Delhi District Court
Mrs Indu Goswami vs Raj Rani Gupta And Anr on 24 September, 2025
IN THE COURT OF SH.AJAY GUPTA
DISTRICT JUDGE (COMMERCIAL COURT)-05
TIS HAZARI COURTS, WEST: DELHI
CNR No. DLWT01-004776-2020
CS (Comm)/266/2020
Mrs. Indu Goswami
W/o Sh. Manish Giri
A-4/7, Phase-II, Shyam Vihar
Najafgarh
Delhi-110071
....PLAINTIFF
Versus
1. Smt. Raj Rani Gupta
W/o Sh. Sumer Chand Gupta
R/o A-172, Outer Ring Road
Meera Bagh, Paschim Vihar
West Delhi, Delhi-110057
2. Ms. Sarita Sayal
C/o M/s Mother's Pride
11/77, West Punjabi Bagh
New Delhi-110026
....DEFENDANTS
Date of Institution of Case : 14.10.2020
Date of Arguments : 04.09.2025
Date of Pronouncement of Judgment : 24.09.2025
JUDGMENT
1. Plaintiff has filed the present suit for recovery of Rs.5,79,773/- (Rs.Five Lac Seventy Nine Thousand Seven CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 1 of 52 Hundred Seventy Three Only) alongwith pendentelite and future interest @ 14% p.a. Before briefly discussing the averments made by the plaintiff in the present amended plaint, a brief background of the proceedings which took place in the present case since the time of filing of the present suit are also required to be specified.
2. Initially, the plaintiff had filed the present suit against the following five defendants :-
(i) M/s Mother's Pride
11/77, West Punjabi Bagh
New Delhi-110026
(ii) Mr. Devendra Gupta
c/o M/s Mother's Pride
11/77, West Punjabi Bagh
New Delhi-110026
(iii) Ms. Sudha Gupta
C/o M/s Mother's Pride
11/77, West Punjabi Bagh
New Delhi -110026
(iv) Ms. Neerja Chawla
C/o M/s Mother's Pride
11/77, West Punjabi Bagh
New Delhi-110026
(v) Ms. Sarita Sayal
C/o M/s Mother's Pride
11/77, West Punjabi Bagh
New Delhi-110026
(hereinafter referred as D-1 to D-5)
CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 2 of 52
3. In the original plaint, plaintiff had claimed that w.e.f 11.04.2011, she is working as a teacher in Prudence School situated at HAF Pocket-4, Sector 16B, Dwarka, New Delhi-110078 and prior to November 2018, the said school was known as 'Presidium School' and it was controlled and managed by D-1. D-2 and D-3 were managing and controlling the various schools which were run in the names of Mother's Pride and Presidium School through their Marvel Group of Delhi. D-2 to D-5 were involved in management and functioning of D-1. On several occasions, D-4 and D-5 dealt with the plaintiff on behalf of D-1. D-1 had initiated investment schemes and they lured for making the said investment with D-1 by promising higher returns and when some of the employees of D-1 showed their reluctance, they were coerced to deposit the money with the defendant no.1. Accordingly, plaintiff also deposited a sum of Rs.4,00,000/- through cheque no. 000005 dated 27.07.2015 and cheque no. 000008 dated 25.04.20216 with D-1 regarding which a promissory note as well as receipt dated 25.04.2016 were issued by D-5 on behalf of D-1. D-1 also paid the accrued interest to the plaintiff on the aforesaid investment till January 2018 and thereafter, D-1 stopped paying interest on the pretext of non availability of funds. Since plaintiff required money, she through email dated 17.09.2018 sought refund of her aforesaid amount and as per the instructions of D-1, on 25.09.2018, she CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 3 of 52 surrendered the promissory note to the authorized person Mr. Deepak Giri, the then fee manager of Presidium School who acknowledged the same. Plaintiff was informed that she would get her amount in 15 days after the same is approved by D2 to D5. After that she also wrote several emails to the office bearers including D-2 and D-4 but she did not get her money back. Vide her email dated 11.10.2018, D-4 admitted the factum of investment of plaintiff with D-1. It is further stated that one of her colleagues namely Ms. Sandeep Kaur had also invested money with defendants and the aforesaid colleague of plaintiff as well as plaintiff both were pursuing the defendants for return of their money regarding which her colleague had whatsapp conversation with D-5 on her mobile phone nos. 9810027382 and 7838654021. On 28.12.2018, her colleague asked D-5 as to when they would get their money back to which D-5 responded through a whatsapp message that "sir has informed that money will be paid whenever funds are available". It is stated that the "sir has been used for defendant no.2". It is stated that defendants did not refund the aforesaid amount to the plaintiff despite requests. Thereafter, plaintiff also sent a legal notice dated 24.07.2019 to D-1, however, neither legal notice was replied nor her money was refunded, thus, plaintiff has sought decree of Rs.5,79,773/- which includes the pre-suit interest of Rs.1,79,773/- (calculated @ 14% p.a.) alongwith 14% p.a. pendentelite and future interest.
CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 4 of 52 DEFENDANT'S CASE
4. All the aforesaid defendants were served and D-1,2,3&5 filed their joint written statement and D-4 filed her separate written statement. The aforesaid defendants who filed their joint written statement have opposed the claim of the plaintiff mainly on the ground that M/s Mother's Pride is the brand name owned by the company M/s Mother's Pride Education Personna Pvt.Ltd. (MPEPPL/company in short) and the said company has let out its aforesaid trade mark/brand name to various other entities to run the pre-school activities but regarding their activities, the Directors and other authorities of the said company is not legally liable. Thus, it is stated that the company has filed the WS on behalf of their brand name (M/s Mother's Pride). It was stated that Smt. Sudha Gupta (D-3) is the Honorary Chairperson of the brand Mother's Pride and she is a guiding factor for education only but she does not have any contractual authority for any commercial transaction. D-2 is the husband of D-3 and he has no control in the company or any school in any manner. Though, the company (MPEPPL) stated that they are filing their WS on behalf of D-1, however, simultaneously, they stated that D-1 which is located at 11/77, West Punjabi Bagh, New Delhi-26 is the proprietorship concern of Smt. Raj Rani Gupta. It was further stated that Mr. G.S.Matharu was a C.E.O of the entire Mother's Pride and Presidium Group since 2011 and he had started the CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 5 of 52 illegal schemes of raising funds in the name of school under his proprietorship concern of M/s Marvel Privilege Club. He paid the interest on the said schemes for sometime by diverging the funds of the school and when he was unable to pay the interest and D-3 questioned him about the same in March 2018, he sabotaged the group and took over three prime Presidium Schools including the school at Dwarka 16B, Presidium Sec.22 Dwarka and Presidium Ashok Vihar and the name of the schools was changed to Prudence School and plaintiff has filed the present suit in collusion with Sh. G.S.Matharu to harass the defendants including the husband of D-2 as well as D-5 who is their confidante. It is also stated that D-4 who is now employed with the Prudence School has been arrayed as one of the defendants to mislead the court.
4.1 While replying on merits, defendants denied the claim of the plaintiff stating that neither any money was collected on behalf of Mother's Pride nor any promissory note qua the same was issued on behalf of M/s Mother's Pride. It was also denied that D-5 was ever employed with D-1 or she was ever authorized to issue any document on behalf of D-1. It was also stated that the alleged promissory note was not issued on behalf of D-1, thus, no legal liability can be fastened upon D-1. It was further stated that D-2, D3 & D5 were never involved in the management of M/s Mothers' Pride located at CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 6 of 52 the aforesaid address as the same is being run under the proprietorship concern of Smt. Raj Rani Gupta. Rest of the averments made by the plaintiff in regard to her claim have also been denied by the defendants. D-5 also denied to have any communication with plaintiff through her mobile no. 7838654021.
