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M/S Worldwide Machinery Solutions Pvt Ltd & Anr vs.m/s Baliyan Enterprises Pvt Ltd & Ors - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
AppellantM/S Worldwide Machinery Solutions Pvt Ltd & Anr
RespondentM/S Baliyan Enterprises Pvt Ltd & Ors
Excerpt:
$~15 * + % in the high court of delhi at new delhi cs(os) 652/2015 judgment dated 7th november, 2016 m/s worldwide machinery solutions pvt ltd & anr through : dr.anurag kumar aggarwal with and ..... plaintiffs p mr.umesh mr.dhananjay pandey, advocates sharma versus m/s baliyan enterprises pvt ltd & ors ..... defendants through : mr. rohit sharma, advocate for defendant no.2. coram: hon'ble mr. justice g.s.sistani g.s.sistani, j (oral) ia no.4959/2015 ia no.7478/2015 1. plaintiffs have filed the present suit for recovery of rs.55,00,000/- together with pendente lite and future interest at the rate of 18%, per annum; damages to the tune of rs.55,00,000/- and cancellation of settlement deed dated 13.2.2015. the plaintiffs also pray for a decree of permanent injunction.2. i.a. 4959/2015 has.....
Judgment:

$~15 * + % IN THE HIGH COURT OF DELHI AT NEW DELHI CS(OS) 652/2015 Judgment dated 7th November, 2016 M/S WORLDWIDE MACHINERY SOLUTIONS PVT LTD & ANR Through : Dr.Anurag Kumar Aggarwal with and ..... Plaintiffs P Mr.Umesh Mr.Dhananjay Pandey, Advocates Sharma versus M/S BALIYAN ENTERPRISES PVT LTD & ORS ..... Defendants Through : Mr. Rohit Sharma, Advocate for defendant no.2. CORAM: HON'BLE MR. JUSTICE G.S.SISTANI G.S.SISTANI, J (ORAL) IA No.4959/2015 IA No.7478/2015 1. Plaintiffs have filed the present suit for recovery of Rs.55,00,000/- together with pendente lite and future interest at the rate of 18%, per annum; damages to the tune of Rs.55,00,000/- and cancellation of Settlement Deed dated 13.2.2015. The plaintiffs also pray for a decree of permanent injunction.

2. I.A. 4959/2015 has been filed by the plaintiffs under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure. I.A. 7478/2015 has been filed by defendant no.2 under Order XXXIX Rule 4 of the Code of Civil Procedure for setting aside ex parte ad interim injunction granted by this Court on 10.3.2015. Relevant portion of the order dated 10.3.2015 reads as under: CS(OS). 652/2015 Page 1 of 21 “CS(OS)652/2015 Plaint be registered as Suit. Issue summons to the defendants by ordinary process and speed post, returnable on 14th May, 2015. IA No.4961/2015 It is stated that the Court fee has been deposited and the receipt will be filed. Application stands disposed of. IA No.4959/2015 Issue notice to the defendants by ordinary process and speed post, returnable on the date fixed above. This is an application under Order 39 Rule 1 and 2 CPC seeking ex parte ad interim injunction to restrain the defendants from presenting the six cheques totalling Rs.1,10,00,000/-. It is averred in the accompanying plaint that the plaintiff is engaged in the distribution and supply of Horizontal Directional Drilling (HDD) Machines manufactured under the brand name VERMEER by a USA based company. Defendant No.1 had placed an order for purchase of one used machinery. On 26.9.2009 on request of defendant No.1 a second hand machine was given. Subsequently in December 2009 on the request of the plaintiff the machine was replaced by a high capacity new machine. A total payment of Rs.43,84,000/- was made by defendant No.1 to the plaintiff. Thereafter the plaintiff started raising a dispute claiming that the machinery supplied was defective. After several complaints to the police finally on 21.01.2015 an FIR under section 420/120-B IPC against the plaintiff No.2 and its officials was registered at PS Zirakpur, District SAS Nagar, Punjab. On 13.2.2015 at around 12 pm Mr.Mahesh Baliyan/ defendant No.2 alongwith police officials from PS Zirakpur visited the office of plaintiff No.1 and arrested plaintiff No.2. After arresting the plaintiff No.2 was informed that FIR No.17/2015 has been registered at PS Zirakpur against plaintiff No.2. Thereafter CS(OS). 652/2015 Page 2 of 21 plaintiff No.2 was taken in a van and was threatened with dire consequences unless he pay Rs.5 crore. He was forcibly made to enter into a settlement whereby he had to organise cash and paid defendant No.3 a sum of Rs.55 lacs which is duly recorded in the deed of Settlement dated 15.2.2015 which was forcibly got signed from plaintiff No.2 while he was in custody of the police. Defendant also took post dated cheques worth Rs.1.10 crores for not opposing the transit bail plea of plaintiff No.2. These payments of post dated cheques have been given under duress and coercion misusing the police force. Reliance is also placed on an order passed by the Punjab and Haryana High Court in Crl.Misc.7086/2015 on 4.3.2015 where further proceedings have been stayed. In my view the plaintiffs have made out a prima facie case in their favour. Balance of convenience is also in favour of the plaintiffs and against the defendants. The defendants are restrained by an ex parte ad interim injunction from presenting the cheques for encashment to the banks or using the cheques in any other manner whatsoever till further orders. The details of the post dated cheques are as follows:-

