Delhi District Court
Cyan Financial Solutions Private ... vs Eos Developers Private Limited on 7 August, 2024
BEFORE THE COURT OF SH. SURINDER S. RATHI, DISTRICT JUDGE
(COMM.)-03 SHAHDARA, KARKARDOOMA, DELHI.
CS (COMM) No. 268/2020
M/s Cyan Financial Solutions Private Ltd.
Through Authorized Signatory
Yugavart Aggarwal
Having registered office at
Ground Floor, 2586, Nai Basti,
Naya Bazar, Delhi-110006 ......Plaintiff
Vs.
1. M/s EOS Developers Private Limited
having address at :
932/6, 1st Floor, Netaji Market,
Basai Darapur, Delhi-110015
2. Deepak Shrimali (Dropped on 01.12.2022)
Director, M/s EOS Developers Private Limited
158, Navratan Complex, Bedia Road, Bhuwana,
Udaipur, Rajasthan-313001
3. Saksham Harivyasi (Dropped on 01.12.2022)
Director, M/s EOS Developers Private Limited
Khoda Seri, Sadar Bazar, Sirohi, Rajasthan-307001 ......Defendants
Date of Institution : 18.02.2020
Date of final argument : 07.08.2024
Date of judgment : 07.08.2024
Decision : Decreed
Judgment
1. This suit is filed by plaintiff company for recovery of Rs.60,03,768/-
alongwith interest @24% per annum as unpaid dues of money loan.
Plaintiff's case :
2. Case of the plaintiff as per plaint and the documents filed is that it is a duly
incorporated private ltd. Company and has Non-Banking Financial Company
CS (Comm.) No. 268/20
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(NBFC) licence. Plaint is filed by its Authorised Representative Yugavart
Aggarwal as empowered by the resolution of the plaintiff's board. It is
pleaded that the defendant which is also a duly incorporated private ltd.
Company at Basai Darapur, Delhi approached the plaintiff for availing the
unsecured loan of Rs.1,18,50,000/-. Owing to defendant's promise to repay
the loan, plaintiff agreed to disburse this amount at the rate of 12% per annum
which was subsequently reduced to 9% per annum with a rider that interest
shall be paid monthly. Plaintiff disbursed the amount between 30.07.2014 to
16.06.2015. Plaintiff paid Rs.1,13,50,000/- in 12 tranches to the defendant.
3. It is pleaded that despite this disbursement defendant did not pay interest for
the period 30.07.2014 to 31.03.2015. Consequently, plaintiff made a debit
entry of Rs.3,53,850/- in the defendant's account for which defendant
deposited TDS of Rs.35,385/- which was deposited with Income Tax
Authorities.
4. It is pleaded that on 14.03.2016 defendant made a part payment of Rs.5 lakhs
and thereafter on 29.03.2016 another payment of Rs.14 lakhs was made. Yet
again no interest for the period of 01.04.2015 to 31.03.2016 was made.
Plaintiff made debit entry of Rs.13,92,957/- for which defendant deposited
TDS of Rs.1,39,296/-.
5. In the meantime on the request of defendant plaintiff disbursed another sum
of Rs.5 lakhs vide cheque on 13.11.2017. In the meantime defendant made
two payments of Rs.7.60 lakhs and Rs. 11 lakhs on 28.06.2016 and
16.07.2016 to the plaintiff.
6. It is pleaded that defendant did not pay interest for 01.04.2016 to 31.03.2017
for which plaintiff made debit entry of Rs.9.70 lakhs after deducting TDS of
Rs.97,000/- and depositing the same with Income Tax Authorities.
7. In the Financial Year 2017-18 defendant made payments of Rs.5 lakhs on
05.04.2017, Rs.40 lakhs on 06.04.2017 Rs.5.50 lakhs on 18.04.2017 and
CS (Comm.) No. 268/20
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Rs.1.50 lakhs on 30.06.2017. For financial year 2017-18 plaintiff made debit
entry of Rs.5,74,287/- and deducted TDS of Rs.57,429/-.
8. After June 2017 defendant did not make any payment at all. Plaintiff was
further constrained to debit Rs.2,60,100/- for the year 2018-19 with TDS
deduction of Rs.26,010/-. When the dues were not cleared plaintiff issued
demand notice of 22.06.2019 which was neither replied nor complied. The
interest component of Rs.1,51,784/- for the period 01.04.2019 to 31.10.2019
was also not made. Plaintiff approached Shahdara DLSA for Pre-Institution
Mediation under Section 12A of Commercial Courts Act, 2015 where
defendant did not appear and Non-Starter Report dated 25.11.2019 was
issued. In this backdrop suit in hand was filed for recovery of principal
amount of Rs.28,90,000/- apart from interest component of Rs.31,13,768/- for
the period 30.07.2014 to 31.10.2019 @9% per annum taking the cumulative
suit claim to Rs.60,03,787/- for following reliefs:
Prayer :
That the Hon'ble Court may kindly pass a decree in favour of plaintiff and against the
defendant for recovery of :
1. Rs.28,90,000/- towards repayment of loan;
2. Interest of Rs.31,13,768/- from 30.07.2014 till 30.10.2019
3. Pendente lite and future interest @24% per annum and
4. Cost of the suit and its proceedings.
9. Summons of the suit was served upon the defendant on 18.12.2020 and Sh.
Tushar Roy, Advocate appeared for the defendants. Defendant no. 1 company
was served on 17.02.2021. Initially two directors of the defendant were also
impleaded but they were dropped from the array of defendants vide order
dated 01.12.2022. WS was filed by defendant no. 1 on 25.10.2021.
Defendant's case
10. It is case of the defendant company that this suit deserves to be dismissed
since it has been filed by concealing and suppressing material facts and there
is no cause of action in favour of plaintiff against the defendant. It is case of
CS (Comm.) No. 268/20
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the defendant that the resolution passed by plaintiff company in favour of Mr.
Yugavart Aggarwal on 30.03.2019 has not been executed properly as his
name is not mentioned in the list of directors as available online. It is pleaded
that for this reason Yugavart Aggarwal could not have been appointed as AR.
