Delhi District Court
Air Commodore Manoj Kumar Dixit vs . Rajiv Gandhi Aviation Academy & Y. P. ... on 6 April, 2015
Air Commodore Manoj Kumar Dixit vs. Rajiv Gandhi Aviation Academy & Y. P. Reddy
IN THE COURT OF SH. AJAY PANDEY, ADDL. DISTRICT JUDGE05,
ROOM NO. 605, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
In the matter of
C. S. No. 183/14
Case ID No. 02406C0060802014
1. Air Commodore Manoj Kumar Dixit
S/o Sh. Vinod B. Dixit
R/o 216, S. F. S. Flats, Gulmohar Enclave,
New Delhi.
2. Upasana Dixit
D/o Sh. Manoj Kumar Dixit
R/o CII/214, Satya Marg,
Chanakya Puri, New Delhi.
.............Plaintiffs
Versus
1. Rajiv Gandhi Aviation Academy
Through Y. P. Reddy
78277, SB Plaza, Old Airport Road,
Goutham Nagar, Bowenpally,
Secundarabad500011.
2. Y. P. Reddy
Director/Promoter, Rajiv Gandhi
Aviation Academy,
190, Plassy Lane near Mallareddy Garden,
Old Bowenpally, Secundarabad500011.
..............Defendants
Date of Institution : 11.03.2014
Date of reserving the Judgment : Oral
Date of pronouncement : 06.04.2015
Decision : Decreed
SUIT FOR RECOVERY OF RS.15,00,000/ (RUPEES FIFTEEN LAKHS
C. S. No.183/14 Page 1 of 10
Air Commodore Manoj Kumar Dixit vs. Rajiv Gandhi Aviation Academy & Y. P. Reddy
ONLY) ALONG WITH INTEREST @ 18% PER ANNUM
06.04.2015
Present: Sh. Ankan Suri, Advocate for plaintiff.
None for defendant.
JUDGMENT (ORAL)
1. None is appearing for the defendant since last two dates of hearing. It is submitted by Sh. Suri that defendant has not even deposited the amount of Rs.10,00,000/ (Rupees Ten Lakhs Only) as directed by this court vide order dated 05.12.2014.
2. Vide order dated 05.12.2014, this court had directed the defendant to deposit an amount of Rs.10,00,000/ (Rupees Ten Lakhs Only) in the court by way of auto renewable FDR for a period of one year within 4 weeks from the date of passing of the order.
3. Plaintiff has filed the suit for recovery of Rs.15,00,000/ (Rupees Fifteen Lakhs Only) along with interest with the allegations that he enrolled with the defendant for conducting a typerating course for Rs.15,00,000/ (Rupees Fifteen Lakhs Only). A sum of Rs.10,00,000/ (Rupees Ten Lakhs Only) was paid to defendant on 25.02.2012. Thereafter, another payment of Rs. 5,00,000/ (Rupees Five Lakhs Only) was also made. The typerating course is stated to be a mandatory requirement to get a job of commercial pilot. Defendant on one pretext or the other kept postponing the date of commencement of training of plaintiff.
C. S. No.183/14 Page 2 of 10Air Commodore Manoj Kumar Dixit vs. Rajiv Gandhi Aviation Academy & Y. P. Reddy Ultimately, plaintiff decided not to pursue the course and intimated the defendant to this effect and demanded his money back. But to no avail. Hence, the present suit for recovery.
4. Defendants were served with the summons of the suit and filed their written statement. In the written statement, defendants admitted that they received the amount of Rs.10,00,000/ (Rupees Ten Lakhs Only) from the plaintiff for conducting typerating course. Defendant, however, stated that plaintiff did not pay the remaining installment of Rs.5,00,000/ (Rupees Five Lakhs Only) and therefore, the amount of Rs.10,00,000/ (Rupees Ten Lakhs Only) was forfeited.
5. Plaintiff filed replication reiterating the facts mentioned in the plaint and denying the contrary allegations of the written statement.
6. Following order was passed on 05.12.2014:
"05.12.2014 Present: Sh. Ankan Suri, Advocate for plaintiff.
Sh. Z. A. Siddiqui, Advocate for defendant.
An application under Order 8 Rule 1A CPC for placing document on record filed on behalf of defendants.
It is submitted by learned Sh. Siddiqui that some documents relied upon by defendants in the written statement, could not be filed because the same were not received by learned counsel for defendant at the time of filing of written statement.
The issues are yet to be framed in the case and no prejudice which cannot be compensated C. S. No.183/14 Page 3 of 10 Air Commodore Manoj Kumar Dixit vs. Rajiv Gandhi Aviation Academy & Y. P. Reddy by way of cost is going to be caused to either of the parties. Accordingly, application is allowed subject to cost of Rs.5000/ in favour of plaintiffs.
There is another application under Order 39 Rule 10 CPC pending for disposal.
Arguments heard.
By way of present application, learned counsel for plaintiff has prayed for direction to defendants to deposit an amount of Rs.15 lacs which was allegedly taken by defendants from the plaintiff.
