Delhi District Court
M/S Majestic Buildcon Pvt Ltd vs Bkr Capital Pvt Ltd on 26 April, 2025
IN THE COURT OF SH. ANIL KUMAR SISODIA DISTRICT
JUDGE (COMMERCIAL COURT)-04,CENTRAL, TIS HAZARI
COURTS, DELHI
CS (COMM) 525/2018
M/S. MAJESTICS BUILDCON
Through its Director
Mr. Amit Gupta
Regd. Office: JD-12, LG-1,
Ground Floor, Khirki Extension,
Malviya Nagar,
New Delhi-110017
.... Plaintiff
VERSUS
1.
M/S BKR CAPITAL PVT. LTD.
Having Registered office at:
10174/1A, Gurudwara Road,
Karol Bagh, New Delhi-110005
2. BAJRANG LAL PERIWAL
Director
M/s. BKR Capital Pvt. Ltd.
R/o D-8, NEB Valley, Neb Sarai,
Delhi-110068
3. MS. RAJMANI MAHESHWARI
Director,
M/s. BKR Capital Pvt. Ltd.
R/o D-8, NEB Valley, Neb Sarai,
Delhi-110068
4. MS. BHUMIKA PERIWAL
Director,
M/s. BKR Capital Pvt. Ltd.
R/o D-8, NEB Valley, Neb Sarai,
Delhi-110068
5. MR. RADHEY SHYAM RATHI
Director,
ANIL Digitally signed
by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:21:08 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 1 by 42
M/s. BKR Capital Pvt. Ltd.
R/o C-19A and C-20, Second floor,
Indra Enclave, Neb Sari,
Delhi-110068
6. MR. SANJAY GOEL
S/o Late Sh. P.C. Goel,
R/o C-21, Ground floor,
Shivalik, Malviya Nagar,
South Delhi,
New Delhi-110017
…. Defendants
Date of filing of the suit : 01.12.2018
Date of reserving judgment : 09.04.2025
Date of judgment : 26.04.2025
Judgment
1. This is a suit for recovery for Rs. 66,94,587/- (Rupees sixty six
lakhs ninety four thousand five hundred and eighty seven only) filed by
plaintiff against the defendants. Initially the suit was filed by the plaintiff
only against defendant nos.1 to 5. Later on, defendant nos. 1 to 5 filed an
application u/O 1 Rule 10 CPC for impleadment of defendant no.6 in
the suit. The said application was allowed vide order dated 04.12.2021
and defendant no.6 was impleaded as a party in the suit. Plaintiff also
filed an application u/O 6 Rule 17 CPC seeking consequential
amendments in the plaint and the said application was also allowed vide
order dated 04.12.2021.
2. Briefly stated, facts of the case are that the plaintiff is a company
incorporated under the provisions of the Companies Act, 1956. Plaintiff
deals in the business of civil constructions including but not limited to
construction of Buildings, Hotels and is also into Real Estate. The
defendant no.1 is a registered ‘Non Banking Financial Company’
ANIL Digitally signed
by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:21:24 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 2 by 42
(NBFC). The defendant no.2 to 5 are the directors of the defendant no.1.
Defendant no.6 is the then Director of the plaintiff company. Defendant
no.1 is providing easy loans and also accepts ‘deposits’ at the pre-
determined rate of interest or at the applicable rate of interest determined
by the defendants at the end of every quarter/financial year.
3. It is further stated that on 12.07.2007, the plaintiff company took a
loan of Rs.4,00,000/- from the defendant no.1 and the same was returned
immediately after 2 days i.e. on 14.07.2007 as no rate of interest was
settled on the said loan amount. The defendants thereafter repeatedly
requested the plaintiff company to take loan or to provide the ‘Deposits’.
The plaintiff company thereafter approached the defendant no.1 through
its directors seeking ‘Deposits’ in their company i.e. the defendant no.1.
On 13.09.2014, the plaintiff advanced an amount of Rs.13,90,000/- as
‘Deposits’ to the defendant no.1 from the bank account of the plaintiff.
However, the defendants did not determine the rate of interest and when
enquired by the plaintiff, the defendants stated that they will declare the
rate of interest at the end of financial year and the interest would be a
minimum of 9% and maximum of 18%.
4. Thereafter again, in the year 2015, the defendants approached the
plaintiff seeking further ‘Deposits’ into their ‘NBFC’ company and the
plaintiff on 02.12.2015 further advanced an amount of Rs.30,00,000/- to
the defendant no.1 as ‘Deposits’. However, this time it was assured by
the defendants that the rate of interest would be decided at the end of
financial year and the same will be paid by the defendants on 31.03.2016
for the term 13.09.2014 till 31.03.2016. Thereafter, the plaintiff has
requested the defendants to provide the interest on the amount as
‘Deposits’ or else return the amount with due interest. It is further stated
ANIL Digitally signed
by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:21:38 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 3 by 42
that at the end of Financial Year 2015-16, defendants no.1 to 5 deposited
TDS as per Form 26AS and the TDS certificate reflecting that
defendants had deposited the TDS of Rs.21,976/- on the interest amount
of Rs.2,19,763/-. However, the balance interest over the deposits have
not been paid till date despite regular follow up.
5. It is averred that the plaintiff tried to approach the defendants by
making several requests and personal visits at their office demanding the
outstanding interest. However, the same went in vain. The plaintiff
further avers that no interest over the ‘Deposits’ was ever paid by the
defendants apart from the TDS in the year 2015-16. The total
outstanding amount including amount towards ‘Deposits’ as well as the
interest on the same is Rs.66,94,587/- due from the defendants including
an interest of 18% per annum due from 01.04.2016 till the filing of the
present suit, particulars of which are mentioned at page 9 of the plaint.
On 28.09.2017, the plaintiff had sent an email calling upon the
defendants to return the said amount along with interest within 15 days
but the defendants neither returned the said amount nor responded to the
aforesaid email. It was stated that defendant no.6 was always made
aware through email that the plaintiff company is in the process of
approaching the legal remedy against defendant nos.1 to 5 but he never
informed the plaintiff about the transfer made by defendant nos.2 to 5 in
his personal account. The plaintiff filed the police complaint against all
the defendants. It is further stated that all the defendants are jointly and
severally liable to make the payment of the outstanding amount to the
plaintiff company. Finding no alternative, the plaintiff has filed the
present suit.
6. Summons of the suit were duly served on the defendants and
ANIL Digitally signed
by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:21:51 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 4 by 42
defendants have contested the suit by filing their WS.
WS of Defendant no.1 to 5
7. In their WS, defendants nos. 1 to 5 have raised preliminary
objections that the present suit has been filed by concealing material
information and true facts. The present suit has not been instituted,
signed and verified by a duly authorized person. The resolution dated
15.09.2018 is a fictitious document which was created for the purpose of
filing the present suit. It only bears the signature of Amit Gupta and does
not bear the signatures of other directors and therefore, the suit has been
filed without any sanction/authorization of the Board of Directors of the
plaintiff company. It is stated that the plaintiff has fabricated another
resolution dated 15.09.2018 which contains the signature of other
director to cover up the lapses and both the documents are different. It is
further submitted that the suit is bad for misjoinder of defendant nos. 2
to 5, who have no privity of contract with the plaintiff and they are liable
to be deleted from the array of the parties as they are merely the directors
of defendant no.1 having no personal liability towards a company. It is
further submitted that the present suit has been filed with malafide
intention to extract money from defendants nos. 1 to 5 where in fact, no
amount is due towards the plaintiff and there appears to be a collusion
between the directors of the plaintiff company.
Defendants nos. 1 to 5 have further stated that the plaintiff
company is a family concern of Sh. Amit Gupta and his relative Sh.
Sanjay Goel (defendant no.6). Sh. Sanjay Goel approached the defendant
company and offered to make deposits with the defendant on normal
banking rate of interest from the plaintiff company. Thereafter, Sh.
Sanjay Goel vide letter dated 13.09.2014 forwarded cheque bearing no.
27960 dated 13.09.2019 for a sum of Rs.13,90,000/- to be kept as a
Digitally signed
ANIL by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:22:03 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 5 by 42
deposit on interest. The defendant company accepted the amount on
interest rate of 9% per annum. Vide another letter dated 02.12.2015 Mr.
Sanjay Goel forwarded another cheque bearing no. 108892 dated
02.12.2015 for a sum of Rs.30,00,000/- in favour of the defendant
company which was accepted by the defendant company as a deposit on
interest and the amounts were credited in the ledger account maintained
by the defendant company. It is further stated that defendant company
had also credited a sum of Rs.2,19,763/- on the said deposits in the
ledger account towards interest @ 9% per annum and even deducted and
deposited the TDS on the said amount. It was further stated that
defendant no.6 Sanjay Goel was side by side also keeping money as
deposit with defendant company and defendant company was
maintaining a ledger account in his name. On 15.04.2016, Sanjay Goel
wrote a letter to the defendant company and instructed defendant no.1 to
transfer the entire amount standing in the name of plaintiff company in
his personal ledger account as there was some dispute with their bank.
