Delhi District Court
Faqir Chand vs M/S Bhoomi Geotech Pvt. Ltd on 24 September, 2024
IN THE COURT OF SH. AMIT BANSAL,
DISTRICT JUDGE (COMMERCIAL COURT)-03,
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI.
CS (COMM) 282/2023
CNR No. DLSW01-005632-2023
Faqir Chand
S/o Late Arjan Ram
Flat No. 1, Nalanda Apartments,
D-Block, Vikaspuri,
New Delhi - 110018
Mobile No. 8447524443
Email ID: [email protected]
.....Plaintiff
VS
1. M/s Bhoomi Geotech Pvt. Ltd.
Through its Director Sh. Kaushal Kumar
Registered office at:
Plot No. 14, 2nd Floor, Dhanpat Colony,
Rajender Nagar, Sahibabad,
Ghaziabad (UP) - 201005
Email ID: [email protected]
2. Mr. Kaushal Kumar
Director of M/s Bhoomi Geotech Pvt. Ltd.
Registered office at:
Plot No. 14, 2nd Floor, Dhanpat Colony,
Rajender Nagar, Sahibabad,
Ghaziabad (UP) - 201005
Mobile No. 9910032435
Email ID: [email protected]
CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 1/40
3. Mr. Vikas Kumar
Director of M/s Bhoomi Geotech Pvt. Ltd.
Registered office at:
Plot No. 14, 2nd Floor, Dhanpat Colony,
Rajender Nagar, Sahibabad,
Ghaziabad (UP) - 201005
Mobile No. 9897603853
Email ID: [email protected]
.....Defendants
Date of institution : 08.06.2023
Date of final arguments : 09.09.2024
Date of decision : 24.09.2024
JUDGMENT
1. The present suit has been filed by the plaintiff against the defendants for recovery of Rs. 48,05,888/- along with pendente lite and future interest @ 24% p.a. along with costs of the suit in favour of the plaintiff and against the defendants.
2. The facts in nutshell as averred in plaint are that the plaintiff is engaged in providing consultancy services in the field of highways and bridges. The plaintiff earlier served in M/s SNC Lavlin / Span Consultants and headed the highways and bridges division up to June 2011 and thereafter in Stup Consultants where he also headed the highways division. The defendant no. 1 is a company having registered office at Plot no. 14, Second Floor, Dhanpat Colony, Rajender Nagar, Sahibabad, Ghaziabad CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 2/40 (UP) - 201005 and runs its business at the said address. The defendant nos. 2 and 3 are the Directors of the defendant no. 1 company and are engaged in its day to day business affairs. The defendant nos. 2 and 3 also administer, manage and control the defendant no. 1 company from the above said registered office. The defendants are engaged in the field of soil and Geo technical investigations related to consultancy for highways and bridges in which the plaintiff deals. The defendant no. 2 came in contact with the plaintiff about 10 - 12 years back as defendant no. 2 used to work with the plaintiff as Sub- Consultant.
3. The plaintiff further averred in the plaint that the defendant no. 2 initially was the beginner in the profession, he was sincere and used to produce quality work. The defendant no. 2 used to take friendly cash loan from plaintiff to the tune of Rs. 30,000/- to Rs. 40,000/- at a time to buy equipment and machinery and often used to return the same as and when he got the payments. By the end of year 2015 as the business of defendant no. 2 expanded, total outstanding friendly loan aggregated to total of Rs. 4 lakh. During the year 2015, defendant no. 2 started construction of his house in Modi Nagar on a plot. Upon request of defendant no. 2, the plaintiff extended financial help to him in cash on various occasions during the year 2015 - 2017 for construction of his house and the total cash help added up to Rs. 12 lakh. Later on, plaintiff came to know that the defendant no. 2 had also used the loan money to buy a shop in Modi Nagar.
CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 3/404. The plaintiff further stated that in the plaint that in the month of September, 2017, the plaintiff was planning to stop working with M/s Stup Consultants due to his advancing age, however, the defendant no. 2 approached him and started coaxing him to join hands and to help them technically and administratively in their consultancy work. After meeting with the plaintiff, defendant no. 2 called Annual General Meeting of the defendant no. 1 company and adopted the plaintiff as a Director of the defendant no. 1 company. The corporate office of the company shifted to the address of the plaintiff. An Office Space at 110, First Floor, DDA Tower-II, District Centre, Janak Puri, Delhi 110058 was hired and finally the plaintiff started to look after the work of the defendant company from 01.04.2018. Besides contributing his technical skills, the plaintiff also looked after tenders, contracts, design matters as well as administrative work. It was agreed between the Directors that the plaintiff and the defendant no. 2 will draw a salary to the tune of Rs. 1 lakh per month each and the profits of the company would be shared among them equally. The defendant no. 1 already had a current account in Corporation Bank, Ghaziabad but to have easy access to a bank near office, the current account no. 918020043058134 in Axis Bank was opened on 08.05.2018. The procedure adopted for incurring expenditure was that the defendant no. 2 would raise a proposal and the plaintiff would authorize the payment. The defendant no. 2 never shared with the plaintiff the financial status of the current account in the Corporation Bank. To run the affairs of the company as and when company required funds, defendant no. 2 requested the plaintiff for financial help and believing him, the plaintiff always helped the defendants CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 4/40 financially by transferring money from his account to the account of defendant no. 1 company. By the month of January, 2019 the total money transferred by the plaintiff to the defendant no. 1 company's account stood at Rs. 20,60,000/- apart from friendly cash loan of Rs. 12 lakh to defendant no. 2. To help in cleaning his credit card transactions, the plaintiff also transferred an amount of Rs. 1 lakh in the personal account of defendant no. 2 as requested by him.