4.2 Since the defendants have claimed that D-1 is the brand name of company therefore, company was also impleaded as D-6 which also filed its WS. In its WS, D-6 has also denied the contents of the plaint. It has been stated that plaintiff has withheld the material facts and approached the Court with unclean hands with a sole motive to harass the defendants and to extract money. It was stated that there is no cause of action against D-6 and the alleged promissory note does not bear the stamp of D-6. It was further stated that D-5 was never employed with D-6 and hence D-6 has no legal liability qua the alleged promissory note as there is no contract between D-6 and the plaintiff.
4.3 D-4 also filed her WS and sought dismissal of the suit. D-4 stated that from the pleadings, it appears that plaintiff is a money lender and thus, her suit is liable to be rejected. It is further stated that suit is barred by limitation as the amount was CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 7 of 52 transferred in the year 2015 and 2016 and the same is not liable to be recovered in 2020. It has been further stated that there has never been any acknowledgment of loan, its duration etc. It is further stated that no role has been attributed to D-4 as investment was allegedly made with D-1 and certain documents were executed by D-5 on behalf of D-2. It is further stated that the alleged email sent by D-4 was a cautionary mail as the plaintiff happened to be a colleague of the defendant. D-4 also filed an application u/s 1 rule 10 CPC seeking her deletion from the present suit.
4.4 It is clear from the contents of the WS filed on behalf of D-1, D-2, D-3 & D-5 that though they stated that M/s Mothers' Pride is the proprietorship concern of Smt. Raj Rani Gupta however, neither they sought their deletion from the present proceedings nor they sought impleadment of Smt.Raj Rani Gupta. They also did not specify as to, to which of their schools/authorities the subject matter pertains, rather after impleadment of the aforesaid company (MPEPPL) which owns the brand name M/s Mother's Pride, they sought stay of the proceedings on the ground that the company is under liquidation. Since in the present case, the amount stated to have been deposited by the plaintiff through cheques and since defendants had not specified as to which particular legal entity, the subject matter pertains, therefore, the relevant documents CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 8 of 52 pertaining to the bank account of M/s Mother's Pride were summoned and as per the documents submitted by the bank concerned, Smt. Raj Rani Gupta is the proprietor of M/s Mother's Pride which entity had encashed the cheque issued by plaintiff. Therefore, in order to pursue the present suit only against relevant defendants, plaintiff filed an application u/o 1 rule 10 CPC, by virtue of which plaintiff sought impleadment of Smt. Raj Rani Gupta being the proprietor of M/s Mother's Pride of 11/17, West Punjabi Bagh, New Delhi. Besides, plaintiff sought retention of Smt.Sarita Sayal who was already a party to the original suit. The aforesaid application was allowed vide order dated 18.01.2025 and both the defendants mentioned in the memo of parties of the present Judgement were subsequently impleaded/retained. After amendment, plaintiff filed the amended plaint and in the amended plaint, plaintiff has reiterated all the averments made in the original plaint which have already been specified in the foregoing paras therefore, same are not being repeated.
4.5 Both the defendants namely Smt. Raj Rani Gupta, defendant no.1 (in short D-1) and Ms. Sarita Sayal, defendant no.2 (in short D-2) filed their joint written statement and opposed the claim of the plaintiff. In regard to D-1, it has been submitted that currently insolvency proceedings are going on against her in the case titled as Yes Bank Ltd. Vs. Raj Rani CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 9 of 52 Gupta (IB-930/ND/2022) due to which all her assets including her bank account associated with her proprietorship concern are now vested with the Resolution Professional appointed in accordance with Insolvency and Bankruptcy Code 2016 (IBC in short). It is submitted that in view of section 14 and 96 IBC, this court does not have jurisdiction to proceed with the matter as currently the jurisdiction lies with Hon'ble NCLT. It is stated that D-1 is a senior citizen and she was not able to keep track of the activities of her bank account. It is stated that D-1 did not conceal any material fact from this court and she has acted in good faith through out the proceedings. During arguments, it was also submitted by the Ld. Defence Counsel that recently, D-1 has been declared an insolvent.
4.6 It is further stated that plaintiff was a teacher in Prudence School which is situated at HAF, Pocket-4, Sector 16B, Dwarka, New Delhi-110078. The Prudence is the brand name of Prudence Global Edu Learn Pvt.Ltd. The Prudence School is not part of Mother's Pride, Punjabi Bagh (having its office at 11/77 West Punjabi Bagh, New Delhi-110026) which is a proprietorship concern of D-1. It is stated that defendants have never initiated any scheme nor they ever coerced any of their employees to invest any sort of money in the alleged scheme. Plaintiff in connivance with her accomplices has falsely mentioned the names of Smt.Sudha Gupta and CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 10 of 52 Sh.Devendra Gupta in order to harass them though Smt. Sudha Gupta was merely a Honorary Chairperson of Mother's Pride brand name and she was not involved in day to day activities of schools being run under the name of Mother's Pride.
4.7 It is further stated that the present suit is not maintainable against D-2 as plaintiff has not brought on record any evidence to indicate that any amount has been deposited in the personal bank account of D-2. It is stated that in view of Sec.230 of Contract Act, the agent of an entity cannot be sued in their personal capacity for the acts performed on behalf of the company. It is stated that Smt. Sarita Sayal was merely an employee in Presidium, Sonipat and she had no connection with M/s Mother's Pride, Punjabi Bagh and she was neither the authorized signatory nor she had any responsibility for the day to day affairs of any legal entity operating under the Mother's Pride, Punjabi Bagh, therefore, neither she can be held liable nor sued by the plaintiff. In regard to the claim of the plaintiff regarding whatsapp communication on the mobile phone number 7838654021, D-2 reiterated the defence taken by her in her very first written statement. She reiterated that she never had any chat with the plaintiff as from 10.12.2018 to 15.01.2019 she was on leave due to marriage of her daughter. She also stated that her official phone was lying at the school premises and she does not know anything about the said CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 11 of 52 messages or chat and she came to know about the said messages when she received copies of the messages alongwith plaint.
4.8 While replying on merits, also the similar defence has been taken which was taken by the defendant to the original suit. Thus, on the basis of these averments, defendants have sought dismissal of the present suit.
5. Replication to the written statements of defendants has been filed on behalf of the plaintiff. Plaintiff has reiterated and reaffirmed the contents of the plaint and prayed that the suit of the plaintiff may be decreed. From the pleadings of the parties, the following issues were framed on 19.03.2025:-
(i) Whether the present suit is not maintainable against defendant no.1 in view of ongoing insolvency proceedings? OPDs
(ii) Whether the plaintiff is entitled to the recovery for an amount of Rs.5,79,773/-? OPP
(iii) Whether the plaintiff is entitled for the interest on the recovery sought, if so, at what rate and for what period? OPP
(iv) Relief.
CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 12 of 52 PLAINTIFF'S EVIDENCE
6. In support of her claim, plaintiff has examined three witnesses. Plaintiff examined herself as PW1. In her evidence affidavit, PW1 has reiterated and reaffirmed the contents of the plaint and she has brought on record the following documents:-
(i) Original receipts issued on 25.09.2018 as Ex.PW1/1 and Ex.PW1/2.
(ii) Printout of emails dated 17.09.2018, and 26.09.2018 as Ex.PW1/3.
(iii) Printout of email dated 09.10.2018 as Ex.PW1/4.
(iv) Printout of email dated 11.10.2018 as Ex.PW1/5.
(v) Printout of Whatsapp Conversation between Ms. Sandeep Kaur and defendant no.2 as Ex.PW1/6.
(vi) Affidavit u/s 65-B of Evidence Act as Ex.PW1/7.
(vii) Office copy of legal notice as Ex.PW1/6.
