J K Lakshm vs Amarpali L

J K Lakshmi Cement Ltd Vs Amarpali Leasure Valley P Ltd

Case Details

Case Type	CS (COMM.)
Filing Number	18885/2019
Registration Number	713/2019
Filing Date	04-12-2019
Registration Date	05-12-2019

First Hearing Date	05th December 2019
Decision Date	12th April 2021
Case Status	Case Disposed
Court Number and Judge	762-District Judge (Commercial Courts)-01;
Nature of Disposal	Uncontested--Decreed;

Petitioners & Respondents

Petitioner

J K Lakshmi Cement Ltd, ;

Petitioner Advocate

Amit Prabhat Deshpandey;

Respondent Name

Amarpali Leasure Valley P Ltd;

Order Details

Order Date	05-12-2019
CS (Comm) No. JK Lakshmi Cement Ltd. Vs. Amrapali Leisure Valley P. Ltd 05.12.2019 Fresh suit for recovery received by way of assignment. It be checked and registered. Present : Sh. Amit P. Deshpandey, Ld. counsel for plaintiff. Re-notify for consideration on 23.12.2019. (Sandeep Garg) Additional District Judge-01, New Delhi/05.12.2019

Order Date

13-01-2020

13012020 J.K. Lakshmi Cement Ltd. Vs. Amrapali Leisure Valley P. Ltd. CS (COMM) No. 713/19 13.01.2020. Present : Sh. Amit P. Deshpande, ld. Counsel for the plaintiff. Deficient court fee filed today on record. This is a commercial suit for recovery of Rs.66,04,298/- (Rupees Sixty Six lakhs four thousand two hundred ninety eight) against the defendant. Non-starter report about pre-institution mediation is annexed along with plaint. Summons of the suit be issued to the defendant on filing of PF/RC/Speed Post for 23.03.2020. ANJU BAJAJ CHANDNA District Judge (Commercial Court)-01 Patiala House Court, New Delhi. 13.01.2020

Order Date	23-03-2020
23.03.2020 CS (COMM.) 713/19 J K LAKSHMI CEMENT LTD Vs. AMARPALI LEASURE VALLEY P LTD 23.03.2020 In view of advisory issued by High Court of Delhi with respect to COVID-19 vide No.79/RG/DHC/2020, dated 16.03.2020, matter is adjourned for further proceedings for 22.05.2020. ANJU BAJAJ CHANDNA District Judge (Commercial Court)-01 Patiala House Court, New Delhi. 23.03.2020

Order Date

21-09-2020

21.09.2020 55 CS (COMM.) 713/19 J K LAKSHMI CEMENT LTD Vs. AMARPALI LEASURE VALLEY P LTD 21.09.2020 Present : Ld. counsel for the plaintiff through video conferencing. None for the defendant. Defendant unserved. Issue fresh summons for settlement of issues to defendants by all modes i.e. on filing of PF/RC/Speed Post/Courier/E-mail and FAX etc. Steps be taken within seven days. Put up for following steps: 1. For service of defendant. 2. for filing of written statement along with list of documents as well as the documents by defendant within 30 days from the date of service by giving advance copy to the opposite party; 3. for filing of replication in case written statement is filed at least two days prior to the next date by giving advance copy to the opposite party/counsels. Put up for 02.11.2020. Copy of this order be sent to defendant with the summons. SANJEEV JAIN District Judge (Commercial Court)-01 Patiala House Court, New Delhi. 21.09.2020 Certified that the hearing through video conferencing was smooth and audible to the counsel for the petitioner as well as the court. SANJEEV JAIN District Judge (Commercial Court)-01 Patiala House Court, New Delhi. 21.09.2020 Note: In case any document or any judgment is to be sent, the same may be sent on the e-mail id : [email protected].