After receiving the instructions from defendant no.6, defendant no.1
transferred a sum of Rs.46,55,992/- in the ledger account of Sanjay Goel
from the account of the plaintiff company and also intimated this fact to
defendant no.6 vide letter dated 16.04.2016. Sh. Sanjay Goel withdrew
the entire amount on different occasions including the aforesaid amount
of Rs.46,55,992/-. It was stated that the entire amount was paid to Sh.
Sanjay Goel through cheques which was encashed by him.
It was further stated that the directors of plaintiff company are
close relatives and the present suit has been filed in collusion with each
other after the entire amount had already been returned to the director of
the plaintiff company as per his instructions. It was further stated that all
the instructions and meetings were conducted by Sh. Sanjay Goel since
the beginning and Sh. Amit Gupta, who has filed the present suit was
ANIL Digitally signed
by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:22:17 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 6 by 42
never in the picture and had never met the directors of the defendant
company. The corporate veil of the plaintiff company is liable to be lifted
to see who are the persons actually conducting the business of the
plaintiff company. It was further stated that Sh. Sanjay Goel is a
necessary party to the present suit and the suit cannot be decided
properly without his presence. It was further stated that the plaintiff and
its director had never disputed the authority of defendant no.6 to transact
with defendant nos. 1 to 5 since the beginning. Defendant no.6 was
dealing with the defendant no.1 company since the beginning and was
giving instructions to the defendant company on behalf of the plaintiff
and now the plaintiff is estopped from challenging the authority of
defendant no.6. The entire conduct of the plaintiff and Amit Gupta shows
that they were acting in collusion with the defendant no.6.
In reply on merits, defendant nos. 1 to 5 have stated that no
amount is due towards the plaintiff company and the present suit is false.
Defendant no.1 company has already paid the entire amount along with
interest @ 9% per annum. In the ledger account of defendant no.6 as per
instructions vide letter dated15.04.2016 written by defendant no.6 which
was withdrawn by defendant no.6 over the period of 9 months from June
2017 to March 2018. Defendants denied the receipt of email dated
28.09.2017 and stated that the same was a fictitious document. Other
contents of the plaint were also denied and the prayer was made for
dismissal of the suit.
WS of Defendant no. 6
8. In the WS, defendant no. 6 has raised preliminary objections and
submissions stating that he is one of the Promoter-Directors of plaintiff
Company which was incorporated on 28.05.2007 along with Sh. Amit
Gupta having its registered office at JD-12, LG-1, L.G.F, Khirki
Digitally signed
ANIL by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:22:36 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 7 by 42
Extension, Malviya Nagar, New Delhi-110017. It was further stated that
defendant no. 6 and Sh. Amit Gupta are close relatives and have pursued
business objectives jointly in the plaintiff company as well as other
business entities such as SAG Buildcon Pvt. Ltd., SAG Infrastructure
Pvt. Ltd. and other joint ventures which were co-owned by them. It was
stated that the relations between defendant no.6 and Sh. Amit Gupta
remained cordial and undisputed till 2015-16 when the first dispute arose
between them on account of share holding distribution in the plaintiff
company which extended to all the entities. Defendant no.6 initially held
33% share in the plaintiff company which was brought down to 21% by
way of conspiracy by Sh. Amit Gupta. Defendant no.6 initiated action
before NCLT, New Delhi vide Petition no. 70/ND/2017 which was
dismissed and appeal preferred against the judgment of NCLT was also
dismissed by NCLAT. It was further stated that Sh. Amit Gupta has
clandestinely received substantial cash on behalf of other group
companies from the deposit holders in such company. Sh. Amit Gupta
also filed a suit for recovery at Saket Court in the similar manner depsite
knowing that these entities settled in cash deposit account entries. Sh.
Amit Gupta also instituted a number of mischievous proceedings against
defendant no.6. The defendant no.6 has affirmed the submission of the
defendant no.1 for lifting of the corporate veil to determine financial
transactions carried in the plaintiff company and the role of Sh. Amit
Gupta and other group companies. It was stated that Sh. Amit Gupta
being majority share holder removed defendant no.6 from the
directorship of the plaintiff company in order to hijack the affairs of the
plaintiff company. It was submitted that an amount of Rs. 40,00,000/-
(Rupees Forty Lakh Only) was transferred on 27.06.2015 by Smt. Meenu
Goel, wife of defendant no.6 to Sh. Amit Gupta but no formal agreement
was signed as parties were having family relationship. It was mutually
Digitally signed
ANIL by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:22:58 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 8 by 42
agreed between defendant no.6 and Sh. Amit Gupta that the amount
received by the plaintiff company from defendant no.1 shall go into the
credit of defendant no.6 as defendant no.6, his wife and Amit Gupta were
holding various debit and credit entries on their personal account directly
and indirectly but after disputes arose between the parties, defendant
no.6 pursued for realization of deposit held with defendant no.1 in his
current account to safeguard his interest. It was further stated that
defendant no.6 and Sh. Amit Gupta, on account of mutual understanding,
had carried out transactions on behalf of group companies into their
personal current accounts and Sh. Amit Gupta was having complete
knowledge of the same.
On merits, the contents of plaint have been denied and it has been
stated that the director of the plaintiff company is intending to extort
money from the defendants by way of the present suit. A prayer has been
made for dismissal of the suit.
9 Plaintiff has filed replication to the written statement of the
defendant nos. 1 to 5 and defendant no.6 and has reiterated the contents
of the plaint. It has been submitted that defendant nos. 1 to 5 and
defendant no. 6 are in collusion with each other. It was stated that
defendant nos.1 to 5 without any verification and without obtaining any
Board Resolution blindly trusted the inspections given by defendant no.6
and transferred the money belonging to the plaintiff company in the
personal ledger account of defendant no.6. It was further stated that the
letter dated 15.04.2016, 13.09.2014 and 02.12.2015 were never issued by
the plaintiff company and the same have been fabricated by the
defendants. In reply to the WS of defendant no.6, the plaintiff has also
submitted that Amit Gupta had paid a sum of Rs.1,60,00,000/- to Mrs.
Meenu Goel for purchase of a property, out of which a sum of
Digitally signed by
ANIL ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:23:18 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 9 by 42
Rs.40,00,000/- was refunded by Mrs. Meenu Goel and she retained an
amount of Rs.1,20,00,000/- which is a separate transaction. It was stated
that defendant no.6 has siphoned off the funds of the plaintiff company
and caused wrongful loss to the plaintiff company.
10 On the basis of pleadings, following issues were framed on
01.06.2024 :-
1. Whether the suit has not been instituted
by duly authorized person and the Board
Resolution dated 15.09.2018 is forged and
fabricated document?(OPD1 to 6)
2. Whether the suit is bad for mis-joinder
of defendant no.2 to 5?(OPD1 to D5)
3. Whether defendant no.1 company stands
discharge of its liability to pay any amount to
the plaintiff in view of the payments made by to
defendant no.1, its director of plaintiff
company?(OPD1 to 5)
4. Whether Sh. Amit Gupta AR and director
of the plaintiff company had the knowledge
and agreed for the transfer of money deposited
with the defendant no.1 company to the
personal account of defendant no.6?(OPD6)
5. Whether the corporate veil of plaintiff
company is liable to be lifted?(OPD1 to 6)
6. Whether the plaintiff is entitled for
recovery of Rs.66,94,587/- as prayed for?(OPP)ANIL Digitally signed
by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:23:36 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 10 by 42
7. Whether the plaintiff is entitled for the
interest on the aforesaid amount, if so, at what
rate and for which period?(OPP)
8. Relief.
11. The plaintiff has examined Sh. Amit Gupta, director of plaintiff
company as PW-1 in support of their case. PW-1 has tendered his
affidavit as Ex PW1/X and proved the following documents:-
Sr. No. Document Exhibit
1 Certified copy of Board Resolution dated Ex. PW-1/1
15.09.2018 (OSR)
[Objected to as
to mode of
proof by
counsels for
defendants]
2 Photocopy of Bank Account Statement of plaintiff Mark PW-1/A
company having entry of Rs. 4 lakhs taken as loan
and entry of Rs. 4 lakhs showing the loan amount
being returned to the defendant no. 1
3 Photocopy of Bank Statement of Plaintiff Mark PW-1/B
Company showing entry of Rs. 13,90,000/- and
Rs. 30 lakhs transferred on 13.09.2014 and
02.12.2015 respectively to defendant no. 1
company as “deposits”
4 Photocopy of TDS for the financial year 2015-16 Mark PW-1/C
showing the interest amount paid and TDS
deposited by defendant no. 1 company
5 Copy of email dated 28.09.2017 sent to defendant Ex. PW-1/2
no. 1 company on its registered email address on (colly)
“MCA” website having along its certificate u/s 65
B Evidence Act
6 Copy of email dated 21.07.2018 at 16:29 and Ex. PW-1/3
16:35 sent by Mr. Amit Gupta, Director of (colly)
plaintiff company to the registered email ID of
defendant no. 6 i.e. Mr. Sanjay Goel
7 Copy of email dated 11.08.2018 sent by Mr. Amit Ex. PW-
Gupta, Director of plaintiff company to the 1/4(colly)
registered email ID of defendant no. 6 i.e. Mr.
