Delhi District Court
M/S. Sheel International Ltd vs Kulbhushan Sood on 7 August, 2010
In the Court of Sh. Harish Dudani,
Additional District Judge15 (Central), Delhi
Unique I.D. No.0240IC5113212004
Suit No. 280/09
M/s. Sheel International Ltd.
Through: M/s. M.C. Das Accounts
Officer as Authorised Signatory,
S237, Greater Kailash, PartII,
New Delhi. ........Plaintiff
Versus
1. Kulbhushan Sood
B30A, Kalkaji,
New Delhi1100019.
2. Virender Sood
B30A, Kalkaji,
New Delhi110019.
Also at:
D4/4131, Vasant Kunj,
New Delhi.
Suit No.280/09 1of 36
3. Rajiv Dhawan
Sole proprietor/Partner,
M/s Kalka Impex Traders,
1st Floor, B30A,
Kalkaji,New Delhi.
4. Gautam Malhotra
M/s Standard Securities,
and Investment Inter Mediates Ltd.
nd
2 Floor, B30A,Kalkaji,
New Delhi. ......Defendants
(As per proceedings dated 24.11.2009 the suit against
defendants No.2 to 4 has been dismissed as withdrawn).
Date of institution of the case:16.09.2002
Date of reserving judgement:04.08.2010
Date of decision:07.08.2010
JUDGMENT
1. This is a suit for recovery of possession of goods valuing Rs.3,29,500/ or in alternative for recovery of Rs. 3,29,500/, filed by the plaintiff.
Suit No.280/09 2of 36
2. It is stated in the plaint that the Board of Directors in meeting dated 19/11/2001 authorised Shri M.C. Dass, Accounts Officer of the plaintiff company to engage lawyer and to execute Vakalatnama etc. and suit has been filed by Sh. M.C. Dass, Accounts Officer. The plaintiff company had taken the first floor and second floor of the premises bearing no. B30 A, Kalkaji, New Delhi on rent on 7/08/97 from Sh. Kulbhushan Sood and Sh. Yash Pal Sood. The plaintiff company had provided office furnitures to its employees working in the tenanted premises. Apart from providing the office furnitures and fixtures, electrical equipments, comprising of Air Conditioner, Ceiling fan, Tube Light, wooden cabins etc and computers necessary for purpose of running a proper and effective office were also installed in the tenanted premises. On account of general recession in the market and on account of heavy losses suffered on account of lack of market of the plaintiff company's product, the plaintiff vacated the the first floor office at B30 A, Kalkaji, Suit No.280/09 3of 36 New Delhi on 7/11/98. The plaintiff had taken away the majority of its office furniture, fixtures and equipments since the plaintiff was still a tenant of the second floor of the said premises but certain office furniture, electrical equipments was kept in possession, dominion and control of defendants and in para 6 of the plaint the details of the said office furniture and electrical equipments are mentioned as under :
s. no. particulars qty value
1. Split AC 2 Rs. 50,000/
2. Ceiling Fan 8 Rs. 4,000/
3. Tube Light 13 Rs. 6,500/
4. Tube Light fitting 2 Rs. 300/
5. Complete side table
with working length at
11 people sitting with 11
drawer Rs. 35,000/
6. Caping with glass with 2 Rs.50,000/
door closer
Suit No.280/09 4of 36
7. Mirror in bathroom Rs. 200/
8. Half open cabin
9. Main door chokhat with
glass door 2 Rs. 10,000/
Total = Rs.1,63,500/
3. It is further stated in the plaint that vide letter dated 7/11/98 the defendants had taken possession of the first floor of the premises NO. 30 A, Kalkaji, New Delhi from the plaintiff and the defendants had further acknowledged the receipt of the aforesaid goods and defendants had undertaking to deliver the aforesaid office furniture and electrical equipments as and when demanded by the plaintiff company. On 13/09/99 the plaintiff handed over the possession of the second floor premises of B30 Kalkaji, New Delhi to the defendants but following items were left behind on the second floor in the possession and control of the defendants which were agreed Suit No.280/09 5of 36 to be returned back alongwith aforesaid furniture and equipment which were left in the possession of defendants on the first floor. The articles left on the second floor in possession, dominion and control of the defendants as mentioned in para 13 of the plaint are as follows :
List of Articles Value
1. Main door chocket with glass door Rs. 10,000/
2. Four cabins with door Rs. 90,000/
3. Four small and two big light in the cabin Rs. 3,000/
4. Tube Light in the hall No. 8 Rs. 4,000/
5. D. G. Set 1 No. Rs. 8,000/
6. One Invertor Rs. 10,000/
7. Dairy whiteners cartons 15 No. each with 12 Kgs. Rs. 18,000/ Total = Rs. 1,43,000/ Suit No.280/09 6of 36
