TaxTMI 
TaxTMI 
2017 (8) TMI 1077
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....t dated cheques (PDCs) for an amount of Rs. 45 Lac each were given and clause 4 of the agreement says in event of not honouring of the aforesaid cheques on presentation, the plaintiff shall be entitle to initiate legal proceedings. Post dated cheques were dishonoured for reason 'insufficiency of funds' and 'drawer's signatures differ'. The demand notice dated 07.12.2011 was sent but was not replied. The plaintiff filed complaint under Section 138 of the Negotiable Instruments Act, 1881 and also this suit for recovery under Order 37 of the CPC. 4. The defendant in its application for leave to defend alleges: (a) the plaintiff; Ms.Sangeeta - wife of defendant; Mr.Sandeep Kohli, and Ms.Poonam Virk; being close friends wish to exploit the real estate market and decided to incorporate a company namely 'M/s Saj Properties Limited' (hereafter referred as M/s SPL), incorporated and registered on 01.11.2004 wherein all the above four person have equity of 25% shares. The defendant being a local person was instrumental in procuring the land for SPL after negotiating with the owners. It is alleged that all the above four person contributed equal amount and were allotted 25000 equity sha....
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....abovesaid amount of Rs. 2.25 Crore by 15.08.2011; (c) however, subsequently, Mr.Sandeep Kohli, one of the directors of M/s SPL filed CS(OS) No.1056/2008 against all the directors and two other person namely Shri Bhitthal Das Parwal and Shri Hari Narain Parwal, inducted in M/s SPL as additional directors by the plaintiff. Other two directors Poonam Virk and Sangeeta (defendant's wife) also filed a CS (OS) No.1148/2008. A compromise was effected in CS (OS) No.1148/2008 between all directors and as the wife of the defendant did not receive any share in the land she was discharged of her liability of Rs. 1.56 Crore. A heavy loss was rather caused to the wife of defendant, hence the parties orally agreed to nullify the written agreement dated 15.11.2008 and since the wife of defendant did not receive any share in the land of M/s SPL, the defendant was no more liable to pay under the agreement dated 15.11.2008 or against five PDCs. The defendant rather requested for return of the PDCs but the plaintiff did not pay any heed and after a gap of four years had filed a criminal complaint qua bouncing of such PDCs despite the fact the PDCs were given in good faith as a security that the wif....
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....roperties Private Limited (=Company). vi) It has been agreed between the parties that now on receipt of the aforesaid total sum of Rs. 6,75,000/- (=Rs. 2,50,000/-+ Rs. 4,25,000/-), the plaintiff no. 2 is left with no claim, right, title or interest of any nature whatsoever against the defendant nos. 1,2,3 and 4 and also against the company. Nor she is left with any right, title, interest or claim of whatever nature, including but not restricted to proprietary or possessory (actual or symbolic) right, title or interest, against the movable/ immovable properties of either of the defendants or of the company on, the basis of any oral or written agreement, M.O.U.s, settlement deeds, other document, negotiable instrument as well as under the alleged paper/MOU dated 12.01.2005 (filed at page 236 by the plaintiffs along with their documents) or any other valuable security executed by or on behalf of either or some of or all of the parties till this day including but not restricted to those forming the subject matter of the present suit or any other suit or proceedings pending between the parties. xxx xxx xviii) Neither the parties shall initiate nor they shall pursue the pending ....
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.... in the absence of any duly executed fresh agreement on or after the compromise no rights or liabilities inter se arising out of any transaction of any date prior to the execution of the present compromise application shall be enforeceable by way of any civil, criminal or any other proceedings. It is alleged that the compromise in CS(OS) 1148/2008 surpassed the agreement dated 15.11.2008 and since the parties did not enter into fresh agreement on the date of compromise or thereafter, the agreement dated 15.11.2008, thus covered by clause xx above, would not be enforeceable. 12. This plea of defendant cannot be accepted as para xx (supra) refers only to the disputes inter se the directors of M/s SPL. It nowhere mentions of any personal agreements, if any, between a director with an outsider or a personal disputes/agreements between directors themselves, acting on their own. A correct reading of clause xx would reveal the parties were rather free to acknowledge any liability by a separate written agreement but it did not include the defendant herein as he was never a party in the compromise. 13. The dispute herein being an independent dispute than was amongst directors of M/s S....
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....laint case filed against him under Section 138 of Negotiable Instruments Act however, raised another defence viz the cheques were given as a security for purchase of land for the plaintiff in Delhi and that the defendant purchased lands for the plaintiff & handed over it to plaintiff for all the money the plaintiff had paid to the defendant. The cheques were then to be returned after purchase of the land, but those remained with the plaintiff and he is now misusing the said cheques. This defence taken in the complaint case under section 138 Negotiable Instruments Act is also contrary to the stand taken by the defendant in his leave to defend application IA No.13491/2015 where the defendant says the amount of Rs. 2.25 Lac is adjustable partly against the loss caused to his wife and partly against the loss caused in a land deal at Satbari. 17. The agreement dated 15.11.2008 is rather self sufficient and it read as under:- "WHEREAS party of the first part, from time to time in last two years, took loans from the party of the second part totaling Rs. 2,25,00,000/- ( Rupees Two crores twenty five lacs). AND WHEREAS party of the first part represented that he used the loan amoun....