Delhi District Court
Lenskart Solution Pvt Ltd vs Arup Jarosa on 17 March, 2025
IN THE COURT OF DR. NEERA BHARIHOKE
DISTRICT JUDGE (COMMERCIAL COURT)-06
SOUTH EAST, SAKET COURTS,
NEW DELHI
CNR No. DLSE01-007812-2023
CS (Comm) 710/2023
1. LENSKART SOLUTIONS PVT. LTD.
(Earlier Valyoo Technologies Pvt. Ltd.)
Company registered under
Companies Act, having office at:
W-123, Greater Kailash Part-2,
New Delhi - 110048
Through its Authorised Representative
Mr. Sahil Arora
2. DEALSKART ONLINE SERVICES PVT. LTD.
Company Registered Under Companies Act
Having Its Registered Office At:
H. No. 339A/8, Mehta Chowk,
Near Juhi Clinic,
Dadawadi Jain Mandir Road,
Mehrauli, New Delhi-110030.
Through Authorised Representative
Mr. Ajay Nagar
... Plaintiffs
Versus
MR. ARUP JAROSA
#55/1, Govinda Reddy Complex,
Opt To HCC Road,
Velankani, Gate No.2,
Electronic City Phase 1,
Doddathoguru, Bengaluru,
Karnataka-560100. NEERA
BHARIHOKE
Digitally signed
by NEERA
CS (COMM) 710/23 Lenskart Solutions Pvt. Ltd. Vs. Arup Jarosa Page 1 of 23 BHARIHOKE
Date: 2025.03.17
16:55:05 +0530
Also At:
Desringdi Jarosa, Phaiding,
PS - Mahur,
Sub Division- Haflong,
District-Dima Hasao-788830.
Mobile: 8011766967
....Defendant
Date of institution of the suit : 25.07.2023
Date on which judgment was reserved : 10.03.2025
Date of pronouncement of Judgment : 17.03.2025
JUDGMENT
SUIT FOR RECOVERY
1. By way of this judgment, I shall decide the suit of the Plaintiffs filed for recovery of Rs.1,46,65,706/- alongwith interest.
CASE OF THE PLAINTIFFS AS SET UP IN THE PLAINT
2. Brief facts of the case as stated by the Plaintiffs in the plaint are that:
a) The Plaintiff no.1 is an Indian Company duly incorporated under the Companies Act. The Plaintiff no. 1 Company is having its registered office at W-123, Greater Kailash Part-2, New Delhi-110048. The Plaintiff company was originally incorporated on 19.05.2008 as Valyoo Technologies Pvt. Ltd. and the name of the company has been changed to the present one i.e. Lenskart Solutions Pvt. Ltd. by NEERA CS (COMM) 710/23 Lenskart Solutions Pvt. Ltd. Vs. Arup Jarosa Page 2 of 23 BHARIHOKE Digitally signed by NEERA BHARIHOKE Date: 2025.03.17 16:55:13 +0530 virtue of certificate of incorporation consequent upon change of name issued in this regard. Mr. Sahil Arora is the Authorised representative of the Plaintiff no. 1 company who has been duly authorized to initiate and prosecute the present proceedings for and on behalf of the Plaintiff no. 1. Mr. Sahil Arora is competent and duly authorized person on behalf of the Plaintiff no.1 who is otherwise fully conversant with the business of the Plaintiff no.1 as well as with the facts of the present case. The plaint is thus signed and verified by him for and on behalf of the Plaintiff no.1.
b) The Plaintiff no. 2 is an Indian company duly incorporated under the Companies Act, having its registered office at H. No. 339A/8, Mehta Chowk, Near Juhi Clinic, Dadawadi Jain Mandir Road, Mehrauli, New Delhi- 110030. Mr. Ajay Nagar is the Authorised representative of the Plaintiff no. 2 company who has been duly authorized to initiate and prosecute the present proceedings for and on behalf of the Plaintiff no. 2. Mr. Ajay Nagar is competent and duly authorized person on behalf of the Plaintiff no.2 who is otherwise fully conversant with the business of the Plaintiff no.2 as well as with the facts of the present case. The plaint is thus signed and verified by him for and on behalf of the Plaintiff no.2.
c) The Plaintiff no.1 is engaged and associated with retail and wholesale of eye wear, sunglasses, contact lenses, prescription lenses, and other allied & cognate /associated goods and also has considerable know-how, expertise and experience in the marketing NEERA CS (COMM) 710/23 Lenskart Solutions Pvt. Ltd. Vs. Arup Jarosa Page 3 of 23 BHARIHOKE Digitally signed by NEERA BHARIHOKE Date: 2025.03.17 16:55:19 +0530 including wholesale marketing and distribution and sale of said goods through authorized retailers.
