Delhi District Court
Raj Kumar Jain vs M/S Rangoli Exim Pvt. Ltd. And Ors on 3 March, 2025
IN THE COURT OF MS SAVITA RAO, DISTRICT JUDGE
COMMERCIAL COURT-01, SOUTH ,
SAKET COURTS, DELHI
CS (COMM) No. : 116/2019
DLST010040322019
In the matter of :
Sh. Raj Kumar Jain
S/o Late Sh. Attar Sain Jain
R/o A-603, Unique Apartments
Plot no. 38, Sector -6
Dwarka, New Delhi - 110075
..... Plaintiff
Versus
1. M/s Anil K. Goyal & Associates
Through its Partner Mr. Anil K. Goyal
204-206, Siddharth Chambers
Near IIT Gate, Hauz Khas, Kalu Sarai
New Delhi - 110016
2. M/s Meri Punji IMF Pvt. Limited
Through Tarun Goyal & Through Mr. Anil Goyal
203, Siddharth Chambers, Hauz Khas,
Kalu Sarai, New Delhi - 110016
........ Defendants
Date of Institution : 07.06.2019
Date of Arguments: 16.10.2024, 21.11.2024,16.01.2025
& 11.02.2025
Date of Judgment : 03.03.2025
JUDGMENT
1. This is suit for recovery of Rs. 14,50,000/- (Rs. Fourteen Lacs Fifty Thousand only) filed by plaintiff against the CS (COMM) No. : 116/2019 1/28 defendants on the facts that plaintiff is engaged in the business of real estate and is assisting and providing necessary consultancy services to its customers for sale and purchase of immovable property. Plaintiff, as stated, worked in various civil positions and later started as consultant to help number of NRIs, through defendants, for the properties held by them in India.
2. Defendants no.1 & 2, as stated, are sister concerns and are being managed and controlled by Mr. Anil K. Goyal. Defendant no.1 has a huge base of NRI and Indian Clients, having number of properties in NCR who had retained the plaintiff, through defendant no.2, to get his consultancy to the respective clients of defendant no.1 In this respect, a Memorandum of Understanding was also executed on 03.04.2017 between the plaintiff and defendant no.2. Plaintiff provided his consultancy to numerous clients of defendant no.1 including Mr. Harsh Jain and a lot of amount was yet to be paid by the defendants for which number of emails were exchanged as well as invoices were also raised for a number of clients through Defendant no.2.
3. Plaintiff was appointed to provide consultancy services through defendants no. 1 & 2 with the assurances and promises from defendant no.1 that the fees of plaintiff was safe and thus defendant no.1 acted as a Guarantor for the said amount. It was further stated that Mr. Harsh Jain being Non-Resident Indian (NRI), introduced through Defendant no.1, entered into an oral agreement with plaintiff to sell his properties in NCR. In this regard, defendants had agreed and committed to pay the fees towards the consultancy of plaintiff @ 2% of the Sale/Purchase of the respective properties. Prior to the deal in question, plaintiff CS (COMM) No. : 116/2019 2/28 had provided his services and consultancy to Mr. Harsh Jain for number of his projects. Based upon the performance/the earlier works/deals, Mr. Harsh Jain being the Authorized Representative/Director of M/s Rangoli Exim Private Limited had again approached the plaintiff through defendant no.1 for consultation and help in order to sell out property no. D-49,Sector-63, Noida- 201301, on the basis of agreed consultancy @ 2% on the sale.
4. During the process of identifying the prospective buyers as part of consultancy, a local broker Mr. Rudra was introduced by the plaintiff who was also got involved in the deal after meeting with Mr. Harsh Jain, against total remuneration amount of Rs. 5 lacs, if the deal got matured from the then existing prospective buyers. Consultancy amount for plaintiff was reduced to 1% against earlier agreed at 1.2% out of 2%, as payable to defendant no.2. Due to the efforts made by plaintiff, the identified buyer agreed to purchase the property at total purchase price of Rs. 10 Crores and Mr. Harsh Jain also accepted cheque for Rs. 10 lacs as token amount from the said existing buyer.
5. After the deal was over, Mr. Harsh Jain and another Director of M/s Rangoli Exim Private Limited namely Mr. Lokesh took the plaintiff in full confidence to confirm that they had got a new better buyer namely Mr. Pulkit Chawla who was ready to accept all their conditions like the Company Transfer and the part Fund Transfer to Dubai. Plaintiff was requested by Mr. Harsh Jain to co-operate and to provide his help and assistance. They also confirmed that they, through defendants no. 1 & 2 would pay the agreed payment to the plaintiff.
CS (COMM) No. : 116/2019 3/286. Plaintiff again worked hard in getting the deal matured with the new suggested buyer by Mr. Harsh Jain and Mr. Lokesh. Further, Mr. Harsh Jain and Mr. Lokesh alongwith defendants, in order to save themselves from the legal hassles, also asked plaintiff to help them in getting the token amount refunded to the first buyer, with the help of Mr. Rudra. Based on their requests and commitment, plaintiff requested Mr. Rudra that his dues shall be paid and that he should help in pacifying the first buyer in accepting back the token amount and to close the matter.
