Delhi District Court
Shri Vinay Mehra vs Shri Somnath on 7 October, 2013
CS No. 711/08
IN THE COURT OF JITENDRA KUMAR MISHRA ADDITIONAL
DISTRICT JUDGE-Central-9, DELHI.
Civil Suit No.: 711/08.
Unique Case ID No.02401C0300092003.
01. Shri Vinay Mehra
Director
M/s. Mehrasons Gold & Diamond Limited,
S-555, Greater Kailash Part II,
New Dehi.
02. Sh.Vinay Mehra
S/o. Sh. C. L. Mehra,
S-555, Greater Kailash Part II,
New Delhi. .....Plaintiffs
Versus
01. Shri Somnath
S/o. Shri Pishori Lal
R/o. W.E.A. 18/18,
Karol Bagh,
New Delhi - 110001.
02. State through Government
of N.C.T. of Delhi. ...Defendants
Date of institution of the suit : 05.03.2003.
Reserved for judgment on : 07.10.2013.
Date of pronouncement of judgment : 07.10.2013.
SUIT FOR RECOVERY OF RS. 8,62,400/- (RUPEES EIGHT LAKHS
SIXTY TWO THOUSAND FOUR HUNDRED ONLY).
JUDGMENT
01. This is a suit filed by the plaintiff for recovery of Rs.8,62,400/- along with pendente-lite and future interest.
Shri Vinay Mehra & Anr. Vs. Sh. Somnath & Anr. 1 CS No. 711/0802. Brief facts of the case are :-
(a) Plaintiff no.1 is the director of M/s. Mehrasons Gold & Diamond Limited duly registered under Companies Act 1956. Sh. Vinay Mehra also impleaded himself as plaintiff no.2 in his personal capacity.
Defendant no.1 is also in the same business carrying on his business by the name of M/s. Kishore Lal & Sons at Naiwala, Karol Bagh, New Delhi. Plaintiff no.2 is victim of the offences committed by defendant no.1 and plaintiff no.2 transacted with defendant no.1 for the diamonds. Plaintiff no.2 has been duly authorised to file present suit on behalf of M/s. Mehrasons Gold & Diamonds Limited through Board resolution of the Board of Directors dated 10.02.2003. No relief has been claimed against defendant no.2.
(b) On 01.07.1999 plaintiff no.2 bought a diamond weighing 2.21 carats from defendant no.1 and paid Rs.2.25 lacs vide cheque no.0892111 dated 01.07.1999 drawn on Punjab National Bank.
(c) Plaintiff no.2 again bought two diamonds weighing 3.4 carats each from defendant no.1. Payment of Rs.3.35 lacs in respect of said diamonds was made in cash through personal account of the father of plaintiff no.2 which was transacting with defendant no.1 on behalf of plaintiff no.1 company.
(d) To the utter shock and surprise of plaintiff no.2, on or around 29.10.1999, the investigating agency Crime Branch, Delhi, summoned plaintiff no.2 regarding purchase of three diamonds from defendant no.1 Plaintiff no.2 was informed through the police that the diamonds which were sold to him by defendant no.1 were of somebody else. Plaintiff no.2 was further informed that defendant no. 1 had cheated some persons while replacing real diamonds from the rings with worthless American Zircons and sold the real diamonds to plaintiff no.2 and plaintiff no.2 bought the same on behalf of M/s.
Shri Vinay Mehra & Anr. Vs. Sh. Somnath & Anr. 2 CS No. 711/08Mehrasons Gold & Diamond Ltd. in capacity of its director.
(e) Plaintiff no.2 fully cooperated with police and gave in writing the details of payment made to defendant no.1. Plaintiff no.2 showed his bonafide and even handed over the said three diamonds to the police which were handed over to the original owner one Sh. C. M. Jain on police Superdari. Plaintiff no.2 joined the investigations conducted by crime branch and kept on handing over requisite documents like Statement of Bank account of his father, the details of cheque through which payment of Rs.2,25,000/- was made to defendant no.1 and further valuation report dated 27.02.2000 by one Sh. Baldev Singh Narang. By the month of March 2000, plaintiff no.2 furnished all the documents required by the investigating agency.
