DIN DAYAL AGRAWAL HUF Vs. CAPRISO FINANCE LTD

JUDGEMENT

(1.) This is a petition under Article 227 of the Constitution of India read with Sec. 151 Code of Civil Procedure, 1908 ["CPC"], seeking to set aside the order dtd. 19/1/2024 passed by the learned District Judge, Commercial Courts-01, Tis Hazari Courts in CS (Comm) No. 2242/2022, whereby the petitioner's application under Order VII Rule 11 CPC was dismissed and right to file the written statement was closed.

(2.) The petitioner availed a loan of Rs.35,00,000.00 from the respondent and entered into a Loan Agreement dtd. 18/3/2019, pledging 13,113 fully paid-up equity shares of M/s Trishul Dream Homes Ltd. Subsequently, the respondent filed a recovery suit bearing CS (Comm) No. 2242/2022 on 22/9/2022 before the Commercial Court at Tis Hazari, without filing a valid board resolution against the petitioner herein, inasmuch as, the board resolution filed by the respondent-company is qua M/s Trishul Dream Homes Ltd. and not qua the petitioner. The application under Order VI Rule 17 CPC was allowed on 22/10/2022 and suit was treated as an ordinary suit upon the counsel's statement. The petitioner filed an application under Order VII Rule 11 CPC for rejection of plaint raising the objection that plaintiff failed to disclose that as per clause 10 of the Loan Agreement, if the dispute arises between the parties, the same shall be referred to the sole arbitrator and arbitrator shall be appointed jointly by both the parties and hence in view of the said clause, the Court was not having the jurisdiction to entertain the suit.

(3.) During pendency of the suit before the trial Court, respondent had realised that board resolution filed along with plaint was not valid as by way of said board resolution, Authorised Representative ["AR"]/Director, Mr. Pradeep Kumar Jain was authorised to take legal action against M/s Trishul Dream Homes Ltd. instead of the present petitioner, Mr. Din Dayal Agrawal-HUF. In view of the defect in authority letter of the AR, respondent filed an application seeking permission to place board resolution dtd. 27/9/2023, which ratified the board resolution dtd. 3/4/2020 in favour of Mr. Pradeep Kumar Jain, Director of the plaintiff-company.