IN THE COURT OF MS. ANU GROVER BALIGA, LD.

DJ
COMMERCIAL COURT-04 (DISTRICT SOUTH-EAST), SAKET
COURTS, NEW DELHI

CS (COMM) NO. 599/2021

(Suit under Order XXXVII of the Code of Civil Procedure 1908)

IN THE MATTER OF:

Ms. Chetna Gupta … Plaintiff

VERSUS

Karvy Realty India Ltd. … Defendant

Index

SR PARTICULARS PAGE
NO. NO.
1. APPLICATION ON BEHALF OF THE PLAINTIFF
UNDER ORDER XXXVII RULE 3(4) CPC READ WITH
SECTION 151 CPC FOR ISSUANCE OF SUMMONS
FOR JUDGMENT TO THE DEFENDANT IN THE
PRESENT SUIT IN FORM NO.4A IN APPENDIX-B OF
CPC WITH SUPPORTING AFFIDAVIT

2. PROOF OF SERVICE

Plaintiff
Through

SHEKHAR GUPTA & ASSOCIATES

SHEKHAR GUPTA
Devanshu Kumar & Shashank Upadhyay
Advocates
(Enrl. No. D-955/07 & D-1163/2011)
Office: H-16, Basement,
Jangpura Extension, New Delhi-110014
Ph: 24310016, 41759606, Cell: 9868790800
Email :shekharguptaadvocate@gmail.com
Date:
Place: New Delhi

Note: Defendant is served in advance through email.

 IN THE COURT OF MS. ANU GROVER BALIGA, LD. DJ
COMMERCIAL COURT-04 (DISTRICT SOUTH-EAST), SAKET
COURTS, NEW DELHI

CS (COMM) NO. 599/2021

(Suit under Order XXXVII of the Code of Civil Procedure 1908)

IN THE MATTER OF:

Ms. Chetna Gupta … Plaintiff

VERSUS

Karvy Realty India Ltd. … Defendant

APPLICATION ON BEHALF OF THE PLAINTIFF UNDER ORDER

XXXVII RULE 3(4) CPC READ WITH SECTION 151 CPC FOR
ISSUANCE OF SUMMONS FOR JUDGMENT TO THE DEFENDANT IN
THE PRESENT SUIT IN FORM NO.4A IN APPENDIX-B OF CPC.

MOST RESPECTFULLY SHOWETH:

1. That the plaintiff has filed the present suit for recovery under the

provisions of Order XXXVII CPC which is now pending

adjudication before this Hon’ble Court. The contents of plaint may

kindly be read as part and parcel of the present application and the

same are not repeated herewith for the sake of brevity.

2. That the defendant in the present suit has been duly served with

the summons issued by this Hon’ble Court in terms of order dated

31.05.2022 with complete paper book of the suit. It is stated that

defendant is served with the summons and has filed his

appearance through counsel before this Hon’ble Court on

11.10.2022 under the provisions of Order XXXVII Rule 3 (1) CPC

wherein it has been stated by the defendant that he has been

served on 01.10.2022.
3. That now the plaintiff is filing the present application for issuance of

summons for judgment against the defendant by moving the

present application duly supported with Affidavit containing the

particulars regarding the cause of action and amount claimed in

the suit and also stating that there is no defence available to the

defendant in the present suit. The contents of the supported

affidavit may kindly be read as part and parcel of the present

application and not repeated herein for the sake of brevity.

4. That the plaintiff is required to serve the summons for judgment

upon the defendant in the prescribed form under order XXXVII

Rule 4 of CPC.

5. That the plaintiff has made out a strong case for recovery of money

claimed in the suit against the defendant on the basis of valid

cause of action and there is no defence available to the defendant.

PRAYER

In view of the above, it is most respectfully prayed that this Hon’ble Court

may kindly be pleased to:

i) Issue summons for judgment to the defendant as per Order

XXXVII Rule 3(4) CPC in Form no.4A in Appendix-B of CPC on

the address of the defendant furnished by him in memorandum

of appearance filed by the defendant under Order XXXVII Rule

3 CPC;
 ii) Any other orders / directions as this Hon'ble Court may deem fit

and proper in the facts and circumstances of the case.

Plaintiff
Through

SHEKHAR GUPTA & ASSOCIATES

SHEKHAR GUPTA
Devanshu Kumar & Shashank Upadhyay
Advocates
(Enrl. No. D-955/07 & D-1163/2011)
Office: H-16, Basement,
Jangpura Extension, New Delhi-110014
Ph: 24310016, 41759606, Cell: 9868790800
Email :shekharguptaadvocate@gmail.com

Date:
Place: New Delhi

6.
 IN THE COURT OF MS. ANU GROVER BALIGA, LD. DJ
COMMERCIAL COURT-04 (DISTRICT SOUTH-EAST), SAKET
COURTS, NEW DELHI

CS (COMM) NO. 599/2021

(Suit under Order XXXVII of the Code of Civil Procedure 1908)

IN THE MATTER OF:

Ms. Chetna Gupta … Plaintiff

VERSUS

Karvy Realty India Ltd. … Defendant

AFFIDAVIT

Affidavit of Mrs. Chetna Gupta W/o Sh. Rahul Gupta R/o B-16,
Kalindi Colony, New Delhi-110065 aged about 51 years.