11.It is further case of the defendant company that the transaction in question
relied for filing this suit is under investigation by SFIO (Serious Fraud
Investigation Office). It is pleaded that Mr. Peeyush Aggarwal, father of Mr.
Yugavart Aggarwal has made a statement before the SFIO on oath under
Section 217 (4) (b) of Companies Act 2013 stating therein that he has already
received the amount constituting the subject matter of this suit. It is pleaded
that Mr. Peeyush Aggarwal is a stakeholder in the plaintiff company whereas
his parents are directors in the same. It is claimed that in the statement given
to SFIO Peeyush Aggarwal disclosed that the loan amount relied by the
plaintiff is just an entry. However the WS does not explain as to what is an
entry and how the money transferred by the plaintiff to defendant through
bank channels can be termed as mere entry.
12.The WS further cites and relies on the claimed statement made by Mr.
Peeyush Aggarwal before SFIO wherein he submits that Cyan Financial
Solutions Private Ltd. i.e. plaintiff company belongs to his family and friend.
It is pleaded that this entry was given on the advice of one Mr. Vivek
Harvyasi. It is pleaded that considering the statement of Peeyush Aggarwal,
the plaintiff does not have any cause of action to sue the defendant for
recovery of Rs.60,03,768/-.
13.In its reply on merits, defendant company has denied that it ever approached
the plaintiff for availing a loan of Rs.1,18,50,000/- and promise to repay with
12% interest. It is denied that defendant agreed to pay the interest component
on monthly basis. Defendant has not denied receipt of Rs.1,13,50,000/- from
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the plaintiff by way of cheques and RTGS from plaintiff's PNB Anand Vihar
branch as on 03.08.2017.
14.Likewise, defendant has not denied specifically the fact that defendant did not
pay interest of Rs.3,53,850/- to the plaintiff for the period 30.07.2014 to
31.03.2015 and that plaintiff debited this amount after deducting TDS of
Rs.35,385/-. As per Order 8 Rule 5 and Order 8 Rule 3A CPC applicable for
commercial suits not only the defendant is supposed to deny specifically each
and every averment of the plaint but also cite reason for denial coupled with
its own version of the fact.
15.Defendant has admitted that it made payments of Rs.5 lakhs and Rs.14 lakhs
to the plaintiff on 14.03.2016 and 29.03.2016 respectively. It has not denied
specifically that the interest component for FY 2015-16 was Rs.13,92,957/-
for which plaintiff made a debit entry for which defendant deposited TDS of
Rs.1,39,296/-. In para 7 the factum of plaintiff paying another Rs.5 lakhs to
the defendant on 13.11.2017 is not denied. Defendant has admitted paying
Rs.7.60 lakhs and Rs.11 lakhs to the plaintiff by RTGS on 28.06.2016 and
16.07.2016 respectively. It is not denied that for FY 2016-17 plaintiff debited
Rs.9.70 lakhs towards interest and for which defendant deposited TDS of
Rs.97,000/-. Defendant has admitted that he paid Rs.5 lakhs on 05.04.2017,
Rs.40 lakhs on 06.04.2017, Rs.5.50 lakh on 18.04.2017 and Rs.1.50 Lakhs on
30.06.2017 by way of RTGS/NEFT to the plaintiff. Likewise, defendant
admits depositing Rs.57,429/- as TDS for interest component of Rs.5,74,287/-
for FY 2017-18.
16.Defendant has not specifically denied the averment of the plaintiff that for FY
2018-19 defendant deposited Rs.26,010/- as TDS for interest component of
Rs.2,60,100/-. Defendant admitted receipt of legal demand notice dated
22.06.2019 and that no reply was filed to the same. It is not specifically
denied that for 01.04.2019 to 31.10.2019 defendant did not make payment of
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interest of Rs.1,51,784/-. Defendant did not participate in the Pre-Institution
Mediation proceedings. With these pleas defendant prayed for dismissal of
the suit.
17.The affidavit of admission and denial of plaintiff's documents filed by
defendant company is not as per Order 11 Rule 4 (2) CPC as neither specific
denial is made qua five components namely correctness of contents,
existence, execution, issuance or receipt and custody of the documents nor
any reason thereto has been assigned as per Order 11 Rule 4 (3) CPC which
provides that bare and unsupported denials shall not be treated as denial of a
document.
Replication
18.Replication placed on record belatedly was not accepted by the Court.
19. Out of the pleadings following issues were identified by this Court on
01.12.2022:
Issues:
1. Whether the plaintiff is entitled to recover Rs.60,03,768/- alongwith interest @24%
p.a.? OPP
2. Relief
20. Evidence in this case was ordered to be recorded before Ld. LC Ms. Iqra
Naaz, Advocate as per protocol created by this Court under Order 18 Rule 4
CPC read with Order 15A Rule 6(l) and (o) CPC as applicable to Commercial
suits.
"Protocol for Recording of Evidence before Court Commissioner appointed by
District Judge, Commercial Court, 2022"
Part - 1
Preliminary
1. Short title- This Protocol is titled "Protocol for Recording of Evidence before Court Commissioner
appointed by District Judge Commercial Court 2022."
2. Statutory Provision- This protocol is prepared as per Order 18 Rule 4 CPC and Order 15A Rule 6(l)
CPC as applicable to Commercial Court.
3. Court- Whenever the term 'Court' appears in this Protocol it should refer to Commercial Court as de -
fined under Section 2(b) of Commercial Court Act 2015.
CS (Comm.) No. 268/20
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Part - 2
Preparation for Assignment
4. Recording of evidence in Commercial Cases- Recording of evidence in Commercial Cases may be
carried out before the Court Commissioner.
Explanation: For reasons to be recorded, Court may retain the case for recording of evidence before the
Court.
5. Appointment of Court Commissioner- As per the Protocol, on the first Case Management Hearing
when the issues are identified, the Court may pass an order for appointment of Court Commissioner.
6. Copy of order be shared with parties and Court Commissioner- Copy of the order of framing of is-
sues, appointment of Court Commissioner and the schedule of recording of evidence shall be supplied to
the parties as well as the Court Commissioner.
