SUSHILA BADOLA Vs. TUSHAR PATNI

JUDGEMENT

(1.) The plaintiff, as per amended plaint dated 16th April, 2018, has instituted this suit against the two defendants namely Tushar Patni and Prashant Mamgain, for (i) declaration as null and void of the Compromise Deed dated 15th Nov., 2008 obtained dishonestly and fraudulently from the plaintiff; and, (ii) cancellation of the Compromise Deed dated 15th Nov., 2008.

(2.) It is the case of the plaintiff in the amended plaint, (a) that the plaintiff on 12th March, 2010 first learnt that a Non-Bailable Warrant (NBW) had been issued against her for 18th March, 2010 in a Criminal Complaint No.21/1/10 filed by defendant no.2 Prashant Mamgain on behalf of defendant no.1 Tushar Patni, of offence under Sec. 138 of the Negotiable Instruments (NI) Act, 1881 by the Court of Sh. N.K. Laka, Metropolitan Magistrate, Dwarka Courts, New Delhi, for dishonour of a cheque dated 1st Dec., 2009 for an amount of Rs.75 lacs against the alleged liability of Rs.3 crores; (b) that the plaintiff appeared before the Court on 18th March, 2010 and the NBW was cancelled and the plaintiff granted bail; (c) that from a perusal of the complaint filed by defendant No.2 Prashant Mamgain on behalf of the defendant No.1 Tushar Patni against the plaintiff, the plaintiff came to know that previously also a complaint of offence under Sec. 138 of the NI Act was filed before the same Court by defendant No.2 as authorised representative of defendant No.1; (d) that in the previous complaint it was claimed that the defendant No.1, on 10th May, 2006 had given a friendly loan of Rs.2 crores in cash to the plaintiff for a period of six months and the plaintiff had issued a cheque dated 4th Oct., 2007 for a sum of Rs.2 crores in discharge of the said debt; the said cheque was returned dishonoured leading to the filing of that complaint; (e) that the plaintiff further learnt that the said previous complaint was withdrawn on 15th Oct., 2009 by defendant No.2 on behalf of the defendant No.1 as the matter has been compromised between the parties vide a Compromise Deed dated 15th Nov., 2008 and in terms of which compromise, the plaintiff had issued cheques dated 1st December, 2009, 1st March, 2010, 1st June, 2010 and 1st Sept., 2010 in the sum of Rs.75 lacs each in favour of the defendant No.1; (f) that the plaintiff also found out that one Mr. Vijay Nath, Advocate had appeared as an advocate on her behalf in the previous complaint; (g) that the plaintiff never engaged any such lawyer to represent her in the previous complaint and had never authorised any lawyer to make a statement on her behalf of any compromise having been reached with the defendant No.1; (h) that the plaintiff, on learning as aforesaid, made a written complaint dated 24th March, 2010 regarding the missing eight cheques and misuse thereof by the defendant No.1; (i) that the plaintiff also issued instructions for stopping payment of the remaining cheques; (j) that the plaintiff, on 9th Oct., 2007 also had informed her Bank regarding the misplaced cheques/leaves from her cheque book and on which the dishonoured cheque for Rs.2 crores, subject matter of the previous complaint had been fabricated; (k) that the plaintiff does not know defendant No.1 and has had no transaction with the defendant No.1; (l) however the signature and thumb impression of the plaintiff was taken on some blank paper by one Mr. Alok Pandey, Advocate, sometime in the month of Nov., 2008 and the plaintiff now realizes that the said papers have been used for making an application for exemption for appearance of the plaintiff in the previous complaint case and for use as a Vakalatnama; (m) that a perusal of the file of the previous complaint case shows that the application for withdrawal of that complaint case was filed with great urgency on 15th Oct., 2009; (n) that fraud is evident from the fact that the application for withdrawal of the complaint case was filed on 15th Oct., 2009 on the basis of an alleged compromise of 15th Nov., 2008; (o) that no mention was made of the compromise on any of the earlier dates in the previous complaint case; (p) that the stamp paper for the Compromise Deed dated 15th Nov., 2008 was purchased in the name of the plaintiff on 31st Oct., 2008 but the plaintiff never instructed anyone to purchase any stamp paper; (q) that it is quite evident that the signatures of the witnesses on the Compromise Deed dated 15th Nov., 2008 have been obtained subsequently; (r) that the daughter of the plaintiff has also confirmed that her signatures were taken on some papers by the defendant No.2 in a very clandestine manner, as the defendant No.2 "is harassing plaintiff's daughters and also blackmailing them"; (s) that the defendants are similarly extorting monies from one Mr. R.S. Chauhan using similar modus operandi; (t) that in the complaint case filed by the defendants against the said Mr. R.S. Chauhan, approximately 40 hearings in a year were held in the Court of Metropolitan Magistrate Sh. N.K. Laka; (u) that the plaintiff has also filed a complaint before the Bar Council of India under Sec. 35 of the Advocates Act, 1961 of professional misconduct against Mr. Alok Kumar Pandey, Mr. Vijay Nath and Mr. R.K. Thakur, Advocates, and it was confessed by Mr. Alok Kumar Pandey, Advocate that he obtained signatures on alleged agreement deed and Vakalatnama and asked Mr. Vijay Nath, Advocate to appear on behalf of the plaintiff; (v) that the defendant No.1 is not financially competent to give Rs.2 crores in cash to the plaintiff as loan; (w) that the said amount of Rs.2 crores is not even being reflected in the Income Tax Returns of the corresponding year of the defendant No.1 as loan to the plaintiff; and, (x) that even otherwise, in Indian Law, no loan over Rs.20,000.00 can be given in cash.

(3.) The suit came up before this Court first on 8th March, 2016, when summons thereof were ordered to be issued.