Delhi District Court
Also At vs Barnawa Agro Industries Ltd on 17 January, 2019
IN THE COURT OF SH. SANJEEV KUMARI, ADDITIONAL DISTRICT JUDGE12, TIS
HAZARI COURTS, DELHI
CS No. 15369/16
M/s. Radiant Buildtech (P) Ltd.,
Registered office at :
301, Chanana Complex, 2215,
Gurudwara Road, Karol Bagh,
New Delhi.
Also at :
102, Nehru Complex,
Main Patparganj Road,
Pandav Nagar, Delhi - 110092.
Through its Authorized Representative
Sh. Diwakar Vaish. .... Plaintiff.
Versus
Barnawa Agro Industries Ltd.,
Through its Principal Officer / Managing Director.
H. O. E43, Mayur Vihar PhaseII,
New Delhi.
Also at :
145, BC Lines, Meerut Cantt.,
Meerut, U.P. ..... Defendant.
Date of institution : 21.03.2009
Date of reserving Judgment : 07.01.2019
Date of decision : 17.01.2019
SUIT FOR RECOVERY OF RS. 6,57,500/.
Suit No. 15369/16 Page No. 1 of 20
M/s. Radiant Buildtech (P) Ltd. Vs. Barnawa Agro Industries Ltd.
JUDGMENT
Vide this Judgment, I shall decide the suit for recovery of Rs. 6,57,500/ filed by the plaintiff.
2. Brief facts as stated in the plaint are that the plaintiff is a company dealing in the selling and marketing of real estate and plaint has been filed through his authorized representative Sh. Diwakar Vaish. Defendant is also a company duly incorporated under the Companies Act. In the month of May, 2007, the defendant through its Director Sh. Karan Vir Singh approached the plaintiff at its Karol Bagh office for taking professional services of plaintiff in selling the plots of an industrial park named Haridwar Agro Industrial Food Park, Village Prahdpur, Tehsil Laxer, District Haridwar owned and possessed by the defendant and after settling all the terms and conditions, the plaintiff was appointed as sole marketing agent by the defendant. A memorandum of understanding (MOU) dated 14.5.2007 was duly executed and as per the said agreement / MOU, plaintiff company paid Rs. 5 lacs to the defendant as refundable security deposit vide DD No. 379794 dated 10.5.2007 drawn on Central Bank of India, Gole Market branch. Immediately after agreement / MOU, the plaintiff started to work on this project and within a short span of time got success in creating very good interest amongst investors but due to some serious lapses on the part of the defendant i.e. slow progress on the development work, non availability of Government approvals and nil media advertisement and sale promotions, the plaintiff company got difficulties and Suit No. 15369/16 Page No. 2 of 20 M/s. Radiant Buildtech (P) Ltd. Vs. Barnawa Agro Industries Ltd. contacted the Director of the defendant to know the reason for the lapses on part of the defendant. The defendant in a meeting held in November, 2007 admitted the aforesaid lapses and agreed to refund the security amount of Rs. 5 lacs along with interest @ 18% per annum from the date of receipt of money from the plaintiff company. In the month of November, 2007, the defendant company sent letter dated 12.11.2007 to the plaintiff and made offer to revalidate the MOU for another period of five years and also undertook to refund the aforesaid amount on 15.11.2008 along with interest @ 18% per annum. The plaintiff company accepted the offer in light of relationship, promise and mediation of friends.
On November, 2008, the defendant did not return the admitted amount therefore, the plaintiff company contacted the defendant but of no use hence, the plaintiff company sent a legal notice dated 22.12.2008 demanding a sum of Rs. 6,35,000/ along with interest @ 1.5% per month but the defendant failed to pay the said amount. Hence, present suit was filed.
3. Defendant company has contested the case by filing written statement in which the defendant has taken the preliminary objection the the suit of the plaintiff is based on alleged promissory note and admission letter which are forged and fabricated hence, the suit of the plaintiff is liable to be dismissed.