(f) During this time around February-March, 2000 plaintiff no.2 was informed about the entire modus-operandi of defendant no.1 and the entire development in the matter and plaintiff no.2 brought to the knowledge of plaintiff no.1's company the entire facts and circumstances of the case. It came to the knowledge of plaintiff no.2 that vide FIR dated 09.09.1999 one Sh. C. M. Jain alleged that defendant no.1 by a unique modus-operandi first gained the faith of his wife and daughter-in-law and later, in the month of June-July 1999 replaced three real diamonds from ear rings and ring by putting American Zircons into them and therefore, it was alleged that defendant no.1 had cheated the wife of said Sh. C. M. Jain. It was further learnt that defendant no.1 was arrested around 25.10.1999 and he made his disclosure statement wherein it was stated by defendant no.1 that he sold the said three diamonds to the company through plaintiff no.2. It was also learnt by plaintiff no.2 that police had already recovered Rs.2 lacs from the house of defendant no.1 during investigation which formed part of the total amount of Rs.5.6 lacs which were paid by plaintiff no.2 on behalf of M/s. Mehrasons Shri Vinay Mehra & Anr. Vs. Sh. Somnath & Anr. 3 CS No. 711/08 Gold & Diamonds Ltd. to defendant no.1.
(g) Plaintiff no.2 after coming to know about the entire incident realised that it was the plaintiffs who were the greatest sufferer in the entire incident. The said company through plaintiff no.2 bought the said three diamond rings bonafide and as per the market rate, paid the entire amount of Rs.5.6 lakhs to defendant no.1. In order to cooperate with the Investigating Agency, the plaintiffs even returned said diamonds to police which were released to Sh. C. M. Jain on police superdari.
(h) Plaintiff no.2 on behalf of the said company vide application dated 27.04.2000 requested and prayed to the trial court for release of Rs. 2 lacs on superdari which were recovered by the crime branch police from defendant no.1 and which was the part of Rs.5.60 lacs which the plaintiffs had paid to defendant no.1. Defendant no.1 also filed counter application for release of Rs. 2 lacs on superdari in his favour. The learned ACMM vide order dated 04.09.2000 dismissed both the applications after making observations that challan had been filed in the said matter and therefore, applications have become infructuous.
(i) It was learn by the plaintiffs that defendant no.1 again filed an application for release Rs.2 lacs on superdari which was dismissed vide order dated 12.03.2001.
(j) In the first week of May 2001, a summon for appearance for 07.05.2001 by plaintiff no.2 was received in the said FIR case. On inspection, it was revealed to plaintiff no.2 that in the challan filed by the police, name of plaintiff no.2 appears in Column no.2 though there was no allegation against the plaintiffs in the said challan regarding the offences committed by defendant no.1. Plaintiff no.2 had to seek bail and put his appearance before the ld. Trial Court.
Shri Vinay Mehra & Anr. Vs. Sh. Somnath & Anr. 4 CS No. 711/0803. Written statement filed by defendant no.1 wherein defendant no.1 admitted the details of the cheque for payment of Rs.2.25 lacs made to defendant no.1. Valuation report dated 27.02.2000 by Sh. Baldev Singh Narang (Govt. approved Valuer) is also admitted. It is further stated that the entire incident as stated in the plaint was arranged to extract money from innocent defendant no.1. It is further admitted that defendant no.1 was arrested around 25.10.1999 and he made a disclosure statement due to threat and pressure of police. It is further admitted that plaintiff no.2 on behalf of company of plaintiff no.1 vide application dated 27.04.2000 requested and prayed to the trial court for release of Rs.2 lacs but the same was not considered by the court. Dismissal of application dated 04.09.2000 is also admitted by defendant no.1. Rest of the contents of the plaint are denied by defendant no.1.
04. Replication to the written statement of defendant no.1 filed wherein the averments made in the written statement are denied and the contents of the plaint are reiterated and affirmed.
05. Defendant no.2 also filed written statement wherein objection of non-issue of notice under Section 140 of D.P. Act has been raised by defendant no.2. Objections for mis-joinder/ non-joinder of necessary parties is also taken. It is further objected that the suit is barred by time. It is further stated that Sh. C. M. Jain is a necessary party to the present suit and the plaintiff ought to have joined him as a necessary party. It is admitted that Sh. C. M. Jain filed a complaint for the allegation of cheating by defendant no.1. Registration of case vide FIR No. 278 dated 09.09.1999 under Section 420/120B IPC is also admitted. It is further admitted that on 29.10.1999 the plaintiff presented one photocopy of purchase voucher dated 01.07.1999 of Mehrasons and three diamonds to S.I. Mehak Singh IO of the case which were seized through separate Seizure Memo and were handed Shri Vinay Mehra & Anr. Vs. Sh. Somnath & Anr. 5 CS No. 711/08 over to the complainant Sh. C. M. Jain on superdari by the Investigating Officer on the order of Asstt. Commissioner of Police, Special Team, Crime Branch, Delhi.