I the above named deponent do hereby solemnly affirm and declare as

under:

1. That the deponent is the plaintiff in the suit and fully conversant with

the facts and circumstances of the case and as such competent to

swear the present affidavit.

2. That the plaintiff is a peace loving and law abiding citizen of India

and permanent resident of New Delhi at the address mentioned in

the memo of parties. It is stated that the transaction with the

defendant company was done by Mr. Rahul Gupta, the husband of

the plaintiff on her behalf. The plaintiff is fully aware of the subject

matter transaction with the defendant company and the husband of

the plaintiff Mr. Rahul Gupta is also fully aware of the entire

transaction. Copy of Aadhaar Card of the plaintiff is filed with the

separate list of document.

3. That the defendant no.1 is a company incorporated under the

provisions of Companies Act, 1956 having its registered office at

 the address mentioned in the memo of parties and also at other

addresses mentioned in the memo of parties including corporate

office at Barakhamba Road, New Delhi. The defendant company is

being sued through its director(s). It is stated that the defendant

company is inter alia engaged in the business of providing financial

services, value added real estate and property services. The print

outs of the Master Data of the defendant company taken from the

website of the Ministry of Corporate Affairs is filed with a separate

list of document.

4. That the plaintiff is a permanent resident of New Delhi and she has

filed the present suit against the defendant for recovery of money

including the principal amount of Rs.40 Lakh (Rupees Forty Lakh

only) along with interest due thereon of Rs. 10,00,000/- (Rupees

Ten Lakhs Only) calculated @ 12% per annum w.e.f. 30.09.2019

and upto date of filing of the suit which is calculated upto the

30.10.2021 along with pendent lite and future interest @12 % p.a.

till the payment is made by the defendant company to the plaintiff

under the provisions of Order XXXVII of the Code of Civil

Procedure 1908 (amended up-to-date).

5. That plaintiff states that she had given a short term (3 months)

interest bearing deposit to the defendant company vide account

payee cheque no. 000162 dated 30.09.2019 drawn on Standard

Chartered Bank, New Friends Colony, New Delhi in the amount of

Rs.40,00,000/- (Rupees forty lakhs only). True copy of the cheque

no. 000162 dated 30.09.2019 drawn on Standard Chartered Bank,

New Friends Colony, New Delhi in the amount of Rs.40,00,000/-

(Rupees forty lakhs only) is already filed with the Suit.

6. That plaintiff states that the said cheque was deposited by the

defendant company and debited from the bank account (Standard

Chartered Bank, New Friends Colony, New Delhi) of the plaintiff

which is duly reflected for the bank account statement of the

plaintiff. Print out of the bank statement of the plaintiff bank

account maintained with Standard Chartered Bank, New Friends

Colony Branch, New Delhi reflecting the debit of the cheque

amount issued to the defendant is already filed with the Suit.

7. That plaintiff states that the said amount of Rs.40,00,000/-

(Rupees forty lakhs only) was returnable to the plaintiff by the

defendant after 3 months alongwith interest 12% p.a. It is stated

that the interest amount was to be credited by the defendant

company in the bank account of the plaintiff at the end of 3 months

on the principal amount of Rs.40,00,000/- (Rupees forty lakhs

only). The defendant company had issued a post-dated account

payee cheque bearing no. 002894 dated 05.01.2020 drawn on

HDFC Bank, Lakdiwalapul, Hyderabad, Telangana for a sum of

Rs.40,00,000/- (Rupees forty lakhs only). The original cheque was

filed alongwith the complaint u/s 138 NIA in CC No. 2366/2020

titled as Chetna Gupta Vs Karvy Realty India Ltd. The certified

copy of the post-dated account payee cheque bearing no. 002894

dated 05.01.2020 drawn on HDFC Bank, Lakdiwalapul,

Hyderabad, Telangana for a sum of Rs.40,00,000/- is already filed

with the Suit.