Sanjay Goel
ANIL Digitally signed
by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:23:56 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 11 by 42
8 Copy of Board’s Report along with annexures and Ex. PW-1/5
notice of AGM and Balance Sheet, profit and loss (colly) (OSR)
account and notes to financial statements of
plaintiff company for the financial year 2016-2017
and 2017-2018 (Page No. 19 to 62)
9 Copy of email dated 10.11.2018 at 17:29 and mail Ex. PW-1/6
dated 12.04.2019 at 13:49 sent by Mr. Amit (colly)
Gupta, Director of plaintiff company to the
registered email ID of defendant no. 6 i.e. Mr.
Sanjay Goel
10 Certified copy of Board Resolution dated Ex. PW-1/7
07.11.2019 issued in favour of Mr. Amit Gupta, (OSR)
authorizing him to represent the plaintiff company [Objected to as
against all the defendant to mode of
proof by
counsels for
defendants]
11 Copy of complaint dated 08.11.2019 against all Mark PW-1/D
the defendants
12 Certificate u/s 65-B of Indian Evidence Act for the Ex. PW-1/8
email dated 21.09.2017, 21.07.2018 (two emails),
11.08.2018, 10.11.2018 and 12.04.2019
PW-1 was cross examined by the counsels for the defendant nos.1
to 5 and defendant no.6 at length. Thereafter PE was closed.
12. Defendant no.6 examined Sh. Sanjay Goel as D6W-1 and has
tendered his affidavit as Ex D6W1/A and he relied upon the copy of WS
filed on behalf of defendant no.2 in the matter of SAG Infrastructure Pvt.
Ltd. Vs. Sanjay Goel & Anr. CS(COMM) 381/2020.
Defendant no.6 was cross examined by counsel for the plaintiff
and counsel for defendant no.1 to 5.
13. D6W2 Smt. Meenu Goel wife of Sanjay Goel has endered her
affidavit as D6W2/A. She was cross examined by counsel for the
plaintiff.
Digitally signed
by ANIL
ANIL KUMAR
KUMAR SISODIA
Date:
SISODIA 2025.04.26
16:24:10 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 12 by 42
14. D6W3 Sh. Dhruv, Relationship Manager of ICICI Bank,
Pachsheel Park, Delhi is a summoned witness. He produced the bank
statement of plaintiff company from the period 04.03.2011 to 11.04.2011
as D6W3/1 and excel sheet as Ex.D6W3/2 respectively. Thereafter
defendant no.6 closed his evidence.
15. Defendant no.1 to 5 have examined Sh. Bajrang Lal Periwal as
D1W1, who has tendered his affidavit as Ex.D1W1/A and he relied upon
the following documents.
Sr. Documents Exhibits
No.
1 Extract of Resolution of defendant no.1 Ex.
company dated 09.06.2019 D1W1/1
2 Copy of letter dated 13.09.2014 Ex.
D1W1/2
(OSR)
3 Copy of the letter dated 02.12.2015 Ex.
D1W1/3
(OSR)
4 Copy of letter dated 15.04.2016 Ex.
D1W1/4
(OSR)
5 Copy of letter dated 16.04.2016 Ex.
D1W1/5
(OSR)
6 Printout of the ledger account of the Ex.D1W1/6
plaintiff company along with bank (colly) (5
statement. pages)
7 Printout of the ledger account of Ex.
defendant no. 6 alongwith bank statement D1W1/7
(colly)
(13pages)
8 Affidavit of defendant no.1 under Section Ex.
65-B of Indian Evidence Act, 1872 D1W1/8 ANIL Digitally signed by ANIL KUMAR KUMAR SISODIA Date: 2025.04.26 SISODIA 16:24:26 +0530 CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 13 by 42
D1W1 was cross examined by the counsel for the plaintiff as well
as counsel for defendant no.6.
16. Defendant nos. 1 to 5 also summoned a witness Mr. Pankaj
Kumar, Relationship Manager, ICICI Bank. He has produced the bank
statement pertaining to Account no.663805012031 in the name of M/s.
BKR Capital Pvt. Ltd for the period 01.03.2013 to 31.03.2013 and
01.12.2013 to 31.01.2014 which has been exhibited as Ex. D1W2/A
(colly). Thereafter DE was closed.
17. I have heard Sh. Namanveer Singh Ld. Counsel for plaintiff, Sh.
Govind Rishi, counsel for defendant no.1 to 5 and Mr. Shourya Goel and
Mr. Mayank Wadhwa Ld. Counsel for defendant no.6 and have perused
the record carefully. I have also carefully gone through the written
submissions and the judgments relied upon by the counsels for the
parties.
18. Issue wise findings on the basis of pleadings of the parties,
evidence lead by them and arguments advanced at bar are as under: –
Issue No. 1:
Whether the suit has not been instituted by
duly authorized person and the Board
Resolution dated 15.09.2018 is a forged and
fabricated document?(OPD1 to 6)
19. The onus of proving this issue was placed on the defendants.
Counsel for defendant nos. 1 to 5 have submitted that the suit has been
filed by the plaintiff on the basis of Board Resolution dated 15.09.2018
(Ex.PW-1/1) which does not bear the signature of defendant no.6 . It was
ANIL Digitally signed
by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:24:44 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 14 by 42
also argued that defendant no.6 did not sign the Minutes or the Board
Resolution for initiating the present suit. Counsel for defendant nos. 1 to
5 argued that PW-1 Sh. Amit Gupta in paras 11 and 37 of his cross-
examination has admitted that the Board Resolution Ex.PW-1/1 does not
bear the signature of defendant no.6. It was argued that PW-1 failed to
place the attendance sheet of the board meeting dated 15.09.2018 on
record and therefore, the present suit has been filed without any authority
and consent of the other director i.e. defendant no.6. Further Sh. Amit
Gupta fabricated the Board Resolution dated 15.09.2018 and has marked
the signatures of his wife Smt. Vasudha Gupta, who was not even a
director on the date of said Board Resolution and the same was exhibited
as Ex.PW-1/DA in para 10 of his cross-examination. It was further
argued that defendant no.6 in para 23 of his cross-examination confirmed
that no such Board Resolution was passed in the board meeting dated
15.09.2018 and he had not signed any document for filing of this suit. It
was argued that since defendant no.6 did not consent for filing of the
present suit, a single director cannot pass a Resolution and grant himself
the authority for instituting legal proceeding against third party.
20. Counsel for defendant no.6 has also argued on the similar lines
and have submitted that Sh. Amit Gupta has filed the present suit without
any authority or consent of the other director of the plaintiff and has
further fabricated the Board Resolution dated 15.09.2018 in order to gain
illegal benefits from the defendants. It was argued that Sh. Amit Gupta
has not only filed the present suit illegally but has also fabricated the
company records thereby committing criminal breach of trust in respect
of his cross examination. It was argued that defendant no.6 did not
consent for filing the present suit is also reflected from the emails dated
21.07.2018 Ex.PW-1/3 and email dated 11.08.2018, wherein Sh. Amit
Digitally signed
ANIL by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:25:00 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 15 by 42
Gupta shared the Resolution by circulation for filing the present suit but
D-6 never signed the same.
21. Per contra, counsel for the plaintiff has argued that plaintiff
company through Sh. Amit Gupta had written several emails dated
21.07.2018 (Ex.PW-1/3 colly) and 11.08.2018 (Ex.PW-1/4) to defendant
no.6 requesting him to convene a board meeting for initiating the suit for
recovery against defendant no.1 company but defendant no.6
deliberately chose to ignore the said emails and also concealed the fact
that he had already realized the money of the plaintiff company in his
own account. It was argued that all the aforesaid emails have been
admitted by defendant no.6 in his affidavit of A/D dated 11.03.2022. It
was further argued that on 15.09.2018, a board meeting was convened
and defendant no.6 was present in the said meeting. It was argued that
defendant no.6 in his affidavit of A/D of documents dated 11.03.2022
admitted the board report along with annexures and notice of AGM and
balance sheet, profit and loss account and notes to financial statements of
plaintiff company for the Financial Year 2016-17 and 2017-18 were
signed by him in the board meeting dated 15.09.2018 and 28.09.2018.
