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Delhi District Court

Sh. Atul Aggarwal vs M/S Sal Logistics Inc on 21 April, 2017

                                    Page No. 1 to 8

         IN THE COURT OF PRAGATI , CIVIL JUDGE-06,
          WEST DISTRICT, TIS HAZARI COURT, DELHI.

Suit No. 484/12
New Case No. 8123/16


Sh. Atul Aggarwal
S/o Sh. Amrit Rai Aggarwal,
C/o Inder Prasth Finance,
395, Chandni Chowk, Delhi-6.                                ................... Plaintiff

                                          Versus

1. M/s Sal Logistics INC
Through its partner
Sh. Barum Bhanot
E-7/12, Malviya Nagar,
New Delhi-17.

2. Sh. Barun Bhanot
Partner of M/s Sal Logistics INC
R/o Flat no. 10/4, Pocket-A, Sector- A,
Vasant Kunj, New Delhi.

3. Ashwani Dahra,
Partner of M/s Sal Logistics INC,
E-7/12, Malviya Nagar,
New Delhi - 17.                                                 .............Defendants


           Date of Institution of the Suit              :      10.10.2002
           Date of Reserving of Judgment                :      05.04.2017
           Date of Judgment                             :      21.04.2017


Suit No.  484/14 (New Case No. 8123/16)       Atul Aggarwal VS M/s Sal Logistics & Ors. 
                                     Page No. 2 to 8


                                Suit for Recovery.

Present :      None for plaintiff.
               Defendant is ex-parte.

                                   JUDGMENT

1. The suit in hand has been filed by plaintiff against defendants seeking recovery of Rs. 2,07,595/-.

2. Brief facts of the case are that earlier this suit was filed under order 37 of CPC stating that plaintiff being one of the directors of A & A Associates Merchandise Pvt. Ltd., which deals in import and export, came into contact with the defendants for business dealings since defendant no. 1 deals in the business of custom clearing and defendants no. 2 and 3 are its partners.

3. It has been averred that as familiarity developed between both the parties to the suit, therefore, defendant no. 2 asked for Rs. 1,25,000/- from plaintiff citing financial difficulty of defendants and agreed to return the same with interest @ 18% per annum. As such plaintiff issued a cheque bearing no. no. 79598 dt. 10.10.1999 amounting to Rs. 1,25,000/- drawn upon Standard Chartered Bank to the defendants which was encashed by them. However, despite repeated requests, defendants refused to return the aforesaid amount alleging that the same has been adjusted towards the bills allegedly raised by them. Since the aforesaid amount was given as a short Suit No.  484/14 (New Case No. 8123/16) Atul Aggarwal VS M/s Sal Logistics & Ors. 

period loan to the defendants which has nothing to do with the alleged bills and despite service of the legal notice dt. 30.08.2001, demanding repayment of the aforesaid amount, defendants failed to return the same alongwith interest, therefore, the suit in hand has been filed and prayer made that a decree for recovery of Rs. 2,07,595/- (Rupees two Lacs seven thousand five hundred and ninety five only) alongwith interest @ 18% per annum from the date of issuance of cheque till its realisation be passed in favour of plaintiff and against the defendants.

4. On notice, defendants no. 1 and 2 appeared before the court and filed their application for leave to defend which was allowed vide order dt. 17.05.2005 and defendants no. 1 to 3 were asked to file their written statement holding that the suit in hand is not maintainable as a summary suit and the same shall be tried as an ordinary suit.

5. Accordingly, defendant no. 1 and 2 filed their written statement stating therein that defendant no. 1 was introduced to plaintiff's company namely M/s A & A Associates Merchandise Pvt. Ltd. through another firm namely M/s Grave Appliances Pvt. Ltd., 110, Padma Tower-II, Rajendra Place, New Delhi, chairman whereof, is Mr. G.M. Gupta, who is father in law of plaintiff. As such plaintiff started dealing with defendant no. 1 and used its services for getting their goods cleared through customs and other authorities for import during the period July 1999 to March, 2000.

Suit No.  484/14 (New Case No. 8123/16) Atul Aggarwal VS M/s Sal Logistics & Ors. 

During the said period, services of defendant no. 1 were hired for getting five import cases through customs, expenses whereof, were borne by defendant no. 1 on behalf of M/s A & A Associates Merchandise Pvt. Ltd.and plaintiff used to issue cheques on its behalf for discharging its financial liabilities, a record whereof, was maintained by defendant no. 1. That the aforesaid cheque for Rs. 1,25,000/- was also issued by plaintiff on behalf of his company A & A Associates Merchandise Pvt. Ltd. towards payment of its dues to the defendant no. 1 for hiring their services. As such, they denied any taking of loan of RS. 1,25,000/- from plaintiff and prayed that the suit in hand be dismissed being not maintainable.

6. Whereas defendant no. 3 did not appear before the court despite service through affixation and so he was proceeded with ex- parte on 05.09.2005.

7. Replication to the written statement of defendant no. 1 and 2 was filed by the plaintiff, wherein the averments of written statement were denied and contents of the plaint were reiterated.

8. From pleadings of parties, following issues were framed on 20.03.2006:

1. Whether the suit is without cause of action? OPD

2. Whether the suit is not maintainable in view of preliminary objection no. 2 of the written statement filed by defendant no. 1 and 2? OPD

3. Whether plaintiff is entitled to recovery of suit amount? OPP

4. Whether plaintiff is entitled to interest, if so, at what rate and for which Suit No.  484/14 (New Case No. 8123/16) Atul Aggarwal VS M/s Sal Logistics & Ors. 

period? OPP

5. Relief.

9. Thereafter, both the parties were asked to lead their evidence. Plaintiff in his evidence got examined himself as PW1.