It is submitted by learned Sh. Siddiqui that defendant has never admitted that they took an amount of Rs.15 lacs from plaintiff. He further submits that defendant could not arrange for the course for plaintiff because of the inaction/non payment of fees by him. He further submits that defendant is not holding even a single penny as a trustee to plaintiff or on behalf of plaintiff. Learned Sh. Siddiqui further submits that plaintiff did not even return back the signed copy of the standard agreement which was sent to him by the defendant which was a prerequisite for joining the course.
Arguments considered.
It is rightly submitted by learned Sh.
Siddiqui that the present application is not maintainable so far as amount of Rs.15 lacs is concerned because the defendant has not admitted the payment of Rs.15 lacs by plaintiff.
It is however, important to mention here that defendant has admitted the receipt of Rs. 10 lacs from the plaintiff. As per the case of parties, the defendant was supposed to conduct a training course for the daughter of plaintiff subject to payment of Rs.15 lacs. According to plaintiff, he had paid the entire amount to defendant. According to defendant, plaintiff paid only Rs. 10 lacs to the defendant and did not pay the balance C. S. No.183/14 Page 4 of 10 Air Commodore Manoj Kumar Dixit vs. Rajiv Gandhi Aviation Academy & Y. P. Reddy amount.
Defendant submits that plaintiff did not fulfill the conditions for the course including signing of agreement as well as payment of complete course fees and therefore the amount of Rs.10 lacs paid by him also stands forfeited. Learned Sh. Siddqui also submits that for invocation of the order 39 Rule 10 CPC, there must be categorical admission on the part of defendant that he holds some amount as trustee to another party on behalf of other party.
Learned Sh. Ankan has relied upon the judgment Jay Container Services Co. Pvt. Ltd. vs. S. D. S. Shipping Pvt. Ltd & Ors, Appeal No. 1070 of 2000 in Notice of Motion No.670 of 2000 in Suit No.4751 of 1997, wherein the Hon'ble High Court of Bombay held as under : "we are not in a position to appreciate as to how these observations help Mr. Kapadia to advance his submissions since there is no provision prohibiting the prayer for deposit. In the present case, we are in agreement with the submission of Mr. Rambhadran that prima facie there is no clear denial of the claim of the appellants. The entire stand is an evasive one and at times in the nature of an afterthough. In the reply to the motion also, it is submitted that the relief claimed could not be granted at an interim stage meaning thereby that until the suit is heard and decided, nothing could be done. It is not possible to accept this submission of Mr. Kapadia, particularly in view of the recent changes brought about in the Civil Procedure Code so that there is an early disposal of the proceedings. In Uttam Singh's case (supra) where prima facie there was hardly any defence, the Apex Court has gone to the extent that the decree on admission could be granted in a regular suit. In the present case, the only request made by the appellants is that the C. S. No.183/14 Page 5 of 10 Air Commodore Manoj Kumar Dixit vs. Rajiv Gandhi Aviation Academy & Y. P. Reddy arrears be deposited in the court. It may well happen that at the end of the litigation, the appeallants may succeed and there would be variety of difficulties in recovering the amount. Where the position is prima facie so clear, in our view, the interest of the appellants (original plaintiffs) is required to be safeguarded. In our view, the learned Single Judge has erred in rejecting the prayer for deposit of the arrears."
If the submissions of learned Sh.
Siddiqui about the non signing of contract by plaintiff are taken on its face value, the money received by the defendant, is without any contract. The payment of said amount may be covered under Chapter 5 of the Indican Contract Act, 1972. Without going into detailed merits of the case, at this stage, the court is of the opinion that in order to avoid the variety of difficulties which may be faced by plaintiff for recovery of amount, and in view of the ratio laid down in Jay Container Services Co. Pvt. Ltd. vs. S. D. S. Shipping Pvt. Ltd & Ors (Supra), the application in hand deserves to be allowed partially.
Accordingly, defendant is directed to deposit an amount of Rs.10 lacs in the court by way of an auto renewable FDR of one year duration within four weeks from today.
Matter be put up for documents admission/denial and framing of issues on 20.01.2015.
(Ajay Pandey) ADJ05/South/Saket 05.12.2014"
7. Thereafter on 20.01.2015, Learned counsel for defendant appeared and sought time for compliance of order dated 05.12.2014. On request of Learned counsel for defendant, time for C. S. No.183/14 Page 6 of 10 Air Commodore Manoj Kumar Dixit vs. Rajiv Gandhi Aviation Academy & Y. P. Reddy depositing the amount as per order 05.12.2014 was further extended for a week w.e.f 20.01.2015. Thereafter, defendant stopped appearing. No amount in compliance of the order dated 05.12.2014 was deposited.
8. Detailed order was passed on 05.12.2014 considering the rival contentions of the parties. It is very important to mention here that defendant was directed to deposit the amount of Rs. 10,00,000/ (Rupees Ten Lakhs Only) as it was admitted by the defendant being received from the plaintiff. There was no averment in the written statement that the defendant did any positive act or incur any expense in arranging the typerating course for the plaintiff.