Part - 3
Recording of Evidence
7. Filing of list of witnesses- Both sides shall file list of witnesses preferably within one week but not
later than 15 days of identification of issues before the Court while sharing an advanced copy thereof
with the opposite party.
8. Order of assignment of Case to the Court Commissioner- While assigning the case, following aspects
shall be complied :
(i) Schedule of evidence- Recording of evidence shall start within two weeks of identification of
issues. Evidence shall continue on day to day basis, till conclusion. Any alteration in schedule for
recording of evidence, if needed, shall be decided by the Court Commissioner as per convenience
of all concerned, as far as possible. However, entire evidence shall be concluded within Eight
weeks of initiation.
(ii) Judicial File- Judicial file shall not be sent or summoned for the purpose of recording of evi -
dence by the Court Commissioner.
(iii) Examination-in-Chief- An advance copy of examination in chief by way of affidavit shall be
supplied to opposite party preferably one week in advance. However, no adjournment shall be
granted in case of non-supply of advance copy.
(iv) Production of documents for cross-examination- In case the opposite side is desirous of pro-
duction of any document by the witness or any other entity for the purpose of cross-examination,
an application requesting the same shall be moved well in advance before the Court.
Part - 4
Duty of Court Commissioner
9. Recording of evidence by the Court Commissioner-
(i) Place and Time- Court Commissioner shall record evidence either in Lawyer's chamber, or
Judges/Bar Library, Court Room or any other public place within the Court Complex as mutually
agreed by all concerned. Evidence shall be recorded between 10.00 AM to 5.00 PM. It can carry
on beyond 5.00 PM as well in case both parties agree. It can be recorded even on a holiday if all
the stakeholders are comfortable and agree to the same.
(ii) Chronology of recording- Court Commissioner shall proceed to record the examination by
first recording the deposition of litigating party before examining additional summoned wit -
nesses.
(iii) Oath to witnesses- Court Commissioner shall administer oath to the witnesses under exami-
nation as a delegatee of the Court as per Oaths Act, 1969.
(iv) Recording of evidence- The evidence shall be preferably typed on a computer but can also be
recorded by hand neatly.
(v)Time frame- Court Commissioner shall conclude the recording of evidence, as early as possi-
ble, but not later than eight weeks of assignment of a case. In case, for any reason the parties are
unable to adhere to the time schedule, extension can be sought from the Court.
(vi)Comfortable sitting space- Witnesses and their Counsel shall be provided comfortable sitting
space by the Court Commissioner.
(vii)Exhibition of documents- Court Commissioner shall exhibit all the documents sought to be
proved by a party on record. In case of any objection to exhibition of the documents by either
side, the objection shall be recorded in some detail and left open with an assurance that mere
marking of such exhibits will not be treated as conclusive proof thereof and that admissibility of
such document shall be decided by the referral Court at final stage.
(viii)Original documents to be retained by parties- Court Commissioner shall make an observa-
tion in the record of evidence of all original documents produced and shall sign the exhibits with
an endorsement OSR (original seen and returned) wherever necessary. If a party has filed original
documents alongwith pleadings in Court, the same can be taken back as per rules for the purpose
of recording of evidence before the Court Commissioner.
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(ix)Language- Recording of evidence shall preferably be carried out in English or Court lan -
guage, as the case may be, unless requested by the parties otherwise.
(x)Adjournments- Once started, the cross-examination shall preferably concluded on the same
day or continue on day-to-day basis. In case of any hardship viz. ill health etc. the case can be de-
ferred but preferably for a day or two but not later than a week.
In case an evidence schedule is fixed and adjournment is sought by the opposite side, i.e the side
other than who is leading evidence, without 24 hour advance notice.
Explanation: In case a witness scheduled to be examined or under examination is reported to be
unwell or unavailable, the party leading the evidence shall produce the next witness in line in the
list for recording of evidence.
(xi)Recording of objections- All the objections raised during cross-examination/reexamination
shall be recorded in the deposition under title objections and shall be left open for the decision of
the Court at the stage of final arguments. Witness shall not refuse to answer the question asked.
(xii)Questions to be allowed- In case Court Commissioner finds any question not related to the
fact and issue, he shall record his objection but shall allow the question to be put and witness
must answer.
(xiii)No third person intervention- Court Commissioner shall ensure that the witness is not as-
sisted by his Counsel or any other person while under examination in answering the questions.
(xiv)Recording of demeanour of witness- Court Commissioner shall record the demeanour of the
witness wherever it is found pertinent and necessary for sharing with the Court.
(xv)Copy of evidence- All parties shall be provided uncertified electronic/hard copy of the evi -
dence recorded, free of cost by Court Commissioner.
(xvi)Safe keeping of original deposition- Court Commissioner shall keep the original depositions
in his safe custody till such time they are filed in the Court in original upon completion of each
witness individually.
(xvii)Miscellaneous proceedings- Court Commissioner shall maintain a miscellaneous proceed-
ing sheet for each day of work and shall submit it in the Court at the time of submission of final
report.
(xviii)Hostile Witness- In case a witness is sought to be declared hostile, then Court Commis-
sioner shall refer both the parties to Court at the earliest and the Court shall decide the issue
within three days.
Part - 5
Miscellaneous
10. Summoning of Witness-
(i)Summons from Court- In case a litigating party is desirous of summoning a person for deposi-
tion or production of documents, it shall obtain summons from the Court with an endorsement
that such person shall appear before the address of Court Commissioner on scheduled date, time
and place.
(ii)Diet Money- Diet money shall be paid to such witness by the party desirous of summoning as
per rules.
11. Advisory to Court Commissioner- While recording the evidence on commission, the Court Commis-
sioner shall ensure the following:
(i)Impartial- Court Commissioner shall conduct himself in an impartial way and behave in an in-
discriminate manner while recording of evidence.
(ii)Polite- Court Commissioner shall be polite with the witness and other stakeholders while
recording of evidence.
(iii)Confidentiality- Court Commissioner shall maintain confidentiality during the whole process.
(iv)Keeping professional distance- Court Commissioner shall not solicit professional work from
the parties.