However, when the case was fixed for evidence of defendant no. 1 and 2 then they did not appear before the court and so they were proceeded against ex-parte.

10. Ex-parte final arguments advanced by Ld. Counsel for plaintiff were heard. Case file perused carefully.

11. My issue wise findings are as under:

12. Since the onus to prove these issues was upon plaintiff, therefore, these issues are taken up first. In order to prove the same, he himself stepped into the witness box as PW1 and tendered his affidavit Ex. PW1/A in his testimony wherein reiterated contents of the plaint and further tendered the following documents:

i.) photocopy of cheque no. 79598 issued in favour of defendant no. 1 as Mark A ii.) Legal notice dt. 20.08.2001 as Ex. PW1/2, iii.) Return envelope as Ex. PW1/3 iv.) Reply to the legal notice given by defendants as Ex. PW1/4

13. In his cross examination, he admitted that he is one of the directors of M/s A & A Associates Merchandise Pvt. Ltd. and defendant no. 1 was introduced to their aforesaid firm by his father Suit No.  484/14 (New Case No. 8123/16) Atul Aggarwal VS M/s Sal Logistics & Ors. 

in law Sh. G.M. Gupta, who is chairman of M/s Grave Appliances Pvt. Ltd., however, he could not state the year thereof. He further admitted that defendant no. 1 had cleared some of the consignments of their company and also used to maintain accounts of transaction, however, he could not state the number of consignments got cleared by defendant no. 1. He stated that the accounts of the company are not traceable and denied that payment of Rs. 1,25,000/- was a part payment on behalf of his company in lieu of services of defendant no. 1 or that he has been issuing cheques on behalf of the company from his personal account as well.

14. Pertinently, defendants have not denied the issuance of cheque bearing no. 79598 amounting to RS. 1,25,000/- in favour of defendant no. 1 nor have they denied that the defendants no. 2 and 3 are the partners of defendant no. 1 firm. As such, in view of this admission of issuance of cheque by plaintiff in favour of defendant no. 1, onus shifted upon the defendants to show that the said cheque was issued to discharge the financial liability owed by M/s A & A Associates Merchandise Pvt. Ltd. towards defendant no. 1. However, mere oral allegation in this regard have been made by the defendants and no evidence in support thereof has been led by them. It is also pertinent to mention that vide order dt. 09.02.2016, defendants no. 1 and 2 were granted permission to lead secondary evidence of the documents pertaining to transactions between both the parties to the suit so as to show that the cheque in question was Suit No.  484/14 (New Case No. 8123/16) Atul Aggarwal VS M/s Sal Logistics & Ors. 

issued by plaintiff on behalf of M/s A & A Associates Merchandise Pvt. Ltd. There is specific denial by PW1 Atul Aggarwal (plaintiff) that he had been issuing cheques in his personal capacity in favour of defendant no. 1 for discharging his company's financial liabilities, therefore, it was incumbent upon the defendants to produce and prove its statement of account to prove their stand but the same was not done by them. Rather, no evidence at all has been led by them.

15. Careful perusal of copy of cheque no. 79598 (Mark A ) reveals that the same has been issued by plaintiff in his personal capacity in the name of defendant no. 1 for a sum of Rs. 1,25,000/- and since the issuance of the aforesaid cheque has been admitted by defendants and no evidence in their support has been led by the defendants, rather they chose to remain absent, therefore, this court does not find any reason to disbelieve the plaintiff's version. Moreover, nothing contradictory in the cross examination of PW1 Atul Aggarwal has appeared so as to demolish plaintiff's case and since the cheque in question was issued on 10.10.1999 whereas the suit in hand was filed on 10.10.2002, therefore, keeping in view that the suit in hand is well within limitation period of three years as well as in view of the aforesaid discussion, issue no. 3 is decided in favour of plaintiff. As far as the rate of interest is concerned, then the plaintiff is granted interest @ 8% per annum from the date of filing of suit in hand till its realisation. Issue no. 4 Suit No.  484/14 (New Case No. 8123/16) Atul Aggarwal VS M/s Sal Logistics & Ors. 

is accordingly decided.

16. The onus to prove these issues was upon the defendants. In view of the aforesaid discussion, both these issues are decided against the defendants.

RELIEF

17. In view of the aforesaid discussion, the suit in hand is hereby decreed ex-parte with costs and accordingly, plaintiff is held entitled to recover a sum of Rs. 2,07,595/- (Rupees Two Lakhs seven thousand five hundred and ninety five only) alongwith interest @ 8% per annum from the date of filing of the suit in hand till its realisation, from the defendants. Decree sheet be prepared accordingly. File be consigned to the record room after due compliance.

Pronounced in the Open Court                               (PRAGATI)
today on 21st April, 2017                              Civil Judge-06/West
                                                      Tis Hazari Courts, Delhi

Note :- This judgment consists of 8 pages and all the pages have been duly checked and signed by me.

(PRAGATI) Civil Judge-06/West Tis Hazari Courts, Delhi Suit No.  484/14 (New Case No. 8123/16) Atul Aggarwal VS M/s Sal Logistics & Ors.