Delhi District Court
M/S Strategic Overseas Pvt. Ltd vs M/S M-Tech Developers Ltd on 20 July, 2018
In the court of Shri Naresh Kumar Laka
Additional District Judge - 03, South-east,
Saket Courts, New Delhi
CS No. 209662/16
(old no. 67A/17)
In the matter of:
M/s Strategic Overseas Pvt. Ltd.,
Through its Director,
Sh. Tarun Kumar Gupta,
House No. 1, Pocket-8A,
Manav Chowk, Sector-15, Rohini, Delhi-110085
............. Plaintiff
VERSUS
M/s M-Tech Developers Ltd.,
Through its Managing Director/
General Manager/Principal Officer,
Regd. Office: ANS House,
144/2, Ashiram, Mathura Road, New Delhi-110014
............... Defendant
[7 YEARS OLD CASE]
Date of Institution : 17.01.2011
Final arguments concluded : 25.05.2018
Date of decision : 12.07.2018
Result : Dismissed
SUIT FOR RECOVERY OF RS.64,96,165
JUDGMENT
The present suit has been filed by the plaintiff against the defendant for recovery of Rs. 64,96,165 along with pendente lite and future interest @18% per annum by claiming that defendant is a real estate company and the plaintiff had invested Rs. 51,95,000/-
CS No. 209662/16 Page No. 1 of 12M/s Strategic Overseas Pvt. Ltd., vs. M/s MTech Developers Ltd. for buying 50 flats in the proposed township at Neemrana (Rajasthan) and it was agreed that if the defendant fails to obtain necessary permission from the Government by 31.08.2007, he will give back Rs. 91,90,000. The plaintiff further claimed that since no permission was obtained, the defendant was liable to pay the said amount but instead a Memorandum of Buy-Back dated 31.09.2007 was offered for allotment of two flats on project in Dharuhera, Haryana with an exit option at the end of one year. The plaintiff was also given an option to retain the said flats by paying balance amount of Rs. 18,12,500/-.
2. After acceptance of the said offer, the plaintiff was issued two allotment letters in respect of two flats and for the balance amount, the defendant issued post dated cheques of Rs. 55,95,000. It is claimed that out of 11 cheques, only one cheque was cleared and rest cheques were returned unpaid. Thereafter, the plaintiff sent a legal notice but the defendant did not pay the balance amount of Rs. 43,45,000/-. However, subsequently the defendant paid Rs.10 lacs and net balance amount of Rs. 33,45,000 is still due. It is further claimed that the plaintiff is also entitled for Rs. 46,73,500 as per the exit option exercised by the plaintiff. Accordingly, the plaintiff has claimed total amount of Rs. 64,96,165/- as well interest @ 18% per annum.
CS No. 209662/16 Page No. 2 of 12M/s Strategic Overseas Pvt. Ltd., vs. M/s MTech Developers Ltd. Defence in brief
3. Defendant contested this case by filing written statement wherein it is alleged that there was no such contract of taking of amount towards buying of 51 flats and in fact it is claimed that only a Memorandum of Buy-back was entered into between the parties on 21.09.2017 wherein the plaintiff had booked two flats. The defendant also disputed the claim/allegations of the plaintiff. It is also disclosed that in the criminal case filed under Section 138 of Negotiable Instrument Act by the plaintiff, the defendant had already settled the entire dispute and paid the settled amount and, as such, there is no further liability and the suit is liable to be dismissed which has been filed by concocting a story.
Replication, issues & trial
4. Plaintiff filed replication/rejoinder to the written statement wherein the averments of the plaint were reiterated and the allegations of the written statement were controverted. From the pleadings of the parties following issues were framed on 09.09.2013:
(1) Whether the plaintiff is entitled to the relief of recovery of Rs. 64,96,165 from the defendant as per Prayer No. (a)? OPP (2) Whether the plaintiff is entitled to any pendente-lite and future interest? If yes, at what rate and for what period? OPP (3) Whether the plaintiff received a sum of Rs.
55,95,000 including a sum of Rs. 35,95,000 covered under Memorandum dated 21.09.2007 from the CS No. 209662/16 Page No. 3 of 12 M/s Strategic Overseas Pvt. Ltd., vs. M/s MTech Developers Ltd.
defendant, in settlement arrived before the Metropolitan Magistrate, Rohini, Delhi and consequently withdrawn its complaint(s), if so, its effect? OPD (4) Whether the present suit is barred by limitation? OPD (5) Whether the suit is hit by the provisions of Order 7 Rule 11 CPC? OPD (6) Whether the suit has been filed by a person without any authority to institute the same and is thus not maintainable? OPD
5. I have heard arguments from Sh. Rohit Dahiya and Sh. Shailender Dahiya, Ld. Counsel for plaintiff and Sh. Raman Duggal and Ms. Aayushi Gupta, Ld. Counsel for the defendant. Record perused.
REASONS FOR DECISION Issue No. 1: Whether the plaintiff is entitled to the relief of recovery of Rs.64,96,165 from the defendant as per prayer No.