"Cheque bearing No.257173 dtd 12.3.2015 of Rs.60,00,000/- (sixty lacs) Cheque bearing No.364277 dtd 12.4.2015 of Rs.10,00,000/- (ten lacs) Cheque bearing No.364278 dtd 12.5.2015 of Rs.10,00,000/- (ten lacs) Cheque bearing No.364276 dtd 12.6.2015 of Rs.10,00,000/- (ten lacs) Cheque bearing No.257174 dtd 12.7.2015 of Rs.10,00,000/- (ten lacs) Cheque bearing No.257175 dtd 12.8.2015 of Rs.10,00,000/- (ten lacs) The plaintiff to comply with order 39 Rule 3 CPC within three days from today. A copy of this order be give dasti under signatures of Court Master. CS(OS). 652/2015 Page 3 of 21 On the next date of hearing i.e. 14.5.2015 the defendants No.2 and 3 shall remain present in person in Court.” 3. The brief facts of this case, which are necessary to be noticed, for disposal of the present applications are, that Baliyan Enterprise was initially a Proprietorship concern of defendant no.2, Sh.Mahesh Baliyan, however, the same was converted into a Company under the name and style M/s Baliyan Enterprises Pvt. Ltd., defendant no.2, on 30.12.2010. Plaintiff no.1 is a dealer of Horizontal Directional Drilling Machines (HDD) manufactured under the brand name VERMEER by a US based company, namely, VERMEER CORPORATION. This machine is used for trenchless digging for laying of pipelines/cables. Defendant no.1 is a company of which defendant nos.2 and 3 are Directors.

4. In May 2009, defendant no.2 visited the office of plaintiff no.1 and purchased one machine i.e. Vermeer Navigator D-24 x 40 A S.No.1VRS160Z3X1001011 equipped with Cummins Engine. At the time of purchase of the aforestated machine, defendant no.2 was informed that the aforesaid machine is a used machine. The aforesaid machine was supplied to defendant no.2 at Ajmer for a sum of Rs.32,49,000/- vide Invoice no.WMSEQ09-10/3019 dated 26.09.2009. In the invoice it was specifically mentioned that the machine is a used machine. Defendant no.2 used the said machine for one month. After one month, defendant no.2 realized that the machine was of low capacity. Defendant no.2 again approached plaintiff no.1 with a proposal to replace the earlier machine with a high capacity machine. After negotiations, with the sales representative of plaintiff no.1, defendant no.2 agreed to purchase a new high capacity machine sized 35x45 at an additional cost of Rs.11,35,000/- plus VAT/applicable CS(OS). 652/2015 Page 4 of 21 taxes. Thereafter defendant no.2 made the payment of Rs.11,35,000/- but he failed to deposit applicable VAT/taxes. Despite this, plaintiff no.1 supplied the machine to defendant no.2 with free service for a period of one year as per the warranty policy of Vermeer USA.

