Delhi High Court
Ihhr Hospitality (Andhra) Pvt Ltd vs Seema Swami & Ors on 24 November, 2014
Author: Manmohan Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order pronounced on: November 24, 2014
+ CS(OS) No.1450/2011
IHHR HOSPITALITY (ANDHRA) PVT LTD ..... Plaintiff
Through Mr.Sandeep Sethi, Sr.Adv. with
Mr.Vineet Jhanji & Mr.Imran
Moulaey, Advs.
versus
SEEMA SWAMI & ORS ..... Defendants
Through Mr.Anupam Srivastava, Adv. with
Ms.Sharmistha Ghosh, Adv. for
D-1 to 3, 6, 7 & 9 to 15.
Mr.Sandeep Bisht, Adv. for D-17.
Mr.Ajay Mehrotra, Adv. for D-30
along with Mr.Amit Kumar, Senior
Executive, in person.
Mr.Aditya Madan, Adv. for D-31.
Mr.R.P.Vats, Adv. for D-32.
Ms.Richa Oberoi, Adv. for
Mr.Ateev Mathur, Adv. for D-33.
Suit against D-4 & 5 already
decreed vide order dated 22nd
January, 2012.
Defendant No.28 was deleted vide
order dated 4th February, 2013.
+ CS(OS) No.1466/2011
IHHR HOSPITALITY PVT LTD ..... Plaintiff
Through Mr.Sandeep Sethi, Sr.Adv. with
Mr.Vineet Jhanji & Mr.Imran
Moulaey, Advs.
versus
CS(OS) Nos.1450/2011 & 1466/2011 Page 1 of 14
SEEMA SWAMI & ORS ..... Defendants
Through Mr.Anupam Srivastava, Adv. with
Ms.Sharmistha Ghosh, Adv. for
D-1 to 3, 6, 7 & 9 to 15.
Mr.Sandeep Bisht, Adv. for D-17.
Mr.Ajay Mehrotra, Adv. for D-30
along with Mr.Amit Kumar, Senior
Executive, in person.
Mr.Aditya Madan, Adv. for D-31.
Defendant No.28 was deleted vide
order dated 4th February, 2013.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. By this order, I propose to decide the pending applications filed
by the parties, the details of which are given as under:-
(i) I.A. No.14979/2012 (under Order VI Rule 17 CPC, by
plaintiff) in CS(OS) No.1450/2011,
(ii) I.A. No.14982/2012 (under Order VI Rule 17 CPC, by
plaintiff,
(iii) I.A. No.9467/2012 (under Order XXXVIII CPC, by plaintiff)
(iv) I.A. No.16419/2014 (under Section 151 CPC, by
defendant No.1) in CS(OS) No.1466/2011
I.A. No.16419/2014 in CS(OS) No.1466/2011
2. Firstly, I shall take up the application being I.A. No.16419/2014
filed by defendant No.1 in CS(OS) No.1466/2011, for renewal of the
lease deed. It is stated in the application that the Flat bearing No.402
situated at Block B-2, 4th Floor, Uniworld City, West Sector 30 & 41,
Gurgaon belongs to defendant No.1. It is submitted that defendant
No.1 entered into a lease agreement dated 20th October, 2010 with
Honda Seil Cars India Ltd. and rented out the above said flat for the
residence of one of its employees, namely, Mr.Yasutoshi Ohtaka. It
is further submitted that the defendant No.1 has also entered into
maintenance and furnishing agreement dated 20th October, 2010 with
Honda Seil Cars India Ltd.
3. It is also submitted in the application that the suit property was
leased out for a period of three years from 20th October, 2010 to 19th
October, 2013. After the expiry of the said lease, the defendant No.1
extended the same for a further period of 11 months to the same
tenant. The defendant No.1 was not aware about the consequences
of letting out the same without the permission of the Court which the
defendant No.1 learnt upon receipt of copy of the application under
Order XXXIX Rule 2A CPC against the abovementioned extension of
lease. It is averred that the existing tenancy is coming to an end on
28th August, 2014 and the same tenant is inclined to renew the lease
further for a period of two years, i.e. till 31st August, 2016. Thus, the
present application has been moved to seek the permission of this
Court in this regard.