Defendant no.6 also identified the signatures at point ‘A’ on Ex. PW-1/5
(colly) which are the copies of board reports along with the annexures. In
his cross examination dated 24.08.2024, he also admitted that he had put
his signatures in the presence of officials of NCLT and he never objected
to signing of the documents. It was argued that defendant no.6 in his WS
has not even mentioned about the non-passing of the Board Resolution in
the plaintiff company but has taken a contradictory stand in his evidence.
It was argued that as per Section 174 (1) of the Companies Act, the
quorum for board meeting dated 15.09.2018 was complete as both the
directors were present in the board meeting dated 15.09.2018, wherein
Digitally signed
ANIL by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:25:17 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 16 by 42
Board Resolution Ex.PW-1/1 was passed. It was also argued that as per
Rule 25 (1) (c) (1) of The Companies (Management and Administration)
Rules, 2014, Sh. Amit Gupta being the Chairman of board meeting dated
15.09.2018 of the plaintiff company had appended his signature on to the
minutes of board meeting dated 15.09.2018 and Sh. Amit Gupta had put
his signature on the extract of Minutes of Meeting dated 15.09.2018 as
he wanted certified true copy of the Board Resolution passed at the
meeting of the board of directors of plaintiff company on 15.09.2018.
Ld. Counsel for the plaintiff emphasized that there is no law that true
copy of extract of minutes must have two signatures and therefore, the
Board Resolution dated 15.09.2018 is an authentic document. It was also
argued that as per Order 29 Rule 1 CPC, the plaint is well maintainable
and even if it is assumed that the extract of minutes of board meeting
dated 15.09.2018 was defective, the same is a curable defect and the
defect, if any, was cured by placing another certified copy of true extract
of minutes of board meeting dated 07.11.2019 wherein two of the
directors of the plaintiff company had affixed their signatures on to the
certified true copy. Reliance was also placed on the judgment of Hon’ble
Supreme Court in United Bank of India Vs. Naresh Kumar & Ors.
MANU/SC/0002/1997 and Sheth Builders Pvt. Ltd. Vs. Michael
Gabrial and Ors MANU/MH/2494/2020 in support of his arguments. It
was argued that no ante dated Board Resolutions were passed by the
plaintiff company and Smt. Vasudha Gupta, who was appointed as
director in June/July 2019 only certified the extract of minutes of board
meeting dated 15.09.2018 from the original minute book, being the
director of the plaintiff company at the time of filing of amended suit
dated 08.01.2020. It was also argued that the said extract of minutes of
board meeting dated 15.09.2018 was not allowed to be filed and taken
off the record by the court vide its order dated 14.10.2023.
ANIL Digitally signed
by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:25:36 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 17 by 42
22. Perusal of the record shows that the present suit was filed by the
plaintiff company through its director Mr. Amit Gupta. Along with the
plaint, the plaintiff has also filed certified copy of extract of Resolution
passed at the meeting of board of directors on 15.09.2018 (Ex.PW-1/1).
By the said Resolution, Sh. Amit Gupta, director of the plaintiff
company was authorized to sign, execute all necessary documents,
engage a lawyer and to do all such acts and deeds necessary for initiating
action against defendant no.1 company for recovery of the loan amount.
The copy of the said extract of Resolution has been signed by Sh. Amit
Gupta. The crux of the objection raised by the defendants is that the
Board Resolution Ex.PW-1/1 is not a valid document as it does not bear
the signatures of defendant no.6, who was the other director of the
plaintiff company and Mr. Amit Gupta could not have passed a Board
Resolution in his own favour.
23. Order 29 Rule 1 CPC provides that in a suit filed by a corporation,
any pleadings may be signed and verified on behalf of the corporation by
the Secretary or by any director or other principal officer of the
corporation, who is able to depose to the fact of the case. It is not in
dispute that Mr. Amit Gupta is director of the plaintiff company and he
was a director of the plaintiff company at the time of filing of the suit. In
MTNL Vs. Suman Sharma 2011 (1) AD Del 331, the Hon’ble High
Court of Delhi held that when a person who signs and verifies the plaint
is a principal officer then it ought to be held that the suit is validly
instituted in terms of Order 29 CPC. Hence, it can not be said that the
present suit has not been validly instituted.
24. In so far as the authority to file the suit on behalf of the plaintiff
ANIL Digitally signed
by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:26:17 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 18 by 42
company is concerned, the plaintiff has placed reliance on the extract of
Board Resolution Ex.PW-1/1. According to plaintiff, this Resolution was
passed in a board meeting held on 15.09.2018, wherein defendant no.6,
who was the other director of the plaintiff company at that time was also
present. It is pertinent to note here that defendant no.6 Sanjay Goel in his
cross examination has admitted that 2-3 meetings were conducted in the
year 2017-18 but he could not remember that these meetings were
conducted on 15.09.2018 and 28.09.2018. He further admitted that his
signatures were obtained in the meeting on the paper/books of the
plaintiff company prepared by the CA. He further identified his
signatures at point ‘A’ on each page of Ex.PW-1/5 (colly). He further
deposed that he has no objection to the signing of these documents as he
had also not objected to signing of the documents earlier. During the
cross-examination of defendant no.6 Sanjay Goel on 24.08.2024, the
witness was shown the original minutes of meeting dated 15.09.2018 and
his attention was drawn to para 5 of the minutes which were denied by
him stating that no such Board Resolution was passed. However, perusal
of the said minutes show that in the said meeting, defendant no.6 was
present and the financial statements of the Financial Year 2016-17,
auditors report, directors report for the financial year ended 31.03.2017
and ratification for reappointment of statutory auditor were passed
besides recovery of loan from the defendant no.1 company. As already
noted above, defendant no.6 has admitted his signature on the documents
Ex.PW-1/5 (colly) without any objection or protest, there is a strong
probability in favour of the plaintiff that the Board Resolution
authorizing Sh. Amit Gupta to initiate action against defendant no.1
company was also passed. Merely because later on defendant no.6 chose
to dispute the said board meeting dated 15.09.2018 will not discredit the
same when defendant no.6 has admitted his signatures on Ex.PW-1/5
ANIL Digitally signed
by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:26:33 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 19 by 42
(colly) which were passed in the said meeting and no objection or protest
was raised by defendant no.6 regarding the said meeting at the earliest
available opportunity.
25. As regards the forgery and fabrication of Board Resolution dated
15.09.2018 is concerned, counsel for the defendants have submitted that
Sh. Amit Gupta has appended the signature of his wife Smt. Vasudha
Gupta on the Board Resolution dated 15.09.2018, even when she was not
the director of the plaintiff company on that date and the same has been
exhibited as Ex.PW-1/DA.
26. Counsel for the plaintiff has argued that there is no forgery or
fabrication in the Board Resolution dated 15.09.2018. It was argued that
Ex. PW-1/DA was filed along with the amended suit dated 08.01.2020
and the certified copy of the extract of minutes of board meeting dated
15.09.2018 were signed by Smt. Vasudha Gupta, who was appointed as a
director in June/July 2019. Perusal of cross examination of PW-1 Sh.
Amit Gupta conducted on 07.08.2024 also shows that Ex.PW-1/DA was
filed along with the amended suit and it was bearing the signatures of
Vasudha Gupta, who was appointed as director of plaintiff in June/July
2019. In the absence of any other evidence to show that the Board
Resolution dated 15.09.2018 was ante dated, there is no reason to believe
as to why the plaintiff would forge and fabricate a document which is
already available with him.
27. In Sheth Builders Pvt. Ltd. Vs. Michael Gabriel & Ors. (supra)
Hon’ble Bombay High Court has observed that even if the suit is
originally filed by the company without a board resolution, the same is
not fatal and it is certainly a curable defect.
Digitally signed
ANIL by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:26:50 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 20 by 42
28. In United Bank of India Vs. Naresh Kumar (supra) Hon’ble
Supreme Court held that a person may be expressly authorized to sign
the pleadings on behalf of the company, for example by the Board of
Directors passing a resolution to that effect or by a power of attorney
being executed in favour of any individual. In absence thereof and in
cases where pleadings have been signed by one of it’s officers a
Corporation can ratify the said action of it’s officer in signing the
pleadings. Such ratification can be express or implied. The Court can, on
the basis of the evidence on record, and after taking all the circumstances
of the case, specially with regard to the conduct of the trial, came to the
conclusion that the corporation had ratified the act of signing of the
pleading by its officer.
29. In the present case, the suit was filed in the year 2018 and has
been pending adjudication since last almost six years and there has been
no objection by the plaintiff company to the validity of the institution of
the present suit or its continuation. Hence, there is an implied ratification
of the filing and signing of the suit by Sh. Amit Gupta by the plaintiff
company.