7. Subsequently, as part of his consultancy and working criteria, the work was done by the plaintiff and Mr. Rudra in order to help out Mr. Harsh Jain , M/s Rangoli Exim Private Limited and the defendants. Mr. Harsh Jain, M/s Rangoli Exim Private Limited and Mr. Lokesh alongwith the defendant had involved plaintiff in dealing with Mr. Pulkit, the final buyer. Plaintiff did his duty diligently, regularly and with utmost punctuality and sincerity and helped defendants to sell the property to the new buyer Mr. Pulkit, who agreed to purchase the property for sum of Rs. 10,50,00,000/-. Mr. Harsh Jain and M/s Rangoli Exim Private Limited got enhanced the cost of the said property because of the previous deal only. At the time of entering into agreement to sell with Mr. Pulkit Chawla, plaintiff had even calculated the TDS to be deposited by Mr. Pulkit Chawla. However, after the finalization of the sale with Mr. Pulkit, Mr. Harsh Jain paid a sum of Rs. 1,00,000/- to the plaintiff towards the miscellaneous expenses out of the total consultancy fee of Rs. 15,50,000/-. Inspite of acknowledging the liability of payment of principal balance of Rs. 14,50,000/-, defendants failed to make the payment of said amount to the CS (COMM) No. : 116/2019 4/28 plaintiff despite several requests by plaintiff through telephonic messages as well as email communication. Legal notice dated 15.02.2019 was sent by plaintiff to Mr. Harsh Jain, M/s Rangoli Exim Private Limited and the defendants. Said Legal notice though was duly replied by Mr. Harsh Jain, M/s Rangoli Exim Private Limited and the defendants, but the payment of agreed amount was not made to plaintiff.
8. Plaintiff initiated "Pre-Institution Mediation" proceedings and filed an application for Mediation before the competent authority under Rule 2 (c) of The Commercial Courts (Pre- Institution) Mediation and Settlement Rules, 2018 wherein Non- Starter Report dated 21.05.2019 was issued by the concerned authority and the plaintiff was constrained to file the instant suit.
9. In written statement filed on behalf of defendant no.1, it was stated that defendant no.1 is separate legal entity from defendant no.2. The management of defendant no.1 is different from management of defendant no.2 and defendant no.1 has been made party only to exert undue pressure on defendant no.1 in order to extract money from defendant no.1 which is neither due nor payable by the defendant no.1.
10. It was further stated that Memorandum of Understanding dated 03.04.2017 relied upon by plaintiff, was executed between plaintiff and defendant no.2 and defendant no.1 was not a party thereof. As submitted, as per own submission of plaintiff, he had an alleged separate oral agreement with some third person and there was no agreement or understanding between the plaintiff and defendant no.1 qua the transaction for the sale of immovable property bearing no. D-49, Sector-63, Noida, which is the subject matter of the present suit. Further, plaintiff has failed to produce CS (COMM) No. : 116/2019 5/28 any document on record to show that defendant no.1 stood as guarantor or there was any agreement between the plaintiff and defendant no.1 qua the said transaction. Even the emails dated 6.12.2018, 15.01.2019, 16.01.2019 and 17.01.2019 demonstrate that defendant no.1 had no role to play in the said transaction and it is unnecessarily being dragged in the present suit with ulterior motive of the plaintiff.
11. It was stated that without prejudice to the said averment, plaintiff was not entitled to any claim since admittedly the said immiovable property was not sold through the plaintiff but through some other broker. Since the said transaction was not done through the plaintiff and he failed to get the property sold, the question of payment of consultation fees/brokerage does not arise at all.
12. In written statement filed on behalf of defendant no.2 also, similar defence was taken with regard to, there being no role of defendant no.2 in the transaction in question. Additionally, it was stated that as per the terms of said MOU dated 03.04.2017, it was incumbent upon the parties to execute a separate written instrument in the form of mandate through defendant no.2 with the potential clients in order to provide them the services of sale/purchase of their immovable properties. For the transaction of property in question, no such instrument was executed between defendant no.2 and owner of the said property. Defendant no.2 had no role in the said transaction and the said transaction may have agreed to be executed between the plaintiff and owner of said property independent of defendant no.2. Since no such written mandate/instrument was issued by the property owner to defendant no.2 to execute the transaction under the CS (COMM) No. : 116/2019 6/28 terms of the MOU, plaintiff is not entitled to any payment from defendant no.2 under the said MOU or otherwise whatsoever.
13. It was further submitted that plaintiff has only filed selected emails on record and has deliberately suppressed various other emails with malafide intent to mislead the court. Plaintiff has filed copy of invoice pertaining to the transaction of a property situated at Connaught Place, whereas the amount under the said invoice was never paid to the plaintiff as he failed to execute the said transaction. Plaintiff has deliberately not filed any bank statement or any other proof of receipt of amount against the said invoices. Thus, plaintiff has not approached the court with clean hands.
14. It was further stated that as per the terms of the MOU, no consultation fees was payable to the plaintiff under the MOU, if no fees is paid or payable to defendant no.2. Since defendant no.2 had neither received any mandate for undertaking the execution of the transaction nor had received any fees for the alleged execution of said transaction qua the said property, which in any case was a failed transaction due to the unsuccessful efforts of the plaintiff, the liability of defendant no.2 had never arisen. Since no amount was ever received by defendant no.2 and there was no occasion for defendant no.2 to pay the consultation fees to the plaintiff, no cause of action ever arose in favour of plaintiff and against defendant no.2 to file the present suit.
15. Besides that, in few instances, even despite execution of the written instrument/mandate by the client which would be valid for a defined period for execution, no amount was paid to the plaintiff under the terms of MOU due to failure on the part of plaintiff to conclusively execute the said transaction within the CS (COMM) No. : 116/2019 7/28 time period provided under the written mandate. Thus, the claims of plaintiff against defendant no.2 qua the transaction under an alleged oral agreement is contrary to the agreed terms of the said MOU and therefore, the claims of plaintiff are illegal and barred by law.
16. In replication, contents of written statement were denied and those of plaint were reiterated and re-affirmed.
9. Following issues were framed vide order dated 09.07.2024:
1) Whether the defendant no.1 acted as a Guarantor in terms of para 7 of the plaint? If so, its effect? OPP
2) Whether the plaintiff is entitled for recovery of suit amount, as claimed ? OPP
3) Relief.