d) The Plaintiff no. 2 is the Master Franchisee of the Plaintiff no. 1 M/s Lenskart Solutions Pvt. Ltd. which is the owner of the trademark "Lenskart". In the said position as master franchisee of the Plaintiff no.1, the Plaintiff no. 2 operates stores under the trademark "Lenskart".
e) The Defendant was employed with the Plaintiff no. 2 vide Appointment Letter dated 04.03.2019 at Senior Executive Level for the position of Store in-charge with Employee ID DSL06215. The Defendant having accepted his position under the said Appointment Letter became bound by the terms and conditions of the said employment contract.
f) One Mr. Saurav Deb, Proprietor M/s Opticart, had approached the Plaintiffs for license to operate a "Lenskart" franchisee outlet of the Plaintiffs. A License Agreement dated 06.03.2018 was accordingly executed between the Plaintiff no. 1 and the Defendant whereby license was granted to the Defendant. A Supply Agreement dated 06.03.2018 was also executed between the Plaintiff no. 1 and the Defendant in this regard. The Defendant was accordingly operating "Lenskart" franchisee outlet at Ground floor, Asian Palace Complex, GS Road Ulubari, Guwahati, Assam- 781007.
NEERA BHARIHOKE Digitally signed by NEERA CS (COMM) 710/23 Lenskart Solutions Pvt. Ltd. Vs. Arup Jarosa Page 4 of 23 BHARIHOKE Date: 2025.03.17 16:55:24 +0530
g) The Defendant was deputed as Store Manager at the 'Lenskart' franchisee outlet being operated by Mr. Saurav Deb at Ground floor, Asian Palace Complex, GS Road Ulubari, near LIC Office, Guwahati, Assam- 781007. That as part of the said position, the Defendant was taking care of all the sales, collection of amounts from customers as also raising invoices and was in full control of affairs at the store.
h) In the month of November 2021, during an internal audit and reconciliation of sales and collections received from the said store for April-Oct 2021, it was observed that there was a huge shortfall of Rs.1,04,94,847/- (Rupees One Crore Four Lacs Ninety-Four Thousand Eight Hundred Forty-Seven only) in the overall orders booked from the said store against the collections received by the Plaintiffs for all the orders booked using credit card mode during the said period. A mail dated 11.11.2021 was issued in this regard to the Defendant thereby calling upon him to make good the shortfall and informing him that the previous financial years were also being investigated.
i) The Defendant and Mr. Saurav Deb were immediately put to notice of the aforesaid by the Plaintiffs and asked to do reconciliation and furnish explanation for the huge shortfall. Defendant and Mr. Saurav Deb were also informed that the audit team of the Plaintiffs would visit the store for further internal previous financial years. investigation and that the scope of investigation was being widened.
NEERA CS (COMM) 710/23 Lenskart Solutions Pvt. Ltd. Vs. Arup Jarosa Page 5 of 23 BHARIHOKE Digitally signed by NEERA BHARIHOKE Date: 2025.03.17 16:55:30 +0530 The Defendant and Mr. Saurav Deb did not respond positively and to prevent any further loss, the point of sale (POS) allocated to the store was blocked. Mr. Saurav Deb took issue as to blocking of POS vide mail dated 18.11.2021 and was informed that the earlier difference had not been reconciled and hence it was not possible to unblock the POS.
j) On further investigation into the earlier financial years, it was found that there was in fact a huge difference of Rs. 3,42,65,706/-(Rupees Three Crores Forty Two Lacs Sixty Five Thousand Seven Hundred Six only) in the overall orders booked from the said store against the collections received by the Plaintiff which is reflected hereinunder:
2019 2020 2021 Total
Sales 1,53,74,617 1,70,99,390 1,66,74,223 4,91,48,229
Collection -1,00,98,443 -42,37,420 -5,46,660 -1,48,82,523
52,76,174 1,28,61,970 1,61,27,563 3,42,65,706
k) A mail dated 18.11.2021 was addressed to the Defendant, Mr. Saurav Deb and others attaching the relevant data and they were called upon to reconcile and make good the gap.