30. In view of the aforesaid discussion, I am of the considered opinion
that the defendants have failed to discharge the onus cast on them. The
issue is accordingly decided in favour of the plaintiff and against the
defendants.
Issue no. 2:
Whether the suit is bad for mis-joinder of
defendant nos. 2 to 5?(OPD1 to D5)
Digitally signed
ANIL by ANIL KUMAR
SISODIA
KUMAR Date:
SISODIA 2025.04.26
16:27:16 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 21 by 42
31. The onus of proving this issue has been placed on the defendant
nos. 1 to 5. Counsel for the defendant nos. 1 to 5 has argued that in the
present case, the plaintiff company had given the money to defendant
no.1 company and as per settled law, the directors of a company are not
personally liable for its debts. It was also argued that the plaint also does
not contain any allegation/claim against defendant nos. 2 to 5 nor any
evidence has been lead by the plaintiff to show the liability of defendant
nos. 2 to 5. Defendant nos. 2 to 5 being the directors of defendant no.1
company were acting in an official capacity and they cannot be held
liable for the acts of the defendant no.1 which is an independent juristic
person.
32. Counsel for the plaintiff has not been able to show any allegations
against defendant nos. 2 to 5 in the plaint nor there is any evidence
against defendant nos. 2 to 5 which may establish their liability in their
individual capacity.
33. It is well settled law that directors of a company cannot be made
personally liable for its acts and omissions. I am supported in my views
by the judgment of Mukesh Hans and Anr. Vs. Usha Bhasin and Ors.
2010 SCC OnLine Del 2776, wherein the Hon’ble High Court of Delhi
has held that the directors of a company cannot be held personally liable
for the acts or omissions of the company which is a separate juristic
person.
34. Hence, in view of the aforesaid discussion, I am of the considered
opinion that the suit is bad for misjoinder of defendant nos. 2 to 5. The
issue is accordingly decided in favour of the defendants and against the
Digitally signed by
ANIL ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:27:34 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 22 by 42
plaintiff.
Issue no. 4:
Whether Sh. Amit Gupta AR and director of
the plaintiff company had the knowledge and
agreed for the transfer of money deposited with
the defendant no.1 company to the personal
account of defendant no.6?(OPD)
35. The onus of proving this issue was placed upon the defendant
no.6. Defendant no.6 in his WS has stated that he and Sh. Amit Gupta
are close relatives. It was further stated in the WS that Sh. Amit Gupta
was having complete knowledge of the transactions and settlement of
accounts by defendant no.6 with defendant no.1 company. In support of
its case, defendant no.6 has examined himself as D6W1 and has
reiterated that he and Sh. Amit Gupta had been withdrawing from the
plaintiff company upon mutual understanding, that Sh. Amit Gupta was
having complete knowledge about the transaction with defendant no.1
and the present suit has been filed maliciously.
36. Counsel for the defendant no.6 has argued that defendant no.6
during his cross-examination has consistently and categorically stated
that Sh. Amit Gupta had the knowledge of transfer of money in his
account and this fact has also been corroborated by defendant no.1 in his
cross-examination dated 19.10.2024 that defendant no.6 and Sh. Amit
Gupta both met defendant no.2 at his house in April 2016 for demanding
his share of money from defendant no.1 in accordance of which the letter
dated 15.04.2016 (Ex.D1W1/4) was also given under the signatures and
on the letter head of the plaintiff exactly the same way in which the
ANIL Digitally signed
by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:28:25 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 23 by 42
deposits were made. He further argued that defendant no.1 in his cross
examination dated 18.10.2024 irrevocably confirmed that all the
transactions have taken place with the consent and knowledge of Sh.
Amit Gupta and defendant no.6 and both of them used to meet him at his
house and in para 10 of the cross-examination, Sh. Amit Gupta had only
told defendant no.2 that the money belong to defendant no.6 and
defendant no.1 shall return the same as and when defendant no.6 makes
a demand. Counsel for the defendant no.6 argued that the entire
testimony of Sh. Amit Gupta can be proved as false and unreliable on
account of the fact that in his cross-examination dated 06.08.2024 he
deposed that he had not conducted any transaction in his personal
capacity after 2007 and in para 15 he has deposed that he met defendant
no.2 only on 2-3 occasions, whereas the bank statements Ex.D1W2/A of
defendant no.1 clearly show that Sh. Amit Gupta made huge transactions
of Rs.18 lacs and Rs.3 lacs in his personal capacity with defendant no.1
in the year 2013-14. It was argued that Sh. Amit Gupta has been
deposing falsely and has filed the frivolous suit against defendant nos. 1
to 5 despite having complete knowledge and giving consent for the
transfer of money into the account of defendant no.6. It was argued that
Sh. Amit Gupta has failed to place on record a single document for
making such huge amount of the deposits with defendant nos. 1 to 5 and
has denied the actual letters executed for transacting the deposits with
defendant nos. 1 to 5 which are the only documents available on record
to show the transaction in dispute.
37. Per contra, counsel for the plaintiff has denied having any
knowledge of settlement of account between defendant no.1 and
defendant no.6. He has argued that defendant no.1 and defendant no.6
have colluded with each other to siphon off the money belonging to the
Digitally signed
ANIL by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:28:50 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 24 by 42
plaintiff company. It was argued that defendant nos. 1 to 5 in their WS
have clearly admitted that Sh. Amit Gupta was nowhere in the picture
and all the instructions and meetings were carried out by defendant no.6
since beginning and they had never met Sh. Amit Gupta and only
defendant no.6 had approached the defendant no.1 company. Defendant
nos. 1 to 5 also stated in their WS that deposits were made from the bank
account of plaintiff company and only after receipt of instructions from
defendant no.6, money was transferred in his personal account instead of
the company’s account. It was also argued that if Sh. Amit Gupta would
have known that Sh. Sanjay Goel had already taken the money in his
personal bank account, then Sh. Amit Gupta would have filed the suit
against all the defendants from the very beginning and would not have
impleaded defendant no.6 after filing of WS by defendant nos. 1 to 5.
This fact also shows that Sh. Amit Gupta had no knowledge about the
transfer of money to the personal account of defendant no.6 and he never
agreed for the said transfer.
38. A careful perusal of WS filed by defendant nos. 1 to 5 would
reveal that defendant nos. 1 to 5 have categorically stated in para 6 (x)
that all the instructions and meetings were conducted by Sh. Sanjay Goel
(defendant no.6) since the beginning and Sh. Amit Gupta, who has filed
the present suit was not even in picture and never met the directors of the
defendant company. In para 7 of the WS it is again reiterated that
defendant no.6 as director of the plaintiff was only interacting with
defendant nos. 1 to 5 and he gave written instructions to defendant no.1
to 5 for keeping the money as deposit. In reply to paras 11 to 16 on
merits, it has been stated that defendant no.1 has never seen any other
person apart from Sh. Sanjay Goel on behalf of the plaintiff and there
was no occasion for Sh. Amit Gupta or any other director of the plaintiff
Digitally signed
ANIL by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:29:09 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 25 by 42
company to approach to defendant nos.1 to 5 as the entire amount has
already been returned back by defendant no.1 and withdrawn by the Sh.
Sanjay Goel, director of the plaintiff company.
39. However, when defendant no.2 Bajrang Lal Periwal appeared in
the witness box as D1W1 on behalf of defendant nos. 1 to 5, he took a
complete somersault in his cross-examination and deposed that both Sh.
Amit Gupta and Sh. Sanjay Goel had come to his house. He further
deposed that defendant no.6 had told him that the money belongs to
defendant no.6 and he will take the returns and Sh. Amit Gupta had also
said that defendant no.6 was his partner. When the witness was
confronted with para 6 (x) of the WS filed by defendant nos. 1 to 5, he
deposed that both defendant no.6 and Sh. Amit Gupta had come to his
house and met him and stated that the aforementioned portion in the WS
is incorrect. He further admitted that there is no documentary evidence to
show that Sh. Amit Gupta was aware about the nature of transactions
between defendant no.1 and defendant no.6 and volunteered that there
were face to face talks in the presence of Sh. Amit Gupta. On the
question as to why defendant no.1 company issued a letter to Sh. Sanjay
Goel in his personal capacity when Sh. Sanjay Goel had issued the letter
in the capacity of director of plaintiff company, D1W1 replied that Sh.
Amit Gupta had told him that the money belonged to Sh. Sanjay Goel
and defendant no.1 should return the same to Sh. Sanjay Goel as and
when he makes the demand.
When D1W1 was cross-examined by the counsel for the defendant
no.6, he deposed that he knew Sh. Sanjay Goel and Sh. Amit Gupta very
well and used to participate in the family functions and functions at the
temple. He also deposed that in April 2016, Sh. Amit Gupta and Sh.