06. My ld. predecessor by order dated 11.01.2007 framed following issues :
1. Whether the suit of the plaintiff is not properly valued for the purpose of Court fees?OPD1.
2. Whether the suit of plaintiff is not maintainable in view of preliminary objection no.3 and 4 of written statement filed by defendant no.2? OPD2.
3. Whether the suit of plaintiff is barred by time? OPD2.
4. Whether the suit of plaintiff is bad for non joinder/misjoinder of the necessary parties?OPD2.
5. Whether the plaintiff is entitled for money decree of Rs.
8,62,400/- against the defendants along with pendente lite and future interest as prayed in the plaint?OPP.
6. Relief.
07. To prove its case the plaintiff examined himself as PW-1 who tendered his evidence by way of affidavit Ex.PW1/A. PW-1 further relied upon certified copies of Ex.PW1/1 to Ex.PW1/10 (objected to and subject to mode of proof). He was cross examined by counsels for both the parties. Plaintiff further examined Sh. Satender Singh, chartered accountant as PW2. He was also cross examined by ld. counsel for the parties and thereafter, by order dated 02.03.2010 my Ld. predecessor closed P.E. In defence defendant no.1 examined himself as DW1 who tendered his affidavit by way of affidavit Ex.DW1/A. He was cross examined by ld. counsel for the plaintiff and thereafter, by separate statement dated 20.10.2011 ld. counsel for defendant no.1 closed D.E and thereafter, my ld.
Shri Vinay Mehra & Anr. Vs. Sh. Somnath & Anr. 6 CS No. 711/08predecessor by order dated 20.10.2011 closed D.E.
08. I have gone through the entire records of the case including pleadings of the parties, evidence led by the parties and documents proved by the parties during evidence. My issue wise findings are :-
Issue No.1.
Whether the suit of plaintiff is not properly valued for the purpose of Court fees? OPD1.
09. Onus to prove issue no.1 was upon defendant no.1. The plaintiff has valued the suit in para 15 of the plaint wherein the plaintiff has claimed the relief of Rs.8,62,400/- as money decree and accordingly court fees of Rs.10,800/- has been affixed. In Ex.DW1/A, defendant no.1 has not led any evidence to prove this issue and therefore, issue no.1 is answered in favour of the plaintiff to the effect that the plaintiff has properly valued the suit for the purpose of court fees.
Issue No.2.
Whether the suit of plaintiff is not maintainable in view of preliminary objection no.3 and 4 of written statement filed by defendant no.2 ? OPD2.
10. Onus to prove issue no.2 was upon defendant no.2. Preliminary objections no.3 and 4 taken in his written statement is:
"3. That no notice u/s. 140 of D.P. Act has been served/given by the plaintiff to the replying Shri Vinay Mehra & Anr. Vs. Sh. Somnath & Anr. 7 CS No. 711/08 defendant before filing the present suit. In the absence of the above said mandatory notice under section 140 of D. P. Act, the suit of the plaintiff is not maintainable from its inception.
4. That even otherwise no notice u/s 80 C.P.C. has been given/served by the plaintiff upon the replying defendant before filing the present suit, hence, in these circumstances the suit of the plaintiff is not maintainable in the eyes of law and the same be dismissed."
11. In para 1 of the plaint it is stated by plaintiff that defendant no.2 is merely a proforma party and no relief has been claimed against it. Therefore, since the plaintiff has not claimed any relief against defendant no. 2 therefore, the suit of the plaintiff is maintainable and thus issue no.2 is answered in favour of the plaintiff.
Issue No.3.
Whether the suit of plaintiff is barred by time?OPD2.
12. Onus to prove issue no.3 was upon defendant no.2. The present suit was instituted by plaintiff on 05.03.2003. In Ex.PW1/A in para 6 it is stated by PW-1 that on 01.07.1999 defendant no.2 bought a diamond from defendant no.1 and paid the consideration through cheque. On and around the same period, plaintiff no.2 again bought two diamonds and made the payment in respect of those diamonds. It is further stated in para 5 that on and around 29.10.1999 Crime Branch Delhi summoned the plaintiff regarding purchase of those three diamonds from defendant no.1 then it was informed that the diamonds which were sold to him by defendant no.1 Shri Vinay Mehra & Anr. Vs. Sh. Somnath & Anr. 8 CS No. 711/08 were of somebody else and defendant no.1 had cheated some persons by replacing real diamonds from the rings. Thus, the plaintiff came to know about the failure of transaction in the year 1999. It is the case of the plaintiff that after complete investigation, in the first week of May 2001 he inspected the court file and it was revealed that in the challan filed by police on 13.09.2000 his name was appeared in Column no.2 though there was no allegation against the plaintiffs in the said challan. The plaintiffs submitted that cause of action arose on 07.05.2001 when plaintiff no.2 was summoned before the trial court and came to know about the filing of challan on 13.09.2000. It is the case of the plaintiff that for this reason, present suit instituted on 05.03.2003 and thus, is well within the limitation. During arguments, ld.counsel for the plaintiff heavily relied upon Article 47 of Limitation Act 1963. She submits that since she came to know about the filing of the challan in the year 2001, therefore the suit is well within the limitation. In my considered opinion, I do not find any merit in the arguments raised by ld. counsel for the plaintiff. In the present case the plaintiff in the year 1999 came to know about the transaction when the plaintiff had purchased diamonds which were obtained by defendant no.1 through fraud and therefore the cause of action arose to file the present suit in the year 1999 and the limitation starts in the year 1999. Thus, the transaction entered into by the plaintiffs had failed in the year 1999.
