Mr Sunil Alagh v. Mr Shivraj Puri & Anr

RAJIV SAHAI ENDLAW, J. MAY 16, 2017 "pp".. (corrected & released on 29th May, 2017)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 16th May, 2017 + SUNIL ALAGH ..... Plaintiff Through: Mr. Manav Gupta, Mr. Sahil Garg and Ms. Ridhi Munjal, Advs. Versus SHIVRAJ PURI & ANR. …...Defendants Through: Ms. Diviani Khanna and Ms. Upasana Talwar and Mr.Vivek Singh , Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW IA No.6002/2017 of the defendants under Order XXXVII Rule 3(5) of the CPC). 1. The two defendants Shivraj Puri and Raghuraj Puri, in this suit under Order XXXVII of the Code of Civil Procedure, 1908 (CPC) for recovery of Rs.9,15,00,000/-, pursuant to service (stated to be on 3rd April, 2017) of the summons for judgment, on 12th April, 2017 (re-filed on 12th May, 2017) filed this application for leave to defend with affidavits in support thereof of both the defendants. 2. The application though re-filed on 12th May, 2017 i.e. after more than seven days of the original filing on 12th April, 2017 is not accompanied with any application for condonation of delay in re-filing. Re-filing beyond seven days, in law is a fresh filing. The application filed on 12th May, 2017 is clearly beyond the time of ten days prescribed in Order XXXVII Rule 3(5) from stated date of service of the summons for judgment on 3rd April, 2017 and liable to be rejected on this ground alone. In fact on perusal of the office file it is found that the summons for judgment were served, at the address given in the Memo of Appearance, on the counsel for the defendants on 1st April, 2017. The first filing on 12th April, 2017 also was thus beyond time. 3. The application is liable to be dismissed on this ground alone. However since during the hearing counsels have not addressed on the said aspect and have been heard on merits, I refrain from doing so. 4. Though the application has come up today for the first time but having gone through the same and being prima facie of the opinion that the application does not disclose a ground for grant of leave to defend, the counsel for the defendants has been heard at length and has after conclusion of hearing been also permitted to hand over copies of the judgments relied upon. 5. The plaintiff has instituted this suit pleading that (i) the plaintiff has known defendant no.2 Raghuraj Puri for the past several years and the defendant no.1 Shivraj Puri is the son of the defendant no.2; (ii) on 30th June, 2014 the defendant no.2 telephonically informed the plaintiff that the property dealer contacted by the plaintiff for sale of the plaintiff"s "residential plot at DLF" had fraudulently sold the said plot to five different persons and certain criminal cases for the offence of cheating had been registered against the plaintiff and his wife and were pending in the Gurgaon District Court and that the plaintiff and his wife were likely to be arrested at any time; (iii) the defendant no.2 assured the plaintiff that his son the defendant no.1 would clear up the cases and ensure that the plaintiff and his wife do not get arrested but an amount of Rs.8,50,00,000/- was immediately required therefor, for depositing Rs.6,50,00,000/- in the Courts at Gurgaon and the balance for securing bail for the plaintiff and his wife; (vi) the plaintiff sent the said money to the defendant no.2 through RTGS from his bank account; (v) the defendants continued to inform the plaintiff of the steps being taken by them on behalf of the plaintiff and continued to do so till first week of August, 2014 and the plaintiff sent a total amount of Rs.13,15,00,000/- to the defendants; (vi) when the defendants despite repeated demands of the plaintiff and their assurances failed to supply even a single document relating to the cases filed to the plaintiff, the plaintiff made enquiries and learnt that there were no such criminal cases ever pending against the plaintiff and his wife either in the Gurgaon District Court or the Tis Hazari Courts; the plaintiff further learnt that the defendant no.1 is a habitual criminal and had been co