l) Defendant and Mr. Saurav Deb when confronted with the aforesaid failed to furnish any justification or explanation. The Defendant also NEERA BHARIHOKE CS (COMM) 710/23 Lenskart Solutions Pvt. Ltd. Vs. Arup Jarosa Page 6 of 23 Digitally signed by NEERA BHARIHOKE Date: 2025.03.17 16:55:36 +0530 stopped reporting for duties and became incommunicado. The Defendant was the store manager at the said store and responsible for invoicing and receiving payments from customers. The Defendant while acting in collusion and connivance with Mr. Saurav Deb and under a deep-rooted conspiracy together siphoned off a huge amount of Rs.3,42,65,706/- (Rupees Three Crores Forty-Two Lacs Sixty- Five Thousand Seven Hundred Six only) belonging to the Plaintiffs over a period of three years and distributed the proceeds so obtained amongst themselves.
m) In furtherance of the aforesaid, they dishonestly and fraudulently forged and fabricated the invoices and thereby committed forgery for the purpose of making wrongful gains and causing wrongful losses to the Plaintiffs. They made and were in possession of and have deliberately used forged and fabricated invoices as genuine. They have also fabricated and falsified accounts maintained with the complainant. They stood in a position of trust with the Plaintiffs, which trust they have severely breached. They thus made themselves liable for prosecution for the offence of misappropriation, criminal breach of trust, cheating, forgery, forgery of valuable security, forgery for the purpose of harming reputation, using forged documents as genuine, falsification of accounts, abetment and criminal conspiracy as also destruction of evidence.
n) A team of the Plaintiffs also visited the store and it was found that apart from the EDC (Electronic Data Capture) machine provided by NEERA CS (COMM) 710/23 Lenskart Solutions Pvt. Ltd. Vs. Arup Jarosa Page 7 of 23 BHARIHOKE Digitally signed by NEERA BHARIHOKE Date: 2025.03.17 16:55:42 +0530 the Plaintiffs which was linked to the bank account of the Plaintiffs, there was another EDC machine in use at the store. The team also sought CCTV footage at the store, however, except for footage for a short period, all the earlier footage was found deleted. That the said deletion of CCTV footage was apparently deliberate so as to destruct evidence and try to cover up for the fraud.
o) Modus operandi adopted for the commission of the said fraud also became apparent during the internal investigation and visit at the store. It was found that the Defendant was acting in collusion and connivance with the franchise owner Mr. Saurav Deb and booking of orders was done from customers while furnishing credit card details, without the payment actually having been processed to the designated account of the Plaintiffs and through the EDC machine provided in this regard. The amount was received in cash/ UPI transfer/ crediting amount to other accounts by using the other EDC machine. The order was processed at the end of the Plaintiffs in good faith under the impression that payment would have been processed to its bank account, which though was not the case. The same though went undetected since reconciliation never happened, except for the first time in November 2021 and the Plaintiffs continued to operate in good faith throughout the period of around 3 years during which the Defendant in collusion with Mr. Saurav Deb continued to siphon off amounts.
NEERA BHARIHOKE Digitally signed by NEERA BHARIHOKE CS (COMM) 710/23 Lenskart Solutions Pvt. Ltd. Vs. Arup Jarosa Page 8 of 23 Date:
2025.03.17 16:55:50 +0530p) In regard to the aforesaid siphoning off and shortfall of Rs.3,42,65,706/- (Rupees Three Crores Forty Two Lacs Sixty Five Thousand Seven Hundred Six only), a legal notice dated 07.12.2021 was issued to the Defendant as also to Mr. Saurav Deb. The said notice was duly served upon the Defendant but the Defendant failed to comply with the same.
q) Subsequently mail dated 18.12.2021 was issued on behalf of the Plaintiff to the Defendant, Mr. Saurav Deb and others. A response dated 20.12.2021 was issued by Mr. Saurav Deb acknowledging that an amount of Rs.1,96,00,000/- had been received by him directly in his bank account and he had agreed to return the said amount to the Plaintiffs. Mr. Saurav Deb thereafter gave a repayment schedule vide mail dated 23.12.2021 but he failed to comply with his undertakings.
r) The Plaintiff no. I which is the owner of trademark "Lenskart" and the franchisor had under the aforesaid circumstances lodged a police complaint in this regard. On the said complaint of the Plaintiff no.1, Case No. 127/2022 was registered under Sections 120B/406/408/420/467/471/34 of the IPC read with Section 66/67(D) of the Information Technology Act, 2008 by Paltan Bazar P.S. on 05.03.2022.
s) In respect of the said FIR, Mr. Saurav Deb had sought anticipatory bail before Hon'ble Court, deposited certain amounts as per statement/ directions, failed to comply with statement/ directions, NEERA BHARIHOKE CS (COMM) 710/23 Lenskart Solutions Pvt. Ltd. Vs. Arup Jarosa Page 9 of 23 Digitally signed by NEERA BHARIHOKE Date: 2025.03.17 16:55:59 +0530 was arrested in the matter and subsequently granted bail. During investigation, it came forth that out of the total siphoned off amount, an amount of Rs.1,96,00,000/- was siphoned off and was credited to the account of the Mr. Saurav Deb.
t) The balance amount of Rs.1,46,65,706/- has been siphoned off by the Defendant which amount he has failed to pay to the Plaintiffs.
u) The Plaintiffs preferred a Pre-litigation/Pre-Institution Mediation before the Competent Authority, i.e. SEDLSA, on 04.11.2022, however Defendant did not appear before the Competent Authority. Furthermore, the Non-Starter Report for the Pre-Institution Mediation was issued by the Competent Authority, SEDLSA, dated 01.12.2022.
