Você está na página 1de 56

IN THE HIGH COURT OF DELHI AT NEW DELHI

CIVIL ORGINAL JURISDICTION


CS (OS) NO. _____ OF 2014
MEMO OF PARTIES

IN THE MATTER OF:

Daimler Financial Services India Private Ltd.


Represented by its Manager (Legal)
Mr. Dinkar M S
RMZ Millenia Park, Campus 3B,
Unit 301 and 302, 143, Dr. MGR Road,
Perungudi,
Chennai - 600096.
PLAINTIFF
Versus
1) Unimexx Builders and Developers Ltd.
(Represented By Its Director)
B 6/4 2nd Floor Commercial Complex
Safdarjung Enclave
New Delhi -110029
2) Sumit Khanna
Unimexx Builders and Developers Ltd.
B 6/4 2nd Floor Commercial Complex
Safdarjung Enclave
New Delhi -110029
DEFENDANTS

IN THE HIGH COURT OF DELHI AT NEW DELHI


CIVIL ORGINAL JURISDICTION
I.A. No._____of 2014
IN
CS (OS) NO. _____ OF 2014
IN THE MATTER OF:
Daimler Financial Services India Private Ltd.

Plaintiff
Versus
Anglican Indian Consultancy Private Limited,
Represented by Its Director,
R No 306, The Peach Tree,
C-Block, Sushant Lok -1,
Gurgaon -122001
Haryana .

Defendants

SUIT FOR RECOVERY OF Rs.28,84,614.82/1.

The Plaintiff is Daimler Financial Services India Private


Limited, RMZ Millenia Business Park, Campus 3B, Unit 202
2nd Floor, 43 M.G.R. Road, Perungudi, Chennai 600 096,
represented by its Manager Legal Mr. Dinkar M S. who is
authorized to institute the present suit and to sign and
verify the plaint for and on behalf of the plaintiff vide board
resolution dated 14/02/2013.

2.

The address for service of all notices and process on the


Plaintiff is that of its Counsel Mr. Sahil Bhalaik M-11,
Greater Kailash, Part I, New Delhi 110048.

3.

The defendants are Anglican Indian Consultancy Private


Limited ,R No 306, The Peach Tree,C-Block, Sushant
Lok -1,Gurgaon -122001,Haryana , and Mr. Sumit Khanna,
residing at Randip Singh,Ashutosh Narain Singh,B-53,
SUSHANT LOK-I,

Gurgaon

-122001

at

which

address all notices and processes of this Honble Court


may be served on the Defendant No. 1 and 2.
4.

The Plaintiff is Daimler Financial Services India Private


Limited (herein after referred as DFS India) a company
incorporated under the laws of India. The plaintiff is
registered as a non-banking financial company in terms of
the Reserve Bank of India Act, 1934 and having its
registered office at Chennai. The Plaintiff is in the
business of providing loans to its customers in order to
purchase vehicles.

5.

The Defendants approached the Plaintiff Company and


intended to avail financial assistance to purchase a
Mercedes Benz Car. The Plaintiff had explained the terms
and conditions clearly to the Defendants after which the

Defendants duly read and understood and accepted to


enter into the loan agreement.
6.

The Defendants consequently entered into loan cum


hypothecation agreement bearing account no. 10100128
dated 21/09/2012. The said agreement was entered into
in order to purchase Mercedes Benz car model Model
E2I50CDI-Elegance and bearing registration no.HR-26BM-4910 for Rs. 38,20,318 /- (Rupees Thirty Eight Lakhs
Twenty Thousand Three Hundred And Eighteen only) in
which the Defendants had made a down payment of Rs
Rs.3,20,318- (Rupees Three Lakhs Twenty Thousand
Three Hundred And Eighteen Only) and remaining
amount of Rs.35,00,000/- (Rupees Thirty Five Lakhs
Only) was financed by the Plaintiff. As per the agreement
the remaining amount of Rs. 35,00,000/- (Rupees Thirty
Five Lakhs Only) was to be paid along with an interest of
12.1621% p.a. Thus the total amount to be repaid was to
be Rs. 47,54,500/-

(Rupees Forty Seven Fifty Four

Thousand Five Hundred Only). The said total was to be


repaid in 60 EMIs p.m commencing from 19.09.2012 till
19.09.2017 on stipulated due dates failing which the
Defendants had agreed to pay overdue charges at 5 % on
the defaulted amount.

7.

The payments made by the defendant as per his


obligation agreed upon in the Credit Facility Application
and in the general terms and conditions and also in deed
of hypothecation are as follows:
S. No.

Due date
Of EMI
19.10.2012
19.11.2012
19.12.2012
19.01.2013
19.02.2013
19.03.2013
19.04.2013
19.05.2013
19.06.2013
19.07.2013
19.08.2013
19.09.2013
19.10.2013
19.11.2013
19.12.2013
19.01.2014

Amount
Due
Rs.93771/Rs.93771/Rs.93771/Rs.93771/Rs.93771/Rs.93771/Rs.93771/Rs.93771/Rs.93771/Rs.93771/Rs.93771/Rs.93771/Rs.93771/Rs.93771/Rs.93771/Rs.93771/-

Actual date
of payment
NA
NA
NA
NA
13.02.2013
06.03.2013
12.03.2013
NA
18.06.2013
30.07.2013
NA
NA
NA
NA
31.12.2013
NA

Amount paid
Not Paid
Not Paid
Not Paid
Not Paid
Rs.94000/-*
Rs.188000/Rs.94000/Not Paid
Rs.94000/Rs.94000/Not Paid
Not Paid
Not Paid
Not Paid
Rs.188000/Not Paid

As it is evident from the table the defendant defaulted in


making the payment at the first occasion on 19.10.2012.
Subsequently

the

defendant

also

defaulted

on

19.11.2012, 19.12.2012 and 19.01.2013 in making timely


payments as per the terms of the loan agreement.
That the 1st payment made by the defendant was on
13.02.2013 of Rs.94,000/- which was appropriated
towards the 1st EMI which was due on 19.10.2012.
Similarly

the

subsequent

payments

made

by

the

defendants have been appropriated towards the defaulted


EMIs.
8.