4. It is further stated in the plaint that on 14/09/99 Sh. Raghuvir plaintiff's representative was clearing the floors and when he was about to finish clearing the floor, the defendants snatched the keys from him and threatened him of dire consequences. Sh. S. N. Chandak, Director of the plaintiff company on receiving information from Sh. Raghuvir approached the defendants wherein the defendants informed the plaintiff that they will deliver the articles and equipments as stated above left on the first and second floor on 25/09/99 and thereafter it was postponed to 1/10/99. On account of indifferent attitude of the defendants the plaintiff lodged a complaint with SHO, PS Kalkaji on 16/10/99 thereafter on 21/10/99 the plaintiff send a legal notice to the defendants but the defendants failed and neglected to return the aforesaid goods. The plaintiff came to know that defendants have given on rent the office furnitures and fixtures, electrical equipments as stated above which was left on the first floor to Sh. Rajeev Dhawan, Sole Proprietor/partner of M/s. Kalka Suit No.280/09 7of 36 Impex Traders who is a tenant in the first floor of the premises bearing no. B30 A, Kalkaji, New Delhi and goods & articles which were left on the second floor have been given by defendants on rent to Sh. Gautam Malhotra of M/s. Standard Securities and Investments Intermediates Ltd. The defendants in collusion with each other had converted the properties of the plaintiff to their own use which was entrusted upon them with an assurance from the defendants that they will be returning back the articles as and when demanded by the plaintiff. It is stated that the valuation of the suit for the purpose of court fees and jurisdiction is fixed at Rs.5,565/ on which requisite court fees has been affixed. It is prayed that a decree of possession of goods and articles as mentioned above or in the alternative for Rs. 3,29,500/ be passed in favour of the plaintiff and against the defendants. The cost of the suit also be awarded to the plaintiff.
5. The plaintiff had filed suit against the four defendants and as Suit No.280/09 8of 36 per order dated 24/11/09 the plaintiff made statement thereby withdrawing suit against defendant no. 2, 3 and 4 and suit against defendant no. 2, 3 and 4 was dismissed as withdrawn. Defendant no. 1 has filed written statement and has contested the suit. In the written statement defendant no. 1 has raised objection that the suit as framed is not maintainable and the plaintiff has not come to the court with clean hands. The plaintiff has concealed material facts and has claimed false amount on false pleas. It is denied for want of knowledge that Sh. M. C. Dass is the Accounts Officer of the plaintiff or that he is authorised to file and prosecute the suit by virtue of any alleged resolution passed on 19/11/01. It is not denied that plaintiff company had taken the premises consisting of the first floor and second floor of the property on rent vide a lease agreement dated 7/04/97, from the defendant no.1. It is denied that premises were taken from Sh. Yash Pal Sood. It is denied that plaintiff company had employed huge staff or 35/40 employees used Suit No.280/09 9of 36 to sit and work on one floor or that office furniture was provided to the employees according to their status. It is also denied that apart from providing the office furniture, fixtures or electrical equipment such as ACs, ceiling fans, tube lights, wooden cabins and computers were also installed in the premises. It is stated that the ceiling fans, tube lights and other fittings/fixtures were already existing in the premises when the same were taken on rent as per plaintiffs own acknowledgment vide letter having ref. no. SIL/D/97. It is denied that on account of the general recession in the market or on account of losses suffered by the plaintiff, the first floor of the premises in question was vacated by the plaintiff. The first floor of the premises was vacated by plaintiff on 7/11/98 and except one small table and four chairs lying therein, the vacant possession of the same was handed over to defendant no. 1. The plaintiff had taken away all the items, fittings and fixtures, office furniture, equipments whatsoever and thus it is wrong to state that certain office furniture, Suit No.280/09 10of 36 electrical equipment was ever kept in the possession, dominion or control of the defendant no. 1 as stated the details of which are furnished in the plaint. It is also denied that vide letter dated 7/11/98 the defendant no. 1 acknowledged to have received any goods, office furniture or electrical equipment or that it was ever agreed or that the defendant no. 1 undertook to deliver the office furniture or equipment to the plaintiff as and when demanded by him. It is stated that it was agreed that "goods lying on the first floor will be removed as and when you demand for it" meaning thereby that it was the choice of the defendant no. 1 and not the plaintiff. The list of items as furnished by the plaintiff which have been allegedly handed over to defendant no. 1 at the time of vacating the first floor of the property is a false, concocted and imaginary.