3. Hence, the present suit has been filed.
CASE OF THE DEFENDANT
4. Memo of appearance was filed by learned Counsel for the Defendant on 01.12.2023 and the copy of the plaint alongwith documents were supplied to learned Counsel for the Defendant on same day. Hence the Defendant was served on 01.12.2023. But neither any Written Statement was filed nor anyone appeared on behalf of the Defendant. Hence the Defendant was proceeded ex parte vide order dated 19.01.2024 and the matter was listed for Plaintiff's evidence.
NEERA BHARIHOKE CS (COMM) 710/23 Lenskart Solutions Pvt. Ltd. Vs. Arup Jarosa Page 10 of 23 Digitally signed by NEERA BHARIHOKE Date: 2025.03.17 16:56:05 +0530 PLAINTIFFS' EVIDENCE
5. Plaintiffs examined PW-1 Shri Sahil Arora on 03.05.2024. He presented his evidence by way of affidavit vide Ex. PW-1/A. He reiterated the contents of the plaint and relied upon the following documents-
i. Certificate of incorporation dt. 19.05.2008 is Ex.PW-1/1. ii. Certificate of incorporation with the changed name dt.
19.05.2015 is Ex.PW1/2.
iii. Board Resolution dt. 08.06.2022 is Ex.PW-1/3 (OSR). iv. Authority letter dt. 01.04.2023 is Ex.PW-1/4 (OSR). v. Licence agreement dt. 06.03.2018 is Ex.PW-1/5. vi. Emails dt. 11.11.2021 are Ex.PW-1/6 (colly.). vii. Emails dt. 18.11.2021 are Ex.PW-1/7 (colly). viii. Legal notice dt. 07.12.2021 is Ex.PW-1/8. ix. Original postal receipts are Mark A (this document had been exhibited in evidence affidavit as Ex.PW-1/9). x. Copy of FIR No. 127/22 dt. 05.03.2022 is Ex.PW-1/10. xi. Copy of non-starter report dt. 01.12.2022 is Ex.PW-1/11.
xii. Statement of account is Ex.PW-1/12.
xiii. Affidavit under Order XI Rule 6 CPC is Ex.PW-1/13. (wrongly exhibited as Ex.PW-1/12 in the evidence affidavit).
NEERA BHARIHOKE Digitally signed by NEERA BHARIHOKE CS (COMM) 710/23 Lenskart Solutions Pvt. Ltd. Vs. Arup Jarosa Page 11 of 23 Date: 2025.03.17 16:56:11 +0530
6. Plaintiffs examined PW-2, Shri Ajay Nagar, on 03.05.2024. He presented his evidence by way of affidavit vide Ex. PW-2/A. He relied upon the following documents-
i. Certificate of incorporation dt. 08.09.2011 is Ex.PW-2/1. ii. Board Resolution dt. 14.11.2016 is Ex.PW-2/2(OSR). iii. Authority letter dt. 09.05.2023 is Ex.PW-2/3 (OSR).
iv. Appointment letter dt. 04.03.2019 is Ex.PW-2/4.
7. Plaintiffs had filed an application u/o XI Rule 1 CPC for placing on record additional documents and leading additional evidence alongwith list of documents and affidavit of additional evidence. The said application was allowed in favour of the Plaintiffs.
8. Plaintiffs examined PW-1 Shri Sahil Arora on 07.02.2025. He presented his additional evidence by way of affidavit vide Ex. PW-1/Y. He relied upon the following documents-
i. Certified copy of the judgment and decree dated 06.11.2024 alongwith documents i.e. complete record of CS (Comm) 705/2023 passed by Shri Bhupesh Kumar, Ld. DJ (Comm, Court)-05, South- East Saket Courts, New Delhi are Ex. PW-1/A. (The same shall be read as Ex. PW-1/Z (Colly) as affidavit of evidence of PW-1 has been tendered as Ex. PW-1/A.) NEERA BHARIHOKE CS (COMM) 710/23 Lenskart Solutions Pvt. Ltd. Vs. Arup Jarosa Page 12 of 23 Digitally signed by NEERA BHARIHOKE Date: 2025.03.17 16:56:17 +0530
9. Plaintiffs' Evidence was closed on 07.02.2025 vide separate statement given by Shri Sahil Arora, Authorized Representative of the Plaintiff No.1.