That after the gross default on part the defendants in


honouring the commitment of payment of monthly
installments the plaintiff on 2.1.2013 recalled the entire
loan facility as per the loan terms. The Loan Recall Notice
was sent through courier. The defendant through the
recall

notice

was

informed

that

an

amount

of

Rs.45,27,083.31/- (Rupees Forty Five Lakhs, Twenty Five


Thousand, Eighty Three Rupees and Thirty One Paise)
was due and outstanding in the defendants account
towards the plaintiff.
9.

That even after the Loan Recall Notice the defendant did
not honour his commitment obligated upon him as per the
terms of the agreement executed between the parties.
The defendant continuously defaulted for first four months
and instead of repaying the entire loan amount only paid
a sum of Rs.94,000/- (Rupees Ninety Four Thousand
Only). That inspite of repeated requests, reminders,
demands and after according sufficient opportunities to
the defendant, the plaintiff without prejudice to its rights
and remedies issued another notice on 25.2.2013 calling
upon the defendants to pay an amount of Rs.
45,83,232.06/- ( Rupees Forty Five Lakh Eighty Three

Thousand Two Hundred and Thirty Two and Six Paise


Only), as the said amount was due and outstanding and
payable towards the plaintiff as on 7.2.2013.The said
notice was sent to the defendant through Registered
Post.
10.

The defendant after being accorded another opportunity


to pay the remaining outstanding acted negligently and
failed once again in meeting its contractual obligations as
per the agreement. The defendant on 06.03.2013 made a
payment of Rs.1,88,000/- (Rupees One Lakh Eighty Eight
Thousand Only) towards its obligation. Thereafter another
payment of Rs.94,000/- (Rupees Ninety Four Thousand
Only) was made on 12.03.2013.

11.

The defendant again continued to default and made


another payment of Rs.94,000/- (Rupees Ninety Four
Thousand Only) on 18.06.2013. Thereafter the next
payment made was of Rs.94,000/- on 30.07.2013.
The Defendants grossly defaulted in honoring his
commitment of payment of monthly installments and
violated the General Terms and conditions and Deed of
Hypothecation entered into between the Plaintiff and
Defendants
Finally the plaintiff on 25/11/2013 once again sent a notice
through Registered Post Acknowledgement Due to the

Defendants through their advocate recalling entire loan


amount due and informed about the default committed by
them and plaintiffs power to repossess the vehicle to
realize the dues. And as on 25/11/2013 a sum of
Rs.44,39,557.62/- (Rupees Forty Four Lakhs Thirty Nine
Thousand Five Hundred Fifty Seven and Sixty Two Paise
Only) was due and outstanding to the Plaintiff and also
requested the Defendants to make payment of the above
mentioned amount within 7 days of the receipt of the
notice and in case of failure to make payment, the legal
action including repossession of assets in consonance
with the Clause 5 of the terms and conditions (page 7)
executed by the Defendants. The conditions of Clause
No. 9 (page 9) are reproduced below:
Rights and Remedies of the Lender:
1.1

On the happening of the any of the events of default, the


lender may, by a notice in writing to the borrower and
without prejudice to the rights and remedies available to
the lender under the loan agreement or any other
transaction document or otherwise. (a) call upon the
borrower(s) to pay all the borrower(S) dues in respect of
the loan and otherwise, and or (b) declare the security, if
any created in terms of/pursuant to the Loan Agreement

and/or

the

other

Transaction

Documents

to

be

enforceable, and the lender its representatives and/or


such other person in favour of whom such security or any
part thereof is created shall have, inter alia, the following
rights (notwithstanding anything to the contract in the
Loan Agreement and/or the other Transaction Documents
and irrespective of whether the entire Loan or Borrowers
dues has have recalled) namely
(i)

To enter upon and take possession of the assets in


accordance with the provision of the loan agreement
and /or
To transfer or deal with the Assets by way of lease, leave
and license, sale or otherwise in accordance with the
provisions of the Loan Agreement.

12.

The said loan recall notice dated 25.11.213 was duly


served to the Defendants on 28.11.2013 and the
acknowledgement card was received back on 02.12.2013
however the Defendants did not comply with the said
notice and only paid Rs.1,88,000/- against the total
outstanding dues of Rs.44,39,557.62/-.

13.

The Plaintiff further submits that the value of the said car
is depreciating regularly due to negligent behavior of the
Defendants. Despite, the above said correspondence and
exchange of notices the defendants has failed and

neglected to make payment. Hence this suit. This suit is


filed within the period of limitation.
14.

The cause of action arose at New Delhi where the


defendants availed the loan facility and executed
Transaction Documents for purchase of Mercedes Benz
car model E350 Coupe on 17/09/2012, when the
defendants agreed to pay the loan by way of EMI and
paid 8 EMIs irregular manner, when the defendants
grossly defaulted in payment of EMIs, when the
defendant failed in honoring his commitment and violated
the terms and conditions and Deed of Hypothecation,
when the Plaintiff sent letter from through their advocates
from Bangalore on 25/11/2013 to the defendants residing
at New Delhi is within the jurisdiction of this Honble Court.

15.

That for the purpose of Court Fee and jurisdiction, the suit
has valued at Rs.42,51,557.62/-

16.

On which appropriate Court Fee has been affixed.

