Suit-archana Jain-ajs Builders-23august2010 Order 37.doc

IN THE COURT OF SENIOR CIVIL JUDGE [CENTRAL DISTRICT], TIS HAZARI COURTS, DELHI Suit No.___________ OF 2010 [SUIT UNDER ORDER XXXVII OF THE CODE OF CIVIL PROCEDURE, 1908] In the matter of: SMT. ARCHANA JAIN W/o Shri A. K. Jain

R/o.52/58, Ramjas Road, Karol Bagh,

NEW DELHI – 110 005

….. PLAINTIFF

Versus 1.

M/s. AJS BUILDERS PRIVATE LIMITED 1st Floor, 8, Shaheed Bhagat Singh Marg, NEW DELHI – 110 001

2.

SHRI MADHU SINGH Director M/s AJS BUILDERS PRIVATE LIMITED 1st Floor, 8, Shaheed Bhagat Singh Marg, NEW DELHI – 110 001

….. DEFENDANTS

SUIT FOR RECOVERY OF Rs. ____________ [RUPEES ___________________________________] UNDER THE PROVISIONS OF ORDER XXXVII OF THE CODE OF CIVIL PROCEDURE, 1908 RESPECTFULLY SHEWETH: 8. That the plaintiff is filing the present suit under the provisions of Order XXXVII of the Code of Civil Procedure, 1908 on the basis of fixed sum of amount and a liquidated demand and no relief, which does not fall within the ambit of provisions of Order XXXVII of the Code of Civil Procedure,

1908 has been claimed in the suit. That the summons of the suit may be sent to the defendants under the provisions of Order XXXVII of Code of Civil Procedure, 1908. 9. That the defendant no. 1, through defendant No.2 approached the Plaintiff sometime in the month of March 2006 and represented that defendant No.1 was coming up in near future with a project by the name “AJS TOWNSHIP” at Gannaur, District: Sonepat, wherein registration was open, for sale of plots. Subsequently, the defendant No.1 through defendant No.2 painted a very rosy picture about the forthcoming project and persuaded the Plaintiff to immediately pay considerable money towards registration of a plot measuring 240 sq. yds. at the prescribed rate. It was represented by the defendant No.2 to the Plaintiff that it was imperative to make payment for the aforesaid upcoming project immediately as the prices would be escalating in the near future.

10. That lured by the representation and the alluring picture presented by the defendants and on their persuasions and demands the Plaintiff made payment of a sum of Rs. 2,15,000/- (Rupees One Lac Fifteen Thousand Only), vide cheque no. 436073 dated 20.03.2006, drawn on Central Bank of India, Ramtirth Nagar, Jhandewalan, New Delhi-110 055, as Registration Money (earnest money), to the

defendant no. 2, for

payment to defendant no.1. Needless to say, the said cheque was duly encashed and the amount realized by the defendants. Thereafter, the

Plaintiff on the demand and payment schedule paid a sum of Rs. 2,73,400/- (Rupees Two Lacs Seventy Three Thousand Four Hundred Only) vide Cheque No. 139558 dated 10.02.2007, drawn on Central Bank of India, Ramtirth Nagar, Jhandewalan, New Delhi – 110 055. The said cheque was duly encashed and the amount realized by the defendants. Thus the Plaintiff paid Rs. 4,88,400/-(Rupees Four Lacs Eighty Eight Thousand Four Hundred Only), to the defendants, towards the purchase of the plot.

11. That the defendants have also assured that if the said “Project” does not come up for any reasons whatsoever or there is unnecessary delay, the defendants shall refund the entire amount received, together with interest @ 15 % per annum.

12. That the Plaintiff, after making the payments, as detailed herein before, made personal visit to the alleged site of “Project” of the defendant and was shocked to see that there was no sign of the alleged “Project”. There was absolutely no work worth the name or any progress vis-à-vis the said “Project”. The Plaintiff got apprehensive and made fervent enquiries and sought to confirm the veracity of your claims about the said project. My client got the worst nightmare of her life when she learned that the alleged “Project”, as claimed by you addresses was not in existence at all and nowhere in the pipeline in the near future.