5. As per the plaintiffs, during the warranty period, the machine was serviced by plaintiff no.1 free of cost on the following dates: S.No.Date of Service of Name Service Engg. Company‟s Representative Status running machine hours of in 1.

2. 3.

4.

5. 26/27.02.2010 498.00 Vivekanand Dharamveer 07.04.2010 672.52 Shabad Shanjeev 17/18.04.2010 735.35 Shabad Dharmender 21.04.2010 747.00 Shabad Dharmender 07.06.2010 972.52 Shabad Shanjeev 6. After the expiry of the period of warranty, plaintiff no.1 continued to provide services to defendant no.2 on payment basis and the machine was serviced on three occasions, as detailed herein under :-

"Sl.No.Date of service Status running machine Hours of in 1. 10/13.08.10 1175.06 2.

3. 07/09.04.11 2143.00 24.04.2011 2195.00 Name of Service Engg. Company‟s Representative Vivekanand Jha Shabad Vivekanand Jha Thakur Jitendra Jitendra CS(OS). 652/2015 Page 5 of 21 7. For the aforestated services rendered by plaintiff no.1, plaintiff no.1 raised bills for service charges, for which two cheques i.e. (i) bearing no.236467 dated 6.10.2010 drawn on HDFC Bank in the sum of Rs.25,547/- and (ii) no.236486 dated 30.1.2010 drawn on HDFC Bank in the sum of Rs.50,000/-, total amounting to Rs.75,547/-, were handed over to the plaintiffs. The first cheque upon presentation was dishonoured with the remark „Insufficient Funds‟. The second cheque was returned as the payment was stopped by defendant no.2.

8. As per the plaintiff, despite having failed to receive payments, plaintiff no.1 continued to provide the service to defendant no.2 on various dates such as 7.4.2011, 9.4.2011 and 24.4.2011 in good faith. Thereafter plaintiff no.1 requested defendant no.2 to release the payments with regard to services provided and for replacement of spare parts of the machine, however, defendant no.2 refused to clear the outstanding dues and in fact threatened the officials of plaintiff no.1 at his office on 3.5.2011 due to which an Associate Manager of plaintiff no.1 filed a complaint at Police Station Madhu Vihar, Delhi. As a counterblast, on 3.5.2011 defendant no.2 also filed a complaint against plaintiff no.1 with regard to removal of defects in the machine or for replacement of the same. On 31.5.2011, defendant no.2 issued a legal notice to the plaintiffs for removal and/or replacement of the machine, and for compensation of Rs.90,00,000/-.

9. On 18.02.2012, defendant no.2 instituted a civil suit, being Civil Suit No.19/2012, before the Additional Civil Judge (Senior Division), Dera Bassi, for mandatory injunction for replacement of the aforesaid machine. The said plaint was returned vide order of 08.09.2012, as upon filing the written statement, the Court observed that it lacks territorial jurisdiction. CS(OS). 652/2015 Page 6 of 21 10. The plaint further discloses that the order of rejection of the plaint dated 8.9.2012 was challenged by defendant no.2 by filing Civil Revision Petition no.2587/2013, which was also dismissed on 18.9.2013. Thereafter defendant no.2 filed a Civil Appeal bearing CMA No.334/2013, which is stated to be pending adjudication.

11. A second complaint was filed by defendant no.2 on 26.03.2012 in the office of Special Superintendent of Police, Mohali. In the said complaint, notice was issued by the Investigation Officer. Upon receipt of the notice, Mr.Pradeep Jain, General Manager, North, from the plaintiff no.1 company appeared before the Investigation Officer, EOW, on various dates and his statement was recorded on 18.4.2012. After hearing both the parties, the Investigation Officer closed the complaint of defendant no.2 as no case was made out. Aggrieved by the order passed by the Investigation Officer, EOW Wing, defendant no.2 approached SHO, Economic Offences Wing, SAS Nagar, Mohali. Mr.Pradeep Jain, General Manager, North from plaintiff no.1 appeared before the SHO, who in turn directed Mr.Pradeep Jain to appear before the SSP. The matter was thereafter marked by SSP to the DCP, who, after hearing both the parties on more than three occasions, closed the matter, after getting legal opinion from Deputy District Attorney (Legal), stating that the matter was civil in nature. Yet, another complaint was filed by defendant no.2 on 13.06.2012 before the Economic Offences Wing, Mohali, on the same set of facts seeking re- inquiry. The said complaint was re-examined and based on the advice of Deputy District Attorney (Legal) the said complaint was closed having regard to the fact that the matter was civil in nature. On 01.04.2013, defendant no.2 filed another complaint before the Special CS(OS). 652/2015 Page 7 of 21 Superintendent of Police Mohali, against plaintiff no.1. The said complaint was forwarded to In-Charge, Police Station Zirakpur.

