Sharwan Chaudhary vs.ajay Ahlawat - Court Judgment

SooperKanoon Citationsooperkanoon.com/1207785
CourtDelhi High Court
Decided OnAug-10-2017
AppellantSharwan Chaudhary
RespondentAjay Ahlawat
Excerpt:
$~ * in the high court of delhi at new delhi % reserved on:21. t july, 2017 pronounced on:10. h august, 2017 cs(os) 2007/2014 sharwan chaudhary ..... plaintiff and krishnan, through : mr.ratan kumar singh mr.nikhilesh advocates. + versus ajay ahlawat through : mr.neeraj ..... defendant and mr.surender sheoran, advocates. kumar coram: hon'ble mr. justice yogesh khanna yogesh khanna, j.ia no.13491/2015 1. this application is under order 37 rule 3 (5) of the cpc moved by the defendant for leave to defend in a suit filed against the defendant for recovery of ₹2.25 crore with interest @ 18% pa from 03.12.2011 till the date of realization on the basis of a written agreement dated 15.11.2008.2. before coming to the application it would be appropriate to briefly state the facts.3. the plaintiff alleges the defendant has taken from him friendly loan from time to time and duly acknowledged it in the agreement dated 15.11.2008. the loan amount was used by the defendant for purchase of ia no.13491/2015 in cs (os) no.2007/2014 page 1 of 13 a land admeasuring 7 bigha comprising in khasra nos.252(1-09) and 253(5-13), situated in the revenue estate of village satbari, mehruali, new delhi. five post dated cheques (pdcs) for an amount of ₹45 lac each were given and clause 4 of the agreement says in event of not honouring of the aforesaid cheques on presentation, the plaintiff shall be entitle to initiate legal proceedings. post dated cheques were dishonoured for reason ‘insufficiency of funds’ and ‘drawer’s signatures differ’. the demand notice dated 07.12.2011 was sent but was not replied. the plaintiff filed complaint under section 138 of the negotiable instruments act, 1881 and also this suit for recovery under order 37 of the cpc.4. (a) the defendant in its application for leave to defend alleges: the plaintiff; ms.sangeeta – wife of defendant; mr.sandeep kohli, and ms.poonam virk; being close friends wish to exploit the real estate market and decided to incorporate a company namely ‘m/s saj properties limited’ (hereafter referred as m/s spl), incorporated and registered on 01.11.2004 wherein all the above four person have equity of 25% shares. the defendant being a local person was instrumental in procuring the land for spl after negotiating with the owners. it is alleged that all the above four person contributed equal amount and were allotted 25000 equity shares of ₹10/- each. the share holders were to contribute their personal resources to purchase various immovable properties and to develop them for earning profits. from time to time, share holders advanced loan to the spl for purchase of land. various properties as mentioned in para no.5 of the application were purchased. as on 31.12.2007 the investment made by the plaintiff was ₹5,43,25,000/-; by mr.sandeep kohli was ₹93,32,000/-; by ms.poonam virk was ia no.13491/2015 in cs (os) no.2007/2014 page 2 of 13 ₹8,00,000/-; and by the wife of defendant was ₹6,75,000/-. the plaintiff proposed the share holders to either equalize their investments for the lands held by m/s spl or the land be sold and the proceeds be apportioned as per the ratio of their individual investments. the wife of the defendant agreed to pay further an amount of ₹1.56 crore to the plaintiff to equalize her investment and hence some agreement dated 04.01.2008 was prepared and signed by all the share holders of the company in good faith. an oral understanding was allegedly effected between the plaintiff and the defendant that the wife of the defendant would retain the land of her share by paying ₹1.56 crore in the company. (b) the plaintiff and defendant were to purchase the land admeasuring 7 bigha comprising in khasra nos.252(1-09) and 253(5-13), situated in the revenue estate of village satbari, mehruali, new delhi for a consideration of ₹3.00 crore and advance of ₹1.38 crore was paid. however, this deal did not materialize as the said land was acquired by the government and even the advance money was forfeited. this land was to be purchased for the benefit of the plaintiff and the defendant and both were to share equally the profits/losses. an oral agreement was entered into between the two where the defendant was to pay to the plaintiff a sum of ₹1.56 crore against the liability of investment in m/s spl to equalize the investment of his wife and a sum ₹69.00 lac towards contributing the loss suffered on account of purchase of the land of village satbari, new delhi. thus, ₹2.25 crore was payable to the plaintiff by the defendant for which an agreement dated 15.11.2008 was prepared, now relied upon in this suit by the plaintiff and that five pdcs were issued by the defendant, however subject to an oral understanding ia no.13491/2015 in cs (os) no.2007/2014 page 3 of 13 that the defendant would sell some part of the land of his wife’s share and would pay the abovesaid amount of ₹2.25 crore by 15.08.2011; (c) however, subsequently, mr.sandeep kohli, one of the directors of m/s spl filed cs(os) no.1056/2008 against all the directors and two other person namely shri bhitthal das parwal and shri hari narain parwal, inducted in m/s spl as additional directors by the plaintiff. other