Delhi District Court
Kamal Agarwal vs Sidhi Datri Hospitalities And Ors on 23 January, 2025
IN THE COURT OF DR. NEERA BHARIHOKE
DISTRICT JUDGE (COMMERCIAL COURT)-06
SOUTH EAST, SAKET COURTS,
NEW DELHI
CNR No. DLSE01-009937-2023
CS (Comm.) 883/2023
Kamal Agarwal
Liquidator of Khullar
Hospitality Private Limited
487/27, School Road,
Near Peeragarhi Metro Station,
New Delhi-110087
Mobile No. 9968466963
....Plaintiff
VERSUS
1. Sidhi Datri Hospitalities
(A Partnership Firm)
S-2,3, F-15, LGF,
Epicuria Mall,
Nehru Place Metro Station,
New Delhi-110019
Mob:-9999386933
Email:-:[email protected]
2. Swadeep Popli
(Partner)
Sidhi Datri Hospitalities
S-2,3, F-15, LGF,
Epicuria Mall,
Nehru Place Metro Station,
New Delhi-110019
Mob:- 9999386933
NEERA Email:-:[email protected]
BHARIHOKE
Digitally signed
by NEERA
BHARIHOKE
CS (Comm) 883/23 Kamal Agarwal Vs. Sidhi Datri Hospitalities & Ors. Page 1 of 20
Date: 2025.01.23
14:20:07 +0530
3. Gaurav Khullar
Ex-director of Khullar Hospitality (P) Ltd
7, Poorvi Marg, Mob:- 9650555555
Vasant Vihar,
New Delhi-110057.
E-mail id [email protected]
Mob:- 9650555555
....Defendants
Date of institution of the suit : 27.09.2023
Date on which judgment was reserved : 03.01.2025
Date of pronouncement of Judgment : 23.01.2025
JUDGMENT
SUIT FOR RECOVERY
1. Vide this judgment, I shall decide the present suit filed for recovery of Rs.10,00,000/- (Rupees Ten Lakh only) alongwith pendente lite and future interest filed by Mr. Kamal Agarwal, who is the Official Liquidator of the Company named Khullar Hospitality Private Limited which is undergoing liquidation process. (Ld. Official Liquidator of the Khullar Hospitality Private Limited has hereinafter been referred to as 'Plaintiff').
CASE OF THE PLAINTIFF AS SET UP IN THE PLAINT
2. Brief facts of the case as stated by the Plaintiff in the plaint are that:
NEERA BHARIHOKE Digitally signed by NEERA a. Khullar Hospitality Private Limited (Khullar Hospitality Private BHARIHOKE Date: 2025.01.23 14:20:16 +0530 Limited has been hereinafter referred as "Plaintiff Company" ) is a CS (Comm) 883/23 Kamal Agarwal Vs. Sidhi Datri Hospitalities & Ors. Page 2 of 20 Company registered under the Companies Act, 1956 and is undergoing liquidation process vide order dated 18.11.2019 of Hon'ble National Company Law Tribunal Bench II (New Delhi Bench II) under the Insolvency & Bankruptcy Code, 2016, and vide the order dated 18.11.2019 itself, the Hon'ble National Company Law Tribunal appointed the Plaintiff, Sh. Kamal Agarwal, duly registered with Insolvency & Bankruptcy Board of India vide registration no IBBI/IPA-001/IP-P00868/2017-2018/11466 and having his registered office at 487/27, School Road, Near Peeragarhi Metro Station, New Delhi, as the official liquidator of the Plaintiff Company.
b. The Defendant No.1 M/s Sidhi Datri Hospitalities was a Partnership Firm having its registered office at S-23, F-15, LGF, Epicuria Mall, Nehru Place Metro Station, New Delhi-110020. Defendant No.2 is the Partner of the Defendant no.1 and fully responsible for the acts of the Defendant no.1 having its registered e-mail ID as [email protected].