Order Date

02-11-2020

02.11.2020 10 CS (COMM.) 713/19 J K LAKSHMI CEMENT LTD Vs. AMARPALI LEASURE VALLEY P LTD 02.11.2020 Present : Sh. Amit P. Deshpandey, Ld. counsel for the plaintiff through video conferencing. None present for the defendant either through physical hearing or video conferencing. Original postal slips in respect of service of defendant and tracking report filed. Postal authority reported that defendant is left from the given address. As per report of the process server the mobile phone number given by plaintiff is not belonging to him, but defendant have been served by way of email dated 08.10.2020 at the email address given in the process. Plaintiff is directed to file an affidavit within 10 days about the correctness of e-mail address of defendant given in process. Defendant may file written statement subject to the limitation period by giving advance copy to the plaintiff/counsel. Put up for 19.11.2020. SANJEEV JAIN District Judge (Commercial Court)-01 Patiala House Court, New Delhi. 02.11.2020 Certified that the hearing through video conferencing was smooth and audible to the counsel as well as the court. SANJEEV JAIN District Judge (Commercial Court)-01 Patiala House Court, New Delhi. 02.11.2020 Note: In case any document or any judgment is to be sent, the same may be sent on the e-mail id : [email protected].

Order Date

15-12-2020

15.12.2020 Through Video Conferencing 16 CS (COMM.) 713/19 J K LAKSHMI CEMENT LTD Vs. AMARPALI LEASURE VALLEY P LTD 15.12.2020 Present : Sh. Amit P. Deshpandey, Ld. counsel for the plaintiff. None for the defendant. An affidavit has been filed on behalf of plaintiff by its senior vice president Sh. Rakesh Gupta and it is stated that the said email address of defendant have been taken from the website of ministry of corporate affairs and is correct. In my view, in view of the affidavit by plaintiff, the correctness of the email address of defendant have been established. Defendant has already been served by way of email on 08.10.2020, but no written statement has been filed, despite expiry of 30 days period. The right of defendant to file written statement stands closed/forfeited. Plaintiff has also filed a power of attorney in favour of Sh.Rakesh Gupta, his senior vice president and the same is taken on record. I have heard the ld. Counsel. Ld. Counsel stated that this matter may not be suitable under Order VIII Rule 10 CPC as evidence will be required to prove electronic documents i.e. statement of accounts and other documents as well as for production of original documents. Request allowed. Let matter be fixed for plaintiff's evidence by way of affidavit. It is made clear that if none appeared on behalf of defendant matter will be taken up for the purpose fixed today for plaintiff's evidence. Put up for 15.01.2021. SANJEEV JAIN District Judge (Commercial Court)-01 Patiala House Court, New Delhi. 15.12.2020 Certified that the hearing through video conferencing was smooth and audible to the counsel as well as the court. SANJEEV JAIN District Judge (Commercial Court)-01 Patiala House Court, New Delhi. 15.12.2020 Note: In case any document or any judgment is to be sent, the same may be sent on the e-mail id : [email protected].

Order Date

28-01-2021

CS COMM 713/19 JK LAKSHMI CEMENT LTD VS AMARPALI LEASURE VALLY P LTD 28.01.2021 Present : Sh. Amit P. Deshpandey, Ld. Counsel for the plaintiff. None for the defendants. Defendants are proceeded ex-parte as their right to file written statement has already been closed / forfeited vide order dated 15.12.2020 and none has appeared to represent them. Affidavit of PW1 Sh. Rakesh Gupta was filed in evidence. PW not present. Adjournment requested. Put up for ex-parte evidence for 16.02.2021 by way of physical hearing. SANJEEV JAIN District Judge (Commercial Court)-01 Patiala House Court, New Delhi. 28.01.2021

Order Date

16-02-2021

16.02.2021 Through Physical Hearing 7 CS (COMM.) 713/19 J K LAKSHMI CEMENT LTD Vs. AMARPALI LEASURE VALLEY P LTD 16.02.2021 Present : Sh. Amit P. Deshpandey, Ld. counsel for the plaintiff. None for the defendant. Defendant is already exparte. No PW is present. It is stated that AR of the plaintiff (PW) is not present today due to illness of his mother. Last opportunity granted for PE in terms of previous order. Put up for plaintiff's exparte evidence by way of physical hearing on 04.03.2021. SANJEEV JAIN District Judge (Commercial Court)-01 Patiala House Court, New Delhi. 16.02.2021 Note: In case any document or any judgment is to be sent, the same may be sent on the e-mail id : [email protected].