(v)Integrity- Court Commissioner shall not accept remuneration or any favour in cash or kind
from the parties over and above the honorarium fixed by the Court.
(vi)Non-judgmental- Court Commissioner shall not criticize the professional conduct of lawyers
and litigating parties on their understanding of law.
(vii)Punctuality- Court Commissioner shall adhere to time schedules and shall not make excuses
like being engaged in some personal or Court work etc.
(viii)Coordination- In case of any unforeseen circumstances warranting change of dates of hear-
ing, for his own case or the request of other side, he shall apprise the other side in advance via
phone call, email, SMS, Whatsapp Group etc..
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(ix)No third party sharing- Court Commissioner shall not allow the deposition to be inspected by
any third party and shall not share a copy thereof with any stranger without permission of the
Court. (x)Inspection- Court Commissioner shall allow any party to inspect the recorded proceed-
ings only in his presence.
(xi)Recusal- In case either of the parties or Counsel for the parties are related or closely known to
Court Commissioner, he/she shall recuse self from the case and inform the referral Court.
12. Remuneration of Court Commissioner -
(i)Remuneration- In terms of Order 18 Rule 4 of the Code read with Order 15 Rule 2(l) and Rule
2(o) of the Code, Court Commissioner shall be paid remuneration for the work carried out.
(ii)Mode of payment- Such remuneration shall be paid by the party directly for the work carried
out by way of cash, UPI, Bank Transfer, cheque or draft against due receipt.
(iii)Cost to parties- Each party shall individually bear the cost incurred in leading its evidence.
(iv)Fee to be paid- Remuneration fee for recording of evidence is fixed at Rs.10,000/- per wit-
ness.
(v)Court Commissioner shall record the Evidence himself and in case the Stenographer services
are taken it can either be arranged by a litigating party on its own cost or in case the same is ar -
ranged by Court Commissioner, then the actual cost of typing shall be reimbursed by the party to
the Court Commissioner.
(vi)Litigation Cost- Expenditure incurred in recording of evidence shall be redeemable as cost of
litigation at the end of the suit.
13. Judicial Intervention during recording of evidence-
(i)Parties to cooperate- It is expected that both the sides will cooperate with Court Commissioner
as well as with each other in recording of evidence and carry out proceedings in a cordial manner.
(ii)Dissolution of hindrances- In case of any conflict resulting into hindrance recording of evi-
dence, it shall be resolved amicably by the parties at their own level with the active help of the
Court Commissioner.
(iii)Court intervention- However, in case of any unforeseen situation requiring judicial interven-
tion, Court Commissioner shall fix date and time for joint appearance of both sides before the
Court for removal of any such impediment.
14. Miscellaneous Applications-
(i)Moving the application- In case either of the parties is desirous of moving any miscellaneous
application viz. amending of pleadings, interim injunction etc. it shall share an advance copy
with the opposite side and reply thereof, if any, shall be filed and shared within seven days.
(ii)Date of hearing- Upon receipt of reply, both the sides shall get the application fixed for dis -
posal in the Court with the help of Reader of the Court and shall not wait till next date fixed for
hearing. All such miscellaneous applications shall be registered, numbered and indexed sepa-
rately.
(iii)Evidence not to be stalled- It is clarified that, unless Court Commissioner is of the view that
the interim application moved by either of the parties is such that evidence cannot be recorded
before its disposal, the recording of PE/DE shall continue unabatedly.
Plaintiff's Evidence :-
21. To prove its case plaintiff company examined PW1 Ashu Goenka. Vide
affidavit Ex.PW1/A he deposed on the lines of the plaint and exhibited the
following documents :-
i. Resolution dated 03.04.2023 of Board of Directors of plaintiff company is Ex.PW1/1;
ii. General Power of Attorney dated 09.04.2023 is Ex.PW1/2;
iii. The certificate of incorporation dated 08.09.2009 issued by Registrar of Companies, NCT
of Delhi and Haryana is Ex.PW1/3;
iv. The certificate of registration dated 16.03.2010 is Ex.PW1/4;
v. Certified true copy of ledger account for the period 05.08.2019 to 01.04.2024 is
Ex.PW1/5;
vi. Statements of account of Punjab National Bank for the period of 25.07.2014 to
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30.06.2015, 01.03.2016 to 31.07.2016 and 01.04.2017 to 30.06.2017 are Ex.PW1/6 to
Ex.PW1/8;
vii. Form 26AS for tax deducted at source for Financial Year 2014-15 is Ex.PW1/9;
viii.Form 26AS for tax deducted at source for Financial Year 2015-16 is Ex.PW1/10;
ix. Form 26AS for tax deducted at source for Financial Year 2016-17 is Ex.PW1/11;
x. Form 26AS for tax deducted at source for Financial Year 2017-18 is Ex.PW1/12;
xi. Form 26AS for tax deducted at source for Financial Year 2018-19 is Ex.PW1/13;
xii. Demand notice dated 22.06.2019 is Ex.PW1/14;
xiii.The postal receipts dated 24.06.2019 are Ex.PW1/15 to Ex.PW1/17;
xiv. The proof of delivery of consignment track report is Ex.PW1/18;
xv. Original return envelops are Ex.PW1/19 and Ex.PW1/20.
22. He was cross-examined at length by Ld. Counsel for defendant wherein he
stated that he is working as a consultant with plaintiff company for the last
about three years. He had access to financial documents of the borrowers of
the plaintiff company. He stated that he is appearing as a witness in this case
on the request of the company to which he agreed. He accepted that he does
not have any appointment letter from the plaintiff company.
23. As per him he provides services to the plaintiff on assignment basis and there
is no written contract between them. He was not providing services to the
plaintiff in 2014 when the suit amount was disbursed by the plaintiff to the
defendant. He, however, added that he was explained facts by the plaintiff
company for the purpose of deposition in the Court. He could not admit or
deny if Yugavart Aggarwal was director of the plaintiff company when the
suit in hand was filed. He admitted to have signed Section 65B Indian
Evidence Act certificate for the plaintiff company but stated that the printouts
were not taken by him from his own personal computer.