On merits, the defendant has admitted the case of the plaintiff to the extent that talks took place between the plaintiff and defendant for taking professional Suit No. 15369/16 Page No. 3 of 20 M/s. Radiant Buildtech (P) Ltd. Vs. Barnawa Agro Industries Ltd. services of the plaintiff in selling the plots of an industrial park named Haridwar Agro Industrial Food Park at Village Prahladpur, Haridwar and an MOU was entered and plaintiff paid an amount of Rs. 5 lacs. Further, it is denied that the plaintiff company had created any interest amongst investors. It is stated that the plaintiff company had not made any booking for the defendant and it is denied by them that any latches made on part of the defendant. It is stated that all the development works had been done, Government approvals had been obtained and defendant company had spent more than 5 lacs on advertisement but the plaintiff company, because of internal difficulty, could not perform its part of contract. Further, it is denied by the defendant that the defendant company admitted any latches on its part as there was no lapse on part of the defendant company and it has agreed to return the security amount of Rs. 5 lacs. Thus, the defendant has prayed for dismissal of the suit.
4. Replication was filed by the plaintiff to the written statement of the defendant wherein it has reiterated the averments as made in the plaint and has denied the contents of the written statement.
5. On the basis of the pleadings of the parties, the Ld. Predecessor has framed following issues vide order dated 3.8.2010 for consideration :
1. Whether the plaintiff is entitled for the decree of recover of Rs. 6,57,500/ from the defendant? OPP.
Suit No. 15369/16 Page No. 4 of 20 M/s. Radiant Buildtech (P) Ltd. Vs. Barnawa Agro Industries Ltd.
2. Whether plaintiff is entitled to the pendente lite and future interest as prayed? If yes, then at what rate and for what period? OPP.
3. Whether letter dated 12.11.2007 and the alleged promissory note are forged and fabricated documents, if so its effect?
OPD.
4. Relief.
6. In order to prove its case, plaintiff has examined its authorized representative Sh. Diwakar Vaish as PW1 and Sh. B.N. Srivastava, Handwriting expert as PW2.
7. On the other hand, defendant has examined handwriting expert Sh. Deepak Jain as DW1 and filed affidavit of Sh. Karan Vir Singh in evidence however, he has not appeared for tendering the same.
8. Arguments were heard from Sh. Rajeev Sharma Ld. Counsel for plaintiff whereas on behalf of defendant no argument were advanced before this court though written submission filed by defendant is on record.
9. I have considered the submissions and have gone through the case file. My issuewise findings are as follows :
10. Issue Nos. 1 and 3 are interconnected hence, I shall decide both these Suit No. 15369/16 Page No. 5 of 20 M/s. Radiant Buildtech (P) Ltd. Vs. Barnawa Agro Industries Ltd. issues simultaneously.
11. ISSUE NO.1 Whether the plaintiff is entitled for the decree of recover of Rs. 6,57,500/ from the defendant? OPP; AND ISSUE NOS. 3.
Whether letter dated 12.11.2007 and the alleged promissory note are forged and fabricated documents, if so its effect? OPD.
12. To prove its case plaintiff has examined Sh. Diwakar Vaish as PW1 who in his evidence led through affidavit Ex. PW1/A has deposed mostly on the same lines as he stated in the plaint. The same are not repeated here for the sake of brevity. In his cross examination, he has denied that the defendant company had obtained necessary Government approvals in regard to the project or that there was nil media advertisement by the defendant. He had not sent any letter to the defendant with regard to apprising them about slow work progress of project. It is admitted by them that there is no clause in PW1/3 that the advertisement is to be done in Delhi and Noida. It is stated that Ex. PW1/4 was sent by defendant by hand through a person whose name he does not remember. He denied the suggestion that he was having letter head of the defendant company in order to sell the plots of the defendant. He further denied the suggestion that he used the letterhead of the company to use the same for writing the letter dated Suit No. 15369/16 Page No. 6 of 20 M/s. Radiant Buildtech (P) Ltd. Vs. Barnawa Agro Industries Ltd. 12.11.2007 and have forged the signatures of Director of the defendant company. He denied the suggestion that Ex. PW1/5 was misused. He denied the suggestion that being a sole marketing agent, he had not fulfilled his part of duty and due to his negligence, plaintiff company, in order to escape his liability, filed the present suit.