6. In the written statement the defendant no. 1 has not denied that plaintiff handed over the possession of premises situated Suit No.280/09 11of 36 on second floor on 13/09/99 but it is denied that any items were left behind in the control or possession of the defendant no. 1 or that any goods were agreed to be returned back alongwith any equipment as alleged by the plaintiff. It is stated that nothing was left behind while vacating the second floor and it is wrong to say that anything was left behind in the control or possession of defendants or that anything was ever agreed to be returned back alongwith any allegedly equipment as alleged. It is stated in the plaint that the plaintiff has given a detailed list of articles valuing the same at Rs. 1,63,500/ which were left at the first floor of the property but the total of the items actually comes to Rs. 1,56,000/. Even, in the documents filed by the plaintiff itself i.e. annexure to the letter dated 7/11/98 does not show any value of any items which clearly means that the items, if any was not new but used, broken, second hand or having negligible value. It is stated that even if the total value of the articles as mentioned in the plaint is taken as 1,63,500/ and Suit No.280/09 12of 36 1,43,000/ the total sum comes to Rs. 3,06,500/ and not Rs. 3,29,500/ as mentioned in the title/ prayer of the suit. It is stated that there is no firm named M/s. Kalka Impex Traders as alleged by the plaintiff. It is stated that suit has not been properly valued by the plaintiff. It is stated that suit is barred under the provisions of the Specific Relief Act. It is stated that suit is liable to be dismissed.
7. From the pleadings of the parties following issues were framed by my Ld. Predecessor on 12.09.2006:
i). Whether the present suit has not been valued correctly/properly for the purpose of court fees and jurisdiction ?OPD
ii).Whether plaintiff is entitled for a decree of possession of goods and articles or in the alternative for Rs.3,29,500/?
OPP
iii).Relief.