24.During the course of trial vide order dated 10.04.2023 this Court allowed
plaintiff company's application for change of its AR from Mr. Yugavart
Aggarwal to Mr. Ashu Goenka. Vide order dated 24.04.2023 an application of
plaintiff for placing on record additional documents was also allowed subject
to cost of Rs.12,000/-. Both these orders were challenged by defendant
company before Hon'ble High Court in CM Main 1472/2023. The order of
this Court for substitution of the AR was upheld by Hon'ble High Court. In
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so far as the objection to the authority of the new AR to stand into the witness
box was left open, the order of this Court was upheld. As regards the
additional documents are concerned, the order of this Court was also upheld
since the cost of Rs.12,000/- was accepted by Ld. Counsel for defendant
petitioner.
25.PW1 further stated in his cross-examination that he is a Chartered Accountant
by profession and he provides his services as a consultant to more than one
NBFC. He maintained that he has appeared as a witness for his other NBFC
clients as well. He expressed unawareness if any specific agreement was
entered between the parties for extension of loan in question. He admitted
that plaintiff company is under investigation by SFIO for the transaction in
question.
26. PW1 said that he knows Mr. Peeyush Aggarwal but was unaware if Peeyush
Aggarwal is a shareholder in the plaintiff company. The witness was shown
certified copy of a purported statement given by Mr. Peeyush Aggarwal to
SFIO and was marked as Ex.PW1/DX1. The witness expressed his inability
to make any statement on the basis of contents of the statement of Mr.
Peeyush Aggarwal qua the circumstances under which the amount was
transferred by plaintiff to the defendant as a loan or as an investment. It is
observed that even though PW1 was suggested that plaintiff company was
making such investment but no such pleading is available in the WS. He
stated that the Form 26AS (TDS Certificate) at the rate of 12% was agreed
before disbursal of the loan.
27.He accepted that he was not involved into day-to-day affairs or routine
business of the plaintiff company. He expressed unawareness as to dates
when Yugavart Aggarwal became director of the plaintiff company and the
date when he resigned. He stated that he does not have a document to show
change of interest from 12% to 9%. He expressed unawareness if any
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repayment schedule was agreed upon. He expressed unawareness if Mr.
Peeyush Aggarwal was ever shareholder of the plaintiff company.
28. On the other hand defendant examined DW1 Deepak Shrimali. Vide affidavit
Ex.DW1/A he deposed on the lines of WS and exhibited following
documents:
i. Board resolution is Ex.DW1/1;
ii. Copy of the shareholders is Mark A.
iii. Defendant has also relied on Ex.PW1/DX1 (incorrectly mentioned as Ex.DW1/2 in
affidavit in chief).
29. In his cross-examination done by Ld. Counsel for plaintiff he stated that he is
postgraduate in business management. He vouched for the correctness of
contents of his affidavit. He accepted that he is one of the accused in case
filed before SFIO. He could not show any document which authorizes Mr.
Peeyush Aggarwal to receive payments on behalf of plaintiff company.
30.No other witness was examined by any of the parties.
31.I have heard arguments of Sh. P C Arya, Ld. Counsel for plaintiff and Sh.
Tushar Roy, Ld. Counsel for defendant and have perused the case file
carefully.
32.Now I shall dispose of individual issues framed in this case.
Issue No. 1:
1. Whether the plaintiff is entitled to recover Rs.60,03,768/- alongwith interest @24%
p.a.? OPP
33. Before appreciating the rival contentions of both the sides it would be
appropriate to summarize the admitted case of both the sides. It is admitted by
the parties in the pleadings and during trial that plaintiff is a NBFC and that it
had extended a unsecured loan of Rs.1,18,50,000/- to the defendant company
by way of cheque/bank transfer. It is admitted that defendant has made
several return payments of Rs.89.60 lakhs between 14.03.2016 to 30.06.2017.
It is further admitted case of the parties that as agreed between them
defendant was supposed to pay interest on the loan amount each month and
CS (Comm.) No. 268/20
M/s Cyan Financial Solutions Private Limited Vs. M/s EOS Developers Private Limited Page 12/23
that on as many as on 5 occasions between Financial Years 2014-2015, 2015-
2016, 2016-2017, 2017-2018 and 2018-2019 defendant has been depositing
TDS on the interest amount with the income tax authorities.
34.Also admittedly while the defendant admits receipt of Rs.1,18,50,000/- but
despite claiming that now nothing is due and payable defendant has not
placed on record or proved any document to show that the entire amount was
paid back.
35. While opening his submissions, Ld. Counsel for plaintiff submits that
although it is already admitted by the defendant in the WS that plaintiff paid
Rs.1,18,50,000/- to the defendant by bank transfer but still plaintiff has filed
bank statement Ex.PW1/6 to Ex.PW1/8 apart from ledger Ex.PW1/5 to
substantiate this plea. It is argued that both these documents have been
evasively denied by the defendant which is in violation of Order 11 Rule 4 (2)
and Order 11 Rule 4 (3) of CPC. For ready reference the same are reproduced
hereunder:
Order 11 Rule 4 CPC : Admission and denial of documents
(1) ........
(2) The statement of admissions and denials shall set out explicitly, whether such party was
admitting or denying:-
(i) correctness of contents of a document;
(ii) existence of a document;
(iii) execution of a document;
(iv) issuance or receipt of a document;
(v) custody of a document...........
(3) Each party shall set out reasons for denying a document under any of the above grounds and
bare and unsupported denials shall not be deemed to be denials of a document and proof of such
documents may then be dispensed with at the discretion of the Court.
36.Bare reading of the above statutes show that bald and unsupported denials by
the defendant to the plaintiff's documents shall be treated as no denial in the
eyes of law.
37.It is further submitted by Ld. Counsel for plaintiff that initially in 2014 the
unsecured loan was granted at 12% interest per annum with a rider that
interest shall be paid on monthly basis. However, w.e.f. 01.04.2017, on the
CS (Comm.) No. 268/20
M/s Cyan Financial Solutions Private Limited Vs. M/s EOS Developers Private Limited Page 13/23
request of the defendant the rate of interest was reduced from 12% to 9% with
rider that interest shall be paid on monthly basis. In support of this plea
reference is made to Form 26AS of Income Tax Act Ex.PW1/9 to Ex.PW1/13
which was deposited by the defendant with the Income Tax Authorities. It is
further admitted that despite admittedly receiving the legal demand notice
Ex.PW1/14 to Ex.PW1/18 the defendant company neither replied nor
complied the same.