12. According to the plaintiff, in this complaint, defendant no.2 had suppressed the fact of filing of the previous similar complaints, court proceedings and their results. A notice under Section 160 of the Code of Criminal Procedure was issued to the plaintiffs herein. On receipt of the notice, Mr.Pradeep Jain, General Manager, North, appeared on behalf of plaintiff no.1, before the SHO, Zirakpur on 19.4.2013. After hearing Mr.Pradeep Jain, the SHO was of the view that the matter was civil in nature and he was directed to file a written reply to the complaint. The plaintiff no.1 filed its reply on 1.5.2013 before the SHO, Police Station Zirakpur, Punjab. This compliant of defendant no.2 was also closed by the SHO vide order dated 24.05.2013 based on the legal opinion of Deputy District Attorney and the opinion of S.P.(City), Mohali, that the matter was civil in nature.

13. According to the plaintiffs, after filing of the reply to the communication dated 24.5.2013, no communication was received by the plaintiffs from Police Station Zirakpur, Punjab, however, on 13.2.2015 at around 12.00 p.m., Sh.Mahesh Baliyan, defendant no.2 along with ASI Ashwani Kumar and Senior Constable Hardeep Singh from Police Station Zirakpur, District SAS Nagar, Punjab, visited the office of plaintiff no.1 at Patparganj Industrial Area and arrested plaintiff no.2, Managing Director of plaintiff no.1. Upon the arrest of plaintiff no.2, he was informed that on 21.1.2015 an FIR bearing no.17/2015 has been registered against him, Sh.Pradeep Jain and Sh.Simranjit Singh, who were the erstwhile workshop Manager, under Sections 420 read with Section 120 of the Indian Penal Code. The aforesaid FIR was registered on the basis of the complaint dated CS(OS). 652/2015 Page 8 of 21 1.4.2013 i.e. after a gap of three years and four months from the date of filing of the first complaint in the month of September, 2011.