(a)? OPP
6. The plaintiff has claimed recovery of amount of Rs.64,96,165 on the basis of two transactions i.e. one for buying of 50 flats at Neemrana initially and second when the first transaction failed, a new transaction for buying two flats at Dharuhera. It is admitted case that the defendant has taken an amount of Rs. 51.95 lacs in January, 2007 from the plaintiff but the defendant claimed that the said amount was taken towards the second transaction only CS No. 209662/16 Page No. 4 of 12 M/s Strategic Overseas Pvt. Ltd., vs. M/s MTech Developers Ltd. and there was no first transaction ever contemplated or entered into between the parties.
7. From the evidence led on record, it is proved that the plaintiff did not place on record any written document showing existence of first transaction. When the plaintiff had invested the huge amount of Rs. 51.95 lacs, there must be some written document. But when no such document was placed on record, the onus to prove the said fact was very heavy upon the plaintiff.
8. As per the claim of the plaintiff, the plaintiff had given Rs.51.95 lacs to the defendant who is a Builder on the condition that the defendant will give 50 flats within one year and if he fails to do so, the defendant will return the amount of Rs. 91.90 lacs. The Ld. counsel for the defendant argued that it is unbelievable that for the investment of Rs. 51.95 lacs, any person could give the amount of Rs. 91.90 lacs within a short period of 7 months or one year. In view of figure of alleged huge return of Rs.40 lacs within a period of 7 months or one year, I find that the said return is highly improbable and in the absence of execution of any written document, it becomes only an imaginary thing.
9. The defendant claimed that the Memorandum of Buy- back was entered into between the parties in September, 2007 whereby a deal was finalized for selling of two flats to the plaintiff CS No. 209662/16 Page No. 5 of 12 M/s Strategic Overseas Pvt. Ltd., vs. M/s MTech Developers Ltd. with the condition that the plaintiff will pay Rs. 35,95000 with exist clause. It was also agreed that if the plaintiff wants to retain the said flats, he will pay additional amount of Rs. 18,12,500 at the end of the year or if he wants to give back the said flats, the defendant will pay back Rs. 46,73,500. The plaintiff has also admitted the said transaction but it is alleged by the defendant that the said deal could not be finalized and ultimately the plaintiff was given back total amount of Rs.55,95,000 which includes the amount of Rs.51.95 lacs and the amount of Rs. 4 lacs which was given as loan to help the plaintiff who was in the need of money.
10. The plaintiff did not dispute the receipt of the said amount but it is claimed that the said amount was given not towards failure of the Memorandum of Buy back agreement but towards the settlement of both the aforesaid transactions. It is also claimed on record that defendant had given amount through various cheques which were got dishonored (except one cheque) and the plaintiff had filed a criminal case under Section 138 of the Negotiable Instrument Act and ultimately, the said case was settled and the defendant paid the only due amount which was alleged in the said case.
11. The Ld. Counsel for the plaintiff also added that the said amount was paid towards the settlement of the said criminal case of 138 NI Act only without prejudice to the rights of the plaintiff to claim further due. The plaintiff thus claimed that amount which is claimed CS No. 209662/16 Page No. 6 of 12 M/s Strategic Overseas Pvt. Ltd., vs. M/s MTech Developers Ltd. in the present case is different and not included in the said settlement. However, on the contrary, Ld. counsel for the defendant argued that the said case resolved all the disputes with regard to pending amount and no other amount is due. Both the parties relied in this regard on the statements of settlement as recorded in the concerned court of Ld. MM.
12 From the averments made in the complaint filed under Section 138 of the NI Act, it is seen that there are similar allegations as have been made in the present plaint. In the present case, the plaintiff had mentioned existence of two transactions i.e. the first transaction for buying of 50 flats and second transaction for buying two flats and same are the transactions alleged in the criminal case. Thus, it is clear that the said case was settled towards both the said two transactions, even if it is presumed that the first transaction was also in existence by specifically referring to the words, "Full and final settlement in respect of the present complaint case". Although, the plaintiff had reserved his right to claim further amount by using words, "Without prejudice to the rights" but the said claim can be allowed only when the plaintiff proves existence of certain due amount, to which he has failed prove in the present case.
13. It is also revealed that the Memorandum of Buy back was entered into between the parties in writing but there is no CS No. 209662/16 Page No. 7 of 12 M/s Strategic Overseas Pvt. Ltd., vs. M/s MTech Developers Ltd. mention with regard to previous alleged transaction, as claimed by the plaintiff and it also appears to be highly unbelievable. It is well settled that the standard of proof in civil cases and criminal cases is quite different. The plaintiff in a civil suit has to merely establish his case on the touchstone of preponderance of probabilities and the defendant is not necessarily entitled to the benefit of every reasonable doubt. As per Section 3 of the Evidence Act, a fact is said to be proved when the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. The court has to weigh the conflicting probabilities and decide whether the preponderance is in favour of the fact asserted by the plaintiff. Reference can be had to the judgments of N.G. Dastane, Dr. v. S. Dastane, AIR 1975 SC 1534 and Syad Akbar v. State of Karnataka AIR 1979 SC 1848.