c. The Defendant no.3 is the ex-director of the Plaintiff Company and had been impleaded as a Defendant being a necessary party, for the reason that the Plaintiff Company was under his management and NEERA control at the time when the alleged transactions with the Defendant BHARIHOKE no.1 were undertaken and therefore, was a necessary party to the Digitally signed by NEERA present suit.BHARIHOKE Date: 2025.01.23 14:20:21 +0530 CS (Comm) 883/23 Kamal Agarwal Vs. Sidhi Datri Hospitalities & Ors. Page 3 of 20
d. The Plaintiff Company through the Defendant No. 3 had entered into an agreement on 31.03.2017 to form a consortium by the name and style of 'K&S Consortium' for the purpose of obtaining bid in the tender released by Airport Authority of India (AAI) for providing F&B services at the various airport premises.
e. Pursuant to the agreement and in accordance with Clause 6, the Plaintiff Company had paid Rs.10,00,000/- (Rupees Ten Lakh Only) towards its share of Earnest Money Deposits (EMD) required for participating in the bidding process.
f. It was further agreed between the parties vide Clause 7 of the agreement that in case if the tender is not awarded, then the amount so paid by the first party i.e. Plaintiff Company, would be refunded by second party, i.e. Defendant no 1.
g. Plaintiff Company had paid the agreed amount of Rs.10,00,000/-
(Rupees Ten Lakh Only) vide two transactions i.e., Rs.4,00,000/- (Rupees Four lakh) on 25.04.2017 and Rs.6,00,000/- (Six Lakh only) on 20.11.2017. The same had not yet been refunded by Defendant No.1 and 2 and there was nothing on record to show that the tender was awarded to K & S Consortium.
NEERA BHARIHOKE h. Therefore, in terms of the agreement, the Defendant no.1 and 2 Digitally signed by NEERA were liable to refund the amount of Rs.10,00,000/- (Rupees Ten BHARIHOKE Date: 2025.01.23 Lakhs only). The extract of GST details as obtained from the GST 14:20:29 +0530 CS (Comm) 883/23 Kamal Agarwal Vs. Sidhi Datri Hospitalities & Ors. Page 4 of 20 department website shows that Defendant no. 1 firm was functional and active.
i. The Plaintiff in the capacity of the liquidator of the Plaintiff Company had filed an application which was registered as I.A. no.10/2022 in CP(IB) 332(ND) 2019, on 01.01.2022, under section 35 (1) of the IBC Read with Section 60 (5) read with Rule 11 of the NCLT Rules, 2016, before the Hon'ble National Company Law Tribunal Bench II New Delhi, (hereinafter referred to as NCLT) praying for direction to the Defendant no.1 to refund Rs.10,00,000/- (Rupees Ten Lakh Only) in the liquidation account of the Khullar Hospitality Private Limited alongwith interest @12% per annum for the delay in repayment.
j. The above I.A. no. 10 of 2022 was first listed on 04.01.2022 and notice of the same was issued to the respondents and the matter was posted to 23.02.2022. There is a reply filed on behalf of Respondents no.8 who is Defendant no.2 in the present suit and 9 being the ex-directors on 20.01.2022. It was prayed in para-D(a) of IA no. 10 of 2022 by the Defendant no.2 that I.A. no. 10 of 2022 must be dismissed with a direction to the Learned Liquidator "to take appropriate steps as per law to recover amounts, as alleged NEERA under the civil laws". However, the alleged transactions with the BHARIHOKE Defendant no 1 were not disputed by the Defendant no 2.
