SH. RINKU AGGARWAL Vs. SMT. KANTA KUMARI

JUDGEMENT

(1.) PLAINTIFF has filed this suit under Order 37 of the Code of Civil Procedure, 1908 ("CPC", for short) against the defendant for recovery of Rs.21 lacs together with future interest @ 18% per annum and costs. After service of summons under Order 37 CPC, defendant entered appearance within the prescribed period. Thereafter, summons for judgment were issued. Upon service of summons, defendant has filed this application under Order 37 Rule 3(5) CPC, seeking "leave to defend" the suit.

(2.) PERUSAL of record shows that the defendant has been avoiding seeking "leave to defend" the suit. the to argue the matter for quite some time. On 29August, 2011 matter had to be adjourned as counsel for the defendant was stated th to be down with viral fever. On 27February, 2012 also adjournment was sought on the ground that counsel was unwell. Again on 7March, 2012 adjournment was taken by the defendant on the ground of illness of the counsel. Again on 26 March, 2012 adjournment was taken by the defendant on the ground that counsel was busy in Supreme Court. It was made clear in the order dated 26March, 2012 that in case matter is not argued by the defendant, appropriate orders would be passed. Today counsel for the defendant submits that he would be seeking discharge from the brief. I am convinced that defendant is only interested in dragging on the matter. Adjournment is declined I proceed to dispose of the matter after hearing counsel for the plaintiff and perusing the record. Case of the plaintiff is that vide an Agreement to Sell dated 25March, 2006 (hereinafter referred to as "Agreement") defendant had agreed to sell a plot of land bearing No. C -7, Sector Swarn Nagri, Greater Noida, Gautam Budh Nagar (hereinafter referred to as "suit property") to the plaintiff for a total sale consideration of Rs.67,68,000/ -(Rupees Sixty Seven Lacs and Sixty Eight Thousand Only). Rs.15,00,000/ -(Rupees Fifteen Lacs Only) was paid by the plaintiff to defendant towards advance money. Rs.10,00,000/ -(Rupees Ten Lacs Only) was paid in cash; whereas Rs.5,00,000/ -(Rupees Five Lacs Only) was paid through a cheque bearing no. 099541 drawn on Urban Co -operative Bank, Suraj Pur, Greater Noida. Balance sale consideration of Rs.52,68,000/ -(Rupees Fifty Two Lacs Sixty Eight Thousand Only) was agreed to be paid on or before 4May, 2006. Plaintiff arranged this amount, and approached the defendant on 2May, 2006 and requested her to execute the documents. Defendant represented that she wanted to alter the terms of agreement as she wanted higher price for the suit property, inasmuch as, she misbehaved with the plaintiff. Plaintiff filed a complaint with Police Station Seema Puri in this regard. On the 4May, 2006 defendant called the plaintiff at her residence and requested him to grant some more time to her for completing the transaction. On 9May, 2006 plaintiff again approached the defendant with remaining amount of Rs.52,68,000/ -(Rupees Fifty Two Lacs and Sixty Eight Thousand Only) but defendant showed her reluctance. She requested plaintiff to wait till 15May, 2006 and thereafter upto 19May, 2006. On 19May, 2006 plaintiff finally asked the defendant to make up her mind as to whether she was willing to sell the suit property or not and requested her to fix a date for completing the formalities of sale. Defendant agreed to complete the sale transaction by 15June, 2006. She further agreed to hand over possession by 15June, 2006 failing which she undertook to pay Rs.22 lacs, that is, Rs.15 lacs advance plus Rs.7 lacs as penalty to the plaintiff. An agreement to this effect was executed on 19May, 2006. Defendant failed to fulfill her promise, thus, issued four postdated cheques totaling to Rs.22 lacs, on 15June, 2006, details whereof are as under: -

(3.) PLAINTIFF served a legal notice dated 11August, 2006 on the defendant through his counsel, calling upon her to make payment within the statutory period. But defendant did not make any payment. It is stated in the plaint that no relief which does not fall within the ambit of Order 37 CPC has been claimed in the suit.