DEFENDANT'S EVIDENCE
10. As Defendant was proceeded ex parte on 19.01.2024, therefore, the matter was not listed for Defendant's Evidence and the matter was listed for ex parte final arguments.
FINAL ARGUMENTS
11. I have heard the submissions of learned Counsel for Plaintiff and have carefully gone through the record.
12. The suit of the Plaintiff is based upon the documents placed on record as Ex. PW-1/1 to Ex.PW1/13 and on the testimony of PW-2 and the documents placed on record as PW-2/1 to PW-2/4.. The Plaintiff has also relied on the Judgment passed in CS (Comm) 705/2023, passed by Shri Bhupesh Kumar, Ld. DJ (Comm, Court)-05, South-East Saket Courts, New Delhi which was tendered as part of Ex. PW-1/A on 07.02.2025 and set of documents filed as Ex. PW-1/A on 07.02.2025 shall be read as Ex. PW-1/Z (Colly) as affidavit of evidence of PW-1 is already Ex. PW-1/A. NEERA BHARIHOKE CS (COMM) 710/23 Lenskart Solutions Pvt. Ltd. Vs. Arup Jarosa Page 13 of 23 Digitally signed by NEERA BHARIHOKE Date: 2025.03.17 16:56:22 +0530
13. As per the case of the Plaintiffs, Lenskart Solutions Pvt. Ltd. (Plaintiff no.1) and its master franchisee (Plaintiff no.2) have suffered wrongful loss due to the acts of the Defendant who was former employee of Plaintiff no. 2 and a franchise owner Saurav Deb (to whom licence was granted by Plaintiff no. 1) because of orchestrating a financial fraud of Rs.3.42 Crores over three years at a Guwahati franchise store. The Defendant, who was employed as a Store in charge, allegedly collaborated with the franchise owner, Mr. Saurav Deb, to manipulate transactions by diverting customer payments through an unauthorized payment machine. An internal audit in November 2021 uncovered the discrepancy of Rs.1,04,94,847/- (Rupees One Crore Four Lacs Ninety- Four Thousand Eight Hundred Forty Seven only). Further the investigation into the earlier financial years revealed the total amount of Rs.3,42,65,706/- (Rupees Three Crores Forty Two Lacs Sixty Five Thousand Seven Hundred Six only).
14. The case of the Plaintiffs is that the Defendant while acting in collusion and connivance with Mr. Saurav Deb and under a deep-rooted conspiracy together siphoned off a huge amount of Rs.3,42,65,706/- belonging to the Plaintiffs over a period of three years and distributed the proceeds so obtained amongst themselves.
15. Plaintiffs have also submitted that in furtherance of the aforesaid, they dishonestly and fraudulently forged and fabricated the invoices and thereby committed forgery for the purpose of making wrongful gains and NEERA CS (COMM) 710/23 Lenskart Solutions Pvt. Ltd. Vs. Arup Jarosa Page 14 of 23 BHARIHOKE Digitally signed by NEERA BHARIHOKE Date: 2025.03.17 16:56:29 +0530 causing wrongful losses to the Plaintiffs. They made and were in possession of and have deliberately used forged and fabricated invoices as genuine. They have also fabricated and falsified accounts maintained with the complainant. They stood in a position of trust with the Plaintiffs, which trust they have severely breached. They thus made themselves liable for prosecution for the offence of misappropriation, criminal breach of trust, cheating, forgery, forgery of valuable security, forgery for the purpose of harming reputation, using forged documents as genuine, falsification of accounts, abetment and criminal conspiracy as also destruction of evidence.
16. It is thus noticed that the acts of forgery, abetment, causing wrongful loss to Plaintiffs as well as liability of the Defendant and Saurav Deb has been imputed as joint as role of neither of them is decipherable from the material available on record and the submissions of the Plaintiffs cited in the three preceding paragraphs demonstrate that Saurav Deb and the Defendant in active connivance have duped the Plaintiffs and under a deep-rooted conspiracy together siphoned off a huge amount of Rs.3,42,65,706/- belonging to the Plaintiffs over a period of three years and distributed the proceeds so obtained amongst themselves. However, the present suit has been filed for an amount of Rs.1,46,65,706/- out of the said amount and for the remaining amount, i.e.1,96,00,000/-, the Plaintiff no.1 filed a separate suit for a sum of Rs.1.28 Crores approx. (after adjustment of the amount already paid by Saurav Deb in that case) which has been decreed in favour of the Plaintiff no.1 vide decree and judgment dated 06.11.2024 against Saurav Deb in CS(C0MM) No. NEERA BHARIHOKE CS (COMM) 710/23 Lenskart Solutions Pvt. Ltd. Vs. Arup Jarosa Page 15 of 23 Digitally signed by NEERA BHARIHOKE Date: 2025.03.17 16:56:34 +0530 705/2023. Though said proceedings are not part of the pleadings of the present suit, it was deemed essential to allow them to be taken on record to effectively adjudicate the present matter.