17. In plaintiff's evidence, plaintiff Sh. Raj Kumar Jain examined himself as PW1. He filed his evidence by way of affidavit Ex. PW1/A and relied upon following documents:-
1. Copy of Adhar Card of PW1 as Ex. PW1/1 (OSR)
2. Copy of RTI Application dated 16.11.2021 as Ex. PW1/2.
3. Copy of letter dated 01.10.2021 sent to the Secretary, ICAI as Ex. PW1/3.
4. Copy of Online RTI Request Form as Ex. PW1/4.
5. Copy of reply dated 07.12.2021 to RTI Application by ICAI as Ex. PW1/5.
6. Copy of MOU as Ex. PW1/6.
7. Printouts of emails filed with the suit/plaint as Ex. PW1/7.
8. Printouts of emails filed with the replications as Ex.
PW1/8.
9. Affidavit u/s 65 of the Evidence Act as Ex. PW1/9.CS (COMM) No. : 116/2019 8/28
10. Legal Notice as Ex. PW1/10.
11. Postal Receipts as Ex. PW1/11.
12. Reply to legal notice sent by M/s Rangoli Exim Pvt. Ltd and Mr. Harsh Jain as Ex. PW1/12.
13. Reply to legal notice sent by defendant no.1 as Ex.
PW1/13.
14. Synopsis filed before the DLSA as Ex. PW1/14.
15. Non-Starter Report dated 21.05.2019 as Ex. PW1/15.
18. In cross examination, plaintiff stated about receipt of amount of Rs. 10,81,157 from defefndant. Copy of print out of excel sheet was exhibited as Ex. PW1/D1. Payment Invoices towards consultancy services raised by plaintiff were exhibited Ex. PW1/D2 (colly) in cross examination of PW1.
19. In defence, defendant Sh. Anil K. Goyal examined himself as DW1. He filed his evidence affidavit Ex. DW1/A and relied upon document Ex. DW1/1 which is copy of Authority Letter dated 13.08.2019.
Issue-wise findings are as under:
20. Issues No. 1 & 2: Plaintiff claims to have provided Consultancy Services to numerous clients of Defendant no.1 including Mr. Harsh Jain and further that plaintiff was being paid the consultancy amount by defendant no.1 through defendant no.2 from a number of clients including Mr. Harsh Jain. PW1 stated that he was appointed to provide consultancy services, help and assistance through Defendants no.1 & 2 with the assurances and promises from defendant no.1 that his fees was safe and that CS (COMM) No. : 116/2019 9/28 defendant no.1 acted as Guarantor for the said amount. According to him, office of defendant no.2 was fully controlled by defendant no.1 and defendant no.1 was aware about all the dealings of plaintiff with Mr. Harsh Jain regarding the subject matter i.e. sale of property bearing no. D-49, Sector- 63, Noida- 201301 and plaintiff had been doing business with said Mr. Harsh Jain after proper introduction by defendant no.1. PW1 placed reliance upon email exchange between the parties and according to him, all the emails exchanged with all the clients were with the knowledge of defendant no.1. PW1 also referred to email dated 06.10.2017 to submit about the raising of invoice pertaining to previous transaction between the parties and insisted that the invoice or any other document could not move further without the approval of defendant no.1. According to PW1, defendant no.1 was aware about deal to sell the subject property and was an active participant while controlling defendant no.2.
21. Memorandum of Understanding dated 03.04.2017 Ex. PW1/6 was executed between the plaintiff and defendant no.2. As narrated by PW1, Mr. Anil K. Goyal was involved in creating and finalizing the MOU between him and defendant no.2, executed on 05th June 2017 though signed ante-dated, to suit the convenience of defendant no.1 who was dominating on every process of defendant no.2. According to PW1, defendant no.1 was further involved and had arranged all the meetings between him and Mr. Harsh Jain regarding the subject matter i.e. sale of the property at Noida as Mr. Harsh Jain was dealing for the said property through defendants no. 1 & 2. Mandate letter was handed over by PW1 to Defendant no.1, to be signed by Mr. Harsh Jain but defendant no.1 did not permit the Mandate Letter to be signed and stated that Mr. Harsh Jain was CS (COMM) No. : 116/2019 10/28 not ready and willing to sign the Mandate Letter. To reflect involvement of Defendant no.1, PW1 referred to communication by defendant no.1 that:
" Our new associates, has a buyer for the same which will be introduced to you by our new associates. Mr Jain has confirmed that he has no buyer during validity of mandate which is ending end April 2019, hence you can deal with new associate...".
22. According to PW1, after the introduction of said Mr. Harsh Jain by defendant no.1, oral agreement was executed and defendants agreed and committed to pay the fees towards the Consultancy @ 2% of the Sale/Purchase of the respective properties. PW1 referred to the earlier services of consultancy provided to said Mr. Harsh Jain for number of his projects and thereafter providing consultation for the subject property. Deal between the identified buyer with Mr. Harsh Jain despite accepting the cheque for Rs. 10,00,000/- as token amount, was not finalized since PW1 was informed that Mr. Harsh Jain had got a new better buyer namely Pulkit Chawla. PW1 was asked to help them in getting the token amount refunded to the first buyer with the help of one Mr. Rudra. Based on their requests and commitments, PW1 requested Mr. Rudra that his dues shall be paid and he should help in pacifying the first buyer in accepting back the token amount and to close the matter. As part of his consultancy and working criteria, work was performed by him and Mr. Rudra in order to help out Mr. Harsh Jain and M/s Rangoli Exim Private Limited and the defendants. Consultancy was further provided by plaintiff till the finalization of the deal with Mr. Pulkit and thereafter till registration of the sale documents. PW1 stated that inspite of acknowledging the liability of payment of amount of Rs. 15,50,000/-, defendants miserably failed to make the payment. Plaintiff was paid only sum CS (COMM) No. : 116/2019 11/28 of Rs. 1,00,000/-towards miscellaneous expenses and the balance amount was not paid by defendants.
