India Affordable Housing Solutions (Iahs) & Anr vs Konark Infra Developers Private Limited & Ors

,"Proposed/

Tentative

date","Activity as promised by the

defendant No.1 company",,

1,"End

August

2010",Obtaining LOI from HUDA,,

2,"End

October

2010","Obtaining License from

HUDA",,

3,"End

February

2011","All other clearances â€" viz

Building

Plans/AAI/Electricity/Water

etc.",,

4,"End

March

2011","Home Loan approval from

bank",,

5,"April

2011",Construction starts.,,

S.No.,Cheque No.,Dated,Amount( ),Purposes

1,495844,14.06.2010,1 Crore,MOU

2,495845,01.07.2010,2 Crore,MOU

3,497454,24.06.2010,2 Crore,"Part Payment of

7.00 Crore

4,497455,24.06.2010,1 Crore,"Part Payment of

7.00 Crore

5.Thus in substance the learned counsel for the defendants No.1 to 3 argued the defendants were to receive 7.00 Crores as above, in the year 2010-",,,,

11, but is unable to answer if that was so then why did he entered into a settlement dated 29.01.2015 and/or why his counsel made a statement on",,,,

23.03.2015 before this Court that the dispute is settled. Of course he was referring to settlement dated 29.01.2015.,,,,

6.It appears the applicants are trying to mix two disputes into one hich disputes are obviously distinct. It is a settled law, held in catena of judgments",,,,

including in Roop Kumar vs. Mohan Thedani 2003 (6) SCC 595; Yash Chhabra vs. Maya Jain 2015 (151) DRJ 316 that an oral plea to contradict,,,,

written agreement is not tenable in terms of Section 91 of the Indian Evidence Act, 1872. Since all the above pleas/ allegations qua claim of 7 crores",,,,

of the defendants is against the MoU/settlement dated 29.01.2015, hence cannot be considered.",,,,

7.The criteria while considering the application under Order 37 of the CPC has been discussed by the Supreme Court inM echelec Engineers And,,,,

Others vs. M/s. Basic Equipment Corporation 1977 AIR 577 = 1977 SCR (1)1060 which noted:-,,,,

“8. In Smt.Kiranmoyee Dassi & Anr. v. Dr. J. Chatterjee(1), Das. J., after a comprehensive review of authorities on the subject, stated the",,,,

principles applicable to cases covered by order 37 C.P.C. in the form of the following propositions (atp. 253):,,,,

(a)If the Defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and,,,,

the Defendant is entitled to unconditional leave to defend.,,,,

(b)If the Defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the,,,,

plaintiff is not entitled to sign judgment and the Defendant is entitled to unconditional leave to defend.,,,,

(c)If the Defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does",,,,

not positively and immediately make it clear that he has a defence, yet, shews such a state of facts as leads to the inference that at the trial of",,,,

the action e may be able to establish a defence to the plaintiff's claim the Plaintiff is not entitled to judgment and the Defendant,,,,

is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of,,,,

trial but not as to payment into Court or furnishing security.,,,,

(d)If the Defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the Plaintiff is entitled to leave to,,,,

sign judgment and the Defendant is not entitled to leave to defend.,,,,

(e)If the Defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the Plaintiff is entitled to leave,,,,

to sign judgment, the Court may protect the Plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise se-",,,,

cured and give leave to the Defendant on such condition, and thereby show mercy to the Defendant by enabling him to try to prove a defence"".",,,,

8.As the defence raised in their application for leave to defend is contrary to what they had taken in their case under Section 138 NI Act, so the",,,,

defence of the defendants no.1 to 3 though appear to be illusionary but they are allowed to proceed on their depositing the principal suit amount of,,,,

`3.00 Crore with the Registrar General of this Court within four weeks from today. The amount so deposited shall be put in the fixed deposit for a,,,,

period of one year. Alternately, they are also permitted to furnish the bank guarantee of any nationalised bank for the above sum.",,,,

9.The application stands disposed of in above terms.,,,,

IA No.1007/2016,,,,

10.In view of above order passed on leave to defend application, this application of the plaintiff also stands disposed of.",,,,

CS(OS) 82/2014,,,,

11.Upon complying with above directions, written statement be filed by the defendants within four weeks thereafter. Replication thereto, if any, be",,,,

also filed by the plaintiff within two weeks of filing the written statement.,,,,

12.List for compliance and completion of pleadings before the Joint Registrar (Judicial) on 05th July, 2018.",,,,

13.Be listed in Court upon completion of pleadings.,,,,