13. In para 6 of Harekrushna Patnaik and another Vs. Damodar Biswal and others AIR 1978 ORISSA 118(1) Hon'ble High Court held :
"6. In order to attract the application of Art. 47 of the Limitation Act, 1963 three ingredients must be established. Firstly, the suit must be for recovery of money which has been paid by the plaintiff to the defendant; Secondly, such money must have been paid upon a consideration which was in Shri Vinay Mehra & Anr. Vs. Sh. Somnath & Anr. 9 CS No. 711/08 existence at the time of the payment, and thirdly, the consideration should have afterwards failed. It is not disputed in this case that the plaintiffs paid money to defendant No.2 on 7-11-1962, upon existing consideration, namely, the consideration for delivery of the property sold. Consideration which existed at the time when the money was paid may later fail for variety of reasons. It may fail because the vendor commits breach of the contract in pursuance of which the money was paid. Where the consideration consists of promise to do something for the purchaser and the promise is repudiated there would both occur breach of contract and failure of consideration. The date of failure of consideration in such cases would be the same as the date of breach and the purchaser's right to claim refund of money arises at that point of time. Under S. 55 (1) (f) of the Transfer of Property Act the vendor is bound to deliver possession of the land to the purchaser and when the vendor fails to deliver such possession there is breach of contract and immediate failure of consideration. If there was a failure of consideration the purchaser had a right to sue at that time to recover back his purchase money................"
14. When a contract becomes not enforceable either it being ab- initio void or voidable then in such a situation any person who has received any advantage under such agreement or contract is bound under law to Shri Vinay Mehra & Anr. Vs. Sh. Somnath & Anr. 10 CS No. 711/08 refund the consideration or to make compensation for it to the person from whom he received it provided a suit for recovery of it is filed within three years limitation from the date of failure of such agreement or contract. This court relies upon Smt. Amri Devi and etc. Vs. Ridmal and others, AIR 1998 RAJASTHAN 25 and is of the considered opinion that plaintiff came to know about the failure of transaction in the year 1999 when officials of Crime Branch came to him and informed him about the sale of three diamonds by defendant no.1 which were obtained by him through fraud. Therefore, the suit could be filed by the plaintiff within three years from the day when such fact came to the knowledge of the plaintiffs. However, present suit has been filed by the plaintiff beyond the said period of limitation and the arguments of ld. counsel for the plaintiffs that the limitation would start from 07.05.2001 is not going to help the plaintiff as the charge sheet filed by the investigating agency in the year 2000 and after inspection of the file when the plaintiff came to know about the filing of said charge sheet is merely a final report submitted by investigating agency but definitely those diamonds were seized by the investigating agency itself in the year 1999 from the plaintiff. Therefore, in my considered opinion this suit is barred by limitation and this issue is being answered against the plaintiffs.
Issue No.4.
Whether the suit of plaintiff is bad for non joinder/ misjoinder of the necessary parties?OPD2.
15. Onus to prove this issue was upon defendant no.2. Defendant no.2 is Govt. of NCT of Delhi. It is the objection raised by defendant no.2 in para 5 of preliminary objection of the written statement that defendant no.2 is not a necessary party to the present suit. In replication filed by the plaintiff to the written statement of defendant no.2 it is stated by the plaintiff Shri Vinay Mehra & Anr. Vs. Sh. Somnath & Anr. 11 CS No. 711/08 that the subject matter of the present suit is related to the FIR No. 278/1999 therefore, defendant no.2 is a necessary party to the suit. I do not agree with the contention raised by the plaintiffs in as much as transaction took place between plaintiff and defendant no.1, defendant no.2 was not a party at all to the said transaction entered into between the plaintiffs and defendant no.1. Thus, defendant no.2 was stranger to the contract entered between the plaintiff and defendant no.1. Moreover, the plaintiff is seeking recovery of the amount regarding the misdeeds of defendant no.1 along with interest and in such circumstances, I am of the considered view that defendant no.2 is not a necessary party to the present suit and accordingly, this issue is being answered against the plaintiffs.
