IN THE COURT OF SENIOR CIVIL JUDGE [CENTRAL DISTRICT],

TIS HAZARI COURTS, DELHI

Suit No.___________ OF 2010

[SUIT UNDER ORDER XXXVII OF THE CODE OF CIVIL PROCEDURE, 1908]

In the matter of:

SMT. ARCHANA JAIN

W/o Shri A. K. Jain
R/o.52/58, Ramjas Road,
Karol Bagh,
NEW DELHI – 110 005 ….. PLAINTIFF

Versus

1. M/s. AJS BUILDERS PRIVATE LIMITED

1st Floor, 8, Shaheed Bhagat Singh Marg,
NEW DELHI – 110 001

2. SHRI MADHU SINGH

Director
M/s AJS BUILDERS PRIVATE LIMITED
1st Floor, 8, Shaheed Bhagat Singh Marg,
NEW DELHI – 110 001 ….. DEFENDANTS

SUIT FOR RECOVERY OF Rs. ____________

[RUPEES ___________________________________]
UNDER THE PROVISIONS OF ORDER XXXVII
OF THE CODE OF CIVIL PROCEDURE, 1908

RESPECTFULLY SHEWETH:

8. That the plaintiff is filing the present suit under the provisions of Order

XXXVII of the Code of Civil Procedure, 1908 on the basis of fixed sum of

amount and a liquidated demand and no relief, which does not fall within

the ambit of provisions of Order XXXVII of the Code of Civil Procedure,

 1908 has been claimed in the suit. That the summons of the suit may be

sent to the defendants under the provisions of Order XXXVII of Code of

Civil Procedure, 1908.

9. That the defendant no. 1, through defendant No.2 approached the Plaintiff

sometime in the month of March 2006 and represented that defendant

No.1 was coming up in near future with a project by the name “AJS

TOWNSHIP” at Gannaur, District: Sonepat, wherein registration was

open, for sale of plots. Subsequently, the defendant No.1 through

defendant No.2 painted a very rosy picture about the forthcoming

project and persuaded the Plaintiff to immediately pay considerable

money towards registration of a plot measuring 240 sq. yds. at the

prescribed rate. It was represented by the defendant No.2 to the Plaintiff

that it was imperative to make payment for the aforesaid upcoming

project immediately as the prices would be escalating in the near future.

10. That lured by the representation and the alluring picture presented by the

defendants and on their persuasions and demands the Plaintiff made

payment of a sum of Rs. 2,15,000/- (Rupees One Lac Fifteen Thousand

Only), vide cheque no. 436073 dated 20.03.2006, drawn on Central Bank

of India, Ramtirth Nagar, Jhandewalan, New Delhi-110 055, as

Registration Money (earnest money), to the defendant no. 2, for

payment to defendant no.1. Needless to say, the said cheque was duly

encashed and the amount realized by the defendants. Thereafter, the

 Plaintiff on the demand and payment schedule paid a sum of Rs.

2,73,400/- (Rupees Two Lacs Seventy Three Thousand Four Hundred

Only) vide Cheque No. 139558 dated 10.02.2007, drawn on Central Bank

of India, Ramtirth Nagar, Jhandewalan, New Delhi – 110 055. The said

cheque was duly encashed and the amount realized by the defendants.

Thus the Plaintiff paid Rs. 4,88,400/-(Rupees Four Lacs Eighty Eight

Thousand Four Hundred Only), to the defendants, towards the purchase

of the plot.

11. That the defendants have also assured that if the said “Project” does not

come up for any reasons whatsoever or there is unnecessary delay, the

defendants shall refund the entire amount received, together with

interest @ 15 % per annum.

12. That the Plaintiff, after making the payments, as detailed herein before,

made personal visit to the alleged site of “Project” of the defendant and

was shocked to see that there was no sign of the alleged “Project”. There

was absolutely no work worth the name or any progress vis-à-vis the said

“Project”. The Plaintiff got apprehensive and made fervent enquiries and

sought to confirm the veracity of your claims about the said project. My

client got the worst nightmare of her life when she learned that the

alleged “Project”, as claimed by you addresses was not in existence at all

and nowhere in the pipeline in the near future.

13. That immediately upon the said revelation, the Plaintiff contacted the

defendants and categorically conveyed the defendants that as the

representation made by the them with regard to the said “Project” was

fraudulent, the Plaintiff would initiate appropriate legal proceedings for

cheating, against them. The defendants started apologizing and stated

that they had collected the money from the Plaintiff on the basis of

premise and did not have any concrete information with regard to the

said project. The defendants further claimed to be innocent and

requested the Plaintiff not to initiate any action against them.