6.1 PW2 Ms Neerja Chawla is the ex-employee of Mother's Pride School, West Punjabi Bagh, New Delhi. She deposed that he had sent an email dated 11.10.2018 to the plaintiff. She has brought on record the said email as Ex.PW2/1. PW1 was not cross examined on behalf of the defendants. The contents of her above email are as under:-
CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 13 of 52 "Dear Lenders It is w.e.f 10.10.2018 that I have resigned from Mother's Pride/Presidium and I am in no way liable or responsible for any transaction of investments. Henceforth, for further dealings and correspondence you are requested to please get in touch with the team in Punjabi Bagh that is led by Mr. Devendra Gupta husband of Mrs. Sudha Gupta.
Please note that as instructed by Mr. Devendra Gupta, I have only signed the documents although I was not involved in handling any money, in any manner whatsoever. In fact on many occasions, I have requested Mr.Gupta to refund your hard earned money but I have not been heard. I will cooperate and help to the best of my ability."
6.2 PW3 Sh. Deepak Giri is the Cashier from Presidium School, Dwarka. During his examination, this witness was shown the acknowledgment of promissory note Ex.PW1/2 which is stated to be bearing his signature, however, PW3 has denied that this document bears his signature. He deposed similarly regarding receipt of consideration of promissory note (Ex.PW1/1). He denied the suggestion that original of said documents were handed over to him by the plaintiff against which he gave the aforesaid acknowledgment to the plaintiff. He further deposed that in his absence, Mr. Nitin used to look after the account but this document also does not bear the signature of Mr. Nitin.
CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 14 of 52 DEFENDANT'S EVIDENCE 6.3 Defendant no.1 without any reason voluntarily stopped contesting the present suit from the stage of plaintiff's evidence as at the stage of plaintiff's evidence, she instructed her counsel for not representing her further in the present case. Thus, it is clear from the record that D-1 stopped participating in the present suit from the very material stage of the proceedings. D-1 also did not lead any evidence in support of her defence and she voluntarily chose not to further contest the matter, therefore, on 13.08.2025, she was proceeded exparte as she had failed to appear despite service of court notice.
6.4 In her defence, D-2 examined herself as DW1. She filed her evidence affidavit (Ex.DW1/A) wherein she reiterated and reaffirmed the contents of her written statement. Thereafter, DE was closed and the matter was fixed for final arguments.
6.5 I have heard the arguments from Ld.Counsel for plaintiff as well as Ld. Counsel for defendant no.2. During the course of arguments, Ld. Counsel for the plaintiff has relied upon the following Judgement:-
(i) Vidhyadhar Vs. Manikaao & Anr., (1999) 3 S.C.C 573
(ii) Wahid Ahmed Vs. State, 2011 SCC OnLine Del 3387 CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 15 of 52
(iii) State of U.P. Vs. Nahar Singh (dead) & Others (1998) 3 Supreme Court Cases 561.
6.6 Ld. Counsel for the defendant no.2 has relied upon the following case laws:-
(i) Vivek Automobiles Ltd. Vs. Indian Inc (2009) 17 SCC
657.
(ii) Shri Gurudatta Sugars Marketing Pvt.Ltd. VS. Prthviraj Sayajirao Deshmukh & Ors, (SLP(Crl.) Nos. 8849-8850 of 2023.
(iii) Rajesh Jain Vs. Ajay Singh (2023) 10 S.C.C 148
(iv) J.C.Flowers Asset Reconstruction Pvt.Ltd. Vs. Mrs. Raj Rani Gupta (IA No.1922(ND)/2025 in CP(IB)-930(ND)/2022.
My issues wise finding is as under:-
ISSUE NO.1 (1) Whether the present suit is not maintainable against defendant no.1 in view of ongoing insolvency proceedings? OPDs.
7. This issue has become redundant as after framing of the issues, two applications were filed by defendant no.1 seeking dismissal of the present case, in view of the ongoing IBC proceedings against her before the Hon'ble NCLT. Both CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 16 of 52 these applications were dismissed vide separate orders dated 25.04.2025 and 02.08.2025. Since it has already been held vide order dated 02.08.2025 that the present proceedings are not barred in view of the relevant provisions of IBC, therefore, under these circumstance, it is held that this issue has become infructuous and same is therefore being disposed off as infructuous.
ISSUE NO.2 (2) Whether the plaintiff is entitled to the recovery for an amount of Rs.5,79,773/-? OPP
8. The onus to prove this issue was on the plaintiff. As per plaintiff, she is a teacher in Prudence School (earlier known as Presidium School) Dwarka, New Delhi and D-1 was running various schools at different places in and around Delhi under the name and style of Mother's Pride and Presidium School and all these school were managed by Mr. Devendra Gupta and Mrs. Sudha Gupta through their Marvel Group of Delhi. As per plaintiff, defendants alongwith Sh.Devendra Gupta, Smt.Sudha Gupta and Mrs. Neerja Chawla had initiated a scheme to collect money from the employees of Presidium and Mother's Pride School. They lured them by promising higher returns and when they showed their reluctance, they were coerced by D-2 (Smt.Sarita Sayal) alongwith aforesaid CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 17 of 52 persons. Thus, as per plaintiff, she deposited a sum of Rs.4,00,000/- against which D-2 issued the promissory note and the receipt dated 25.04.2016 on behalf of the proprietorship firm of D-1 by virtue of which an undertaking was given by D-2 to repay the said amount alongwith 14% p.a. interest. As per plaintiff, the defendants paid the accrued interest to the plaintiff till January 2018 and thereafter, they stopped paying the same on the pretext of non availability of funds. Despite assurance by the defendants, the same was not paid. In September 2018, plaintiff needed money, therefore, she made a request for refund of money through email dated 17.09.2018 to the office bearers of M/s Mother's Pride and whereupon she was instructed to surrender the promissory note on 25.09.2018 with their authorized person Mr. Deepak Giri who was posted as Fee Manager of Presidium School, Dwarka, New Delhi which was received by him against the acknowledgment. Plaintiff was promised that she will be given her money within 15 days, however, the same was not paid. In this regard, a colleague of plaintiff qua her refund as well as refund of the plaintiff communicated with defendant no.2 Smt. Sarita Sayal through whatsapp on her mobile phone numbers i.e. 9810027383 and 7838654021, however, her money was not returned. Initially, the plaintiff has filed the present suit against five defendants who were arrayed as under:-
CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 18 of 52
1. M/s Mother's Pride 11/77, West Punjabi Bagh New Delhi-110026
2. Mr. Devendra Gupta c/o M/s Mother's Pride 11/77, West Punjabi Bagh New Delhi-110026
3. Ms. Sudha Gupta C/o M/s Mother's Pride 11/77, West Punjabi Bagh New Delhi -110026
4. Ms. Neerja Chawla C/o M/s Mother's Pride 11/77, West Punjabi Bagh New Delhi-110026
5. Ms. Sarita Sayal C/o M/s Mother's Pride 11/77, West Punjabi Bagh New Delhi-110026 8.1 The suit was contested by all the aforementioned defendants. D-1, D-2, D-3 and D-5 filed their joint WS and D-4 filed her separate WS. Since it was mentioned in the written statement that the brand 'Mother's Pride' is owned by the company M/s Mother's Pride Education Personna Pvt.Ltd., thus, the said company was also impleaded to the original proceedings as D-6 and a separate WS was filed on its behalf.
During pendency of proceedings, it was informed by the Ld. Defence Counsel that the liquidation proceedings are going on CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 19 of 52 against D-6 before Hon'ble NCLT and a moratorium is operating. In the meantime, the present case alongwith several other cases pertaining to the entity of Mother's Pride were transferred to this Court and in the present case also the name of the concerned entity which had taken the aforesaid amount from the plaintiff was ascertained through the bank concerned and it was informed that M/s Mother's Pride is the proprietorship concern of Smt. Raj Rani Gupta which claim was also made by the defendants no.1,2,3 & 5 in their joint written statement. Thus, Smt. Raj Rani Gupta was impleaded as D-1 being the proprietor of M/s Mother's Pride. Since Smt. Sarita Sayal stated to have issued the relevant promissory note and receipt and therefore, she was retained and arrayed as D-2 and all other defendants besides the M/s Mother's Pride and Smt. Sarita Sayal who were originally impleaded as defendants were deleted. Thus, the present proceedings have been conducted only against aforesaid two defendants namely Smt. Raj Rani Gupta being proprietor of Mother's Pride and defendant no.2 Smt.Sarita Sayal being the AR of the Defendant no.1.
