Mrs Sushila Badola v. Sh Tushar Patni & Anr

RAJIV SAHAI ENDLAW, J. MAY 08, 2019 bs/"pp".. (Corrected & released on 6th June, 2019)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 8th May, 2019 + CS(OS) 113/2016 & IA No.587/2018 (u/O X R-2 CPC) SUSHILA BADOLA ..... Plaintiff Through: Ms. Tara V. Ganju. Adv. Versus TUSHAR PATNI & ANR ..... Defendants Through: Mr. Naveen R. Nath, Mr. Alok Kumar Pandey and Mr. Siddharth Agarwal, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The plaintiff, as per amended plaint dated 16th April, 2018, has instituted this suit against the two defendants namely Tushar Patni and Prashant Mamgain, for (i) declaration as null and void of the Compromise Deed dated 15th November, 2008 obtained dishonestly and fraudulently from the plaintiff; and, (ii) cancellation of the Compromise Deed dated 15th November, 2008. 2. It is the case of the plaintiff in the amended plaint, (a) that the plaintiff on 12th March, 2010 first learnt that a Non-Bailable Warrant (NBW) had been issued against her for 18th March, 2010 in a Criminal Complaint No.21/1/10 filed by defendant no.2 Prashant Mamgain on behalf of defendant no.1 Tushar Patni, of offence under Section 138 of the Negotiable Instruments (NI) Act, 1881 by the Court of Sh. N.K. Laka, Metropolitan Magistrate, Dwarka Courts, New Delhi, for dishonour of a cheque dated 1st December, 2009 for an amount of Rs.75 lacs against the alleged liability of Rs.3 crores; (b) that the plaintiff appeared before the Court on 18th March, 2010 and the NBW was cancelled and the plaintiff granted bail; (c) that from a perusal of the complaint filed by defendant No.2 Prashant Mamgain on behalf of the defendant No.1 Tushar Patni against the plaintiff, the plaintiff came to know that previously also a complaint of offence under Section 138 of the NI Act was filed before the same Court by defendant No.2 as authorised representative of defendant No.1; (d) that in the previous complaint it was claimed that the defendant No.1, on 10th May, 2006 had given a friendly loan of Rs.2 crores in cash to the plaintiff for a period of six months and the plaintiff had issued a cheque dated 4th October, 2007 for a sum of Rs.2 crores in discharge of the said debt; the said cheque was returned dishonoured leading to the filing of that complaint; (e) that the plaintiff further learnt that the said previous complaint was withdrawn on 15th October, 2009 by defendant No.2 on behalf of the defendant No.1 as the matter has been compromised between the parties vide a Compromise Deed dated 15th November, 2008 and in terms of which compromise, the plaintiff had issued cheques dated 1st December, 2009, 1st March, 2010, 1st June, 2010 and 1st September, 2010 in the sum of Rs.75 lacs each in favour of the defendant No.1; (f) that the plaintiff also found out that one Mr. Vijay Nath, Advocate had appeared as an advocate on her behalf in the previous complaint; (g) that the plaintiff never engaged any such lawyer to represent her in the previous complaint and had never authorised any lawyer to make a statement on her behalf of any compromise having been reached with the defendant No.1; (h) that the plaintiff, on learning as aforesaid, made a written complaint dated 24th March, 2010 regarding the missing eight cheques and misuse thereof by the defendant No.1; (i) that the plaintiff also issued instructions for stopping payment of the remaining cheques; (j) that the plaintiff, on 9th October, 2007 also had informed her Bank regarding the misplaced cheques/leaves from her cheque book and on which the dishonoured cheque for Rs.2 crores, subject matter of the previous complaint had been fabricated; (k) that the plaintiff does not know defendant No.1 and has had no transaction with the defendant No.1; (l) however the signature and thumb impression of the plaintiff was taken on some blank paper by one Mr. Alok Pandey, Advocate, sometime in the month of November, 2008 and the plaintiff now realizes that the said papers have been used for making an application for exemption for appearance of the plaintiff in the previous complaint cas