23. Memorandum of understanding Ex. PW1/6 is between plaintiff and defendant no.2 which refers to the remuneration payable to plaintiff besides the reimbursement of expenses and profit sharing of the deals in 60:40 ratio after deducting the direct and indirect expenses. Annexure-1 of MOU which refers to the scope of work mentions as follows:
" 1. The Company has its own client/s, who may need the additional services in the Real Estate Sector. The company shall get the help of the Consultant to fulfil their needs. The charges for each such service shall be worked out in case to case basis, with the client/s by way of separate instruments, for each job.
2. The Consultant shall make the efforts to fulfill the need of the Client/s, within Consultant's reach. The company will provide all the possible office support and will allow using the company's infrastructure/s to achieve the Target. If the company and the Consultant are not able to provide the respective services to the Client/s and if the company does not get any fees, for the purpose, the Consultant shall not get any reimbursement for the individual unsuccessful efforts".
24. On the strength of above, Ld. counsel for defendants submitted that defendant no.1 had never entered into any agreement with the plaintiff for any such consultancy services whereas defendant no.2 is separate legal entity from defendant no.1 and the management of defendant no. 2 is different from the management of defendant no.1. Further, terms of said MOU dated 03.04.2017 made it incumbent upon the parties to execute separate written agreement in the form of 'mandate' through defendant no.2, for potential clients, in order to provide them the services of sale/purchase of their immovable properties but no such instrument was executed between defendant no.2 and the owner of the property bearing no. D-49, Sector-63, Noida. Thereby, defendant no.2 had no role in the said transaction and the said transaction may CS (COMM) No. : 116/2019 12/28 have agreed to be executed between the plaintiff and the owner of the said property independent of defendant no.2.
25. PW1 asserted that defendant no.1 was directly involved in all the transactions for the dealings which took place between him and Mr. Harsh Jain. As stated, role of plaintiff was limited only to hand over the draft of the Mandate letter based upon the format, as was asked by defendant no.1, who in turn, after approving it, would instruct defendant no.2 to sign it or not, depending on whether the client/s was comfortable to sign it. Pertaining to instant matter, according to PW1, he had signed the draft of the Mandate Letter, copy of which was duly provided to Defendants no. 1 & 2 regarding the said property of Mr. Harsh Jain. Since Mr. Harsh Jain had refused to sign any Mandate letter previously also for another property, therefore, defendants no. 1 & 2 were aware that Mr. Harsh Jain had been refusing to sign the Mandate Letter or any other document, therefore, they did not get the Mandate Letter signed from Mr. Harsh Jain, for the sale of the said property.
26. Admittedly, no separate instrument was executed pertaining to the subject matter of the instant suit. Any Mandate Letter was also not executed. PW1 though stated about receipt of the amount of Rs. 10,81,157/- from defendant no.2 as per MOU Ex. PW1/6, however the said document was found to be only print out of the excel sheet. While PW1 relied upon invoices available with him, with regard to the payment received from defendant no.2 i.e. Ex. PW1/D2, nevertheless admitted that the payments received by him were against the invoices raised and no payments were received without raising any invoice. He stated that he had also raised invoices Ex. PW1/D2 (colly) with regard to the transaction forming the basis of subject matter of the instant suit in the name of CS (COMM) No. : 116/2019 13/28 Defendant no.2. Ld. Counsel for defendant had objected to the exhibition of the documents before Court Commissioner as Ex. PW1/D2 were not the original copies and were also unsigned/unacknowledged copies. Witness sought to clarify that two of the invoices were bearing his signatures and as the invoices were prepared in the office of Mr. Anil K. Goyal, these were handed over then and there.
27. PW1 further stated that as per his knowledge, owner of the property in question was M/s Rangoli Exim Pvt. Ltd. In cross examination, according to him, in separate oral agreement with Director of Rangoli Exim Private Limited and Mr. Harsh Jain, it was agreed that PW1 would receive 1% of the sale price of the property as consultancy for maturing the deal of this property and his broker would be paid Rs. 5 lacs on the acceptance of token money by Mr. Harsh Jain. He reiterated that subsequently, Mr. Harsh Jain had a better buyer and it was agreed that PW1 would help him to return the token money to the first buyer and would assist him in dealing with the subsequent buyer. He continued giving his services to Mr. Lokesh, the other director of M/s Rangoli Exim Pvt. Ltd. and Mr. Anil K. Goyal in his office till the time the payment of the said property including cash transaction was received. He admitted that he had not received any written mandate from defendant no.2 in relation to sale purchase of the property in question as Mr. Harsh Jain had specifically instructed that he would not give any written mandate though in earlier transactions, he had paid 2% (1.2% to him and 0.8% to Mr. Anil K. Goyal) as consultancy through defendant no.2 in sale/purchase of ' The Legend' township in Gurgaon.
CS (COMM) No. : 116/2019 14/2828. Email dated 16.10.2018 forming part of Ex. PW1/7 was referred by this witness while stating that the said document did not specifically mention 'The Legend' township in Gurgaon but it did confirm about payment of 2% consultancy. He stated that though this document mentions about 2% but it did not specify towards payment of consultancy while seeking to clarify that MOU Ex. PW1/6 confirmed that any payment to him was towards consultancy only. According to him, transaction in question was also within the purview of MOU Ex. PW1/6. He admitted that as per MOU Ex. PW1/6, it was mandatory to obtain a written mandate in respect of execution of any transaction while seeking to explain that no written mandate in practically was ever executed by clients specifically as Mr. Harsh Jain had denied to issue written mandate.