8.2 Perusal of the record shows that according to plaintiff, the subject deposit was accepted by defendant no.2 who also issued a promissory note in this regard being authorized representative of defendant no.2. As per claim of the CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 20 of 52 plaintiff, in order to channelize the deposits from the plaintiff and from other teachers, Sh. Devendra Gupta, Smt. Sudha Gupta, Ms. Neerja Chawla and defendant no.2 (Smt. Sarita Sayal) have played an active role. According to plaintiff, she alongwith other teachers were coerced by aforesaid persons to make the aforesaid deposits, though, simultaneously, they were lured with the lucrative interest on the said deposits. Perusal of the original written statement as well as the written statement filed by D-2 to the amended plaint shows that defendant no.2 has denied her relations with D-1. She claimed that she was an employee in the Presidium School, Sonipat and she had no connection with M/s Mother's Pride which firm was having its office at 11/77, West Punjabi Bagh, New Delhi-110026. Thus, it is clear that D-2 has claimed that she had no connection with D-1 or her proprietorship concern namely M/s Mother's Pride. She also claimed that she has never issued the subject promissory note and receipt and the same are forged and fabricated documents. Thus, under these circumstances, firstly, it is to be seen whether plaintiff has brought sufficient evidence on record to establish her claim that she had deposited the aforesaid amount with defendant no.1 through defendant no.2 who was the Authorized Representative of D-1.
8.3 In order to prove her claim, plaintiff has examined herself as PW1 and in her evidence, she has reiterated all her CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 21 of 52 claim made by her in the plaint. Besides, she has also brought on record the copy of receipt and promissory note dated 25.04.2016 as Ex.PW1/1 & Ex.PW1/2 respectively. Besides, she has also brought on record certain emails written by her to several persons related to the entity M/s Mother's Pride. She has also brought on record the whatsapp chat which had taken place between her colleague (Smt. Sandeep Kaur, the plaintiff in the suit titled as Sandeep Kaur Vs. Smt. Raj Rani Gupta & Anr, Suit No. CS(COMM)/267/2020) and defendant no.2 on two mobile phone numbers i.e. 9810027382 and 7838654021.
8.4 It is clear from the record that since the time, D-2 filed her written statement, she always claimed that she has no concern with D-1 or her proprietorship concern. She has also raised the similar claim in her WS to the amended plaint. Thus, it is to be seen whether she was actually having any relation or connection with D-1 or not. Perusal of the record shows that plaintiff had initially filed the present suit against aforementioned five defendants which includes Mr. Devendra Gupta and Ms. Sudha Gupta who are admittedly none else but the son and daughter-in-law of D-1. It is clear from the record that summons of the suit were issued to all the defendants at the address i.e. 11/77, West Punjabi Bagh, New Delhi-110026 and they had filed their joint written statement (Except D-4). It is also admitted position of fact that firm M/s Mother's Pride is CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 22 of 52 also operating from the same very address and it is clear from the record that defendant no.2&3 (erstwhile) are also operating from the same address. It is also clear that D-2 (Smt. Sarita Sayal who has originally arrayed as D-5) was also served at this address and she also filed her joint written statement alongwith other defendants and she has also mentioned the similar address to be her address. It is further clear from her amended written statement that D-2 claimed that she had no connection with M/s Mother's Pride situated at the aforesaid address. The aforesaid defence taken by D-2 seems to be apparently without any substance as it is admitted position of fact that she was served with the summons of the present suit at the address which according to her is the address of D-1. Thus, in case D-2 would not be connected to D-1 then under these circumstances, the summons issued against her would not have been accepted at the aforesaid address. Furthermore, she would not have filed a joint written statement alongwith other family members of D-1 and she would not have mentioned her same address in her previous affidavit. In case, D-2 would not have had any connection with D-1 or would not be working with D-1 or with the other entities of her aforesaid other family members then the summons issued against her would have been returned by mentioning that Smt. Sarita Sayal is neither their employee nor she has any connection with the firm of D-1, however, not only the summons were accepted but a joint CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 23 of 52 written statement was filed by D-2 (originally D-5) alongwith other defendants. In case, D-2 would not have had any connection with the subject matter then D-2 would have sought her deletion from the present proceedings instead of filing her written statement. It is further clear from her cross examination that during her cross examination, she made all efforts to deny even the fact that she knows Ms. Sudha Gupta, Sh.Devendra Gupta and Ms.Raj Rani Gupta which is clear from following part of her cross examination:-
"Q: I put to you that the trustees of Presidium Education Charitable Trust are the persons closely related to Devendra Gupta and his mother Smt.Raj Rani Gupta? What you have to say?
A. I do not know.
Q. I put to you that the schools under the name of Mother's Pride and Presidium were being run by Ms. Sudha Gupta? What you have to say?
A. No."
8.5 Though D-2 made all her efforts to deny her relation with them, however, it is clear that in her original written statement, it was categorically mentioned that she is the confidante of D-3 (Smt. Sudha Gupta). The relevant portion of WS is reproduced as under:-
"It is submitted that the said suit has been a frivolous litigation initiated by the plaintiff in collusion with and at behest of Shri G.S.Matharoo now the Chairman of CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 24 of 52 the Prudence Schools to harass the defendants by arraying defendant no.2 husband of defendant no.3 who is an Honorary Chairperson of the brand Mother's Pride as well as their confidante as defendant no. 5. It is submitted that defendant no.4 who is now also employed in the Group running the Prudence Schools has been arrayed as a party in order to mislead the Hon'ble Court."
8.6 During her cross examination, she also showed her ignorance about the fact that the Mother's Pride as well as Presidium Schools were being run by the same management. Thus, it is clear that since beginning D-2 has tried to establish that she has no connection with the proprietorship concern of D-1 as well as her son and daughter-in-law who were also managing the affairs of the company which owns the brand name 'Mother's Pride' and with whom admittedly, she was closely associated. It is further clear from the record that D-2 again filed a joint written statement (after amendment) alongwith D-1 (Smt. Raj Rani Gupta) which also shows that she was closely associated not only with Ms. Sudha Gupta and Sh.Devendra Gupta but defendant no.1 and her firm M/s Mother's Pride situated at 11/77, West Punjabi Bagh, New Delhi-110026. Furthermore, as per her cross examination, she had worked for a considerably long period with M/s Mother's Pride, however, she again tried to show that she is unaware of the names of the persons who were managing the said entity.
CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 25 of 52 Though, during cross examination, she also showed her ignorance that same management was operating the schools under the name of Mother's Pride and Presidium, however, it is clear that in the first written statement, it was categorically admitted that D-3 Ms.Sudha Gupta is the promoter of the M/s Mothers' Pride and Presidium group. During her cross examination, she admitted that she had filed her aforesaid written statement on 06.04.2021. Thus, it is clear that D-2 is fully aware of the defence taken by all the defendants jointly in the said WS and it is clear that though in the said WS itself, it has been admitted that both the schools were being promoted by the same group and run by the same management with one another person, however, D-2 has made all efforts to establish that she has had no relations with D-1.
8.7 It is further clear that at the stage of plaintiff's evidence, D-2 has changed her stance completely and here through a direct suggestion to the plaintiff/PW1, D-2 admitted that she is an employee of M/s Mother's Pride. It seems that defendant changed her defence as in the amended WS, D-2 has also tried to take shelter of the provisions of section 230 of Indian Contract Act which legal issue will be discussed subsequently. Thus, it is clear from the aforesaid discussions that D-2 was employee of D-1 and since D-2 has taken a false stand regarding the main claim of the plaintiff that deposits CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 26 of 52 were made through her (D-2), therefore, keeping in view of her false defence, her entire defence is also liable to be disbelieved coupled with the fact that the testimony of the plaintiff as far as her claim against D-1 is concerned also remained unrebutted.