PRAYER

It is, therefore, most respectfully prayed that this Honble


Court may kindly be pleased to:

(a)

pass a decree in the sum of Rs.42,51,557.62/- in favour of


the plaintiff and against the defendant along with the
interest @ 12 .1261% per annum payable from filing of suit
upto the date of payment;

(b)

Pass such other order as deemed fit in the circumstances


of the case.

PLAINTIFF
THROUGH
(SAHIL BHALAIK)
ADVOCATE FOR THE PLAINTIFF
M-11, GREATER KAILASH-I
NEW DELHI-110048
New Delhi.
Dated:

VERIFICATION
I, Dinkar M S, Manager Legal and the authorized
signatory of the Plaintiff Company herein do hereby
declare that what is stated in Para no___ to ___ are true
to the best of my knowledge and information and belief.
Verified at Chennai on this ___
2014.

day of January,

P
LAINTIFF

IN THE HIGH COURT OF DELHI AT NEW DELHI


CIVIL ORGINAL JURISDICTION
CS (OS) NO. _____ OF 2013
IN THE MATTER OF:
Daimler Financial Services
India Private Ltd.

Plaintiff

Versus
Unimexx Builders and Developers
Ltd. & Anr.

Defendants

AFFIDAVIT
I, Dinkar M.S., son of Mr. P. Madhusoodhanan Pillai,
aged about 35 years, Manager Legal of the Plaintiff
Company having office at RMZ Millenia Business Park,
Campus 3B, Unit 202, 2nd Floor, 43 M.G.R. Road,
Perungudi, Chennai-600096, do hereby solemnly affirm
and declare as under:
1.

I am the Manager Legal of the Plaintiff Company


and I am well conversant with the facts and
circumstances of the case and as such I am duly
authorized and competent to swear this affidavit.

2.

That I have read and understood the contents of the


accompanying suit and state that the facts stated

therein are true and correct to my knowledge


derived from the records and nothing material has
been concealed there from.

3.

state

that

the

annexure

annexed

to

the

accompanying suit are true and correct copies of


their respective originals.

DEPONENT
VERIFICATION:
Verified at Chennai on this

day of January, 2014

that the contents of my above affidavit are true and


correct to my knowledge derived from the records.

DEPONENT

IN THE HIGH COURT OF DELHI AT NEW DELHI


CIVIL ORGINAL JURISDICTION
I.A NO.____OF 2014
CS (OS) NO. _____ OF 2014
IN THE MATTER OF:
Daimler Financial Services
India Private Ltd.

Plaintiff

Versus
Unimexx Builders and Developers
Ltd. & Anr.

Defendants

APPLICATION UNDER SECTION 151 CPC FOR EXEMPTION

MOST RESPECTFULLY SHOWETH:

1.

That the plaintiff has filed the accompanying suit for


recovery. The plaintiff craves leave to refer to and rely upon
the contents of the plaint and the same are not being
repeated here for the sake of brevity.

2.

That the plaintiff has placed reliance upon the documents


which are not filed along with plaint. However, due to
paucity of time and due to originals not being readily
available, the plaintiff has not been able to file the original

and is filing the photocopies of the same. Accordingly, the


present application is being filed for seeking exemption
from filing the original documents.

3.

That the present application is bing filed bonafide and in


the interest of justice.

PRAYER

It is, therefore, most respectfully prayed that this Honble


Court may kindly be pleased to:

(a)

exempt the plaintiff from filing the original of the documents


filed along with the plaint; and

(b)

pass such other order as deemed fit in the circumstances


of the case.

(SAHIL BHALAIK)
ADVOCATE FOR THE PLAINTIFF
M-11, GREATER KAILASH-I
NEW DELHI-110048
New Delhi.
Dated:

IN THE HIGH COURT OF DELHI AT NEW DELHI


CIVIL ORGINAL JURISDICTION
CS (OS) NO. _____ OF 2014
IN THE MATTER OF:
Daimler Financial Services
India Private Ltd.

Plaintiff

Versus
Unimexx Builders and Developers
Ltd. &Anr.

Defendants

AFFIDAVIT
I, Mr. Dinkar M S, Manager Legal, RMZ Millenia
Business Park, Campus 3B, Unit 202 2 nd Floor, 43 M.G.R.
Road, Perungudi, Chennai 600 096, do hereby
solemnly affirm and state as follows:

1.

That I am the Authorized Signatory of the Plaintiff


Company and am conversant with the facts and
circumstances of the case. As such I am duly
authorized and competent to swear this affidavit.

2.

That

the

facts

stated

in

the

accompanying

application are true and correct to my knowledge.

DEPONENT

VERIFICATION:
Verified at Chennai on this

day of January, 2014

that the contents of my above affidavit are true and


correct to my knowledge.

DEPONENT

IN THE HIGH COURT OF DELHI AT NEW DELHI


CIVIL ORGINAL JURISDICTION
CS (OS) NO. _____ OF 2014
IN THE MATTER OF:
Daimler Financial Services
India Private Ltd.

Plaintiff

Versus
Unimexx Builders and Developers
Ltd. & Anr.

Defendants

AFFIDAVIT
I, Mr. Dinkar M.S., Manager Legal, RMZ Millenia
Business Park, Campus 3B, Unit 202, 2nd Floor, 43
M.G.R. Road, Perungudi, Chennai 600 096, do hereby
solemnly affirm and state as follows:

1.

That I am the Authorized Signatory of the Plaintiff


Company and am conversant with the facts and
circumstances of the case. As such I am duly
authorized and competent to swear this affidavit.

2.

That

the

facts

stated

in

the

accompanying

application are true and correct to my knowledge.

DEPONENT
VERIFICATION:

Verified at Chennai on this

day of January, 2014

that the contents of my above affidavit are true and


correct to my knowledge.