13. That immediately upon the said revelation, the Plaintiff

contacted the

defendants and categorically conveyed the defendants that as the representation made by the them with regard to the said “Project” was fraudulent, the Plaintiff would initiate appropriate legal proceedings for cheating, against them. The defendants started apologizing and stated that they had collected the money from the Plaintiff on the basis of premise and did not have any concrete information with regard to the said project. The defendants further claimed to be innocent and requested the Plaintiff not to initiate any action against them. Simultaneously, the defendants offered that they would refund the entire amount received from the Plaintiff along with up-to-date interest @ 15% per annum, as agreed.

14. That Plaintiff made numerous demands and requests for the refund of the amount, however the defendants kept on postponing the matter on one pretext or the other. However, when the Plaintiff started pressing hard for the refund of the sum, the defendants made the following payments: S. No.

CHEQUE No.

DATED

AMOUNT(Rs.)

1.

510644

16.04.2008

78,000. 00

2.

510696

21.05.2008

20,324. 00

3.

510663

21.05.2008

1,95,400. 00

4.

592

11.06.2008

1,00,000. 00

That thereafter, the Defendants issued Cheque No. 519129 dated 10.07.2008 for Rs. 97,900.00 (Rupees Ninety Seven Thousand Nine Hundred Only), drawn on Central Bank Of India, Gole Market, New Delhi110 001, towards part payment of the refund amount. However, to utter shock and disbelief of the Plaintiff, the said cheque was returned back dishounoured for the reasons “INSUFFICIENT FUND”.

The Plaintiff

immediately contacted the Defendants and apprised them of the dishonour of the said cheque. The Plaintiff expressed her view to initiate appropriate legal proceedings for the said dishonour. Defendant no. 2 expressed deep apology and sought few days time to make payments of the dishonoured cheque amount as also the entire balance refund amount. On such solemn request, the Plaintiff waited for almost one month and when nothing was coming up from the side of the Defendants, she once again contacted the Defendants. The defendants yet again requested for some more time to arrange for the funds and promised for the due encashment of the said cheque as also for the payment of the entire balance refund amount. The plaintiff yet again believing the solemn assurances and promises accommodated the Defendants to the utmost. However, the defendants kept on making false excuses with ulterior motives and gained time and the gullible Plaintiff kept on postponing the re-presentation of the cheque, believing such representations and promises.

15. That on account of such firm assurances and solemn promises the Plaintiff did not initiate any immediate action for the dishonour of the said cheque. So much so, the Plaintiff did not initiate any criminal action for the dishonour. The re-presentation of the cheque remained in abeyance for a substantial period. However, of late, all efforts of the Plaintiff to contact the Defendants have proved to be in futility. All calls made to the Defendants are either unanswered or they gave very evasive replies. The defendants are not coming forward to give any firm reply for the payment of the out standings of the plaintiff any more. 16. That the aforesaid acts and conducts makes it abundantly clear that the Defendants have issued the aforesaid cheque with malafide intentions and ulterior motives of playing fraud on the Plaintiff and to cheat the Plaintiff, knowing it fully well that on presentation the same shall be dishonoured, thereby causing wrongful gain to themselves and wrongful loss to the Plaintiff. Defendant No.1 is a company and Defendant no. 2 is the Director of the defendant no.1 and the Officer holding position of authority, incharge of and responsible for the day to day of the affairs of defendant no.1. The Defendants have played a calculated fraud and cheated the Plaintiff and made her part with substantial money and are wrongly and illegally withholding the amount due to the Plaintiff, without any rhyme or reason.

17. That from the above given resume, it is abundantly clear that the defendants have been acting with malafide intentions from the very beginning. They with a view to cheat the Plaintiff induced her to enter into an agreement and part with substantial money. The Defendants had no intentions to honour their commitments and solely with a view to make wrongful gains, by playing fraud, trapped the Plaintiff and made her part with substantial money. 18. That the defendants with malafide intentions and ulterior motives, knowing it fully well, that on presentation, the cheque No.519129 dated 10.07.2008 for Rs. 97,900/- (Rupees

Ninety Seven Thousand Nine

Hundred only) drawn on Central Bank of India, Gole Market, New Delhi, shall be dishonoured, issued the cheque with oblique motives. Not only this,

with

ulterior

motives,

defendant

no.2,

deliberately

and

contumaciously made false promises and succeeded in causing long delay in the re-presentation of the said cheque and managed to avoid any immediate criminal action by giving false assurances to the plaintiff. 19. That the defendant No.2 is looking after and managing the entire affairs of defendant No.1. The defendant No.2 is the person responsible for the day to day affairs of the Defendant no.1, in fact, defendant No.2 is wholly and solely responsible for the entire finances of the defendant No.1.