4. Learned counsel for the plaintiff, without prejudice, has no
objection if the prayer made in the application is allowed.
5. For the reasons stated in the application, the same is allowed.
The defendant No.1 is allowed to renew the existing lease deed for a
further period of two years, i.e. till 31st August, 2016 to the same
tenant.
6. The application is disposed of.
I.A. No.14982/2012 in CS(OS) No.1466/2011
I.A. No.14979/2012 in CS(OS) No.1450/2011
7. These are the applications filed by the plaintiff under Order VI
Rule 17 CPC for amendment of the respective plaints of the above
said two suits.
8. In paras 3 to 7 of the applications, the following statements are
made by the plaintiff:-
(i) In the course of reconciling and finalizing the accounts of
one of the plaintiff's projects, i.e. Pune Hotel Project
which was started in January, 2007 and was nearing
completion in August, 2010, various discrepancies came
to light. A detailed scrutiny of the books of account of the
Pune Project and of the plaintiff was then carried out and
it was discovered by the plaintiff that large amounts of
money had been illegally and unauthorizedly debited to
the plaintiff's bank accounts maintained with the
defendants No.32 & 33.
(ii) On coming to know of the fraud and the embezzlement of
the funds, the plaintiff immediately filed a complaint being
FIR No.139 of 2010 with the Economic Offences Wing of
the Delhi Police. It was thereafter discovered by the
plaintiff that Manoj Kumar Swami had falsified various
records of the Company and in particular the Bank
Statements which he did to cover up the fraud. It is in the
course of the investigation by the police and upon the
seizure of various documents by them that full facts
relating to the fraud and the extent of the fraud came to
light.
(iii) Pursuant to the police investigations and the enquiries
made by the plaintiff starting October, 2010 it was found
that a large number of unauthorized and illegal debits had
been made into the plaintiff's bank accounts.
(iv) All the amounts mentioned in para 15 of the plaint were
illegally and unauthorized debited to the plaintiff's bank
account pursuant to a fraud perpetuated by late Manoj
Kumar Swami and defendants No.1 to 8 along with
defendants No.32 and 33. The defendants No.32 & 33
have acted in violation of the written instructions filed with
it in relation to operation of the Bank accounts maintained
by the plaintiff with them. The employees of the
defendants No.32 & 33 conspired with late Manoj Kumar
Swami to defraud the plaintiff or else they were grossly
negligent. The above transfer instructions as also the
cheques were unauthorized not duly made nor given
under the signatures of the authorized signatories as
registered with the said Banks.
(v) In the case of cheques referred to above, the same were
forged and did not bear the signatures of the authorized
signatories in terms of the instructions filed with the
defendants No.32 & 33 and accepted by it. In the case of
the debit entries made against above transfer instructions
the same were not issued by the authorized signatories
and were beyond the authority filed with the defendants
No.32 & 33. The defendants No.32 & 33 failed to note
that the instructions were not issued under the signatures
of the authorized signatories and have acted beyond their
mandate. The plaintiff had no reason to make any
payment to any of the aforesaid payees. The defendants
No.32 & 33 acted negligently, illegally and beyond their
authorities in debiting the above amounts to the plaintiff's
accounts. The defendants No.32 & 33 are liable to make
good the aforesaid amounts to the plaintiff.
9. The defendants No.32 & 33 are already impleaded. The
plaintiff has made the allegations against the said defendants in
paras 6 to 11, 15.1, 15.2 and 16 of the plaint. Along with the suit, the
plaintiff also filed an application under Order 2 Rule 2 CPC seeking
leave of this Court and reserving its right to subsequently seek
appropriate reliefs against others by way of an amendment to the
present suit.
