Delhi High Court - Orders
Ayush Aggarwal & Anr vs Nipman Fasterner Pvt. Ltd. & Ors on 28 May, 2020
Author: Mukta Gupta
Bench: Mukta Gupta
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 134/2020 &
I.A. 4029/2020 (u/O XXXVIII R. 5 r/w O. XXXIX R 1&2 CPC),
I.A. 4030/2020 (exemption),
I.A. 4031/2020 (exemption from court fee),
I.A. 4032/2020 (exemption from attested affidavit)
AYUSH AGGARWAL & ANR. .....Plaintiffs
Represented by: Mr.Rohit Gandhi, Advocate.
versus
NIPMAN FASTERNER PVT. LTD. & ORS. ..... Defendants
Represented by: Mr. Jai Dehadari, Mr. Sidharth Arora,
Advs. for D-1 to 6.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
ORDER
% 28.05.2020 The hearing has been conducted through Video Conferencing.
I.A. 4030/2020 (exemption)
1. Exemption allowed subject to just exceptions.
2. Original documents/ certified documents be filed within 72 hours of the resumption of regular Court proceedings.
3. Application is disposed of.
I.A. 4031/2020 (exemption from court fee) & I.A. 4032/2020 (exemption from attested affidavit)
1. Court fee and duly attested affidavits be also filed within 72 hours of the resumption of regular Court proceedings.
2. Applications are disposed of.
CS(OS) 134/2020 Page 1 of 6CS(OS) 134/2020 & I.A. 4029/2020 (u/O XXXVIII R. 5 r/w O. XXXIX R 1&2 CPC)
1. Plaint be registered as suit.
2. Issue summons in the suit and notice in the application.
3. Learned counsel for the defendant Nos.1 to 6 accepts summons in the suit and notice in the application.
4. Summons in the suit and notice in the application be also issued to defendant No.7 on the plaintiff taking steps through e-mail/SMS/Whatsapp.
5. Written statement to the suit and reply affidavit to the application be filed within 30 days. Replication and rejoinder affidavit to the reply affidavit be filed within three weeks thereafter.
6. Parties shall file all original documents in support of their respective claims as also affidavit of admission/ denial along with their respective pleadings.
7. The present suit has been filed by the plaintiff for recovery of a sum of ₹ 3 crores handed over to the defendants in lieu of part-payment in respect of purchase of an industrial plot measuring approximately 8100 Sq. Meters located at Manesar, Gurugram bearing industrial built up building No.37-38, Sector 3, IMT Manesar, Gurugram which is in the name of defendant No.1 i.e. M/s. Nipman Fasterner Pvt. Ltd. & Ors.
8. It is stated that the defendants were in urgent need of money for repayment of bank loan and other liabilities and thus they were desirous of selling the said building with the plot and in this regard a meeting took place between the plaintiffs and the defendants and after some negotiations the sale consideration was agreed for a total sum of ₹ 16 crores out of which ₹ 3 crores was to be paid as an advance consideration at the time of signing the CS(OS) 134/2020 Page 2 of 6 agreement to sell and the balance amount of ₹ 13 crores was payable at the time of registration of sale deed which was to be registered on or before 20th May, 2020.
9. Plaintiff has placed on record the details of the two cheques dated 24 th February, 2020 drawn on HDFC Bank through which ₹ 3 crores were transferred to the account of defendant No.1. Plaintiff has also filed copy of the Board Resolution of the defendant No.1 wherein one Mr. Pravin Kumar Malhotra was authorized to negotiate in respect of the sale of property as mentioned above with the plaintiff. It is the case of the plaintiffs that the draft agreement to sell was exchanged between the parties through Whatsapp and after the plaintiffs sent the signed copy of the agreement to sell to the defendants for defendant No.2 to sign the same, the plaintiffs never received back the signed copy of the agreement to sell. Plaintiffs' claims that to complete the sale transaction they also applied for loan from the HDFC Bank. Copy of the loan application has also been placed on record.