9. Learned Sh. Ankan has relied upon judgment passed by Hon'ble High Court of Delhi in M/s Pharma Ventures (International) Pvt. Ltd v. M/s Senior Media Ltd IA No. 8048/2007 in CS (OS) 1878/2006 on 06.11.2007 and upon V. P. Suri And Others v. Union of India 2001 III AD (Delhi) 669.
10. In both these case, the court directed the defendant lessee/licencee to make payment of arrears of rent. When the said payment was not made despite opportunities, the court directed the defence to be struck off. While passing the judgment in the case of V. P. Suri And Others vs. Union of India (supra), the court held that when the direction has been issued by the court, the court is not powerless to see that such direction is obeyed by the defendant. The only way the same can be got obeyed is to make the order punitive under the inherent powers of the court that on C. S. No.183/14 Page 7 of 10 Air Commodore Manoj Kumar Dixit vs. Rajiv Gandhi Aviation Academy & Y. P. Reddy failure to comply with the same by a particular date the right of the defendant to continue contesting the suit shall stand struck off.
11. Considering the facts and circumstances and the ratio laid down in the judgments relied upon by Learned counsel for the plaintiff, defence of the defendant is struck off.
12. Learned counsel for plaintiff has submitted that plaint is supported with the affidavits of both the plaintiffs and the plaintiffs are entitled for an outright decree.
13. Plaint and documents perused.
14. In Pyare Lal Taheem & Another v. Mohan Murti Shandilya 2013 (202) DLT 365, Hon'ble High Court of Delhi, while applying Order XV A CPC against a tenant who failed to pay the rent during pendency of suit, has held:
"19. Order 15A of the CPC, being a Delhi amendment, is unambiguous in its terms that where a Defendant who is required to deposit rent as per the directions of Court, fails to do so his defence is liable to be struck off. It gives statutory expression to the law earlier explained in several decisions. In M/s. Jwala Pershad Ashok Kumar Chopra HUF v. M/s. Nath Tubes Pvt. Ltd., AIR 1994 Del 317, the Court held that it can, in a case of this kind, in fair exercise of its judicial discretion, order for deposit of money pending the decision of the suit. In Erum Travels v. Kanwar Rani, 69 (1997) DLT 567, the Court considered the permissibility of striking off the defence for nonpayment of rent/damages under Section 151 and Order XXXIX Rule 10 CPC. The Court held "The combined effect of Order XII Rule 1 and Order XXXIX Rule 10 of the Code of Civil Procedure is that a Court can, in a case of this C. S. No.183/14 Page 8 of 10 Air Commodore Manoj Kumar Dixit vs. Rajiv Gandhi Aviation Academy & Y. P. Reddy kind, in fair exercise of its judicial discretion order for deposit of money pending decision of a suit. Surely, the provisions of Section 151 of the Code of Civil Procedure can be invited in aid to cover all such cases as are analogous to these principles."
15. In that suit, after striking off the defence of the defendant, Hon'ble High Court of Delhi outrightly decreed the suit of the plaintiff for arrears of rent. In that suit, the possession of the premises was already handed over by the defendant to the plaintiff.
16. Though, in the present case, the directions dated 05.12.2014 were passed under Order 39 Rule 10 CPC and not under Order 15(A) CPC but the substance of both the provisions of law is the payment of the money which was admitted or was due from one party to another. The Hon'ble High Court of Delhi in such cases filed outright decree. Hence, the court is of the opinion that the suit of the plaintiff may be examined whether an outright decree can be passed in his favour or not.
17. On perusal of plaint, the court is satisfied that there is no inherent contradiction in the plaint which can disentitle the plaintiff to seek outright decree. The entire pleadings in the plaint appear to be in sequence and the probable course of action by an aspirant of a training course. Substantial facts were even admitted by the defendant in written statement.
18. Accordingly, it appears to be rightly submitted by Sh. Ankan Suri that the plaintiff is entitled to an outright decree.
C. S. No.183/14 Page 9 of 10Air Commodore Manoj Kumar Dixit vs. Rajiv Gandhi Aviation Academy & Y. P. Reddy
19. Considering that the defendants have projected themselves to be in the business of training to the plaintiff and considering that amount was paid in February and March, 2012 and the present suit has been filed by the plaintiffs on 11.03.2014 and for the intervening period i.e. from the payment made to the defendants till the filing of the suit, plaintiffs have not claimed any interest, the court is of the opinion that the pendentelite interest @ 18% per annum as claimed by the plaintiff is justified. However, considering that the plaintiffs did not enter into the commercial transaction, future interest is required to be paid only @ 6% per annum.
20. Accordingly, suit of the plaintiff is decreed with costs for an amount of Rs.15,00,000/ (Rupees Fifteen Lakhs Only) with pendentelite interest @ 18% per annum and future interest @ 6% per annum.
21. Decree sheet be prepared accordingly subject to payment of deficient court fee, if any. File be consigned to record room.
Announced in the open (AJAY PANDEY)
Court on 06.04.2015 ADJ05 (SOUTH DISTRICT)
(Judgment contains 10 pages) SAKET COURTS, NEW DELHI
C. S. No.183/14 Page 10 of 10