Order Date

04-03-2021

10 CS (COMM.) 713/19 J K LAKSHMI CEMENT LTD Vs. AMARPALI LEASURE VALLEY P LTD 04.03.2021 Present : Sh. Amit P. Deshpande, Ld. Counsel for the plaintiff with Sh. Rakesh Gupta, PW1 / AR of the plaintiff. None for the defendants. Defendants are alredy proceeded ex-parte vide order dated 28.01.2021. PW1 Sh. Anurag Mishra is examined and discharged. Plaintiff evidence is closed vide separate statement of the AR of the plaintiff. Put up for final arguments on 25.03.2021. SANJEEV JAIN District Judge (Commercial Court)-01 Patiala House Court, New Delhi. 04.03.2021

Order Date	25-03-2021
18 CS (COMM.) 713/19 J K LAKSHMI CEMENT LTD Vs. AMARPALI LEASURE VALLEY P LTD 25.03.2021 Present : Sh. Amit P Deshpandey, Ld. Counsel for the plaintiff. None for the defendant. Defendant is already ex-parte vide order dated 28.01.2021. Final arguments heard. Put up for judgment on 12.04.2021. SANJEEV JAIN District Judge (Commercial Court)-01 Patiala House Court, New Delhi. 25.03.2021

Final Order Judgement

Order Date

12-04-2021

IN THE COURT OF SH. SANJEEV JAIN, DISTRICT JUDGE (COMMERCIAL COURT)-01, PATIALA HOUSE COURTS, NEW DELHI Presiding Officer: Sh. Sanjeev Jain, District Judge (Commercial Courts)-01 CS (COMM) 713/2019 In the matter of: J.K. Lakshmi Cement Ltd. “Nehru House”, 4th Floor, 4, Bahadur Shah Zafar Marg, New Delhi-110002 Through Shri R.K. Gupta, A.R., Phone: 9810190302 (mobile), Landline: 011-33001142 e-mail:- [email protected] …. Plaintiff Versus Amrapali Leisure Valley P. Ltd Registered Office at: 307, 3rd Floor, Nipun Tower, Community Center, Karkardooma Delhi-110092 ….Defendant Date of institution : 05.12.2019 Date on which final arguments were heard : 25.03.2021 Date of pronouncement of the judgment : 12.04.2021 Appearance: Sh. Amit P. Deshpandey, Ld. Counsel for plaintiff. None for the defendant. (Defendant is ex-parte) EX-PARTE JUDGMENT 1. Brief Facts: 1.1 This suit was filed by the plaintiff for recovery of Rs.66,04,298.00/- (Rupees sixty six lakhs, four thousand, two hundred and ninety eight only) with interest and cost against the defendant. It is CS (COMM). 713/2019 Page 1 of 8 stated in the plaint that plaintiff is engaged in the business of manufacture, sale and trading of cement and value added products like RMC, POP, AAC blocks and defendant is a company registered under the Indian Companies Act. Defendant purchased a ready mix concrete (RMC) for its project under construction named “Amrapali Veronica Heights-II” at GH-02, Tech Zone-IV, Greater Noida, District Gautam Budh Nagar (U.P.). In the month of December, 2015 the defendant placed four purchase orders (POs) as under: 1. POVE2SP/00077/15-16 dt 10/12/2015 of Rs.64,81,845.00 2. POVE2SP/00076/15-16 dt 11/12/2015 of Rs.44,77,729.00 3. POVE2SP/00078/15-16 dt. 16/12/2015 of Rs.2,89,055.00 4. POVE2SP/00081/15-16 dt. 26/12/2015 of Rs. 16,539.00 1.2 Plaintiff as per the request of the defendant supplied RMC to the defendant between December, 2015 and raised various invoices, the same were acknowledged by the defendant. The invoices stipulated that if the payment was not received by the plaintiff within 30 days, interest @15% would be charged from the defendant. 1.3 Defendant issued cheques bearing nos. 36005, 36002, 36004, 35721, 36009, 36008, 36007, 35720, 38000 and 36006 of total amount of Rs.44,45,114/- to the plaintiff for discharge of dues towards supply made to defendant. 1.4 The defendant requested the plaintiff not to present the cheques for two-three months as the defendant was facing financial difficulty. After waiting for considerable time, plaintiff vide letter dated 18.04.2016 notified the defendant that the plaintiff was presenting the CS (COMM). 713/2019 Page 2 of 8 cheques for clearance. The cheques were presented by the plaintiff in the month of April, 2016 through HDFC Bank Ltd., New Delhi. The same were returned unpaid on account of 'Insufficient funds' or 'Payment Stopped by Drawer' vide bank memos dated 13.03.2016 and 25.04.2016. One cheque bearing no. 36006 could not be presented as its validity period was already over. 1.5 Thereafter, four separate legal notices under section 138 of Negotiable Instruments Act with respect to dishonour of cheques were issued to the defendant. Notices were served upon the defendant. The criminal complaints are presently pending in the court of Sh. Ashwani Panwar, Ld. Metropolitan Magistrate, Patiala House Courts, New Delhi. After filing of the said complaints, defendant made a payment of Rs.1,00,000/- on 07.10.2016 through NEFT and a further payment of Rs.2,00,000/- on 14.10.2016 through NEFT. Hence a principal sum of Rs.41,60,114/- is due and payable by the defendant. 