UTOPIAN BUILDERS PVT LTD Vs. RAKESH GANDHI

JUDGEMENT

(1.) THE present petition under section 115 CPC has been filed by the petitioner against the order dated 18th February, 2011 passed by Additional District Judge (Central), Delhi, whereby the leave to defend application of respondent was allowed.

(2.) BRIEF facts for adjudication of the present matter are that petitioner filed a suit for recovery under Order XXXVII CPC against the respondent. It was stated that respondent offered his services to the petitioner company for searching and finalizing a collaboration deal for construction of residential flats in R block, New Rajinder Nagar, New Delhi and demaned Rs.4 lac for his services as a temporary deposit. It was also stated that the respondent issued a promissory note to the petitioner of an amount of Rs.2 lac as penalty in case the respondent failed to return the amount immediately on expiry of one month from the date of receipt of the said amount of Rs.4 lac from the petitioner. It was also averred that the respondent had further promised to pay interest @24% per annum in case the amount of Rs.4 lac was not returned within the stipulated period of time of one month. Since the respondent could not offer any suitable deal to the petitioner as agreed with the stipulated time frame, he issued a cheque of Rs.4 lac in favour of the petitioner, however, the same was dishonoured and after regular persuasive requests of the petitioner, the respodnnet handed over 4 cheques of Rs.1 lac each to the petitioner, which also were returned by the bank and it was informed that the payment had been stopped by the respondent. Thereafter the petitioner served a legal notice dated 15th April, 2009 upon the respondent calling upon him to make payment to the petitioner, however, having failed to do so, the petitioner filed the suit for recovery against the respondent.

(3.) THE respondent averred that the promoter/Director of the petitioner company, Mr. M.J. Kumar introduced him with late Mr. Mohan Lal Madnani, who was his relative and was desirous of reconstructing his property but did not have resources. Acting in good faith, the respondent entered into the property development agreement without verifying the ownership of the property. It was stated that after the demise of Mr. M.L. Madnani, Mr. M.J. Kumar stated creating problems stating that he would not allow the respondent to construct the property unless and until the second floor portion of the proposed building is sold to him. Consequently, the respondent orally agreed to sell the same at a throw away price of Rs.21,25,000/ -. It was stated that even on being asked to get a fresh agreement signed from the legal heirs of late Mr. M.L. Madnani, Mr. M.J. Kumar kept on delaying the matter. It was averred that Mr. Kumar made various payments to the respondent totaling a sum of Rs.15,05,000/ - out of which Rs.11,05,000/ - was from his personal account and Rs.4 lac was paid from the account of the petitioner company. Thereafter MCD sealed the property and the same was de -sealed after paying regularization charges.