Delhi District Court
M/S Kumar Share Brokers Ltd vs Sh. Haresh Jayanti Lal Mehta (Huf) on 27 November, 2018
IN THE COURT OF SH. SIDHARTH SHARMA
ADDITIONAL DISTRICT JUDGE-03: EAST DISTRICT
KARKARDOOMA COURTS: DELHI
CS-359/17
M/S KUMAR SHARE BROKERS LTD.
(Now known as M/s KSBL Securities Ltd.)
G-55, 3rd Floor, Royal Place, Laxmi Nagar,
Vikas Marg, Delhi-110092.
Through its AR Sh. Jiya Lal Kashyap. .............. Plaintiff
Versus
SH. HARESH JAYANTI LAL MEHTA (HUF)
Through its Karta Sh. Haresh Jayanti Lal Mehta
S/o Sh. Jayanti Lal Mavji Mehta
51, Rokadia Enclave, Nanda Patkar Road,
Vile Parle (E), Mumbai-400057. ..........Defendant
Date of institution : 26.05.2017
Final arguments concluded on : 27.11.2018
Date of decision : 27.11.2018
SUIT FOR RECOVERY OF RS. 4,41,052/-
JUDGMENT
1. The present suit for recovery has been filed by the plaintiff company through its AR Sh. Jiya Lal Kashyap against the defendant. Brief facts of the case as per plaint are that plaintiff company presently known as M/s KSBL Securities Ltd. is a limited company incorporated and registered with the Registrar of Companies, New Delhi and certificate to the effect CS-359/17, Page-1/6 of change in name of the plaintiff company has also been obtained. The plaintiff company is a corporate member of stock exchanges and is having clients in different parts of India and is doing he business in shares and stock on behalf of its clients as per their instructions. It is stated that defendant through its Karta had approached the plaintiff for trading in shares and stock through the plaintiff company presenting himself that he was having good financial capacity and capability to clear the dues and liability and having the good liquidity and ensured as and when the liability would arise, the defendant would make the payment and clear the liability immediately and upon such representation, plaintiff agreed to register the defendant to do business of stock and shares on behalf of defendant as per his instructions and direction. The Karta of defendant filled the application form i.e. KYC and executed the documents of 'Client Registration Kit' provided by the plaintiff and submitted the kit with the copies of supported documents duly signed by the Karta of defendant to the plaintiff on 26.03.2015. The plaintiff registered the defendant and alloted a code number HB322 after being verified the details given in the KYC with supported documents submitted by the defendant such as PAN of defendant, copy of passport, blank cancelled cheque of UCO bank and a copy of the bank passbook etc. It is stated that defendant after having the allotment of code number did the business i.e. sale and purchase of shares and stock of various companies through the plaintiff and a sum of Rs. 2,96,273.79/- was CS-359/17, Page-2/6 accumulated outstanding against the defendant as on 01.02.2016.
2. It is stated that plaintiff requested the defendant many times to clear the outstanding dues but all in vain and lastly, plaintiff sent a final reminder dated 04.02.2016 to which defendant replied vide letter dated 12.02.2016 wherein he admitted the liability and assured the plaintiff to clear the liability till end of June 2016 on account of his week financial position. However, plaintiff sent letter dated 30.03.2016 to the defendant requesting to pay at least the pending interest amount on late payment, which being levied and charged in defendants amount in financial year 2015-16 so that the Board of Directors of the plaintiff company may be ensured that the outstanding payments be made by the defendant till June 2016 as per his promise but defendant did not pay any heed towards the request of plaintiff. Hence, plaintiff served a legal notice dated 17.05.2016 upon the defendant calling him to pay sum of Rs. 3,23,664/- including interest/ late payment charges as on 01.05.2016. However, despite service of said legal notice, defendant neither gave any reply nor complied with the said legal notice. Since the balance amount of the plaintiff having been become long overdue and as such, the defendant has further rendered themselves liable to pay interest/ late payment charges @ 24% per annum, which is even otherwise usage in trade of business and also, such terms are agreed by the defendant by executing a document 'policies and procedures' framed in reference in terms of SEBI circular MIRSD/SE/Cir-19/2009, dated 03.12.2009. It is CS-359/17, Page-3/6 stated that as per the accounts maintained by the plaintiff, a sum of Rs. 4,41,052/- including interest/ late payment charges has been accumulated outstanding as on 01.03.2017 and thus defendant is under legal obligation and liability to pay a sum of Rs. Rs. 4,41,052/- along with interest @ 24% per annum w.e.f. 01.03.2017, hence the present suit.