29. This witness further admitted that there was no written agreement between him and Sh. Anil K. Goyal for purchase/sale of property for his clients as Mr. Anil K. Goyal insisted that agreement has to be done with defendant no.2. He also admitted that Ex. PW1/6 was between plaintiff and defendant no.2 while seeking to explain that this document was fully prepared, documented and approved by the defendant no.1 which was also documented in various emails Ex. PW1/8 and Ex. PW1/9 and which also bears the contention that the document Ex. PW1/6 was forcibly pre-dated got signed.
30. While this witness throughout maintained with regard to the involvement of defendant no.1, however in cross examination, he admitted that he had not placed on record any document to show any kind of guarantee on behalf of Defendant no.1 for payment of consultancy fees. He, though sought to explain that MOU itself formed a guarantee for his consultancy fees, while also admitting CS (COMM) No. : 116/2019 15/28 that no personal guarantee was ever given by Mr. Anil K. Goyal or defendant no.1.
31. DW1 stated that he had not personally taken any services of the plaintiff for sale/purchase of any property including the property related to the present suit. He volunteered to state that defendant no.1 specialised in FEMA and Tax matters which are extremely technical maters and they had multiple NRI Clients. The sale/purchase of property(s) of such NRIs in which they did not deal but only referred the same to other brokers/consultants dealing in sale/purchase, he stated that their firm must have referred for sale/purchase of property of their NRI clients to the plaintiff. While he admitted that his son namely Tarun Goyal was director with defendant no.2 and also that Ms. Sonika Bharti and Mr. Tarun Goyal may be Partner/Director in any of the entities wherein he was also a Partner/Director. Nevertheless, denied that plaintiff was appointed by him personally or by defendant no.1 for sale/purchase of the property in question or that he or defendant no.1 had ever received any money as commission out of the consultancy amount received by plaintiff/defendant no.2 from the clients for the sale/purchase of their properties which were referred to the plaintiff by defendant no.1 . He disputed that the property forming the basis of the suit was referred by him in person or by defendant no.1 to plaintiff and stated that plaintiff and the client/owner of the property forming the basis of the suit were already known to each other. He also mentioned that defendant no.1 had never referred any client directly to defendant no.2 for the sale/purchase of the properties of their clients. Though defendant no.1 may have helped the plaintiff in getting his commission/consultation fees released from defendant no.2. He sought to correct that defendant no.1 would have assisted CS (COMM) No. : 116/2019 16/28 in getting the correct invoice value based on sale/purchase documents available with defendant no.1.
32. PW1 initially stated that he was not aware whether defendant no.2 had received any money in respect of the sale/purchase of the property in question and thereafter admitted that defendants had never received any token money in respect of the sale of the property in question.
33. For absence of any written instrument or mandate with regard to the remuneration payable to the plaintiff or providing of consultancy services, plaintiff sought much of the reliance from the emails exchanged between the parties. Ld. counsel for plaintiff made following submissions:
(a) that the plaintiff met through Mr. Anil K. Goyal . Mr. Anil K. Goyal used to take services of the plaintiff for his clients. Mr. Anil K. Goyal insisted that in this regard Agreement has to be done with Defendant no.2. The MOU Ex. PW1/6 with defendant no.2 was prepared, documented and approved by defendant no.1 which was documented in various emails Ex. PW1/8 and Ex.PW1/9. The two invoices were prepared in the office of Mr. Anil K. Goyal and the same were handed over there and then.
(b) that, the plaintiff raised an invoice Ex. PW1/D2 in relation to the present transaction forming the basis of the present suit in the name of defendant no.2. In this regard, the services were provided to the owner M/s Rangoli Exim Pvt. Ltd. i.e. the client of the defendant no.1 and 2 till its final sale/purchase.
(c) That, the plaintiff proved the consultancy received in earlier cases and defendant no.2 was bound to pay the consultancy amount as per the terms and conditions of the MOU Ex.PW1/6.CS (COMM) No. : 116/2019 17/28
(d) That, defendant no.1 by way of emails Ex. PW1/7 and Ex. PW1/8 was managing the deals for their clients. The Specific questions asked by defendant no.1 regarding the consultancy received by the plaintiff, showed that Mr. Anil K. Goyal was managing and controlling the deals for his clients and defendant no.2 with the plaintiff.
34. Ld. counsel for plaintiff further referred to the email dated 18.03.2019 at 12:36 wherein following was informed by Mr. Anil K. Goyal to 'Indi' with CC to plaintiff:
" This is for inform, Mr Jain is no more our associate and therefore on any mandate earlier given which is incomplete, where we had done so efforts, will only be valid and no further mandates will be undertaken by him.
Will Introduce our new associates when you are in town".
35. Vide email dated 18.03.2019 at 1:50 P.M. , plaintiff wrote following to 'Indi':
" I do not have any client, as of date, for the said property. Therefore, the Mandate, as issued by you, for the said property, may kindly be treated as null and void".
36. Vide email dated 18.03.2019 at 09:52, Anil K. Goyal wrote to Indi:
" Our new associates , has a buyer for the same which will be introduced to you by our new associate. Mr Jain has confirmed that he has no buyer during validity of mandate which is ending end April 2019, hence you can deal with new associate".
37. Ld. counsel for plaintiff submitted that from the emails, it can be observed that defendants no.1 & 2 were in dealing with the plaintiff and used his services under the MOU. Besides that, Harsh Jain also admitted that plaintiff provided his services for selling the property in question and admitted that he accepted the cheque of Rs. 10,00,000/-, thereby Mr. Harsh Jain accepted and entered into the deal provided by the plaintiff herein.