14. It is further the case of the plaintiff that on 13.2.2015 plaintiff no.2 was taken to Police Station Madhu Vihar in a Police van from where he was to be taken to Karkardooma Courts, however, defendant no.2 in connivance with ASI Ashwani Kumar and Senior Constable Hardeep Singh confined plaintiff no.2 to a room, where no one was present. Plaintiff no.2 was threatened and pressured to enter into a settlement for Rs.5,00,00,000/- or face dire consequences. The two Police officers also threatened plaintiff no.2 to immediately pay the aforesaid amount so as to get himself released from their clutches. The said negotiation was carried out inside Police Station Madhu Vihar. Thereafter three persons forced plaintiff no.2 to sit in a Hyundai Verna car bearing Chandigarh registration, which was being driven by defendant no.2. Instead of taking plaintiff no.2 to the Court, he was driven to different places. Defendant no.2 was also forced to immediately make the payment of the aforesaid amount in order to settle the dispute and get himself released. Plaintiff no.2 was finally taken to Sagar Ratna Restaurant in Preet Vihar, Delhi, at around 2.30 p.m. for further negotiations. There the aforesaid three persons again pressurized plaintiff no.2 to make an immediate payment of Rs.1,00,00,000/- to avoid his arrest. Plaintiff no.2 was also told that if the payment is made, ASI Ashwani Kumar will not object to his bail application. As plaintiff no.2 was illegally confined and was under threat of being taken to Punjab, he had no option but to succumb to their illegal demand and was finally coerced/forced to pay an amount of Rs.1,65,00,000/- in the garb of settling the dispute with defendant no.2. Plaintiff no.2 was further asked to pay Rs.55,00,000/- immediately CS(OS). 652/2015 Page 9 of 21 before he could be produced in the Court of the concerned Metropolitan Magistrate at Karkardooma Courts, Delhi. Plaintiff no.2 was also forced to pay the bill at Sagar Ratna Restaurant, a copy whereof has been filed along with the plaint. From Sagar Ratna Restaurant, plaintiff no.2 was taken to Karkardooma Courts, Delhi. The Police personnel, who were acting at the behest of defendant no.2, refused to produce plaintiff no.2 before the Magistrate unless payment of Rs.55,00,000/- was made. Under threats, plaintiff no.2 made a call to his friend, Sh.D.P. Sehgal, at Jaipur, on his mobile and requested him to immediately pay Rs.55,00,000/- to defendant no.3, Sh.Sunil Baliyan, brother of defendant no.2, who was stationed at Jaipur. Sh.D.P. Sehgal thereafter contacted his friend, Sh.Mahinder Kumar Tak, in Jaipur, who is also a business associate of plaintiff no.2, and asked him to arrange for the said amount. Sh.Mahendra Kumar Tak immediately went to Vijaya Bank, situated at Ahinsa Circle, Jaipur, around 3.20 p.m. and withdrew Rs.55,00,000/- from his Current Account no.700200301000241 and made payment of Rs.55,00,000/- to defendant no.3, Sh.Sunil Baliyan, brother of defendant no.2, at 201, Girnar Colony, Gandhi Path, Vaishali Nagar, Jaipur, at around 3.50 p.m. on 13.2.2015 itself. Till the payment was made, defendant no.2 continued to call his brother on his mobile phone numbers at Jaipur to find out about the status of payment. After receipt of the payment, plaintiff no.2 was threatened and forced to enter into an agreement regarding the remaining amount for which he was asked to issue post- dated cheques, and only thereupon he would be produced before the concerned Metropolitan Magistrate at Karkardooma Courts and his transit bail would not be objected to. Upon signing the agreement and CS(OS). 652/2015 Page 10 of 21 handing over post-dated cheques of Rs.1,10,00,000/-, plaintiff no.2 was produced before the Metropolitan Magistrate at 4.00 p.m.

15. Learned counsel for the plaintiffs submits that the fact that plaintiff no.2 was forced and coerced to sign the agreement and also forced to part Rs.55,00,000/- in cash, is evident from the fact that in all a sum of Rs.43,84,000/- was paid by Sh.Mahesh Baliyan, defendant no.2, to plaintiff no.1 company against the supply of machines, which were duly put in service for a period of 1000 hours and the said machines are still in possession of the defendants. Counsel further submits that even in the suit filed by defendant no.2 before the Additional Sessions Judge, Senior Division, Dera Bassi, the only relief claimed by defendant no.2 was replacement of the said machines and not the recovery of any amount from the plaintiffs. Counsel also points out that no.2 defendant in connivance with the Police officers have extracted money from plaintiff no.2 on the basis of a false and frivolous FIR, which is otherwise illegal, as no offence much less an offence was committed within the territorial jurisdiction of Zirakpur, Punjab, which is evident upon reading of the FIR. Counsel also contends that cognizance on the four earlier complaints filed by defendant no.2 were not taken as the nature of dispute was purely civil in nature.

16. It is also contended by learned counsel for the plaintiff that had plaintiff no.2 not being under any threat of life and personal liberty, he would not have signed the so called settlement agreement with defendant no.2 or paid Rs.55,00,000/-, in cash, to defendant no.2, through his brother, nor would he had handed over post-dated cheques to defendant no.2 for which there was no consideration.

17. Counsel for the plaintiffs further submits that having regard to the fact that only a sum of Rs.43,84,000/- was paid by defendant no.2 to CS(OS). 652/2015 Page 11 of 21 plaintiff no.1 and for which machines were supplied and defendant no.2 is in the possession of defendant no.2, plaintiffs had sent a legal notice dated 5.3.2015 to the defendants calling upon them not to present the six post-dated cheques for encashment and also sought return of Rs.55,00,000/- which were extracted by the defendants from the plaintiff along with interest at the rate of 18%, per annum. The plaintiff no.2 also sought damages.