13. Plaintiff also examined Sh. B.N. Srivastava, handwriting expert who proved his report as Ex. PW2/1. In his cross examination, he stated that in the affidavit, he has mentioned the date of alleged promissory note as 15.12.2008 whereas the document was executed on 14.11.2008. He stated that it is a typographical mistake. He admitted the suggestion that he has not mentioned any specific scientific instrument used by him. He denied the suggestion that Q1 and Q2 have not been written by the same person. He deposed that letter 'K' in Q2 is written in two operation. He made the observation that relative sizing and positioning of letter in para 'e' of his report and exact measurement are not mentioned as they are not required and same is observed with regard to para 'g'. He stated that the admitted signatures is a habit of writing letters more than one styles and the signatures do not show disguise. He stated that there is no instrument by which speed can be measured. The line quality defects are found in forged signatures.
14. On the other hand, defendant has examined Sh. Deepak Jain, handwriting expert as DW1 who he led his evidence by way of affidavit, Ex. DW1/A. In his affidavit, he deposed that he is handwriting and finger print expert and has proved his Suit No. 15369/16 Page No. 7 of 20 M/s. Radiant Buildtech (P) Ltd. Vs. Barnawa Agro Industries Ltd. report as Ex. DW1/B. The enlarged photograph of signatures as Ex. DW1/C. In his cross examination, he deposed that apart from specimen signatures, he also examined, some other signatures of the defendants available on court file. He denied the suggestion that he has not examined any other signatures of the defendant other than the specimen signatures. In response to the question how much variations will be there in signatures of a person signing on two separate documents executed at two different times, he answered that variation depends upon person to person and also on other factors such as time gap in between them and intention. He denied the suggestion that the details of the signatures mentioned by him in his report dated 6.3.2016 is not correct. He denied the suggestion that the question for expert opinion as mentioned in his affidavit was not given by him. He denied the suggestion that his report is false.
15. Defendant has also filed affidavit of Sh. Karan Vir Singh in evidence but he was not appeared in evidence hence, his affidavit cannot be read in evidence.
16. It is contended by the counsel for the defendant that from evidence of DW1, it is proved that the signatures on the document i.e. pronote and letter dated 12.11.2007 are not of Karan Vir Singh, director of the company therefore, the plaintiff has failed to prove that the defendant, vide letter Ex. PW1/4, has admitted that he will return the amount of Rs. 5 lacs to the plaintiff and has also executed a promissory note Ex. PW1/5 in this regard. He submits that since plaintiff has failed to carry out the work as per MOU entered into between the plaintiff company and defendant company therefore, Suit No. 15369/16 Page No. 8 of 20 M/s. Radiant Buildtech (P) Ltd. Vs. Barnawa Agro Industries Ltd. amount of Rs. 5 lacs was forfeited by the defendant company hence, defendant company is not liable to pay any amount to the plaintiff and the suit is liable to be dismissed.
17. I have considered the submissions and have gone through the record. The plaintiff has claimed recovery of Rs. 6,57,500/ on the basis of letter dated 12.11.2007 written by defendant Company Director Ex. PW1/4 acknowledging to refund Rs. 5,00,000/ with 18% interest per annum. In my view the onus to prove that the letter dated 12.11.2007 and promissory note dated 14.11.2008 was written by Karan Vir Singh, director of the defendant company should be upon plaintiff though same has been placed upon the defendant. As mentioned above, plaintiff through testimony of PW1 led through Ex. PW1/A has deposed that meeting took place between him and Karan Vir Singh in Karol Bagh office in the month of November, 2007 whereby Karan Vir Singh has admitted the lapse on their part and agreed to refund the security amount of Rs. 5 lacs with interest @ 18% per annum. Further, in the month of November, 2007, again Karan Vir Singh sent letter dated 12.11.2007 whereby he revalidate the MOU dated 14.5.2007 for another period of 5 years and undertook to refund the security amount by 15.11.2008 with interest @ 18% per annum from the date of its receipt. However, in his examination in chief, he has not mentioned by which mode the letter dated 12.11.2007 was sent by Karan Vir Singh though in his cross examination, he stated that the said letter was sent by defendant through a person whose name he does not remember. This does not inspire much confidence.