8. That plaintiff states that the said cheque was to be deposited by

plaintiff in her account after a period of 3 months w.e.f. 30.09.2019

and accordingly the plaintiff deposited the said cheque at her bank

account i.e. Standard Chartered Bank, New Friends Colony, New

 Delhi on 06.01.2020 for encashment of the said cheque. However,

the said cheque was returned back/ dishonoured on the ground of

“FUNDS INSUFFICIENT” vide bank return memo dated

09.01.2020 issued by the plaintiff bank i.e. Standard Chartered

Bank, New Friends Colony, New Delhi branch and return memo

dated 09.01.2020 issued by the defendant bank/HDFC Bank. The

original return memos was filed alongwith the complaint u/s 138

NIA in CC No. 2366/2020 titled as Chetna Gupta Vs Karvy Realty

India Ltd. The certified copies of the cheque return memos both

dated 09.01.2020 issued by the plaintiff’s bank and defendant’s

bank are already filed with the Suit.

9. That plaintiff states that in the above circumstances, the plaintiff

through her counsel issued a legal notice dated 22.01.2020

dispatched on 23.01.2020 to the defendant company and its

directors inter alia under the provisions of Negotiable Instruments

Act calling upon the defendant company to pay to the plaintiff the

amount of Rs.40,00,000/- (Rupees forty lakhs only) alongwith

interest thereupon. The said notice was sent to the directors, CFO,

Chairman and Group CEO of the defendant company by the

registered post / courier. The said notice is duly received by the

defendant company and its directors which are reflecting from the

track reports of the India post and the courier company. The

original office copy of the notice alongwith postal and courier

receipts was filed alongwith the complaint u/s 138 NIA in CC No.

2366/2020 titled as Chetna Gupta Vs Karvy Realty India Ltd. The

certified copy of the legal notice dated 22.01.2020 alongwith its

postal receipts/courier/tracking report of the India post and courier

etc. are filed with a separate list of documents.

10. That plaintiff states that despite receipt of the said legal notice

dated 22.01.2020 the defendant company did not comply with the

same and also not sent any reply thereto.

11. That in the above circumstances, the plaintiff filed a criminal case

under the provisions of Section 138 and other relevant provisions

against the defendant company and its directors before the Chief

Metropolitan Magistrate at District (South-East), Saket Court,

bearing CC No. 2366/2020 titled “Chetna Gupta v. Karvy Reality

(India) Ltd.”. The Court of Learned Metropolitan Magistrate vide its

order dated 02.09.2020 summoned all the accused in the said

complaint. The said matter is pending adjudication before the

Learned Metropolitan Magistrate, NI Act-02 (South-East) District

Saket Courts, New Delhi. Certified Copy of the complaint filed by

the plaintiff against the defendant company and its directors under

the provisions of NI Act and the certified copy of the summoning

order dated 02.09.2020 is filed herewith with the separate list of

documents.

12. That plaintiff states that the defendant has admitted its liability of

the amount payable to the plaintiff and same is also evident from

the email dated 14.02.2020 sent by Mr. C. Parsarthi, Group

Chairman of the defendant company to the plaintiff’s husband Mr.

Rahul Gupta admitting the liability of Rs.40,00,000/- (Rupees forty

lakhs only), stating therein that the defendant company is in a final

stage of raising the required resources and they shall make the

payment on or before 25.02.2020. On 06.08.2020, the plaintiff

through her husband sent an email to the defendant company

calling upon them to pay the due amount to the plaintiff. On

 27.01.2021, Mr. C. Parsarthi, Group Chairman of the defendant

company also wrote another email to the plaintiff’s husband Mr.

Rahul Gupta and requested to bear with some more time. The

plaintiff’s husband on 21.04.2021 wrote another email to the Mr. C.

Parsarthi, Group Chairman of the defendant company to pay the

due amount, however, nothing was done by the defendant

company despite giving assurances from time to time. The said

emails are still existing in the email account of the Plaintiff’s

husband i.e. rahulgadv@yahoo.com. The print outs of emails

dated 14.02.2020, 06.08.2020, 27.01.2021 and 21.04.2021

exchanged between the plaintiff’s husband and defendant

company are filed with a separate list of document.

13. That plaintiff states that the plaintiff also filed a police complaint

dated 08.09.2020/09.09.2020 against the defendant company and

its directors and senior officials with the Police Station

Barakhamba Road, vide Diary No. 81650022000642 and also file

representation dated 26.03.2021 with the DCP, Parliament street,

New Delhi. The copy of the police complaint alongwith the

representation made to DCP by the plaintiff against the defendant

company and its directors is filed with a separate list of documents.

14. That plaintiff states that since the defendant company has not paid

the principal amount of Rs.40,00,000/- (Rupees forty lakhs only)

alongwith the interest thereupon @ 12% p.a. to the plaintiff, the

plaintiff is constrained to file the present suit before this Hon’ble

Court.

15. That plaintiff states that the plaintiff is entitled for a decree for the

principal amount of Rs.40,00,000/- (Rupees forty Lakhs only)

 alongwith interest thereupon @ 12% p.a. we.f. 30.09.2019 upto

date of filing of the present suit i.e. till 30.10.2021 amounting to Rs.