8.8 It is clear from the record that after defendant no.1 was impleaded, she filed her written statement and she has denied her relations with D-2. She has also denied that she ever accepted any deposit from plaintiff, however, it is clear that at the stage of evidence, she instructed her counsel not to represent her further in the present case. It is clear that thereafter, D-1 did not contest the present suit despite service of Court Notice. Thus, it is clear that testimony of PW1 remained unrebutted as far as the claim made by the plaintiff against D-1 is concerned. Furthermore, it is clear that D-1 chose not to contest the present case from the material stage of the proceedings (i.e. evidence) which shows that D-1 did not want to withstand the test of cross examination, therefore, under these circumstances an adverse inference should also be drawn against her that since the plaintiff has raised a genuine claim against her, therefore, she did not want to face the test of cross examination. Thus, under these circumstances, the claim of the plaintiff, as far as D-1 is concerned, should be deemed to have been admitted as remained completely unrebutted. Thus, under these circumstances also the claim of the plaintiff is CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 27 of 52 liable to be accepted that D-1 had accepted the deposits through D-2. It is also to be assumed to be correct that after accepting the subject deposit, D-1 had paid the requisite interest amount to the plaintiff for around 18 months. Thus, under these circumstances, it is to be assumed that D-1 had accepted the deposit through D-2 and in this regard she had got issued the promissory note Ex.PW1/2 through D-2.
8.9 Coming back to the case of D-2, it is clear from the record that there are several other aspects of the matter which shows that D-2 was directly involved in channelizing the deposits which are being discussed here one by one.
8.10 Plaintiff has claimed that in order to recover her money, she alongwith her colleague Smt. Sandeep Kaur had been pursuing the D-2 through whatsapp chat on mobile nos. 9810027382 and 7838654021. Smt. Sandeep Kaur was making request to D-2 for refund fo her money as well as money of the plaintiff. Plaintiff has brought on record the said whatsapp Chat as Ex.PW1/4 which is reproduced as under:-
Mobile Phone no. 9810027382 "22/10/18 3:17 pm -Messages to this chat and calls are now secured with end-to-end encrypt. Tap for more info.
CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 28 of 52 12/11/18 13:55 pm - Sandeep Kaur: You are not picking up the phone since morning moreover you ensured that you will reply through text if you will not be able to attend the phone. We are waiting for your reply. Immediate response is awaiting.
Indu Goswami and Sandeep Kaur 12/11/18, 6:56 p.m - Sandeep Kaur: Waiting for your reply 12/11/18, 8:40 pm - 91 9810027382: Wait 18/11/18, 10:29 pm -Sandeep Kaur: Reminder for Sandeep Kaur and Indu Goswami's refund of investment.
25/11/18, 9:18 pm - Sandeep Kaur:
30/11/18, 4:55 pm - Sandeep Kaur:
03/12/18, 2:53 pm - Sandeep Kaur: Call anytime when you r free?
28/12/18, 6:18 pm - Sandeep Kaur : Reminder for Sandeep Kaur and Indu Goswami's refund of investment.
28/12/18, 6:19 pm -Sandeep Kaur: Kindly update us with the status about when we r getting money back 03/01/19, 10:58 am- Sandeep Kaur: No reply since long. Can you please update r status of investment. 04/01/19, 4:26 pm - Sandeep Kaur: Y r u not replying now?
02/02/19, 6:37 pm - Sandeep Kaur: ?????? 06/02/19, 2:24 pm- Sandeep Kaur: Waiting for your reply for today's meeting.
11/04/19, 5:01 pm- Sandeep Kaur: Waiting for your positive response.
11/04/19, 5:01 pm Sandeep Kaur: Can you please update us when we will be getting r money. 26/04/19, 4:48 pm- Sandeep Kaur: It's really disappointing that u don't reply to our messages and calls. Please update the status of our money. 06/05/19, 9:44 pm -Sandeep Kaur: U checked the message and still not replying CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 29 of 52 06/05/19, 9.45 pm-Sandeep Kaur: Pick up your phone. Update our status of our money 27/06/19, 9:23 pm -Sandeep Kaur: Waiting for your reply 27/06/19, 9:42 pm - Sandeep Kaur: when and where we can meet you as u are not sitting in redisson. 06/08/19, 4:52 am +91 98100 27382's security code changed. Tap for more info.
08/08/19, 3:32 pm +91 98100 27382's security code changed. Tap for more info.
27/11/19, 10:50 pm -Sandeep Kaur: When are we getting our money back????
28/12/19, 8:13 pm -Sandeep Kaur: Can you please reply???
30/12/19, 11:13 pm- Sandeep Kaur: Aap sab ke paise de rahe ho to hamare bhi de do. Apne promise bhi kiya Thai ki mein jaroor paise dilwaugi. Sandeep Kaur 30/12/19, 11:14 pm Sandeep Kaur: We r really helpless. please help us.
18/11/18, 10:34 pm Messages to this chat and calls are now secured with end-to-end encryption. Tap for more info.
18/11/18) 10:34 pm -Sandeep Kaur: Reminder for Sandeep Kaur and Indu Goswami's refund of investment.
28/12/18, 6:18 pm -Sandeep Kaur: Reminder for Sandeep Kaur and Indu Goswami's refund of investment.
28/12/18, 6:19 pm Sandeep Kaur: Kindly update us with the status about when we r getting r money back.
Mobile No. 7838654021 07/01/19, 10:39 am +91 78386 54021: I hv spoken to sir...he said whenever funds avlble 07/01/19, 1:26 pm- Sandeep Kaur: So when that day will come?
CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 30 of 52 07/01/19, 4:10 pm -Sandeep Kaur: You deleted this message 11/01/19, 3:53 pm-Sandeep Kaur: You deleted this message 11/01/19, 3:59 pm- Sandeep Kaur: ????? when we will get r money back?
21/01/19, 12:38 pm Sandeep Kaur: Y r you not replying? You only asked me to call after 2 days and I am calling since then.
28/01/19, 10:10 pm - Sandeep Kaur: We are calling u since long and now u r not picking ur phone. Now what should we think about this type of response from ur side.
28/01/19, 10:12 pm -Sandeep Kaur: U changed Ur logo right now but not giving response to r questions. 28/01/19, 10:12 pm Sandeep Kaur: Waiting for your call.
02/02/19, 6:36 pm Sandeep Kaur: ????? 06/02/19, 2:24 pm Sandeep Kaur: Waiting for your reply for today's meeting.
27/06/19, 9:24 pm -Sandeep Kaur: Waiting for your reply 28/12/19, 8:14 pm -Sandeep Kaur: Can you reply????"
8.11 Plaintiff has relied upon the same whatsapp chat conversation which stated to have taken place between her colleague Smt. Sandeep Kaur (who is the plaintiff in another case) and D-2 Smt. Sarita Sayal and this whatsapp chat has been brought on record by the plaintiff as Ex.PW1/6 and a requisite certificate u/s 65-B of Evidence Act has also been given by the plaintiff though the said certificate ought to have been issued by Smt. Sandeep Kaur as the said whatsapp chat CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 31 of 52 had taken place from her mobile phone, however, it is clear that at the time of tendering of the whatsapp chat as well as the certificate (Ex.PW1/6 and Ex.PW1/7) by plaintiff/PW1 in her evidence no objection was raised by the Ld. Defence counsel, therefore, in view of the settled law this objection should be deemed to have been waived off by the defendant. In this regard, this court is supported by the case law titled as Pramod E.K Vs. Louna V.C, (2019 AIR Kerala 85). Furthermore, it is also clear from the record of the present case which will be discussed a little later that D-2 has not disputed the veracity of the whatsapp chat and has only made an endeavour to show her ignorance about the whatsapp chat. She has not denied that the said whatsapp chat had not taken place and D-2 has taken a stand that the communication made through her official mobile phone number with the plaintiff was not made by her as she was on leave during the relevant period, however, the fact of the matter remained that the authenticity of the whatsapp chat has not been disputed by D-2.