Sanjay Goel had come to his office and instructed him to transfer the
Digitally signed
ANIL by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:29:24 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 26 by 42
deposits in personal account of Sh. Sanjay Goel.
40. Perusal of cross-examination of D6W1 Sh. Sanjay Goel would
show that he knew the directors of defendant no.1 since 2000 as they
were also known to his parents. He admitted that he was having family
relations with defendant no.2 Bajrang Lal Periwal. He also admitted that
letter dated 15.04.2016 was written by him to defendant no.1 and he had
written this letter as there were disputes with Sh. Amit Gupta and he had
threatened to remove him from directorship of plaintiff company. He
further volunteered that he had requested defendant no.1 to transfer the
money in his personal account as this money belongs to him. He further
stated that he had mentioned about the dispute in the bank account of the
plaintiff company as Sh. Amit Gupta had told him that he will inform the
bank and he would not be able to withdraw the money from the bank
account of the plaintiff company. He further deposed that dispute
between him and Sh. Amit Gupta started orally in March 2016.
41. Admittedly, the money was transferred from the account of
plaintiff company to defendant no.1 company vide letters dated
13.09.2014 Ex. D1W1/2 (wrongly typed as 13.09.2024 during the
tendering of affidavit by D1W1) and letter dated 02.12.2015
Ex.D1W1/3. Both these letters bear the signatures of Sh. Sanjay Goel as
director of the plaintiff company. It is also not in dispute that the money
was transferred from the bank account of the plaintiff company to
defendant no.1 company as deposit. D1W1 in his cross examination has
deposed that in April 2016, Sh. Amit Gupta and Sh. Sanjay Goel had
come to his office and had instructed him to transfer the deposit in the
personal account of Sh. Sanjay Goel. However, this statement appears to
be false on the face of it as defendant no.6 Sanjay Goel in his cross-
ANIL Digitally signed
by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:29:51 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 27 by 42
examination has deposed that disputes between him and Sh. Amit Gupta
started orally from March/April 2016. If the dispute had already started
between Sh. Amit Gupta and defendant no.6 Sanjay Goel, there was no
possibility of Sh. Amit Gupta approaching DW2 Bajrang Lal Periwal and
informing him that the money belongs to the defendant no.6 and
instructed him to transfer the same in personal account of defendant
no.6. Similarly, the deposition of defendant no.6 Sanjay Goel that he had
mentioned about the dispute in the bank account of the plaintiff company
in the letter dated 15.04.2016 as Sh. Amit Gupta had threatened to
inform the bank and he would not be able to withdraw the money from
the bank appears to be a blatant lie as no such plea has been taken by
defendant no.6 in his WS. In fact, there would have been no occasion to
take a false plea in the letter Ex.D1W1/4 by defendant no.6, if Sh. Amit
Gupta had already told defendant no.2 that the money belonged to
defendant no.6 and the same be returned to him.
42. Similarly, this court does not find testimony of D1W1 Bajrang Lal
Periwal to be reliable on the aspect that both Sh. Amit Gupta and Sh.
Sanjay Goel had met him on various occasions and Sh. Amit Gupta had
informed him that the money belong to Sh. Sanjay Goel and the same
should be transferred in his personal account as and when demanded by
him as his statement is contrary to the pleas taken by defendant nos. 1 to
6 in their WS. Admittedly, there is no other document on record to show
that Sh. Amit Gupta had the knowledge about the transfer of the deposit
in the personal account of the defendant no.6 Sh. Sanjay Goel or that he
had consented for the same.
The mere fact that Sh. Amit Gupta had dealt with defendant no.1
in past in his personal capacity does not establish that he had the
knowledge or had consented for transfer of the deposit with defendant
ANIL Digitally signed
by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:30:06 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 28 by 42
no.1 to the personal account of defendant no.6 Sh. Sanjay Goel.
43. Hence, in view of the aforesaid discussion, I am of the considered
opinion that defendant no.6 has failed to discharge the onus cast on him.
The issue is accordingly decided against the defendant no.6 and in
favour of the plaintiff.
Issue no.3:
Whether defendant no.1 company stands
discharge of its liability to pay any amount to
the plaintiff in view of the payments made by to
defendant no.1, its director of plaintiff
company?(OPD1 to 5)
44. The onus of proving this issue has been cast on the defendant no.1
to 5. Counsel for defendant no.1 to 5 has argued that defendant no.6 has
repeatedly admitted in his cross-examination that he and Sh. Amit Gupta
had met with defendant no.2 at his house in April 2016 for demanding
his share of money from defendant no.1 in accordance with letter dated
15.04.2016 Ex.D1W1/4. It was also argued that the defendant no.2
during cross examination on 18.10.2024 also confirmed that all
transactions had taken place with the consent and knowledge of Sh. Amit
Gupta and defendant no.6. Defendant no.2 also placed on record
confirmation of accounts dated 01.04.2017 Ex.D1W1/6 issued by
defendant no.1 to the plaintiff which have not been disputed by the
plaintiff till the filing of the present suit. He further argued that the
testimony of PW-1 Amit Gupta is false and unreliable as he deposed that
he had not conducted any transaction with defendant no.1 in his personal
capacity after 2007 and had met defendant no.2 only on 2-3 occasions
ANIL Digitally signed
by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:30:21 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 29 by 42
whereas bank statement of defendant no.1 Ex.D1W2/A clearly show that
Sh. Amit Gupta had transaction with defendant no.1 in his personal
capacity in the year 2013-14. It was argued that Sh. Amit Gupta and
defendant no.6 have been deposing falsely and have filed false suit
against defendant no.1 to 5. Counsel for defendant no.1 to 5 further
argued that Sh. Amit Gupta also deposed falsely that he had been
approaching defendant no.1 to 5 orally and requesting for providing the
interest and making personal visit to the office of defendant no.1,
whereas in his cross-examination dated 07.08.2024 he admitted that it
was the first time on 28.09.2017 that he demanded money from
defendant no.1 and further that he never demanded money from
defendant no.2 to 5. It was further argued that the plaintiff company has
only two directors, who were close relatives and when both of them had
directed defendant no.1 to transfer the money of plaintiff company into
the account of defendant no.6 being his share money, then it is
inequitable and unlawful to fix any liability on defendant no.1 more
particularly when the records clearly establish that defendant no.1 had
already paid the entire amount along with interest to defendant no.6 and
this fact has also been admitted by defendant no.6 in his cross-
examination.
45. Per contra, counsel for the plaintiff has argued that defendants
have not been able to establish that Sh. Amit Gupta had visited the office
of defendant no.1 along with Sh. Sanjay Goel and had informed
defendant no.2 to transfer the deposit in the personal account of
defendant no.6 as it was his share of money. He argued that perusal of
the documents would show that the deposits was made by defendant no.6
vide letters dated 13.09.2014 (Ex.D1W1/2) and 02.12.2015
(Ex.D1W1/3) in the capacity of director of the plaintiff company. He
ANIL Digitally signed
by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:30:34 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 30 by 42
further argued that the letter dated 15.04.2016 Ex.D1W1/4 was also
issued by defendant no.6 on the letter head of plaintiff company in the
capacity of director of the plaintiff company. It was argued that if
defendant no.6 and Sh. Amit Gupta had already told defendant no.2 that
the money belonged to the share of defendant no.6 then why defendant
no.6 did not mention this fact in the letter dated 15.04.2016 and instead
took a false plea that the plaintiff was having some disputes with their
banks and therefore, the amount should be transferred in his ledger
account with defendant no.1 company. Counsel for the plaintiff has
further argued that the collusion of defendants is also apparent from the
fact that defendant no.1 issued the letter dated 16.04.2016 Ex.D1W1/5 to
defendant no.6 in his personal capacity and on his personal address
instead of issuing the said letter on the address of the plaintiff company.
Not only this, the confirmation of accounts Ex. D1W1/6 and D1W1/7
were also issued in the name of defendant no.6 at his personal address
instead of issuing the same on the address of the plaintiff company. He
also argued that both defendant no.1 and defendant no.6 did not disclose
to the plaintiff that the amount of deposit had already been transferred in
the account of defendant no.6 despite Sh. Amit Gupta writing emails to
them.
46. As already held in the conclusion of issue no. 4 herein above,
defendants have failed to establish even by preponderance of probability
that Sh. Amit Gupta had the knowledge and agreed for transfer of money
deposited with defendant no.1 company to the personal account of
defendant no.6. Hence, the arguments advanced by the counsel for
defendant nos. 1 to 5 that Sh. Amit Gupta and defendant no.6 had met
with defendant no.2 and had informed him of the fact that the money in
the deposit was a share of defendant no.6 is without any substance. At
ANIL Digitally signed
by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:30:49 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 31 by 42
the cost of the repetition, it may be noticed that DW-6 in his cross
examination dated 24.08.2024 has admitted that disputes between him
and Sh. Amit Gupta had started in March/April 2016. Hence, in this
situation, there was no possibility of Sh. Amit Gupta accompanying Sh.