CS (COMM) No. : 116/2019 18/2838. Vide email dated December 6, 2018 at 10:11 A.M., Plaintiff conveyed to Sh. Anil Goyal :
" You are aware of the fact that Mr. Harsh Jain had agreed to sell his building in Rs. 10 Crores, though my client wherein he had himself agreed to the broker to pay an extra amount of Rs. 5 lacs, if the deal had got matured, over and above our Fee of 2% which he got reduced to 1% (which we agreed). You are aware of the fact that though I had been suffering losses, simply because I did not want a soar relationship with your client, because of any deal from my end.
Mr. Harsh Jain had taken a token amount of Rs. 10,00,000/-. He went on telling me, to co-operate as he was going to get a better deal and that he would pay all our dues.
Suddenly, he agreed to finalise a deal for s. 10.5 Crores, with some other buyer and refused to pay any of my brokerage.
Ultimately, that broker got gathered the association of Brokers, in Noida and I had to cough up Rs. 5 lacs to that Broker, as the deal was through me.
I did confirm to Mr. Harsh Jain these facts. But, his response was cool. You were also kept in loop, during these happenings. You did not intervene.
Thus, I do not make any issue inspite of such a huge loss, with a very clear thought that your relationship, with your clients should not be soar, just because any injustice is done to me.
Still if you feel that some thing is wrong from my side, I really cannot help it".
39. Email dated 15.01.2019 sent by plaintiff to Mr. Harsh Jain with CC to Mr. Anil K. Goyal at 22:06:02 conveyed following:
" .....we had jointly agreed for the Consultancy @ 2% on the sale/purchase value of the property. However, when it came to the sale of D-49 Building, you had indicated that you would pay only 1% of the actual sale cost.
Mr. Rudra, Broker, met you, at your residence and you had agreed that you would pay him Rs. 5 lakh (Lump Sum), over and above my Consultancy, if the deal would have got matures at a sale of Rs. 10 Crore".
........................
" You had asked me to co-operate as you were going to get a better deal and that you would pay all dues amounts. I was fully involved by you, with the second buyer even and I went on working with you, thinking that you would be gaining Rs. 2 Crore extra, alongwith fulfilment of all your conditions".
..........................
You had asked me to help in getting the token amount refunded to the first buyer, with the help of Mr. Rudra. I had promised Mr. Rudra that his dues shall be paid and that he should help us in pacifying the first buyer in accepting back the token amount, to close the matter.
You had involved me with the Second Buyer, in collecting the cash amounts, as you had been agreeing to pay me my dues amounts of Rs,. 10.5 Crore and the dues amount of Rs. 5 lakh to Mr. Rudra.
CS (COMM) No. : 116/2019 19/28I got a shock of my life when you refused to pay my consultancy and the due amount to Mr. Rudra. On a lot of insistence, you paid me Rs.1 lakh towards my expenses.
After all these happenings, Mr. Rudra called me up at Noida before reputed Noida Brokers, confirming that the deal got matured, on acceptance of the toke amount and that it was my commitment to Mr. Rudra for payment of Rs. 5 lakh, on refund of the token amount and after pacifying the First Buyer. Therefore, either I should collect the amount of Rs. 5 lakh from you or I had to pay it from my pocket, in view of Mr. Rudra being introduced to you, by me. Since, I was unable to get the amount from you, I had to pay it from my pocket.
You were always in loop, during these happenings..."
40. Relevant extracts of email dated 15.01.2019 at 1:27 P.M. written by Harsh Jain to plaintiff is reproduced herein:
" Firstly when the chq was taken through Rudra, it was made clear that we were holding the chq until they satisfied themselves, as they still had some pending queries and we had made it clear that it would not be banked until both sides were satisfied, otherwise the token would have been banked the same day or the next day. Therefore, there was no obligation at this stage.
When the other offer had come in, which was being simultaneously discussed, I had checked with you if the deposit can be returned without a problem, which you confirmed would not be a problem.
Your involvement to assist Lokesh was clearly discussed that it would not be on commission basis and I had at the same time intimated this to Anil Ji that this had been discussed with you. I had done this also to maintain the goodwill with you.
...............
As mentioned the matter is closed and I had discussed this with Anil Ji as well."
41. Since Anil K. Goyal was copied in the emails, he conveyed following at 10: 33 vide email dated 15.01.2019 :
" I can only say that since I was not a party in any discussions or meetings, hence any commitment made or not made will not be in my knowledge".
42. Plaintiff thereafter vide email dated 16.01.2019 at 10:13 to Harsh Jain with copy to Anil K. Goyal, Pradeep Agarwal, Anil Goel CEO Meri Punji, again clarified his stand and again asked for the consultancy amount for Rs. 5 lacs which he had to pay to Mr. Rudra on behalf of Harsh Jain.
CS (COMM) No. : 116/2019 20/2843. Vide email dated Jan 17, 2019 at 11:47 AM, plaintiff informed as follows:
" Dear Shri Anil Ji, Please talk to Mr. Harsh Jain regarding due amount of Rs. 10.5 lakh towards consultancy and Rs. 5 lakh which have already been paid by me, in cash to Mr. Rudra, for the sale of D-49, in Sector -63, Noida.
Rs. 10 lakh, towards the consultancy for the acceptance of first sale by him and Rs. 50,000/- towards involving me during the negotiations for the second deal and towards involving me for the collection of Cash Component of the Deal.
Rs. 5 lakh have to be paid in cash, which have already been paid by me to Mr. Rudra. In case, he wants to make the payment to him directly either by cheque or by bank transfer, that is also ok. "
44. Apparently till now neither Anil K. Goyal/Defendant no.1 nor Defendant no.2 had conceded about their participation in the deal between the plaintiff and Harsh Jain and rather Anil K. Goyal has stated in specific terms that he was not party in any discussions or meetings, hence any commitment made or not made will not be in his knowledge.
