MRS SUNITA SINGH vs MR. SHREE PRAKASH SINGH
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 15.12.2023
+ CS(OS) 3084/2015
MRS SUNITA SINGH ….. Plaintiff
Through: Mr.Suhail Sehgal & Mr.Prashant Drolia, Advs.
versus
MR. SHREE PRAKASH SINGH ….. Defendant
Through: Mr.Sanjeev Dubey, Sr. Adv. with Mr.Aaditya Vijay Kumar, Ms.Shreya Shree Singh, Advs.
CORAM:
HON’BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J (ORAL)
I.A. 12019/2018 (leave to defend)
1. This is an application under Order XXXVII Rule (3)(5) of the Code of Civil Procedure (CPC) filed by the defendant seeking leave to defend the present suit.
2. Before dealing with the rival submissions of the parties, the brief factual matrix as may be necessary for adjudication of the present application may be noted.
3. The plaintiff, who is the sister of the defendant, has filed the present suit under Order XXXVII Rule 3(5) CPC seeking recovery a sum of Rs.3 crores alongwith interest @18% p.a. on the basis of a Memorandum of Understanding (MoU) dated 02.10.2012 entered into between the parties. It is the claim of the plaintiff that she and the defendant along with their mother and other siblings, including step sisters and step brothers, are entitled to 1/10th share each in the estate of late Sh. Biswanath Singh, i.e the father of the parties. It is the plaintiffs case that after the death of their father, the defendant has been running the businesses as also managing the estate of their late father exclusively and it is only after repeated requests of the plaintiff that the defendant on 02.10.2012 agreed to pay a sum of Rs. 3.26 crores to the plaintiff towards her part shares in the profits generated from the estate of late Sh.Biswanath Singh.
4. It is the further case of the plaintiff that after entering into the aforesaid MoU, the intention of the defendant became dishonest and he, through his wife, got a false and frivolous complaint lodged with the police station PS Susant Lok, Gurugram alleging therein that he was coerced to sign the MoU, this complaint was found to be baseless and consequently a closure report was filed after investigation, which was duly accepted by the learned Judicial Magistrate. It is therefore claimed by the plaintiff that even though the correctness of the MoU now stands established, the defendant has still failed to pay the agreed amount, compelling her to institute the present suit on the basis of this written contract. After summons in the suit were issued on 12.10.2015, the defendant entered appearance on 16.03.2016 and filed the present application seeking leave to defend.
5. In support of the application, learned senior counsel for the defendant has made three primary submissions. The first and foremost being that the document on which the plaintiff is relying is not an original document as the original signed MoU is in possession of the defendant and will be duly proved if granted an opportunity to lead evidence. It is therefore contended that the present suit, which has been filed without the original MoU, is not maintainable. In support of his plea that unless the original documents are placed on record, a suit under Order XXXVII Rule 3(5) cannot lie, learned senior counsel for the defendant seeks to place reliance on the decision of the Apex Court in Neebha Kapoor Vs. Jayantilal Khandwala and Ors. (2008) 3 SCC 700 and a decision of this Court in Goyal MG Gases Ltd. Vs. Premium International Finance Ltd. & Ors. 2006 SCC OnLine Del 839.
6. Mr. Dubey next contends that even otherwise, in view of the defendants specific plea that this MoU was executed under coercion and threat to the life of the defendant and his family members, the MoU cannot be treated as a valid contract as described under Section 10 of the Indian Contract Act, 1872 and therefore the prerequisites of Order XXXVII are not met. He finally submits that the suit is otherwise also not maintainable before this Court for want of territorial jurisdiction. His plea being that the defendant is a resident of Gurugram and the plaintiff is a resident of Mumbai and no part of the cause of action has arisen in Delhi as the MoU was also executed in Gurugram. He, therefore, prays that the defendant be granted unconditional leave to defend the present suit.
7. On the other hand, learned counsel for the plaintiff seeks to contend that once the correctness of the MoU stands established after investigation by the police, all the pleas raised by the defendant are liable to be rejected. He submits that it is a clear case where in his leave to defend application, the defendant has admitted that he had undertaken to pay a sum of Rs.3 crores to the plaintiff when he was pressurised for having entered into an agreement to sell a property, which was jointly owned by him and the plaintiff.
8. He next submits that the defendants plea that the MoU dated 02.10.2012 filed by the plaintiff is not an original document is belied from the stand taken by the defendants wife in her complaint to the police wherein she had categorically stated that the original MoU was taken by the plaintiff by keeping the same in her purse. The defendant cannot therefore be permitted to urge that the original MoU is in his possession. Finally he submits that the admission by the defendant that the stamp paper on which the MoU was executed, was purchased by him from a stamp vendor in Delhi is in itself sufficient to show that the MoU was executed at Delhi. He therefore contends that it is clear that a part of the cause of action had arisen in Delhi and therefore the defendants plea that the suit is liable to be rejected for want of territorial jurisdiction is also liable to be rejected.