Suit No.280/09 13of 36
8. To prove its case plaintiff examined Sh. S. N. Chandak, Managing Director of M/s. Sheel International Ltd as PW1.
9. To prove his defence, Defendant no. 1 examined himself as DW1.
10.I have heard Ld. Counsel for the parties and have perused the record. My findings on the specific issues are as under :
Issue No.1
11.This is a suit filed by plaintiff for possession of goods and articles mentioned in paras 6 and 13 of the plaint and in alternative for decree for Rs.3,29,500/ (Rupees three lacs twenty nine thousand five hundred only). In para 24 of the plaint, the plaintiff has stated that valuation of the suit for the purpose of court fees and jurisdiction is fixed at Rs.5,565/ on which requisite court fees has been affixed. As per section 7 Suit No.280/09 14of 36
(i) of The Court Fees Act, 1870, the amount of court fee payable in suits for money (including suits for damages or compensation, or arrears of maintenance, of annuities, or of other sums payable periodically shall be according to amount claimed) and as per section 7(iii) of The Court Fees Act, 1870, in suits for movable property other than money, where the subjectmatter has a market value--according to such value at the date of presenting the plaint. By way of present suit the plaintiff has claimed possession of the articles as mentioned in paras 6 and 13 of the plaint and the plaintiff has valued all said articles as having a market value in total amounting to Rs.3,29,500/ (Rupees three lacs twenty nine thousand five hundred only). The prayer for money decree for a sum of Rs.3,29,500/ (Rupees three lacs twenty nine thousand five hundred only) as claimed by the plaintiff is in alternative to the prayer for decree of possession of movable properties as mentioned in paras 6 and 13 of the plaint which the plaintiff has valued at Rs.3,29,500/ (Rupees three lacs Suit No.280/09 15of 36 twenty nine thousand five hundred only). Hence, as per section 7(i) & (iii) of The Court Fees Act, 1870, the plaintiff was required to pay court fees only on one of the reliefs i.e. either for possession of movable articles or in case it is found that said articles cannot be delivered to plaintiff, in that case the plaintiff was entitled to claim value thereof and the plaintiff is required to pay court fee only on one of the reliefs as the same have been claimed in alternative, hence, plaintiff is liable to pay court fees on the sum of Rs.3,29,500/ (Rupees three lacs twenty nine thousand five hundred only). As per report of Reader of the Court, the plaintiff was to pay Court fees to the tune of Rs.5564/ on the claimed sum of Rs.3,29,500/ (Rupees three lacs twenty nine thousand five hundred only). As plaintiff was required to pay court fees to the tune of Rs.5564/ and plaintiff has paid the said court fees, hence, it is held that suit has been valued correctly/properly for the purpose of court fees. This issue is decided accordingly in favour of the plaintiff and against the Suit No.280/09 16of 36 defendant.
Issue No.2
12.In para 1 of the plaint, the plaintiff has stated that the suit has been filed through Shri M.C. Dass, Accounts Officer of the plaintiff company who has been duly authorised to file the same by virtue of resolution passed by the Board of Directors in its meeting dated 19.11.2001. In the WS the defendant No.1 has denied that Shri M.C. Dass is the Accounts Officer of the plaintiff company or that he is authorised to file the present suit by virtue of any resolution passed by Board of Directors on 19.11.2001 or that Shri M.C.Dass is authorised to file suit on behalf of plaintiff. In para 1 of the reply on merits in written statement,the defendant No.1 has further stated that there seems to be no legal or proper resolution of any board of directors, which may have been passed in favour of any one authorising him to file or prosecute the case and alleged resolution does not bear any signatures of members of the Board and is against Suit No.280/09 17of 36 the provisions of the Companies Act.
13.It was the plaintiff to prove that the suit was signed, verified and instituted by duly authorised person and that Mr. M.C. Dass Accounts Officer of the plaintiff company is duly authorised by resolution passed by the Board of Directors in its meeting held on 19.11.2001 to sign, verify and institute the present suit. The plaintiff examined Shri S.N. Chandak, Managing Director of plaintiff as PW1 who adduced evidence by way of affidavit Ex.PW1/2. In para 2 of affidavit Ex.PW1/2, Shri S.N. Chandak/PW1 has stated that he has been duly authorised by the plaintiff company to file the present suit by virtue of Board of Directors Meeting held on 22.10.2007 and the resolution is Mark PW1/A. It is to be noted that although in para 2 of affidavit Ex.PW1/2, Shri S.N. Chandak/PW1 has stated that vide resolution dated 22.10.2007 of the Board of Directors, he has been authorised to file the present suit but the suit has not been filed by Shri Suit No.280/09 18of 36 S.N. Chandak/PW1. Rather in para 1 of plaint, it is stated that present suit has been filed by Shri M.C.Dass who has been authorised by virtue of Board of Directors' meeting dated 19.11.2001 to file the present suit. The plaintiff was required to prove the resolution of Board of Directors passed in its meeting held on 19.11.2001 whereby Shri M.C. Dass was authorised to sign, verify and institute the present suit, however, the plaintiff has not produced any such resolution. As per para 1of plaint, the suit has been signed and filed by Shri M.C. Dass who has been allegedly authorised by the Board of Directors by its meeting dated 19.11.2001 to file the suit. However, PW1 has nowhere stated in his affidavit Ex.PW1/2 that the suit has been signed by Shri M.C. Dass by virtue of resolution of Board of Directors passed in its meeting dated 19.11.2001. PW1 has also not identified signatures of Shri M.C. Dass on the plaint in order to prove that the plaint has been signed, verified and filed by Shri M.C.Dass who was allegedly authorised to do so by Board of Suit No.280/09 19of 36 Directors in its meeting dated 19.11.2001.