5. The plaintiff further averred in the plaint that he and defendant no. 2 withdrew a salary of Rs. 1 lakh each every month till October, 2018. Thereafter, although the defendant no. 2 continued to draw a salary but whenever the plaintiff asked for withdrawal of his salary, the defendant no. 2 always stopped him by making excuses of payments being stuck up with the clients but with the promise to clear the same along with money transferred to company's account as well as the cash loan and personal loan of Rs. 1 lakh before the end of financial year in March, 2019. The defendants did not pay the plaintiff a salary of five months from November 2018 totaling Rs. 5 lakhs. Defendant no. 2 only transferred in the account of the plaintiff Rs. 2.5 lakh in March, 2019 out of Rs. 20,60,000/- outstanding against the company. On 20.04.2019, the defendant nos. 2 and 3 met the plaintiff and told him that his services were no longer required by the defendant no. 1 company. An agreement was drawn wherein it was agreed that the defendant nos. 2 and 3 would take over the company and the defendant no. 2 would pay the dues of Cash help of Rs. 12 lakh as well as outstanding amount of Rs. 17,60,000/- to the plaintiff along with above said Rs. 1 lakh CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 5/40 which were earlier transferred to the account of defendant no. 2. The plaintiff further averred that after a lot of persuasion, the defendant no. 2 transferred only Rs. 4 lakh on 03.06.2019 and Rs. 1 lakh on 20.12.2020 out of Rs. 17,60,000/- outstanding against the company. To the surprise of the plaintiff, defendant no. 2 on 19.08.2019 forwarded a Statement of Account by reversing the plaintiff salary of seven months from April, 2018 to October, 2018 from the amount of Rs. 20,60,000/- transferred by the plaintiff to the company's account. After a lot of whatsapp messages and telephonic calls seeking clarification, defendant no. 2 sent a loan confirmation certificate dated 08.11.2019 showing outstanding loan of Rs. 13,08,900.57/- against the company as on 31.03.2019 and on 14.11.2019 a letter saying, "I / We give here below the details of the salary for the year 2018-2019 reverses our record book account. Now we will pay that amount as consulting fees." The plaintiff objected to it during telephonic conversation as converting loan to salary as consultancy fee for the benefit of company was not justified when the plaintiff had already paid an income tax of Rs. 2,10,000/- on the salary received and he would again have to pay income tax on the salary now proposed to be paid to him as consulting fee. Thereafter, all the pleas of the plaintiff regarding payment of his dues went in vain and the defendant no. 2 always came up with the lame excuses. Getting no positive response from defendant no. 2, the plaintiff accompanied by his son-in-law Mr. Dinesh Kalawat met the defendant no. 2 personally on 21.09.2021 in the office at 71- B, Radhey Shyam Park, Sahibabad, Ghaziabad, UP wherein the defendant no. 2 promised to clear all dues by March, 2022 as per whatsapp message dated 21.09.2021. The defendant no. 2 CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 6/40 however by March, 2022 had only transferred Rs. 3,50,000/- on 29.12.2021 and Rs. 3,08,971/- on 03.02.2022. Thereafter, no payment was made and the plaintiff received only whatsapp messages. The plaintiff received message on 15.10.2022 to the effect that 'Bank loan already cleared, office expense Rs. 18 lakh for one year, half of same is Rs. 9 lakh adjusted from cash, for balance Rs. 3 lakh share me an GST invoice of consultation charges of current date. Will be paid shortly.' The plaintiff averred that as the defendant no. 2 had not paid the salary of Rs. 1 lakh per month for five months from Nov, 2018 to 20.04.2019, the day the plaintiff had parted ways with the company and had agreed to forgo the same, the office expenses which were about Rs. 1,25,000/- per month (one Accountant Rs. 15,000/-, one Receptionist Rs. 10,000/-, rent Rs. 58,000/- and Stationery charges) were not gone into and all profits and liabilities were to be of defendant no. 2 and 3. The plaintiff averred that the said whatsapp message confirms the acceptance of the cash loan of Rs. 12 lakh. The plaintiff averred that besides the balance of the company loan, the defendant no. 2 has also not paid the personal loan of Rs. 1 lakh as well as cash loan of Rs. 12 loan with monthly interest of 1% and 2% respectively for the period November, 2018 to October, 2022. The plaintiff averred that all the defendants are liable to pay the total outstanding amount of Rs. 48,05,888/- (Rs. 15,36,688/- + Rs. 1,61,200/- + Rs. 31,08,000/-) up to the period of October, 2022 along with future interest @ 2% per month as per the market usages and custom of the trade. The plaintiff served a legal notice to the defendants through his counsel on 08.04.2022 demanding the said amount of Rs. 48,05,888/- along with interest @ 24% p.a. CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 7/40 from 31.03.2022. The defendants failed to pay the outstanding amount despite receiving the legal notice dated 27.11.2022. The plaintiff thus prayed for a decree of a sum of Rs. 48,05,888/- along with pendente lite and future interest @ 24% p.a. in favour of the plaintiff and against the defendants along with costs of the suit.
6. The defendants filed a written statement and submitted that the suit is barred by limitation. It was further stated that this court does not have jurisdiction as the plaintiff alleged himself that the money given to the defendants was personal / friendly loan and / or issue related to salary / consultancy charges of the plaintiff, therefore the suit does not fall under the category of commercial dispute as per Section 2(c) of the Commercial Courts Act, 2015. It was stated that the plaintiff had prepared and filed forged and fabricated documents. The defendants stated that the defendant no. 2 was appointed as AR of the defendant no. 1 company on 11.08.2023. The defendant no. 2 had worked in various projects of Span Consultants Pvt. Ltd. & Stup Consultants Pvt. Ltd. wherein the plaintiff was the head of concerned department. The defendant no. 2 got to know plaintiff through the said projects and became close enough to give personal loans to each other on many occasions. The plaintiff quit his job in 2018 from Stup Consultants Pvt. Ltd. The plaintiff contacted defendant no. 2 and urged defendants to let him join defendant no. 1 as the Director and promised defendants to help them grow their company to leading highway consulting firm with his connections and abilities. The plaintiff told the defendants that he was also retired as Chief Engineer from Ministry of Road Transport & Highways, CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 8/40 hence he was having very good PR with the concerned departmental heads. It was mutually decided that for every new project or business introduced by the plaintiff, plaintiff would get his share from the profits but plaintiff during his time as a Director from March, 2018 to April, 2019 did not introduce any project or business and did not fulfill the promise made by him before becoming the Director. No consultancy charges or salary of plaintiff was also agreed. After becoming a director, plaintiff wanted his own office and forced the defendants to hire an office near his home. The plaintiff did not listen to the requests of the defendants that they cannot afford an office for him and finding no other way and in the hope that the plaintiff will get good business for the defendants, the defendants took an office on rent on 01.04.2018 at 110, DDA Building, District Center, Janak Puri, Delhi - 110058. The plaintiff recruited his own staff i.e. one receptionist, one accountant and one driver without even discussing with the defendants. The plaintiff started to transfer some amount in defendant no. 1 bank account and started to pay his own office expenses including salaries of staff and also petrol for his personal use from company's account which were on very high side and was done without asking defendants or any resolution of company. The plaintiff used services of the driver in personal capacity without the knowledge and consent of the defendants. Due to said problem, defendant no. 2 asked the plaintiff to operate from another account and it was decided to open another account in Axis Bank, Janak Puri Branch near the office of the plaintiff. It was averred in the written statement that defendants have paid the loan amount of the plaintiff and there is no legal due on the defendants as on the date. As per mutual CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 9/40 agreement total expense done by defendants to facilitate the plaintiff was to be paid back to the defendants in the eventuality if the defendants would not get any business from the efforts of the plaintiff. It was stated that the plaintiff forged and fabricated the loan confirmation certificate and provisional consultancy charges as both the certificates do not bear the signatures and seal of the defendants. Further, the same were neither entered into the register of Registrar of Companies as per Companies Act nor any resolution was passed by the defendants with respect to salary / consultation charges. It was stated that the plaintiff still possessed many letter heads of defendant no. 1 with mala fide intention to misuse them against the defendants. On demand of the plaintiff, defendants purchased a laptop vide bill dated 11.05.2018 which the plaintiff still possessed and he was to return it to the defendants prior to leaving the company as a director