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2017 (2) TMI 810 - DELHI HIGH COURTGrant of leave to defend - suit for recovery - Held that:- The submitted documents when read together, make it abundantly clear that there was never any understanding between the parties that the respondent/plaintiff had paid a sum of ₹ 1,06,50,000/- to the appellant/defendant so that he could utilize the said funds to construct eight flats in the suit premises and after the completion of the construction, parties had agreed that the said flats would be sold in the open market and the sale proceeds shared between them. On the contrary, all the aforesaid documents demonstrate an underlying common intent and purpose which was that the appellant/defendant had decided to sell the subject property outright to the respondent/plaintiff for a total sale consideration of ₹ 1,10,00,000/-. Nowhere has the appellant/defendant taken a stand in the leave to defend application that he had signed the said Agreement to Sell under any misconception or claimed that the same had been executed by him under any undue influence or coercion. Instead, even as per the averments made by him in the leave to defend application, the appellant/defendant has stated that the parties were known to each other as both of them belong to Bihar and have common relatives and friends. On a bare reading of the admitted documents, it is crystal clear that the appellant/defendant had issued four post-dated cheques totalling to a sum of ₹ 1,40,00,000/- in favour of the respondent/plaintiff towards repayment of the principal amount along with interest and all the said cheques were dishonoured on presentation. It is also an undisputed position that the respondent/plaintiff had served two legal notices dated 28.6.2014 and 7.5.2014 on the appellant/defendant calling upon him to pay the amounts, subject matter of the post dated cheques. Pertinently, the appellant/defendant did not give a reply to the said notices. When the respondent/plaintiff filed four criminal complaints against the appellant/defendant under Section 138 of the NI Act on account of dishonour of the aforesaid cheques, the latter had contested the said complaints. It is an admitted position that the appellant/defendant has been convicted by the learned MM in the said complaints. On a consideration of the facts of the case, this Court concurs with the finding returned by the learned trial court that no prima facie case has been made out by the appellant/defendant for grant of leave to defend and that leave to defend cannot be granted as a matter of course, unless there is a substantial defence and the pleas raised by the defendant gives rise to triable issues. Further, the affidavit of the appellant/defendant does not disclose a plausible defence which indicates that he may succeed in establishing the same.
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