14.In M/s Rajghria Paper Mills Ltd. v. General Manager, Indian Security Press and another AIR 2000 Delhi 239, Issue No.3 was framed to the effect that whether the plaint has been signed, verified and presented by a duly authorised person and on findings on the said issue, Hon'ble High Court observed that the plaint is signed and verified and suit instituted by K.L. Rajgarhia, PW2 and in Para 1 of the plaint it is alleged that K.L. Rajgarhia was authorised to institute suit by virtue of a resolution dated 2nd July 1976 passed by the Board of Directors of the plaintiff company. In paras 2 and 3 of the affidavit filed by said K.L. Rajgarhia it is averred that he had been duly authorised under the Memorandum and Articles of Association of the company as also by a resolution th passed by the Board of Directors on 26 July 1976, to institute the suit. In the case in hand learned counsel for the plaintiff has contended that Shri R.K. Jain is duly authorised Suit No.280/09 20of 36 to file the suit, he being one of the directors of the company and in support of his submissions he has invited attention of the court to the provisions contained in Order 29 rule 1 of the CPC and also decision in United Bank of India vs. Naresh Kumar and Others (supra). Our Hon'ble Hon'ble High Court in M/s Rajghria Paper Mills Ltd. v. General Manager, Indian Security Press and another (supra) observed: ................................Rule 1 of the said Order 29 deals with signing and verification of the plaint and not the institution of the suit by or against the Corporation. In Union Bank of India's case (supra) out of the many issues framed in the suit filed for recovery of Rs.1,40,553.91 by the bank, issue No.1 was to the effect - whether the plaint is duly signed and verified by a competent person? Issue No.2 was whether the defendant No.1 raised a loan of Rupees 50,000/ from the plaintiff bank on 124 84 and executed a demand promissory note hypothecation of goods agreement, letter of loan and other Suit No.280/09 21of 36 documents in favour of the plaintiff Bank? Trial Judge returned the finding on said issue No.1 against the Bank.
On issue No.2 it was found that defendant No.2 was liable to pay only a sum of Rs.55,699.20 as the principal amount plus interest. In appeal, Additional District Judge reversed the finding of the trial Court on issue No.2 and he came to the conclusion that the bank had been able to prove that defendant No.1 had taken a loan of Rs.50,000/. However, upholding the findings of the trial Court on issue No.1 the appeal was dismissed. Regular Second Appeal taken out against the decision of the Additional District Judge by the bank was, however, dismissed in limine by the Punjab & Haryana High th Court on 30 August 1993. As is manifested from Para 8 of the report the only question which arose for consideration before the Supreme Court in the S.L.P. filed by the bank was whether the plaint was duly signed and verified by a competent person. It Suit No.280/09 22of 36 was in the said background that S.L.P. was allowed holding that L.K. Rohatgi must have been authorised to sign the plaint and in any case the bank had ratified the action of L.K. Rohatgi in signing the plaint and thereafter he had continued with the suit. In my view, in the facts and circumstances of this case, the plaintiff cannot derive any advantage from the above decision in the matter of said K.L. Rajgaria being authorised to file the present suit on behalf of the plaintiff company. In the decision in M/s.Nibro Limited v.
National Insurance Co. Ltd., AIR 1991 Delhi 25 after taking note of a series of decisions on the subject the view taken by this Court was that unless a power to institute suit is specifically conferred on a particular director he has no authority to institute suit on behalf of the company. It must, therefore, follow that although the plaint was signed and verified properly but the suit was not instituted by a duly authorised person on behalf of the plaintiff. Issue is Suit No.280/09 23of 36 answered accordingly.