two directors poonam virk and sangeeta (defendant’s wife) also filed a cs (os) no.1148/2008. a compromise was effected in cs (os) no.1148/2008 between all directors and as the wife of the defendant did not receive any share in the land she was discharged of her liability of ₹1.56 crore. a heavy loss was rather caused to the wife of defendant, hence the parties orally agreed to nullify the written agreement dated 15.11.2008 and since the wife of defendant did not receive any share in the land of m/s spl, the defendant was no more liable to pay under the agreement dated 15.11.2008 or against five pdcs. the defendant rather requested for return of the pdcs but the plaintiff did not pay any heed and after a gap of four years had filed a criminal complaint qua bouncing of such pdcs despite the fact the pdcs were given in good faith as a security that the wife of the defendant would get 1/4th share in the total land purchased admeasuring 111 bigha and 14 biswas but since per compromise in cs (os) 1148/2008 on 20.01.2009, she did not get any share so the liability of the defendant qua pdc’s also got discharged; (d) it is alleged the present suit is time barred as is filed on 09.07.2014 whereas the agreement is of the year 2008, that hence the defendant prays for an unconditional leave to defend. ia no.13491/2015 in cs (os) no.2007/2014 page 4 of 13 5. the defendant had admitted the agreement dated 25.11.2008; the five pdcs given by him to the tune of ₹45.00 lac each; the dishonoure of said pdcs; but alleges that such pdcs were issued as a security and were to be encashed only if the wife of the defendant was to get her share in land of m/s spl and as she was ousted from company no amount is payable under the agreement dated 25.11.2008 per oral understanding between the parties.6. further the defendant alleges that an adjustment of rs. 69 lacs need to be given for loss suffered by both the parties in purchase of land admeasuring 7 bigha comprising in khasra nos.252(1-09) and 253(5-13), village satbari, mehruali, new delhi, acquired by the government. since an amount of rs. 13.8 crores paid by defendant alone so the plaintiff should contribute his share of ₹69.00 lac in the said loss.7. before proceeding further this court need to verify (a) if the settlement in cs (os) 1148/2008 amongst the directors of the m/s spl has any bearing on the agreement dated 18.11.2008 or if the agreement dated 15.11.2008 is an independent transaction altogether; and (b) if the cheques were given as a security.8. the disputes in m/s spl appear to be on a different note as were purely amongst the directors of the said company which arose when the plaintiff brought two more directors probably to the annoyance of earlier three directors, and it led to filing of cs (os) 1056/2008 by one of its directors against the company & others. subsequently, cs (os) no.1148/2008 was also filed. ia no.13491/2015 in cs (os) no.2007/2014 page 5 of 13 9. the compromise deed/application ia no.15482/2008 under order 23 rule 3 of the cpc in suit no.cs(os) 1148/2008 makes an interesting reading:-"lacs twenty four the aforesaid v) plaintiff no.2 has also received a sum of rs.4,25,000/-(rupees five thousand only) in cash from the company in full and final settlement towards the loan amount standing to her credit in the books of accounts of m/s saj properties private limited (=company). vi) it has been agreed between the parties that now on receipt of total sum of rs.6,75,000/- (=rs. 2,50,000/-+ rs.4,25,000/-), the plaintiff no.2 is left with no claim, right, title or interest of any nature whatsoever against the defendant nos. 1,2,3 and 4 and also against the company. nor she is left with any right, title, interest or claim of whatever nature, including but not restricted to proprietary or possessory (actual or symbolic) right, title or interest, against the movable/ immovable properties of either of the defendants or of the company on, the basis of any oral or written agreement, m.o.u.s, settlement deeds, other document, negotiable instrument as well as under the alleged paper/mou dated 12.01.2005 (filed at page 236 by the plaintiffs along with their documents) or any other valuable security executed by or on behalf of either or some of or all of the parties till this day including but not restricted to those forming the subject matter of the present suit or any other suit or proceedings pending between the parties. xxx xxx xviii) neither the parties shall initiate nor they shall pursue the pending proceedings, if any, before the company law board, arbitral tribunal or before any civil, criminal or revenue court or ia no.13491/2015 in cs (os) no.2007/2014 page 6 of 13 any other forum based on the disputes/agreements memorandums forming the subject matter of either the present suit or of the suit no.1056 of 2008 or of the criminal complaint no.cc/2215/of 2008 pending learned metropolitan magistrate, patiala , house, new delhi. however m/s saj properties private limited will be entitled to pursue its proceedings pending before company law board for transfer of its registered office from delhi to jaipur. before the xxx xxx xx) notwithstanding anything to the contrary written elsewhere in the present application, for the removal of doubts, it is hereby agreed that the parties shall be free to acknowledge any other right(s) or liabilities between the parties, based on any transaction of any date prior to execution of the present application/agreement, only by execution of independent written agreements, which agreement has to be of the date of signing of the compromise application or any date subsequent thereto. it is further clarified that in the absence of any duly executed fresh written agreement on or after execution of the present application/agreement, no rights and liabilities of either of the parties inter se arising out of any transaction of any date prior to execution of the present application/agreement shall be enforceable by way of any civil, criminal or any other proceedings.” 