3. Defendant was proceeded ex-parte on 05.01.2018.
4. In ex-parte evidence, Sh. Jiya Lal Kashyap, AR of plaintiff appeared in the witness box as PW1, filed his affidavit in evidence, tendered the same as Ex.PW1/A, relying upon the documents Ex.PW1/1 to Ex.PW1/8, Mark-A & Mark-B.
5. I have heard arguments from Sh. S.C. Aggarwal, counsel for plaintiff and have gone through the affidavit Ex.PW1/A tendered by PW1 as well as documents relied upon by him.
6. Perusal of affidavit Ex.PW1/A shows that PW1 has reiterated the version and averments as made in the plaint. Perusal of documents shows that Ex.PW1/1 is the Board Resolution dated 03.04.2017 authorizing the PW1 to adduce evidence on behalf of the plaintiff in the present case. Ex. PW1/2 (colly) are copies of application form (KYC), PAN, passport, bank cancelled cheque and passbook of the defendant. Ex.PW1/3 is the copy of letter dated 04.02.2016 of plaintiff, which is the last reminder sent by plaintiff to the defendant demanding outstanding dues. Ex.PW1/4 is the letter dated 12.02.2016 which is the reply to reminder/letter dated 04.02.2016 of CS-359/17, Page-4/6 plaintiff. Perusal of Ex.PW1/4 shows that defendant had admitted the liability and assured the plaintiff to clear the liability till end of June 2016. Ex. PW1/5 is the letter dated 30.03.2016 sent by plaintiff to the defendant asking for payment of interest for the time being alongwith its postal receipt. Ex.PW1/6 (colly) are the copies of documents (policies and procedures) executed by defendant. Ex.PW1/7 (colly) are office copy of legal notice dated 17.05.2016. Ex.PW1/8 is the computer generated statement of accounts for the year 2014-15, 2015-16 and 2016-17 of defendant, maintained by the plaintiff, which shows that a sum of Rs. 4,41,052/- is outstanding against the defendant as on 01.03.2017. The document Mark-A is copy of certificate of incorporation of the plaintiff company. Mark-B is the copy of certificate of incorporation pursuant to change of name of plaintiff company.
7. Since the testimony of plaintiff has remained uncontroverted, unrebutted and unchalleged, there is no reason as to why the statement of PW1/ AR of plaintiff in the affidavit Ex.PW1/A be not accepted as correct. Therefore, there is no reason for me to disbelieve the version of the plaintiff which remains unrebutted and also finds support from the documentary evidence on record. In case titled as Shobha Gupta v/s Rajesh Gupta Mat. App. No. 63/2004 passed by HMJ S. Muralidhar, Hon'ble Delhi High Court has held in para 15 that :-
"15. There is absolutely no reason why the above statements made in the affidavit of the appellant should not be accepted as being correct. The affidavit has gone unrebutted."
CS-359/17, Page-5/6
8. Therefore, considering the unrebutted, unchallenged and uncontroverted testimony of PW1, I hold that plaintiff is entitled to recover a sum of Rs.4,41,052/- from the defendant along with interest thereon. Accordingly, suit of the plaintiff is decreed in favour of the plaintiff and against the defendant a sum of Rs.4,41,052/- along with interest @ 9% w.e.f.
01.03.2017 till realization of the decreetal amount. Costs of the suit are also awarded to the plaintiff.
9. Decree sheet be prepared accordingly. File be consigned to Record Room. Digitally signed by SIDDHARTH SHARMA SIDDHARTH Location: Court No.7, Karkardooma Courts, SHARMA Delhi Date: 2018.11.27 17:49:15 +0800 Announced in the open Court (SIDHARTH SHARMA) today on November 27th, 2018 Addl. District Judge-03, East District Karkardooma Courts, Delhi CS-359/17, Page-6/6