1.6 The plaintiff also served a demand notice dated 15.04.2017 upon the defendant company under the provisions of insolvency and bankruptcy Code, 2016 which is pending before National Company Law Tribunal, New Delhi (IB_291-(PB)/2-017). 1.7 The plaintiff is therefore entitled for a sum of Rs.41,60,114.00 being the admitted debt and interest @15% per annum from the dates of the invoices till 20.11.2019 amounting to Rs.24,44,184.00. Hence, the plaintiff claims a sum of Rs.66,04,298.00 from the defendant. CS (COMM). 713/2019 Page 3 of 8 2. Service of summons: Defendant was served by way of email dated 08.10.2020. Thirty days time was granted to the defendant to file his written statement. As neither the written statement was filed nor defendant appeared before the court, hence, defendant was proceeded ex-parte vide order dated 28.01.2021. 3. Plaintiff's Evidence: In the plaintiff's evidence, Sh. Rakesh Gupta, Authorized Representative of the plaintiff was examined as PW1 who filed his affidavit Ex.PW1/A. His evidence by way of affidavit was tendered before the Court and he proved the following documents :- S. NO Document Exhibit 1 The Power of Attorney dated 05.09.2020. Ex. PW1/1 (OSR) 2 The Power of Attorney dated 19.10.2016. Ex. PW1/2 (OSR) 3 Four Purchase Orders placed by defendant on the plaintiff. Mark- PW1/3 4 Office copy of the Tax Invoices along with Excise Gate passes. Ex. PW1/4 5 Email dated 20.01.2016 confirming the receipt of the cheques. Ex. PW1/5 6 Email to defendant's official email addresses dated 05.02.2016. Ex. PW1/6 7 Email dated 16.02.2016 sent to the defendant by plaintiff. Ex. PW1/7 8 Email dated 05.03.2016 sent to the plaintiff by the defendant. Ex. PW1/8 9 Email dated 05.03.2016 sent to the defendant by plaintiff. Ex. PW1/9 10 Copy of the letter dated 16.03.2016 along with postal receipts. Mark-A CS (COMM). 713/2019 Page 4 of 8 11 Copy of the letter dated 18.04.2016 along with postal slips. Mark-B 12 The certified copy of the eight cheques issued by the defendant. Ex. PW1/10 (colly) 13 Eight separate bank memos dated 13.03.2016 and 25.04.2016. Ex. PW1/11 (colly) 14 Three consolidated return statements issued by the bank. Mark-C to Mark-E. 15 Copy of the first legal notice dated 12.05.2016. Mark-F 16 Certified copy of the postal slips. Ex. PW1/12 17 Copy of the second legal notice dated 12.05.2016. Mark-G 18 Certified copies of the postal slips. Ex. PW1/13 19 Third Legal Notice dated 12.05.2016. Mark-H 20 Certified copies of the postal slips. Ex.PW1/14 21 Copy of the legal notice dated 10.05.2016. Mark-I 22 Certified copies of the postal slips. Ex. PW1/15. 23 Certified copy of the mutual, open and current account of defendant maintained by the plaintiff. Ex.PW1/16 24 Copy of the demand notice dated 15.04.2017. Mark-J 25 The calculation of interest at the contractual rate of 15% per annum for each overdue invoice in tabular form. Ex.PW1/17 26 Certified copy of the order dated 19.11.2019 passed by New Delhi District Legal Services Authority, Patiala House Courts, New Delhi received by plaintiff on 29.11.2019. Ex. PW/18 27 Certificate u/s 65-B of Evidence Act. Ex.PW1/B PW-1 was discharged and plaintiff's evidence was closed vide separate statement of Authorized Representative of the plaintiff. CS (COMM). 713/2019 Page 5 of 8 4. Discussion: 4.1 I have heard the learned counsel for the plaintiff and carefully gone through the record. Ld. Counsel for the plaintiff submitted that petition filed before the NCLT was sine-die adjourned as the defendant approached the Hon'ble Supreme Court. It is clarified that there was no moratorium period in the said proceedings and the suit has no bearing of proceedings before NCLT. Ld. Counsel for the plaintiff also stated during the arguments that as far as the suit is concerned there is no stay by any judicial forum or the Hon'ble Court. 