DEPONENT

IN THE HIGH COURT OF DELHI AT NEW DELHI

CIVIL ORGINAL JURISDICTION


CS (OS) NO. _____ OF 2014
IN THE MATTER OF:
Daimler Financial Services
India Private Ltd.

Plaintiff

Versus
Unimexx Builders and Developers
Ltd. &Anr.

Defendants

AFFIDAVIT
I, Mr. Dinkar M.S., Manager Legal, RMZ Millenia
Business Park, Campus 3B, Unit 202, 2nd Floor, 43
M.G.R. Road, Perungudi, Chennai 600 096, do hereby
solemnly affirm and state as follows:

1.

That I am the Authorized Signatory of the Plaintiff


Company and am conversant with the facts and
circumstances of the case. As such I am duly
authorized and competent to swear this affidavit.

2.

That

the

facts

stated

in

the

accompanying

application are true and correct to my knowledge.

DEPONENT
VERIFICATION:

Verified at Chennai on this

day of January, 2014

that the contents of my above affidavit are true and


correct to my knowledge.

DEPONENT

IN THE HIGH COURT OF DELHI AT NEW DELHI


CIVIL ORGINAL JURISDICTION
CS (OS) NO. _____ OF 2014
IN THE MATTER OF:
Daimler Financial Services
India Private Ltd.

Plaintiff

Versus
Unimexx Builders and Developers
Ltd. &Anr.

Defendants

AFFIDAVIT
I, Mr. Dinkar M.S., Manager Legal, RMZ Millenia
Business Park, Campus 3B, Unit 202, 2nd Floor, 43
M.G.R. Road, Perungudi, Chennai 600 096, do hereby
solemnly affirm and state as follows:

1.

That I am the Authorized Signatory of the Plaintiff


Company and am conversant with the facts and
circumstances of the case. As such I am duly
authorized and competent to swear this affidavit.

2.

That

the

facts

stated

in

the

accompanying

application are true and correct to my knowledge.

DEPONENT
VERIFICATION:

Verified at Chennai on this

day of January, 2014

that the contents of my above affidavit are true and


correct to my knowledge.

DEPONENT

IN THE HIGH COURT OF DELHI AT NEW DELHI


CIVIL ORGINAL JURISDICTION
CS (OS) NO. _____ OF 2014
IN THE MATTER OF:
Daimler Financial Services
India Private Ltd.

Plaintiff

Versus
Unimexx Builders and Developers
Ltd. &Anr.

Defendants

AFFIDAVIT
I, Mr. Dinkar M.S., Manager Legal, RMZ Millenia
Business Park, Campus 3B, Unit 202, 2nd Floor, 43
M.G.R. Road, Perungudi, Chennai 600 096, do hereby
solemnly affirm and state as follows:

1.

That I am the Authorized Signatory of the Plaintiff


Company and am conversant with the facts and
circumstances of the case. As such I am duly
authorized and competent to swear this affidavit.

2.

That

the

facts

stated

in

the

accompanying

application are true and correct to my knowledge.

DEPONENT
VERIFICATION:

Verified at Chennai on this

day of January, 2014

that the contents of my above affidavit are true and


correct to my knowledge.

DEPONENT

IN THE HIGH COURT OF DELHI AT NEW DELHI


CIVIL ORGINAL JURISDICTION
CS (OS) NO. _____ OF 2014
IN THE MATTER OF:
Daimler Financial Services
India Private Ltd.

Plaintiff

Versus
Unimexx Builders and Developers
Ltd. &Anr.

Defendants

AFFIDAVIT
I, Mr. Dinkar M.S., Manager Legal, RMZ Millenia
Business Park, Campus 3B, Unit 202, 2nd Floor, 43
M.G.R. Road, Perungudi, Chennai 600 096, do hereby
solemnly affirm and state as follows:

1.

That I am the Authorized Signatory of the Plaintiff


Company and am conversant with the facts and
circumstances of the case. As such I am duly
authorized and competent to swear this affidavit.

2.

That

the

facts

stated

in

the

accompanying

application are true and correct to my knowledge.

DEPONENT
VERIFICATION:

Verified at Chennai on this

day of January, 2014

that the contents of my above affidavit are true and


correct to my knowledge.

DEPONENT

IN THE HIGH COURT OF DELHI AT NEW DELHI


CIVIL ORGINAL JURISDICTION
CS (OS) NO. _____ OF 2014
IN THE MATTER OF:
Daimler Financial Services
India Private Ltd.

Plaintiff
Versus

Unimexx Builders and Developers


Ltd. &Anr.
VAKALATNAMA

Defendants

I, Mr. Dinkar M.S., S/o Sh. ______, aged about ___ years,
working as Manager Legal, having office at RMZ Millenia Business
Park, Campus 3B, Unit 202, 2 nd Floor, 43 M.G.R. Road, Perungudi,
Chennai 600 096, do hereby appoint and retain Shri Sahil Bhalaik,
and Aditya Kumar Sinha Advocate(s) to act and appear for the plaintiff
in the above Plaint /Writ Petition and on my behalf to conduct and
prosecute (or defend) or withdraw the same and all proceeding that
may be taken in respect of any application connected with the same or
any decree or order passed therein, including proceedings in taxation
and application for Review, to file and obtain return of documents and
to deposit and receive money on my/our behalf in the above Suit and
in application of Review, and to represent me and to take all necessary
steps on my behalf in the above matter. I agree to ratify all acts done
by the aforesaid Advocate in pursuance of this authority. Dated this
day of January, 2014.
Accepted and Identified.
PLAINTIFF
ADVOCATE
The address for service of the said advocate is:
Chamber: No. 4, C.K Daphtary Lawyers Chambers, Supreme Court,
New Delhi-110001.
Office: M-11, Greater Kailash-I, New Delhi 110 048, Ph.29247030
Contact No. 9717689172

IN THE HIGH COURT OF DELHI AT NEW DELHI


CIVIL ORGINAL JURISDICTION
CS (OS) NO. _____ OF 2014
IN THE MATTER OF:
Daimler Financial Services
India Private Ltd.

