Rakesh Jain v. Atul Bansal & Ors

RAJIV SAHAI ENDLAW, J. AUGUST 08, 2019

¶19The counsel for the plaintiff has mentioned the matter just before lunch and states that the plaintiff withdraws the suit.

¶20The suit is dismissed as withdrawn.

¶21The date of 9th August, 2019 is cancelled.

RAJIV SAHAI ENDLAW, J. AUGUST 08, 2019 "bs"/gsr

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 8th August, 2019. + CS(OS) 89/2018 & IA No.2805/2018 (u/O XXXIX R-1&2 CPC) RAKESH JAIN ..... Plaintiff Through: Mr. Divakar Kumar and Mr. A.K. Bajpai, Advs. Versus ATUL BANSAL & ORS ..... Defendants Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The plaintiff, Rakesh Jain has instituted this suit under Order XXXVII of the Code of Civil Procedure, 1908 (CPC) for recovery of Rs.6,75,06,667/- with pendente lite and future interest and costs, jointly and severally from (i) Atul Bansal, (ii) ABW Infrastructure Limited, (iii) Ved Prakash Saxena, (iv) Ravi Shanker and (v) Aditya Buildwell Pvt. Ltd. 2. The suit came up first before this Court on 27th February, 2018 when summons thereof ordered to be issued and the defendant No.2 ABW Infrastructure Limited directed to maintain status-quo with respect to possession and title of land admeasuring 62 Kanals and 13 Marlas in Village Nangli Umarpur, Gurgaon, Haryana. 3. The order dated 18th April, 2018 records that the defendants No.1,2&5 Atul Bansal, ABW Infrastructure Limited and Aditya Buildwell Pvt. Ltd. had been served and the defendant No.3 Ved Prakash Saxena was reported to have died. The counsel for defendants No.1,2&4 appeared on 18th April, 2018 and also informed that the name of Aditya Buildwell Pvt. Ltd. has been changed to ABW Infrastructure Limited and thus defendants No.2&5 were one and the same entity. The order dated 8th August, 2018 records that winding up order had already been "passed" against defendant No.2. The plaintiff applied for issuance of summons for judgment and which vide order dated 26th November, 2018 were ordered to be issued. The order dated 18th February, 2019, for reasons stated therein, records that the suit did not qualify under Order XXXVII of the CPC and had been wrongly treated as under Order XXXVII of the CPC and ordered the suit to be converted into an ordinary suit and gave opportunity to the defendants No.1&4 to file written statement. Yesterday i.e. 7th August, 2019, when the suit came up before this Court, it was found, (a) that the plaintiff, inspite of repeated opportunities had not taken any step to substitute the heirs of defendant No.3 Ved Prakash Saxena; and, (b) that the plaintiff, inspite of opportunity had not taken any steps for obtaining permission from the Company Court to proceed with the suit against the defendant No.2 ABW Infrastructure Limited which was under liquidation. Thus, the suit, insofar as against the defendant No.3 Ved Prakash Saxena was found to have abated and insofar as against the defendants No.2&5 ABW Infrastructure Limited and/or Aditya Buildwell Pvt. Ltd., which are the same entity, was dismissed for non-prosecution and the suit was kept for today to consider, whether the plaintiff is entitled to a decree forthwith against defendants No.1&4 and the effect of abatement of the suit qua defendant No.3. 4. The plaintiff has instituted this suit pleading, (i) that the defendant No.1, a Director in defendants No.2&5, is known to the plaintiff since long and there were financial dealings between the plaintiff and the defendant No.1; (ii) that initially the plaintiff agreed to provide loan of Rs.1,76,58,750/- to defendant No.1 through cheques, against which the defendant No.1 issued 40,000 equity shares in the name of the plaintiff of the face value of Rs.10/- each out of the total paid up capital of 5,00,000 equity shares of Rs.10/- each of defendant No.5 Aditya Buildwell Pvt. Ltd., as security; (iii) that as on 1st November, 2015, a sum of Rs.5,63,52,426/- was due to the plaintiff; (iv) that a written agreement was executed by the plaintiff and the defendant No.1 acting for himself and on behalf of his companies, admitting a loan of Rs.5,63,52,426/-; (v) that the defendants failed to make payment of the said amount till 31st May, 2016 as agreed and an additional agreement dated 5th July, 2016 was executed whereunder the defendant No.1, for h