i.e. he was using the said laptop without any authority from the defendants. It was denied that sometimes the defendant no. 2 used to take the friendly cash loans from the plaintiff to the tune of Rs. 30,000/- to Rs. 40,000/- at a time to buy equipment and machinery and often used to return the same as and when he got the payment. It was also denied that as the defendant no. 2 expanded his business, the payments of friendly cash loan started sipping or by the year 2015 the total outstanding of friendly loan aggregated to a total of Rs. 4 lakhs. It was denied that considering good family relations and believing in defendant no. 2, the plaintiff extended financial help to him in cash on various occasions during the year 2015 to 2017 for construction of his house and the total cash help added up to Rs. 12 lakhs. It was denied that later on the plaintiff came to know that the defendant no. 2 also used this loan money CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 10/40 to buy a shop in Modi Nagar. It was denied that after meeting the plaintiff, defendant no. 2 called Annual General Meeting of the defendant no. 1 company or adopted the plaintiff as a director of defendant no. 1 company and the corporate office of the company shifted to the plaintiff's address. It was also denied that besides contributing his technical skills the plaintiff also looked after the tenders, contracts and designs matters as well as administrative work. It was also denied that it was agreed between the directors that the plaintiff and the defendant no. 2 would draw a salary to the tune of Rs. 1 lakh per month each and the profits of the company would be shared among them equally. It was admitted that the defendant no. 1 company already had a current account in Corporation Bank, Ghaziabad but to have easy access to a bank nearby office, a current account no. 918020043058134 was opened on 08.05.2018 in Axis Bank. It was denied that the procedure adopted for incurring expenditure was that the defendant no. 2 would raise a proposal and plaintiff will authorize the payment or that the defendant no. 2 never shared with the plaintiff the financial status of the current account in the Corporation Bank or that to run the affairs of the company as and when the company required funds the defendant no. 2 requested the plaintiff for financial help or believing him the plaintiff always helped the defendants financially by transferring money from his account to defendant no. 1 company's account. It was denied that by the month of January, 2019, the total money transferred by the plaintiff to defendant no. 1 company's account stood at Rs. 20,60,000/- apart from friendly cash loan of Rs. 12 lakh to the defendant no. 2. It was submitted that the defendant no. 2 repaid the loan amount of Rs. 1 lakh to the plaintiff. It was CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 11/40 denied that the defendant no. 2 and the plaintiff withdrew a salary of Rs. 1 lakh each and every month till October, 2018. The defendants submitted that they never issued any 'Loan Confirmation Certificate' dated 08.11.2019 showing an outstanding loan of Rs. 13,08,900.57/- against the defendant no. 1 company as on 31.03.2019 or on 14.11.2019 issued the letter as mentioned in the plaint. It was submitted that all the documents including said documents filed by the plaintiff were false which were fabricated by the plaintiff with ulterior motives. It was stated that defendants had paid all legal dues to the plaintiff. It was further submitted that the plaintiff had never advanced cash loan of Rs. 12,00,000/-, hence, question to repay or of interest did not arise at all. It was inter alia submitted that defendants always respected the plaintiff hence they did not ask for the above said laptop till date and the defendants have also not taken any action for recovering their legally due amount on the plaintiff and also despite financial crunches, opened an office as per demand of the plaintiff. The defendants denied that they were liable to pay the total outstanding amount of Rs. 48,05,888/- (Rs. 15,36,688/- + Rs. 1,61,200/- + Rs. 31,08,000/-) up to the period of October, 2022 along with future interest @ 2% per month as per the market usages and custom of the trade. The defendants thus prayed that the suit of the plaintiff be dismissed.
7. The plaintiff filed replication / rejoinder to the written statement of the defendants and reiterated the facts as mentioned in the plaint and controverted the facts as mentioned in the written statement. It was further submitted that an amount of Rs. 3,08,971/-was transferred by the defendants on 23.02.2022 CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 12/40 as per Statement of Account of Union Bank enclosed by the defendants themselves at page no. 41 of their reply which would show that the case was under correspondence and the suit had been filed within the limitation period. It was further submitted that documents were received through whatsapp message from accountant of the company namely Mr. Shiv Ashray Maurya on 8th and 15th November, 2019 (phone no. 9315131095). It was stated that saying no salary was agreed is a blatant lie as the same was very well reflected as transfers of Rs. 85,267 on 25.05.2018, 12.06.2018 and 24.07.2018 and Rs. 86,307/- on 14.08.2018, 19.08.2018, 18.10.2018 and 08.11.2018 in the name of the plaintiff in the Statement of Account of Axis Bank enclosed at page no. 24 to 33 of the reply by the defendants. It was stated that the amounts of Rs. 85,267/- and Rs. 86,307/-were after deduction of TDS of Rs. 14,733/- and Rs. 13,693/- respectively from the salary of Rs. 1 lakh. The salary of Rs. 1 lakh was also clear from the TDS Statement of the plaintiff. It was submitted that the Statement of Account of Axis Bank of defendant no. 1 also showed that the defendant no. 2 was also drawing a salary of Rs. 1 lakh per month in his name (Rs. 48,351/- + TDS) combined with salaries of his wife Smt. Anuradha and sister Ms. Poonam (Rs. 21,200/- + EPF for each). The plaintiff further submitted that the defendants with the aspiration of entering the field of highways consultancy by taking the technical and administrative help of the plaintiff opened an office in Janak Puri, Delhi and inducted the plaintiff a director. It was submitted that the defendant no. 2 also pressurized the plaintiff to shift the company's corporate office address to his residential address at Flat No. 1, Nalanda Apartments, D-Block, Vikaspuri and used his CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 13/40 influence not only to open an account in Axis Bank, B-Block Janak Puri but to get a loan of Rs. 10 lakhs as the plaintiff was a preferential client of the said bank. As the defendant no. 1 did not have any office staff, a staff of only two persons namely a receptionist cum typist Ms. Manpreet Kaur at a salary of Rs. 8,000/- per month and an accountant Sh. Shiv Ashray alias Laxman already known to defendant no. 2 as he was working with his CA at a salary of Rs. 15,000/- per month were inducted to run the day to day affairs. The plaintiff started looking after the office work and defendant no. 2 the field work. It was denied that the plaintiff recruited the staff for himself. It was stated that the company was already having 6-7 jobs in hand and to maintain the records of day to day expenditure and to attend to the requirements of the field staff, a bare minimum office staff of two persons was a necessity of the company and they continued even after the plaintiff left in April, 2019. The driver was a personal employee of the plaintiff and was not on the rolls of the company. The personal car of the plaintiff was being used for the affairs of the company and the petrol expenses along with the cost of services of the driver were being reimbursed to the plaintiff from the imprest money over which only the defendant no. 2 had the control. It was stated that by expressing the need to meet the expenditure requirement of ongoing field work and staff engaged thereon, the defendant no. 2 requested the plaintiff to transfer to the account in Corporation Bank Rs. 75,000/- on 03.04.2018, Rs. 1,25,000/- on 16.04.2018, Rs. 2,00,000/- on 23.04.2018, Rs. 1,00,000/- on 10.05.2018, Rs. 50,000/- on 15.05.2018 and Rs. 1,00,000/- on 21.05.2018 totaling to Rs. 6,50,000/-. It was further stated that it was wrong to say that the plaintiff did not get any CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 14/40 work for the defendant no. 1 company as the fact remains that it is only with the investment in the form of loan of Rs. 33,60,000/- (Rs. 20,60,000/- + Rs. 1,00,000/- through bank and Rs. 12,00,000/- in cash) by the plaintiff, arranging another Rs. 10,00,000/- from another source and Rs. 10,00,000/- from Axis Bank, the defendant no. 1 company could clear the payments to expedite the ongoing works and get new works thereby increasing the turnover of Rs. 2 to Rs. 2.5 lakhs to Rs. 5 to Rs. 7 lakhs. The loan of Rs. 10 lakhs from another source with interest was fully paid back besides paying 4-5 installments of Axis Bank loan. It would show that by plaintiff's investment and mobilization of additional resources by the plaintiff, the defendant no. 1 company earned enough during his stay of one year though he got salary only for 7 months. The defendants had a dubious intention from the very beginning. It was with this dubious intention of not sharing the account of Corporation Bank with the plaintiff to which the payments from clients continued to pour even after opening the account in Axis Bank on 09.05.2018 and the plaintiff was coaxed to transfer an amount of Rs. 6,50,000/- to this account.