9. Having considered the submissions of the learned counsel for the parties, I am constrained to observe that both parties are trying to take stands which to their knowledge appear are false. Furthermore, the defendant who was today examined under Order X CPC has given extremely evasive answers and despite being repeatedly asked, has avoided to clearly state as to what would be the share of the plaintiff in the estate of their late father Sh.Biswanath Singh. However, since the present suit does not pertain to the partition of the estate of Sh.Biswanath Singh, this Court is refraining from commenting any further especially when a suit for partition, filed by the plaintiff, is stated to be already pending before a competent Court at Gorakhpur, Uttar Pradesh.
10. Now turning to the MoU dated 02.10.2012, a two page document, on which the entire case of the plaintiff is based. A perusal of page 1 of the MoU as filed by the plaintiff, which is signed by both parties clearly depicts that besides recording an undertaking of the defendant to pay a sum of Rs. 3 crores to the plaintiff, the same contains a specific hand-written note referring to a further sum of Rs. 26 lakhs to be paid by him and also to page 2 of the document. Thus, what emerges is that the parties had executed a two page document but surprisingly page 2 of the MoU is unsigned. In order to appreciate the effect of page 2 of the MoU being unsigned, it would be apposite to extract herein below a photo-copy of the MoU itself:-
11. From a bare perusal of the aforesaid, it transpires that even though page 2, forms an integral part of the MoU, the same is unsigned. There is absolutely no explanation forthcoming from the plaintiff as to why this page of the MoU, the document on which this suit under Order XXXVII CPC hinges, is unsigned. When faced with this situation, learned counsel for the plaintiff has vehemently urged that the admission of the defendant to pay a sum of Rs. 3 crores to the plaintiff is evident from page 1 of the MoU itself, which page is duly signed and therefore the non-signing of page 2 thereof is insignificant. Even though this plea of the plaintiff appears to be attractive on the first blush, upon a closer scrutiny of the factual position, this plea has to be necessarily rejected. Once the plaintiff in itself is relying on a two page document, page 2 whereof is unsigned, in my view, this in itself not only creates a doubt regarding the authenticity of the document but also raises a question regarding the binding effect thereof.
12. In the light of the aforesaid, I am of the view that the question as to whether the MoU based on which the present suit is premised, is a concluded contract, can be decided only after evidence is led by the parties. The defendant has, therefore, been able to raise a triable issue and is consequently entitled to unconditional leave to defend the suit. At this stage, the defendant who appears in person submits that even though he is entitled to unconditional leave to defend the suit as held by this Court, he in order to show his bona fide is willing to deposit all the documents in respect of the petrol pump at Silchar, Assam with the Registrar General of this Court. The said statement is taken on record. The defendant will, accordingly, within two weeks, file with the Registrar General of this Court, all the original documents in respect of the petrol pump at Silchar, Assam along with an affidavit undertaking to continue to prosecute his pending petition at Guwahati High Court in respect of the said petrol pump.
13. Before I conclude, I may also observe that, though both the sides have vehemently tried to urge that they are both in possession of the original MoU, with the plaintiff claiming to have placed the same on record and the defendant claiming that the original MoU is still with him, I am refraining from expressing any opinion in this regard. Once I find that the document based on which the suit has been filed by plaintiff in itself shows that the complete document has not been signed, making it doubtful as to whether the same can be treated as a valid contract, there is no requirement to determine at this stage as to which of the parties is in possession of the original MoU. For the same reason, I am at this stage not dealing with the other rival pleas of the parties lest the same prejudices the case of the parties during trial.
14. The application is, accordingly, allowed in the aforesaid terms. Taking into account that the present application for leave to defend has remained pending for over eight years and the defendant has more or less already disclosed his defence in the application seeking leave to defend, the defendant is granted only four weeks time to file the written statement alongwith an affidavit of admission/denial of the plaintiffs documents. It is made clear that no further time will be granted to the defendant for this purpose. Replication thereto, if any, be filed within 30 days thereafter.
15. Needless to state, the views expressed by this Court in this order is only a prima facie view and will not influence the final outcome of the suit.
16. The application stands disposed of.
CS(OS) 3084/2015
17. List on 03.04.2024.
(REKHA PALLI)
JUDGE
DECEMBER 15, 2023/al
CS(OS) 3084/2015 Page 3 of 9