10,00,000/- (Rupees Ten Lakhs only) and also to the pendente lite

and future interest @ 12% p.a.. It is stated that the plaintiff is

claiming interest @ 12% p.a. as per the agreement between the

plaintiff and the defendants whereby the defendant agreed to pay

the interest @ 12% p.a. deposited by the plaintiff. It is stated that

the plaintiff is also entitled for the cost of the entire litigation as

envisaged in Section 35 of the Code of Civil Procedure, 1908 with

respect to the commercial suit. The defendant is also liable to pay

pendents lite and future interest of the principal amount of Rs.

40,00,000/- at the agreed rate of 12% p.a. from the date of filing of

the suit till the time payment is made by the defendant. The

transaction between the plaintiff and the defendant is of

commercial nature within the meaning of Section 34 of Code of

Civil Procedure, 1908 (5 of 1908) and therefore the defendant is

liable to pay pendente lite and future interest at the contractual rate

of 12% p.a. As the present suit is of commercial nature, the

Plaintiff is entitled for the agreed interest @12 % p.a. on the

principal amount of Rs. 40,00,000/-. The calculation of the interest

alongwith the time period is mentioned herein below:

Principal Amount=40,00,000/- (Rupees Forty Lakhs only)

Rate of Interest @ 12% p.a. as agreed between the parties.

Interest accrued till the date of filing of the present suit i.e. from
30.09.2019 upto date of filing of the present suit i.e. till 30.10.2021
@ 12% p.a. = Rs. 10,00,000/- (Rupees Ten Lakhs only)

And also, the pendente lite and future interest at the agreed rate of

12% p.a. from the date of filing of the suit till the payment made by

the defendant as the transaction between the plaintiff and the

 defendant is of commercial nature within the meaning of Section 34

of Code of Civil Procedure, 1908.

16. That plaintiff states that she had also instituted the Pre Litigation

Mediation and filed the same with South East District Legal

Services Authority. Despite of notices sent by the South East

District Legal Services Authority the Defendant has not come

forward to join Pre Litigation Mediation and resultantly the Pre

Litigation Mediation was closed and a non-starter report

21.09.2021 was issued by South East District Legal Services

Authority. True copy of the Non-Starter report dated 21.09.2021 is

attached alongwith separate list of documents.

17. That plaintiff states that she has filed the present suit under the

provisions of Order XXXVII of the Code of Civil Procedure, 1908

based on the cheque issued by the defendant company to the

plaintiff which got dishonoured on account of “FUNDS

INSUFFICIENT” and the present suit falls under the principles of

Order XXXVII of the C.P.C, 1908. The plaintiff has not claimed any

relief in the plaint which does not fall within the ambit of Order

XXXVII of the CPC.

18. The cause of action to file the present suit firstly arose on

30.09.2019 when the plaintiff had deposited an amount of

Rs.40,00,000/- (Rupees forty lakhs only) with the defendant

company for a term interest bearing deposit of Rs.40,00,000/-

(Rupees forty lakhs only). The cause of action further arose when

the defendant issued a post-dated cheque dated 05.01.2020 for a

sum of Rs.40,00,000/- (Rupees forty lakhs only) to the plaintiff. The

cause of action further arose when the cheque dated 05.01.2020

 amounting to Rs.40,00,000/- (Rupees forty lakhs only) issued by

the defendant to the plaintiff got dishonoured on its presentation by

the plaintiff on account of “FUNDS INSUFFICIENT”. The cause of

action further arose when the plaintiff sent a legal notice dated

22.01.2020 to the defendant company and its director(s) and

officials and same was served upon all the persons and no reply

was given thereto and nor the said notice was complied with by the

defendant company and its director(s). The cause of action further

arose when the Group Chairman of the defendant company sent an

email dated 14.02.2020 to the plaintiff’s husband admitting their

liability and given assurance of payment. The cause of action

further arose on 06.08.2020, 27.01.2021 and 21.04.2021 when the

emails were exchanged between the plaintiff and the defendants.

The cause of action further arose when the plaintiff has filed a case

against the defendant company and its directors under the

provisions of NI Act and summons were issued against the

defendant company and its directors vide order dated 02.09.2020.

The cause of action is still subsisting and continues as the

defendant has failed to pay the amount to the plaintiff till date.

19. That to the belief of the plaintiff, the defendant has no defense in

the present suit and plaintiff in all probabilities shall succeed in the

present suit.

20. That the contents of the accompanying application for issuance of

summons for judgment to defendant under Order XXXVII Rule 3(4)

CPC are true and correct to my knowledge and belief. The

accompany application and the Affidavit has been drafted and

prepared under my instructions and the contents thereof are true

and correct to my knowledge.

 DEPONENT

VERIFICATION:

Verified at New Delhi on this ___ day of ____________ 2022 that the

contents of my above affidavit are true and correct to my knowledge. No

part of it is false and nothing material has been concealed there from.

DEPONENT