Digitally signed by NEERA BHARIHOKEDate: 2025.01.23 k. The Defendant No.1 also filed its reply vide e-mail dated 14:20:36 +0530 CS (Comm) 883/23 Kamal Agarwal Vs. Sidhi Datri Hospitalities & Ors. Page 5 of 20 10.02.2022 and had not denied the receipt of the amount from the Plaintiff Company. However, it had stated further that no amount was refundable as the alleged amount had been forfeited by the Airport Authority of India. It was further stated by Defendant no.1 that any direction by the Hon'ble NCLT would affect its civil rights to defend claims including presenting of evidence which could not be adjudicated by the Hon'ble NCLT.
l. Thereafter, the matter bearing I.A. no. 10 of 2022 was listed on 23.02.2022 and 29.03.2022 and the matter was reserved for the orders on 13.04.2022. The order had been pronounced on 08.06.2022 and the Hon'ble NCLT dismissed application bearing I.A. no. 10 of 2022 on account of lack of jurisdiction with a permission to the liquidator to seek appropriate remedy in the appropriate court in accordance with law.
m. Defendant no.1 was liable to pay the total amount of Rs.10,00,000/-
(Rupees Ten Lakh Only) alongwith interest @ 18% per annum to the Plaintiff from the date of filing of the present suit till the entire amount is received by the Plaintiff and Plaintiff is entitled to recover the same from Defendants.
NEERA n. The Plaintiff initiated Pre-Institution Mediation against the BHARIHOKE Defendant on 10.11.2022. However, the Defendants did not Digitally signed by NEERA respond/attend the same on account of which Pre-Institution BHARIHOKE Date: 2025.01.23 14:20:44 +0530 Mediation was a non-starter report dated 04.01.2023.
CS (Comm) 883/23 Kamal Agarwal Vs. Sidhi Datri Hospitalities & Ors. Page 6 of 203. Hence the present suit was filed.
CASE OF THE DEFENDANTS AS STATED IN THE WRITTEN STATEMENT
4. As per report of Nazarat branch, the summons were served upon the Defendants by e-mail on 02.03.2024. The ordinary summons sent to Defendant no.1 and Defendant no.2 through the process server were served on 27.02.2024. Defendant no.3 remained unserved through ordinary process as well as through post this report of having left the premises. The right of Defendants no.1 and 2 to file the Written Statement was closed vide order dated 28.03.2024.
5. Written Statement was filed on behalf of Defendant no. 3 alongwith application for condonation of delay and an application under Order VII Rule 11 CPC.
6. The application under Order VII Rule 11 CPC was filed on following three grounds:
(i) The suit is bad for non-compliance of Section 12-A CCA 2015.
(ii) The suit is bad for misjoinder of the parties.
(iii) The suit is barred by limitation. NEERA
BHARIHOKE 7. By a detailed order, the application filed under Order VII Rule 11 Digitally signed by NEERA CPC was dismissed vide order dated 13.05. 2024.BHARIHOKE Date: 2025.01.23 14:20:50 +0530 CS (Comm) 883/23 Kamal Agarwal Vs. Sidhi Datri Hospitalities & Ors. Page 7 of 20
8. Defendants no.1 and 2 were proceeded ex parte vide order dated 13.05.2024 and they moved an application under Order IX Rule 7 CPC for setting aside the ex parte order.
9. Vide order dated 20.07.2024, it was observed that since more than 120 days had expired since the date of the service of Defendant no.1 and 2, their request for extending the time to file the Written Statement was declined. It was also observed that Defendant no.1 and 2 had the right to participate in the proceedings from the stage on which they appear. It was also observed that Defendant no.1 and 2 may also cross examine the Plaintiff however they would have limited right of cross examination as they had not filed Written Statement. The application under Order IX Rule 7 CPC was disposed of in these terms.
10. Written Statement had been filed by Defendant No. 3. Since Plaintiff submitted that he did not oppose the application of Defendant no.3 under Order VIII Rule 1 CPC, application of Defendant no. 3 under Order VIII Rule 1 CPC was allowed and the written statement of Defendant no. 3 was taken on record vide order dated 13.05.2024.
WRITTEN STATEMENT ON BEHALF OF DEFENDANT NO.3
11. Defendant no. 3 raised following preliminary objections:
a) The present suit was not maintainable since admittedly the NEERA BHARIHOKE Plaintiff initiated pre-institution mediation in South-East District Digitally signed by NEERA Delhi Legal Service Authority against the Defendant no.1 alone BHARIHOKE Date: 2025.01.23 and not against Defendant no.3.
