Full Text
HIGH COURT OF DELHI
Date of Decision: 13th September, 2018
M/S INDCAP ENTERPRISES LLP ..... Plaintiff
Through: Mr. P.S. Bindra and Ms. Rishika Arora, Advocates. (M:9811054970)
Through: Mr. Sanjay Kumar Chhetry and Mr. Arun Francis, Advocates.
(M:9899933574)
JUDGMENT
1. The present suit has been filed under Order XXXVII CPC seeking recovery of a sum of Rs.3,95,85,000/-which includes the principal sum of Rs.1,74,00,000/- along with interest @ 18% per annum.
2. The case of the Plaintiff, in brief, is that the Plaintiff had invested a sum of Rs.3,24,54,000/- in a company by the name M/s. Integrity Geosciences Pvt. Ltd. The said investment was made pursuant to an agreement dated 29th October, 2007 entered into between the Plaintiff on one hand, and Mrs. Shama Niaz Ahmed, Dr. Niaz Ahmed and Mr. Arindom Ganguly, on the other hand.
3. The agreement clearly acknowledged the payment of a sum of Rs.3.24 crores by the Plaintiff. The relevant clause is set out herein below: - 2018:DHC:5974 “9. The Company will be able to achieve the above projections with the contribution of Rs 32.454 million from the Investor”
4. It is the Plaintiff’s case that the funds which were invested by the Plaintiff, were misused by the said persons for their personal gains and benefits. The investor’s nominee was also not appointed as a Director. There was also gross mismanagement of the Company, which led to the Plaintiff taking a serious view of the matter. When the Plaintiff brought up the issues which were plaguing the Company with the Defendants, the Defendant suggested a scheme for revival of the Company. The parties thereafter entered further into an agreement dated 16th February 2009 by which a scheme for revival of M/s. Integrity Geosciences Pvt. Ltd. was agreed. According to the Plaintiff, the Defendants failed to act as per the scheme of revival. The Plaintiff thereafter served legal notice dated 28th February 2009 demanding refund of the entire investment of Rs.3.24 crores along with interest.
5. After receipt of the said legal notice dated 28th February 2009, the Defendants introduced an overseas investor for buying out the company, which also failed. A second notice was served on 22nd March 2010, in response to which the Defendants again sought time till 30th September 2010 to look for an investor. Unfortunately, the same also did not come through after which Memorandum of Understanding (MOU) dated 12th April, 2010 was entered into. The said MOU was entered into between the Defendant, Dr. Niaz Ahmed and Mr. Arindom Ganguly with the Plaintiff. As per the said MOU, the Defendant and Mr. Arindom Ganguly handed over 13 cheques for a total sum of Rs.3,24,54,000/-. The details of the said cheques are set out below: -
┌────────────────────────────────────────────────────────────────────────────┐ │
┌──────────────────────────────────────────────────────────────────────────────────────┐ │ Sl. No. Cheque No. Cheque Amount │ ├──────────────────────────────────────────────────────────────────────────────────────┤ │ 1. 798299 Rs.25,00,000/- │ │ 2. 798300 Rs.25,00,000/- │ │ 3. 798301 Rs.25,00,000/- │ │ 4. 798302 Rs.25,00,000/- │ │ 5. 798306 Rs.25,00,000/- │ │ CS (OS) 3805/2014 Page 3 of 13 │ │ 2018:DHC:5974 │ │ 6. 798307 Rs.25,00,000/- │ │ 7. 798308 Rs.25,00,000/- │ │ 8. 798309 Rs.25,00,000/- │ │ 9. 798310 Rs.24,00,000/- │ │ 10. 798312 Rs. 54,000/- │ │ Rs.2,24,54,000/- │ └──────────────────────────────────────────────────────────────────────────────────────┘
14. The three agreements clearly show that firstly the main agreement by which the investment was made by the Plaintiff was made in a company where not only Dr. Niaz Ahmed, the Defendant, but also his wife was one of the promoters. The company had acknowledged by the said agreement, the receipt of the sum of Rs.3.24 crores. This investment was almost 11 years ago i.e. on 29th October, 2007. Thereafter, the two MOUs have been executed which are of 12th April, 2010 and 23rd August, 2012. The transaction has been a long duration transaction and not an overnight transaction. The stand of the Defendant that there was any threat is belied by the fact that these agreements span over seven to eight years. Further the fact that some payments under the 2010 agreement as also under the 2012 agreement having been made, the allegation of coercion is not made out. Moreover, the Defendant himself looked for and arranged an overseas buyer, which also did not work out. These facts go to prove that there was no coercion or duress or pressure.
15. Proceedings before the criminal court under the Negotiable Instruments Act are tested under a different yardstick than a suit under Order
XXXVII. In a suit under Order XXXVII all that the Court needs to see as per the settled law in IDBI Trusteeship Services Ltd. v. Hubtown Ltd., (2017) 1 SCC 568 passed by the Supreme Court is as to whether the Defendant has a triable defence. In the present case, the agreements themselves having been admitted and some payments under the said agreements/settlement have already been made, a mere allegation of coercion or threat is not sufficient to raise a triable defence.
16. Under these circumstances, the suit is liable to be decreed as there is no triable defence. The suit is decreed for a sum of Rs.1,74,00,000/towards the principal amount. Since payment was to be last made, as per MoU dated 23rd August, 2012 and keeping in mind the age of the Defendant, and other circumstances, interest is directed to be paid only @ 6% per annum from 11th January, 2013 to date. The payment is to be made within eight weeks, failing which interest @ 8% per annum would apply on the decretal amount.
17. The share certificates of the company M/s. Integrity Geosciences shall be deposited by the Plaintiff within a period of four weeks in Court.
18. List for reviewing compliance on 3rd October, 2018.
PRATHIBA M. SINGH JUDGE SEPTEMBER 13, 2018 Rekha