10. the terms above of compromise recorded in cs (os) 1148/2008 only talks of the disputes inter se the directors of m/s spl and nowhere it refer to the dispute raised in this suit. under the compromise, the wife of defendant admittedly received an amount of ₹6.75 lac i.e. her initial contribution in m/s spl and it was agreed on receipt of such amount-she ia no.13491/2015 in cs (os) no.2007/2014 page 7 of 13 shall have no right, title, claim or interest of whatsoever nature in the land of m/s spl either based on any oral or written document between the parties viz between the directors of m/s spl. rather she was free to acknowledge any other right or liability based on any transaction of any date prior to the compromise, only by execution of a separate written contract. hence the compromise itself debarred the signatures to enter any kind of oral agreement/understanding.11. the defendant urged that per clause no.xx of the application, ia no.15482/2008 in the absence of any duly executed fresh agreement on or after the compromise no rights or liabilities inter se arising out of any transaction of any date prior to the execution of the present compromise application shall be enforeceable by way of any civil, criminal or any other proceedings. it is alleged that the compromise in cs(os) 1148/2008 surpassed the agreement dated 15.11.2008 and since the parties did not enter into fresh agreement on the date of compromise or thereafter, the agreement dated 15.11.2008, thus covered by clause xx above, would not be enforeceable.12. this plea of defendant cannot be accepted as para xx (supra) refers only to the disputes inter se the directors of m/s spl. it nowhere mentions of any personal agreements, if any, between a director with an outsider or a personal disputes/agreements between directors themselves, acting on their own. a correct reading of clause xx would reveal the parties were rather free to acknowledge any liability by a separate written agreement but it did not include the defendant herein as he was never a party in the compromise. ia no.13491/2015 in cs (os) no.2007/2014 page 8 of 13 13. the dispute herein being an independent dispute than was amongst directors of m/s spl in cs (os) no.1148/2008, would not absolve the defendant of his liability to repay the loan taken by him. if the intention of the parties in cs (os) 1148/2008 was to absolve the directors of their personal liabilities inter se and with outsiders, the settlement would have mentioned the same. if the ia no.15482/2008 in cs(os) no.1148/2008 has taken note of other pending suit numbers, criminal complaints, property particulars, details of the cheques issued, then why these five pdcs of ₹45.00 lac each were not brought within the fold of such settlement. the defendant is trying to mix two disputes into one which disputes are obviously distinct.14. by incurring loss on his own, in an independent transaction, the defendant cannot claim adjustment on the basis of an oral understanding/ agreement of an hypothetical amounts of ₹1,56,00,000/- payable to his wife or of ₹69 lac payable by him, when his wife herself had settled her disputes in the company only for a partly sum of ₹6.75 lac. it is settled law as held in catena of judgments including in roop kumar vs. mohan thedani 2003 (6) scc595 yash chhabra vs. maya jain 2015 (151) drj316that oral plea to contradict written agreement is not tenable in terms of section 91 of the indian evidence act, 1872. thus, since all the above pleas/ allegations of the defendant have no foundation or relation with the written agreement dated 15.11.2008, same cannot be considered against the terms of the written contract dated 15.11.2008 wherein defendant had acknowledged of receiving loan of ₹2.25 crores, utilizing the same in the land transactions and undertaken to repay the same by issuing five pdcs for the said purpose. ia no.13491/2015 in cs (os) no.2007/2014 page 9 of 13 15. the liability of the defendant herein is on a different transaction altogether. the agreement dated 15.11.2008 notes the amount was taken on loan by the defendant herein for purchase of land. nowhere the agreement says the land was to be purchased in the joint names. admittedly during such period the property rates were in boom and it appears from the facts the defendant to make a quick buck had taken loan from the plaintiff to purchase land, but unfortunately such land was acquired by the government and he suffered a loss and now is trying to take benefit of various clauses of compromise effected in cs (os) no.1148/2008 of which he was never a party.16. the defendant in a complaint case filed against him under section 138 of negotiable instruments act