Simultaneously, the defendants offered that they would refund the entire

amount received from the Plaintiff along with up-to-date interest @ 15%

per annum, as agreed.

14. That Plaintiff made numerous demands and requests for the refund of the

amount, however the defendants kept on postponing the matter on one

pretext or the other. However, when the Plaintiff started pressing hard

for the refund of the sum, the defendants made the following payments:

S. No. CHEQUE No. DATED AMOUNT(Rs.)

1. 510644 16.04.2008 78,000. 00
2. 510696 21.05.2008 20,324. 00
3. 510663 21.05.2008 1,95,400. 00
4. 592 11.06.2008 1,00,000. 00
 That thereafter, the Defendants issued Cheque No. 519129 dated

10.07.2008 for Rs. 97,900.00 (Rupees Ninety Seven Thousand Nine

Hundred Only), drawn on Central Bank Of India, Gole Market, New Delhi-

110 001, towards part payment of the refund amount. However, to utter

shock and disbelief of the Plaintiff, the said cheque was returned back

dishounoured for the reasons “INSUFFICIENT FUND”. The Plaintiff

immediately contacted the Defendants and apprised them of the

dishonour of the said cheque. The Plaintiff expressed her view to initiate

appropriate legal proceedings for the said dishonour. Defendant no. 2

expressed deep apology and sought few days time to make payments of

the dishonoured cheque amount as also the entire balance refund

amount. On such solemn request, the Plaintiff waited for almost one

month and when nothing was coming up from the side of the

Defendants, she once again contacted the Defendants. The defendants

yet again requested for some more time to arrange for the funds and

promised for the due encashment of the said cheque as also for the

payment of the entire balance refund amount. The plaintiff yet again

believing the solemn assurances and promises accommodated the

Defendants to the utmost. However, the defendants kept on making

false excuses with ulterior motives and gained time and the gullible

Plaintiff kept on postponing the re-presentation of the cheque, believing

such representations and promises.

15. That on account of such firm assurances and solemn promises the Plaintiff

did not initiate any immediate action for the dishonour of the said

cheque. So much so, the Plaintiff did not initiate any criminal action for

the dishonour. The re-presentation of the cheque remained in abeyance

for a substantial period. However, of late, all efforts of the Plaintiff to

contact the Defendants have proved to be in futility. All calls made to the

Defendants are either unanswered or they gave very evasive replies. The

defendants are not coming forward to give any firm reply for the

payment of the out standings of the plaintiff any more.

16. That the aforesaid acts and conducts makes it abundantly clear that the

Defendants have issued the aforesaid cheque with malafide intentions

and ulterior motives of playing fraud on the Plaintiff and to cheat the

Plaintiff, knowing it fully well that on presentation the same shall be

dishonoured, thereby causing wrongful gain to themselves and wrongful

loss to the Plaintiff. Defendant No.1 is a company and Defendant no. 2 is

the Director of the defendant no.1 and the Officer holding position of

authority, incharge of and responsible for the day to day of the affairs of

defendant no.1. The Defendants have played a calculated fraud and

cheated the Plaintiff and made her part with substantial money and are

wrongly and illegally withholding the amount due to the Plaintiff, without

any rhyme or reason.

17. That from the above given resume, it is abundantly clear that the defendants

have been acting with malafide intentions from the very beginning. They

with a view to cheat the Plaintiff induced her to enter into an agreement

and part with substantial money. The Defendants had no intentions to

honour their commitments and solely with a view to make wrongful

gains, by playing fraud, trapped the Plaintiff and made her part with

substantial money.

18. That the defendants with malafide intentions and ulterior motives, knowing

it fully well, that on presentation, the cheque No.519129 dated

10.07.2008 for Rs. 97,900/- (Rupees Ninety Seven Thousand Nine

Hundred only) drawn on Central Bank of India, Gole Market, New Delhi,

shall be dishonoured, issued the cheque with oblique motives. Not only

this, with ulterior motives, defendant no.2, deliberately and

contumaciously made false promises and succeeded in causing long delay

in the re-presentation of the said cheque and managed to avoid any

immediate criminal action by giving false assurances to the plaintiff.