8. From the pleadings, the following issues were framed by the Ld. Predecessor of this court on 04.11.2023:
1. Whether the plaintiff is entitled to recover from the defendant a sum of Rs. 48,05,888/- (Rupees forty eight lakh five thousand eight hundred and eighty eight only), as prayed in the plaint? OPP CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 15/40
2. If answer to issue no. 1 is in affirmative, whether the plaintiff is entitled to interest? If so, at what rate and for which period? OPP
3. Relief.
No other issue arose or was pressed by the parties.
9. In order to prove its case, the plaintiff has examined himself as PW1. No other witness has been examined by the plaintiff, hence, PE was closed on 03.09.2024.
10. The record would show that the defendants have not lead any evidence in support their case and the defendants' evidence was closed on 03.09.2024 upon statement of Ld. Counsel for the defendants.
11. I have heard the final arguments and perused the record.
12. The Ld. Counsel for the plaintiff has argued that plaintiff was the Director of defendant no. 1 company and provided some loan to defendant no. 1 company and also extended friendly loan to defendant no. 2. He referred to the hand written agreement dated 20.04.2019 Ex. PW1/3 and submitted that the defendant no. 2 has not denied his signatures on it. He submitted that on 02.06.2019, 29.12.2021 and 03.02.2022, payment of Rs. 4,00,000/-, Rs. 3,50,000/- and Rs. 3,08,971/- respectively was received by the plaintiff and no payment was CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 16/40 received after 03.02.2022. He referred to the Loan Confirmation Certificate Ex. PW1/4 (colly) and submitted that the amount of Rs. 85,267/- was paid to the plaintiff towards salary of Rs. 1 lakh per month after deducting the TDS from it. He submitted that as per ledger account of the plaintiff maintained by the defendant the entry of salary was changed to the loan account. He also referred to the Statement of Accounts of the defendant no. 1 vide entry dated 22.05.2018, 16:24:30 and submitted that defendant no. 2 was taking salary. He submitted that the suit is within the limitation period. He referred to the copy of whatsapp chats Ex. PW1/6 (colly) and submitted that till 08.11.2022 the defendant was asking the plaintiff to wait for some time for the payment which would serve as an acknowledgment of the amount to be paid by the defendant to the plaintiff and therefore, fresh period of limitation would start from 08.11.2022. He also submitted that this court has territorial jurisdiction to decide the suit and referred to the registered address of the defendant no. 1 as mentioned in the master data of defendant no. 1 proved as Ex. PW1/1 mentioning the registered address of defendant no. 1 as Flat No. 1, D Block, Nalanda Apartments, Vikas Puri, New Delhi, West Delhi which falls within the jurisdiction of this court. He further submitted that the plaintiff had also given his services in the office of defendant no. 1 at 110, First Floor, DDA Tower - II, District Centre, Janak Puri, Delhi - 110058 which also falls within the jurisdiction of this court. He further submitted that the plaintiff vide oral agreement used to look after the management of defendant no. 1 company regarding tenders, contracts, designs and administration work and as such it was a commercial dispute falling within section 2(1)(c)(x) of the Commercial Courts Act, CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 17/40 2015. He further submitted that the defendants have not lead any evidence in this case whereas plaintiff through his evidence has proved his case and as such suit of the plaintiff be decreed.
12.1. Ld. Counsel for the defendant has argued that the Commercial Courts Act, 2015 is not meant for personal cases and the plaintiff has not filed any Board Resolution of defendant no. 1 company to prove that he was the Director of the defendant no. 1 company. He submitted that the plaintiff was kept on consul- tancy charges only. He has submitted that this court has no terri- torial jurisdiction as the case should have been filed only at Sahibabad at the registered office address of the defendant no. 1 company. He submitted that the loan and Director's salary do not fall within the commercial dispute. He further submitted that the suit is barred by limitation. He also submitted that the plaintiff has not filed any document or bank document on record regard- ing alleged friendly loan given by the plaintiff to defendant no. 2. He argued that Ex. PW1/4 (colly) and Ex. PW1/5 (colly) are not original documents. He submitted that the plaintiff has not filed any supporting bank account or other document to show that the plaintiff had given the loan of Rs. 12 lakh in cash to the defen- dant no. 2. He submitted that no Statement of Accounts has been filed by the plaintiff. He referred to the testimony of PW-1 and submitted that Ex. PW1/6 (colly) cannot be read in evidence as in terms of testimony of the PW-1, Certificate under Section 65B of the Indian Evidence Act, 1872 Ex. PW1/11 was to be given by the Ld. Counsel for the plaintiff / PW-1 whereas the said certifi- cate has been filed by the plaintiff. He also submitted that the said certificate Ex. PW1/11 has also not been properly filed as it CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 18/40 has not been mentioned as in whose control the computer or printer was when the computer print outs were taken. He has sub- mitted that although the whatsapp chats Ex.PW1/6 (colly) cannot read in evidence due to lacuna in the Certificate under Section 65B of the Indian Evidence Act, 1872 Ex. PW1/11, however, it further does not mention any mobile numbers from which the said whatsapp chats were exchanged. He thus prayed that the plaintiff has failed to prove his case and the present suit should be dismissed.
13. My issue wise findings are as under:
Issue no. 1.
Whether the plaintiff is entitled to recover from the defendant a sum of Rs. 48,05,888/- (Rupees forty eight lakh five thousand eight hundred and eighty eight only), as prayed in the plaint? OPP As mentioned above, the plaintiff has examined himself as PW-1 in support of his case whereas the defendants have not lead any evidence.
14. The plaintiff as PW-1 has proved his evidence by way of affidavit as Ex. PW1/A wherein he has generally reiter- ated the facts as mentioned in the plaint. He has also proved the copy of master data of defendant no. 1 as downloaded from web- site of MCA as Ex. PW1/1. The ledger account of the plaintiff with defendant no. 1 company from 01.04.2018 to 17.08.2019 has been proved as Ex. PW1/2. Copy of hand written agreement dated 20.04.2019 between the plaintiff and defendant no. 2 has CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 19/40 been proved as Ex. PW1/3. Copy of Loan Confirmation Certifi- cate and provisional consultancy charges have been proved as Ex. PW1/4 (colly) and Ex. PW1/5 (colly) respectively. Copy of whatsapp chats have been proved as Ex. PW1/6 (colly). Copy of legal notice dated 27.11.2022 along with postal receipts and re- turned envelopes have been proved as Ex. PW1/7, Ex. PW1/8 (colly) and Ex. Ex. PW1/9 (colly) respectively. The certificate dated 25.03.2023 of Non Starter Report issued by South West, DLSA, Dwarka Courts, New Delhi has been proved as Ex. PW1/10 and Certificate under Section 65B of the Indian Evi- dence Act, 1872 of the plaintiff has been proved as Ex. PW1/11.