10. Both the defendants, i.e. defendants No.32 & 33 have filed the
written statement, whereby they have denied that there is any
negligence or conspiracy on their part. The plaintiff has denied the
statement made by the defendants No.32 & 33 in the written
statement. The details of the same are mentioned in paras 10 to 12
of the plaint. The plaintiff seeks to amend para 47 of the plaint, inter-
alia, seeking a decree for recovery of Rs.35,53,52,077.10/- and
Rs.6,67,76,921/- respectively, to be passed in favour of the plaintiff
and against the defendants No.1 to 15 and defendants No.32 & 33,
who are jointly or severally liable to pay the said amount to the
plaintiff along with interest @ 30%.
11. Learned counsel for defendant No.1 has no objection if the
amendment is allowed. No arguments were addressed by the other
defendants except defendants No.32 & 33 who simply referred the
denial made by them in the written statement.
12. It is settled law that at the time of allowing the amendment, the
merit of the case is not to be gone into. If after the trial the Court has
come to the conclusion that there is no negligence or conspiracy by
the defendants No.32 & 33, the suit of the plaintiff against them would
be successful. At this stage, the plaintiff's contention cannot be
refused in view of the averments made by the plaintiff when some
prima-facie evidence is available on the record. Under these
circumstances, the prayers made in the applications are allowed.
The amended plaints are taken on the record.
13. The applications are disposed of.
I.A. No.9467/2012 in CS(OS) No.1466/2011
14. The abovementioned application has been filed by the plaintiff
under Order XXXVIII read with Section 151 CPC seeking directions
and for attachment of the rent in relation to the suit property, bearing
Flat No.402 situated at Block B-2, 4th Floor, Uniworld City, West
Sector 30 & 41, Gurgaon, Haryana. The application is strongly
opposed by defendant No.1.
15. In order to decide the present application, few facts are
necessary which are mentioned in the application as well as the reply
filed by defendant No.1. The same are read as under:-
(a) The plaintiff filed the present suit for recovery of Rs.33.29
crores from defendants alleging that various fraudulent and
illegal acts were committed by the deceased husband of
defendant No.1, Late Manoj Kumar Swami who acted in
collusion and in conspiracy with the defendants. Late Manoj
Kumar Swami along with the defendants conspired to
defraud the plaintiff by forging and fabricating documents
and by using such forged documents to make unauthorized
and fraudulent debits to the plaintiff's bank accounts and
embezzled large sums of money.
(b) It is averred that defendants No.1 to 8 acquired various
assets directly and/or indirectly by using monies illegally
withdrawn from plaintiff's bank accounts. Details of such
assets are given in Para 22-28 of the plaint. One of such
assets that Late Manoj Kumar Swami and defendant No.1
acquired in their joint names is the suit property bearing Flat
No.402, situated at block B-2, 4th Floor, Uniworld City West,
Sector 30 & 41, Gurgaon (comprising of super built up area
admeasuring 2307 sq. ft. along with 364 sq. ft. of terrace). It
is averred that the funds into the accounts of the seller were
illegally indirectly transferred from plaintiff's and its
subsidiary company's various bank accounts, details of
which are given in Para 3 of this application.
(c) Defendant No.1 entered into a lease agreement dated 20th
October, 2010 with Honda Se il Cars India Ltd. and rented
out the suit property for the monthly rent of Rs.50,000/-
which has been increased to Rs.55,000/- per month with
effect from 20th October, 2011. They also entered into
maintenance and furnishing agreement dated 20th October,
2010 for the monthly charge of Rs.20,000/-.
(d) During the pendency of this suit, Division Bench of this Court
vide order dated 15th July, 2011 restrained defendants No.1
to 8 from alienating, dealing with assets mentioned in Para
22-28 of the plaint, which includes the suit property. this
Court vide order dated 1st November, 2011 issued noticed of
all the pending applications to the defendants including I.A.