however, raised another defence viz the cheques were given as a security for purchase of land for the plaintiff in delhi and that the defendant purchased lands for the plaintiff & handed over it to plaintiff for all the money the plaintiff had paid to the defendant. the cheques were then to be returned after purchase of the land, but those remained with the plaintiff and he is now misusing the said cheques. this defence taken in the complaint case under section 138 negotiable instruments act is also contrary to the stand taken by the defendant in his leave to defend application ia no.13491/2015 where the defendant says the amount of `2.25 lac is adjustable partly against the loss caused to his wife and partly against the loss caused in a land deal at satbari.17. the agreement dated 15.11.2008 is rather self sufficient and it read as under:-"ia no.13491/2015 in cs (os) no.2007/2014 page 10 of 13 “whereas party of the first part, from time to time in last two years, took loans from the party of the second part totaling rs. 2,25,00,000/- ( rupees two crores twenty five lacs). and whereas party of the first part represented that he used the loan amount in doing some transactions with respect to the following property:-"i. one agreement to sell between sh. karam chand s/o sh jai ram r/o t-21uttam nagar, new delhi and sh. kuldeep singh s/o sh. pratap singh, village kishan garh, vasant kunj new delhi for land measuring 7 bigha, comprised in khasra no.252 (1-09) and 25(5-13) situated in satbari. and whereas party of the first part has till now not repaid the abovesaid loan amount to the party of the second part. and whereas parties to the present agreement are recording and binding themselves with the terms of the present agreement, as mentioned herein below: now it is hereby agreed by and between the parties hereto as follows:1. that party of the first part hereby unequivocally records that he has taken a loan of.2,25,00,000/- (rupees two crores twenty five lacks) from party of the second part.2. that party of the first part is hereby acknowledging his loan of 2,25,00,000/- ( rupees two crores twenty five lacks) to party of the second party within 3 years (three years) from today, i.e. 15th november, 2008 from his own resources.3. xxxx xxxx 4. that it has been categorically agreed by and between the parties to the present agreement that in the event of party of the first part not honoring the abovesaid cheques on presentation, party of the second part will be entitled to initiate appropriate to repay the said this liability ia no.13491/2015 in cs (os) no.2007/2014 page 11 of 13 legal proceedings including but not restricted to the proceedings under section 138 of negotiable instrument act against the party of the first part. it has also been agreed that if party of the first part will refuse or neglect to make payment against the abovementioned cheques on presentation as per the dates appearing in the respective cheques, in that event party of the first part will also be liable to pay interest to the party of the second part at the rate of 18% per annum for every such delayed payment with effect from the date when payments will fall due on presentation of the respective cheques. however this right of the party of the second part is independent of and without prejudice to his right to initiate all legal proceedings, including that under section 138 of the negotiable instrument act, 1881.5. that present agreement has been executed by the parties without any pressure, coercion and undue influence of any nature whatsoever and this present agreement is result of the free will and consent of both the parties.” 18. the agreement clearly stipulate that the defendant has taken loan(s) for purchase of land admeasuring 7 bighas in satbari and that such land is not connected with the business of m/s spl. in this agreement, the defendant has unequivocally admitted to repay the loan amount within three year lest an action can be taken against him. the cheques also were given in advance and the defendant has also agreed to suffer proceedings if such cheques are not honoured. no linkage can be drawn between the agreement dated 15.11.2008 and with the terms of settlement stated in ia no.15482/2008 in cs (os) no.1148/2008.19. as the defence raised in his application for leave to defend is contrary to what the defendant had stated in his application under section ia no.13491/2015 in cs (os) no.2007/2014 page 12 of 13 145(2) negotiable instruments act in proceedings under section 138 negotiable instruments act, so the defence of the defendant though appear to be illusionary but he is allowed to proceed on his depositing the principal amount of `2,25,00,000/-(rupees two crore twenty five lacs) with the registrar general of this court within four weeks from today.20. the application stands disposed of in above terms. cs(os) 2007/2014 21. upon complying with above directions, written statement be filed by the defendant within four weeks thereafter. replication thereto, if any, be also filed by the plaintiff within two weeks of filing the written statement.22. list for compliance and completion of pleadings before the joint registrar (judicial) on 26th october, 2017.23. be listed in court upon completion of pleadings. yogesh khanna, j august10 2017 m ia no.13491/2015 in cs (os) no.2007/2014 page 13 of 13
Judgment:

$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on:

21. t July, 2017 Pronounced on:

10. h August, 2017 CS(OS) 2007/2014 SHARWAN CHAUDHARY ..... Plaintiff and Krishnan, Through : Mr.Ratan Kumar Singh Mr.Nikhilesh Advocates. + versus AJAY AHLAWAT Through : Mr.Neeraj ..... Defendant and Mr.Surender Sheoran, Advocates. Kumar CORAM: HON'BLE MR. JUSTICE YOGESH KHANNA YOGESH KHANNA, J.

IA No.13491/2015 1. This application is under Order 37 Rule 3 (5) of the CPC moved by the defendant for leave to defend in a suit filed against the defendant for recovery of ₹2.25 Crore with interest @ 18% pa from 03.12.2011 till the date of realization on the basis of a written agreement dated 15.11.2008.

2. Before coming to the application it would be appropriate to briefly state the facts.

3. The plaintiff alleges the defendant has taken from him friendly loan from time to time and duly acknowledged it in the agreement dated 15.11.2008. The loan amount was used by the defendant for purchase of IA No.13491/2015 in CS (OS) No.2007/2014 Page 1 of 13 a land admeasuring 7 bigha comprising in Khasra Nos.252(1-09) and 253(5-13), situated in the revenue estate of Village Satbari, Mehruali, New Delhi. Five post dated cheques (PDCs) for an amount of ₹45 Lac each were given and clause 4 of the agreement says in event of not honouring of the aforesaid cheques on presentation, the plaintiff shall be entitle to initiate legal proceedings. Post dated cheques were dishonoured for reason ‘insufficiency of funds’ and ‘drawer’s signatures differ’. The demand notice dated 07.12.2011 was sent but was not replied. The plaintiff filed complaint under Section 138 of the Negotiable Instruments Act, 1881 and also this suit for recovery under Order 37 of the CPC.

4. (a) The defendant in its application for leave to defend alleges: the plaintiff; Ms.Sangeeta – wife of defendant; Mr.Sandeep Kohli, and Ms.Poonam Virk; being close friends wish to exploit the real estate market and decided to incorporate a company namely ‘M/s Saj Properties Limited’ (hereafter referred as M/s SPL), incorporated and registered on 01.11.2004 wherein all the above four person have equity of 25% shares. The defendant being a local person was instrumental in procuring the land for SPL after negotiating with the owners. It is alleged that all the above four person contributed equal amount and were allotted 25000 equity shares of ₹10/- each. The share holders were to contribute their personal resources to purchase various immovable properties and to develop them for earning profits. From time to time, share holders advanced loan to the SPL for purchase of land. Various properties as mentioned in para No.5 of the application were purchased. As on 31.12.2007 the investment made by the plaintiff was ₹5,43,25,000/-; by Mr.Sandeep Kohli was ₹93,32,000/-; by Ms.Poonam Virk was IA No.13491/2015 in CS (OS) No.2007/2014 Page 2 of 13 ₹8,00,000/-; and by the wife of defendant was ₹6,75,000/-. The plaintiff proposed the share holders to either equalize their investments for the lands held by M/s SPL or the land be sold and the proceeds be apportioned as per the ratio of their individual investments. The wife of the defendant agreed to pay further an amount of ₹1.56 Crore to the plaintiff to equalize her investment and hence some agreement dated 04.01.2008 was prepared and signed by all the share holders of the company in good faith. An oral understanding was allegedly effected between the plaintiff and the defendant that the wife of the defendant would retain the land of her share by paying ₹1.56 Crore in the company. (b) the plaintiff and defendant were to purchase the land admeasuring 7 bigha comprising in Khasra Nos.252(1-09) and 253(5-13), situated in the revenue estate of Village Satbari, Mehruali, New Delhi for a consideration of ₹3.00 Crore and advance of ₹1.38 Crore was paid. However, this deal did not materialize as the said land was acquired by the Government and even the advance money was forfeited. This land was to be purchased for the benefit of the plaintiff and the defendant and both were to share equally the profits/losses. An oral agreement was entered into between the two where the defendant was to pay to the plaintiff a sum of ₹1.56 Crore against the liability of investment in M/s SPL to equalize the investment of his wife and a sum ₹69.00 Lac towards contributing the loss suffered on account of purchase of the land of village Satbari, New Delhi. Thus, ₹2.25 Crore was payable to the plaintiff by the defendant for which an agreement dated 15.11.2008 was prepared, now relied upon in this suit by the plaintiff and that five PDCs were issued by the defendant, however subject to an oral understanding IA No.13491/2015 in CS (OS) No.2007/2014 Page 3 of 13 that the defendant would sell some part of the land of his wife’s share and would pay the abovesaid amount of ₹2.25 Crore by 15.08.2011; (c) however, subsequently, Mr.Sandeep Kohli, one of the directors of M/s SPL filed CS(OS) No.1056/2008 against all the directors and two other person namely Shri Bhitthal Das Parwal and Shri Hari Narain Parwal, inducted in M/s SPL as additional directors by the plaintiff. Other two directors Poonam Virk and Sangeeta (defendant’s wife) also filed a CS (OS) No.1148/2008. A compromise was effected in CS (OS) No.1148/2008 between all directors and as the wife of the defendant did not receive any share in the land she was discharged of her liability of ₹1.56 Crore. A heavy loss was rather caused to the wife of defendant, hence the parties orally agreed to nullify the written agreement dated 15.11.2008 and since the wife of defendant did not receive any share in the land of M/s SPL, the defendant was no more liable to pay under the agreement dated 15.11.2008 or against five PDCs. The defendant rather requested for return of the PDCs but the plaintiff did not pay any heed and after a gap of four years had filed a criminal complaint qua bouncing of such PDCs despite the fact the PDCs were given in good faith as a security that the wife of the defendant would get 1/4th share in the total land purchased admeasuring 111 bigha and 14 biswas but since per compromise in CS (OS) 1148/2008 on 20.01.2009, she did not get any share so the liability of the defendant qua PDC’s also got discharged; (d) it is alleged the present suit is time barred as is filed on 09.07.2014 whereas the agreement is of the year 2008, that hence the defendant prays for an unconditional leave to defend. IA No.13491/2015 in CS (OS) No.2007/2014 Page 4 of 13 5. The defendant had admitted the agreement dated 25.11.2008; the five PDCs given by him to the tune of ₹45.00 Lac each; the dishonoure of said PDCs; but alleges that such PDCs were issued as a security and were to be encashed only if the wife of the defendant was to get her share in land of M/s SPL and as she was ousted from company no amount is payable under the agreement dated 25.11.2008 per oral understanding between the parties.

