Back
IN THE HIGH COURT OF DELHI AT NEW DELHI
SANJIV KHANNA, CHANDER SHEKHAR, JJ.
The India Fitness Connect Pvt. Ltd. - Appellant
Versus
Ozone SPA Pvt. Ltd. & Anr. - Respondents
FAO (OS) (COMM) 114 of 2018 & CM Nos. 22029-31 of 2018, CAV No. 506 of 2018
Decided On : 25-05-2018
Commercial Courts - Intra Court Appeal - Code of Civil Procedure, 1908, Section 13 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 - [CS(Comm) 421/2017, IA No.7012/2017] - The court discussed the agreement between the parties, the issue of interim injunction, and the presumption under Section 138 and 139 of the Negotiable Instruments Act, 1881.
Fact of the Case:
The appellant filed a suit against the defendants seeking declaration of nullity of an agreement, mandatory injunction, recovery of money, and interest. The impugned order rejected the application for interim injunction filed by the appellant.
Finding of the Court:
The court found that the appellant failed to establish a prima facie case and dislodge the presumption under Section 139 of the NI Act. The court clarified that the observations made were for the disposal of the application for interim injunction and the appeal, and not final findings on merits.
Issues: The issues involved the validity of the agreement, the appellant's ability to establish a prima facie case, and the applicability of the presumption under the NI Act.
Ratio Decidendi: The court held that the appellant did not provide sufficient evidence to establish a prima facie case and dislodge the presumption under the NI Act, leading to the dismissal of the appeal.
Final Decision: The appeal was dismissed, and all pending applications and caveat were disposed of with no costs.
Sanjiv Khanna, J.
CM No. 22032/2018
Learned Senior Counsel for the respondents, who appears on advance notice, states that he has no objection in case delay of 40 days in re-filing of the appeal is condoned. In view of the statement, the application is allowed.
FAO(OS) (Comm) No. 114/2018 & CM No. CM Nos. 22029-31/2018 & CAV No. 506/2018
1. The present intra court appeal under Order XLIII of the Code of Civil Procedure, 1908, read with Section 13 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, is directed against the order dated 15.1.2018 passed by the learned Single Judge in IA No.7012/2017.
2. The appellant herein, The India Fitness Connect Pvt. Ltd. has filed CS(Comm) 421/2017 against Ozone SPA Pvt. Ltd. and Naveen Khandari, Promoter and Managing Director of the former, who are the defendant Nos.1 and 2 in the suit and respondent Nos.1 and 2 in the present appeal. The suit is for declaration that the agreement with defendant No.1 (Ozone SPA Pvt. Ltd.) is null and void ab initio, being without consideration and induced by fraud and deception; a decree of mandatory injunction directing the defendants to handover all cheques issued by the plaintiff and to injunct the defendants, their representatives and assigns from presenting the cheques issued for payment. In the alternative, it is prayed that a decree of mandatory injunction be passed directing the defendants to forthwith deliver and destroy the cheques issued by the plaintiff. Lastly, prayer has been made to pass a decree for recovery of money of Rs.28,44,180/- in favour of the plaintiff and against the defendants along with pendent lite and future interest @ 18% p.a.
3. The impugned order rejects the application for interim injunction filed by the appellant, after referring to the agreement dated 21.4.2016, which is rather a short one and reads as under:-
“A. WHEREAS First Part/OSPL is the absolute owner and in peaceful possession of D27 Defence Colony (hereinafter referred to as "the Land") and has developed and constructed a building thereon known as "Ozone Spa Pvt. Ltd" (the "Building").
B. WHEREAS as per the discussion and meeting held on 14.04.2016 at Ozone Spa Pvt. Ltd., Defence Colony, New Delhi, wherein it was discussed and agreed that Second Part will use the space at Ozone Spa Pvt. Ltd. herein referred to as First Part for advertising its equipments till 01st September 2020 and that the Second Part in return will pay Rs. 2,51,23,590/- for 53 months i.e. Rs. 4,74,030/- per month including service tax @14.5% as expenses/rent for the usage of space for advertising the equipments at the premises of First Part i.e. D-27, Defence Colony, New Delhi 110024 till 53 months.
C. WHEREAS if there is any change in the service tax as per the guidelines of Government of India then in that case the Second Part agrees to pay the differential amount of the service tax and all other applicable taxes to the First Part.
D. WHEREAS it is of the essence of this agreement that the said agreement can neither be revoked nor terminated until entire payment i.e. Rs. 2,51,23,590/- inclusive of service tax is paid. E. The confidentiality of agreement is hereby ratified and confirmed between the parties thereto and will be subject to New Delhi Jurisdiction only.”
4. The appellant accepts and admits execution of the agreement and that they had issued 53 cheques of Rs.4,74,030/-, inclusive of service tax @ 14.5% payable each month as expense/rent for use of space for advertisement and equipment, in terms of the said agreement. Six cheques of Rs.4,74,030/- each have been encashed and the appellant has accordingly sought recovery of Rs.28,44,180/- from the defendants.
5. Learned counsel for the appellant has drawn our attention to the e-mails exchanged between the appellant and their principal, namely, M/s. Precor Inc., a company based in U.S.A., who, it is stated, are manufacturers and suppliers of gymnasium equipment. It is submitted that
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
