Mohd Wasim v. Gabar Singh

S. RAVINDRA BHAT, J (JUDGE)

NAJMI WAZIRI, J (JUDGE) OCTOBER 01, 2013 RN

* IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on: 01.10.2013 + RFA (OS) NO.68 OF 2013 MOHD WASIM ..... Appellant Through: Mr.Shahzad Khan, Mr. Suhail Khan and Mr. Z. Khan, Advocates. versus GABAR SINGH ..... Respondent Through: Mr.Mobin Akhtar with Mr. M. Hasibuddin, Advocates. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI % MR. JUSTICE S.RAVINDRA BHAT(Open Court) 1. This is defendant"s appeal impugning the judgment and order dated 21st March, 2013 of a learned Single Judge, directing decree to be drawn under Order XXXVII CPC for Rs.32,50,000/-. By the impugned judgment and order, the learned Single Judge dismissed the appellant"s application for leave to defend under Order 37 (3), CPC. 2. Briefly stated the facts of the case are that the plaintiff/respondent alleged that he acquired the suit land measuring 4 bighas 16 biswas in Village Satbari, New Delhi on 22nd August, 2006, but was unable to plot the land due to some impediments caused by the local residents. In the circumstances, he entered into an agreement with the appellant on 25.08.2006. In terms of that agreement, the defendant/appellant agreed to purchase the land for Rs.32,50,000/-. The defendant did not pay the amount but instead stated (in terms of the agreement) that the consideration would be made after plotting and sale of the plots. It was alleged by the plaintiff/respondent that the defendant/appellant in discharge of his debt and liability, issued a post dated cheque of Rs.32,50,000/-. When the cheque was presented in terms and instructions of the appellant, it was dishonoured on account of "insufficiency of funds. Accordingly, the plaintiff instituted a summary suit under Order 37 CPC. 3. Upon being served, the appellant entered appearance and sought leave to defend contending that the plaintiff had acquired the suit land on 25.08.2006 for a consideration of Rs.51 lakhs with the intention of plotting and selling it, but was unable to pay the purchase consideration of Rs.51 lacs. It was alleged that appellant in these circumstances agreed to finance the plaintiff/respondent and the cheque in question was issued on the specific request of the plaintiff/respondent that amount be kept as security only. The appellant allegedly agreed to purchase the plot the land and sell it to prospective buyers. He further alleged that the sellers had not permitted him (plaintiff) to sell the plot unless they were paid, and the appellant / defendant paid the consideration amounts to the plaintiff"s sellers. It was alleged that in these circumstances, no amounts were payable or outstanding to the plaintiff/respondent. 4. The appellant strongly relied upon an undated written document styled as "Panchayatnama", a copy of which was produced along with the leave to defend application filed by him. The said Panchayatnama recorded that a total amount of Rs.51 lakhs was paid by the defendant/appellant to certain individuals including a sum of Rs.32,50,000/- to the respondent/plaintiff. 5. It is argued that the learned Single Judge fell into error in not attaching any significance to, and not giving any credence to the Panchayatnama. It was submitted that this document clearly established that the amounts claimed by the plaintiff were in fact the liabilities of the plaintiff for the land purchased through Agreement to Sell dated 25.08.2006, which were in fact discharged and so recorded. 6. It was submitted that the Single Judge gave undue importance to the post dated cheque which was furnished as security and which could not be enforced in the manner sought by the plaintiff. 7. The impugned judgment noticed that the defendant/appellant did not deny the transaction with respect to the suit land. The learned Single Judge also noted the defendant/appellant"s contention that the plaintiff had in fact acquired the land through the Agreement to Sell dated 25.08.2006 and that he (appellant) stepped into the shoes of the plaintiff "taking over the delivery fr