JUDGEMENT

JYOTI SINGH, J. (ORAL)

CM APPL. 53073/2022 (Exemption)

1. Allowed, subject to all just exceptions.

2. Application stands disposed of.

C.R.P. 200/2022 & CM APPL. 53072/2022 (stay)

3. Present revision petition has been filed under Section 115 read with Section 151 CPC for setting aside the impugned order dated 23.09.2022, passed by the learned Trial Court, whereby the application filed by the Petitioner under Order VII Rule 11 CPC, has been dismissed. Petitioner herein is a Defendant in the suit and Respondent No.1 is the Plaintiff. Parties are hereinafter referred to by their litigating status before this Court.

4. The short narrative of facts to the extent necessary and relevant, shorn of unnecessary details, is that Respondent No.1 filed a suit for recovery of damages of Rs.1,64,51,425/- against the Petitioner. Case set up in the plaint is that Petitioner is the real younger brother of Respondent No.1 and in or around 2016, Petitioner desired to purchase a property being apartment No.7-B, Strawberry Hill Avenue, Stanford, since he was in U.S.A. Respondent No.1 was also keen that his younger brother settled down in life and since Petitioner was short of funds, with a view to help him financially, Respondent No.1 advanced a loan to the tune of Rs.21,60,000/- on 20.09.2016 and a further sum of Rs.1,05,00,000/- on 28.11.2016 by way of bank transfer, which is duly reflected in the statements of account of the Respondent No.1. However, out of love and affection, Respondent No.1 agreed that only Rs.78,00,000/- would be treated as a loan and an Agreement was executed to this effect, recording the modalities for return of the loan.

5. It is the case of Respondent No.1 before the Trial Court that the Agreement clearly records that Petitioner would be liable to pay Rs.78,00,000/-, at the then conversion rate of Rs.65/- per dollar along with interest @ 5.5% per annum calculated w.e.f. 01.04.2017 till realisation, with a caveat that Petitioner would be free to return the outstanding amount at any point of time. Since the amount was not paid by the Petitioner, despite sufficient funds being available, as reflected from his income tax returns, it was again agreed between the parties that Petitioner would be liable to return the original amounts advanced to him as loan and this is admitted by the Petitioner in a written communication dated 29.11.2019. The money advanced to the Petitioner was, however, not paid to Respondent No.1 despite various requests and his suffering from various medical ailments.

6. Petitioner filed an application under Order VII Rule 11 CPC, for rejection of the plaint, predicated on clause 2 of the Loan Agreement between the parties, whereby according to the Petitioner, it was agreed that the loan advanced to the Petitioner would be returned to Respondent No.1, as and when both parties decide to settle their inheritance from the joint family properties/inheritance from their parents, including but not limited to property bearing No.S-496, Greater Kailash-I, New Delhi, in which both parties have an undivided 1/3rd share each. Reliance was also placed on clause 3 of the Agreement. Clause 2 of the Agreement reads as follows:

“2. That both the parties have agreed that the aforesaid amount shall be returned by the Second Party to the First Party as and when both the parties decide to “settle their inheritance from the joint family properties / inheritance from the parents", including but not limited to house property bearing No. S-496, Greater Kailash, Part-I, New Delhi in which both the parties have undivided 1/3rd share each along with their other brother Shobit Madan in terms of the registered Wills executed by their parents namely Shri Arun Madan and Smt. Kanta Madan.”

7. The Trial Court dismissed the application and relevant part of the impugned order is as under:

“Perusal of the clause 2 of the agreement dated 16.04.2018 as aforesaid reflects that the amount in question shall be returned by the second party i.e. defend