4.2 In his unrebutted testimony PW-1 has clearly proved from the documents the power of attorney dated 05.09.2020 as Ex.PW1/1 (OSR); power of attorney dated 19.10.2016 as Ex. PW1/2 (OSR); four purchase orders placed by defendant on the plaintiff as Mark-PW1/3; office copy of the tax invoices along with excise gate passes as Ex.PW1/4; email dated 20.01.2016 confirming the receipt of the cheques as Ex.PW1/5; email to defendant's official email address dated 05.02.2016 as Ex.PW1/6; email dated 16.02.2016 sent to the defendant by plaintiff as Ex.PW1/7; email dated 05.03.2016 sent to the defendant by plaintiff as Ex.PW1/8; email dated 05.03.2016 sent to the defendant by plaintiff as Ex.PW1/9; Copy of the letter dated 16.03.2016 along with postal receipts as Mark-A; Copy of the letter dated 18.04.2016 along with postal receipts as Mark-B; the certified copy of the eight cheques issued by the defendant Ex.PW1/10 (colly); eight separate bank memos dated 13.03.2016 as Ex.PW1/11 (colly); three consolidated return statements issued by the bank as Mark-C to Mark- E; copy of the first legal notice dated 12.05.2016 as Mark-F; certified copy of the postal slips as Ex.PW1/12; copy of the second legal notice CS (COMM). 713/2019 Page 6 of 8 dated 12.05.2016 as Mark-G; certified copies of the postal slips as Ex.PW1/13; third legal notice dated 12.05.2016 as Mark-H; certified copies of the postal slips as Ex.PW1/14; copy of the legal notice dated 10.05.2016 as Mark-I; certified copies of the postal slips as Ex. PW1/15; Certified copy of the mutual, open and current account of defendant maintained by the plaintiff as Ex.PW1/16; copy of the demand notice dated 15.04.2017 as Mark-J; the calculation of interest at the contractual rate of 15% per annum for each overdue invoice in tabular form as Ex.PW1/17; Certified copy of the order dated 19.11.2019 passed by New Delhi District Legal Services Authority, Patiala House Courts, New Delhi received by plaintiff on 29.11.2019 as Ex.PW1/18 and certificate u/s 65-B of Evidence Act as Ex. PW1/B. 4.3 I do not find any reason to disbelief the unchallanged testimony of PW-1 and the documents proved on record. Keeping in view the unrebutted testimony of PW-1 and the documents proved on record, in my opinion plaintiff has successfully established that defendant has failed to pay his dues despite notice. In my opinion, plaintiff has proved its case in respect of the due amount i.e. Rs.66,04,298.00/-. 4.4 Plaintiff has claimed interest @ 15% per annum from the date of suit till the realization of the decreetal amount as per the invoices generated by the plaintiff. No objection regarding the interest was ever raised by the defendant during the course of the business or thereafter. In my opinion, plaintiff has claimed interest @ 15% per annum as per the agreement between the parties. Interest of justice will be served if plaintiff is allowed pendantlite and future interest @15% per annum as per CS (COMM). 713/2019 Page 7 of 8 agreement between the parties / invoice. 4.5 Plaintiff has also claimed the cost of the suit, keeping in view section 35 and 35A of CPC, it has been established that defendant failed to pay the amount despite service of notice and even failed to appear before the court. Therefore, defendant himself is responsible for the cost of the litigation to the extent of court fee and lawyers fee etc. as per rules. In my view plaintiff is accordingly entitled for the cost of litigation against the defendant. 5. Relief: In view of the above discussions, suit for recovery is decreed in favour of the plaintiff and against the defendant for Rs.66,04,298.00/- (Rupees sixty six lakhs, four thousand, two hundred and ninety eight only) due and payable along with interest @ 15% per annum from the date of filing of the suit till the date of decree and from the date of decree till the realization of the decreetal amount. Cost is also awarded in favour of the plaintiff and against the defendant to the extent of court fee and advocate’s fee as per rules. Advocate's fee certificate be filed by plaintiff within seven days failing which notional fee of Rs.10,000/- be allowed in the decree sheet. Decree sheet be prepared accordingly. File be consigned to the record room. Pronounced in the open Court (Sanjeev Jain) on this 12th of April, 2021 District Judge (Commercial Courts)-01 New Delhi District, Patiala House Courts, New Delhi The order contains 8 pages all checked and signed by me. CS (COMM). 713/2019 Page 8 of 8

