Final Order 4

Order Details: COPY OF ORDER
Pdf Text: CS (Comm.) No. 541/2023
Ashish Jain vs. Shopzo Brand Pvt. Ltd.
20.12.2023
Present: Sh. V. N. Chaturvedi, Advocate, for the plaintiff.
None for the defendant.
Case file is perused.
The present commercial suit has been filed by the
plaintiff, against the defendant, under Order XXXVII CPC, for
recovery of a sum of ₹10,00,000/- (Rupees Ten Lakh Only),
alongwith pendentelite and future interest @18% per annum,
wherein, it is stated that the plaintiff is the sole proprietor of M/s
Padamprabh Enterprises. Whereas, the defendant is a private
limited company, dealing in women wear, with the brand name
‘ELINI”, having its exclusive brand outlet at F-7/49, Shop No.1,
Lal Quarter Market, Krishna Nagar, Delhi-51.
2. It is further stated in the plaint that in the year 2020,
the plaintiff came across the aforesaid brand outlet of the
defendant and on inquiry, the agent of the defendant company
informed the plaintiff that whosoever interested can run the
exclusive branch outlet, after depositing an amount of
approximately Rs.10 Lakhs, as security, which is refundable on
commission basis. Thereafter, the plaintiff, alongwith his father
Sh.Satish Jain, visited the said outlet at Krishna Nagar and met
with one Sh.Pankaj Kumar Singh, who introduced himself as the
director of the defendant company and on 23.12.2020, a
Memorandum of Understanding was executed between the
defendant and M/s Padamprabh Enterprise, proprietorship
concern of the plaintiff and the plaintiff paid a sum of
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Rs.10,00,000/- to the defendant company, from the bank
account of his proprietorship firm, bearing account
No.3537375457, with Central Bank of India, Patparganj, Delhi.
3. It is further stated in the plaint that the plaintiff was
running his business smoothly, till February 2022, but on
11.02.2022, when the employee of the plaintiff reached the
outlet in the morning to open the outlet, Sh. Rajeev Mehta,
landlord of the shop, snatched the keys of the outlet saying that
he was not receiving any rent from the company and so, he will
not allow the plaintiff to open the shop.
4. It is further stated in the plaint that the said outlet
was running at a rented premises and as per the agreement, the
defendant company was to pay the rent to the landlord every
month. Therefore, the plaintiff immediately informed Sh.
Pankaj Singh, director of the defendant company, about the
incident, who assured him to settle the account with the landlord
Sh.Rajeev Mehta, within 2-3 days.
5. It is further stated in the plaint that the plaintiff,
alongwith his father, regularly persuaded Sh. Pankaj Kumar,
director of the plaintiff company, but he did not receive the keys
of the outlet, till filing of the present suit.
6. It is further stated in the plaint that after 5-6
months, when the plaintiff did not get any response from Sh.
Pankaj Kumar, the plaintiff alongwith his father, visited the
outlet and found that the landlord of the defendant company got
vacated the said shop and rented it to some other person, who
was running a business in the name of ‘Jaipur Gulabo’.
7. It is further stated in the plaint that the plaintiff felt
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cheated because after giving Rs.10 Lakhs, nothing came in his
hand and income of around Rs.30,000/- to 40,000/- also stopped
suddenly since 11.02.2022. Thereafter, the plaintiff and his
father, tried to contact Sh. Pankaj Kumar Singh, telephonically,
but he stopped taking their calls.
8. It is further stated in the plaint that after lot of
persuasions, reminders and warning to lodge a criminal case
against him, Sh.Pankaj Kumar called the plaintiff and met him
outside the Super Snacks Restaurant at Lal Quarter Market,
Krishna Nagar, Delhi, and handed over a cheque, for an amount
of Rs.10,00,000/-, bearing No.232684, dated 15.05.2023, drawn
upon Union Bank of India, Mamora-Noida Branch, Gautam
Budh nagar, to the plaintiff, with the assurance that the said
cheque would be encashed at the time of its presentation.
Accordingly, the plaintiff deposited the aforesaid cheque with
his banker. But, on 17.05.2023, the said cheque was returned
back dishonoured, for the reason, “Funds Insufficient”.
9. It is further stated in the plaint that a legal notice,
u/s 138 N.I. Act, was also served upon the defendant. But, the
complaint could not be filed due to lapse of limitation.
10. It is further stated in the plaint that an application
under Section 12A of the Commercial Courts Act was also filed
before the Shahdara District Legal Services Authority on
31.07.2023. But, despite service of notice, the defendant
intentionally avoided/failed to participate in the pre-institution
mediation proceedings and accordingly, a non-starter report,
dated 25.08.2023, was issued to the plaintiff.
11. With the plaint, the plaintiff has also filed the GST
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registration certificate of the plaintiff firm; Original agreement/
Memorandum of Understanding, dated 21.12.2020, executed
between M/s Shopzo Brand Pvt. Ltd./defendant company and
M/s Padamprabh Enterprises proprietorship firm of the plaintiff;
original cheque bearing No.232684 dated 15.05.2023 for a sum
of Rs.10,00,000/- drawn upon Union Bank of India, issued in
favour of the firm of the plaintiff by the defendant; cheque
return memo dated 16.05.2023; statement of bank account;
photographs of the shop and a certificate u/s 65B of the Indian
Evidence Act.
12. After filing of the present commercial suit,
summons for appearance, in prescribed proforma under Order
XXXVII CPC, were issued to the defendant, vide order dated
27.10.2023. The defendant was duly served with the summons
for appearance, in prescribed proforma under Order XXXVII
CPC, electronically through ‘Whatsapp’ messenger on
01.11.2023, by the Nazarat Branch/process server of the court.
But, despite due service, no appearance has been filed by the
defendant, till date.
13. Order 37 (2) (3) of the CPC provides as follows:-
The defendant shall not defend the suit referred to in
sub-rule (1) unless he enters an appearance and in default
of his entering an appearance the allegations in the plaint
shall be deemed to be admitted and the plaintiff shall be
entitled to a decree for any sum, not exceeding the sum
mentioned in the summons, together with interest at the
rate specified, if any, up to the date of the decree and such
sum for costs as may be determined by the High Court
from time to time by rules made in that behalf and such
decree may be executed forthwith.
14. In the present case also, the defendant, who has
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been duly served with the summons for appearance, in
prescribed proforma under Order XXXVII CPC, through
electronic mode, on 01.11.2023, has failed to file/enter its
appearance within 10 days from its service.
15. In these circumstances, the plaintiff has become
entitled for recovery of the amount claimed by him in the plaint.
However, as this is a suit under Order XXXVII of the CPC, the
plaintiff is not entitled to claim future interest. Accordingly, the
suit of the plaintiff is hereby decreed, under Order XXXVII
Rule 2(3) CPC, for the principal amount of Rs.10,00,000/-
alongwith interest @ 8% per annum, w.e.f. 01.06.2023, till the
date of the decree.
Costs of the suit are also awarded, in favour of the
plaintiff and against the defendant.
A Decree be drawn accordingly.
File be consigned to record room after due
compliance.
Announced in the open Court
on this 20th Day of December 2023
BRIJESH KUMAR GARG
District Judge (Commercial Court)-01
Shahdara Distt, KKD, Delhi
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