6. Further the defendant alleges that an adjustment of Rs. 69 lacs need to be given for loss suffered by both the parties in purchase of land admeasuring 7 bigha comprising in Khasra Nos.252(1-09) and 253(5-13), Village Satbari, Mehruali, New Delhi, acquired by the Government. Since an amount of Rs. 13.8 Crores paid by defendant alone so the plaintiff should contribute his share of ₹69.00 Lac in the said loss.

7. Before proceeding further this Court need to verify (a) if the settlement in CS (OS) 1148/2008 amongst the directors of the M/s SPL has any bearing on the agreement dated 18.11.2008 or if the agreement dated 15.11.2008 is an independent transaction altogether; and (b) if the cheques were given as a security.

8. The disputes in M/s SPL appear to be on a different note as were purely amongst the directors of the said company which arose when the plaintiff brought two more directors probably to the annoyance of earlier three directors, and it led to filing of CS (OS) 1056/2008 by one of its directors against the company & others. Subsequently, CS (OS) No.1148/2008 was also filed. IA No.13491/2015 in CS (OS) No.2007/2014 Page 5 of 13 9. The compromise deed/application IA No.15482/2008 under Order 23 Rule 3 of the CPC in Suit No.CS(OS) 1148/2008 makes an interesting reading:-

"lacs twenty four the aforesaid v) Plaintiff No.2 has also received a sum of Rs.4,25,000/-(Rupees five thousand only) in cash from the company in full and final settlement towards the loan amount standing to her credit in the books of accounts of M/s Saj Properties Private Limited (=Company). vi) It has been agreed between the parties that now on receipt of total sum of Rs.6,75,000/- (=Rs. 2,50,000/-+ Rs.4,25,000/-), the plaintiff No.2 is left with no claim, right, title or interest of any nature whatsoever against the defendant nos. 1,2,3 and 4 and also against the company. Nor she is left with any right, title, interest or claim of whatever nature, including but not restricted to proprietary or possessory (actual or symbolic) right, title or interest, against the movable/ immovable properties of either of the defendants or of the company on, the basis of any oral or written agreement, M.O.U.s, settlement deeds, other document, negotiable instrument as well as under the alleged paper/MOU dated 12.01.2005 (filed at page 236 by the plaintiffs along with their documents) or any other valuable security executed by or on behalf of either or some of or all of the parties till this day including but not restricted to those forming the subject matter of the present suit or any other suit or proceedings pending between the parties. xxx xxx xviii) Neither the parties shall initiate nor they shall pursue the pending proceedings, if any, before the Company Law Board, Arbitral Tribunal or before any civil, criminal or revenue court or IA No.13491/2015 in CS (OS) No.2007/2014 Page 6 of 13 any other forum based on the disputes/agreements memorandums forming the subject matter of either the present suit or of the suit no.1056 of 2008 or of the criminal complaint No.CC/2215/
of 2008 pending learned Metropolitan Magistrate, Patiala , House, New Delhi. However M/s SAJ Properties Private Limited will be entitled to pursue its proceedings pending before Company Law Board for transfer of its registered office from Delhi to Jaipur. before the xxx xxx xx) Notwithstanding anything to the contrary written elsewhere in the present application, for the removal of doubts, it is hereby agreed that the parties shall be free to acknowledge any other right(s) or liabilities between the parties, based on any transaction of any date prior to execution of the present application/agreement, only by execution of independent written agreements, which agreement has to be of the date of signing of the compromise application or any date subsequent thereto. It is further clarified that in the absence of any duly executed fresh written agreement on or after execution of the present application/agreement, no rights and liabilities of either of the parties inter se arising out of any transaction of any date prior to execution of the present application/agreement shall be enforceable by way of any civil, criminal or any other proceedings.” 10. The terms above of compromise recorded in CS (OS) 1148/2008 only talks of the disputes inter se the directors of M/s SPL and nowhere it refer to the dispute raised in this suit. Under the compromise, the wife of defendant admittedly received an amount of ₹6.75 Lac i.e. her initial contribution in M/s SPL and it was agreed on receipt of such amount-she IA No.13491/2015 in CS (OS) No.2007/2014 Page 7 of 13 shall have no right, title, claim or interest of whatsoever nature in the land of M/s SPL either based on any oral or written document between the parties viz between the directors of M/s SPL. Rather she was free to acknowledge any other right or liability based on any transaction of any date prior to the compromise, only by execution of a separate written contract. Hence the compromise itself debarred the signatures to enter any kind of oral agreement/understanding.