38. In view of the fact that legal notice was not replied by the defendant after
duly service as per case titled Jayam Company Vs. T. Ravi Chandaran 2003
(3) RCR (Cr.) 154 Madras presumption is drawn against defendant that it has
admitted the contents of the legal notice.
39.In another case titled as Metropolis Travels & Resorts (I) Pvt. Ltd. Vs. Sumit
Kalra and Ors., 2002 Latest Caselaw 714 Del wherein it was observed that :
"13. There is another aspect of the matter which negates the argument of the
respondent and that is that the appellant served a legal notice on the respondent vide
Ex. PW1/3. No rely to the same was given by the respondent. But in spite of the same, no adverse inference was drawn against the defendant. This court in the case of Kalu Ram Vs. Sita Ram 1980 RLR 44 observed that service of notice having been admitted without reservation and that having not been replied in that eventuality, adverse inference should be drawn because he kept quite over the notice and did not send any reply. Observations of Kalu Ram's case (supra) apply on all force to the facts of this case. In the case in hand also despite receipt of notice, respondent did not care to reply nor refuted the averments of demand of the amount on the basis of the invoices/ bills in question. But the Ld. Trial court failed to draw inference against the respondent".
(Emphasis Supplied)
40.Ld. Counsel for plaintiff has also relied upon case titled as Krishan Kumar Aggarwal Vs. Life Insurance Corporation 2010 Latest Caselaw 3344 Del wherein Hon'ble Delhi High Court observed that:
"65. No explanation has been rendered by the respondent as to why letter dated 23 rd August, 2008 and the legal notice send by the appellant were not repudiated or even replied. Despite due receipt, the respondent did not bother to even send any response to the letter dated 23rd August, 2008 or the legal notice, the contents whereof would be deemed to have been admitted. In the judicial precedents reported in Rakesh Kumar Vs. Hindustan Everest Tool Ltd. MANU/SC0396/1988: (1988) 2 SCC 165 & Hirallal Kapur Vs. Prabhu Chaudhary MANU/SC/0189/1988 : (1988) 2 SCC 172 it was held by the Supreme Court that a categorical assertion by the landlord in a legal notice if not replied CS (Comm.) No. 268/20 M/s Cyan Financial Solutions Private Limited Vs. M/s EOS Developers Private Limited Page 14/23 to and controverted, can be treated as an admission by a tenant.
"66. In a Division Bench proceedings of this court reported in Metropolis Travels and Resorts Vs. Sumit Kalra MANU/DE/0562/2002 : 98 (2002) DLT 573 (DB), no adverse inference was drawn against the respondent for failure to reply the legal notice on consideration of the facts and circumstances of the case. Reference was made to proceedings reported in Kalu Ram Vs. Sita Ram wherein it had been observed that service of notice being admitted without reservation and that having not been replied, in that eventuality, adverse inference should be drawn".
(Emphasis Supplied)
41. In the light of the above judgments of Division Bench of Hon'ble High Court of Delhi, plaintiff has successful to show on record that non-reply of legal notice by the defendant may be looked into as a presumption to correctness of the facts contained therein.
42.It is further argued that despite due service of Pre-Institution Mediation notice defendant did not appear to participate and try and settle the suit claim. Defendant's Arguments
43.On the contrary, it is argued by Ld. Counsel for the defendant that the plaintiff's suit deserves to be dismissed because it was filed by a person who is not authorized by the Board of the plaintiff company. It is argued that the plaint is signed by Mr. Yugavart Aggarwal claiming himself to be director of the plaintiff company but no proof thereof has been filed. Record reveals that this suit is signed by Yugavart Aggarwal by relying on the resolution of the plaintiff's board dated 30.03.2019 wherein it is specifically mentioned that the board resolves to authorise its director Yugavart Aggarwal to initiate the proceedings against the debtor of the plaintiff company.
44.Once board of directors of a plaintiff company resolves to appoint a person as its AR, it is not a legal requirement that such a person has to necessarily be a director of the company. Upon being asked Ld. Counsel for defendant concedes that even a non-director can become an AR but he adds that Mr. Yugavart Aggarwal was director of the plaintiff on the date of resolution i.e. 30.03.2019 but he resigned from the directorship before the suit was filed.
45.On a pointed query Ld. Counsel for defendant accepted that he does not have CS (Comm.) No. 268/20 M/s Cyan Financial Solutions Private Limited Vs. M/s EOS Developers Private Limited Page 15/23 a document to show as to on what date Yugavart Aggarwal resigned from the directorship or that on the date of filing of the suit in hand i.e. 17.02.2020 he was not a director of the company. In the absence of any specific proofs either in the WS or the documents filed or any averment extracted during cross- examination of PW1 it cannot be said that defendant has discharged the onus under Section 105 of Bhartiya Sakshya Adhiniyam, 2023 (Section 102 of Indian Evidence Act). For ready reference the same is reproduced hereunder:
Section 105 of Bhartiya Sakshya Adhiniyam, 2023: On whom burden of proof lies The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
Illustration:
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father.
If no evidence were given no either side, B would be entitled to retain his pos- session. Therefore the burden of proof is on A.
(b) A sues B for money due on a bond.
The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies.
If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved.
Therefore the burden of proof is on B.
46.Another plea raised by Ld. Counsel for defendant is that even though plaintiff company claims to have extended a loan of Rs.1,18,50,000/- but no loan document was executed despite the fact that plaintiff is a NBFC. This submission of Ld. Counsel for defendant does not hold water in the backdrop of the fact that the factum of availing the above loan is admitted by the defendant company. Mere non-filing of any standalone loan document cannot have the effect of absolving the borrower of financial liability to repay the loan amount.
