1

Plaint

IN THE COURT OF HON. PRINCIPAL SENIOR CIVIL

JUDGE, SURAT.

Sp. Civil Suit No. /2016

Plaintiff : Prakash Dharamraj Bahirwani,

Aged about : 52 yrs., Occupation :

Commission Agent, Residing at : 11, Sunil,
M.H.No.131, Talamiki Road, Santacruz,
Mumbai.

Versus

Respondent: M/s. Laxmi Exports Prop.

Mrs. Simmi Samir Batra by her

constituted Attorney Mr. Samir
Atamprakash Batra,

Aged about : 45 yrs., Occupation :

Business, Residing at : 141, Ashirwad
Industrial Park,

B/h. Safari Complex, Bhestan, Surat-

395003.

Suit for : Declaring M.O.U. null and void and

unenforceable.

The Plaintiff respectfully submits that :

(1) We the Plaintiff has been carrying on business as

Commission Agents with Textile Units such as
 2

textiles suppliers, exporters, traders and

manufacturers of Mumbai and Surat, since 2006. The
Plaintiff’s business is to contact stockists of cloth for
prospective buyers, to procure stock of cloth for and
sell to buyers, to act as mediator between buyers
and sellers and earn Plaintiff’s Commission on such
sales, since 2006.

(2) We the Plaintiff had been dealing with the above

Respondent and also with Respondent’s other two
export concerns viz. (1) M/s. Batra International
(2) M/s. Bharti Creation, concerning Respondent’s
business of manufacturing, selling and export of
cloth on commission basis. Thus the Plaintiff and
Respondent had business relations. The Plaintiff as
commission agent for Respondent contacted
buyers for the cloth manufactured by the
Respondent, established contact between sellers
and buyers, negotiate and settle price and on
completion of deal by payment of value by buyer
to Respondent seller and delivery of goods sold by
Respondent seller to the buyer was paid
commission by the Respondent at agreed rate. The
commercial responsibility of Plaintiff was to contact
buyer for Respondent, establish contact between
buyer and Respondent and on completion of deal
to the entitlement of Plaintiff’s commission due
from the Respondent. The personal responsibility
of Plaintiff was restricted to establishment of
 3

contact between the buyer and the Respondent

and did not extend to delivery of goods to the
buyer, payment of value by the buyer to the
Respondent and guarantee of quality of goods sold
by Respondent.

(3) The Respondent was paying commission to the

Plaintiff at agredd rate on the value of goods sold
and exported by the Respondent to the buyer with
whom Respondent’s contact was established by the
Plaintiff. After receipt of payment from the buyer.
In the event of non-payment of value of goods by
the buyer, or no export or non-delivery of the
goods by the Respondent, the Plaintiff had no
personal responsibility and was not a surety for the
buyer to the Respondent.

(4) The commercial relationship between the Plaintiff

and Respondent had been in vogue since many
years. Till date no dispute had arisen between the
Plaintiff and Respondent in relation to their
business. The Plaintiff used to visit the export
offices of Respondent at Surat for business from
time to time. The Respondent also used to call
Plaintiff at Respondent’s office at Surat for
clearance of stock of goods of the Respondent, in
response to which also the Plaintiff used to meet
 4

the Respondent at Surat, who was paying

commission to the Plaintiff.

(5) However, recently in September 2016 disputes

arose between the Respondent and buyers of
Respondent’s goods of Iraq and Soudi Arebia,
concerning the value charged by the Respondent
for goods supplied by the Respondent to the said
buyers. Being the mediator the Plaintiff tried in
good faith contact between the Respondent and
the buyers for mutual settlement of their disputes,
which however failed.

(6) Thereafter the Respondent started pressing the

Plaintiff for payment of value of goods sold to
above buyers, as if the payment was personal
responsibility of the Plaintiff, causing mental
tension to the Plaintiff. The Respondent also
threatened of diar consequences to life and
properly of the Plaintiff and Plaintiff’s family
members, also on two personal mobile nos.
098251 29831 and 099099 7073 of Respondent.
The Respondent also threatened kidnapping of
Plaintiff’s daughter and of fatal consequences to
the Plaintiff, and that the Respondent having
influence with police and underworld and would not
leave plaintiff till recovery of Respondent’s dues
from Plaintiff by any means. On account of
 5