15. PW-1 was cross examined by the Ld. Counsel for the defendants wherein he inter alia deposed that the paragraph no. 4 of his evidence by way of affidavit Ex.PW1/A was correct. He volunteered that the corporate address of defendant no. 1 company was changed as that is his residence when he became the Director and opened the account in Axis bank, D Block, Janak Puri. He deposed that the documents Ex. PW1/1 showing the company master data mentions the registered address of de- fendant no. 1 as his address i.e. Flat No. 1, D Block, Nalanda Apartments, Vikas Puri, New Delhi, West Delhi. He admitted that in Ex.PW1/1 corporate address of defendant no. 1 has not been mentioned. He deposed that the document Ex. PW1/1 was handed over to him by defendant no. 2. He denied the sugges- tions that Ex. PW1/1 was not handed over to him by defendant no. 2 or that the said document had been fabricated by him. He inter alia deposed that he was an authorized signatory of the ac- count in Axis Bank, however he did not remember the said ac-
CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 20/40count number. He deposed that the money transactions on behalf of defendant no. 1 company was done in two ways i.e. one by cheque which was handled by defendant no. 2 and secondly through online method which was initiated by defendant no. 2 and was authorized by him. He deposed that the Janakpuri office of defendant no. 1 company was opened with the mutual consent of him and defendant no. 2 and that he had stated to defendant no. 2 that only if the office of defendant no. 1 company would be opened at Janak Puri then he would work in the company. He de- posed that the office work of Janak Puri was being handled by him, however, the defendant no. 2 also used to come there as per his wish and that defendant no. 2 used to handle the filed work pertaining to the defendant no. 1 company. He deposed that he had signed on the rent agreement pertaining to the Janakpuri of- fice whereas defendant nos. 2 & 3 had not signed on it. He de- posed that the defendant no. 2 had worked as sub consultant with him from the year 2010 to January, 2018. He deposed that he had not issued any appointment letter to defendant no. 2 as a sub consultant, however, he was issuing work order to him on behalf of SNC Lovlin Company, Noida from 2010 till mid 2011 and subsequently on behalf of Stup Consultants, District Centre, Janakpuri from mid 2011 to January, 2018. He denied the sug- gestion that he had falsely mentioned in paragraph no. 6 of his af- fidavit Ex. PW1/A to the effect that the defendant no. 2 used to work with him as a sub consultant. He could not produce any such work orders as it was a record of the above said companies. He deposed that he started to sit and work in the Janak Puri office of the defendant no. 1 from April, 2018, he worked there till April, 2019 as a director, the defendant no. 1 company had re-
CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 21/40ceived work orders from April, 2018 till April, 2019, the com- pany used to issue quotations, if it was accepted then the defen- dant no. 1 used to get the work orders and that the said quotations used to be online. He deposed that he and the defendant no. 2 jointly used to give the said quotations, the work orders were re- ceived by defendant no. 1 company on the said online quotations given jointly by him and defendant no. 2 and they had received work orders from M3M and Godrej companies, however, he did not remember the name of other companies. He admitted that the defendant no. 1 was already working with M3M, however, he did not know about Godrej. He deposed that defendant no. 1 com- pany was not having any infrastructure with respect to highway consultancy and as such there was no occasion to get any work order with respect to highway consultancy during the period he was the Director of defendant no. 1 company. He deposed that to work with NHAI, the defendant no. 1 was required to get itself empanelled with it, however, it required minimum five years work experience of defendant no. 1, which defendant no. 1 was not having and as such he as director of defendant no. 1 company did not make any effort to get any work order from NHAI. He admitted that the defendant no. 1 company had made him a direc- tor as he was having experience and expertise in highway consul- tancy. He deposed that during his directorship in the defendant no. 1 company, the defendant no. 1 did not get any work order with respect to highway consultancy as for that empanelment would have been required even to work with PWD which the de- fendant no. 1 company was not having. He denied the sugges- tions that defendant no. 1 had kept him on a commission basis on the work orders to be procured by him or that he had not been CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 22/40 kept on salary basis. He deposed that there was no resolution passed by the company to keep him on salary basis and that there was an oral mutual understanding between him and defendant no. 2 that they would withdraw a monthly salary of Rs. 1 lakh each for their work. He denied the suggestion that there was no such oral mutual understanding between him and defendant no. 2. He did not remember the number of times he had given friendly cash loan of Rs. 30,000/- to Rs. 40,000/- at a time to the defendant no.
2. He deposed that he had not taken anything or any cheque in writing from defendant no. 2 in the year 2015 when his total out- standing friendly loan had aggregated up to Rs. 4 lakhs. He de- nied the suggestion that he had not taken anything in writing or any cheque from defendant no. 2 as no such friendly loan was ever given to the defendant no. 2. He deposed that he had not sent any legal notice or filed any case against the defendant no. 2 in the year 2015 for the recovery of said alleged Rs. 4 lakhs. He deposed that he had further extended financial help to defendant no. 2 in cash on various occasions during the year 2015 to 2017 to the extent of Rs. 8 lakhs and that the amount of Rs. 12 lakh as mentioned in para no. 8 of his affidavit Ex. PW1/A includes the outstanding amount of Rs. 4 lakhs of the year 2015. He admitted that in para no. 7 and 8 of his affidavit Ex. PW1/A, he had not mentioned the exact amount or the exact date or month or year when he had allegedly extended the friendly cash loan to defen- dant no. 2. He denied the suggestion that he had not mentioned the exact amount or the exact date or month or year of alleged friendly cash loan because he had never given any such friendly loan to the defendant no. 2. He deposed that the said amount of Rs. 12 lakh was not withdrawn by him from any bank but was CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 23/40 Stridhan amount of his wife and his three daughters. He denied the suggestion that he was not having any such amount of Rs. 12 lakh in his house as Stridhan to be handed over to the defendant no. 2. He deposed that he had not shown the said amount of Rs. 12 lakh either in his ITR or in the ITR of his wife or daughters. He deposed that he had not filed any bank account showing that he had transferred Rs. 20,60,000/- to the account of defendant no. 1 company. He denied the suggestion that he had not filed any such bank account as he had never transferred Rs. 20,60,000/- to the account of defendant no. 1 company. He admitted that the document Ex. PW1/2 did not bear any stamp of defendant no. 1 company or of any other director. He denied the suggestion that the said document is a forged and fabricated document. He vol- unteered that the said document was forwarded by defendant no. 2 to him through whatsapp on 19th August, 2019 with the re- marks that it should be submitted to his (PW1's) C.A. for ITR purpose. He deposed that he thought that the said document was authentic and as such did not ask for any stamped document from defendant no. 2. He knew that the companies issue documents which bear the stamp of the company or the director. He denied the suggestion that the said document Ex. PW1/2 was not sent to him by whatsapp by defendant no. 2. He denied the suggestions that he was not receiving any salary from the defendant no. 1 company or that the defendant no. 1 had paid his advance consul- tancy charges which were subject to his getting work orders in favour of defendant no. 1 from other companies. He deposed that he was not having stamp of defendant no. 1 company. He deposed that paragraph no. 2 of his affidavit Ex. PW1/A was mentioned as per the advise of his Ld. Counsel and that he was CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 24/40 not aware about the contents of Section 2(1)(c) of the Commer- cial Courts Act, 2015. He denied the suggestions that the recov- ery of friendly cash loan does not fall within the jurisdiction of Commercial Courts or that defendant no. 1 had shown into its ledger his alleged salary as a loan to him. He admitted that the defendant no. 1 company was working prior to his joining as a director in the same business. He inter-alia deposed that when he joined the defendant no. 1 company then the defendant no. 2 was already having an experience of about 8 years. He denied the suggestions that the defendant no. 2 had never drawn any salary from the defendant no. 1 company or that he and defendant no. 2 had taken a loan of similar amount from the defendant no. 1 com- pany. He denied the suggestion that the Loan Confirmation Cer- tificate Ex. PW1/4 (Colly) is a forged and fabricated document or that it did not have the signatures of defendant no. 2. He volun- teered that the said document had been signed by defendant no. 2, it also bears the date 08.11.2019 and also bears the stamp of the defendant no. 1 company. He deposed that he had taken the print out of the document Ex. PW1/4 (Colly) from the market. He volunteered that he had received the said document through whatsapp from the Accountant of defendant no. 2 and thereafter he had taken out its print out from the market, he had also sent the said document through whatsapp to defendant no. 2 and it was not denied by the defendant no. 2. He deposed that the cor- porate office of defendant no. 1 company at Janak Puri was not having any Accountant. He deposed that one Typist cum Recep- tionist and one Accountant was recruited at the said Corporate Office. He volunteered that the defendant no. 2 had recom- mended them, he had recruited them after interview and that he CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 25/40 had signed their appointment letters. He denied the suggestions that the signatures at point A on Ex. PW1/4 (Colly) were of the said Accountant who was recruited by him or that he had wrongly volunteered regarding Ex. PW1/4 (Colly) to the effect that 'he had also sent the said document through whatsapp to de- fendant no. 2 and this was not denied by the defendant no. 2.' He admitted that the letter dated 20.04.2019 Ex. PW1/3 was in his handwriting. He denied the suggestion that he being a director of defendant no. 1 company was given blank signed paper and letter heads of the company to facilitate him in his work at the Corpo- rate Office at Janakpuri because the registered office where de- fendant no. 2 used to sit was at Sahibabad which was very far away from Janakpuri office. He deposed that he had not placed on record my any bank transaction document to show that he had transferred any amount to any of the defendant. He denied the suggestion that he had not filed any such bank transaction record as he had not transferred or paid any amount to any of the defen- dant. He denied the suggestion that Provisional Consultancy Charges document Ex. PW1/5 (Colly) is a forged and fabricated document or that it does not bear the signatures of either defen- dant no. 2 or defendant no. 3. He volunteered that the signatures on Ex. PW1/5 (Colly) at points A & B is that of defendant no. 2, the said document was also sent by the Accountant of defendant no. 2 and thereafter he had taken out its print out from the mar- ket. He further volunteered that he had also sent the said docu- ment through whatsapp to defendant no. 2 and it was not denied by the defendant no. 2. He denied the suggestion that he had never sent the said document Ex. PW1/5 (Colly) through what- sapp to defendant no. 2. He admitted that the documents Ex.
CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 26/40PW1/4 (Colly) and Ex. PW1/5 (Colly) are only computer print out and their originals have not been placed on record. He de- nied the suggestion that both the said documents Ex. PW1/4 (Colly) and Ex. PW1/5 (Colly) were forged and fabricated docu- ments. He deposed that he had received Ex. PW1/4 (Colly) and Ex. PW1/5 (Colly) through whatsapp from the above said Ac- countant in the month of November, 2019. He deposed that he had sent Ex. PW1/4 (Colly) to the defendant no. 2 through what- sapp immediately after receiving the same on 08.11.2019 for ver- ification, however, he did not remember as to when he had sent the document Ex. PW1/5 (Colly) to the defendant no. 2 through whatsapp for verification. He volunteered that he had again sent all the necessary documents including Ex. PW1/4 (Colly) and Ex. PW1/5 (Colly) to defendant no. 2 through whatsapp in the year 2021. He admitted that he had not placed on record any what- sapp chat of 08.11.2019 to show that he had sent the document Ex. PW1/4 (Colly) to defendant no. 2. He denied the suggestion that he had not placed any such whatsapp chat of 08.11.2019 on record as he had not sent any such whatsapp message to defen- dant no. 2. He deposed that he had never demanded the originals of Ex. PW1/4 (Colly) and Ex. PW1/5 (Colly) from any of the de- fendants. He denied the suggestion that he had not demanded the said documents from any of the defendants as no such documents were ever sent through whatsapp to him by any of the defendants. He deposed that he had forwarded his whatsapp chats Ex. PW1/6 (Colly) to his lawyer who had taken out the print out of the same which were filed in the court. He did not know as to from where his lawyer had taken the print outs of chats Ex. PW1/6 (Colly). He admitted that the Certificate under Section 65B of Indian Evi-
CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 27/40dence Act, 1872 Ex. PW1/11 bears his signatures at point A. He denied the suggestions that he could not have given the said cer- tificate Ex. PW1/11 or that he had given a wrong certificate as he had not taken the print out of the documents from a computer which was under his control or that all the electronic record or computer print out filed by him on record are forged and fabri- cated documents. He deposed that he had received the Legal No- tice dated 20.11.2023 which is Ex. PW1/D1. He deposed that he had replied to the said Legal Notice by mentioning that he could return the laptop at any time and that he was not having any blank Letter Head with signatures of the defendant no. 1 com- pany with him. He deposed that he had not filed any such reply on record. He volunteered that he had mentioned it in his repli- cation/rejoinder. He deposed that he had not made any effort so far to return the said Laptop to defendant no. 2. He denied the suggestions that he had not given any loan to the defendants which was legally recoverable by him from them.
16. Vide present suit, the plaintiff has prayed for a de- cree for recovery of sum of Rs. 48,05,888/- along with pendente lite and future interest @ 24% p.a. in favour of plaintiff and against the defendants along with the costs of the suit. The case of the plaintiff in nutshell is to the effect that the defendant no. 2 used to take friendly cash loans from him which totalled to Rs. 12,00,000/- till the year 2017. In the month of September, 2017, the defendant no. 2 approached the plaintiff to join hands with him and help him technically and administratively in the consul- tancy work. The defendant no. 2 called AGM of defendant no. 1 company and adopted the plaintiff as its director. An office space CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 28/40 at Janak Puri, Delhi was hired and the plaintiff started to look af- ter the work of defendant no. 1 company from 01.04.2018. It was agreed between the Directors that the plaintiff and the defendant no. 2 would draw a salary of Rs. 1 lakh per month each and the profits of defendant no. 1 company would be shared equally among them. The defendant no. 2 requested the plaintiff for fi- nancial help to run the affairs of defendant no. 1 company upon which the plaintiff helped the defendants financially by transfer- ring money from his account to the account of defendant no. 1 company. By January, 2019, the total money transferred by the plaintiff to the company's account stood at Rs. 20,60,000/- apart from above said friendly cash loan of Rs. 12,00,000/- to defen- dant no. 2. The plaintiff and defendant no. 2 withdrew a salary of Rs. 1 lakh each month till October, 2018. Plaintiff was not paid the salary of five months from Nov, 2018 on wards. Only Rs. 2,50,000/- out of Rs. 20,60,000/- outstanding against defendant no. 1 was transferred to the plaintiff. On 20.04.2019 defendant no. 2 and 3 informed the plaintiff that his services were no longer required by defendant no. 1 company upon which an agreement Ex. PW1/3 was drawn wherein it was agreed that defendant no. 2 and 3 would take over the defendant no. 1 company and defen- dant no. 2 would pay the dues of cash help of Rs. 12,00,000/- as well as the outstanding amount of Rs. 17,60,000/- to the plaintiff and Rs. 1 lakh transferred to the account of defendant no. 2. De- fendant no. 2 transferred Rs. 4 lakh on 03.06.2019 and Rs. 1 lakh on 20.12.2020 out of Rs. 17,60,000/- outstanding against the de- fendant no. 1 and thereafter defendant no. 2 on 19.08.2019 for- warded a Statement of Accounts by reversing the plaintiff's salary of seven months from April, 2018 to October, 2018 from CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 29/40 the amount of Rs. 20,60,000/- transferred by the plaintiff to the company's account. Thereafter, the defendant no. 2 sent Loan Confirmation Certificate and provisional consultancy charges Ex. PW1/4 (colly) and Ex.PW1/5 (colly) respectively. The defendant no. 2 started to give lame excuses in the messages. By March, 2022 the defendant no. 2 transferred only Rs. 3,50,000/- on 29.12.2021 and Rs. 3,08,971/- on 03.02.2022. Besides the bal- ance of company loan, the defendant no. 2 had also not paid the personal loan of Rs. 1 lakh as well as cash loan of Rs. 12 lakh with monthly interest of 1 % and 2 % respectively for the period of November, 2018 to October, 2022.