45. Subject property bearing no. D-49, Sector -63, Noida, U.P., with regard to which the plaintiff had claimed to have provided the consultancy services and had also incurred expenses including the payment to one Mr. Rudra does not form part of MOU between the plaintiff and defendant no.2. There is no separate instrument, there is no Mandate Letter pertaining to subject property. Email exchange between the parties also does not reflect involvement of Defendant no.1 or defendant no. 2 with the said transaction between the plaintiff and Harsh Jain except for the introduction of Harsh Jain, even if so, by Sh. Anil K. Goyal/Defendant no.1 and some previous transactions, for which mandate had been issued. Plaintiff rather himself has brought on record part of Ex. PW1/8 email dated 18.12.2015, whereby he had sent his profile to Sh. Harsh Jain as CS (COMM) No. : 116/2019 21/28 desired with no reference to the role of Defendant no. 1 or Defendant no.2 .
46. Plaintiff also stated about previous transactions with said Mr. Harsh Jain. In terms of record, with regard to the transaction in question, he was directly in communication with Harsh Jain only, with copy to Anil K. Goyal, with request to them to ensure his payment. Merely because Anil K. Goyal had been copied in the said email exchange, who introduced plaintiff to Harsh Jain or had previous history of transaction between the parties, does not make him Guarantor for the transaction in question in absence of any such specific evidence brought on record.
47. It may be noted that Legal Notice dated 15.02.2019 Ex. PW1/10 on behalf of plaintiff was issued to M/s Rangoli Exim Private Limited, Mr. Harsh Jain and Mr. Anil K. Goyal through M/s Anil K. Goyal & Associates. Plaintiff claims to have entered into memorandum of understanding with Defendant no.2 and based upon the same had transacted with Mr. Harsh Jain, however, legal notice had not been issued upon defendant no.2 . Further, it was mentioned in the legal notice that plaintiff was appointed by Noticee no.2 i.e. Harsh Jain to provide consultancy services through noticee no.3 i.e. Sh. Anil K. Gyal with assurance and promise from Noticeee no. 3 that the fees of his client was safe and thus Noticee no. 3 acted as Guarantor for the said amount. In reply to legal notice, M/s Rangoli Exim Private Limited and Mr. Harsh Jain, disputed any agreement between the plaintiff and the above named persons with regard to payment of any brokerage or commission for sale of property to Mr. Pulkit Chawla. It was also mentioned in reply Ex. PW1/12 that " Plaintiff had been introduced to them by Mr. Anil K. Goyal. Following was mentioned:
CS (COMM) No. : 116/2019 22/28" Like several other brokers, your client was also one of the brokers who was trying to break a deal for the sale of the said property. However, no deal materialized for the sale of the said property through your client. When your client came to know that our clients were interested in selling the said property to Mr. Pulkit Chawla who was introduced to our clients by another broker, and with whom your client had no concern and for which your client will not be getting any commission or brokerage, your client represented to our clients that on a payment of fixed fee of Rs. 1,00,000/- (Rupees One Lakh only) your client could assist out clients in the documentation for the proposed sale. Since, your client had been introduced by Mr. Anil K. Goyal and had a past relationship with out clients, our clients agreed to the same and agreed to pay a fixed fee of Rs. 1,00,000/- (Rupees one lakh only) to your client and the said fee has already been paid to your client. There was no agreement for the payment of any commission/consultancy of 1% or any other amount to your client for the sale of the said property to Mr. Pulkit Chawla because your client was not the broker for the said deal and the said deal was brokered by M/s Capital Associates whose proprietor is Mr. Sanjay Chug who has already been paid the commission/brokerage by our clients. Therefore, there is no question of payment of any further amount/brokerage/consultancy, etc. to your client by our clients. Your client is not even aware of the sale consideration amount for the sale of the said property to Mr. Pulkit Chawla and is wrongly and falsely alleging the sale consideration amount to be Rs. 10.50 Crores. The allegations of your clients besides being wrong and false, are contrary to the record".
48. Contents of the notice and reply to the legal notice, do not leave any doubt with regard to defendants no. 1 & 2 having no liability towards the claim of the plaintiff, be it in the form of guarantee or otherwise. It may also be noted that plaintiff had initially filed the case against defendants herein as well as M/s Rangoli Exim Private Limited and Sh. Harsh Jain, however, he sought deletion of M/s Rangoli Exim Private Limited and Sh. Harsh Jain and therefore the suit continued only against the present defendants. On query put to Ld. counsel for plaintiff with regard to deletion of names of above named persons, it was submitted by Ld. counsel for plaintiff that no relief has been claimed aginst Sh. Harsh Jain as services were provided to Harsh Jain on behalf of Defendant no.2. Therefore, Mr. Harsh Jain and M/s Rangoli Exim Private Limited were sought to be deleted from array of parties. It was further submitted that in reply to the CS (COMM) No. : 116/2019 23/28 notice by Mr. Harsh Jain, he mentioned that he had also informed regarding the transaction and the deals to defendants. Bill was also raised upon Defendant no.2. Ld. counsel for plaintiff though conceded that the invoice which was raised upon defendant no.2 does not contain any acknowledgment from defendant no.2 or any of the defendants.
49. Ld. counsel for plaintiff was put specific query, in view of the email exchange between the parties whereby plaintiff had repeatedly asked Harsh Jain for return of payment of Rs. 5 lacs which had been paid to the property broker namely Rudra by plaintiff . It was submitted by counsel for plaintiff that amount of Rs. 5 lacs has not been claimed by the plaintiff. Ld. counsel for plaintiff thereafter with reference to deposition of PW1 and the other documents conceded that the amount of Rs. 5 lacs as payment to property broker namely Rudra is also part of the claim.