14. Keeping in view of the aforesaid facts and circumstances, this court holds that the plaintiff has failed to prove the existence of the first transaction i.e. buying of 50 flats. After payment of entire settled amount to the plaintiff after settlement of criminal case under Section 138 N.I. Act, (which has been admitted by the PW-1 in his cross-examination), there is nothing due from the side of defendant. Accordingly this issue is decided against the plaintiff and in favour of defendant.
CS No. 209662/16 Page No. 8 of 12M/s Strategic Overseas Pvt. Ltd., vs. M/s MTech Developers Ltd. Issue No. 2: Whether the plaintiff is entitled to any pendente lite and future interest? If yes, at what rate and for what period? OPP
15. Since the plaintiff failed to prove the first issue, he is not entitled for any interest. Accordingly, this issue is decided in favour of the defendant and against the plaintiff.
Issue No. 3: Whether the plaintiff received a sum of Rs. 55,95,000 including a sum of Rs. 35,95,000 covered under Memorandum dated 21.09.2007 from the defendant, in settlement arrived before the Metropolitan Magistrate, Rohini, Delhi and consequently withdrawn its complaint(s), if so, its effect? OPD
16. In view of my findings on issue no.1, this court holds that the plaintiff has already received the total due amount, which he succeeds to prove as per the settlement in the criminal case including an excess amount of Rs.4 lacs. This issue is decided accordingly.
Issue No. 4: Whether the present suit is barred by limitation? OPD
17. The plaintiff has claimed the recovery of amount towards a transaction which took place initially in 2007 and when it was not successful, the said transaction was transformed into a new deal by entering into a Memorandum of Buy-back in September, CS No. 209662/16 Page No. 9 of 12 M/s Strategic Overseas Pvt. Ltd., vs. M/s MTech Developers Ltd. 2007. Although the plaintiff has failed to prove the existence of first transaction, but it is the admitted case that a settlement took place in criminal case filed under Section 138 NI Act. As per defendant, he paid the entire due amount by way of two demand drafts and other amount in cash uptil 29.11.2007. The compromise took place on 09.03.2010, and as such, the period of limitation has to be calculated from the date of compromise i.e. 09.03.2010 for recovery of further due amount, if any. The present suit was filed on 17.03.2011 and therefore the present suit within the limitation. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
Issue No. 5: Whether the suit is hit by the provisions of Order 7 Rule 11 CPC? OPD
18. In view of my findings on issue no. 1 deciding the fate of the case, this issue need no further discussion. This issue is decided accordingly.
Issue No. 6: Whether the suit has been filed by a person without any authority to institute the same and is thus not maintainable? OPD
19. The present suit was filed by the plaintiff through a Director but the counsel for the defendant argued that in the board resolution only the words "signed, verified and pursue" have been mentioned and the necessary word i.e. "to institute" has been CS No. 209662/16 Page No. 10 of 12 M/s Strategic Overseas Pvt. Ltd., vs. M/s MTech Developers Ltd. missing and as such the Director, Tarun Kumar Gupta is not an authorised person to institute the present case. In support of this argument, the counsel for the defendant relied on the case of "United India Periodicals vs. CMYK Printech Ltd.".
20. No doubt, the board resolution did not mention the word "to institute" but in my opinion the word "to pursue" itself covers all the important stages starting from institution of the proceedings till the conclusion thereof to avail a remedy. This court is also of the opinion that the said objection is hyper-technical and does not go to the root of the matter. In this regard reliance is placed on the case of 'United Bank of India v. Naresh Kumar AIR 1997 SC 3' wherein it was held by Hon'ble Apex Court as under:
"In cases where suits are instituted or defended on behalf of a public corporation like bank, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable.
A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where CS No. 209662/16 Page No. 11 of 12 M/s Strategic Overseas Pvt. Ltd., vs. M/s MTech Developers Ltd.
pleadings have been signed by one of its officers, a Corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied."
21. In the light of aforesaid discussion and the quoted case law, this issue is decided in favour of the plaintiff and against the defendant.
Conclusion/Relief
22. In the light of my aforesaid findings, especially on the issue no. 1, the suit of the plaintiff is dismissed. In the circumstances of the case, there is no order as to cost. Decree-sheet be prepared accordingly. File be consigned to record room.
Announced & dictated in the open court on 12.07.2018 (Naresh Kumar Laka) Additional District & Session Judge-03 South East, Saket Courts, New Delhi.
Digitally signed by NARESH NARESH KUMAR LAKA
KUMAR Date:
2018.07.12
LAKA 15:32:31
+0530
CS No. 209662/16 Page No. 12 of 12
M/s Strategic Overseas Pvt. Ltd., vs. M/s MTech Developers Ltd.