11. The defendant urged that per clause No.xx of the application, IA No.15482/2008 in the absence of any duly executed fresh agreement on or after the compromise no rights or liabilities inter se arising out of any transaction of any date prior to the execution of the present compromise application shall be enforeceable by way of any civil, criminal or any other proceedings. It is alleged that the compromise in CS(OS) 1148/2008 surpassed the agreement dated 15.11.2008 and since the parties did not enter into fresh agreement on the date of compromise or thereafter, the agreement dated 15.11.2008, thus covered by clause xx above, would not be enforeceable.

12. This plea of defendant cannot be accepted as para xx (supra) refers only to the disputes inter se the directors of M/s SPL. It nowhere mentions of any personal agreements, if any, between a director with an outsider or a personal disputes/agreements between directors themselves, acting on their own. A correct reading of clause xx would reveal the parties were rather free to acknowledge any liability by a separate written agreement but it did not include the defendant herein as he was never a party in the compromise. IA No.13491/2015 in CS (OS) No.2007/2014 Page 8 of 13 13. The dispute herein being an independent dispute than was amongst directors of M/s SPL in CS (OS) No.1148/2008, would not absolve the defendant of his liability to repay the loan taken by him. If the intention of the parties in CS (OS) 1148/2008 was to absolve the directors of their personal liabilities inter se and with outsiders, the settlement would have mentioned the same. If the IA No.15482/2008 in CS(OS) No.1148/2008 has taken note of other pending suit numbers, criminal complaints, property particulars, details of the cheques issued, then why these five PDCs of ₹45.00 lac each were not brought within the fold of such settlement. The defendant is trying to mix two disputes into one which disputes are obviously distinct.

14. By incurring loss on his own, in an independent transaction, the defendant cannot claim adjustment on the basis of an oral understanding/ agreement of an hypothetical amounts of ₹1,56,00,000/- payable to his wife or of ₹69 Lac payable by him, when his wife herself had settled her disputes in the company only for a partly sum of ₹6.75 Lac. It is settled law as held in catena of judgments including in Roop Kumar vs. Mohan Thedani 2003 (6) SCC595 Yash Chhabra vs. Maya Jain 2015 (151) DRJ316that oral plea to contradict written agreement is not tenable in terms of Section 91 of the Indian Evidence Act, 1872. Thus, since all the above pleas/ allegations of the defendant have no foundation or relation with the written agreement dated 15.11.2008, same cannot be considered against the terms of the written contract dated 15.11.2008 wherein defendant had acknowledged of receiving loan of ₹2.25 Crores, utilizing the same in the land transactions and undertaken to repay the same by issuing five PDCs for the said purpose. IA No.13491/2015 in CS (OS) No.2007/2014 Page 9 of 13 15. The liability of the defendant herein is on a different transaction altogether. The agreement dated 15.11.2008 notes the amount was taken on loan by the defendant herein for purchase of land. Nowhere the agreement says the land was to be purchased in the joint names. Admittedly during such period the property rates were in boom and it appears from the facts the defendant to make a quick buck had taken loan from the plaintiff to purchase land, but unfortunately such land was acquired by the Government and he suffered a loss and now is trying to take benefit of various clauses of compromise effected in CS (OS) No.1148/2008 of which he was never a party.