18. Learned counsel for the plaintiff, in these circumstances, prays that the interim order dated 10.3.2015 passed by this Court by which defendants were restrained from presenting the cheques for encashment to the banks or using the cheques in any other manner, should be confirmed and the application filed by the defendants under Order XXXIX Rule 4 CPC should be dismissed.

19. On the contrary, learned counsel for the defendants submits that the interim order dated 10.3.2015 should be vacated. Counsel further submits that the averments made in the plaint are false and baseless. It is contended that the plaintiffs were throughout being represented by their lawyer on 13.2.2015, which would show that there was no pressure on the plaintiffs. Counsel contends that a reading of the agreement would show that the same was signed after the grant of bail. Thus, it cannot be said that there was any pressure or coercion on plaintiff no.2. It is also contended that the allegations made against the Punjab Police cannot be looked into as the said Police officials have not been impleaded as parties to the present suit.

20. Learned counsel for the defendants has vehemently submitted that the Settlement Agreement dated 15.12.2015 signed on 13.2.2015 is not a result of coercion or fraud. According to the counsel for the defendants, on 13.2.2015 defendant no.2 was in Delhi in connection CS(OS). 652/2015 Page 12 of 21 with his business and incidentally he had asked ASI Ashwani Kumar, who is IO on phone, as to the status of investigation with regard to the complaint filed by him against plaintiff no.2. Defendant no.2 was informed by the Investigation Officer that the Police party was travelling to Delhi to arrest plaintiff no.2 and they would be reaching Police Station Madhu Vihar to effect arrest of plaintiff no.2. Counsel also contends that defendant no.2 was informed by Senior Constable Hardeep Singh on his mobile phone that the Police party is in the office of plaintiff no.1 and plaintiff no.2 was requesting for a meeting with defendant no.2 to settle the matter, and, thus, defendant no.2 met plaintiff no.2. It is also contended that the lawyer of plaintiff no.2 was also called to Police Station Madhu Vihar, Delhi, where formalities of arrest of plaintiff no.2 was completed. In the Police Station, plaintiff no.2 had insisted for a settlement. During settlement talks plaintiff no.2 promised and offered to pay Rs.50,00,000/- to defendant no.2 for the losses suffered by defendant no.2. Defendant no.2 insisted that he had suffered losses to the tune of above Rs.2,00,00,000/-. Since the parties could not reach a final figure, plaintiff no.2 was taken to Karkardooma Courts. On the way to Karkardooma Courts, another attempt was made to settle the matter at Sagar Ratna Restaurant when plaintiff no.2 offered to pay Rs.1,65,00,000/- as full and final settlement to defendant no.2. Defendant no.2 agreed to the said amount in good faith. Plaintiff no.2 agreed to pay Rs.55,00,000/- to defendant no.2 on 13.2.2015 itself and the balance amount was agreed to be paid by way of six post-dated cheques. This agreement was signed in good faith and based on the assurance given by plaintiff no.2.

21. Learned counsel for the defendants has denied that Rs.55,00,000/-, was paid in cash by plaintiff no.1 to the brother of defendant no.3. It is CS(OS). 652/2015 Page 13 of 21 further submitted that since plaintiff no.2 was unable to arrange Rs.55,00,000/- in cash it is for this reason that such an agreement was entered into. It is in these circumstances, counsel for the defendants prays for vacation of the interim order dated 10.3.2015. It is also submitted that post-dated cheques were issued for valuable consideration and in case the defendants are not permitted to encash the aforesaid cheques, the defendants would suffer irreparable loss and injury.

22. I have heard learned counsel for the parties and considered their rival submissions. The basic facts of the case are not in dispute that defendant no.2 had purchased a used Vermeer Navigator D-24 x 40 A S.No.1VRS160Z3X1001011 equipped with Cummins Engine. An invoice bearing no.WMSEQ09-10/3019 dated 26.9.2009 for Rs.32,49,000/- was issued to defendant no.2. The invoice clearly mentioned that machine was a used one. Upon use of the machine, defendant no.2 was not satisfied as the machine was a low capacity. Defendant no.2 approached plaintiff no.2 to replace the machine with a high capacity machine. After negotiation, plaintiff no.2 agreed to purchase a new machine with high capacity of size 35 x 45 on the following agreed as under: “i. Mr.Mahesh Baliyan would pay the balance amount of Rs.11,35,000/- as security deposit/advance equivalent to the cost of the machine. ii. Mr.Mahesh Baliyan would also pay the VAT/applicable taxes on the said transaction at the time of Billing of new machine. CS(OS). 652/2015 Page 14 of 21 iii. Mr.Mahesh Baliyan would get the bank delivery order old machine was bank as the the from hypothecated/financed to Bank.” 23. Defendant no.2 additionally paid a sum of Rs.11,35,000/ - to plaintiff no.1.