50. Plaintiff has claimed amount of Rs. 14,50,000/- from the defendants based upon the assertion that the subject property was sold at the value of Rs. 10.50 Crores . PW1 in cross examination stated that 1% sale price of the property was receivable by him as consultancy and as remibursement of payment of Rs. 5 lacs to the broker. Though PW1 admitted during the course of cross examination that there was no communication with said "Mr. Rudra" to show that he had paid Rs. 5 lacs. Neither he had taken this payment in his books of accounts not had reported to the Income Tax Department. Nevertheless, the amount of Rs. 5 lacs is forming part of the total claim of Rs. 15,50,000/- out of which Rs. 1,00,000/- had been received by the plaintiff.
CS (COMM) No. : 116/2019 24/2851. Plaintiff has not been able to establish on record any mandate, communication, agreement with Defendant no.2 for the subject transaction. Even pertaining to Defendant no.1, throughout plaintiff had asserted the status of Anil K. Goyal, partner of defendant no.1 as Guarantor. Much is left to amusement that the alleged Guarantor has been made party while the debtor has been deleted from the array of defendants at the own submission of plaintiff.
52. Ld. counsel for plaintiff submitted that defendant no.1 was examined as DW1. He failed to place any probable defence in his favour, whereas, defendant no.2 in order to prove its contentions mentioned in written statement, failed to appear into the witness box and not offered itself for examination on oath as well as for cross examination, which shall draw adverse inference against it.
53. Ld. counsel for plaintiff referred to Judgment of Man Kaur (Dead) by LRs vs. Hartar Singh Sangha (2010) 10 SCC 512 and Vidhyadhar Vs. Manikrao (1999) 3 SCC 573, wherein it was observed that :
" 17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct....".
54. Ld. counsel for plaintiff further made following submissions:
(a) That, to succeed in the present suit, plaintiff has to prove
(a) that a valid agreement was entered into by the defendants in his favour and the terms thereof ; (b) that the defendant committed breach of the contract ; and (c) that he performed his part of the obligations in terms of the agreement, which has been proved by the plaintiff through his pleadings, documents and evidence. If the defendant no.2 has to prove its defence, necessarily he should step CS (COMM) No. : 116/2019 25/28 into the witness box and given evidence and subject himself to cross examination on that issue. The defendant cannot obviously examine in his place, his attorney-holder/AR who did not have personal knowledge either of the transaction.
(b) That, it is well settled law that having not entered into the witness box and having not presented himself for cross-
examination, an adverse presumption has to be drawn against him on the basis of principles contained in illustration (g) of Section 114 of the Evidence Act.
(c) That, Hon'ble Division Bench of the Punjab & Haryana High Court also in Bhagwan Dass vs. Bhishan Chand and others, AIR 1974 Punjab & Haryana 7, drew presumption under Section 114 of the Evidence Act observing that if a party does not enter into the witness box, an adverse presumption has to be drawn against that party. Applying the principles stated above to the instant case, it would be found that in the instant case also the Defendant No.2 had abstained from the witness box and had not made any statement on oath in support of his pleading set out in the written statement. An adverse inference has, therefore, to be drawn against defendant No.2 that what he stated in the written statement was not correct.
55. Reliance was placed upon following:
(a) Rangammal Vs. Kuppuswami & Anr., (2011) 12 SCC 220, it was observed that :
"Thus, the Evidence Act has clearly laid down that the burden of proving fact always lies upon the person who asserts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party."
(b) Gulla Kharagjit Carpenter Vs. Narsingh Nandkishore Rawat, AIR 1970 MP 225:
CS (COMM) No. : 116/2019 26/28"When a material fact is within the knowledge of a party and he does not go into the witness box without any plausible reason, an adverse inference must be drawn against him. A presumption must be drawn against a party who having knowledge of the fact in dispute does not go into the witness box particularly when a prima facie case has been made out against him."
(c) Iswar Bhai C. Patel alias Bachu Bhai Patel Vs. Harihar Bahera & Anr., (1999) 3 SCC 457:
"..it would be found that in the instant case also the appellant had abstained from the witness box and had not made any statement on oath in support of his pleading set out in the written statement. An adverse inference has, therefore, to be drawn against him."
56. Following the ratio of the authorities (supra), as relied upon by Ld. Counsel for plaintiff himself, the burden of proof lies upon the person who asserts and until such burden is discharged, other party is not required to be called upon to prove his case. In the instant matter, plaintiff has not been able to establish its case and discharge the onus which was upon him. Therefore, no adverse inference is required to be drawn for choice of defendant no.2, not to lead evidence in the matter.
57. Ld. counsel for plaintiff specified that a valid agreement was entered into between the defendants and plaintiff, that the defendant committed breach of the contract and plaintiff performed his part of the obligations in terms of the agreement. Onus of the above contention was upon the plaintiff which has not been discharged and plaintiff failed to establish its case on record. So much so, the alleged debtor who had allegedly committed breach of the alleged oral agreement between the parties has been deleted from the array of parties.
58. Having discussed as above, for the failure of the plaintiff to prove its case, both the issues are decided against the plaintiff.
CS (COMM) No. : 116/2019 27/2859. Relief (Issue no.3) :- Suit is dismissed with no order as to cost. Decree sheet be prepared accordingly. After completion of formalities, file be consigned to record room.
savita Digitally signed
by savita rao
Date: 2025.03.03
rao 15:31:45 +0530
Announced in the open (SAVITA RAO)
court on 03.03.2025 DISTRICT JUDGE
(COMMERCIAL COURT)-01
SOUTH, SAKET COURTS, DELHI
CS (COMM) No. : 116/2019 28/28