No.9565/2011 with respect to attachment of rent of the suit
property. However, defendant No.1 neither filed any written
statement nor any reply to the said application and has
repeatedly been taking time to arrive at a settlement with the
plaintiff.
(e) Various adjournments have been sought by defendant No.1
for the purpose of settlement but the same appears to be
taking undue gain and advantage with the motive to delay
the progress of the suit. It is averred that she has continued
to misappropriate the rental income accruing from an asset
purchased with the funds belonging to the plaintiff, and the
rental income which she no right.
(f) Since defendant No.1 has no right to the suit property which
has been acquired using the money illegally withdrawn from
plaintiff's bank accounts by cheating, defendant no.1 has no
right to receive and enjoy the rental income from the suit
property and the said rental income, since the date of the
lease agreement i.e. 20th October, 2010, is liable to be
attached by this Court.
(g) In reply to the said application, it is denied that the suit
property or any other assets as mentioned in the plaint were
acquired by using funds illegally withdrawn from the bank
accounts of the plaintiff. It is stated that Late Manoj Kumar
Swami was a hard working and diligent employee of the
plaintiff. All the alleged transfers and withdrawals were
carried out legally by issuing instructions after obtaining
consent of Directors of the plaintiff. It is only after the death
of Late Manoj Kumar Swami that the plaintiff is challenging
the actions of withdrawals and transfer.
(h) It is contended that assets, investments and cash deposits in
the accounts of defendant No.1 were created out of the
funds earned by defendant No.1, inherited from the accounts
of Late Manoj Kumar Swami, from the companies floated by
defendant No.1. Late Manoj Kumar Swami was a
hardworking person, who used to earn from transactions in
stock exchange in addition to his salary, commission and
bonus from the plaintiff.
(i) While the other contents of the application of the plaintiff are
denied, it has been stated that the power under Order 38
Rule 5 CPC is a drastic and extraordinary and such power
should not be exercised mechanically or merely by asking.
Defendant No.1 is neither trying to dispose of the whole or
part of the suit property nor she is about to remove the whole
or any part from the local jurisdiction of the Court.
16. In the application, specific statement has been made by the
plaintiff that the suit property was purchased from Mr.Nipun Sahni
and Mrs.Bhawna Sahni vide sale deed No.21118 dated 2nd January,
2009 registered with the Sub-Registrar Office, Gurgaon, Haryana for
a total consideration of Rs.69,15,350/-. The payments for this
property were made in the following manner:-
(i) Demand Drafts No.001020 & 001021 both dated 29th
November, 2008 of Rs.22,50,000/- each from the Bank
Account No.540010100005692 of Late Manoj Kumar
Swami maintained with Axis Bank, Mehrauli Gurgaon
Road Branch, Gurgaon, Haryana.
(ii) Demand Drafts No.052440 & 052441 both dated 26th
December, 2008 of Rs.12,07,675/- each from the Bank
Account No.054010200017790 of Pragati Interior
Designer & Consultants (proprietorship of Defendant
No.8) maintained with Axis Bank Limited, Shakti Nagar
Branch, New Delhi.
The funds into the aforesaid accounts were illegally indirectly
transferred from plaintiff's and its subsidiary company's various bank
account Nos., namely:-
(a) Bank Account No.054010200014234 of the plaintiff
maintained with Axis Bank, Shakti Nagar Branch, Delhi;
(b) Bank Account Nos.10243725969 and 30170602687 of
the plaintiff maintained with State Bank of India, Nehru
Place Branch, New Delhi.
(c) Bank Account No.0617002100210023 of the plaintiff's
subsidiary company maintained with Punjab National
Bank, Rana Pratap Bagh, New Delhi.
(d) Bank Account No.522-0-578609-6 of the plaintiff's
subsidiary company maintained with Standard Chartered
Bank, Connaught Place, New Delhi.
