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2018 (10) TMI 271 - HC - Indian LawsRecovery of outstanding amount - Mis-utilization of investment made in a company - It is the Plaintiff’s case that the funds which were invested by the Plaintiff, were misused by the said persons for their personal gains and benefits - revival scheme - Section 138 of the Negotiable Instruments Act, 1881. Held that:- The three agreements clearly show that firstly the main agreement by which the investment was made by the Plaintiff was made in a company where not only Dr. Niaz Ahmed, the Defendant, but also his wife was one of the promoters. The company had acknowledged by the said agreement, the receipt of the sum of ₹ 3.24 crores. This investment was almost 11 years ago i.e. on 29th October, 2007. Thereafter, the two MOUs have been executed which are of 12th April, 2010 and 23rd August, 2012. The transaction has been a long duration transaction and not an overnight transaction. The stand of the Defendant that there was any threat is belied by the fact that these agreements span over seven to eight years. Further the fact that some payments under the 2010 agreement as also under the 2012 agreement having been made, the allegation of coercion is not made out. Moreover, the Defendant himself looked for and arranged an overseas buyer, which also did not work out. These facts go to prove that there was no coercion or duress or pressure. Proceedings before the criminal court under the Negotiable Instruments Act are tested under a different yardstick than a suit under Order XXXVII - In a suit under Order XXXVII all that the Court needs to see is as to whether the Defendant has a triable defence. In the present case, the agreements themselves having been admitted and some payments under the said agreements/settlement have already been made, a mere allegation of coercion or threat is not sufficient to raise a triable defence. The suit is liable to be decreed as there is no triable defence - The suit is decreed for a sum of ₹ 1,74,00,000/- towards the principal amount.
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