Order Date

12-04-2021

Through Video Conferencing -1/2- 31 CS (COMM.) 713/19 J K LAKSHMI CEMENT LTD Vs. AMARPALI LEASURE VALLEY P LTD 12.04.2021 Present : Sh. Amit P Deshpandey, Ld. Counsel for the plaintiff. None for the defendant. Defendant is already ex-parte vide order dated 28.01.2021. Ld. Counsel for plaintiff pointed out that in order dated 04.03.2021 due to typographical error PW-1 Sh. Anurag Mishra has been mentioned instead of PW Sh. Rakesh Gupta. I have checked the record. There is a clerical error on the face of the record which stands corrected in original order dated 04.03.2021 against the initials of the undersigned. Vide my separate judgment of even date, suit for recovery is decreed in favour of the plaintiff and against the defendant for Rs.66,04,298.00/- (Rupees sixty six lakhs, four thousand, two hundred and ninety eight only) due and payable along with interest @ 15% per annum from the date of filing of the suit till the date of decree and from the date of decree till the realization of the decreetal amount. Cost is also awarded in favour of the plaintiff and against the defendant to the extent of court fee and advocate’s fee as per rules. Advocate's fee certificate be filed by plaintiff within seven days failing which notional fee of Rs.10,000/- be allowed in the decree sheet. Decree sheet be prepared accordingly. File be consigned to the record room. SANJEEV JAIN District Judge (Commercial Court)-01 Patiala House Court, New Delhi. 12.04.2021 -2/2- CS (COMM.) 713/19 J K LAKSHMI CEMENT LTD Vs. AMARPALI LEASURE VALLEY P LTD Certified that the hearing through video conferencing was smooth and audible to the counsel as well as the court. SANJEEV JAIN District Judge (Commercial Court)-01 Patiala House Court, New Delhi. 12.04.2021 Note: In case any document or any judgment is to be sent, the same may be sent on the e-mail id : [email protected].

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Frequently Asked Questions

The Petitioner in case J K Lakshmi Cement Ltd vs Amarpali Leasure Valley P Ltd is J K Lakshmi Cement Ltd.

The Respondent in case J K Lakshmi Cement Ltd vs Amarpali Leasure Valley P Ltd is Amarpali Leasure Valley P Ltd.

The case against Amarpali Leasure Valley P Ltdwas filed on 04-12-2019 by J K Lakshmi Cement Ltd.

The status of case J K Lakshmi Cement Ltd against Amarpali Leasure Valley P Ltd is Case Disposed.