Plaintiff

Versus
Unimexx Builders and Developers
Ltd. &Anr.

Defendants

MASTER INDEX
INDEX-1
___________________________________________________
S.No.
Particulars
Page No. Court Fee
____________________________________________________
01.

Filing Proforma

02.

Court Fee

03.

Urgent Application

04.

Memo of Parties

05.

Suit for recovery

06.

Affidavit in support

07.

Address Form

INDEX-II
___________________________________________________
S.No.
Particulars
Page No. Court Fee
____________________________________________________
01.

Application under Section 148 CPC


for extension of time in payment
of Court Fee alongwith affidavit.

02.

Application under Section 151 CPC

for Exemption along with affidavit.


INDEX-III
___________________________________________________
S.No.
Particulars
Page No. Court Fee
____________________________________________________
01.

Vakalatnama on behalf of the plaintiff

INDEX-IV
___________________________________________________
S.No.
Particulars
Page No. Court Fee
____________________________________________________
01.

List of Documents along with


documents.

(SAHIL BHALAIK)
ADVOCATE FOR THE PLAINTIFF
M-11, GREATER KAILASH-I
NEW DELHI-110048
New Delhi.
Dated:

IN THE HIGH COURT OF DELHI AT NEW DELHI


CIVIL ORGINAL JURISDICTION
CS (OS) NO. _____ OF 2014
IN THE MATTER OF:
Daimler Financial Services
India Private Ltd.

Plaintiff

Versus
Unimexx Builders and Developers
Ltd. & Anr.

Defendants

LIST OF DOCUMENTS
___________________________________________________
S.No.
Particulars
Pages
____________________________________________________
1.

Passenger Car Credit Application Form

2.

Loan cum Hypothecation Agreement

3.

Invoice

4.

Repayment Schedule

5.

Statement of Accounts

6.

Loan Recall Notice dated 02.01.2013


along with courier dispatch proof

7.

Loan Recall and Demand Notice dated 25.02.2013


along with RPAD dispatch and delivery proof

8.

Loan Recall and Demand Notice dated 25.11.2013


along with ROAD dispatch and delivery proof
(SAHIL BHALAIK)
ADVOCATE FOR THE PLAINTIFF
M-11, GREATER KAILASH-I
NEW DELHI-110048

New Delhi.
Dated:

IN THE HIGH COURT OF DELHI AT NEW DELHI


CIVIL ORGINAL JURISDICTION
CS (OS) NO. _____ OF 2014
IN THE MATTER OF:
Daimler Financial Services
India Private Ltd.

Plaintiff

Versus
Unimexx Builders and Developers
Ltd. &Anr.

Defendants

INDEX
S. No. Particulars

Pages

1.

Memo of Parties

2.

List of Documents

3.

Suit for recovery of Rs.42,51,557.62/-

1 12

on behalf of the plaintiff.


4.
5.

(SAHIL BHALAIK)
ADVOCATE FOR THE PLAINTIFF
M-11, GREATER KAILASH-I
NEW DELHI-110048
New Delhi.
Dated:

IN THE HIGH COURT OF DELHI AT NEW DELHI


CIVIL ORGINAL JURISDICTION
CS (OS) NO. _____ OF 2014
IN THE MATTER OF:
Daimler Financial Services
India Private Ltd.

Plaintiff

Versus
Unimexx Builders and Developers
Ltd. &Anr.

Defendants

Master Index
INDEX-1
___________________________________________________
S.No.
Particulars
Page No. Court Fee
____________________________________________________
1.

Filing Proforma

2.

Court Fee

3.

Urgent Application

4.

Memo of Parties

5.

Suit for recovery

6.

Affidavit in support

7.

Address Form
(SAHIL BHALAIK)
ADVOCATE FOR THE PLAINTIFF
M-11, GREATER KAILASH-I
NEW DELHI-110048

New Delhi.
Dated:

IN THE HIGH COURT OF DELHI AT NEW DELHI


CIVIL ORGINAL JURISDICTION
CS (OS) NO. _____ OF 2014
IN THE MATTER OF:
Daimler Financial Services
India Private Ltd.

Plaintiff

Versus
Unimexx Builders and Developers
Ltd. &Anr.

Defendants

INDEX-II
___________________________________________________
S.No.
Particulars
Page No. Court Fee
____________________________________________________
01.

Application under Order 39 Rule 1 & 2


CPC

02.

Application under Order 40 Rule 1

03.

Application under Section 151 for


Exemption from filing originals

(SAHIL BHALAIK)
ADVOCATE FOR THE PLAINTIFF
M-11, GREATER KAILASH-I
NEW DELHI-110048
New Delhi.
Dated:

IN THE HIGH COURT OF DELHI AT NEW DELHI


CIVIL ORGINAL JURISDICTION
CS (OS) NO. _____ OF 2014
IN THE MATTER OF:
Daimler Financial Services
India Private Ltd.

Plaintiff

Versus
Unimexx Builders and Developers
Ltd. &Anr.

Defendants

INDEX-III
___________________________________________________
S.No.
Particulars
Page No. Court Fee
____________________________________________________
01.

Vakalatnama on behalf of the plaintiff

(SAHIL BHALAIK)
ADVOCATE FOR THE PLAINTIFF
M-11, GREATER KAILASH-I
NEW DELHI-110048
New Delhi.
Dated:

IN THE HIGH COURT OF DELHI AT NEW DELHI


CIVIL ORGINAL JURISDICTION
CS (OS) NO. _____ OF 2014
IN THE MATTER OF:
Daimler Financial Services
India Private Ltd.