17. Learned Predecessor of this Court had heard final arguments in the present matter on 01.06.2024 and after hearing the same, raised specific queries which are reproduced herein as:
"(i) Why the audit report on the basis of which the figures are provided in para 12 of the plaint has not been filed and proved?
(ii) Whether the defendant appeared in the proceedings arising out of FIR No. 0127/2022, PS Paltan Bazar, Guwahati Central?
(iii) Whether the police has made any investigation and has arrived at any figures which were individually siphoned by the defendant?
(iv) How the plaintiff has come to the conclusion that the owner of the store Mr. Saurav Deb is liable only to the extent of ₹1,96,00,000/- and not for the remaining amount of ₹1,46,65,706/-
the liability of which is put on the defendant in the present suit?
(v) Why the plaintiff has filed separate suits against the present defendant who was the store manager and the owner of the outlet Mr. Saurav Deb when the total siphoning of the funds from the store is stated to be ₹3,42,65,706/-."
18. Plaintiffs were also directed to file the written submissions in respect of these queries and the matter was adjourned to 29.07.2024. The matter was adjourned seven times for the said queries raised vide order dated 01.06.2024, however, learned Counsel for the Plaintiffs did not give the clarifications sought. NEERA BHARIHOKE Digitally signed by CS (COMM) 710/23 Lenskart Solutions Pvt. Ltd. Vs. Arup Jarosa Page 16 of 23 NEERA BHARIHOKE Date: 2025.03.17 16:56:41 +0530
19. Ex-parte final arguments were advanced by learned Counsel for the Plaintiffs and he also filed brief submissions. However, the brief submissions filed by learned Counsel for Plaintiffs did not answer the queries raised by learned Predecessor of this court vide order dated 01.06.2024.
20. In their written submissions, the Plaintiffs have submitted that the present suit has been filed for recovery of principal amount of Rs.1,46,65,706/- which has been siphoned off by the Defendant. The Plaintiffs have also submitted that a total amount of Rs.3,42,65,706/- has been siphoned off out of which Rs.1,96,00,000/- was admitted as having been received by Mr. Saurav Deb in his communications as also legal proceedings before Hon'ble High Court as well as in CS(COMM) No. 705/2023 after adjusting the amounts received from him stands decreed. This statement on the part of the Plaintiffs does not prove or explain as to how on the basis of statement of Saurav Deb that he received an amount of Rs.1,96,00,000/-, can it be said that the Defendant was not a party or was not in connivance with Saurav Deb in siphoning off the said amount of Rs.1,96,00,000/-. Statement of Saurav Deb about receiving of the said amount of Rs.1,96,00,000/- by him does not exonerate the Defendant from the liability towards that siphoned off amount of Rs.1,96,00,000/- nor the Plaintiffs have brought anything on record much less proved that in siphoning of amount of Rs.1,96,00,000/- the Defendant had no role or in the amount claimed through the present suit, Saurav Deb had no role in siphoning off the suit amount of the present matter when it is categorical NEERA CS (COMM) 710/23 Lenskart Solutions Pvt. Ltd. Vs. Arup Jarosa Page 17 of 23 BHARIHOKE Digitally signed by NEERA BHARIHOKE Date: 2025.03.17 16:56:46 +0530 case of the Plaintiffs that the Defendant in connivance with Saurav Deb in deep-conspiracy had siphoned off a total amount of Rs.3,42,65,706/- of the Plaintiffs. The Plaintiffs should have arrayed both Saurav Deb and the Defendant as Defendants, but they did not implead Saurav Deb as Defendant who is a necessary party in the facts of the present case to decide the matter effectively. The suit is therefore bad for non-joinder of necessary party under Order I Rule 10 CPC since the Plaintiffs have not given any reason as to why they have not impleaded Saurav Deb as a Defendant whereas his name figures alongwith name of Defendant in FIR dated 05.03.2022 registered in PS Paltan Bazar, Guwahati Central filed against the alleged siphoning off a total amount of Rs.3,42,65,706/- of the Plaintiffs, Ex. PW-1/10, the mails exchanged between the Plaintiffs and Defendants, Ex. PW-1/6 (collectively) and Ex. PW-1/7 (collectively) and they jointly duped and cheated the Plaintiffs and together in active connivance siphoned off a total amount of Rs.3,42,65,706/- of the Plaintiffs.
21. The Plaintiffs have submitted that it is a settled position of law that the Plaintiff is the master of his suit. The Plaintiffs have relied on Order I Rule 3 CPC which provides that all persons may be joined in one suit as Defendants where (a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and
(b) if separate suits were brought against such persons, any common question of law or fact would arise. The Plaintiffs have also relied on Order I Rule 6 CPC which provides that the Plaintiff may at its option NEERA BHARIHOKE CS (COMM) 710/23 Lenskart Solutions Pvt. Ltd. Vs. Arup Jarosa Page 18 of 23 Digitally signed by NEERA BHARIHOKE Date: 2025.03.17 16:56:52 +0530 join as parties to the same suit all or any of the persons severally or jointly and severally liable on any one contract. They have submitted that in terms of both the said rules, it is the prerogative of the Plaintiff whom it joins as Defendants. The Plaintiffs have submitted that in the present suit, the Plaintiffs, at their option, have proceeded separately against the Defendant and in a separate suit against Saurav Deb on distinct causes of action in respect of amounts respectively siphoned off by them.
22. The said submission of the Plaintiffs is completely contrary to the case of the Plaintiffs in the present case. The Plaintiffs have not brought anything on record nor have they proved nor is it their case that out of total amount of Rs.3,42,65,706/-, Saurav Deb had siphoned off Rs.1,96,000/- and the Defendant had siphoned off Rs.1,46,65,706/- respectively. In view of the submissions made in the plaint as well as in evidence of PW-1 and PW-2, the liability of the Defendant and Saurav Deb towards the suit amount of the present case for total amount of Rs.3,42,65,706/- is joint and arises out of same cause of action as elaborated above.
23. The case of the Plaintiffs is categorical and specific that Saurav Deb and the Defendant in active connivance have duped the Plaintiffs and under a deep-rooted conspiracy together siphoned off a huge amount of Rs.3,42,65,706/- belonging to the Plaintiffs over a period of three years and distributed the proceeds so obtained amongst themselves. There is a common cause of action against the Defendant and Saurav Deb and the Plaintiffs could not have filed separate suit against Saurav Deb and NEERA CS (COMM) 710/23 Lenskart Solutions Pvt. Ltd. Vs. Arup Jarosa Page 19 of 23 BHARIHOKE Digitally signed by NEERA BHARIHOKE Date: 2025.03.17 16:56:57 +0530 separate suit against Defendant for recovering the said amount of Rs.3,42,65,706/- by breaking up the amount in the manner done by the Plaintiffs. There is a common cause of action against the Defendant and Saurav Deb in favour of both Plaintiffs. Both Plaintiffs filed a suit against Saurav Deb bearing CS (COMM) No.705/2023 for recovery of Rs.1,28,38,038/- alongwith pendente lite and future interest. One of the suits should have been stayed under Section 10 CPC. However, to circumvent the said provision, the Plaintiffs cleverly did not implead the Defendant in CS (COMM) No. 705/2023 and Saurav Deb in the present case.
24. Further, the filing of CS (COMM) No. 705/2023 for recovery of Rs.1,28,38,038/- alongwith pendente lite and future interest against Saurav Deb by Plaintiffs as against seeking recovery of Rs.3,42,65,706/- against him as well as Arup Jarosa debars filing of another suit i.e. present matter under Order II Rule 2 CPC. Order II Rule 2(1) provides that every suit shall include the whole of the claim which the Plaintiff is entitled to make in respect of the cause of action; but a Plaintiff may relinquish and portion of his claim in order to bring the suit within the jurisdiction of any Court. Order II Rule 2(2) provides for relinquishment of part of claim and provides that where a Plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
25. Plaintiffs intentionally or unintentionally omitted a part of their claim in the initial suit. They cannot subsequently file a separate suit for Digitally signed by CS (COMM) 710/23 Lenskart Solutions Pvt. Ltd. Vs. Arup Jarosa Page 20 of 23 NEERA NEERA BHARIHOKE BHARIHOKE Date:
2025.03.17 16:57:03 +0530 that omitted part without seeking the court's permission which the Plaintiffs did not seek in the present case nor in CS (COMM) No. 705/2023.
26. The filing of the present suit is clearly hit by Order II Rule 2 CPC as it has been filed on the same cause of action. The admission on part of Saurav Deb of having received a part of the amount out of Rs.3,42,65,706/- in his account does not give rise to a distinct or separate cause of action against Saurav Deb and separate cause of action against the Defendant Arup Jarosa. In absence of seeking leave of the Court, the Plaintiffs could have filed only one suit for recovery of Rs.3,42,65,706/- against both i.e. Shri Saurav Deb and Defendant Shri Arup Jarosa.
27. Filing of CS (COMM) No. 705/2023 for recovery of Rs.1,28,38,038/- alongwith pendente lite and future interest against Saurav Deb by Plaintiffs by operation of Order II Rule 2 CPC amounts to Plaintiffs relinquishing their right to sue for the remaining amount out of Rs.3,42,65,706/- and the present suit for the remaining amount is clearly barred by Order II Rule 2 CPC. The submissions of the Plaintiffs that the present suit and CS (COMM) No. 705/2023 have been filed simultaneously on 24.07.2023 and none of the said persons namely Saurav Deb or the Defendant Shri Arup Jarosa has been vexed twice since none of the suits has been filed by impleading both holds no water in view of observations made above. Further, the Plaintiffs have deliberately not replied to the queries raised by my Learned Predecessor as to why the audit report on the basis of which the figures are provided in part 12 of NEERA CS (COMM) 710/23 Lenskart Solutions Pvt. Ltd. Vs. Arup Jarosa Page 21 of 23 BHARIHOKE Digitally signed by NEERA BHARIHOKE Date: 2025.03.17 16:57:09 +0530 the plaint has not been filed and proved. The Plaintiffs have also not replied whether the Defendant appeared in the proceedings arising out of FIR No.0127/2022, PS Paltan Bazar, Guwahati Central. The Plaintiffs have not replied/informed even in their written submissions whether the police had made any investigation and had arrived at any figures which were individually siphoned off by the Defendant. The Plaintiffs have given no explanation as to how the Plaintiffs have come to the conclusion that Shri Saurav Deb is liable only to the extent of Rs.1,96,00,000/- and not for the remaining amount of Rs.1,46,65,706/-, the liability of which is put on the Defendant in the present suit. The Plaintiffs have also not explained or proved as to why they have filed separate suits against the present Defendant who was the store manager and the owner of the outlet Shri Saurav Deb when the total siphoning of the funds of Rs.3,42,65,706/- from the store is stated to have been allegedly committed by Shri Saurav Deb and the Defendant together.
28. In view of the Plaintiffs being unable to answer any of the questions/queries dated 01.06.2024 much less proving read with the fact that the case of the Plaintiffs is that the Defendant and Shri Saurav Deb acted together in connivance in siphoning off the Rs.3,42,65,706/- of the Plaintiffs, the Plaintiffs could have filed only one suit against both the Defendants for whole amount of Rs.3,42,65,706/-, but they filed two separate suits against each of them i.e. the present suit and CS(COMM) No. 705/2023.
NEERA BHARIHOKE Digitally signed by NEERA BHARIHOKE Date: 2025.03.17 CS (COMM) 710/23 Lenskart Solutions Pvt. Ltd. Vs. Arup Jarosa Page 22 of 23 16:57:14 +0530
29. The CS(COMM) No. 705/2023 was filed for recovery of Rs.1,28,38,038/- alongwith pendente lite and future interest which has been decreed on 06.11.2024 and the Plaintiffs by omitting to sue for the remaining amount have relinquished their claim for the remaining amount as per Order II Rule 2 CPC and thus the present suit filed for the remaining amount is not maintainable in view of specific bar contained in Order II Rule 2 CPC.
30. Therefore, the present suit is dismissed for being non-maintainable under Order II Rule 2 CPC. No order as to costs.
31. Decree sheet be prepared accordingly.
File be consigned to record room after necessary compliance.
Digitally signed
by NEERA
Announced in the open NEERA BHARIHOKE
BHARIHOKE Date: 2025.03.17
Court on 17.03.2025 16:57:22 +0530
(Dr. Neera Bharihoke)
District Judge (Commercial Court)-06
South East, Saket Courts, New Delhi
17.03.2025
Certified that this judgment contains 23 pages and each page bears my signatures.
NEERA (Dr. Neera Bharihoke)
BHARIHOKE
District Judge (Commercial Court)-06
Digitally signed
South East, Saket Courts, New Delhi
by NEERA 17.03.2025
BHARIHOKE
Date: 2025.03.17
16:57:28 +0530
CS (COMM) 710/23 Lenskart Solutions Pvt. Ltd. Vs. Arup Jarosa Page 23 of 23