Issue No.5 Whether the plaintiff is entitled for money decree of Rs. 8,62,400/- against the defendants along with pendente lite and future interest as prayed in the plaint?OPP.
16. Onus to prove issue no.5 was upon the plaintiffs. In written statement filed by defendant no.1 it is stated that receipt of Rs.3.35 lacs was prepared by the plaintiff in collusion with the police. Thus, it is admitted case of defendant no.1 that he had executed a receipt of Rs.3.35 lacs. It is also not denied by defendant no.1 that the plaintiff bought the diamonds of Rs.2.25 lacs from defendant no.1 and the payment was made through cheque. During cross examination, a suggestion was given by defendant no.1 to PW1 that the plaintiff did not at all purchase the diamonds from defendant no.1 and for the said reason the entries in respect of purchase of such diamonds were not entered in the books of account and the suggestion was denied. This court observed that this suggestion is contrary to the stand taken by defendant no.1 in the written statement. In written statement Shri Vinay Mehra & Anr. Vs. Sh. Somnath & Anr. 12 CS No. 711/08 it is admitted by defendant no.1 in para 2 on merits that defendant no.1 had sold plaintiff no.2 on 01.07.1999 diamonds weighing 2.21 carats and he had received Rs.2.25 lacs through cheque. It is further suggested by defendant no.1 that plaintiff did not purchase the diamonds weighing 2.21 carats from defendant no.,1 and the suggestion was denied. Again the suggestion given is contrary to the stand taken by defendant no.1 in his written statement. Thus, the plaintiff is able to prove that diamond of 2.21 carat was sold by defendant no.1 to the plaintiff on 01.07.1999. However, the plaintiff is not successfully able to prove that defendant no.1 had sold diamonds of Rs.3.35 lacs to the plaintiff. No date of such sale has been mentioned in the plaint. Even during cross examination PW-1 could not bring any such document on the record for such a transaction. During cross examination when a question was put to PW-1 that whether he has placed on the record or can show any corresponding entry reflecting that the amount of Rs.3.35 lacs was taken by him from his father for payment to defendant no.1 then he had given the answer that his father Sh. C. L. Mehra was also Director of the same company and the money was paid to defendant no.1 after he took the same from his father and the same was reflected in his books of account. However, neither such books of account nor Sh. C. L. Mehra has appeared as a witness and therefore, plaintiff is not able to prove that he had paid Rs. 3.35 lacs to defendant no.1. Moreover, as already observed, no date for such a transaction of Rs.3.35 lacs has been disclosed either in plaint or in Ex.PW1/A. Therefore, the plaintiff has successfully proved that he had paid Rs.2.25 lacs to defendant no.1 for purchase of diamond of 2.21 carats but the plaintiff is not able to prove that he had paid Rs.3.35 lacs to defendant no.1. Therefore, plaintiff would have been entitled for recovery of Rs.2.25 lacs along with interest from defendant no.1 but since during disposal of issue no.3 this court has already observed that the suit is barred by limitation therefore, this issue is also answered against the plaintiff.
Shri Vinay Mehra & Anr. Vs. Sh. Somnath & Anr. 13 CS No. 711/08Issue no.6.
Relief.
17. In view of the observations made herein-above, the suit of the plaintiff is dismissed as barred by limitation. There is no order of costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the Open Court today on 07.10.2013 (Jitendra Kumar Mishra) ADJ-09, Central, Tis Hazari Courts, Delhi 07.10.2013 Shri Vinay Mehra & Anr. Vs. Sh. Somnath & Anr. 14 CS No. 711/08 CS No.711/08 07.10.2013 Present: Ms. Indira Marla, ld. counsel for the plaintiff.
None for the defendants.
Arguments on clarifications heard.
Now to come up for order at 04:00 p.m (Jitendra Kumar Mishra) ADJ-09, Central, Tis Hazari Courts, Delhi 07.10.2013 At 04:30 p.m. Present: None.
Vide my separate judgment announced in the open court today, the suit of the plaintiff is dismissed as barred by limitation. There is no order of costs.
Decree Sheet be prepared accordingly.
File be consigned to Record Room.
(Jitendra Kumar Mishra) ADJ-09, Central, Tis Hazari Courts, Delhi 07.10.2013 Shri Vinay Mehra & Anr. Vs. Sh. Somnath & Anr. 15