RAVI MISRA Vs. S.K. MEHTA

JUDGEMENT

(1.) Plaintiff has instituted the present suit under the provisions of Order 37 of the Code of Civil Procedure, on the basis of a cheque, in the sum of Rs. 35.0 lacs, which was handed over by the defendant to the plaintiff on 24.7.2010, during the course of proceedings pending under Section 138 of the Negotiable Instruments Act, in the Court of Metropolitan Magistrate. Defendant was served with the summons in the prescribed form as is evident from the order of 13.1.2012 of the learned Joint Registrar. The defendant has failed to appear in the matter, nor memo of appearance has been filed. Counsel for the plaintiff submits that the present suit may be decreed in terms of Order 37 Rule 3 of the Code of Civil Procedure. Plaintiff is stated to be a senior citizen of 76 years of age. She came in contact with the defendant in the year 1993 and the defendant gained trust and confidence of the plaintiff. The defendant hatched a conspiracy to dupe the plaintiff of her immovable property bearing plot No. 12, Kailash Enclave, House Building Society, Pitampura, New Delhi. Defendant assured the plaintiff that he would sell the plot and accordingly persuaded the plaintiff to hand over the original documents to him defendant also made her to sign a general power of attorney in his favour. The defendant paid a sum of Rs. 12.50 lacs as earnest money and also took possession of the plot and the remaining amount was to be paid upon sale of the property. The plaintiff terminated the agreement on account of delay and returned the earnest money of Rs. 12.50 lacs to the defendant. However, defendant did not return the original documents on one pretext or the other. The plaintiff learnt subsequently that the defendant has sold the plot to a third party and did not pay her the sale proceeds. The plaintiff then threatened the defendant that she would lodge an FIR. The defendant made false apology and assurances that he would transfer a flat in Vasant Kunj, Delhi in her name by 15.2.2007 and also the defendant handed over two cheques in the total sum of Rs. 32.0 lacs to the plaintiff. Defendant also agreed to pay an additional sum of Rs. 50.0 lacs to the plaintiff for the illegal transfer of the plot in his favour. Parties thereafter also entered into a settlement agreement dated 27.1.2007. The defendant again requested the plaintiff not to present the aforesaid cheques for encashment, however, the plaintiff presented the cheques which were returned by the bankers of the defendant for the reasons 'Account Closed'.

(2.) In the month of August, 2007 the plaintiff again requested the defendant to return her property to which the defendant issued another letter along with a cheque in the sum of Rs. 82.0 lacs in favour of the plaintiff. The defendant requested for extension of time up to 31.7.2007 for making the payment. Time was again extended by another period of 30 days. However, when the aforesaid cheque was presented for encashment the same was returned with the endorsement 'Account Closed'. This led to issuance of a legal notice under Section 138 of the Negotiable Instruments Act to the defendant and thereafter a complaint was filed.

(3.) During the pendency of the complaint, the parties settled the matter in the total sum of Rs. 35.0 lacs for which the defendant handed over a post dated cheque bearing No. 699394 dated 24.1.2011 drawn on Bank of Baroda, East of Kailash, New Delhi in the Court to the plaintiff on 24.7.2010. The aforesaid cheque was also dishonoured on account of 'Insufficient Funds', which has led to the filing of the present suit.