Plaintiff

Versus
Unimexx Builders and Developers
Ltd. &Anr.

Defendants

INDEX-IV
___________________________________________________
S.No.
Particulars
Page No. Court Fee
____________________________________________________
01.

List of Documents along with


documents.

(SAHIL BHALAIK)
ADVOCATE FOR THE PLAINTIFF
M-11, GREATER KAILASH-I
NEW DELHI-110048
New Delhi.
Dated:

IN THE HIGH COURT OF DELHI AT NEW DELHI


CIVIL ORGINAL JURISDICTION
I.A.No._____of 2014
IN
CS (OS) NO. _____ OF 2014
IN THE MATTER OF:
Daimler Financial Services
India Private Ltd.

Plaintiff
Versus

Unimexx Builders and Developers


Ltd. & Anr.

Defendants

APPLICATION UNDER ORDER 39, RULE 1 & 2 READ


WITH SECTION 151 OF THE CPC.

MOST RESPECTFULLY SHOWETH:


1.

The plaintiff has filed suit against the defendant for


recovery of money and taking the custody of car in terms
of the loan agreement.

2.

That the contents of accompanying suit may be read as


part & parcel of this application in order to avoid
repetition.

3.

It is humbly submitted that plaintiff has got good and


strong prima facie case in his favour on merits of the case

and there is very likelihood of success of the plaintiff in


this case.
4.

It is humbly submitted that the Defendants approached


the Plaintiff Company and intended to avail financial
assistance to purchase a Mercedes Benz Car. The
plaintiff company had explained all the terms and
conditions of the loan agreement which were read
understood and accepted by the Defendants.

5.

It is humbly submitted that the Defendants consequently


entered into loan cum hypothecation agreement bearing
account no. 10102647 dated 17/09/2012. The said
agreement was entered into in order to purchase
Mercedes

Benz

car

model

E350

Coupe

bearing

registration no. DL1CP1331 for Rs.50,22,454 /- (Rupees


Fifty Lakhs Twenty Two Thousand Four Hundred And
Four only) in which the Defendants had made a down
payment of Rs 8,22,454/- (Rupees Eight Lakhs Twenty
Two Thousand Four Hundred And Four Only) and
remaining amount of Rs.42,00,000/- was financed by the
Plaintiff. As per the agreement the remaining amount of
Rs. 42,00,000/- (Rupees Forty Two Lakhs Only) was to
be paid along with an interest of 12.1621% p.a. Thus the
total amount to be repaid was to be Rs. 56,26,260/-

(Rupees Fifty Six Lakhs Twenty Six Thousand Two


Hundred and Sixty Only). The said total was to be repaid
in 60 EMIs at Rs.93,771/- p.m. commencing from
19.09.2012 till 19.09.2017 on stipulated due dates failing
which the Defendants had agreed to pay overdue charges
at 5 % on the defaulted amount.
6.

It is submitted that the Defendants committed default from


the very beginning and defaulted in making the payment
of 1st EMI which was due on 19.10.2012. Subsequently
the defendant also defaulted in making payment of 2 nd, 3rd
and 4th EMIs on 19.11.2012, 19.12.2012 and 19.01.2013
respectively.

7.

It is submitted that after the gross default on the part of


the Defendants in honouring the commitment of payment
of monthly installments, the Plaintiff recalled the entire
loan facility as per the agreement and issued loan recall
notice on 02.01.2013 calling upon the defendants to pay
Rs.45,27,083.71/-.

8.

It is submitted that the Defendants failed to comply with


the said notice and instead of repaying the entire loan
amount only paid a sum of Rs.94,000/- on 13.02.2013
which was the very 1st payment after four months from the
commencement of repayment schedule.

9.

It is submitted that inspite of repeated requests,


reminders, demands and after according sufficient
opportunities to the defendants, the plaintiff without
prejudice to its rights and remedies issued another notice
on 25.2.2013 calling upon the defendants to pay an
amount of Rs. 45,83,232.06/- ( Rupees Forty Five Lakh
Eighty Three Thousand Two Hundred and Thirty Two and
Six Paise.), as the said amount was due and outstanding
and payable towards the plaintiff as on 7.2.2013.

10.

It is submitted that defendant after being accorded


another opportunity to pay the remaining outstanding
acted negligently and failed once again in meeting its
contractual obligations as per the agreement. It is further
submitted that the defendant on 06.03.2013 made a
payment of Rs.1,88,000/- (Rupees One Lakh Eighty Eight
Thousand Only) towards its obligation. Thereafter another
payment of Rs.94,000/- (Rupees Ninety Four Thousand
Only) was made on 12.03.2013.

11.

It is humbly submitted that the Defendants again


continued to default and made another payment of
Rs.94,000/- (Rupees Ninety Four Thousand Only) on
18.06.2013. Thereafter the next payment made was of
Rs.94,000/- on 30.07.2013.

12.

It is humbly submitted that the Defendants grossly


defaulted in honoring his commitment of payment of
monthly installments and violated the General Terms and
conditions and Deed of Hypothecation entered into
between the Plaintiff and Defendants

13.

It is humbly submitted that finally the plaintiff on


25/11/2013 once again sent a notice through Registered
Post Acknowledgement Due to the Defendants through
their advocate recalling entire loan amount due and
informed about the default committed by them and
plaintiff power to repossess the vehicle to realize the
dues. And as on 25/11/2013 a sum of Rs.44,39,557.62/(Rupees Forty Four Lakhs Thirty Nine Thousand Five
Hundred Fifty Seven and Sixty Two Paise Only) was due
and outstanding to the Plaintiff and also requested the
Defendants to make payment of the above mentioned
amount within 7 days of the receipt of the notice and in
case of failure to make payment, the legal action including
repossession of assets in consonance with the Clause 5
of the terms and conditions (page 7) executed by the
Defendants.