14:21:01 +0530 CS (Comm) 883/23 Kamal Agarwal Vs. Sidhi Datri Hospitalities & Ors. Page 8 of 20
b) The present suit was bad for misjoinder of parties as the present suit had been filed against Defendant No.3, who was neither the necessary nor proper party to the present suit. Defendant No. 3 was only an ex-director of the Plaintiff Company, which was undergoing liquidation vide Order dated 18.11.2019 and the Plaintiff was appointed as the Liquidator of the Plaintiff Company by the Hon'ble National Company Law Tribunal, New Delhi. Whatever transactions or documents were entered between the Defendant No.1 and the for commercial purposes, were carried by Defendant No. 3 in the capacity of Ex-director of the Company and only acted on behalf of the Plaintiff Company for which the Defendant No.3 could not be personally held liable for. It has been submitted that it is a settled position of law that a company is a separate juristic person, and the directors are only the agents of the company and are not necessary party to any pleadings or suit.
c) The present suit is ex-facie barred by limitation. Plaintiff had stated in its plaint that the Plaintiff Company gave Rs.10,00,000/- (Rupees Ten Lakhs Only) to the Defendant No. 1 pursuant to a consortium agreement dated 31.03.2017 in two tranches i.e., amount of Rs.4,00,000/- (Rupees Four Lakhs Only) and Rs.6,00,000/- (Rupees Six Lakhs Only) on 25.04.2017 & 20.11.2017 respectively, but the Plaintiff filed the present suit NEERA BHARIHOKE after a delay of more than 6 years from the last date of cause of Digitally signed action which made the present suit hopelessly barred by by NEERA BHARIHOKE Date: 2025.01.23 limitation. Counting three years from 20.11.2017, the limitation 14:21:07 +0530 CS (Comm) 883/23 Kamal Agarwal Vs. Sidhi Datri Hospitalities & Ors. Page 9 of 20 expired way back in 20.11.2020 and Plaintiff could not seek assistance of the Hon'ble Supreme Court decision dated 10.01.2022 in Suo Motu Writ Petition (C) No. 3 of 2020.
12. In his para-wise reply, Defendant no. 3 denied the submissions made in the Plaint. However, he admitted the relationship between the parties as described by the Plaintiff in the present suit.
13. Defendant no. 3 has also submitted that amount paid to Defendant No.1 pursuant to alleged Consortium Agreement dated 31.03.2017 was done by the Plaintiff Company and the Defendant No. 1 & 2 would be in a better position to reply to submissions made regarding the same.
14. Defendant No. 3 also admitted the submissions of the Plaintiff made in regard to proceedings before Hon'ble NCLT.
FRAMING OF ISSUES
15. Vide order dated 13.05. 2024, it was observed by my learned Predecessor that there is no written statement of defendant no. 1 and 2 and issues were to be framed only for defendant no. 3.
16. The issues were framed as hereunder:-
NEERA BHARIHOKE
(i) Whether defendant no. 3 is a proper party to the suit? OPP Digitally signed by NEERA (ii) Whether the suit is barred by limitation? OPD-3 BHARIHOKE Date: 2025.01.23 14:21:13 +0530 CS (Comm) 883/23 Kamal Agarwal Vs. Sidhi Datri Hospitalities & Ors. Page 10 of 20
17. Vide order dated 20.07.2024, it was observed that Defendant no.1 and 2 had filed an application under Order IX Rule 7 CPC since more than 120 days had expired since the date of the service of defendant no.1 and 2, their request for extending the time to file the written statement was declined. It was also observed that Defendant no.1 and 2 had the right to participate in the proceedings from the stage on which they appear. It was also observed that Defendant no.1 and 2 may also cross examine the plaintiff however they would have limited right of cross examination as they had not filed written statement. The application under Order IX Rule 7 CPC was disposed of in these terms.
