SUNIL MEHRA Vs. RAJINDER SINGH GULATI

JUDGEMENT

(1.) THE plaintiff respondent in the present appeal filed a suit for recovery of Rs. 12 lacs from the defendant-appellant. The suit for recovery was based on the averment that the defendant 2 appellant herein had expressed his desire to induct the respondent as a partner in his firm upon his contributing Rs. 13. 50 lacs as capital and equal amount was to be contributed by the defendant. The plaintiff contributed the said amount on 6th January, 1997. However, the defendant did not contribute his capital investment on the ground that money was not readily available with him. In May, 1997 the appellant stated that he had no funds. The respondent expressed his desire not to be inducted as partner in the sole proprietorship business under the name and style of X. L. Marketing and requested for refund of the amount of Rs. 13. 50 lacs. The appellant did not refund the money but by a letter of confirmation dated 15th May, 1997 confirmed the debt and agreed to pay the said amount in terms of the said letter, copy of which was annexed to the plaint at exhibit "b". The plaintiffs house was burgled and amongst various articles, the original confirmation receipt was also stolen. A report with the police was lodged. Despite the fact that the defendant has agreed to repay the amount within one month as he was to sell one of his properties, he did not pay the same. However, by post dated cheques the defendant made payment of Rs. 1. 50 lacs to the plaintiff during the period 19th July, 1997 and 11th October, 1997, but the balance amount of rs. 12 lacs was not paid despite the commitments made by the defendant. Thereafter, placing the above facts on record, in the letter dated 14. 9. 1998 the plaintiff demanded the said amount from the defendant. Even notice through counsel was sent by the plaintiff on 16th October, 1998 which was duly received. Vague reply was received on 26th October, 1998 by the plaintiff stating that the amount was not due. On these facts the plaintiff filed the suit under the provisions of order 37 of the Code of Civil Procedure and prayed for a decree for Rs. 12 lacs with interest at the rate of 18% p. a. from the date of filing of the suit till payment.

(2.) THE suit was contested by the defendant. However, during the pendency of the suit the parties are stated to have arrived at a settlement wherein the appellant agreed to pay the decretal amount in installment of rs. 1 lac. It was also stated in Clause 3 of the terms of settlement that in the event of any default the entire decretal amount shall become recoverable. It was the case of the respondent that the appellant committed two defaults, one on 7th November, 2005 and the other on 7th December, 2005. With an intention to pray for condonation of default, the appellant took out a notice of motion being Notice of Motion No. 301 of 2006 and accept cheques of installments as per the agreed terms. This notice of motion was opposed by the respondent who stated that the court was not vested with power to extend the time for payment of installment without the consent of the respondent. However, according to the appellant the Court has power to extend the time for payment of installments in terms of Order 20, Rule 11 (2) of CPC.

(3.) THE learned Single Judge held that the court had no power to extent the time without the specific consent of the respondent. Resultantly, and in view of the fact that there was breach of the agreed terms and installment was not regularly paid on or about 7th of each month, the Court declined the relief to the appellant and rejected the notice of motion. This order dated 13th march, 2007 has been impugned by the appellant in the present appeal.