14.

It is humbly submitted that the said loan recall notice


dated 25.11.213 was duly served to the Defendants on

28.11.2013 and the acknowledgement card was received


back on 02.12.2013 however the Defendants did not
comply with the said notice and only paid Rs.1,88,000/against the total outstanding dues of Rs.44,39,557.62/-.
15.

It is submitted that the value of the said car is


depreciating regularly due to negligent behavior of the
Defendants. Despite, the above said correspondence and
exchange of notices the defendants have failed and
neglected to make payment of outstanding dues.

16.

It is humbly submitted that the outstanding dues of the


Plaintiff can be secured only by way of restraining the
Defendants to from selling, transferring or otherwise
parting with possession of Mercedes Benz E350 Coupe
bearing registration no. DL1CP1331.

17.

The plaintiff has prima facie good case on merits. The


balance of convenience is in favour of the plaintiff against
the defendants.

8.

In case, the interim order as prayed for is not granted, the


plaintiff would be put to irreparable loss and injury. No
prejudice will be caused to the defendants.
PRAYER

It is therefore most respectfully submitted that this Honble


court may be pleased to:(a)

pass an ex-parte ad-interim injunction order against


the defendant No.1 and 2 thereby restraining the
defendant No. 1 & 2, their agents, attorneys,
representatives, employees, successors any other
person

claiming

on

his

behalf

from

selling,

transferring or otherwise parting with the Mercedes


Benz

E350

Coupe

bearing

registration

no.

DL1CP1331 in any manner whatsoever, till the


disposal of the suit; and
(b)

Pass such other order/orders as this Honble Court


may deem fit in the facts and circumstances of the
case.

(SAHIL BHALAIK)
ADVOCATE FOR THE PLAINTIFF
M-11, GREATER KAILASH-I
NEW DELHI-110048
New Delhi.
Dated:

IN THE HIGH COURT OF DELHI AT NEW DELHI


CIVIL ORGINAL JURISDICTION
I.A.No.____of 2014
IN
C.S. (O.S) No.

of 2014

IN THE MATTER OF:

Daimler Financial Services India Private Ltd.

Plaintiff

Versus
Unimexx Builders and Developers Ltd. & Anr. Defendants

APPLICATION UNDER SECTION 40 RULE 1 CPC


READ WITH SECTION 151 CPC

MOST RESPECTFULLY SHOWETH:

1.

The plaintiff /applicant has filed suit against the


defendants for recovery of money and taking the custody
of car in terms of the loan agreement.

2.

At the very outset it is submitted that the Mercedes Benz


E350 Coupe is out of production in India, resultantly the
depressions value of the vehicle in question is very high
and undoubtedly the value of the said vehicle is
depreciating on a day to day basis. Being a high end
vehicle the on road maintenance of the vehicle is also
extremely high. Any negligent handling or a compromise
made with its maintenance shall make the vehicle
worthless and the same would be valued as junk.
Therefore in the circumstances if the possession of the
vehicle is not secured by appointing a receiver, the
accompanying suit will become infructuous.

3.

It is also submitted that the defendants have been


extremely negligent towards their obligations right from
the first installment and have defaulted regularly on
various occasions. The conduct of the defendants raises
questions on their ability to continue to take the required
care and maintain the vehicle, which is evident from the
following:
a) The

defendants

have

defaulted

in

paying

the

installments right from the first installment and have


defaulted on numerous occasions thereafter.
b) The defendants have never replied to any of the
reminders, recall notices or responded in any manner
whatsoever or explained their inability to pay or pay
timely.

4.

It is submitted that the plaintiff is praying for the


appointment of a Receiver because it has a strong prima
facie case and the balance of convenience as well as
equity is in his favour. The property in the hands of the
defendants is in danger of being wasted as the vaule of
the vehicle is fast depreciating. It is further submitted that
the protection and safeguarding of the vehicle pending
litigation is warranted as the defendant has been a

chronic defaulter who defaulted in paying the very first


installment and thereafter has continued to be a chronic
defaulter.

5.

It is submitted that there are strong and compelling


reasons which necessitate interfering with the possession
as any further delay would make the suit infructuous
because the value of the said vehicle will be reduced to
that of junk if the possession is not secured by this Court
at the earliest.

6.

It is submitted that the defendants are not bona fide


purchasers as they have defaulted in making payments
from the very first installment itself and at numerous
occasions therafter. The mala fide of the defendants is
evident from the fact that they have never responded to
any of the reminders or re call notices. The defendants
have also never expressed their inability to pay or pay
timely. From the facts of the present case it is clear that
the intention of the defendants was to defraud the plaintiff.

7.

The plaintiff is approaching this Hobble Court as promptly


as possible after three recall notices were issued to the
defendants and no further opportunity could have been

accorded to the defendants as value of the vehicle is fast


depreciating. It is submitted that the legal recourse
initiated by the plaintiff is timely and apt in the facts and
circumstances of the case.

8.

That the contents of suit may be read as part & parcel of


this application in order to avoid repetition.

9.

It is submitted that the defendants approached the


Plaintiff

Company

and

intended

to

avail

financial

assistance to purchase a Mercedes Benz Car. The


plaintiff company had explained all the terms and
conditions of the loan agreement which were read
understood and accepted by the Defendants.
10.