10. Learned counsel for the defendant who has entered appearance on advance notice submits that the present suit is totally mala-fide. Though there is transfer of ₹ 3 crores to the account of defendant No.1, however the same is in response to an agreement to sell dated 6th September, 2018 entered into between the defendant No.1 in respect of the property abovementioned and one M/s. V.G. Auto Technology and since the said party had no finances, the plaintiffs were their financers and the defendant No.1 received the money on behalf of M/s. V.G. Auto Technology from the plaintiffs.
11. Learned counsel for the defendant No.1 to 6 also challenges the CS(OS) 134/2020 Page 3 of 6 territorial jurisdiction of this Court to entertain the suit stating that the property in question is situated at Manesar and the defendants No.2 to 6 are residents of Gurugram. Even though the registered office of defendant No.1 is at Jasola, Delhi however the said office is lying locked and the defendant No.1's principal/ working office is also at Gurugram.
12. Present suit is not a suit for specific performance of the agreement to sell and thus where the property is situated is immaterial. Plaintiff in Para 37 of the plaint has pleaded that this Court has territorial jurisdiction to try and entertain the present suit, as the registered office of the defendant No.1 is situated within the jurisdiction of this Court, the defendants work for gain within the jurisdiction of this Court and part of cause of action also accrued in the territorial jurisdiction of this Court, as the cheques were collected from the plaintiffs and deposited in the Bank both of which fall within the territorial jurisdiction of this Court.
13. At this stage, the averments in the plaint by the plaintiff have to be accepted by way of demurer. Defendants in whose favour the two cheques were given has its registered office at Jasola in Delhi. Whether the said office is functional or not is a matter of trial. Further, as stated by the plaintiff, part of cause of action has also arisen within the territorial jurisdiction of this Court. Hence, at this stage the plea of learned counsel for the defendant that the suit is liable to be returned for want of territorial jurisdiction cannot be accepted.
14. The second plea of learned counsel for the defendants that no summons in the suit be issued as the suit is malafide, the plaintiffs are merely financers and the money has been handed over to defendant No.1 by the plaintiffs as the financers of M/s. V.G. Auto Technology with whom the CS(OS) 134/2020 Page 4 of 6 defendant No.1 entered into the agreement to sell on 6th September, 2018 also deserves to be rejected at this stage. Plaintiff has placed on record the reply of the defendants to the legal notice sent on behalf of the plaintiffs for return of ₹ 3 crores wherein the defendant has admitted the Board Resolution dated 13th January, 2020 whereby Pravin Kumar Malhotra was appointed by the defendant No. 1 to negotiate the sale consideration to the advantage of defendant No.1 with the plaintiffs. In case an agreement to sell had already been entered into between the defendant No.1 and M/s. V.G. Auto Technology on 6th September, 2018, there was no need of further negotiations for the sale consideration of the property aforementioned with the plaintiffs in January 2020. Further, the reply nowhere denies receiving the amount of ₹ 3 crores. The reply to the show cause notice is writ large which denials to the averments in the notice and that defendants have no obligation towards the plaintiff. The defendant has not mentioned in the initial reply but only in the subsequent reply dated 11th May, 2020 which is in response to the message of the plaintiff dated 6th May, 2020 that the amount of ₹ 3 Crores was received from the plaintiffs as financer of M/s. V.G.Auto Technology.
15. In view of the fact that the defendants does not deny having received payment of ₹ 3 crores by two cheques bearing No. '000278' and '000160' both dated 24th February, 2020 for a sum of ₹ 1,50,00,000/- each drawn on HDFC Bank, the plaintiffs have made out a prima face case in their favour and in case no ad-interim injunction is granted at this stage they will suffer an irreparable loss. The balance of convenience also lies in favour of the plaintiff.
16. At this stage, learned counsel for the defendant No.1 to 6 fairly states CS(OS) 134/2020 Page 5 of 6 that till the next date of hearing before this Court status quo as to title and possession of the property i.e. building no. 37-38, Sector 3, IMT Manesar, Gurugram will be maintained.
17. List the suit and application before Court on 15th September, 2020.
18. Copy of the order be uploaded on the website.
MUKTA GUPTA, J.
MAY 28, 2020 'ga' CS(OS) 134/2020 Page 6 of 6