NIAZ AHMED Vs. INDCAP ENTERPRIESES ,LLP

JUDGEMENT

(1.) This is a regular first appeal filed under Section 96 of the Code of Civil Procedure (CPC) read with Order XLI CPC read with Section 10 of the Delhi High Court Rules. The prayer made in this appeal is to set aside the judgment and decree dated 13.09.2018 and order dated 03.10.2018 passed in a suit filed by the respondent under the provisions of order XXXVII of the CPC.

(2.) Learned counsel for the appellant submits that the parties had entered into an agreement dated 29.10.2007 where, besides the appellant, his wife, Mr. Arindom Ganguly and Integrity Geosciences Private Limited were also parties. The appellant, his wife and the Company had sought investment of Rs.3,24,54,000/- from the respondent, to be invested with the appellant and his Company. It is submitted that although reliance is placed by the respondent on agreements dated 12.04.2010, 31.03.2011 and 23.08.2012, however, the agreement dated 23.08.2012 was signed by the appellant under coercion, pressure, undue influence, force and threat of filing criminal proceedings. It is also contended that the learned Single Judge has dismissed the application seeking leave to defend and passed a decree without taking note of the settled law that the appellant-defendant raised triable issues and thus, the appellant was entitled to unconditional leave to defend. It is further submitted that the amount was invested with the Company and thus, the appellant alone could not have been held responsible for making the payments. Accordingly, the defence raised by the appellant in the application seeking leave to defend is reasonable and plausible and the appellant was entitled to unconditional leave. It is contended that in fact, the appellant has no liability at all. Moreover, the name of the respondent firm was previously known as Ind Cap Finance Services Pvt. Ltd. Subsequently, as the name changed, this too would be a triable issue. It is further submitted that it is only upon evidence would the appellant be able to prove his case and the trial could not have been cut short by rejecting the application seeking leave to defend. Learned counsel for the appellant has also contended that the recoveries which are sought to be made against the appellant are itself a form of extortion and thus, the relief claimed in this appeal should be allowed. Learned counsel submits that the appellant had sought quashing of the proceedings initiated by the respondent under the provisions of Section 138 of the Negotiable Instruments Act, being illegal and in furtherance to the acts of the respondent of coercion, undue influence and pressure, which would show that he had taken steps to move the State machinery by filing such a petition. It is also the stand of the appellant that the issuance of legal notice by the respondent to the appellant would show that he was put under extreme pressure to pay, though no amount was due and payable by the appellant to the respondent.

(3.) Mr. Bindra, learned counsel appearing for the respondent submits that there is no infirmity in the order passed by the Single Judge. The appellant-defendant in the suit has failed to raise a plausible defence. The defence sought to be raised is not bonafide. It is sham and moonshine. It is further contended that the appellant was a signatory to the first agreement dated 29.10.2007, where the amount invested by the respondent to the tune of Rs.3,24,54,000/- stands duly admitted. The appellant was also a signatory to the second agreement dated 12.04.2010, pursuant to which while acknowledging the debt, 13 post-dated cheques amounting to Rs.3,24,54,000/- were handed over to the respondent, details of which are given below: <FRM>JUDGEMENT_226_LAWS(DLH)4_2019_1.html</FRM>