8.12 As per whatsapp chat (Ex.PW1/6), a request for refund of the money was made to D-2 at her two mobile phone numbers and during the course of arguments, it was submitted by the Ld. Counsel for Plaintiff that phone no. 9810027382 is the personal phone number of D-2. Qua the said whatsapp chat, the similar averments have been made in the original and CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 32 of 52 amended plaint and it is clear that D-2 has simply denied the aforesaid contentions of plaintiff and she has furnished her explanation only qua exchange of whatsapp messages through her official mobile number, however, she has not given any reply qua the whatsapp chat which she had through her personal mobile number. It is clear from the whatsapp messages sent at the personal mobile number of D-2 that Smt. Sandeep Kaur had been making regular requests on her behalf as well as on behalf of plaintiff for seeking their money back. It is clear that on 12.11.2018, D-2 sent only one single reply i.e "WAIT". It is also clear that the said messages were sent during the period w.e.f 22.10.2018 to 28.12.2019 and it is clear from most the messages that plaintiff and her colleagues were seeking refund of their money and D-2 never disputed their claim that they had not deposited any amount with D-1 through her rather through one of the messages she asked them to wait for some more time. Firstly, it is clear that plaintiff and her colleague was not only having the official phone number of D-2 but also her personal mobile number which was only possible for the reason that the same was provided by D-2 herself to the plaintiff and her colleague otherwise there was no reason for both the aforesaid persons to seek refund of their deposit from D-2 through the whatsapp messages on her personal phone number. In case, either plaintiff or her colleague would have been a stranger to her or would be CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 33 of 52 making a baseless and false claim with her then under these circumstances, after the first message itself, D-2 would have categorically replied that she has no concern with the plaintiff or her colleague or their deposits, therefore, they should not send any message to her in future but it is clear that they made the said request for more than one year period and D-2 never rebutted their claim by sending the relevant reply.
8.13 It is further clear that after December 2018, from January 2019 itself, the plaintiff and her colleague started making the similar request to the D-2 on her official mobile phone number. These messages were sent in the month of January, Feb. and June 2019. As per plaintiff, regarding their claim, D-2 through a whatsapp message informed Smt. Sandeep Kaur that she has spoken to 'sir' and her 'sir' has informed that payment would be made whenever funds are available. In this regard, D-2 submitted that she had not sent the aforesaid messages and she was not aware of these messages and she only came to know about the same when copy of the said messages was filed by the plaintiff alongwith the plaint. She also submitted that from 10.12.2018 to 15.01.2019 she was on leave due to marriage of her daughter and therefore, she was unaware of the same. This court finds no substance in this defence as it is clear that the testimony of the plaintiff remained completely unrebutted in this regard, CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 34 of 52 thus, the entire evidence of the plaintiff qua this particular fact should be deemed to have been admitted by D-2. Secondly, it is clear that D-2 has not brought any evidence on record to show that she was actually on leave during the aforesaid period when the aforesaid message was sent to the plaintiff. Thus, under these circumstances, it cannot be assumed that D-2 had not sent the aforesaid message on the mobile phone of Smt. Sandeep Kaur. Furthermore, it is clear from these facts and circumstances that plaintiff (through her colleague) was not only contacting D-2 on her personal mobile number but she was also making similar requests to D-2 through her official phone number and it is clear from these messages that through these messages, plaintiff and her colleague made similar requests for refund of her money and it cannot be assumed that anyone from her office would send such a reply which is related to the subject matter. Furthermore, it is clear that D-2 had come to know about the same in the beginning of the year 2021 and thus, under these circumstances, in case the said message was sent by someone else then D-2 ought to have immediately made appropriate complaint to her official authorities about the same and it is clear that admittedly, she did not make any complaint. Thus, her inaction in this regard coupled with the fact of her non rebuttal to the whatsapp messages on her personal mobile number clearly shows that plaintiff and her colleague were making request to D-2 as they CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 35 of 52 had made their deposits with D-1 through D-2 only. It is also clear that Smt. Sandeep Kaur had also sent messages to D-2 (after 15.01.2019) on the same mobile phone number and admittedly, after 15.01.2019, she had joined her services, thus, at least rest of the messages must have been received by her and in case, Smt Sandeep Kaur would be stranger to her and had no concern with her then D-2 would have responded in the manner in which any other person would respond to the messages of a stranger. She should have asked the sender of the messages (Smt. Sandeep Kaur) for not making any request for seeking refund of their money as she does not have any concern with their deposits.
8.14 It is clear from the record that from the time of filing the first written statement by D-2 alongwith the erstwhile defendants (who were none else but the family members of D-1), D-2 has been claiming that she had no connection/ concern with the subject transaction or M/s Mother's Pride as she never worked with M/s Mother's Pride while it is clear that at the stage of plaintiff's evidence, D-2 took a complete U turn as during cross examination of Plaintiff, D-2 admitted that she is the employee of M/s Mother's Pride. Thus, it is clear that D-2 herself admitted that she was an employee of M/s Mother's Pride. Thus, under these circumstance, her entire defence that she had no concern with M/s Mother's Pride and CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 36 of 52 that she had never worked with M/s Mother's Pride at Punjabi Bagh is liable to be rejected . Thus, under these circumstances, it has to be assumed especially, keeping in view of the cross examination of PW1 that at the relevant time, D-2 was the authorized representative of the firm (M/s Mother Pride) of D-1 and she was actively participating in the functioning of the aforesaid firm. It is clear from the cross examination of plaintiff that she reiterated that D-2 being the AR of D-1 used to attend meeting of D-1 and it is clear that no suggestion was given to the plaintiff to rebut her aforesaid statement. The relevant portion of her cross examination is reproduced as under:-
"I knew Smt. Sarita Sayal is the authorized representative of M/s Mothers Pride deft no.1 as she used to attend meetings with the son and daughter in law of deft no.1. I do not have any documentary evidence in regard to show that Smt. Sarita Sayal and Sh. Deepak Giri were authorized representative of deft no.1".
"It is correct that Smt. Sarita Sayal is the employee of M/s Mothers Pride."
8.15 It is further clear that plaintiff also reiterated that she had deposited a sum of Rs.4,00,000/-with D-1 through D-2 and it is also clear that after she stated the said fact, again these facts were not rebutted by giving a relevant suggestion to the plaintiff/PW1. The relevant portion of cross examination of PW1 is as under:-
CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 37 of 52 "It is correct that the interest rate of the schemes were very attractive. I was not having any suspicion on the defts as I was already working as a Teacher in their organization. I had paid the amount to the defts in the name of M/s Mothers Pride. I do not know whether the amount paid by me was never transferred to the bank account of Smt. Sarita Sayal.
I was handed over the promissory notes in the school itself which were carrying signatures of Smt. Sarita Sayal. I deposited both the promissory notes with my school authorities."