Sanjay Goel to meet defendant no.2 in April 2016 for demanding his
share of money from defendant no.1.
47. Perusal of the letters dated 13.09.2014, 02.12.2015 and letter dated
15.04.2016 (Ex.D1W1/2 to D1W1/4) shows that these letters have been
written by defendant no.6 in the capacity of director of plaintiff company
on the letterhead of plaintiff company. It is also not in dispute that the
deposits were made with defendant no.1 from the bank account of the
plaintiff company and in the name of the plaintiff company. The
defendant no.1 company being a NBFC registered with RBI is governed
by the RBI Act and Rules framed thereunder. Once the deposits had been
taken by defendant no.1 in the name of the plaintiff company, it was the
duty of defendant no.1 to have returned the deposits in the name of the
plaintiff company in order to constitute a statutory discharge of its
liability. Even if, defendant no.6, in the capacity of director of the
plaintiff company sought the transfer of deposit amount in his personal
account, it was obligatory upon the defendant no.1 to have exercised due
diligence and asked defendant no.6 to provide a Board Resolution before
transferring the deposit amount in the account of defendant no.6.
48. Doubt is also created about the bona fide of defendant no.1 when
instead of informing the plaintiff company about transfer of deposit from
its account, defendant no.1 wrote a letter dated 16.04.2016 Ex.D1W1/5
to the defendant no.6 on his residential address about the said transfer. In
ordinary course of business, defendant no.1 ought to have informed the
ANIL Digitally signed
by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:31:05 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 32 by 42
depositor (i.e. plaintiff company) about any transaction in its account.
Even if defendant no.1 was to inform director of the plaintiff company,
the letter should have been addressed to the office address of the
defendant and not the residential address of one of the directors.
Similarly, defendant no.1 has issued confirmation of account Ex.D1W1/6
and D1W1/7 to defendant no.6 at his residential address instead of
sending the same to the plaintiff at his registered office.
49. Not only this, a perusal of paras 7 and 8 of cross-examination of
defendant no.2 Bajrang Lal Periwal shows that he has admitted that all
the transactions with the defendant company had taken place with the
consent and knowledge of Sh. Amit Gupta and Sh. Sanjay Goel. This
witness has shown the audacity to deny the contents of WS filed by
defendant no.1 to 5 which is also supported by the affidavit of defendant
no.2 himself besides other defendants. Further, defendant no.2 had stated
in para 9 of his cross examination that defendant no.2 had instructed to
transfer the amount kept as deposit in his personal account and Sh. Amit
Gupta had not said any thing in this regard. He also deposed that there is
no documentary evidence to show that Sh. Amit Gupta was aware about
the nature of transaction between defendant no.1 and defendant no.6.
Thus, the deposition of defendant no.2 is not only contradictory to his
own pleadings but is also unreliable and not worthy of credit.
50. The defendant no.2 in his cross examination dated 18.10.2024 has
admitted that the email ID of defendant no.1 company as mentioned on
the website of MCA is [email protected]. He also deposed
that the said email is still working. Although, he denied that he did not
receive any email from Sh. Amit Gupta with regard to the repayment of
company’s money, plaintiff has proved on record the email dated
ANIL Digitally signed
by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:31:17 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 33 by 42
28.09.2017 at 03:13 as Ex.PW-1/2 which belies the statement of
defendant no.2 Bajrang Lal Periwal. The collusion between defendant
no.2 and 6 becomes also apparent from the fact that neither defendant
no.2 replied to the email written by Sh. Amit Gupta on behalf of the
plaintiff company demanding the payment of the deposit amount nor
defendant no.6 replied to the email dated 21.07.2018 Ex.PW-1/3 asking
him to convene a board meeting for filing the recovery case against
defendant no.1.
51. Defendant no.1 being a registered NBFC is governed by RBI Act
1934 and it was bound to transfer the amount of the deposit in the
account of plaintiff company as per Section 45QB (4) of RBI Act in
order to constitute full discharge of its liability in respect of the deposit.
However, in the present case, defendant no.1 has failed to repay the
deposit amount to the plaintiff company and has wrongly paid the
amount to defendant no.6 in his personal ledger without any proper
authorization by the plaintiff company. Hence, it cannot be said that
defendant no.1 has discharged its liability. The issue is accordingly
decided in favour of the plaintiff and against the defendants.
Issue no. 5:
Whether the corporate veil of plaintiff
company is liable to be lifted?(OPD1 to 6)
52. The onus of proving this issue has been placed on the defendant.
Counsels for defendant nos. 1 to 6 have vehemently argued that PW-1
Amit Gupta in his cross examination dated 07.08.2024 has deposed that
directors of the plaintiff company were not withdrawing any
remuneration nor dividend from the plaintiff company and all the money
ANIL Digitally signed
by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:31:34 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 34 by 42
earned by the plaintiff company was directly being invested for the
growth of the plaintiff company and plaintiff company was being run
and operated entirely on the basis of Resolutions passed in the company.
PW-1 Amit Gupta also admitted that plaintiff company was being run
completely inside the family of Sh. Amit Gupta and defendant no.6. It
was argued that defendant no.6 in his cross-examination has also
deposed that plaintiff company was being run on the basis of oral and
mutual understanding of directors and they were withdrawing money
directly from the company according to their respective shares. It was
argued that Sh. Amit Gupta and defendant no.6 were running the
company as family company or quasi partnership and were pursuing
fraudulent activities in the company and the company was being used for
gaining illegal monetary gains from the third party. It was further argued
that bank statements of plaintiff company from 2008 to 2023 would
clearly reveal that Sh. Amit Gupta had withdrawn more than 3.7 crores
in the span of 15 years from the plaintiff company. PW-1 Amit Gupta in
the connected matter {(CS (COMM) No. 1432/2020} also deposed that
he cannot admit or deny the suggestion that he and Sh. Sanjay Goel used
to withdraw money from the company from time to time as per revenue
of the company. It was submitted that the plaintiff company was being
run as quasi partnership between Sh. Amit Gupta and defendant no.6. It
was argued that in view of inconsistent and contradictory testimonies of
Sh. Amit Gupta and defendant no.6 about the functioning and operation
of plaintiff company, it is necessary to lift the corporate veil of the
plaintiff company. In support of their arguments, counsel for the
defendants have also relied upon the following judgments:-
AIR 2023 (NOC99) 39.
Digitally signed
by ANIL
ANIL KUMAR
KUMAR SISODIA
Date:
SISODIA 2025.04.26
16:31:50 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 35 by 42
(ii) Sangramsinh P. Gaekwad & Ors vs Shantadevi P.
Gaekwad (Dead)Thr.Lrs.(2005) 11SCC 314.
(iii) Balwant Rai Saluja v. Air India Ltd.& Ors (2014) 9
SCC 407.
53. Per contra, counsel for the plaintiff has argued that there is no
material on record warranting the lifting of corporate veil. It was argued
that the defendants have failed to establish that Sh. Amit Gupta had
knowledge about the fact that the deposit made with defendant no.1
company was being transferred into the personal account of defendant
no.6. It was argued that defendants have also not been able to adduce any
evidence to establish that the plaintiff company was being used and
fraudulent activities or for gaining illegal monetary benefits from the
third parties. He has argued that defendant no.6 being a director in the
plaintiff company since the beginning was well aware about its
functioning and if the plaintiff company was not being run in accordance
with the provisions of law, he had ample time and opportunity to take
legal remedies. However, defendant no.6 did not take any such action
and it was only after the dispute arose between Sh. Amit Gupta and
defendant no.6 that he filed a petition before NCLT in the year 2017
which was dismissed by the New Delhi bench of NCLT vide its order
dated 30.11.2017. Defendant no.6 preferred an appeal against the order
of NCLT before the NCLAT and the said appeal was also dismissed by
Hon’ble NCLAT. It was argued that defendant no.6 in para 3 of
preliminary objection and submissions of WS has admitted filing of
petition before NCLT and appeal before NCLAT and their dismissal.
54. The doctrine of “piercing the corporate veil” stands as an
exception to the principle that a company is a legal entity separate and
Digitally signed
ANIL by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:32:05 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 36 by 42
distinct from its shareholders with its own legal rights and obligations. It
seeks to disregard the separate personality of the company and attribute
the acts of the company to those who are allegedly in the direct control
of its operation. The doctrine of piercing of corporate veil allows the
court to disregard the separate legal personality of a company and
impose liability upon the persons exercising real control over the said
company. It should be applied in scenarios wherein it is evident that the
company was a mere camouflage or sham deliberately created by the
persons exercising control over the said company for the purpose of
avoiding liability. The intent of piercing the veil must be to remedy a
wrong by persons controlling the company. Its application would depend
upon the facts and circumstances of each case. The doctrine of piercing
the veil to be exercised sparingly by the courts. For piercing of the veil,
mere ownership and control is not a sufficient ground.