24. It is the case of the plaintiffs that the machine was serviced on various dates, which have been extracted in para aforegoing. After expiry of the warranty period, plaintiff no.1 continued to provide services to defendant no.1. Defendant no.1 submitted two cheques in lieu of the services provided by plaintiff no.1, however, the said cheques were dishonoured on account of „insufficient funds‟ and the payment having been stopped by defendant no.2. Since the officials of plaintiff no.1 were being threatened by defendant no.2, the Associate Manager of plaintiff no.1 filed a complaint against defendant no.2 at Police Station Madhu Vihar. As a counter blast, defendant no.2 filed four complaints against plaintiff no.2, however, the said complaints were closed, for the reason that the dispute was civil in nature, which is not disputed.

25. It is also the case of the plaintiffs, which is not disputed, that while a Police party from Punjab along with defendant no.2 had visited the office of plaintiff no.1 on 12.2.2015, but according to defendant no.2 he called the I.O. of Punjab Police incidentally only to know about the status of his complaint and it is only at that stage he was informed that the Police Party was in Delhi in connection with his complaint and they were likely to arrest plaintiff no.2 The defendant no.2 has also not disputed that a settlement agreement dated 15.2.2015 was signed on 13.2.2015 itself while it is the case of the plaintiffs that plaintiff no.2 was forced and coerced to sign this agreement. Additionally, plaintiff no.2 was forced to pay Rs.55,00,000/- in cash. Receipt of this amount CS(OS). 652/2015 Page 15 of 21 is disputed by the counsel for the defendants. It is also disputed that the plaintiff was forced to sign the agreement. In fact, it is the case of the defendants that at the request of the plaintiff, the defendant no.2 visited the Police Station, as the plaintiff was keen to settle the matter accordingly.

26. Learned counsel for the plaintiff has strongly urged that the entire proceedings of 13.2.2015 was staged managed. Upon careful reading of the pleadings and documents placed on record, it is evident that the Police Party had reached Delhi on 13.2.2015 in connection with the complaint made by the defendants at Police Station Zirakpur. It is rather strange that the first three complaints were closed on the ground that the nature of dispute was purely civil in nature but the fourth complaint was also not acted upon as plaintiff no.1 was informed about the closure order on 24.5.2013, but subsequently the Police decided to take action in the matter.

27. The Police Station at Zirakpur, Punjab, prima facie, it seems after closing the first three complaints decided to take action on the fourth complaint. This action on the party of Punjab Police does not seem to be bona fide as the earlier three complaints were closed on the ground that the matter was civil in nature, whereas cognizance was taken in the fourth complaint, where the facts were identical and in fact wherein defendant no.2 had suppressed filing of earlier complaints, court case and the result of the said case.

28. Having said so, to say that defendant no.2 had travelled to Delhi on 13.2.2015 for some business purpose and it was not within his knowledge that personnel from Punjab Police were also travelling on the same day, is not at all convincing for the reason that it is too much of a coincidence that defendant no.2 decided to travel to Delhi on a CS(OS). 652/2015 Page 16 of 21 particular day and in fact on the same day when the Punjab Police decided to take action against plaintiff no.2. Further on the same day, defendant no.2 thought of asking ASI Ashwani Kumar with regard to the status of his complaint. Thus, I am of the prima facie view that the stand taken by the defendants are highly dishonest and not convincing and there is merit in the submission made by counsel for the plaintiffs that defendant no.2 had travelled along with Punjab Police and visited the office of plaintiff no.1 from where plaintiff no.2 was arrested.