17. It was argued by Ld. Counsel for the defendants that this court has no territorial jurisdiction to entertain the suit whereas the Ld. Counsel for the plaintiff had submitted that this court has territorial jurisdiction to try the present suit. In that regard, the Company Master Data of the defendant no. 1 company has been proved as Ex. PW1/1 which mentions the registered address of the defendant no. 1 company as Flat no. 1, D Block, Nalanda Apartments, Vikas Puri, New Delhi, West Delhi - 110018. It is evident that the said registered address of defendant no. 1 company falls within the jurisdiction of this court. Further, it is evident from the facts of the plaint that the corporate office of the defendant no. 1 company was shifted to 110, First Floor, DDA Tower - II, District Centre, Janak Puri, Delhi - 110058 from where the plaintiff used to look after the work of the defendant no. 1 company. The said address also falls within the jurisdiction of this court. It is thus evident that this court has territorial jurisdiction to try the present suit and the CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 30/40 submissions of Ld. Counsel for the defendants in that regard are without any merits.
18. Ld. Counsel for the defendants also submitted that the present case does not fall within the definition of commercial dispute of the Commercial Courts Act, 2015, whereas the Ld. Counsel for the plaintiff has submitted that the plaintiff vide oral agreement used to look after the management of defendant no. 1 regarding tenders, contracts, designs and administration work and as such it was commercial dispute falling within section 2(1)(c)
(x) of the Commercial Courts Act, 2015.
18.1. In that regard, it has been inter alia mentioned in the plaint that besides contributing his technical skills, the plaintiff also looked after the tenders, contracts and design matter as well as administrative work of the defendant no. 1 company. PW-1 in his evidence by way of affidavit Ex. PW1/A has also inter alia deposed to the effect that the defendant no. 2 had approached him and started coaxing him to join hands with them and to help them technically and administratively in their consultancy work, he was adopted as director of defendant no. 1 company and that besides contributing his technical skills, he also looked after the tenders, contracts and design matter as well as administrative work. During his cross-examination, PW-1 admitted that defendant no. 1 company had made him a director as he was having experience and expertise in highway consultancy. The facts of the case would also show that the plaintiff has also raised a dispute regarding non payment of his salary dues by the defendant no. 1 company. Section 2(1)(c)(x) of the Commercial CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 31/40 Courts Act, 2015 provides that commercial dispute means a dispute arising out of management and consultancy agreements. It is thus evident from the above said discussion and facts of the case that there was a dispute between the plaintiff on the one hand and defendant no. 1 company and remaining defendants regarding management and consultancy agreements also. In the said circumstances, it is held that the present suit falls within the definition of commercial dispute as given under the Commercial Courts Act, 2015 and the submissions of the Ld. Counsel for the defendants in that regard are without any merits.
19. The first fact which needs to be proved by the plain- tiff to succeed in the present recovery suit is that he had earlier given a friendly cash loan of Rs. 12 lakh to defendant no. 2 and thereafter, had also transferred Rs. 20,60,000/- to the account of defendant no. 1 company and further also transferred Rs. 1 lakh in the personal account of defendant no. 2. The ledger account of the plaintiff for the period 01.04.2018 to 17.08.2019 maintained by defendant no. 1 company as allegedly forwarded by defendant no. 2 to the plaintiff through whatsapp has been proved as Ex. PW1/2. In that regard, PW1 in his cross examination has admit- ted that the said document does not bear any stamp of defendant no. 1 company or of any director. He while denying the sugges- tion that the said document was a forged and a fabricated docu- ment volunteered that it was forwarded by defendant no. 2 to him through whatsapp on 19.08.2019 with the remarks that it should be submitted to his (plaintiff's) C.A. for ITR purpose. He further deposed that he thought that Ex. PW1/2 was authentic and as such did not ask for any stamped document from defendant no. 2.
CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 32/40PW1 deposed that he knew that the companies issued documents which bear the stamp of the company or the director. He denied the suggestion that the said document Ex. PW1/2 was not sent to him by whatsapp by defendant no. 2. The document Ex. PW1/2 in fact shows that it does not bear any stamp of defendant no. 1 company or of its any director. This fact has also been admitted by PW1 during his cross examination and he also deposed to the effect that he knew that the companies issued documents which bear the stamp of the company or the director. The authenticity of the said document Ex. PW1/2 is thus highly doubtful and it cannot be relied upon. Further, the whatsapp chats have been proved as Ex. PW1/6 (colly). Perusal of Ex. PW1/6 (colly) shows that it does not mention any mobile number from which the said alleged chats were either sent or received. PW1 during his cross examination has deposed that he had forwarded his whatsapp chats Ex.PW1/6 (colly) to his lawyer who had taken out the print out of the same which were filed in the court. He also deposed that he had no knowledge as to from where his lawyer has taken the print outs of said chats Ex. PW1/6 (colly). He denied the sug- gestions that he could not have given the Certificate under Sec- tion 65B of the Indian Evidence Act, 1872 Ex. PW1/11 or that he had given a wrong certificate as he had not taken the print out of the document from a computer which was under his control or that all the electronic record or computer print out filed by him on record are forged and fabricated documents. The Certificate of the plaintiff under Section 65B of the Indian Evidence Act, 1872 has been proved as Ex. PW1/11 bearing the signatures of PW1 / plaintiff at point 'A' wherein it has been inter alia certified that the copies of emails and whatsapp chats and screen shots have CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 33/40 been taken from its original source. It is evident that as PW1 has deposed to the effect that he had forwarded the said whatsapp chats Ex. PW1/6 (colly) to this lawyer who had taken out the print out of the same which were filed in the court, hence, only the Ld. Lawyer of the plaintiff / PW1 could have given the said Certificate under Section 65B of Indian Evidence Act, 1872 with respect to the said whatsapp chats. PW1, as discussed above, even deposed to the effect that he had no knowledge as to from where his lawyer had taken the print outs of said chats Ex. PW1/6 (colly). It is an admitted position that there is no Certifi- cate under Section 65B of Indian Evidence Act, 1872 of the Ld. Lawyer of the plaintiff / PW1 in that regard on record. In the said circumstances, the said whatsapp chats Ex. PW1/6 (colly), which are electronic records, become inadmissible in evidence. It is also pertinent to note that the said Certificate under Section 65B of Indian Evidence Act, 1872 Ex. PW1/11 is also not proper as per law as it does not mention that the computer output con- taining the information was produced by the computer during the period over which the computer was used regularly to store or process the information for the purposes of any activities regu- larly carried on over that period by the person having lawful con- trol over the use of the computer, during the said period informa- tion of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities and throughout the material part of the said period the computer was operating properly or if not then in any respect of any period in which it was not operating properly or was out of operation during that part of the period was not such as to affect the elec-
CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 34/40tronic record or the accuracy of its contents. It has further not been mentioned in the said certificate the things giving such par- ticulars of any device involved in the production of that elec- tronic record as may be appropriate for the purpose showing that the electronic record was produced by a computer. As the Certifi- cate under Section 65B of Indian Evidence Act, 1872 Ex. PW1/11 given by the plaintiff is not proper and sufficient for the admissibility of the electronic record, hence, the entire electronic record filed by the plaintiff in support of his case including Ex. PW1/2 (ledger account of the plaintiff as maintained by the de- fendant no. 1 company) and Ex. PW1/6 (colly) become inadmis- sible in evidence. Further, the plaintiff has also not filed the dec- laration under Order XI Rule 6(3) CPC as amended by the Com- mercial Courts Act, 2015 regarding electronic records. It is abso- lutely fatal to the case of the plaintiff.