PLAINTIFF'S EVIDENCE
18. On 20.07.2024, Plaintiff, Shri Kamal Agarwal, examined himself as PW-1. He presented his evidence by way of affidavit vide Ex. PW-1/A. He reiterated the contents of the plaint and relied upon the following documents: -
(1) Print out of the order dated 18.11.2019 passed by NCLT is Ex.
PW-1/1. (Objected to on the ground that the order is not certified copy and it is also not digitally signed).
(2) Print out of the ledger account of Defendant no. 1 for the period from 01.04.2017 till 18.11.2019 is Ex. PW1/2. (objected to on the ground that ledger account is not certified copy. Objection was NEERA BHARIHOKE recorded and would be considered at the time of final arguments).
Digitally signed (3) Computer printout of the HDFC Bank statement showing payment by NEERA BHARIHOKE of Rs.4,00,000/- on 25.04.2017 and Rs.6,00,000/- on 20.11.2017 Date: 2025.01.23 14:21:18 +0530 is Ex. PW-1/3. (objected to on the ground that bank statement is CS (Comm) 883/23 Kamal Agarwal Vs. Sidhi Datri Hospitalities & Ors. Page 11 of 20 not certified copy and it is additional document not filed alongwith the plaint and filed with the evidence affidavit without seeking the leave of the court. Objection was recorded and would be considered at the time of final arguments).
(4) Computer printout of agreement dated 31.03.2017 PW-1/4, (objected to on the ground that agreement dates 31.03.2017 could not be relied upon as the same was not certified copy by bank. Objection was recorded and would be considered at the time of final arguments).
(5) Computer printout of the extract of GST details are Ex. PW-1/5.
(objected to on the ground that GST printout was not certified copy. Objection was recorded and would be considered at the time of final arguments).
(6) Copy of application IA 10/2022 in CP (IB) 332 (ND) 2019 on 01.01.2022 is Ex. PW-1/6. (objected to on the ground that abovesaid application was not certified copy. Objection was recorded and would be considered at the time of final arguments).
(7) Computer print out of order dated 04.01.2022 passed by NCLT in IA No. 10 of 2022 in CP (IB) 332 (ND)/2019 is Ex. PW-1/7. (objected to on the ground that order was not certified copy. Objection was recorded and would be considered at the time of final arguments).
(8) Copy of the reply filed by the Defendant no. 3 in IA 10 of 2022 is Ex. PW-1/8.
(9) Computer print out of the orders in IA 10 of 2022 is Ex. PW-1/9 (collectively). (objected to on the ground that orders were not certified copies. Objection was recorded and would be considered at the time of final arguments).
NEERA BHARIHOKE (10) Plaint filed by the Plaintiff is Ex. PW-1/10.
Digitally signed by NEERABHARIHOKE (11) True Copy of Non-starter report dated 11.08.2023 is Ex. PW-1/11.
Date: 2025.01.23 14:21:23 +0530 CS (Comm) 883/23 Kamal Agarwal Vs. Sidhi Datri Hospitalities & Ors. Page 12 of 20(12) Certificate under Section 65B of Evidence Act is Ex. PW-1/12.
19. PW-1 was cross examined by learned Counsels for Defendants on 07.09.2024 and was discharged on the same day. The Plaintiff's Evidence was closed on the statement of Plaintiff and the matter was then adjourned for Defendants' Evidence.
DEFENDANT'S EVIDENCE
20. On 07.09.2024, adjournment was sought by learned Counsel for Defendant no.3 to inform if Defendant No.3 would lead the evidence or not. As the right of Defendant no. 1 and 2 to file written statement stood closed, Defence evidence was to be led by Defendant no. 3 alone.
21. Affidavit of evidence was filed by Defendant no. 3 but the copy was not sent to the Plaintiff. Further, Defendant no. 3 did not lead his evidence despite being granted repeated opportunities. Therefore, the right of Defendant no. 3 to lead defence evidence was closed vide order dated 18.11.2024 and the matter was listed for final argument.