29. As to whether the plaintiff no.2 was forced and coerced to sign the agreement is a matter of evidence, but prima facie for the transaction pertaining to Rs.43,00,000/- and for the machines having been supplied and taking into consideration that the machines are still in the possession of defendant no.2, it seems to be illogical as to why plaintiff no.2 would agree to pay defendants Rs.1,65,00,000/-, without damages having been assessed or without a finding having been returned by any competent court of jurisdiction and why such an agreement would be signed and executed on 13.2.2015 itself. It is also apparent that plaintiff no.2 was forced to part with Rs.55,00,000/- on the same day. While, the defendants have denied receipt of this amount, plaintiff no.2 has placed supporting documents to show that Rs.55,00,000/ - was withdrawn on 13.2.2015. Supporting documents have also been filed to show that there were phone calls between plaintiff no.2 and defendant no.3, brother of defendant no.2, as also Sh.D.P. Sehgal at Jaipur. Once defendant no.2 had staged managed the presence of Punjab Police in Delhi and an agreement was executed between plaintiff no.2 and defendant no.3, which is extremely hard to believe that defendant no.2, who claims to be the oppressed party, would sign CS(OS). 652/2015 Page 17 of 21 an agreement showing that he had received Rs.55,00,000/- in cash whereas actually he claims that this was written but not handed over.

30. On the other hand, the plaintiffs have been able to prima facie convince this Court that Rs.55,00,000/- was withdrawn by Sh.Mahinder Kumar Tak from his bank at Vijaya Bank, situated at Ahinsa Circle, Jaipur.

31. In my view, the plaintiffs have been able to satisfy the three factors, which are to be considered by the Court for grant of injunction i.e. strong prima facie case, balance of convenience and irreparable loss.

32. Principles laid down for grant of interlocutory injunction have been discussed by the Supreme Court in the case of Hindustan Petroleum Corpn. Ltd. v. Sriman Narayan & Anr reported at (2002) 5 SCC760 Relevant paragraphs of the judgment read as under:-

"“7. It is elementary that grant of an interlocutory injunction during the pendency of the legal proceeding is a matter requiring the exercise of discretion of the court. While exercising the discretion the court normally applies the following tests: (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed.

8. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the exercise of the legal right asserted by the plaintiff and its alleged violation are both contested and remain uncertain till they are established on evidence at the trial. The relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before which that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he CS(OS). 652/2015 Page 18 of 21 could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where “the balance of convenience” lies.

9. In Dorab Cawasji Warden v. Coomi Sorab Warden (1990) 2 SCC117this Court, discussing the principles to be kept in mind in considering the prayer for interlocutory mandatory injunction, observed: “16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are: (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief. CS(OS). 652/2015 Page 19 of 21 17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as a prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.” (Emphasis supplied) 33. While considering an application under Order XXXIX Rules 1 and 2 CPC, the Court must take into consideration three factors i.e. (i) strong prima facie case; (ii) balance of convenience; and (iii) irreparable loss.

34. In the present case, having regard to the narration of facts and the documents placed on record, I am satisfied that the plaintiff has been able to make out a prima facie case. The balance of convenience is also in favour of the plaintiffs. The conduct of the defendants and the manner in which the defendants have persuaded the Punjab Police to take action on the fourth complaint filed by the defendants despite closure of earlier complaints would disentitle the defendants for any favourable relief at this stage. In case, the defendants are allowed to encash the cheques, plaintiff no.2 would suffer irreparable loss. Moreover, the machines in question are still in possession of the defendants. Resultantly, present application (IA No.4959/2015) filed under Order XXXIX Rules 1 and 2 CPC is allowed. Interim order dated 10.3.2015 is confirmed till the disposal of the suit. IA No.7478/2015 filed under Order XXXIX Rule 4 CPC stands dismissed. CS(OS) 652/2015 35. List this matter before the Joint Registrar for admission/denial of documents on 4.1.2017. CS(OS). 652/2015 Page 20 of 21 36. List this matter before the Roster Bench on 9.2.2017 for framing of issues, when parties shall bring suggested issues to Court. NOVEMBER7h, 2016 P/msr G.S.SISTANI, J.

CS(OS). 652/2015 Page 21 of 21


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