15.The plaintiff was required to prove that the suit has been signed, verified and instituted by Shri M.C. Dass who has been duly authorised by the Board of Directors in its meeting held on 19.11.2001 to do the same, however, the plaintiff has neither proved said resolution dated 19.11.2001 which was allegedly passed by the Board of Directors of plaintiff company in its meeting dated 19.11.2001 and the plaintiff has also not proved that the plaint has been signed by Shri M.C. Dass in pursuance of alleged resolution dated 19.11.2001 passed by the Board of Directors of the plaintiff company. Although in para 2 of affidavit Ex.PW1/2, Shri S.N. Chandak/PW1 has stated that he has been authorised to file the present suit in view of resolution of Board of Directors passed on 22.10.2007, however, the contents of para 2 of affidavit Ex.PW1/2 are not in consonance with the para 1 of plaint as in plaint, it is stated that the plaint has been signed, Suit No.280/09 24of 36 verified and instituted by Shri M.C. Dass. The plaintiff has failed to prove that the suit has been signed, verified and instituted by a duly authorised person.
16.The case as setup by the plaintiff is that the plaintiff was st nd inducted as tenant by the defendant on the 1 and 2 floor of premises bearing No.B30A, Kalkaji, New Delhi on 07.08.1997 and the plaintiff had provided office furnitures and fixtures electrical equipments, comprising of air conditioner, ceiling fan, tube lights, wooden cabins etc. and other furniture and fixtures electrical equipment such as computers necessary for the purposes of running a proper and effective office and the plaintiff vacated the 1st floor of the said premises on 07.11.1998 and left some articles i.e.2 split A.C., 8 ceiling fans, 13 tube lights, 2 tube light fittings, complete side table with working length at 11 people sitting with 11 drawer, 2 caping with glass with door closers, mirror in bathroom, half open cabin and 2 main door Chokhat with Suit No.280/09 25of 36 glass door. In para 6 of the plaint, the plaintiff has stated that vide letter dated 07.11.1998, the defendants had taken the st possession of the 1 floor of the said property from the plaintiff and the defendants also acknowledged receipt of the nd aforesaid goods. The plaintiff handed over possession of 2 floor of the said property in question to defendants on 13.09.1999 and again certain articles of the plaintiff were left on the second floor of premises in question which consisted of main door Chokhat with glass door, four cabins with door, four small and two big light in the cabin, tube light in the hall No.8, D.G.set1no., one invertor and dairy whiteners cartons 15 no. each with 12kgs. The case of the plaintiff is that the defendants have failed to hand over the possession of said articles which were left behind by the plaintiff in the custody of the defendants despite reminders and value of the said articles is Rs.3,29,500/ and the defendants are liable to return the said articles or in alternative the defendants are liable to pay a sum of Rs.3,29,500/ to the plaintiff.
Suit No.280/09 26of 36
17.The plea as raised by the defendant is that while vacating the tenanted first floor of the said premises on 07.11.1998, the defendant has taken away all the office goods, furniture, equipment, computers and defendant left behind only one small table and four chairs, however, as per lease agreement, the plaintiff was required to keep and maintain the premises in the same condition as it was on the day of letting but the plaintiff damaged the premises by breaking and renovating the kitchen and the bathroom and ultimately when defendant No.1 pointed out the illegal and unauthorised changes in the structure of the premises, the plaintiff agreed to reconstruct the bathroom and kitchen in its original condition vide his undertaking dated 26.04.1997 but later on the plaintiff in order to avoid paying the damages or in order to avoid getting the premises in its original condition falsely started claiming the items. Defendant No.1 has further pleaded that when plaintiff vacated 2nd floor on 13.09.1999, Suit No.280/09 27of 36 there was not even a single item remaining there.