55. In the present case, the defendants have sought for lifting of
corporate veil on the ground that the plaintiff company is being run as a
quasi partnership/family company as both the directors of the plaintiff
are closely related to each other. It has also been argued that the directors
of the plaintiff company were pursuing fraudulent activities and were
using the company for gaining illegal and monetary benefits from the
third parties. The attention of the court was also drawn to the bank
statements of the plaintiff company produced by D6W3 Mr. Dhruv from
ICICI Bank, Panchsheel Park which were exhibited as D6W3/1 and
D6W3/2. From the statements of the account, it was pointed out that Sh.
Amit Gupta and Sh. Sanjay Goel, directors of the plaintiff company were
withdrawing the amount as per their mutual understanding without any
Board Resolutions.
Digitally signed
ANIL by ANIL
KUMAR
KUMAR SISODIA
Date:
SISODIA 2025.04.26
16:32:18 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 37 by 42
56. However, the defendants have failed to point out that the plaintiff
company was merely being used as a camouflage or was being used to
defraud its creditors. No substantive evidence has been produced by the
defendants in this regard. It is also pertinent to note here that defendant
no.6 being the director of the plaintiff company had been participating in
the business activities of the company since its inception. Defendant no.6
has admitted in his cross examination that he along with Sh. Amit Gupta
used to look after all the affairs of the plaintiff company since its
inception. He also admitted that he has not placed on record any
document to show that he was withdrawing the profits in the plaintiff
company in accordance with his shares. It is surprising that defendant
no.6 did not file any complaint against the alleged illegal activity of the
plaintiff company since 2007 till 2017 when disputes arose between him
and Sh. Amit Gupta when he filed company petition before NCLT which
was dismissed by the NCLT vide order dated 30.11.2017 and appeal filed
against the said order was also dismissed by Hon’ble NCLAT. A perusal
of the order dated 30.11.2017 passed by NCLT would show that Hon’ble
NCLT in para 12 observed that no ground of oppression or
mismanagement could be inferred from the pleadings on record. This
shows that defendant no.6 could not produce any evidence of
mismanagement even before Hon’ble NCLT just like he has failed to do
so before this court.
57. In view of the evidence on record and the discussion herein above,
I am of the considered opinion that this is not a fit case which requires
lifting of the corporate veil. Accordingly, the issue is decided in favour
of the plaintiff and against the defendants.
Issue no.6: ANIL Digitally signed
by ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:32:31 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 38 by 42
Whether the plaintiff is entitled for recovery
of Rs.66,94,587/- as prayed for?(OPP)
58. The onus of proving this issue has been placed on the plaintiff.
Counsel for the plaintiff has argued that it is an admitted case by the
defendants that plaintiff company through its former director Sh. Sanjay
Goel (defendant no.6) had deposited Rs. 13,90,000/- on 13.09.2014 with
defendant no.1 on interest and again Rs. 30 lacs were deposited with
defendant no.1 vide letter dated 02.12.2015. It was argued that defendant
no.1 illegally and without the consent and knowledge of plaintiff
company had transferred the deposits in the personal ledger of defendant
no.6. Defendant no.1 also failed to pay the deposit amount to the
plaintiff company despite email dated 28.09.2017 Ex.PW-1/2. It was
argued that plaintiff is entitled for the aforesaid amount along with
interest @ 18% per annum which comes to the suit amount.
59. Per contra, defendant nos. 1 to 5 has argued that plaintiff has not
filed a single Board Resolution to carry out financial transactions in the
company. The suit is bad for lack of authority of Sh. Amit Gupta and the
plaint is liable to be dismissed due to contradictory statements of Sh.
Amit Gupta and defendant no.6 and Sh. Amit Gupta had complete
knowledge about the transfer of money in the account of defendant no.6.
60. Counsel for the defendant no.6 has argued that the amount was
transferred from defendant no.1 company to the personal ledger of
defendant no.6 as the money belong to the share of defendant no.6 and
Sh. Amit Gupta had complete knowledge about it. It was argued that the
suit has been filed by Sh. Amit Gupta mala fide to harass the defendants.
Digitally signed
ANIL by ANIL KUMAR
SISODIA
KUMAR Date:
SISODIA 2025.04.26
16:32:45 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 39 by 42
61. First of all it is admitted by defendant no.6 that plaintiff company
had deposited a sum of Rs. 43,90,000/- with defendant no.1 company
through defendant no.6 from the account of the plaintiff company. It is
also not in dispute that the defendant no.1 company transferred a sum of
Rs. 46,55,992/- (inclusive of interest) to the personal ledger of
defendant no.6 on 16.04.2016.
62. In view of the findings given on issues no.3 and 4 herein above, it
is now established that Sh. Amit Gupta did not have the knowledge nor
he had consented for the transfer of the money deposited with defendant
no.1 company to the personal account of defendant no.6. Similarly, it has
been held that defendant no.1 company does not stand discharge from its
liability merely by paying the deposit amount along with interest in the
personal account of defendant no.6. Further, defendant no.6 has not filed
any evidence on record to show that he was entitled for the deposit
amount with the defendant no.1 company or that it was his share of
money. Defendant no.6 has neither filed his annual income tax returns
nor filed any annual returns of the plaintiff company to show that he was
entitled for the aforesaid deposit amount held by defendant no.1 on
behalf of the plaintiff company. Hence, defendant no.6 is also liable to
return the amount which has been wrongfully transferred by defendant
no.1 company in his personal account instead of transferring the same in
the account of plaintiff company.
63. The claim of interest by the plaintiff company @ 18% per annum
on the aforesaid amount is also not established by the plaintiff. From the
perusal of the evidence on record, it is established that defendant no.1
company had never agreed to pay interest @ 18% per annum on the
Digitally signed
ANIL by ANIL KUMAR
SISODIA
KUMAR Date:
SISODIA 2025.04.26
16:32:56 +0530CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 40 by 42
deposits made by the plaintiff company and there is agreement between
the parties to this effect.
64. In view of the aforesaid discussion, I am of the considered opinion
that the plaintiff is only entitled for recovery of Rs. 46,55,992/- from
defendant no.1 and defendant no.6 jointly as well as severally. The issue
is accordingly decided in favour of the plaintiff and against the
defendant.
Issue no.7:
Whether the plaintiff is entitled for the interest
on the aforesaid amount, if so, at what rate and
for which period?(OPP)
65. The onus of proving this issue has been cast on the plaintiff.
Although plaintiff has claimed interest @ 18% per annum but he has not
lead any evidence on this aspect.
66. Perusal of the record however shows that deposits made by the
plaintiff with defendant no.1 company had earned interest @ 9% per
annum. Even the statement D1W1 Bajrang Lal Periwal states that interest
@ 9% per annum was given on the deposits for the year ending 2014.
67. In Central Bank of India Vs Ravindra & Ors., (2002) 1 SCC
367, it was held that award of interest, pendente lite and post decree is
discretionary with the courts as it is essentially governed by Section 34 of
the CPC de-hors the contract.
Digitally signed
by ANIL
ANIL KUMAR
KUMAR SISODIA
Date:
SISODIA 2025.04.26
16:33:10 +0530
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 41 by 42
68. Having regard to the lending rate of interest of the bank for the
commercial transactions and the fact that defendant no.1 company had
accepted the deposits @ 9% per annum, this court is of the view that
interest @ 9% per annum is reasonable and would serve the ends of
restitutive justice. In the circumstances, plaintiff is held entitled to simple
interest @ 9% per annum from the date of filing of the suit till its
realization. The issue is accordingly decided in favour of the plaintiff.
Relief.
69. In view of my findings on the issues hereinabove, the suit is
decreed in favour of plaintiff and against the defendant no. 1 and 6. The
suit is dismissed qua defendant no.2 to 5.
A decree of Rs. 46,55,992/- is passed in favour of the plaintiff and
against the defendant no.1 and defendant no.6 jointly and severally. The
plaintiff shall also be entitled to simple interest on the aforesaid amount
@ 9% per annum from the date of filing of the suit till its realization.
Parties shall bear their own cost.
Decree sheet be prepared accordingly.
File be consigned to record room after due
Digitally signed by
compliance. ANIL ANIL KUMAR
KUMAR SISODIA
Date: 2025.04.26
SISODIA 16:33:21 +0530
(ANIL KUMAR SISODIA)
District Judge (Commercial Court)-04
Central/Delhi
Announced in open court
on 26.04.2025
CS (COMM) 525/2018 M/s. Majestic Buildcon Pvt. Ltd. Vs. M/s. BKR Capital Pvt.Ltd & Ors Page No 42 by 42