RAVINDER KUMAR GULATI Vs. NARESH KUMAR

JUDGEMENT

(1.) CM 6463/2006 This is an application for exemption. CM 6463/2006 is allowed, subject to just exceptions. RFA 305-04/2006 and CM 6462/2006 This Regular First Appeal is directed against the judgment and decree dated 23rd August, 2005 passed by Additional district and Sessions Judge, Delhi. The plaintiff filed a suit for recovery of Rs.14,26,000/- against the defendant as a summary suit under the provisions of Order 37 CPC. According to the plaintiff, he was carrying on business in three shops, in the basement of property bearing No.11/4A, Tilak Nagar, New Delhi under the name and style of M/s Swati Boutique. The defendant No.1 approached the plaintiff to hand over his business, shop and goodwill to him and also to handover the premises, for which the defendant No.1 had agreed to pay a sum of Rs.16,75,000/- as compensation to the plaintiff. The amount was to be paid in installments.

(2.) The parties entered into four agreements dated 13.3.2000, 13.2.2001, 19.4.2001 and 06.01.2004 In pursuance to the said agreements, part payments were made. Defendant No.2, in order to discharge the liability of defendant No.1, issued three cheques: two cheques for Rs.4 lakhs each and the third for Rs.3.50 lakh. All these cheques were dishonoured on presentation. The suit of the plaintiff was based upon these three cheques for Rs.11,50,000/-. The plaintiff added a further sum of Rs.2,76,000/- on account of interest on the said amount of Rs.11,50,000/-. Thus, the suit for above amount was filed. The suit was contested by the defendants. They filed an application for leave to defend the suit. The grounds taken by them were that possession of the shops was handed over to them, which were the tenanted shops of the plaintiff and as such the plaintiff was not entitled to recover any amount. The alleged agreement between the parties was hit by Section 23 as well as barred under Section 5(3) of Delhi Rent Control Act. The learned Trial Court vide judgment and decree dated 23rd August, 2005 held that defendants were not entitled for leave to defend. While passing the decree in favour of the plaintiff, the Court held as under :-

(3.) On the above findings, the judgment and decree for recovery of Rs.11.50 lacs with interest at the rate of 6% p.a. with effect from 6.1.04 till realisation was passed by the trial Court, giving rise to the present petition. Learned counsel appearing for the appellants argued that the findings recorded by the trial Court is erroneous in law and in fact is inequitable inasmuch as the alleged four agreements were not even filed by the plaintiff along with the plaint or otherwise. It is further argued that in view of the facts and grounds stated in the application to leave to defend, the appellants were entitled to an unconditional leave to defend the suit as the said agreements were void.