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IN THE HIGH COURT OF DELHI AT NEW DELHI
Amit Bansal, J.
Transasia Private Capital Limited & Anr. – Plaintiffs
Versus
Parmanand Agarwal & Ors. - Defendants
CS(COMM) 267 of 2021, I.A. No.7154, 9340, 9341, 15447, 15448 of 2021
Decided On : 27-04-2022
Code of Civil Procedure, 1908 - Section 10, 13, 44A - Order XXXVII Rule 1, Rule 2(3), Rule 5 - Order VII Rule 11(a) – Stay of Suit - Execution of decrees passed by Courts in reciprocating territory - Suit is a summary suit instituted under Order XXXVII Rule 1 of Code of Civil Procedure, 1908 (CPC) for recovery , along with interest, in favour of plaintiffs and against defendants no. 1 and 2 jointly and severally, on account of being personal guarantors of defendant no. 3 - Whether this Court has jurisdiction to entertain present suit – while deciding an application under Order VII Rule 11 of the CPC, reference has to be made only to the plaint and the documents filed along with the plain. (Para 33).
Finding of the Court :
There has been no denial of liability of defendant no. 1 and furthermore, defendant no. 1 has failed to make out a case for ouster of jurisdiction of this Court - Once defendant no. 1 admits his liability and there is no dispute with respect thereto, defendant no. 1, is required to pay money to plaintiffs and defendant no. 1, being in default in spite of admitting liability, cannot be permitted to take defence of such technical nature - Therefore, no case for grant of leave to defend is made out and suit is liable to be decreed in favour of plaintiffs and against defendant no. 1.
Result : Interim Application dismissed.
JUDGMENT :
Amit Bansal, J.
1. The present suit is a summary suit instituted under Order XXXVII Rule 1 of Code of Civil Procedure, 1908 (CPC) for recovery of USD 3,906,479.33/-, along with interest, in favour of the plaintiffs and against the defendants no. 1 and 2 jointly and severally, on account of being the personal guarantors of the defendant no. 3.
BRIEF FACTS
2. In the suit, it has been pleaded that:
(i) The plaintiff no. 1, TransAsia Private Capital Limited, is an asset management company, incorporated under the laws of Hong Kong, acting in its capacity as manager for and on behalf of Asian Trade Finance Fund, a sub-fund of TA Asian Multi-Finance Fund. The plaintiff no. 2, TA Private Capital Security Agent Ltd./TA Private Capital Ltd., is a company incorporated in the British Virgin Islands. The plaintiff no. 2 is the parent company of the plaintiff no. 1.
(ii) The defendant no. 1, Mr. Parmanand Agarwal and the defendant no. 2, Mr. Rajeev Goel are personal guarantors pursuant to the Facility Agreement dated 4th July, 2017 entered between the defendant no. 3, Apple Overseas Pte. Ltd., a company incorporated in Singapore, and the plaintiff no. 1. As per the said Facility Agreement, an uncommitted revolving trade finance facility, up to maximum of USD 2,000,000.00/-, was extended in favour of the defendant no. 3 for the purposes of import financing of agricultural commodities and metal scraps. The plaintiff no. 2 is the security agent under the Facility Agreement dated 4th July, 2017. Both the defendants no. 1 and 2 are signatories to the said Facility Agreement. The defendants no. 1 and 2 have executed a Security Deed dated 23rd March, 2018 with the plaintiffs and the defendants no. 3, and a Personal Guarantee each dated 23rd March, 2018 in favour of the plaintiff no. 2 in terms of the said Facility Agreement.
(iii) The said Facility Agreement has thereafter been granted/amended/renewed by the Facility Letter dated 23rd March, 2018, Letter dated 4th December, 2018, Renewal Letter dated 13th March, 2019 and Side Letter dated 25th March, 2020.
(iv) In terms of the aforesaid Facility Agreement, amounts were borrowed by the defendant no. 3 from the plaintiffs and which amounts, the defendant no. 3 has failed to repay.
(v) On 10th June, 2020, a Notice was sent on behalf of the plaintiffs to the defendant no. 1 and the defendant no. 2 demanding payment of USD 3,401,839.08/- on or before 17th June, 2020. A similar notice was sent on the same date to the defendant no. 3.
(vi) Upon failure of the defendants to pay the amounts claimed in the aforesaid Notice, a Statutory Demand dated 11th August, 2020 was sent on behalf of the plaintiffs to the defendants for a sum of USD 3,471,593.39/-.
(vii) The plaintiffs filed a Statement of Claim for recovery before the High Court of the Republic of Singapore and upon no appearance having been entered by the defendants, the High Court of the Republic of Singapore vide judgment dated 6th November, 2020 in Case No.: HC/S 999/2020, directed the defendants to pay to the plaintiffs, a sum of USD 3,294,631.67/-, along with interest and costs of USD 2,500/-.
(viii) An application against the aforesaid judgment was dismissed, along with costs of USD 6,000/-, by the High Court of the Republic of Singapore vide order dated 22nd March, 2021.
3. On the basis of the aforesaid pleadings, the present summary suit was filed on behalf of the plaintiffs under Order XXXVII Rule 1 of the CPC against the defendants for recovery of sum of USD 3,906,479.33/-, being Rs.28,51,72,991/-, in Indian currency on the date of filing of the suit.
PROCEEDINGS IN THE SUIT
4. Summons in the suit were issued on 2nd June, 2021 and an ex parte ad interim injunction was passed by this Court in I.A. No.7154/2021, restraining the defendants no. 1 and 2 from selling, mortgaging, parting with possession, alienating or creating third party rights in respect of suit properties bearing Unit No. 410 - 411, 4th Floor, Pearls Corporate, Plot 9, Sector 3,
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