16. The defendant in a complaint case filed against him under Section 138 of Negotiable Instruments Act however, raised another defence viz the cheques were given as a security for purchase of land for the plaintiff in Delhi and that the defendant purchased lands for the plaintiff & handed over it to plaintiff for all the money the plaintiff had paid to the defendant. The cheques were then to be returned after purchase of the land, but those remained with the plaintiff and he is now misusing the said cheques. This defence taken in the complaint case under section 138 Negotiable Instruments Act is also contrary to the stand taken by the defendant in his leave to defend application IA No.13491/2015 where the defendant says the amount of `2.25 Lac is adjustable partly against the loss caused to his wife and partly against the loss caused in a land deal at Satbari.

17. The agreement dated 15.11.2008 is rather self sufficient and it read as under:-

"IA No.13491/2015 in CS (OS) No.2007/2014 Page 10 of 13 “WHEREAS party of the first part, from time to time in last two years, took loans from the party of the second part totaling Rs. 2,25,00,000/- ( Rupees Two crores twenty five lacs). AND WHEREAS party of the first part represented that he used the loan amount in doing some transactions with respect to the following property:-

"i. One agreement to Sell between Sh. Karam Chand s/o sh Jai Ram R/o T-21Uttam Nagar, New Delhi and Sh. Kuldeep Singh s/o Sh. Pratap Singh, Village Kishan Garh, Vasant Kunj New Delhi for Land measuring 7 Bigha, Comprised in Khasra No.252 (1-09) and 25
(5-13) situated in Satbari. AND WHEREAS party of the first part has till now not repaid the abovesaid loan amount to the party of the second part. AND WHEREAS parties to the present agreement are recording and binding themselves with the terms of the present agreement, as mentioned herein below: NOW IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:

1. That party of the first part hereby unequivocally records that he has taken a loan of.2,25,00,000/- (Rupees Two crores twenty five lacks) from party of the second part.

2. That party of the first part is hereby acknowledging his loan of 2,25,00,000/- ( Rupees Two crores twenty five lacks) to party of the second party within 3 years (three years) from today, i.e. 15th November, 2008 from his own resources.

3. xxxx xxxx 4. That it has been categorically agreed by and between the parties to the present agreement that in the event of party of the first part not honoring the abovesaid cheques on presentation, party of the second part will be entitled to initiate appropriate to repay the said this liability IA No.13491/2015 in CS (OS) No.2007/2014 Page 11 of 13 legal proceedings including but not restricted to the proceedings under Section 138 of Negotiable Instrument Act against the party of the first part. It has also been agreed that if party of the first part will refuse or neglect to make payment against the abovementioned cheques on presentation as per the dates appearing in the respective cheques, in that event party of the first part will also be liable to pay interest to the party of the second part at the rate of 18% per annum for every such delayed payment with effect from the date when payments will fall due on presentation of the respective cheques. However this right of the party of the second part is independent of and without prejudice to his right to initiate all legal proceedings, including that under Section 138 of the Negotiable Instrument Act, 1881.

5. That present agreement has been executed by the parties without any pressure, coercion and undue influence of any nature whatsoever and this present agreement is result of the free will and consent of both the parties.” 18. The agreement clearly stipulate that the defendant has taken loan(s) for purchase of land admeasuring 7 bighas in Satbari and that such land is not connected with the business of M/s SPL. In this agreement, the defendant has unequivocally admitted to repay the loan amount within three year lest an action can be taken against him. The cheques also were given in advance and the defendant has also agreed to suffer proceedings if such cheques are not honoured. No linkage can be drawn between the agreement dated 15.11.2008 and with the terms of settlement stated in IA No.15482/2008 in CS (OS) No.1148/2008.

19. As the defence raised in his application for leave to defend is contrary to what the defendant had stated in his application under Section IA No.13491/2015 in CS (OS) No.2007/2014 Page 12 of 13 145(2) Negotiable Instruments Act in proceedings under Section 138 Negotiable Instruments Act, so the defence of the defendant though appear to be illusionary but he is allowed to proceed on his depositing the principal amount of `2,25,00,000/-(Rupees Two Crore Twenty Five Lacs) with the Registrar General of this Court within four weeks from today.

20. The application stands disposed of in above terms. CS(OS) 2007/2014 21. Upon complying with above directions, written statement be filed by the defendant within four weeks thereafter. Replication thereto, if any, be also filed by the plaintiff within two weeks of filing the written statement.

22. List for compliance and completion of pleadings before the Joint Registrar (Judicial) on 26th October, 2017.

23. Be listed in Court upon completion of pleadings. YOGESH KHANNA, J AUGUST10 2017 M IA No.13491/2015 in CS (OS) No.2007/2014 Page 13 of 13