RAJIV SAHAI ENDLAW,J. - (1.) The plaintiff has instituted this suit for recovery of Rs. 2,35,30,495.70p jointly and severally from the defendant No.1 Business India Exhibitions Pvt. Limited (BIEPL) and defendant No.2 Ashok H. Advani, pleading: (i) that the defendant No.2 Ashok H. Advani had approached and represented to the plaintiff that he is the founder and chairman of Business India Group and the defendant No.1 BIEPL is under his complete control and he is one of the Directors of the defendant No.1 BIEPL and in exclusive charge and control of the defendant No.1 BIEPL and responsible for the conduct of day to day affairs and functioning of the defendant No.1 BIEPL; (ii) that the defendant No.2 called upon the plaintiff to enter into the business transactions with the defendant No.1 BIEPL and assured the plaintiff that he would be personally liable and responsible for all acts, omissions, liabilities etc. of defendant No.1 BIEPL and promised to stand as guarantor for the same; (iii) that the defendant No.1 BIEPL is a mere alter ego of the defendant No.2 which has been created by the defendant No.2 for his own personal benefit and to evade payment of legitimate dues of the business associates of the defendant No.1 and to defraud the creditors of the defendant No.1 BIEPL; the defendant No.2 is the real person behind the veil and facade of the defendant No.1 BIEPL and is jointly and severally liable and responsible for the debts and liabilities of the defendant No.1 BIEPL; (iv) that with the aforesaid assurances and representations, the defendant No.2 requested the plaintiff to provide its goods, articles, services, transport etc. for the various projects, shows and exhibitions undertaken and organised by the defendants; (v) that the plaintiff, believing the aforesaid assurances and representations of the defendant No.2, provided to the defendants the services of installation of outdoor superstructures, air-conditioning of superstructures, stall constructions, general lighting, furniture, panels, carpeting, wooden platforms, landscaping etc. as ordered by the defendants from time to time and the defendants were completely satisfied with respect thereto; (vi) that the defendants have been making on-account payments to the plaintiff for the bills / invoices raised by the plaintiff from time to time; (vii) that the plaintiff has been maintaining an open and running account of defendant No.1 BIEPL in this regard; (viii) that the ledger statements of the defendant No.1 BIEPL for the financial year 2007-2008 till 2013-2014 containing entries of the transactions during the said financial years are filed before this Court; (ix) that for the financial year 1st April, 2012-31st March, 2013, the ledger account maintained by the plaintiff reflects an opening debit balance of Rs. 2,24,03,781/-; (x) that the defendants made certain on-account payments in acknowledgement of their liability towards the plaintiff, the last of such payments being the payment of Rs. 1,96,000/- vide cheque bearing No.0868588 dated 16th March, 2013 drawn on HDFC Bank; (xi) that the plaintiff thereafter raised another invoice dated 26th March, 2013 for an amount of Rs. 21,59,117/-; (xii) that after duly crediting the payments made by the defendant No.1 BIEPL during the financial year 2012-2013, there was a closing debit balance of Rs. 2,35,30,495.70p as on 31st March, 2013 and which the defendants have failed pay in spite of repeated reminders and assurances to pay; (xiii) that the defendant No.1 BIEPL, with regard to part of the aforesaid amount payable to the plaintiff has even deposited Tax Deducted at Source (TDS) and issued TDS certificates without actually making the full payment to the plaintiff; such act of the defendant No.1 BIEPL tantamount to admission of its liability towards the plaintiff; (xiv) that it is now apparent that the defendant No.2 Ashok H. Advani has played a fraud upon the plaintiff; (xv) that the plaintiff got served on the defendants a legal notice dated 8th February, 2016 demanding the payment but the defendants have responded thereto also; (xvi) that the defendants have been notified in the legal notice that they would be liable to pay interest on the outstanding @ 24% per annum; accordingly, the plaintiff besides the sum of Rs. 2,35,30,495.70p, is also entitled to pendente lite and future interest at the said rate.
(2.) The suit was entertained and summons thereof ordered to be issued to the defendants. The order dated 9th May, 2016 of the Joint Registrar records that both the defendants had been served by registered post A.D.; though none appeared for the defendants before the Joint Registrar on 9th May, 2016, written statement was awaited. None appeared for the defendants before the Joint Registrar on 12th August, 2016 also and accordingly the suit was ordered to be listed before the Bench on 7th October, 2016.
(3.) None appeared for the defendants on 7th October, 2016 also. Though a formal order proceeding ex-parte against the defendants remained to be passed on that date but it was the contention of the senior counsel for the plaintiff on 7th October, 2016 that this being a commercial suit, is entitled to be decreed without requiring the plaintiff to lead ex-parte evidence.;