18.In order to prove its contention that the plaintiff had left behind articles on 07.11.1998 as stated in para 6 of plaint in the custody of defendant, when first floor of the said premises was vacated and articles as mentioned in para 13 of plaint were left in custody of plaintiff when second floor was vacated on 13.09.1999, plaintiff examined Shri S.N. Chandak, Managing Director of plaintiff as PW1. In para 6 of the plaint, the plaintiff has mentioned articles which were left behind by plaintiff in the custody of the defendant while vacating the first floor of the premises in question on 07.11.1998 and in the said para of plaint, the plaintiff has further stated that vide letter dated 07.11.1998,the defendant has taken possession of first floor and defendant further acknowledged receipt of the said goods which the defendant undertook to deliver as and when demanded by the plaintiff. Letter dated 07.11.1998 on which reliance has been placed Suit No.280/09 28of 36 by plaintiff is Ex.PW1/D1. PW1 admitted in the cross examination that letter Ex.PW1/D1 does not bear signature of Shri Kulbhushan Sood/defendant No.1. Thereafter, PW1 voluntarily stated in the cross examination that it bears signature of one Mr. Y.P. Sood who is brother of defendant. Contention of learned counsel for the defendant is that the plaintiff has not succeeded in proving that letter Ex.PW1/D1 has been signed by defendant in token of acknowledgment of having received any articles from the plaintiff on 07.11.1998 when first floor of the said premises was vacated by plaintiff. It is to be noted that although, PW1 stated in cross examination that letter Ex.PW1/D1 was signed by Shri Y.P. Sood, brother of defendant No.1 on behalf of defendant, however,the plaintiff has not set out case either in the plaint or in affidavit Ex.PW1/2 that articles as mentioned in para 6 of plaint, where handed over to Shri Y.P. Sood, brother of defendant No.1 who signed the same on behalf of defendant No.1 and also acknowledged the receipt of the same on Suit No.280/09 29of 36 behalf of defendant No.1.
19.Learned counsel for the defendant has contended that the plaintiff has failed to prove that any articles vide letter dated 07.11.1998 were given in the custody of the defendant and that the same is a manipulated letter and body of said letter clearly shows that it does not mention that any annexure is appended to the said letter. The plaintiff is relying on letter dated 07.11.1998 Ex.PW1/D1 by which plaintiff has allegedly handed over certain articles to the defendant for keeping the same in the custody of the defendant. It is to be noted that in letter dated 07.11.1998 Ex.PW1/D, it is not mentioned that any annexure is attached alongwith said letter which contains the particulars of articles which have been handed over in the custody of the defendant. In letter Ex.PW1/D1 which is addressed to defendant No.1 and signed by Shri S.N. Chandak as Managing Director of plaintiff, it is stated that the plaintiff is keeping some of their furnitures and fixtures on Suit No.280/09 30of 36 st 1 floor and these will be removed as and when the same are demanded by defendant No.1. In said letter Ex.PW1/D1, it is nowhere mentioned that any list of annexure is being annexed containing the articles which are being given in the custody of the defendant. PW1 stated in the cross examination that the said letter Ex.PW1/D1 is not signed by defendant No.1, thereafter, he voluntarily stated that it was signed by Shri Y.P.Sood who is brother of defendant No.1. The plaintiff has relied on one annexure which is appended to said letter Ex.PW1/D1. The plaintiff has failed to prove that letter Ex.PW1/D1 dated 07.11.1998 was acknowledged by defendant No.1 and by said letter any articles were handed over to defendant No.1 and/or that the defendant No.1 acknowledged having received any articles as per annexure of said letter Ex.PW1/D1.