Suit No. 15369/16 Page No. 9 of 20
M/s. Radiant Buildtech (P) Ltd. Vs. Barnawa Agro Industries Ltd.
18. The suggestion given by the defendant that plaintiff company was in possession of letterhead of the defendant company which was required for the purpose of sale of plots and considering the nature of dealing between the plaintiff and defendant that plaintiff was selling the plots of the defendant, cannot be easily brush aside.. Furthermore, admittedly if the letter was given by hand to the plaintiff by the defendant, it seems that the same was not signed by Karan Vir Singh, Director of the defendant in presence of officer of plaintiff therefore, from the testimony of PW1, it is not proved that the same was signed by Director of the defendant, Karan Vir Singh. 19 As far as promissory note Ex. PW1/5 is concerned, PW1 in his testimony has deposed that in the month of November, 2008 the defendant's Director Karan Vir Singh again shown its intention to plaintiff to return amount of Rs. 5 lacs and for this, he executed promissory note dated 15.11.2008 in favour of the plaintiff company. In his examination in chief, he has not mentioned when and where the said promissory note was signed by Karan Vir Singh. He has also deposed that same was signed in his presence.
20. The defendant has given specific suggestion that the said promissory note is forged and that is why, there is no revenue stamp on the said promissory note. There appear to be force in the said defence of the defendant. it is known fact that revenue stamps are required to be affixed on promissory notes and usually cross signatures are done on the revenue stamp and remaining portion of promissory. Suit No. 15369/16 Page No. 10 of 20
M/s. Radiant Buildtech (P) Ltd. Vs. Barnawa Agro Industries Ltd.
21. Further more, I found substance in the defense of defendant that why defendant would agree on the condition that on the one hand defendant has extended the period of agreement between plaintiff and defedant for further 5 years on the other hand it agree to refund the security amount of Rs. 500.000/ that too with 18% interest whereas in original agreement between parties there was no clause of interest in original MOU/ agreement between the parties. In these circumstances, I do not find testimony of PW1 reliable that promissory note was signed by Karan Vir Singh, Director of the defendant.
22. As far as testimony of PW2 B.N. Srivastava, the handwriting expert is concerned, in his report Ex. PW2/1, he has mentioned that he examined disputed signatures of Karan Vir Singh on Ex. PW1/4 and Ex. PW1/5 and they have been marked as Q1 and Q2 and from the admitted signatures of Karan Vir Singh on written statement, affidavit both dated 5.10.2006 and vakalatnama, leave to defend affidavit Mark A1 to A14 and specimen signatures at Mark S1 to S5 and has given opinion that he find that Q1 and Q2 written by the writer who has written admitted signatures A1 to A14 and specimen signatures S1 to S5. The reason he has given for the same are that the disputed signatures and admitted signatures and specimen signatures have been written with medium speed and flow and medium skill and in the disputed, admitted and specimen signatures shown backward slant and the word "Karan" shows descending alignment and "Vir" and "Singh" shows ascending alignment. Further, the relative sizing, Suit No. 15369/16 Page No. 11 of 20 M/s. Radiant Buildtech (P) Ltd. Vs. Barnawa Agro Industries Ltd. positioning and spacing between the letters is found similar. The formation of the letters and their pictorial appearance is found similar in dispute, admitted and specimen signatures. The arrangement of letters, penscope are found similar in the readable letters in the disputed, admitted and specimen signatures. The angles are sharp and curves well made in disputed, admitted and specimen signatures.
