Hemant K. Nanavati Vs M/S. Indico Construction Co. and Ors.

 IN THE HIGH COURT OF JUDICATURE OF BOMBAY

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 ORDINARY ORIGINAL CIVIL JURISDICTION

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 SUMMONS FOR JUDGEMENT NO. 113 OF 2004

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IN

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 SUMMARY SUIT NO.3429 OF 2003

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 Hemant K. Nanavati .. Plaintiff

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 versus

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 Indico Construction Co. & Ors. .. Defendants

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 Mr.R.V. Govilkar i/b B.M. Bhatt for the plaintiff.

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 Mr.S.S. Joshi for the defendant nos.1 and 2.

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 CORAM : D.G. KARNIK,J.

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 DATED : 15th March 2005.

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 P.C.:

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 1. Heard the learned counsel for the plaintiff.

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 2. The plaintiff has filed this suit for recovery

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 of the amount due under a cheque issued by the

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 defendant nos.1 and 2 in the sum of Rs.8,00,000/- and
 interest thereon. The defendant no.3 has died during
 the pendency of the suit and hence, Summons for
 Judgement is pressed only against defendant nos.1 and
 2. The defendant no.2 was a partner of defendant
 no.1 and after the death of defendant no.3 has become
 its proprietor.

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 3. The facts leading to the dispute between the
 parties are stated below:-

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 4. The plaintiff’s mother, who has since died,
 had agreed to purchase a flat bearing flat no.610
 admeasuring 581 sq.ft on the 6th floor of the
 building known as Devadiga Co-op Housing Soc. Ltd.
 The defendants were carrying out the construction of
 the said building. The Society issued a letter of
 allotment as well as the share certificate to the
 plaintiff/her mother. However, possession of the
 flat was not given to the plaintiff’s mother. It is
 the case of the defendant that they have terminated
 the agreement with the plaintiff’s mother and with
 the consent of the Society the flat has been re-sold
 to a third person. After the death of the
 plaintiff’s mother, the plaintiff had been

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 approaching the Society and the defendants for
 allotment and possession of the flat. It is alleged
 by the plaintiff that there were meetings between the
 plaintiff and defendant no.2 who stated that the said
 flat was re-sold to a third party under a mistaken
 belief and that he would take possession of the said
 flat from the third person and give it to the
 plaintiff. However, as the defendant no.2 did not
 fulfil his promise, the plaintiff wrote a letter to
 the Dy. Commissioner of Police as well as to the
 Commissioner of Police for registering an offence
 against the defendants. The defendants were called
 for investigation at the Andheri Police station where
 the defendant no.2 promised that he would find and
 give to the plaintiff some other flat in the locality
 within a period of 18 months failing which he would
 pay to the plaintiff a sum of Rs.8 lakhs.

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 5. The defendants filed a reply contesting the
 claim of the plaintiff. It is not disputed by the
 defendant that he was carrying out the construction
 of the building. It is however his case that the
 agreement with the plantiff’s mother was terminated
 by the defendants for non payment of his dues and
 thereafter the Society sold the flat to a third

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 person who paid the dues of the defendants. The

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 defendants have not denied that liable to hand over
 the possession of the flat to the plaintiff. The
 defendant did not deny that complaints were made by
 the plaintiff to the Dy. Commissioner of Police and
 Commissioner of Police. On the other hand, it is
 their case that on account of the said complaints, he
 was called at the Andheri Police station, where he
 was required to issue the post dated cheque of Rs.8
 lakhs to the plaintiff by force and coercion.

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 6. It is thus clear that the defendants do not

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 deny the issuance of the cheque. According to the
 plaintiff, the consideration for the cheque was the
 booking of the flat made by the plaintiff’s late
 mother and the failure of the defendants to hand over
 the flat in pursuance of the said agreement, the
 cheque was issued in lieu of the defendants inability
 to hand over the possession of the flat. There is a
 presumption of consideration u/s.118 of the
 Negotiable Instruments Act. Therefore, the only
 point that needs to be considered is whether the
 defence of coercion raised by the defendants is
 genuine and bonafide or sham and without substance.

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 7. Pleadings of coercion are to be found in
 paragraph no.7 of the affidavit in reply wherein the
 defendant no.2 states:

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 "I say that Plaintiff in order to
 recover the earnest money paid by his
 mother coerced and threatened me in
 Andheri Police station on 31st March
 1999 at around 1.30 p.m. in presence
 of the Asstt. Sub-Inspector of Police
 Mr.R.B. Mohite and obtain writing
 dated 31st March 1999 along with it
 post-dated cheque bearing No.181814
 dated 2nd October 2000 drawn on New
 India Co-operative Bank Ltd.

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 In my view, these pleadings are insufficient even to
 make out a ground of coercion. Coercion is defined
 under section 15 of the Indian Contract Act as

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 follows:-

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 "Coercion is the committing, or
 threatening to commit, any act
 forbidden by the Indian Penal Code, or
 the unlawful detaining, or threatening
 to detain, any property, to the
 prejudice of any person whatever, with
 the intention of causing any person to
 enter into an agreement.

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 There is not even an averment in the affidavit in
 reply that the plaintiff committed or threatened to
 commit any act forbidden by the Indian Penal Code
 or unlawfully detained or threatened to detain any

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 property to the prejudice of the defendants or any
 other person with an intention of causing them to
 enter into an agreement or issuance of a cheque.
 The defendant have not alleged any act on the part
 of the plaintiff which amounts to a coercion. No
 details are pleaded as to what were the threats
 given by the plaintiffs. Further, it is worthwhile
 to note that coercion and threatening is alleged to
 have been committed in the presence of Asstt. Sub
 Inspector of Police, R.B. Mohite in the police
 station. There is no allegation of any collusion
 between the plaintiff and the police officers.
 Therefore, there is not even a proper averment of
 coercion in law so as to entitle the Court to raise
 an issue whether the cheque was issued out of
 coercion and threats.

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 8. In the circumstances, the defendants can

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 only be granted conditional leave to defend the
 suit subject to their depositing in the Court the
 principal sum of the cheque. Accordingly, the
 defendants are granted conditional leave to defend
 the suit subject to their depositing in the Court a
 sum of Rs.8 lakhs within a period of eight weeks.
 On such deposit, the amount shall be invested in

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 any Nationalised bank of the choice of the
 defendants if such choice is indicated at the time
 of deposit or else in the Bank of India, Fort
 Branch initially for a period of 13 months to be
 renewed from time to time till the disposal of the
 suit.

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 9. On deposit of the money, suit shall stand
 transferred to the list of commercial causes. The
 defendants shall file written statement within a
 period of one month.

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 10. Certified copy is expedited.

Hemant K. Nanavati v. M/S. Indico Construction Co. and Ors.

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Hemant K. Nanavati v. M/S. Indico Construction Co. and Ors.

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