It is submitted that the Defendants consequently entered


into loan cum hypothecation agreement bearing account
no. 10102647 dated 17/09/2012. The said agreement was
entered into in order to purchase Mercedes Benz car
model E350 Coupe bearing registration no. DL1CP1331
for Rs.50,22,454 /- (Rupees Fifty Lakhs Twenty Two
Thousand Four Hundred And Four only) in which the
Defendants had made a down payment of Rs 8,22,454/(Rupees Eight Lakhs Twenty Two Thousand Four
Hundred And Four Only) and remaining amount of

Rs.42,00,000/- was financed by the Plaintiff. As per the


agreement the remaining amount of Rs. 42,00,000/(Rupees Forty Two Lakhs Only) was to be paid along
with an interest of 12.1621% p.a. Thus the total amount to
be repaid was to be Rs. 56,26,260/- (Rupees Fifty Six
Lakhs Twenty Six Thousand Two Hundred and Sixty
Only). The said total was to be repaid in 60 EMIs at
Rs.93,771/- p.m.

commencing from 19.09.2012 till

19.09.2017 on stipulated due dates failing which the


Defendants had agreed to pay overdue charges at 5 % on
the defaulted amount.
11.

It is submitted that the Defendants committed default from


the very beginning and defaulted in making the payment
of 1st EMI which was due on 19.10.2012. Subsequently
the defendant also defaulted in making payment of 2 nd, 3rd
and 4th EMIs on 19.11.2012, 19.12.2012 and 19.01.2013
respectively.

12.

It submitted that after the gross defaults on the part of the


Defendants in honouring the commitment of payment of
monthly installments, the Plaintiff recalled the entire loan
facility as per the agreement and issued loan recall notice
on 02.01.2013 calling upon the defendants to pay
Rs.45,27,083.71/-.

13.

It is submitted that the Defendants failed to comply with


the said notice and instead of repaying the entire loan
amount only paid a sum of Rs. 94,000/- on 13.02.2013
which was the 1st payment after four months from the
commencement of repayment schedule.

14.

It is submitted that inspite of repeated requests,


reminders, demands and after according sufficient
opportunities to the defendants, the plaintiff without
prejudice to its rights and remedies issued another notice
on 25.2.2013 calling upon the defendants to pay an
amount of Rs. 45,83,232.06/- ( Rupees Forty Five Lakh
Eighty Three Thousand Two Hundred and Thirty Two and
Six Paise.), as the said amount was due and outstanding
and payable towards the plaintiff as on 7.2.2013.

15.

It is submitted that defendant after being accorded


another opportunity to pay the remaining outstanding
acted negligently and failed once again in meeting its
contractual obligations as per the agreement. It is further
submitted that the defendant on 6.03.2013 made a
payment of Rs.1,88,000/- (Rupees One Lakh Eighty Eight
Thousand Only) towards its obligation. Thereafter another

payment of Rs. 94,000/- (Rupees Ninety Four Thousand


Only) was made on 12.03.2013.
16.

It is submitted that the Defendants again continued to


default and made another payment of Rs. 94,000/(Rupees Ninety Four Thousand Only) on 18.06.2013.
Thereafter the next payment made was of Rs. 94,000/- on
30.07.2013.

17.

It is submitted that the Defendants grossly defaulted in


honoring

his

commitment

of

payment

of

monthly

installments and violated the General Terms

and

conditions and Deed of Hypothecation entered into


between the Plaintiff and Defendants.
18.

It is humbly submitted that finally the plaintiff on


25/11/2013 once again sent a notice through Registered
Post Acknowledgement Due to the Defendants through
their advocate recalling entire loan amount due and
informed about the default committed by them and
plaintiff power to repossess the vehicle to realize the
dues. And as on 25/11/2013 a sum of Rs.44,39,557.62/(Rupees Forty Four Lakhs Thirty Nine Thousand Five
Hundred Fifty Seven and Sixty Two Paise Only) was due
and outstanding to the Plaintiff and also requested the

Defendants to make payment of the above mentioned


amount within 7 days of the receipt of the notice and in
case of failure to make payment, the legal action including
repossession of assets in consonance with the Clause 5
of the terms and conditions (page 7) executed by the
Defendants.
19.

It is humbly submitted that the said loan recall notice


dated 25.11.213 was duly served to the Defendants on
28.11.2013 and the acknowledgement card was received
back on 02.12.2013 however the Defendants did not
comply with the said notice and only paid Rs.1,88,000/against the total outstanding dues of Rs.44,39,557.62/-.

20.

It is humbly submitted that the value of the car is getting


deteriorated day by day and if the plaintiff is not permitted
to take possession of the car, the value of the car will
further diminish and will become a junk, which will not be
in the interest of the any of the parties.

21.

The plaintiff/applicant submits that the plaintiff may be


permitted to sell the car in the market so that the part of
loan could be adjusted. The plaintiff further submits that
the plaintiff / applicant may be appointed as receiver to
take the possession of car and sell it in the market. The
plaintiff /applicant submits that the money so received by

the plaintiff shall be dealt with as per the directions of this


Honble Court.
22.

The plaintiff/ applicant submits that it is just and


convenient and expedient to appoint the plaintiff/
applicant as receiver. The plaintiff/ applicant will abide by
the terms and conditions which might be imposed by this
Honble Court under Order 40 Rule 1 of CPC
PRAYER

It is therefore most respectfully submitted that this Honble


court may be pleased to:-

a) Appoint the plaintiff / applicant as receiver in respect of


Mercedes Benz E350 Coupe bearing registration no.
DL1CP1331 and permit the plaintiff to take the
possession of car from the Defendants; and
b) Direct the Defendants to surrender the Mercedes Benz
car E350 Coupe bearing registration no. DL1CP1331
to the Plaintiff; and
c) Pass such other order/orders as this Honble Court
may deem fit in the facts and circumstances of the
case.

(SAHIL BHALAIK)
ADVOCATE FOR THE PLAINTIFF
M-11, GREATER KAILASH-I
NEW DELHI-110048
New Delhi.
Dated: