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Judgment
Y.K. Sabharwal, J.—These two appeals, FAO(os) 197/97 filed by the mother and FAO(OS).160/97 filed by the son challenge the judgment and order dated 1st May,1997 whereby their application for leave to defend the Suit filed under Order 37, CPC has been dismissed and decree has been passed against them for recovery of Rs.85,62,500/- with simple interest at the rate of 15% P.A. from the date of the suit till payment.
The Suit No.2524/93 was filed against Kamlesh Kamal and Company-Defendant No.1 of which Kamlesh Kohali-Defendant No.2 (Appellant in Appeal No. 197/97) is a sole proprietor and Defendant No.3 Rajiv Kohli son of Kamlesh Kohli. The Suit was based on Memorandum of Agreement dated 19th November,1992 entered between the plaintiffs and defendant No.1 and defendant No.2 Rajiv Kohli has signed the agreement as authorised signatory of his mother.
In brief the case of the plaintiffs in the suit is that Kamlesh Kohli has been holding a membership ticket of Delhi Stock Exchange and has been carrying on business in the name of defendant No.1. As on 10th September, 1992, a sum of Rs.3.02 crores was due and payable by defendants to the plaintiffs. On 21st September, 1992, plaintiffs filed a writ Petition (CW.3324/92) against Delhi Stock Exchange, defendant No.1 in the suit and Mr. J.N. Kholi, husband of defendant No.2. In the said writ petition interim restraint order had been granted on 23rd September,1992. During the pendency of the writ petition, a settlement was arrived at in terms of Memorandum of Agreement dated 19th November,1992.The said Memorandum of Agreement, inter alia, postulated payment of Rs.65 lakhs by defendant No.1 to the plaintiffs within 7 days from the date the Agreement is signed, Rs.60 lakhs on or before 31st March, 1993 and Rs.20 lakhs in four equal installments as under:
1st Instalment.......... On or before 30.06.93 2nd Instalment.......... On or before 30.09.93 3rd Instalment.......... On or before 31.12.93 4th Instalment.......... On or before 31.03.94 4. That agreement was signed by Rajiv Kohli as authorised signatory of defendant No.1. The Agreement was filed in the writ petition along with an application for settlement filed by the parties under Order 23 Rule 3 read with Section 151, CPC with the supporting affidavit of the constituted attorney of the plaintiffs and Rajiv Kohli, constituted attorney of defendant No. I in the suit. On the basis of the settlement, the writ petition was dismissed as withdrawn in terms of order dated 23rd November, 1992 passed by a Division Bench of this Court. Both the constituted attorneys were also present in the Court when the order dated 23rd November, 1992 was passed.
The payment of Rs.65 lakhs in terms of the settlement was made to the plaintiffs. As already noticed, in terms of the Memorandum of Agreement Rs.60 lakhs were payable on or before 31st March,1993 and balance Rs.20 lakhs on the dates afore mentioned. The plaintiffs issued notice date 4th July, 1993 to the defendants 2 and 3 since payment of Rs.60 lakhs was not made as also the first Installment in respect of Rs.20 lakhs was also not paid. A joint reply dated 27th July,1993 was sent by Kamlesh Kohli and Rajiv Kohli to this notice, inter alia, pleading that Kamlesh Kohli was not a party to the Agreement dated 19th November,1992. Defendants 2 and 3 thus repudiated their liability, with the result that the suit was filed for recovery of Rs.80 lakhs and interest, total suit amount being Rs.85,62,500/-
It deserves to be noticed that not only the joint reply dated 27th July, 1993, to the notice on the plaintiffs was sent but before learned Single Judge all the defendants were represented by same counsel. Further a joint application was filed by mother and son seeking leave to defend the suit, inter alia, pleading that the mother Kamlesh Kohli was not party to the Agreement and defendant No.3 had no liability.
Learned Single Judge after noticing facts of the case as also noticing that Rs.65 lakhs was paid to the plaintiffs under the Memorandum of Agreement came to the conclusion that defendants had absolutely no defense and thus dismissing the leave application, the suit was decreed.
Now, as stated above, two separate appeals have been filed one by mother, other by the son. It is not in dispute that the mother is sole proprietor of defendant No.1. It is also not in dispute that the Memorandum of Agreement was signed by Rajiv Kohli as constituted attorney of defendants 1 and 2. It is further not in dispute that mother and son are living together. Kamlesh Kohli has also admitted having signed cheque in the sum of Rs.65 lakhs which was given to the plaintiffs. That amount was payable within 7 days of signing the Memorandum of Agreement dated 19th November, 1992. She, however, claims that the said cheque was signed as per her understanding with her son Rajiv Kohli and on assurance given by him that he will re-establish himself after getting business from the plaintiffs.
It has been contended for the appellant in Appeal No. 197/97 that her son was only attorney for prosecuting the writ petition and had no authority to enter into Agreement dated 19th November,1992 agreeing on behalf of the appellant to pay to the respondents/plaintiffs the amount as stipulated in the Agreement dated 19th November,1992. To say the least, the plea is wholly misconceived, malafide, abuse of the process of law and may even amount to document of court though this aspect we need not go into in this appeal. The appellant has abused the process of law by on one hand filing the Memorandum of Agreement in the writ petition and has thus used the process of law to her advantage and on the other hand has now realised from the Memorandum of Agreement. The convenient plea of having signed cheque of Rs.65 lakhs on the asking of the son again shows her real intention and the extent to which the appellant can go. Such dishonest and convenient pleas deserve to be severely condemned. Further it has to be borne in mind that apart from the fact that mother and son are living together and not only a joint reply to the notice of the plaintiffs was sent but even a joint application for leave to defend was filed. In this view, the appeal preferred by Kamlesh Kohli deserves to be dismissed with costs. Accordingly, FAO(OS) 197/97 is dismissed with costs quantified at Rs.22,000/- to be payable to respondents 1 and 2.
Though a lot deserves to be said about the conduct of Rajiv Kohli but having regard to what is pleaded in the plaints namely, the said defendant having signed as an attorney of defendants 1 and 2, the question whether Rajiv Kohli has any personal liability towards the plaintiffs or not deserves to be tried. Further the plaintiffs in reply to the application for leave to defend has, inter alias stated that Rajiv Kohli has been arrived only as a proforma party and no relief is claimed against him personally. In this view, Rajiv Kohli is entitled to grant of unconditional leave and thus FAO (OS) 160/97 filed by Rajiv Kohli is allowed accordingly.
Consequently FAO(OS) 197/97 is dismissed with costs as aforesaid and FAO(OS) 160/97 is allowed in the above terms leaving the parties to bear their own costs.