20.The case of the plaintiff is that second floor of the said property was vacated by plaintiff on 13.09.1999 and articles Suit No.280/09 31of 36 as mentioned in para 13 of the plaint, were left on the second floor in possession, dominion and control of the defendant. Contention of learned counsel for the defendant is that the plaintiff had made substantial alternations in the premises in question and the plaintiff was to restore the said premises to its original condition but in order to avoid that liability, the present suit has been filed by the plaintiff. In order to substantiate its contention, learned counsel for the defendant has relied on Ex.PW1/D5 which is undertaking executed by plaintiff. PW1admitted in the cross examination that document Ex.PW1/D5 bears his signatures at point A. PW1 further admitted in his cross examination that as said document Ex.PW1/D5, the plaintiff through him and Shri Ramesh Gupta who was employee of plaintiff company had agreed and undertook to reconstruct the removed walls and fittings of the kitchen and bathroom on the first floor and second floor of the tenanted premises. Thereafter, in the cross examination, PW1 admitted that it is correct that Suit No.280/09 32of 36 plaintiff did not adhere to the said solemn undertaking dated 26.04.1997 as agreed in document Ex.PW1/D5. Contention of learned counsel for the defendant is that plaintiff had not left any articles as stated in paras 6 and 13 of plaint while vacating the first and second floor respectively of the said premises except one small table and four chairs and same is proved vide letter dated 13.09.1999 Ex.PW1/D6. Letter Ex.PW1/D6 is the letter written by the plaintiff to defendant No.1 in which it is stated by plaintiff that they had surrendered the first floor of the said premises on 07.11.1998 and on 13.09.1999 they are surrendering the second floor of the said property. PW1 admitted in the cross examination that letter Ex.PW1/D6 is in his hand writing. On letter Ex.PW1/D6 (carbon copy of which is Ex.PW1/D2) last three lines of said letter have been deleted by crossing the same by putting straight lines from points A to A and PW1 admitted in the cross examination that cutting at points A to A on Ex.PW1/D2 have been made by him. Portion from points Suit No.280/09 33of 36 A to A on Ex.PW1/D6 and Ex.PW1/D2 had the contents "our some furniture/fixtures are lying on 1st & 2nd floor as per list which is lying and shall be taken by us later on". However, said portion from points A to A was deleted and PW1admitted that said deleted portion bears his signature in token of deleting the said contents. The plaintiff has not explained that if they had left certain fixtures and articles on first floor of said premises on 07.11.1998 and on the second floor on 13.09.1999 then why the portion which contained said fact was deleted by the plaintiff on letter Ex.PW1/D6 & Ex.PW1/D2. The deletion of portion from points A to A on Ex.PW1/D6 & Ex.PW1/D2 by plaintiff under their own signatures proves the contention of defendant that no such articles as claimed by the plaintiff, were left on the 1st floor nd and 2 floor of the said property on 07.11.1998 and on 13.09.1999.
21.Another contention of learned counsel for the defendant is Suit No.280/09 34of 36 that plaintiff has also not succeeded in proving that the plaintiff had infact purchased/procured fixtures as mentioned in paras 6 and 13of plaint and if they were procured, the same were procured through whom and what was the price of said articles when they were purchased/procured. PW1 stated in the cross examination that they have not produced on record any bill regarding said items belonging to plaintiff and they have also not enclosed any proof regarding the value of the said goods which were lying on the respective floors. Plaintiff has also not proved that as to when articles as mentioned in para 6 and 13 of plaint were procured by plaintiff and what was the value of the said articles when the plaintiff procured/purchased the same. Plaintiff has not succeeded in proving its case that plaintiff had left the articles as mentioned in para 6 of the plaint on first floor of said premises on 07.11.1998 in control and dominion of defendant No.1 and articles as mentioned in para 13 of plaint were left under control and dominion of defendant No.1 on Suit No.280/09 35of 36 13.09.1999. Accordingly the plaintiff is not entitled to decree of possession of goods and articles as mentioned in paras 6 & 13 of plaint or in alternative for decree of recovery of Rs.3,29,500/ (Rupees three lacs twenty nine thousand five hundred only). This issue is decided accordingly, in favour of the defendant and against the plaintiff.
Relief:
22.In view of findings on issue No.2 above, the plaintiff is not entitled to the reliefs as claimed. Suit of the plaintiff is dismissed. Parties are left to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room.
(Announced in the open th court on 7 August, 2010) (HARISH DUDANI) Additional District Judge15 (Central) Delhi Suit No.280/09 36of 36