20. That the defendant No.2 has willfully and deliberately made false promises and given false assurances and cheated the plaintiff.

In fact, the

defendant No.1 is a got-up company and the entire affairs in the name of defendant No.1 are in fact the personal affairs of defendant No.2. The defendant No.2 is using the corporate veil of defendant No.1 in pursuing her personal needs and the corporate veil of defendant No.1 has to be lifted to fix the liability of defendant No.2. The defendant No.2 is liable for the entire outstanding dues of the plaintiff.

21. That the plaintiff got issued a legal notice dated 13.07.2010 to the defendants through registered A/D, UCP as well as courier and called upon the defendants to pay the entire outstanding amount. The notices were duly received by the defendants, however, the defendants have not made any payment in compliance of the said notice nor had replied either.

22. That now the defendants have become liable to pay a sum of Rs________ [Rupees ____________________________ only] as the principal amount, the defendants are further liable to pay interest @ 15% per annum w.e.f. ________

till

_______,

which

comes

to

Rs._______

[Rupees

_______________________________________ only] and the total amount i.e. principal and interest comes to Rs.__________[Rupees ___________________________________only].

23. That the plaintiff is filing the present suit under the provisions of Order XXXVII of the Code of Civil Procedure, 1908 on the basis of fixed sum of amount and a liquidated demand and no relief, which does not fall within the ambit of provisions of Order XXXVII of the Code of Civil Procedure, 1908 has been claimed in the suit. That the summons of the suit may be sent to the defendants under the provisions of Order XXXVII of Code of Civil Procedure, 1908.

24. That the cause of action arose in favour of the plaintiff and against the defendants for the first time in the month of March 2006 when the defendants approached the plaintiff, it arose on 20.03.2006 when the plaintiff paid Rs. 2,15,000/- through cheque and the same was duly enchased and realized by the defendants, it arose on 10.02.2007 when the plaintiff paid Rs. 2,73,400/- through cheque and the same was duly encashed and realized by the defendants, it arose on 16.04.2008, 21.05.2008 and 11.06.2008 when the defendants made part payments of Rs. 78,000/-, Rs. 20,324 and Rs. 1,95,400/- and Rs. 1,00,000/- in discharge of their of their liability, it arose on 10.07.2009 when the defendant issued and handed over cheque no. 519129 for Rs. 97,900/-, it arose when the said cheque was presented for encashment and was returned Dishonoured for the reason “INSUFFICIENT FUNDS”, it arose on various dates when the plaintiff made demands for the payment of the

dishonoured cheque amount alongwith the entire balance amount, it arose on 15.09.2009 when the plaintiff got issued the legal notice through Advocate, it arose when the said notice was received by the defendants, it arose when the defendants failed to comply with the said notice. The cause of action is still continuing as the defendants has failed to clear the outstanding of the plaintiff and square up the accounts. 25. That the value of the suit for the purposes of court fee and jurisdiction is fixed

for

Rs.___________

on

which

the

requisite

ad-valorem court fee is being paid.

26. That the registered office of the defendant no.1 is situated within the jurisdiction of this Hon’ble Court and hence this Hon’ble Court has jurisdiction to try and entertain the suit. That in view of the facts and circumstances, it is respectfully prayed that this Hon’ble Court may graciously be pleased to: a) pass a decree in favour of the plaintiff and against the defendants for a sum of Rs.________ [Rupees ___________________________ only] as on __________; b) pass a decree in favour of the plaintiff and against the defendants for pendente-lite and future interest @ 15% per annum with monthly rests w.e.f. _________ till realization, recoverable immediately; c) direct that the costs of suit may be awarded in favour of the plaintiff.

d) pass such other or further order(s) which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. Prayed accordingly. PLAINTIFF Through

Place: New Delhi Dated: ____.12.2010

[V.K. SINGH] Advocate 393, Civil Wing, Tis Hazari Courts, Delhi – 110 054

VERIFICATION: Verified at Delhi on this _____ day of December, 2010 that the contents of para___to ____ are true to my knowledge, whereas the contents of para ___to ____are true on belief and information based on legal advise. Last para contains prayer to this Hon’ble Court. PLAINTIFF