47.Another plea raised is that in its preliminary submissions defendant has mentioned that the amount of Rs.1,18,50,000/- was received by defendant CS (Comm.) No. 268/20 M/s Cyan Financial Solutions Private Limited Vs. M/s EOS Developers Private Limited Page 16/23 from plaintiff company as a mere "entry" and not as a loan. This plea that it was a mere entry is unsubstantiated as the WS nowhere explains as to what an entry means. Even if it is, for the argument sake, accepted that an entry means no payment made and just an entry of payment is entered. It is legally untenable as admittedly entire amount of Rs.1,18,50,000/- was made legitimately through cheques and bank transfer. An endeavour on the part of Ld. Counsel for defendant that bank transfer was made in lieu of receiving cash is something which cannot be accepted since the WS and affidavit in chief of DW1 is totally silent on the same. No party can be allowed to improvise its defence on the basis of what is convenient and that too beyond pleadings.
48. The law in this regard is well-settled. No evidence can be led on a plea not raised in the pleadings and no amount of evidence can cure defect in the pleadings. No amount of evidence or arguments can be looked into or considered in absence of pleadings and issues. Relevant judgments are listed as under:
i. M. Siddiq (Ram Janmabhumi Temple) Vs. Suresh Das, 2019 Latest Caselaw 1091 SC ii. Ravinder Singh vs. Janmeja Singh, 2000 Latest Caselaw 479 SC iii. Union of India vs. R. Bhusal, (2006) 6 SCC 360 iv. Anathula Sudhakar Vs. P. Buchi Reddy, 2008 (2) AWC 1768(SC)
49. In case titled Kashi Nath vs. Jag Nath, (2003) 8 SCC 740, Hon'ble Supreme Court ruled that:
"Such evidence which is at variance with the pleadings of the party, cannot be relied upon and moreover, an adverse inference is to be drawn when the pleadings and evidence are self-contradictory."
50. In case titled M.M.B. Catholicos vs. T. Paulo Avira, AIR 1959 SC 31 (Five-
Judge Bench) Hon'ble Supreme Court ruled that-
CS (Comm.) No. 268/20 M/s Cyan Financial Solutions Private Limited Vs. M/s EOS Developers Private Limited Page 17/23"Plaintiff cannot be allowed to set up a new case in his evidence. He cannot be allowed to go outside his pleadings and lead evidence on a fact not pleaded."
51.Furthermore, the plea of the defendant that the transactions were apparently sham transactions is something which is legally prohibited being illegal and nugatory. It is evident from the pleadings i.e. admission in the WS of the fact that for as many as five financial years defendant continued to deposit TDS for the monthly interest payable on the loan amount of the plaintiff in the form of Form 26AS of Income Tax Act.
52.A plea is raised by Ld. Counsel for defendant that PW1 filed a Section 65B Indian Evidence Act certificate in support of Form 26AS but admitted that they were not downloaded from Income Tax portal from his own computer. In my considered view it is not necessary that the machine used for accessing a public portal of a Govt. department has to be of the person who filed the Section 65B certificate. All the necessary declarations as mandated under the law for electronic evidence, stands duly satisfied.
53. Another plea raised is that PW1 was not a competent witness in so far as he is neither an employee of the plaintiff company nor was participating in day-to- day functioning of the plaintiff company. It is submitted on behalf of defendant that he is admittedly consultant and as such as per judgment of Hon'ble Supreme Court in Janki Vashdeo Bhojwani and Anr. Vs. Indusind Bank Ltd. and ors., 2004 Latest Caselaw 697 SC he could not have stepped into the witness box.
54.Perusal of the above judgment clearly shows that it was a case where a husband appears as Power of Attorney holder for his wife. The Hon'ble Supreme Court was constrained to observe that when the wife was a party to the suit she should have herself stepped into the witness box instead of executing a Power of Attorney in favour of her husband. There is no qualms with this proposition that duty to depose cannot be delegated to a GPA/SPA CS (Comm.) No. 268/20 M/s Cyan Financial Solutions Private Limited Vs. M/s EOS Developers Private Limited Page 18/23 by a person. But in the case in hand plaintiff is a duly incorporated Private Ltd. Company and an NBFC and being a legal fiction it has to rely on its authorised representative. As such, I am of the considered view that this judgment has no relevance on the facts of this case.
55. Attention of this Court is drawn to Order 29 Rule 1 CPC. For ready reference the same is reproduced hereunder:
Order 29 Rule 1 CPC: Subscription and Verification of Pleading "In suits by or against a corporation, any pleading may be signed or verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case."
56.Plain reading of the same shows that it provides for filing of a suit by a company through its Secretary, Director or other principal officer. As per Board Resolution in favour of Mr. Yugavart Aggarwal he was director of the plaintiff company when he signed and filed this suit. As regards authority of PW1 Ashu Goenka to depose in the matter, he was duly appointed as AR by plaintiff company vide resolution dated 03.04.2023 i.e. Ex.PW1/1. Simply because he was a consultant providing accountancy services being a Chartered Accountant does not in any manner show that he is not a competent witness. In money suits filed by banks and NBFCs like the one in hand it is not expected that the plaintiff's produced witnesses who were at the helm of affairs at the time of disbursement of loan. A witness who has due authority by resolution of the board and has access to all the necessary documents of the plaintiff to depose in the Court and answer the cross questions of the defendant is a duly competent witness and as such I find no strength in this plea of Ld. Counsel for defendant.
57. The last contention of Ld. Counsel for defendant company is that in the statement given by one Peeyush Aggarwal to some Investigating officer of SFIO in some investigation in Gurgaon, Haryana under Companies Act on CS (Comm.) No. 268/20 M/s Cyan Financial Solutions Private Limited Vs. M/s EOS Developers Private Limited Page 19/23 13.12.2018 to the effect that Rs.1,18,50,000/- was given by the plaintiff to the defendant company as interest bearing entry and that as on 05.12.2018 Rs.58,51,984/- remains to be settled. Any reference by the defendant to this statement is legally inconsequential for various reasons. Firstly this statement made by one Peeyush Aggarwal does not in any manner bind the plaintiff, a duly incorporated private ltd. Company and NBFC in any manner more so when Peeyush Aggarwal is neither a director nor a constituted authorised representative or power of attorney holder of plaintiff company.