frequent theretening calls from the Respondent the

Plaintiff was frightened and although Plaintiffwa
was not personally responsible for payment of
Respondent’s dues from buyers, the Plaintiff
requested Respondent to visit Mumbai to meet the
buyers also to be called to Mumbai for settlement
of their disputes but there was no positive reponse
from the Respondent, leaving no room for
settlement between the Respondent and the
buyers. Exhausted with mental toruture by the
Respondent the Plaintiff decided to meet the
Respondent personally for final disposal of the
dispute. According the Plaintiff personally visited
the Respondent at Respondent’s business premises
at Surat on dtd. 17-10-2016. At that time the
Respondent and their persons present at the
premises surrounded the Plaintiff and started
pressure for payment of value of goods sold at
Dubai and Soudi Arebia alleging that it was a deal
on his personal credit by the Plaintiff liability of the
Plaintiff, thus causing physical and mental torture
to the Plaintiff and without affording a responsible
opportunity to represent the case of the Plaintiff to
him.

(7) The Respondent pointed his revolver by his hand

on the head of the Plaintiff and forced the Plaintiff
to sign a Memorandum of Understanding prepared
 6

by the Advocate of the Respondent, purporting to

admission by Plaintiff accepting Plaintiff’s personal
liability for the payment due to Respondent for the
foregoing deal, amouting to Rs. 53,47,20,000/-
during the period from 25-10-16 to 25-10-16 in
installments, by way of advance cheques as
settlement as if it was Plaintiff’s personal liability,
which was in fact not of the Plaintiff and detained
the Plaintiff at Surat and did not allow the Plaintiff
to return to Mumbai till the oppressive MOU was
signed by the Plaintiff, under threat of revolver
pointed to the head of the Plaintiff. The MOU
forcibly signed by the Plaintiff under threat to his
life was notarised by Shri Raghubhai D. Vavli, the
Notary who was personal acquaintance of the
Respondent, registered at no. 282521 dtd. 17-10-
2016 by the said Notary in his register.

(8) The aforesaid MOU was printed and was caused to

be forcibly executed by the Plaintiff, for fixing
liability of payment on Plaintiff, on illegally used
five months’ pre-dated stamp paper in the name of
‘Camy Exports Pvt. Ltd.’ of Udhna and not in the
name of the Respondent. The transaction was
therefore illegal and discloses malefide intention of
the Respondent.
 7

(9) Thus, the Plaintiff was allowed to return to Mumbai

by the Respondent only after signing MOU under
threat by pointing revolver on Plaintiff’s head,
forcibly accepting liability to make payment of
53,47,20,000/- and also issuing advance cheques
as detaied at serials 1 to 18 on pages 5 and 6 of
MOU in favour of Respondent, signed by the
Plaintif. The Respondent deposited three of the
forced cheques for credit to Respondent’s Bank
Account. But in fact Plaintiff had no such liability to
make payment of outstanding dues to the
Respondent and therefore the Plaintiff instructed
the bank to stop payment of three cheques which
were signed by Plaintiff under threat, in pursuance
of alleged illegal MOU dtd. 17-10-2016. This suit is
brought to obtain a declaration from the Court that
the Respondent has no right to encashment of the
said chqeues because the Plaintiff has no such
alleged liability to make payment to the
Respondent.

(10) The Respondent is a person of threatening repute

having influence with Police Department and
contact with underworld. The Plaintiff was shocked
by the treatment accorded to him and could not
recover for two-three days. The Plaintiff continued
to receive threats from the Respondent who was
having influence with the Police. The Plaintiff
 8

lodged a complaint for protection against the

Respondent with the Commissioner of Police,
Mumbai and with Senior Inspector of Police, Juhu
Garden Police Station which are pending and under
process. In the meanwhile this suit has been
brought for a declaration from the Court prohibiting
and restraining the Respondent to recover
ancashment of advance cheques under forced MOU
dtd. 17-10-2016 against payment of Respondent’s
dues which is not the liability of the Plaintiff and
from threatening and touturing the Plaintiff and the
Plaintiff’s family members physically and mentally
by holding out threats of legal proceedings for
wrongly recovery and having no such legal right of
recovery against the Plaintiff.

(11) Further this suit is brought for a declaration that

the Respondent has no right of recovery of any
amount from the Plaintiff under the alleged MOU
and issuing permanent injunction prohibiting and
restraining the Respondent till the final disposal of
this suit from illegally recovering any amount from
the Plaintiff.