8.16 It is further clear from her further cross examination that plaintiff also reiterated that she had handed over the promissory note with her school authorities (Mr. Deepak Giri) and again this fact was not rebutted by way of giving relevant suggestion to plaintiff/PW1. As per plaintiff, after she had submitted the original promissory note with her school authorities, she sought refund of her money by writing several emails to the office bearers of M/s Mother's Pride including Smt.Sudha Gupta. Besides, in this regard, Smt. Sandeep Kaur also sent whatsapp messages to D-2 and though, she sent a reply but her money was not refunded. It is clear that all these facts have not been disputed by D-2 during cross examination of plaintiff. Thus, as far as the factum of deposit of the money by the plaintiff with D-1 through D-2 is concerned same remained unrebutted. Besides, it also remained unrebutted that she had submitted her original promissory note CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 38 of 52 with her school authorities. Moreover, the claim of the plaintiff that she had submitted the promissory note with school authorities is also liable to be accepted as only after she had submitted the original promissory note, she was entitled to claim refund of her money from the defendants and that is why she, through her colleague was pursuing her refund by sending regular messages to D-2 on her aforementioned mobile phone numbers regarding which a detailed discussions have been made in the foregoing paras. In case, either the plaintiff would not have deposited the money with the defendants or she would not have submitted the original promissory note for processing the refund, the D-2 would have disputed the claim of plaintiff by sending appropriate reply to her messages. But as discussed, it is clear from the actions (inactions also) of D-2 that plaintiff had played her part by submitting the original promissory note alongwith receipt with the defendants through her school authorities and they were not coming forward to make the payment of her deposit rather D-2 gave an evasive reply to the plaintiff which shows that defendants were not inclined to refund the money to the plaintiff despite requests.
8.17 It is clear from the aforesaid discussions that D-2 has taken a false defence regarding her connection with D-1 or her family members which itself is sufficient to hold that she has taken this defence in order to evade her liability under the CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 39 of 52 present suit, thus, under these circumstances, the entire defence raised by the defendant is liable to be rejected and simultaneously, the entire claim made by the plaintiff regarding her subject transactions and also about the proceedings initiated by her for seeking refund of her money are liable to be assumed to be correct. Furthermore, in order to ascertain the veracity of the defence raised by the D-2, her conduct prior to the subject transaction as well as subsequent thereto is also a relevant factor to the present proceedings in terms of provisions of Section 6 of BSA (Sec.8 of Evidence Act) which reads as under:-
"Section 6- Motive, preparation and previous or subsequent conduct.
(1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. (2) The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person, an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
8.18 D-2 has claimed that she was never associated with D-1 and she had also not issued the subject promissory note, though her aforesaid defence has not been found CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 40 of 52 trustworthy, however, there are further various reasons for disbelieving her defence. Though, she has claimed that she had no concern with D-1 yet it is clear that a promissory note and receipt were issued under her specific name and according to D-2, both these documents are forged and fabricated documents and it is admitted position of fact that D-2 had come to know about these documents after she was served for the first time with the summons of the present suit. It is also admitted position of fact that she is facing similar trial in 10-11 cases. Thus, under the circumstances, it is clear that according to her, plaintiff has committed forgery by misusing her name. Thus, under these circumstances, D-2 ought to have taken appropriate legal action against plaintiff and the other persons who have allegedly committed forgery with her. In this regard, during her cross examination, she claimed that she made a complaint with PS Punjabi Bagh, however, it is clear that she has neither made the relevant submission in this regard in her written statement nor she has filed copy of the same on record. She also deposed that she is not aware about the status of her complaint. Though D-2 has failed to prove that she has made any complaint in this regard and even though, it is assumed yet her aforesaid conduct shows that D-2 has not taken appropriate action against the alleged offenders. It cannot be assumed that D-2 would not actively pursue her complaint if several persons have forged valuable documents in her name involving the CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 41 of 52 liabilities of lacs of rupees. It seems that D-2 had filed the said complaint as an afterthought and in order to create a defence to escape the liability under the present suit. According to D-2, plaintiff is one of the offenders who have forged similar kind of promissory note under her name, thus, if this would have been a factual position then D-2 would have initiated criminal as well as civil proceedings against the plaintiff as at least particulars of one of the alleged offender was very well available with D-2. It is clear that despite knowing about the alleged forgery, D-2 remained completely dormant and till date D-2 has not initiated any legal proceedings against plaintiff or any other person for the same which shows that this defence has been raised by the defendant as an after thought and there is no substance in it. During the course of arguments, the point that there is a stark difference between the signatures allegedly appended by D-2 on the promissory note and her actual signatures, was vehemently pressed by the Ld.Defence counsel. As discussed in detail in the foregoing paras that the promissory note has been issued by D-2 and even if D-2 has issued the same under different signature yet the factual position remains the same that it has been issued by D-2 and her conduct post revelation of alleged forgery also speaks for itself. Furthermore, in case, the promissory note would actually have been a forged and fabricated document and no action would have been initiated by the police authorities on her CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 42 of 52 complaint then she would have pursued her further remedy before the appropriate court but she did not do the needful as she was fully aware that it was she who had issued the subject promissory note (with receipt) and plaintiff has raised a genuine claim through the present suit on the basis of subject promissory note.
8.19 It is further clear from the cross examination of PW1 that entire claim of the plaintiff has been admitted by defendant by putting several questions related to her claim. It is clear from the cross examination of plaintiff that here D-2 has admitted that D-1 had sought investment from the teachers of their schools and according to D-2, plaintiff also made the said deposit as the interest rate was very attractive. It is also clear from these questions that here D-2 has clearly admitted that she was not only associated with D-1 and her family members but she was also fully instrumental in channelizing these deposits from the concerned school teachers:-
"Presently, I am working in Prudence School at Dwarka Sector 16B (Vol. Previously it was known as Presidium). I never worked with any other branch of Presidium School. Ms. Sarita Syal is not my colleague (Vol. She is associated with the head office of our school).
I came to known about the investment schemes of the deft through the teachers meetings in which Ms. Sudha Gupta, Mr. Davinder Gupta and Smt. Sarita Sayal and CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 43 of 52 Ms. Neerja Chawla used to remain present. (Vol.-all these persons used to inform the said meeting about the investment schemes.
The investment done by me was not against any specific project and we were forced to invest the amount in the schemes. I did not receive any written communication regarding the investment in schemes from the school authorities or from Ms. Sudha Gupta, Mr. Davinder Gupta and Smt. Sarita Sayal and Ms. Neerja Chawla. Many of the teachers made investments in the schemes. It is correct that all the teachers of the school did not investment in the scheme."
8.20 As far as deposit of amount of Rs.4,00,000/- is concerned, in this regard, plaintiff deposed that she has deposited the said amount (by two cheques) through defendant no.2. As discussed, in order to ascertain the entity concerned, which had encashed the cheques given by plaintiff, the relevant bank record was summoned alongwith the particulars of the account holder and it is clear from the statement of account filed by the bank concerned that one of the cheques of Rs.3.00 Lac was encashed by the proprietorship concern of D-1. Though, the complete statement of bank account has not been placed on record, however, in regard to the aforesaid investment by the plaintiff with the defendant, the promissory note (receipt) itself is the acknowledgment of the said amount, therefore, no other document is required to prove the deposit of the aforesaid sum by plaintiff with D-1. As far as the factum of CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 44 of 52 submission of original promissory note and receipt with school authorities are concerned, same fact also remained unrebutted. Furthermore, the fact that she had already submitted the relevant original documents for seeking the refund is also clear from the fact that after submitting these requisite documents with the school authorities of defendants, the plaintiff and her colleague started pursuing their refund. It is clear that none of the material part of the testimony either made in the examination in chief or in cross examination has been disputed as no suggestion was given to PW1 qua the same, thus, the statement of plaintiff regarding making the aforesaid deposit and the manner in which the same was made has not been disputed. Thus, it is clear that plaintiff through her testimony has proved that she has made the aforesaid deposit with D-1 through D-2.
8.21 There is one another material aspect of the matter which further strengthens the case of the plaintiff that plaintiff had deposited the money with defendant no.1 as claimed by her. As per plaintiff,Mr. Devendra Gupta, Mrs. Sudha Gupta and Mrs. Neerja Chawla had lured the plaintiff and other employees to deposit their money with their entities and when defendants were not refunding her money, she wrote several emails to the officials of defendant no.1 as well as her other family members and PW2 Mrs. Neerja Chawla had sent the CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 45 of 52 aforesaid reply (Ex.PW2/1) to her email. It is clear from the contents of this email that plaintiff had deposited her money with the defendants and she expressed her inability to help the plaintiff in getting refund of their money as she had already resigned from Mothers Pride/Presidium and she requested the plaintiff to contact Mr. Devendra Gupta and Mrs. Sudha Gupta for refund of her money. It is clear that PW2 was not cross examined on behalf of the defendants and her testimony remained completely unrebutted. Thus, plaintiff has also proved that she had deposited the aforesaid amount with defendant no.1 through Defendant no.2 through the unrebutted testimony of PW2 also.
8.22 In view of these discussions, it is held that plaintiff had deposited a sum of Rs.4,00,000/- with the defendant no.1 through D-2 who was the authorized representative of D-1 and against which the promissory note Ex.PW1/2 and receipt Ex.PW1/1 were executed by D-2. Thus, under these circumstances, D-1 is liable to repay the aforesaid amount to the plaintiff. As far as the liability of D-2 is concerned, in this regard, in alternate, certain submissions have been made by Ld. Counsel for D-2. Ld. Counsel for D-2 submitted that though D-2 had no concern with the subject deposit yet D-2 who said to be an agent is not liable to pay the claimed amount in view of the provisions of Section 28 of Negotiable Instrument Act CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 46 of 52 (NI Act) and also in terms of the provisions of Section 230 of Contract Act. The provisions of Section 28 of NI Act and section 230 of Contract Act reads as under:-
Section 28 of N.I. Act.
"28. Liability of agent signing--
An agent who signs his name to a promissory note, bill of exchange or cheque without indicating thereon that he signs as agent, or that he does not intend thereby to incur personal responsibility, is liable personally on the instrument, except to those who induced him to sign upon the belief that the principal only would be held liable."
Section 230 of Contract Act
230. Agent cannot personally enforce, nor be bound by, contracts on behalf of principal.--
In the absence of any contact to that effect an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them.Presumption of contract to contrary.-- Such a contract shall be presumed to exist in the following cases:--
(1) where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad; (2) where the agent does not disclose the name of his principal;
(3) where the principal, though disclosed, cannot be sued.
CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 47 of 52 8.23 It is clear from the aforesaid discussions that D-2 was the authorized representative of D-1 and this fact is also clear from the copy of promissory note Ex.PW1/2. The contents of the promissory note are also relevant in order to see whether D-2 is also liable to repay the claimed amount alongwith D-1. The contents of promissory note are reproduced as under:-
"Demand Promissory Note On surrender of the demand promissory note in the name of Mr/Ms. Indu Goswami S/W/D/H/C/O Manish Giri r/o A-4/7, Phase-II, Shyam Vihar, Najafgarh, I, Sarita Sayal, Authorized Signatory, M/s Mother's Pride promise to pay Rs.4,00,000/-(Rupees four lac only) on behalf of the company, together with interest at the rate of 14.00% per annum with interest compounded on monthly basis, payable HALF YEARLY for the amount received to the holder of demand promissory note within three months from the date of surrender.
Duration: 12 months. For Mother's Pride
(Authorised Signatory
(Sarita Sayal)
Authorized Signatory"
8.24 It is clear from the provisions of section 28 of NI
Act that an agent who has signed the promissory note would not be personally liable to pay the amount of promissory note if he has indicated that he is simply signing the promissory note in the capacity of an agent and that he does not intend to incur personal responsibility qua the same, however, in the present CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 48 of 52 case, D-2 did not indicate that she is simply signing the promissory note as authorized representative of D-2. Moreover, here in the present case, the situation is altogether different as in the present case, on one hand, D-2 did not indicate that she would not be personally responsible for the payment received by her on behalf of D-1 and simultaneously, on the other hand, she herself undertook the responsibility of making the payment of the amount received from the plaintiff. Thus, under these circumstances, in view of the provisions of section 28 of NI Act, defendant no.2 is also personally liable to repay the amount received by her from the plaintiff.
8.25 It is further clear that Defendant Sarita Sayal is also liable in view of the exception of the provisions of Sec.230 of Contract Act, as though, she had issued the promissory note in the name of M/s Mother's Pride, however, she had not disclosed the name of her Principal i.e. Smt. Raj Rani Gupta. It is clear that since beginning, D-2 Smt. Sarita Sayal always maintained her claim that she is not having any concern with Smt. Raj Rani Gupta and also her firm M/s Mother's Pride. The promissory note was issued in the name of M/s Mother's Pride, however, it is clear from the written statement originally filed by the company MPEPPL that as per them, the Mother's Pride is the brand name of their company which is being used by several entities. Therefore, under these CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 49 of 52 circumstances, if D-2 wanted to seek exemption from the liability under the present suit, she ought to have specifically disclosed the name of the proprietor of the said firm on whose behalf, the investment was accepted by her through the subject promissory note even if she had not specified the same at the time of issuance of promissory note. However, it is clear that defendant did not do the needful and the name of her principal could have been ascertained by this Court by summoning the relevant documents from the bank concerned. Keeping view of the facts and circumstances discussed above, it is most respectfully observed that the case laws cited by the Ld. Defence counsel are not applicable to the peculiar facts and circumstances of the present case.
8.26 In view of the facts and circumstances discussed above, it is held that both the defendants (D-1 and D-2) are jointly and severally liable to repay the amount of Rs.4,00,000/- to the plaintiff. Issue no.2 is decided accordingly.
ISSUE NO.3 Whether the plaintiff is entitled for the interest on the recovery sought, if so, at what rate and for what period? OPP CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 50 of 52
9. It is clear from the facts and circumstances of the present case that defendants have not paid the due amount despite requests, therefore, defendants are liable to pay the pre- suit interest on the due amount and that can be awarded in terms of Section 3 of Interest Act. In view of Section 3 of Interest Act, the plaintiff can be awarded pre-suit interest in terms of the contract between the parties if the same is not found unreasonable. PW1 has brought on record copy of relevant promissory note Ex.PW1/2 which clearly shows 14% p.a. interest was agreed to be paid on the investment of plaintiff and even defendants had paid the interest @ 14% p.a. for a period of about 18 months on the said deposit. Thus, it is clear that defendants had agreed to pay the aforesaid rate of interest to the plaintiff and therefore, it is held that plaintiff is entitled to claim the pre-suit interest at the same rate i.e. 14% p.a. w.e.f. 1st February 2018.
9.1 As far as the claim of pendentelite and future interest is concerned, in view of provisions of Section 4 of Interest Act and Section 34 of CPC, the same is the discretion of the Court. Thus, keeping in view of the totality of facts and circumstances, plaintiff is awarded pendentelite and future interest @ 9% p.a. Issue no.3 is decided accordingly.
CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 51 of 52 RELIEF
10. In view of the aforesaid discussions and issues wise findings, the suit of the plaintiff is decreed for a sum of Rs.4,00,000/- (Rs.Four Lac only) against the defendants. Plaintiff is awarded pre-suit interest @ 14% p.a. w.e.f. 01.02.2018 till 16.10.2020. Besides, plaintiff is also awarded pendentelite and future interest @ 9% p.a. w.e.f 17.10.2020 till realization. Plaintiff is also awarded the cost of the suit. Plaintiff is also awarded the pleader fee of Rs.11,000/-. Decree sheet be prepared accordingly.
File be consigned to record room.
Digitally
Announced in the Open AJAY AJAY GUPTA
signed by
Date:
Court on 24.09.2025 GUPTA 2025.09.24
16:18:21
+0530
(Ajay Gupta)
District Judge (Commercial Court)-05
West, Tis Hazari Courts Extension
Block, Delhi/24.09.2025
CS(Comm)/266/2020 Mrs.Indu Goswami Vs. Smt.Raj Rani Gupta etc Page no. 52 of 52