58. A bald plea that he owns shares in the plaintiff company without any proof thereof is of no avail. Reference to a purported printout of a record from the ROC portal is of no avail firstly because no affidavit under Order 11 Rule 6 CPC was filed in support of the same and the document does not show the specific URL from where it was downloaded.
59.Furthermore, the statement given by Peeyush Aggarwal has not been proved as per Evidence Act. In so far as neither the statement maker nor the statement recorder have been summoned for proving the same mere filing a photocopy (attested as copy to copy) thereof and putting a mark thereon does not amount to proving a document.
60.In the backdrop of the admissions made by the defendant company and admitted deposit of TDS on the loan amount with the IT authorities show that it was a loan transaction between two companies and an endeavour is made by the defendant company to propound theories of entry at one place in the preliminary submissions and investment by plaintiff company in a defendant's project in the cross-examination of PW1 and statement of DW1 is nothing but an afterthought.
61.Yet another plea is raised by Ld. Counsel for defendant that the suit is barred by limitation. At the onset it is accepted by Ld. counsel for defendant that this plea is being raised by him for the first time since the filing of the suit on CS (Comm.) No. 268/20 M/s Cyan Financial Solutions Private Limited Vs. M/s EOS Developers Private Limited Page 20/23 17.02.2020. It is admitted that no objection as to limitation was raised in the WS or anytime thereafter. However in so far as its a legal objection covered under Order 7 Rule 11 CPC r/w Section 3 of the Limitation Act, 1963 Ld. Counsel for defendant cannot be prohibited from raising this issue on any stage.
62.Upon appreciating the plaintiff's case in the light of above objection shows that the loan amount of Rs1,18,50,000/- was disbursed in 13 tranches between 30.07.2014 to 13.11.2017. As per pleaded case the initial loan amount agreed was of Rs.1,18,50,000/-. Upon considering the limitation from the last date of disbursement of Rs. 5 lakhs on 13.12.2017, the suit filed on 17.02.2020 is well within time.
63. Be that as it may the loan in question, as evident from pleadings and the documents filed was not a fixed term loan. The plaint nowhere shows as to for what tenure the loan is being disbursed. In so far as defendant has been paying TDS on interest up to end of 31.03.2019, even from this date the suit appears to be within time. Although the plaint does not specify the specific tenure and mode of recalling the loan, such loans can be either covered under Schedule 19 or Schedule 22 or as an alternative under residuary clause of Article 113 of Limitation Act. For ready reference the same are reproduce hereunder:
Schedules to Limitation Act, 1963 Description of Suit Period of Time from which period begins Limitation to run
19. For money payable for money lent Three years When the loan is made.
22. For money deposited under an Three years When the demand is made agreement that it shall be payable on demand, including money of a customer in the hands of his banker so payable.CS (Comm.) No. 268/20 M/s Cyan Financial Solutions Private Limited Vs. M/s EOS Developers Private Limited Page 21/23
Description of application Period of Time from which period begins to Limitation run
113. Any suit for which no period of Three years When the right to sue accrues. limitation is provided elsewhere in this Schedule.
64.In all the three scenarios the suit in hand appears to be within time as it was filed within three years of making of last payment by the plaintiff to the defendant, last payment made by defendant to the plaintiff by way of interest (TDS), date of demand i.e. legal notice dated 22.06.2019. As such, I have no hesitation in concluding that this suit is within limitation. Accordingly, this issue no. 1 is answered in favour of plaintiff and against the defendant.
Interest
65. As far as rate of interest is concerned, plaintiff has claimed 24% interest. No document has been filed in support of this plea. It is claimed that initial interest agreed was 12% in 2014 which was subsequently reduced to 9% w.e.f. 01.04.2017. As against the principal amount of Rs.28,90,000/- plaintiff is claiming pre-suit interest of Rs.31,13,768/-. Since the interest component is beyond the principal amount it is against the Doctrine of Damdupat as prescribed in Section 30 (2) of Punjab Relief of Indebtedness Act, 1934, as extended to Delhi. For ready reference the same is reproduced hereunder:
Section 30 of Punjab Relief of Indebtedness Act, 1934 : Damdupat
2."In any suit in respect of a debt as defined in Section 7, advanced after the commencement of this Act, no Court shall pass or execute a decree or give effect to an award in respect of such debt for a larger sum than twice the amount of sum found by the court to have been actually advanced less any amount already received by a creditor."
66. Section 34 CPC provides that plaintiff will be entitled the interest at the rate at which Court finds reasonable. For a general suit, the rate of interest prescribed is 6% and for commercial suit, the Parliament promulgates that rate of interest may increase from 6% to a rate which is found reasonable.
CS (Comm.) No. 268/20 M/s Cyan Financial Solutions Private Limited Vs. M/s EOS Developers Private Limited Page 22/23The interest is payable in terms of Sec.34 CPC which provides that:
(i) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, [with further interest at such rate not exceeding six per cent per annum as the Court deems reasonable on such principal sum], from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit:
Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent, per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions.
67. As per RBI notification dated 30.08.2022 issued vide Press Release no.2022- 2023/794 an advisory issued by RBI to Schedule Commercial Banks of adopting, deposit rates @ 9.05% per annum. In the light of the above, plaintiff is entitled to get 9% interest.
Relief:-
68. In the light of the above discussions and findings, the suit of the plaintiff is decreed with cost for Rs.28,90,000/- with 9% interest w.e.f. 01.07.2019 (as per legal notice dated 22.06.2019) onwards, pendente lite and till realization. This is exclusive of TDS already deposited by defendant company with the Income Tax Authorities in the name of plaintiff. Plaintiff's Lawyer's fees is assessed as Rs.45,000/-.
69.Decree sheet shall be prepared accordingly. File be consigned to Record Room after due compliance.
(SURINDER S. RATHI) District Judge, Commercial Court -03 Shahdara District, KKD Delhi/07.08.2024 CS (Comm.) No. 268/20 M/s Cyan Financial Solutions Private Limited Vs. M/s EOS Developers Private Limited Page 23/23