17. After purchasing the suit property, admittedly, defendant No.1
entered into a lease agreement dated 20th October, 2010 with Honda
Seil Cars India Ltd. and rented out the above flat and is receiving rent
of Rs.50,000/- per month. Defendant No.1 has also entered into
maintenance and furnishing agreement dated 20th October, 2010 with
Honda Seil Cars India Ltd. and is receiving maintenance and
furnishing charges of Rs.20,000/- per month. As per lease
agreement, the monthly rent has been increased to Rs.55,000/- per
month with effect from 20th October, 2011.
18. The Division Bench of this Court vide its order dated 15th July,
2011 was pleased to pass an order restraining defendants No.1 to 8
from inter-alia alienating, dealing with the assets mentioned in paras
22 to 28 of the plaint including the property. The contention of the
plaintiff is that despite of the orders passed by the Division Bench,
defendant No.1 took the time for settlement. However, they are not
settling the matter with the plaintiff.
19. Mr.Sethi, learned Senior counsel appearing on behalf of the
plaintiff has argued that defendant No.1 has no right in the suit
property acquired directly and/or indirectly using the monies illegally
withdrawn from the plaintiff's bank accounts by cheating the plaintiff.
Defendant No.1 is, therefore, not entitled to receive the rental income
from the tenant. Mr.Sethi has also provided the details of the illegal
payments withdrawn from the account of the plaintiff at the relevant
time, which read as under:-
--------------------------------------------------------------------------------------------
Sr.No. Date Amount debited from Amount
--------------------------------------------------------------------------------------------
1. 08.07.2008 IHHR Hospitality Pvt. Ltd. 10,427,913
2. 17.10.2008 IHHR Hospitality Pvt. Ltd. 7,243,454
3. 29.10.2008 IHHR Hospitality Pvt. Ltd. 987414
4. 09.01.2009 IHHR Hospitality Pvt. Ltd. 3,756,234
Total funds received in account of Pragati
Interior 22,415,015
Funds invested as follows:-
Total cost of Flat 69,15,350
1. 29.11.2008 DD Issued 2,250,000
2. 29.11.2008 DD Issued 2,250,000
3. 26.12.2008 Nipun Sahni and Bhavna 1,207,675
Sahni as a part payment
of Flat. Paid by DD from
Pragati's Account
4. 26.12.2008 Nipun Sahni and Bhavna 1,207,675
Sahni as a part payment
of Flat. Paid by DD from
Pragati's Account
5,707,675
--------------------------------------------------------------------------------------------
20. On the other hand, defendant No.1, who is opposing the prayer
of this application, is not able to give the details of the amount paid
for consideration to the tune of Rs.69,15,350/-. It has also been
informed by Mr.Sethi, learned Senior counsel that the documents
referred by defendant No.1 in various proceedings in order to justify
their contentions have been declared as false and fabricated
documents as per the report of the handwriting expert.
21. Considering the overall facts and circumstances of the case,
the present application is allowed to the extent, restraining defendant
No.1 to recover/receive the monthly rent and the maintenance
charges from the tenant with respect to the premises bearing Flat
No.402 situated at Block B-2, 4th Floor, Uniworld City, West Sector 30
& 41, Gurgaon, Haryana. Defendant No.1 is directed to deposit the
said rent received from the tenant, i.e. Honda Seil Cars India Ltd. with
the Registrar General of this Court till the decision of this suit. As far
as the rent already received by defendant No.1 is concerned, the said
aspect will be decided at the final stage of the suit.
22. The application is accordingly disposed of.
CS(OS) No.1450/2011 and CS(OS) No.1466/2011
Amended plaint be filed within four weeks. The defendants are
given liberty to file written statement to amended plaint within four
weeks thereafter. Replication, if any, be filed by the next date.
List on 26th February, 2015 for further proceedings along
pending applications.
(MANMOHAN SINGH)
JUDGE
NOVEMBER 24, 2014