23. On the other hand, as stated above, the defendant has also examined another handwriting expert, Sh. Deepak Jain who has given report that the disputed signatures Q1 and Q2 are not written by one whose admitted and specimen signatures are Mark A1 to A14 and S1 to S5. He has mentioned that disputed signatures are Q1 and Q2 and comparative signatures are A1 in written statement and supporting affidavit Mark A1 to Mark A4 and on leave to defend Mark A5 to A14 and specimen signatures Mark S1 to S5. He has given reasons for his opinion that the line quality of disputed signatures shows that it is full of defect of forgery such as unnatural pen lift, tremors of fraud, concealed retouching, hesitation on long or curved strokes which have been demonstrated on the enlarged photographs. It is further mentioned that the strokes of the disputed signatures are written in a slow, drawn and labored manner hence, the line quality of the disputed signatures can be graded as defective line quality amounting to forgery unlike smooth and fluent line quality of the comparative signatures and this fact alone is sufficient to conclude that the disputed signatures are the product of forgery whereas comparative signatures are written freely and smoothly as have been written in Suit No. 15369/16 Page No. 12 of 20 M/s. Radiant Buildtech (P) Ltd. Vs. Barnawa Agro Industries Ltd. normal course of life. Further, he has given opinion that pen pressure is light in the comparative signatures. The comparative signatures are written with superior executional skill than that of disputed signatures. The comparative signatures are written with finger cum wrist movement with fairy good speed of writing whereas the disputed signatures are written with finger movement with slow speed of writing. Their comparison shows unequal development of handwriting and also show differences in freedom, fluency and continuity in the motion of pen. The disputed signatures are written with ascending alignment of the writing line but the comparative signatures are written with descending alignment of writing line.
24. Thus, the two handwriting experts examined by respective parties have given reports according to the parties. In these circumstance, it would not be safe to rely upon the report of any of the party, hence I have to compare the same myself. On perusal of the enlarged photographs of questioned documents and admitted documents, I found that they appear to be different. Even signatures Q1 and Q2 itself appeared to be quiet different which can be seen from the word "Karan" as the word "Karan" has written in both signatures. In these circumstances, I do not find testimony of PW2 reliable that signatures on the questioned documents and on the admitted signatures are of one and same person. Therefore, in these circumstances, I held that plaintiff has failed to prove that document Ex. PW1/4 and Ex. PW1/5 are signed by the Director of defendant Karan Vir Singh. Hence I held that same are forged and fabricated document. Hence plaintiff Suit No. 15369/16 Page No. 13 of 20 M/s. Radiant Buildtech (P) Ltd. Vs. Barnawa Agro Industries Ltd. is not entitle to claim Rs. 5,00,000/ alongwith 18% interest on the basis of said documents. Issue no. 3 is decided against the plaintiff.
25. As far as the issue no.1 is concerned, from the pleadings of the parties and deposition of evidence of parties, certain undisputed facts emerged i.e. plaintiff and defendant have entered into a MOU dated 14.5.2007 whereby plaintiff has agreed to sell plots of the defendant company situated at Haridwar and plaintiff has given Rs. 5 lacs as security to the defendant.
26. For the sake of convenience, it would be appropriate to reproduce the terms and conditions of the MOU dated 14.5.2007 Ex. PW1/3 which are as follows : "1. That the party of the first part shall provide a complete layout plan for the industrial park with clear demarcation of the exact development plan with proposed plot numbers and sizes thereof.
2. That the party of the first part shall bear the cost of the media advertisement and sales promotion up to a sum of Rs. 25,00,000/ (Rupees Twenty Five Lacs Only) and shall provide with the application forms and all publicity and promotional material for this purpose.
3. That the party of the second part may appoint brokers and sub brokers and other network persons for the purpose of the marketing of the project and may pay commission to them as deem fit by it.
4. That all payments shall be collected from the buyers in the name of the party of the first part according to the various payment plans decided with mutual consent of both the parties.