20. The loan confirmation certificate has been proved as Ex. PW1/4 (colly) whereas provisional consultancy charges doc- ument has been proved as Ex. PW1/5 (colly). PW1 in his cross examination has denied the suggestion that Ex. PW1/4 (colly) is a forged and fabricated document or that it does not have the sig- natures of defendant no. 2. He deposed that he had taken the print out of the document Ex. PW1/4 (colly) from the market. He vol- unteered that he had received the said document through what- sapp from the accountant of defendant no. 2 and thereafter he had taken its print out from the market. He further volunteered that he had also sent the said document through whatsapp to defendant no. 2 which was not denied by defendant no. 2. He deposed that one typist cum receptionist and one accountant was recruited at CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 35/40 the corporate office and volunteered that defendant no. 2 had rec- ommended them, he (PW1) had recruited them after interview and he (PW1) had signed their appointment letters. He denied the suggestion that the signatures at point 'A' on Ex. PW1/4 (colly) were of the said accountant who was recruited by him. He also denied the suggestions that Ex. PW1/5 (colly) is a forged and fabricated document or that it did not bear the signatures of either defendant no. 2 or defendant no. 3. He volunteered that the signa- tures on Ex. PW1/5 (colly) at points 'A' and 'B' were that of de- fendant no. 2, the said document was also sent by the accountant of defendant no. 2 and thereafter he had taken out its print out from the market. He further volunteered that he had also sent the said document through whatsapp to defendant no. 2 which was not denied by defendant no. 2. He denied the suggestions that he had never sent the said document Ex. PW1/5 (colly) through whatsapp to defendant no. 2. He admitted that the documents Ex. PW1/4 (colly) and Ex. PW1/5 (colly) were only computer print out and their originals have not been placed on record. He further deposed that he had received Ex. PW1/4 (colly) and Ex. PW1/5 (colly) through whatsapp from the said accountant in the month of November, 2019, he had sent Ex.PW1/4 (colly) to defendant no. 2 through whatsapp immediately after receiving the same on 08.11.2019 for verification, however, he did not remember as to when he has sent Ex. PW1/5(colly) to the defendant no. 2 through whatsapp for verification. He admitted that he had not placed on record any whatsapp chats of 08.11.2019 to show that he had sent the document Ex.PW1/4 (colly) to defendant no. 2. He deposed that he had never demanded the originals of Ex. PW1/4 (colly) and Ex. PW1/5 (colly) from any of the defendants.
CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 36/4020.1 It is thus an admitted position from testimony of PW1 that the documents Ex. PW1/4 (colly) and Ex. PW1/5 (colly) are only computer print out and their originals have not been placed on record. Plaintiff / PW-1 has also deposed to the effect that he had never demanded the originals of the said docu- ments from any of the defendants. It has already been held above that the Certificate under Section 65B of the Indian Evidence Act, 1872 Ex. PW1/11 given by the plaintiff is not proper and sufficient for the admissibility of the electronic record and hence the entire electronic record filed by the plaintiff in support of his case becomes inadmissible in evidence. Further, plaintiff has also not filed the declaration regarding the electronic records under Order XI Rule 6 (3) CPC as amended by the Commercial Courts Act, 2015. It is thus evident that the said documents Ex. PW1/4 (colly) and Ex. PW1/5 (colly) have not been properly proved on record and are inadmissible in evidence. The plaintiff / PW-1 has also admitted that he has not placed on record any whatsapp chat of 08.11.2019 to show that he had sent the document Ex. PW1/4 (colly) to defendant no. 2. Further, as already discussed above, the whatsapp chat Ex. PW1/6 (colly) are also computer print outs and they are also inadmissible in evidence as the Certificate un- der Section 65B of the Indian Evidence Act, 1872 given by the plaintiff is not proper and sufficient for the admissibility of the electronic record. It is again a major lacuna in the case of the plaintiff and the case of the plaintiff is bound to fail.
21. As discussed above, it is the case of the plaintiff that he had given the substantial friendly cash loan of Rs. 12 lakhs to the defendant no. 2. It is an admitted position that the plaintiff / CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 37/40 PW-1 has not proved by any valid document, the said transac- tions vide which he had transferred the said amount to the defen- dant no. 2. In that regard, PW-1 has specifically deposed during his cross examination that he had not placed on record his any bank transaction document to show that he had transferred any amount to any of the defendants. PW1 also admitted during his cross examination that in paragraph no. 7 and 8 of his affidavit Ex. PW1/A, he had not mentioned the exact amount or the exact date or month or year when he had allegedly extended the friendly cash loan to defendant no. 2. He also deposed that he had not shown the said amount of Rs. 12 lakhs either in his ITR (In- come Tax Return) or in the ITR of his wife or daughters. The plaintiff / PW-1 has thus further failed to prove that he had ex- tended any such friendly cash loan of Rs. 12 lakhs to the defen- dant no. 2. It is also the case of the plaintiff that he had trans- ferred Rs. 20,60,000/- to the defendant no. 1 company account, however, in his cross examination he deposed in that regard that he had not filed any bank account showing that he had trans- ferred Rs. 20,60,000/- to the account of defendant no. 1 company. It is again absolutely fatal to the case of the plaintiff.
22. It is thus evident from the above said discussion that the plaintiff has failed to prove the issue no. 1 to the effect that he is entitled to recover from the defendant a sum of Rs. 48,05,888/- as prayed in the plaint. It is thus held that the plaintiff is not entitled to recover from the defendant a sum of Rs. 48,05,888/-, as prayed in the plaint. Issue no. 1 is thus decided against the plaintiff.
CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 38/4023. Issue no. 2 If answer to issue no. 1 is in affirmative, whether the plaintiff is entitled to interest? If so, at what rate and for which period? OPP In view of my findings on issue no. 1 to the effect that plaintiff is not entitled to recover from the defendants a sum of Rs. 48,05,888/- as prayed in the plaint, it is held that the plaintiff has also failed to discharge the onus of proof qua the issue no. 2. The issue no. 2 is thus also decided against the plaintiff and it is held that the plaintiff is not entitled to any interest.
24. Issue No. 3Relief.
In view of above said discussion and findings on issue no. 1 and 2, it is held that the plaintiff is not entitled to any relief and has failed to prove its case beyond preponderance of probabilities against the defendants.
25. The suit of the plaintiff is thus dismissed, however, with no order as to costs.
Decree sheet be drawn accordingly.
A copy of this judgment be issued to all the parties to the dispute through electronic mail, if the particulars of the same have been furnished, or otherwise, in terms of Order XX Rule 1 of the Code of Civil Procedure, 1908 (as amended by the Commercial Courts Act, 2015).
CS(COMM) No. 282/2023 Faqir Chand Vs. M/s Bhoomi Geotech Pvt. Ltd. & Ors. Page No. 39/4026. File be consigned to record room after due compliance.
Announced in open Court Digitally
signed by
AMIT
AMIT BANSAL
on 24.09.2024
BANSAL Date:
2024.09.24
15:58:43
+0530
(Amit Bansal)
District Judge (Commercial Court)-03,
South-West, Dwarka Courts, New Delhi
24.09.2024
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