FINAL ARGUMENTS NEERA 22. Final arguments of Plaintiff and learned counsel for all the BHARIHOKE Defendants were heard. Written submissions were filed by the Plaintiff Digitally signed by NEERA as well as Defendant no. 1 and 2.
BHARIHOKE Date: 2025.01.23 14:21:28 +0530 CS (Comm) 883/23 Kamal Agarwal Vs. Sidhi Datri Hospitalities & Ors. Page 13 of 2023. At the stage of tendering of evidence, objections were raised by learned counsel for Defendant no. 3 in respect of some of the exhibits of not being certified copy or were computer printouts and it was recorded that the objections will be decided at the time of final arguments. However, all these documents/exhibits have already been admitted by Defendant no. 3 and therefore, the objections regarding these exhibits are not sustainable in view of Section 53 of Bhartiya Sakshya Adhiniyam, 2023.
24. The preliminary objections have been raised by Defendant no. 3 in his written statement. Identical preliminary objections were raised by Defendant no. 3 in his application filed under Order VII Rule 11 CPC which was dismissed by a detailed order dated 13.05.2024. The said order was never challenged and has thus achieved finality. Thus, the same are not being dealt with again.
25. The submissions made by Defendant no.1 and 2 that the consortium agreement was frustrated as the tender was not merely not awarded but the agreement is ambiguous and silent on the case of forfeiture of EMD amount as well as the objection that the transactions between the Defendant no.1 and Plaintiff Company were never red flagged by the Hon'ble NCLT as being undervalued, preferential or NEERA BHARIHOKE fraudulent partake the colour of their defence and therefore, cannot be taken into consideration as the right of Defendant no.1 and 2 to file Digitally signed by NEERA BHARIHOKE Written Statement was closed.
Date: 2025.01.23 14:21:33 +0530 CS (Comm) 883/23 Kamal Agarwal Vs. Sidhi Datri Hospitalities & Ors. Page 14 of 2026. Defendant no. 1 and 2 have also submitted that the suit should be dismissed on ground of non-joinder of necessary parties because Airport Authority of India should have been made a party as it is a necessary party because it is an admitted fact that the amount was paid by Plaintiff Company as EMD to Airport Authority of India. The said submission is also against the record and the pleadings of the Plaintiff. A reply was filed on behalf of Defendant no.1 and 2 before Hon'ble NCLT wherein the agreement relied upon by the Plaintiff and ledger was also attached. At para 4D, the existence of agreement and receipt of payment was also admitted. At para 4D.3, Defendant no. 1 and 2 submitted that the amount of Rs.10 Lakhs is deposited with the Airport Authority of India as EMD after being emerged as successful bidder, but the same was forfeited by the Airport Authority of India and the proof of forfeiture was annexed as Annexure R3. The submission of Defendant No.1 and 2 is again on merits. However, Annexure R3 filed with the reply filed by Defendant no.1 and 2 has been perused and it is a letter from Nagpur Airport Authority addressed to Defendant No.1 stating termination of contract for coffee bar at domestic Airport on account of failure to submit BCAS clearance till 20.01.2018 and resultant forfeiture of the Security Deposit amount. Therefore, it does not pertain to the alleged transaction as submitted by Defendant No.1 and 2. The suit is, therefore, not bad for misjoinder of parties and is maintainable also because the amount was NEERA BHARIHOKE paid by the Plaintiff Company to Defendant No.1 and 2 and not to Airport Authority of India. Therefore, Airport Authority of India is not a Digitally signed by NEERA BHARIHOKE necessary party to decide the claim of the Plaintiff.
Date: 2025.01.23 14:21:38 +0530 CS (Comm) 883/23 Kamal Agarwal Vs. Sidhi Datri Hospitalities & Ors. Page 15 of 2027. Issue-wise findings:
Issue no.1: Whether defendant no. 3 is a proper party to the suit?
The onus to prove this issue had been placed on the plaintiff.
28. The Defendant no.3 is the ex-director of the Plaintiff Company and has been impleaded as a Defendant since the Plaintiff Company was under his management and control at the time when the alleged transactions with the defendant no 1 were undertaken.