5. That the entire responsibility towards development and delivery of Suit No. 15369/16 Page No. 14 of 20 M/s. Radiant Buildtech (P) Ltd. Vs. Barnawa Agro Industries Ltd. the industrial plots to the buyers shall be of the party of the first part and any disputes or liabilities with the buyers will be the sole responsibility of the party of the first part.
6. That consideration of the Marketing services provided by the party of the second part to the party of the first part shall be 20% of the total sale amount received by the party of the first part.
7. That the consideration of the party of the second part shall be released by the party of the first part on monthly basis by the 7th day of the next month in proportion to the total consideration received during the month as per schedule of payment from customers on pro rata basis.
8. That the party of the second part undertakes to book the entire area so underwritten within six months from the date of signing of this agreement. However, the period can be enhanced with the mutual consent of both the parties.
9. That the rate of booking of plots in the industrial part shall be Rs. 2,500/ per Sq. Yard and shall remain unchanged for a period of 90 days from the date of this agreement. However, after 90 days the same can be enhanced by the party of the first part by a percentage not more than 20% of the above decided price or otherwise with mutual consent of both the parties.
10. That the agreement is essentially the sole selling agreement hence the party of the first part undertakes to give commission to the party of the second part on all plots booked even directly by the party of the first part during the continuity of this agreement.
11. As desired by the party of the first part a sum of Rs. 5,00,000/ (Rs. Five Lacs only) is being paid through vide Demand Draft No. Suit No. 15369/16 Page No. 15 of 20 M/s. Radiant Buildtech (P) Ltd. Vs. Barnawa Agro Industries Ltd. 379794, dated 10.5.07, drawn on Central Bank of India, Gole Market, New Delhi - 110001 as refundable security against deposit.
12. Any disputes arising out of this MOU shall be referred to arbitration as per provisions of Arbitration and Reconciliation Act.
13. High Court of Delhi or its subordinate courts shall have the exclusive jurisdiction to this MOU".
27. Thus, from perusal of the these terms and conditions of MOU, it is evident that there is no clause / term / condition that in event the plaintiff failed to sell the plots of the defendant then, the defendant would be entitled to forfeit Rs. 5 lacs which was given by the plaintiff to the defendant. Rather from clause No. 11, it is evident that the said amount was given as security which was refundable. Hence, in my view, in case of end of contract between the parties, the defendant is atleast liable to refund of Rs. 5 lacs to the plaintiff even if the plaintiff has failed to prove that the defendant's director Karan Vir Singh has written a letter Ex. PW1/4 or promissory note Ex. PW1/5. The relevancy of the same is only with respect whether the plaintiff is entitled to recover Rs. 5 lacs or Rs. 6,35,000/ as mentioned in the promissory note Ex. PW1/5.
28. As far as contention of counsel for the plaintiff that it is the defendant who was at fault as defendant has not obtained necessary permission from the authorities for sale of plots due to which sale of plots, after initial success, could not achieve to its desired result hence, the plaintiff is entitled to refund of security. In support of its Suit No. 15369/16 Page No. 16 of 20 M/s. Radiant Buildtech (P) Ltd. Vs. Barnawa Agro Industries Ltd. contention, he has relied upon the testimony of PW1. As stated above, PW1 in his evidence has deposed that defendant has approached for sale of its plots at Haridwar named as Haridwar Agro Industrial Food Park and in this regard MOU Ex. PW1/3 was executed between the plaintiff company and defendant company and after execution of the said document, plaintiff company started work on its project and within a short span of time, got success in creating very good interest amongst investors but due to some serious lapses on part of the defendant i.e. slow progress on development work, non availability of Government approvals and nil media advertisement, the plaintiff company run into difficulties. In his cross examination, he has stated that the promotional tools used by their company are SMS, email, telly marketing, personal visit to the industries in industrial sector in Noida and Delhi and Faridabad and have got printed the brouchers also. In his cross examination, he has admitted that he has not placed on record any brouchers, bills of bulk SMS and the bills pertaining to the telly marketing where plaintiff went for promotion of defendant company. In these circumstances, I am fully agree with the contention of counsel for the defendant that plaintiff company did not made any effort for sale of plots. Plaintiff company has also not produced any document that it has sold any plot of the defendant company.