19. That the defendant No.2 is looking after and managing the entire affairs of

defendant No.1. The defendant No.2 is the person responsible for the

day to day affairs of the Defendant no.1, in fact, defendant No.2 is wholly

and solely responsible for the entire finances of the defendant No.1.
20. That the defendant No.2 has willfully and deliberately made false promises

and given false assurances and cheated the plaintiff. In fact, the

defendant No.1 is a got-up company and the entire affairs in the name of

defendant No.1 are in fact the personal affairs of defendant No.2. The

defendant No.2 is using the corporate veil of defendant No.1 in pursuing

her personal needs and the corporate veil of defendant No.1 has to be

lifted to fix the liability of defendant No.2. The defendant No.2 is liable

for the entire outstanding dues of the plaintiff.

21. That the plaintiff got issued a legal notice dated 13.07.2010 to the

defendants through registered A/D, UCP as well as courier and called

upon the defendants to pay the entire outstanding amount. The notices

were duly received by the defendants, however, the defendants have not

made any payment in compliance of the said notice nor had replied

either.

22. That now the defendants have become liable to pay a sum of Rs________

[Rupees ____________________________ only] as the principal amount,

the defendants are further liable to pay interest @ 15% per annum w.e.f.

________ till _______, which comes to Rs._______ [Rupees

_______________________________________ only] and the total

amount i.e. principal and interest comes to Rs.__________[Rupees

___________________________________only].
23. That the plaintiff is filing the present suit under the provisions of Order

XXXVII of the Code of Civil Procedure, 1908 on the basis of fixed sum of

amount and a liquidated demand and no relief, which does not fall within

the ambit of provisions of Order XXXVII of the Code of Civil Procedure,

1908 has been claimed in the suit. That the summons of the suit may be

sent to the defendants under the provisions of Order XXXVII of Code of

Civil Procedure, 1908.

24. That the cause of action arose in favour of the plaintiff and against the

defendants for the first time in the month of March 2006 when the

defendants approached the plaintiff, it arose on 20.03.2006 when the

plaintiff paid Rs. 2,15,000/- through cheque and the same was duly

enchased and realized by the defendants, it arose on 10.02.2007 when

the plaintiff paid Rs. 2,73,400/- through cheque and the same was duly

encashed and realized by the defendants, it arose on 16.04.2008,

21.05.2008 and 11.06.2008 when the defendants made part payments of

Rs. 78,000/-, Rs. 20,324 and Rs. 1,95,400/- and Rs. 1,00,000/- in

discharge of their of their liability, it arose on 10.07.2009 when the

defendant issued and handed over cheque no. 519129 for Rs. 97,900/-, it

arose when the said cheque was presented for encashment and was

returned Dishonoured for the reason “INSUFFICIENT FUNDS”, it arose on

various dates when the plaintiff made demands for the payment of the
 dishonoured cheque amount alongwith the entire balance amount, it

arose on 15.09.2009 when the plaintiff got issued the legal notice

through Advocate, it arose when the said notice was received by the

defendants, it arose when the defendants failed to comply with the said

notice. The cause of action is still continuing as the defendants has failed

to clear the outstanding of the plaintiff and square up the accounts.

25. That the value of the suit for the purposes of court fee and jurisdiction is

fixed for Rs.___________ on which the requisite

ad-valorem court fee is being paid.

26. That the registered office of the defendant no.1 is situated within the

jurisdiction of this Hon’ble Court and hence this Hon’ble Court has

jurisdiction to try and entertain the suit.

That in view of the facts and circumstances, it is respectfully prayed that this
Hon’ble Court may graciously be pleased to:

a) pass a decree in favour of the plaintiff and against the defendants for a sum
of Rs.________ [Rupees ___________________________ only] as on
__________;

b) pass a decree in favour of the plaintiff and against the defendants for
pendente-lite and future interest @ 15% per annum with monthly rests
w.e.f. _________ till realization, recoverable immediately;

c) direct that the costs of suit may be awarded in favour of the plaintiff.
 d) pass such other or further order(s) which this Hon’ble Court may deem fit
and proper in the facts and circumstances of the case.

Prayed accordingly.

PLAINTIFF

Through

[V.K. SINGH]
Advocate
393, Civil Wing,
Tis Hazari Courts,
Delhi – 110 054
Place: New Delhi
Dated: ____.12.2010

VERIFICATION:

Verified at Delhi on this _____ day of December, 2010 that the contents of
para___to ____ are true to my knowledge, whereas the contents of para ___to
____are true on belief and information based on legal advise. Last para contains
prayer to this Hon’ble Court.

PLAINTIFF