Senior Power Projects (P) Ltd. vs M/S Rkd Promoters & Developers ...
2012 Latest Caselaw 2006 Del

*           HIGH COURT OF DELHI : NEW DELHI

+                      CS (OS) No.1141 of 2010

%                                     Order decided on : 23.03.2012

Senior Power Projects (P) Ltd                      ..... Plaintiff
                     Through: Mr. Sanjay Goswami, Adv.

                       Versus


M/s RKD Promoters & Developers Pvt. Ltd. & Anr. ..... Defendants
                   Through: Ex-parte.

Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (Oral)

1. The present suit has been filed for a decree of a sum of Rs. 36,60,000/- alongwith pendente lite interest and future interest @ 18% per annum. The case of the plaintiff is discussed in limine. The plaintiff is a duly registered company under the Indian Companies Act, 1956 and along with its associate and group companies, is engaged in diverse business activities. Since November-December 2009, the plaintiff is also engaged in commodities trade in association and understanding with one of its associate companies, M/s Associate Forex Services Ltd. having its commodities ticket No.21850.

2. The defendant No.1 Company through its directors i.e. defendant Nos.2 & 3 and its other associate concern was also engaged in commodities business on commodities exchange vide ticket No.28370.

3. M/s Senior Builders Ltd., which is a sister Company of the plaintiff, entered into a joint venture agreement with defendant No.1 as regards its project known as Senior Mall, MG Road, Gurgaon, Haryana. As the defendant No.4 was also engaged in the commodities business, the plaintiff entrusted the management and affairs of its commodities business to the defendant No.2 on an understanding that the defendant No.2 would manage the entire commodities exchange business on behalf of the plaintiff, it would bear all office staff expenses himself and would be responsible for all profits and loss on its own account and would pay a royalty/fee which would be 3% of the total turnover of the business. With effect from 16.12.2009 the defendant No.2 started looking after the said business of the plaintiff.

4. During November-December 2009 to March 2010, the defendant No.2, on his own advanced certain amount as loan/financial trading facilities amounting to Rs.2,18,51,205/- to the defendants and even paid certain third party liabilities of the defendants through the accounts and business of the plaintiff claiming that the same were business loans given to the defendants which would be repaid by them. However, when around 15.03.2010, before the yearend closing, the plaintiff insisted upon the defendants to repay the loan and settle the account, the defendants promised to repay approximately Rs.1,82,98,280/- to the plaintiff in the manner that the defendants acting through defendant No.2 would transfer absolutely their entire rights in two commercial units Nos.F-4 and F5, Senior Mall, M.G. Road, Gurgaon, Haryana in favour of the plaintiff on the premise that they were the owners of the said units and would use the value of the

said units to repay the amount due to the plaintiff. On the said understanding, a Memorandum of Understanding (MOU) dated 18.03.2010 was executed between the parties and settled the total amount of Rs.2,18,51,205/- due to the plaintiff, in the manner that Rs.1,82,98,280/- were set off out of the total amount payable by the defendants and for remaining amount of Rs.35,52,925/- they agreed to repay the same within 60 days of the said MOU (Ex. PW 1/5) dated 18.03.2010 along with interest @ 18% per annum. The said MOU was executed between the plaintiff and defendant No.1. The plaintiff is the first party to the said MOU and defendant No.1 is the second party. The relevant clauses and admission made by defendant No.1 to pay the balance amount of Rs.35,52,925/- are reproduced hereinunder :

"1. That the second party for due and valid consideration already received by it in form of various financial loans, payments and facilities granted by the first party to the second party and its associates, hereby absolutely transfers all its rights, claims, Interest, ownership, etc. in unit No.F4 and F5, Senior Mall, MG Road, Gurgaon, Haryana as under the agreement dated 25.01.2010 in favour of the first party with the agreed transfer value of Rs.1,82,98,280/-.

2. That it is agreed that the balance amount of Rs.35,52,925/- which remains still outstanding to the first party after adjustment of the value of the abovesaid two units shall be paid by the second party to the first party within 60 days of the present MOU.

3. That it is agreed that the second party shall pay the balance amount of Rs.35,52,925/- to the first party with an interest of 18% per annum from the date of the present MOU till the date of final repayment.

