Delhi High Court
Vishnu Infra And Energy Solutions ... vs Rohit Singhal & Ors. on 10 November, 2020
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:10.11.2020
22:17:58
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 10th November, 2020
+ C.R.P. 72/2020 and CM APPL. 28635/2020, 28636/2020
VISHNU INFRA AND ENERGY SOLUTIONS PVT.
LTD. & ANR. ..... Petitioners
Through: Mr. Shiv Shankar Banerjee, Adv.
versus
ROHIT SINGHAL & ORS. ..... Respondents
Through: Mr. Akshay Sharma, Adv. for R1-R4.
Mr. Varun Shankar and Mr. Rahul
Gupta, Advs. for R-7 & 8 (HDFC).
Mr. Rajiv Kapur and Mr. Akshit
Kapur, Advocates for R-9/SBI (M:
9716076533).
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been held through video conferencing.
2. The present petition arises out of the impugned order dated 9th
January, 2020, by which the amendment application under Order VI Rule 17
CPC filed by the Petitioner/Plaintiff has been dismissed by the Trial Court.
3. A suit for mandatory injunction and recovery of sum of Rs.1.25 crores
was filed by the Plaintiff against the Respondents/Defendants. The prayer in
the suit is as under: -
"a) To pass a mandatory injunction order as per
sec.26 (1) (c) of specific relief act 1963, restraining the
defendants from defreezing the fraudulently en-cashed
cheque amount which is lying frozen with defendant
no.9 bank in the account of defendant no.6, frozen vide
order dated 26.05.2016 and the same is in the subject
matter of C.C.No. 14 of 2018 in complaints filed by
plaintiff before S.H.O., Madhapur and XXV MM,
Signature Not Verified
Digitally Signed
Signing Date:10.11.2020 19:55
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:10.11.2020
22:17:58
Kukkatpally, during the pendency of this suit.
b) Directing the defendants 1 to 9 jointly and severally
to pay a sum of Rs. 1,25,00,000/- (Rupees One Crore
Twenty Five Lakhs only) towards principal and
Rs.90,00,000/- towards interest from 30.05.2016 till
the date of filing of this suit i.e., 22.05.2019 @ 24%
per annum till the date of repayment;
c) Award costs of the suit;
d) Pass such other order or orders as are deemed fit
and proper in the circumstances of the case and
interest of justice."
4. During the pendency of the said suit, an application under Order VI
Rule 17 read with Section 151 of the CPC was moved by the Plaintiff,
seeking addition of a declaratory prayer to the following effect: -
"b) declare that there is no legally and enforceable
debt of defendants 1 to 6 against the plaintiffs and
Rs.1.25 Crores lying in the bank account of defendant
No.6 belongs to plaintiffs."
5. The case of the Plaintiff as made out in the application under Order
VI Rule 17 is that the MOU which was entered into between Respondent
No.1 and its relatives is illegal and void and is also contrary to law, in view
of the provisions of the Companies Act, 2013. Further case of the Plaintiff is
that the declaratory relief would be required in order to seek recovery.
6. The Trial Court has dismissed the application on two grounds being
firstly, that the amendment is not necessary and secondly, that the
application for amendment has been filed beyond the period of three years
and is barred by limitation. Mr. Banerjee, ld. counsel appearing for the
Petitioner submits that the cause of action for seeking the declaratory prayer
arose on 29th April, 2019 and hence the relief was not barred by limitation.
Signature Not Verified
Digitally Signed
Signing Date:10.11.2020 19:55
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:10.11.2020
22:17:58
7. Insofar as Respondent No.1 is concerned, it is the submission of ld.
counsel that the declaratory prayer is superfluous, because if the recovery of
Rs. 1.25 crores is allowed, that would in fact be on the basis that the amount
is payable to the Plaintiff.
8. This Court has heard ld. counsels for the parties and perused the suit
record. The suit as filed prays for mandatory injunction and recovery of
Rs.1.25 crores. When the Trial Court would be considering the relief of
recovery of Rs.1.25 crores, it would have to adjudicate whether any amount
is payable by the Plaintiff to the Defendant under the MOU and whether the
MOU is itself enforceable in law. It is only after the Trial Court adjudicates
these issues in respect of the inter-se liabilities of the parties, that the relief
of recovery can be considered. Thus, the liability of the Plaintiff, if any, or
the liability of the Defendant, if any, is inbuilt in the prayer for recovery i.e.
prayer B. Accordingly, the declaratory relief is in fact not required. The
impugned order does not warrant any interference.
9. The Trial Court would however frame issues in terms of the pleadings
of the parties and shall also permit evidence to be led in respect of their
respective cases. While adjudicating the question of recovery, the Trial
Court would also consider whether the Plaintiff owes any money to the
Defendant or if the Defendant is liable to pay any monetary sums to the
Plaintiff.
10. No further orders are required in this petition. The petition, along with
any pending applications, is disposed of in these terms.
PRATHIBA M. SINGH
JUDGE
NOVEMBER 10, 2020/MR/A
Signature Not Verified
Digitally Signed
Signing Date:10.11.2020 19:55
