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IN THE HIGH COURT OF DELHI AT NEW DELHI
VALMIKI J. MEHTA, J.
Sanjay Kriplani - Plaintiff
Versus
M/s Fountainhead Motels Private Ltd. & Ors. - Defendants
CS(OS) 1219/2011
Decided on : 27.01.2016
Order XII Rule 6 CPC - Recovery Suit - 1908 (CPC) - [Consultancy Services, Recovery of Debt] - [Order XII Rule 6 CPC] - The court discussed the provisions of Order XII Rule 6 CPC and emphasized the need for clear and categorical admissions to establish liability, highlighting the importance of privity of contract in subsequent agreements. The court condemned mala fide tactics and dishonest stands taken by the defendants to avoid personal liability, and dismissed the application with costs.
Fact of the Case:
The plaintiff filed a suit for the recovery of Rs.4 crores along with interest for consultancy and advisory services provided for setting up a hotel. The defendants contested the suit, denying their liability and alleging coercion and threat in obtaining a settlement agreement.
Finding of the Court:
The court found that the defendants' changed stand to avoid personal liability was mala fide and condemned their tactics. The court dismissed the application with costs, emphasizing the importance of clear admissions and privity of contract in subsequent agreements.
Issues: The issues included rejection of the plaint, limitation, suppression of material facts, entitlement to a decree, entitlement to interest, and relief.
Ratio Decidendi: The court emphasized the need for clear and categorical admissions to establish liability, condemned mala fide tactics to avoid personal liability, and highlighted the importance of privity of contract in subsequent agreements.
Final Decision: The court dismissed the application with costs of Rs.25,000/- to be paid within six weeks from the date of the judgment.
1. Learned counsel for the defendant nos.1, 6 and 7 states that she does not oppose the applications and OA subject however to the terms as stated hereinafter. The plaintiff will lead evidence of two witnesses. The plaintiff shall complete his entire evidence within four hearings and no further opportunity will be granted to the plaintiff in view of the otherwise negligent conduct of the plaintiff in not leading the evidence on time. Plaintiff will also pay costs of Rs.40,000/- to the counsel for the defendant nos.1, 6 and 7. Costs will be paid within four weeks from today.
2. OA and the applications are disposed of.
IA No.17791/2012
3. This application is disposed of as not pressed.
IA No.18596/2015
4. This application is disposed of as not pressed.
IA No.23089/2015
5. This application need not be shown in the list as it is already disposed of on 2.11.2015.
IA No.21047/2013 (u/O XII Rule 6 CPC)
6. This is a suit for recovery of Rs.4 crores along with interest @ 18% per annum. As per prayer clause (a), the money decree is sought against defendant nos. 1 to 10. During the course of arguments, learned counsel for the plaintiff concedes that no money decree is prayed against defendant nos.4 to 10 and prayer (a) of the plaint be read so as not to seek money decree against defendant nos.4 to 10. Accordingly, defendant nos.4 to 10 are deleted from the array of parties as they are not necessary parties as no relief has been claimed against them. In case such persons are required as witnesses for the proof of aspects which the plaintiff relies upon, then such persons can be summoned as witnesses. With the same observations, defendant no. 11 is also deleted from the array of defendants.
7. The essence of the cause of action which is pleaded in the suit is that the plaintiff provided consultancy and advisory services for setting up of Hotel Claremont for defendant no.1/company. The plaintiff claims the suit amount on account of consultancy, advisory and brokerage services of setting up of Hotel Claremont for the defendant no.1. These averments are found in paras 1.7 and 1.9 of the plaint.
8. As per the plaint, actual amount of Rs.12 crores had become due to the plaintiff from defendant nos. 1 to 3, with an amount of Rs.9 crores being the principal amount and Rs.3 crores as the interest, however, para 1.19 of the plaint refers to a Deed of Composition and Settlement dated 1.2.2008 whereby the defendant no.1/Company agreed to make payment of Rs.8 crores and subsequently, another Agreement was entered between the plaintiff and defendant nos. 1 to 3 on 17.4.2008 whereby the defendant nos. 1 to 3 agreed that their liability towards the plaintiff was for a sum of Rs. 4 crores. Accordingly, the subject suit is filed for the recovery of Rs. 4 crores from the defendant nos.1 to 3.
9. Defendant nos. 1 to 3 originally filed a common written statement. The preliminary objections in this written statement show that the defendant nos. 2 and 3 denied their signatures on the Composition/Settlement Deed dated 17.4.2008. Defendant nos. 2 and 3 had stated that the Settlement Agreement dated 17.4.2008 is a forged and fabricated document. In fact, the defendants 2 and 3 by means of filing their affidavits dated 4.7.2011 and 3.8.2011 and also by filing their replies to various applications have consistently denied their liability as also the liability of defendant no.1 to pay the suit amount to the plaintiff. The defendant nos. 1 to 3 had also taken up an alternative case that the cheque bearing no.435674 dated 17.5.2008 was taken by the plaintiff under coercion and serious threat to the defendant nos. 2 and 3. Also, in an appeal FAO(OS) No.402/2009 filed against defendant nos. 2 and 3, the defendant nos. 2 & 3 herein by their affidavit dated 16/17.8.2011 took similar stand in the FAO(OS) No.402/2009 denying their liability in the present suit by stating that the subject suit bearing CS(OS) No.1219/2011 has been filed on the basis of forged document.
10. Subsequen
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