29. However, as far as contention of counsel for the defendant that defendant has obtained necessary approvals from the Government and made advertisement, the defendant company has also not produced any document regarding obtaining approvals Suit No. 15369/16 Page No. 17 of 20 M/s. Radiant Buildtech (P) Ltd. Vs. Barnawa Agro Industries Ltd. of sale of plots nor has produced any document that it has made any advertisement for sale as mentioned in the MOU. Defendant company has also not examine any other witness to prove that they have obtained necessary approvals from the Government or spent any amount for sale of plots.
30. In view of above it appears that both plaintiff and defendant have not done anything for the sale of plots as agreed between them and just passing on blame on each other that their presence is responsible for failure and poor sale of plots. However, in my view, even if the plaintiff has not sold even a single plot, the defendant is not entitled to forfeit the security amount of Rs. 5 lacs as in the clause 11 of MOU Ex. PW1/3 : "13. As desired by the party of the first part a sum of Rs. 5,00,000/ (Rs. Five Lacs only) is being paid through vide Demand Draft No. 379794, dated 10.5.07, drawn on Central Bank of India, Gole Market, New Delhi - 110001 as refundable security against deposit".
31. Therefore, in my view the defendant company is liable to return the sum of Rs. 5 lacs as security amount to the plaintiff company after the dispute arisen between the parties. PW1 has proved notice dated 22.12.2008 sent by plaintiff to the defendant as Ex. PW1/6 demanding refund of security amount. He has proved its postal receipts as Ex. PW1/7 which clearly proves that same has been sent. It is not thje case of defendant that address on said letter is not of defendant. Hence in my view after receipt of said Suit No. 15369/16 Page No. 18 of 20 M/s. Radiant Buildtech (P) Ltd. Vs. Barnawa Agro Industries Ltd. notice, the defendant company is liable to return the said amount.
32. In view of the above, I held that the plaintiff is entitled to only refund of Rs. 5 lacs which the plaintiff has given as security to the defendant However plaintiff is not entitled to recover any interest @ 18% as plaintiff as failed to prove that the defendant has agreed to pay any interest on the said amount. and since in MOU, there is no clause regarding payment of interest on the said amount. Issue Nos. 3 is decided accordingly.
33. ISSUE NO. 2.
Whether plaintiff is entitled to the pendente lite and future interest as prayed? If yes, then at what rate and for what period? OPP.
The onus to prove this issue is upon the plaintiff. Since the defendant company has withheld wrongfully the amount of Rs. 5 lacs of the plaintiff and thus caused loss to the plaintiff therefore, defendant company is liable to pay interest on the said amount. Hence, plaintiff is entitled to interest @ 10% per annum from the date of filing of the suit till date of decree and thereafter, till date of its realization. Issue No. 2 is decided accordingly.
34. RELIEF.
In view of my findings on aforesaid issues, the suit of the plaintiff is hereby decreed. The plaintiff is entitled to the sum of Rs. 5 lacs along with interest @ 10% per annum from the date of filing of the suit till date of decree and thereafter, till date Suit No. 15369/16 Page No. 19 of 20 M/s. Radiant Buildtech (P) Ltd. Vs. Barnawa Agro Industries Ltd. of its realization. Plaintiff is also entitled to the costs of the suit. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Announced in the open court (Sanjeev KumarI)
on 17.01.2019 Additional District Judge12, Central
Tis Hazari Courts, Delhi
Digitally signed
17.01.2019
SANJEEV by SANJEEV
KUMAR
KUMAR Date: 2019.01.17
16:39:04 +0000
Suit No. 15369/16 Page No. 20 of 20
M/s. Radiant Buildtech (P) Ltd. Vs. Barnawa Agro Industries Ltd.