Chandka 1 SJ-99-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 99 OF 2010 IN SUMMARY SUIT NO. 139 OF 2010 M/s. Elegant Constructions ..Plaintiff versus M/s. Basant Reality Pvt. Ltd. ..Defendant Mr. B. G. Vaidya with Mr. Uday G. Shelke i/b. Shelke & Co. for Plaintiff. Mr. Siddesh S. Bhole with Ms. P. S. Dhanankar for Defendant. CORAM : DR. D. Y. CHANDRACHUD, J. 25 April 2011. P.C. : The Summons for Judgment has been taken out in a Summary Suit instituted under Order XXXVII of the Code of Civil Procedure, 1908. 2. The suit has been instituted for the recovery of an amount of Rs.3.15 Crores on a written contract embodied in a document dated 27 February 2008. An agreement was entered into between the Plaintiff and the Defendant on 16 March 2006. The agreement recites that one Maya Kaikini had been allotted a plot of land by CIDCO under the Gaothan Expansion Scheme. Maya Kaikini had in turn entered into an agreement with Jagdish Chandka 2 SJ-99-10 Thakkar on 26 July 2000 conferring development rights in respect of the plot of land to the latter. In turn Jagdish Thakkar had entered into an agreement on 9 April 2001 with M. S. Kolambekar. Maya Kaikini died on 11 August 2005. Thakkar and Kolambekar had in turn assigned to the Defendant their respective rights on 4 March 2006. By the agreement entered into between the Plaintiff and the Defendant on 16 March 2006 the Defendant agreed to assign and transfer to the Plaintiff its right, title and interest under the agreement dated 4 March 2006 for a consideration of Rs. 4.78 Crores. 3. In pursuance of the agreement dated 16 March 2006 the Plaintiff paid to the Defendant a total amount of Rs.2.90 Crores. On 27 February 2008 the Defendant addressed a letter to the Plaintiff recording a meeting of 8 February 2008 at which it was agreed that the Defendant would refund to the Plaintiff a total amount of Rs.3.50 Crores. This was upon the Plaintiff expressing the desire not to continue with the agreement dated 16 March 2006, on account of the delay of CIDCO in executing an agreement to lease. The Defendant’s letter stated as follows :- “This is with reference to the meeting undersigned had with you at your office on 8th February, 2008, wherein you showed your desire for not continuing with aforementioned agreement due to delay in Cidco’s agreement to lease and ask for refund of the amount paid to me in respect of the abovesaid agreement. It was Chandka 3 SJ-99-10 agreed by you that I shall return you the amount paid by you to me till today along with compensation. The total amount payable to you will be Rs.3,50,00,000/- which includes refund amount and compensation amount, the said amount shall be payable to within six months. Accordingly, I am enclosing a cheque bearing No. 144076 dated 27th February, 2008 of Rs.25,00,000/- (Rupees Twenty Five Lacs only) drawn on Bank of Maharashtra, Vashi Branch being part payment of the settlement amount as agreed. Kindly acknowledge the receipt of the above mentioned cheque. Kindly further acknowledge the settlement arrived at between us.” The letter was endorsed by the Plaintiff in token of acceptance. Under the settlement of 27 February 2008 the Defendant paid to the Plaintiff an amount of Rs.25,00,000/- on 27 February 2008 and a further amount of Rs. 10,00,000/- thereafter on 3 July 2008. The settlement envisaged that the Defendant would pay to the Plaintiff the total compensation of Rs.3.50 Crores within six months. The Plaintiff addressed to the Defendant three notices on 21 August 2009, 24 September 2009 and 22 October 2009 demanding the balance, to which there was no reply. Accordingly a suit has been instituted under Order XXXVII on the basis of the agreement of 27 February 2008. A Summons for Judgment has been taken out. 4. In the Affidavit in Reply which has been filed on behalf of the Defendant it has been contended that the basis of the agreement between Chandka 4 SJ-99-10 the Plaintiff and the Defendant of 27 February 2008 was that the Defendant was no longer interested in proceeding ahead with the transaction relating to the property. According to the Defendant the Plaintiff had represented that once the amount was paid back, the Defendant would be free to deal with the subject property as it deems fit. According to the Defendant, relying upon the representation made by the Plaintiff which was that the Plaintiff was no longer interested in the property and that there would be a revival of the right of the Defendant under the agreement dated 4 March 2006, the Defendant executed the document on 27 February 2008. According to the Defendant there was however a misrepresentation by the Plaintiff because thereafter the Plaintiff independently entered into a development agreement with the heir of Maya Kaikini on 2 October 2008. A copy of the agreement between the Plaintiff and the heir of Maya Kaikini is annexed at Exhibit ‘A’ to the reply. On these facts it has been submitted that there was no consideration for the agreement dated 27 February 2008 between the Plaintiff and the Defendant and the agreement is vitiated by misrepresentation. 5. Under the agreement which was entered into between the Plaintiff and the Defendant on 27 February 2008 the Defendant agreed to pay an amount of Rs.3.50 Crores to the Plaintiff within six months. The Defendant Chandka 5 SJ-99-10 acted on the agreement by making a payment of Rs.25,00,000/- together with the execution of the agreement and a further a sum of Rs.10,00,000/- on 3 July 2008. The agreement records that the Plaintiff had expressed the desire not to continue with the agreement dated 16 March 2006 between the parties due to the delay on the part of CIDCO in executing an agreement to lease. Under Clause 3 (c) of the original agreement between the Plaintiff and the Defendant dated 16 March 2006 an amount of Rs.1.40 Crores was payable on execution of the lease deed by CIDCO in favour of the heirs of Maya Kaikini. At this stage, it is significant to note that the agreement dated 27 February 2008 has not embodied any such terms upon which the Defendant seeks to place reliance. The Defendant has not produced any minutes of the meeting which took place on 8 February 2008. By the agreement between the parties the Defendant agreed to return an amount of Rs.3.50 Crores to the Plaintiff (the Plaintiff having paid an amount of Rs. 2.90 Crores to the Defendant under the agreement dated 16 March 2006). The terms of the written contract between the parties do not refer to what is now set up on behalf of the Defendant as an oral agreement at the meeting which had transpired on 8 February 2008. In any event the written document which was executed on 27 February 2008 thereafter must necessarily prevail. The Defendant has admittedly received an amount of Rs.2.90 Crores from the Plaintiff and agreed to refund an amount of Rs.3.50 Chandka 6 SJ-99-10 Crores upon the parties bringing into an end their respective rights and obligations under the agreement dated 16 March 2006. There is nothing in the agreement dated 27 February 2008 which would operate to prevent the Plaintiff from negotiating with the heirs of Maya Kaikini. In any event that was a subsequent development which would not detract from the obligation of the Defendant as embodied in the agreement dated 27 February 2008. 6. For the aforesaid reasons, there is no substance in the defence which has been sought to be raised on behalf of the Defendant. However, in my view, having regard to the interests of justice, leave to defend the suit should be granted to the Defendant subject to a condition of deposit. Accordingly leave to defend the suit is granted to the Defendant subject to the condition of a deposit of an amount of Rs.2,00,00,000/- (Rupees Two Crores) within a period of twelve weeks from today. The amount upon deposit shall be invested in a fixed deposit of a nationalized bank which would be renewed periodically during the pendency of the suit. The Summons for Judgment is disposed of accordingly. (Dr. D. Y. Chandrachud, J.)