(12) The cause of this suit arose in September 2016 on

account of dispute regarding the value of the goods
supplied by the Respondent between the
Respondent and the foreign buyers, and
consequent threats to the Plaintiff and his family
 9

members and of kidnapping of family member of

Plaintiff by the Respondent on telephone and
thereafter by obtaining forced signature of the
Plaintiff on MOU at the time of Plaintiff’s personal
visit to Respondent’s business premises by pointing
revolver on Plaintiff’s head which was prepared and
authicated and registered at No.282521 on dtd.
17-10-2016 by a Notary and forcefully obtaining
advance cheques and depositing three cheques for
encashment, the payment whereof was stopped by
the bank as per instructions of the Plaintiff and
frequent threats by the Respondent and
subsequent notice correspondence between the
Plaintiff and the Respondent and is still continued.
Therefore this suit is not barred by limitation of
time.

(13) The Respondent is resident within and the alleged

illegal MOU has been executed and notarised
within, the jurisdiction of this Court, that the
advance cheques under MOU have been also
signed forcibly under the MOU which were taken
from Plaintiff within the jurisdiction of this Court.
Thus the cause of action has arisen within the
jurisdiction to hear and decide this case.

(14) The suit is brought for declaring the MOU will null
and void and unenforceable against the Plaintiff
 10

and that the Plaintiff has no liability under MOU

and for obataining permanent injunction against
the Respondent from proceedings fro recovery
under MOU from the Plaintiff. The value of the suit
for the purposes of court fee, advocate’s fees and
jurisdiction of the court is established at a
maximum amount of Rs. 53,47,20,000/- and
therefore court fee stamp of Rs. 75,000/- has been
affixed on the plaint.

(15) The suit is based on documentary evidence

produced under a separate list attached hereto.

(16) The Plaintiff therefore prays for declaration that :-

1. The Plaintiff is not personally responsible nor

liable as a surely to make payment to the
Responsible nor liable amount due to the
Respondent from foreigner buyers for the
value of goods supplied by Respondent in
September, 2016 on account of dispute
regarding the alleged wrong value of goods
claimed by the Respondent from the buyers
for which Plaintiff voluntarily tried in vain for a
settlement between the Respondent and the
buyers, in good faith.

2. The Memoramdum of Understanding instantly

prepared through their Advocate by the
 11

Respondent and forced execution and sign

thereon by the Plaintiff and notarisation
thereof by Notary Shri Raghubhai D.Valvi
registered at Serial No.282521 on dtd. 17-10-
2016 containing admission of liability to pay
the value of the goods sold to buyers of Dubai
and Saudi Arebia as sale on credit to the
Plaintiff, by physical and mental torture by
pointing revolver on Plaintiff’s head on dtd.
17-10-2016, when Plaintiff personally, visited
the business premises of Respondent for
settlement of dispute between Respondent
and foreign buyers, in good faith, as null and
void and undforceable at law.

3. The Respondent is legally not entitled to

encash advance cheques of payment of Rs.
53,47,20,000/- in installments obtained by
force from the Plaintiff on the basis of forced
admission of Plaintiff liability under MOU
during the period from dtd. 25-10-2016 to
dtd. 25-10-2018 detailed on page 5 and 6 of
MOU prepared by Respondent’s Advocate.

4. Issue permanent injunction prohibiting and

restraining the Respondent not to deposit and
claim encashment of remaining advance
cheques in possession of Respondent, beside
the three stop payment cheques and not
 12

threaten the Plaintiff and Plaintiff’s family

members and their life and properly, either
directly or through any outsider.

5. Court any other relief as may be deemed fit

by the Hon. Court in view of facts and
circumstances of the Plaintiff’s case.

6. The Plaintiff may be awarded costs of this

suit.

Place : Surat

Date : -12-2016 ------------------------

Advocate for the Plaintiff

VERIFICATION

I, the Plaintiff do hereby verify that the facts stated

in the foregoing plaint are true and correct to the best
of my knowledge and belief.

Place : Surat

Date : -12-2016 ------------------------

AFFIDAVIT

I, Prakash Dharamraj Bahirwani, Aged about :

52 yrs., Occupation : Commission Agent, Residing at :
11, Sunil, M.H.No.131, Talamiki Road, Santacruz,
 13

Mumbai, do hereby declre on oath according to my

religion that :

The facts stated in the foregoing plaint are true

and correct to the best of my knowledge and belief and
that the prayer and relief claimed against the
Respondents are justified and deserve to the granted.

Place : Surat

Date : -12-2016 ------------------------

Declared signed before me on oath according to

religion by the Declarant who has been identified to me
by Shri Pritesh M. Parekh, Advocate, whom I personally
know.

------------------------------

Advocate Before Me