4. That it is agreed that the second party is hereafter not left with any rights under the joint venture agreement dated 21.8.2009 and the cancellation of the joint venture agreement

dated 25.1.2010, as regards unit Nos.F4 and F5 Senior Mall, MG Road, Gurgaon, Haryana.

5. That it is agreed that the first party towards the amount which are outstanding to the first party from the second party as per the present MOU or hereafter shall have the charge, lien and mortgage rights over the unit No.F6 which was allotted to the second party by Senior Builders Limited as per the terms of the abovesaid joint venture and the cancellation of joint venture and the cancellation of joint venture agreement.

6. That it is agreed that apart from the above rights and claims the first party and the second party are hereinafter left with no rights and claims against each other.

7. That it is agreed that the first party or its nominees etc. can in any manner deal with units No.F4 and F5Senior Mall, MG Road, Gurgaon, Haryana which have been transferred by the second party to the first party under the terms of the present MOU.

8. That it is agreed that in case of any disputes between the first party and the second party as regards the present MOU, Sh. Umesh Pandey director of the second party shall have personal liability apart from the liability of the second party.

9. That it is agreed that the present MOU does not concern in any manner the agreement of joint venture and cancellation of joint venture between M/s Senior Builders Pvt. Ltd. and the second party and the second party shall honor the terms of the present MOU irrespective of any disputes or claims it may be having against Senior Builders Ltd.

10. That it is agreed that in case of any disputes between the parties as regards the present MOU the courts in Delhi alone shall have the exclusive jurisdiction over the terms of this MOU as the dealings and transactions between the first party and the second party took place in Delhi and both the parties have their registered office in Delhi and the present MOU is also having executed at Delhi."

5. However, the defendants failed to make the said payment as promised by them, therefore, the plaintiff issued the notice dated 08.05.2010 wherein, it demanded the amount which is now being claimed by way of the present suit. But, the defendants did not pay the said amount. Therefore, the plaintiff filed the instant suit.

6. The matter came up for the first time before the court of the Joint Registrar on 01.06.2010 and notice was issued to the defendants. On 14.09.2010, again there was a direction to issue fresh notice, but, the same was returned with the remarks "firm closed/locked". Therefore, notice was issued by way of publication in the news paper "The Statesman" dated 13.01.2011, but, no one made appearance on behalf of the defendants. Hence, the matter was proceeded ex-parte vide order dated 05.05.2011.

7. Ex-parte evidence by way of affidavit was filed by Smt. Kalpana Dixit, the Director of the plaintiff company wherein the following documents were proved:-

a. Ex. PW-1/1 - Certified copy of the Board Resolution dated 03.05.2010 b. Ex. PW-1/2 - The copy MoU dated 16.12.2009.

c. Ex. PW-1/3 - The copy of the Joint Venture agreement dated 21.08.2009 executed between M/s Seniors Builders Ltd and defendant No. 1 with regard to project Senior Mall, Gurgaon. d. Ex. PW-1/4 - The copy of the cancelled Joint Venture agreement as the fund could not be arranged.

e. Ex. PW-1/5 - the copy of the MoU dated 18.03.2010 between the plaintiff and defendants that they would repay the amount of Rs. 35,52,925/- along with 18% interest within 60 days from the date of execution of the MoU.

f. Ex. PW-1/6 - The copy of the legal notice dated 08.05.2010 g. Ex. PW-1/7 (colly) - The copy of the courier receipts

8. The evidence filed by the plaintiff has gone unrebutted. No cross examination of plaintiff's witness was carried out. During the course of hearing Mr. Goswamy has admitted the fact that the MOU was executed between the plaintiff and defendant No.1. Under these circumstances, plaintiff is not pressing any relief against other defendants. As defendants neither contested the suit nor filed the written statement, therefore, averments made in the plaint are taken to be true. Hence, a decree for a sum of Rs. 36,60,000/- is passed in favour of the plaintiff and against defendant No. 1 alongwith interest @ 18% p.a. No relief is granted against other defendants. The plaintiff is also entitled for costs.

9. The decree be drawn accordingly.

10. The suit is disposed of.

MANMOHAN SINGH, J.

MARCH 23, 2012