29. Defendant No. 3 had also submitted that the present suit is bad for misjoinder of parties as the present suit is filed against Defendant No. 3, who is neither the necessary or proper party to the present suit. It was argued that Defendant No. 3 is only an ex-director of the Plaintiff Company, which is undergoing liquidation vide Order dated 18.11.2019 and the Plaintiff was appointed as the Liquidator of the Company by the Hon'ble NCLT. Whatever transactions or documents were entered between the Defendant No. 1 and the Plaintiff Company for commercial purposes, were carried by Defendant No. 3 in the capacity of director of the Plaintiff Company and only acted on behalf of the Plaintiff Company for which the Defendant No. 3 cannot be personally held liable for.
30. It has already been observed by order dated 13.05.2024 that the NEERA Plaintiff i.e. Ld. Liquidator was not present when the transaction which BHARIHOKE is subject matter of the suit took place. The transaction was done by the Digitally signed by NEERA company through Defendant no. 3 and he is the person who is personally BHARIHOKE Date: 2025.01.23 aware of the facts. While deciding the application under Order VII Rule 14:21:43 +0530 CS (Comm) 883/23 Kamal Agarwal Vs. Sidhi Datri Hospitalities & Ors. Page 16 of 20 11 CPC, my learned Predecessor specifically observed that he agreed with the submission of learned Liquidator i.e. Plaintiff that Defendant no. 3 is a proper party and his presence will help in deciding the suit effectively. Therefore, impleadment of Defendant no. 3 is not bad and the ground taken by Defendant no. 3 that the suit is bad for misjoinder of parties was rejected.
31. During cross-examination of PW-1, learned Counsel for Defendant no. 3 asked a specific question if he had sought any relief against Defendant no. 3 in the application filed under section 35(1) of the Insolvency and Bankruptcy Code read with section 60(6) read with Rule 11 of NCLT Rules, 2016 dated 31.12. 2021 before Hon'ble NCLT and PW-1 answered in negative. He volunteered that the reason for not seeking any relief from Hon'ble NCLT against Defendant no. 3 was that the Ledger Accounts provided by Defendant no. 3 showed an amount of Rs.10,00,000/- to be recovered from Defendant no. 1 and 2 and relying on the same, he filed an application before Hon'ble NCLT seeking a direction to Defendant no.1 to refund the amount in the account of corporate debtor i.e. Plaintiff Company. No suggestion was given to PW-1 by learned Counsel for Defendant no. 3 that Ledger Accounts were not provided by Defendant no. 3. Even otherwise, order dated 13.05.2024 and was never challenged and has thus achieved finality.
NEERA BHARIHOKE
32. Therefore, issue no. 1 is decided in favour of the Plaintiff and Digitally signed against the Defendant no. 3 and it is held that defendant no. 3 is a proper by NEERA BHARIHOKE Date: 2025.01.23 party to the suit. However, since admittedly, no relief has been claimed 14:21:48 +0530 CS (Comm) 883/23 Kamal Agarwal Vs. Sidhi Datri Hospitalities & Ors. Page 17 of 20 against Defendant No.3, the suit is dismissed against Defendant No.3.
Issue No.(ii) :Whether the suit is barred by limitation? OPD-3 The onus to prove this issue was placed on Defendant no. 3.
33. No cross-examination has been conducted by learned counsel for Defendant no. 3 on this aspect except that PW-1 admitted that a sum of Rs. 4 Lakh was paid in the month of April 2017 and an amount of Rs. 6 Lakh was paid in the month of November 2017. My learned Predecessor has already dealt with the same objection and observed that the amount in question was a deposit by the Plaintiff Company with defendant no. 1. In case of deposit, Article 22 of the Limitation Act would apply and the period of limitation is three years from the date on which the demand is made. As per the statement of defendant no. 1 before Hon'ble NCLT as recorded in the order dated 10.02.2022, Plaintiff Company never asked for the refund. Therefore, the demand was made for the first time by the Plaintiff i.e. Ld. Liquidator when he filed the application which was disposed of by NCLT vide order dated 08.06.2022 granting permission under Section 33 (5) of IBC for filing of the suit. The suit was filed on 25.09.2023. If the limitation is counted under Article 22 from the date of making the prayer before NCLT, the suit is well within limitation. No suggestion was given to PW-1 to the contrary nor was argued by any of the Defendants.
