the present application, it would be apposite to note relevant facts. The parties to the present suit entered into an agreement to Sale dated 01st April. 2015, whereby the Defendant agreed to sell 25% share of the agricultural farm land admeasuring 17 Bigha & 14 biswas, situated in the revenue estate of village Bijwasan, Mehrauli to the Plaintiff for a total sale consideration of Rs.3,00,000,00/-. The Plaintiff (vendee) paid to Defendant (vendor) a sum of Rs.1,00,00,000/- as advanced/earnest money at the time of execution of the Agreement to Sell. The Defendant agreed to execute the registered Sale Deed in respect of said property on or before 30th September, 2015, after obtaining NOC, from the other partners of the Defendant. Plaintiff expressed his willingness to complete the sale transaction but the Defendant did not agree and refused to receive the balance sale consideration and execute the Sale Deed.
5. A legal notice dated 16th June, 2016 was served on the Defendant calling upon him to complete the sale transaction. In this background, the parties then decided to settle the matter amicably. The Defendant agreed to make payment of Rs.2,65,000,00/- (Rupees Two Crore & Sixty Five Lacs Only) to the Plaintiff. The terms of the settlement were recorded in a settlement cum MOU dated 30th June, 2016, which inter alia provided as under:
“1. That in pursuance of this SETTLEMENT the first party has agreed, undertaken and offered to pay a total sum of Rs.2,65,00,000/- (Rupees Two Crore & Sixty Five Lacs only), in favour of the Second Party, voluntarily, against part sale consideration, which was received by first party from second party.
2. That the First party has issued Cheque bearing No.640046 for Rs. Rs.2,65,00,000/- (Rupees Two Crore & Sixty Five Lacs only),dated 30.09.2016, drawn at DCB Bank, New Delhi in favour of the Second Party, to discharge her above said liability and the Second party has received said cheques as such both the parties have amicably settled their matter.
3. That the first party shall not act in contravention to this Settlement cum Memorandum of Understanding, in any manner. The First Party has undertaken to maintain sufficient amount in her Bank. Account as to facilitate the clearance/encashment of above mentioned Cheuqe.
4. That the first party shall be liable to be prosecuted under Section 138 Negotiable Instruments Act, in case she failed to maintain sufficient amount in her Bank Account as to facilitate the clearance/encashment of above Cheque and First party also undertake to pay additional damages for a sum of Rs.25,00,000/- (Rs. Twenty Five Lacs only) to the Second party, besides the liability under Section 138 Negotiable Instruments Act, under such circumstances. The second party shall also be at liberty to take civil remedies against the First party, within the jurisdiction of Delhi Courts and the first party shal