NEERA BHARIHOKE
34. Therefore, issue no. 2 is decided against the Defendant no. 3 and Digitally signed by NEERA BHARIHOKE in favour of the Plaintiff and it is held that suit is not barred by Date: 2025.01.23 14:21:53 +0530 limitation.
CS (Comm) 883/23 Kamal Agarwal Vs. Sidhi Datri Hospitalities & Ors. Page 18 of 2035. I.A. No. 10 of 2022 filed by Ld. Official Liquidator i.e. Plaintiff herein was dismissed on 08.06.2022 on account of lack of jurisdiction but Hon'ble NCLT accorded permission to the Ld. Official Liquidator i.e. Plaintiff to seek 'appropriate remedy in the appropriate court in accordance with law' which Ld. Official Liquidator i.e. Plaintiff has sought by filing the present suit.
36. The suit of the Plaintiff is based upon the documents placed on record as Ex. PW-1/1 to Ex.PW-1/12. The testimony of PW-1 has been duly corroborated by the other documents placed on record. PW-1 has been cross examined by learned Counsel for Defendant No.1 and 2 as well as by learned Counsel for Defendant No.3. However, the testimony of PW-1 has remained unshaken even after cross examination. There is no occasion to doubt the veracity of the said witness and for that matter, the authenticity of testimony led by him. This court finds no reason to disbelieve the on-oath unshaken testimony of the Plaintiff coupled with the relevant documents. Hence, the Plaintiff has successfully proved its case by preponderance of probability against Defendant No.1 and 2 whose defence also stood closed because of non-filing of Written Statement within 120 days of their service.
NEERA BHARIHOKE
37. Accordingly, the present case is decreed in favour of Plaintiff and against the Defendant no.1 and 2 for the sum of Rs.10,00,000/-. Plaintiff Digitally signed by NEERA BHARIHOKE has prayed for pendente lite and future interest @ 18% per annum from Date: 2025.01.23 14:21:58 +0530 the date of institution of the suit till realization. The Defendant no.1 and CS (Comm) 883/23 Kamal Agarwal Vs. Sidhi Datri Hospitalities & Ors. Page 19 of 20 2 are directed to pay to Plaintiff a sum of Rs.10,00,000/- alongwith pendente lite and future interest @ 18% per annum from the date of institution of the suit till realization. Defendant no.1 and 2 are also directed to pay to Plaintiff the cost of the suit which shall include pleader's fee and the other costs on the scale provided under section 35 of the Code of Civil Procedure as substituted by Commercial Courts Act. If the payment is not made within thirty days, the cost shall also carry simple interest @ 6% per annum. The liability of the Defendant No.1 and 2 shall be joint and several.
38. Decree sheet be prepared accordingly.
File be consigned to record room after necessary compliance. Announced in the open Court on 23.01.2025 (Dr. Neera Bharihoke) NEERA District Judge (Commercial Court)-06 BHARIHOKE South East, Saket Courts, New Delhi Digitally signed by NEERA 23.01.2025 BHARIHOKE Date: 2025.01.23 14:22:04 +0530 Certified that this judgment contains 20 pages and each page bears my signatures.
(Dr. Neera Bharihoke) NEERA BHARIHOKE District Judge (Commercial Court)-06 South East, Saket Courts, New Delhi Digitally signed 23.01.2025 by NEERA BHARIHOKE Date:
2025.01.23 14:22:08 +0530 CS (Comm) 883/23 Kamal Agarwal Vs. Sidhi Datri Hospitalities & Ors. Page 20 of 20