Delhi District Court
Sh. Rakesh Thapar vs Mrs. Anuradha Kakkar on 30 March, 2010
IN THE COURT OF SH. RAKESH KUMAR : ADJ (CENTRAL20) : DELHI
Suit No. 1358/08
Unique Case ID No. 02401C0746862006
Sh. Rakesh Thapar
S/o Col. A.S. Thapar,
R/o D42, South Ext.II.,
New Delhi - 110049. .....Plaintiff.
VERSUS
Mrs. Anuradha Kakkar,
R/o C3, Maharani Bagh,
New Delhi. .....Defendant.
Date of institution of the suit : 03.09.2003
Date on which order was reserved : 30.03.2010
Date of decision : 30.03.2010
J U D G M E N T
1. The instant suit for recovery of Rs.3,81,840/ alongwith interest @ 18% per annum from the date of the institution of the suit till the realization of the decreetal amount has been filed by the aforesaid plaintiff against the above named defendant. Cost of the suit is also demanded.
2. As per plaint, the defendant was the family friend of the plaintiff and the plaintiff had an oral agreement with the defendant, in which the defendant requested the plaintiff to arrange to get a dies/mould prepared by some qualified and competent agency on behalf of the defendant for the specified tea/coffee set of her choice. Accordingly, upon said oral agreement, the Sh. Rakesh Thapar Vs. Smt. Anuradha Kakkar Page No. 1 of pages 12 plaintiff hired one Mr. Vinod Ghai having his registered office at 3/80, Subhash Nagar, New Delhi as consultant and the plaintiff paid Rs. 5000/ to Mr. Vinod Ghai as an advance to start the work on behalf of the defendant in the month of June 2000 vide cheque No. 704995, drawn on Canara Bank. Mr. Vinod Ghai within a week finalized M/s Lada Enterprises of which Mr. Guljari Lal Bhardwaj is the owner for the preparation of the tea/coffee mould. A meeting was held to finalize the specification. Accordingly the diagram of the dies/ mould was finalized and papers were signed by the plaintiff, defendant, and Mr. Vinod Ghai and Mr. Gulzari Lal Bhardwaj owner of M/s Lada Enterprises. Then after confirmation of the said manufacturer and the finalization of MOU defendant paid a sum of Rs. 2,70,000/ to the plaintiff to start the project of preparing a set/mould of tea/coffee which was transferred to the account of the plaintiff by the defendant on 07.08.2000. On 28.08.2000 oral memorandum of understanding was executed between the plaintiff, defendant and Mr. Gulzari Lal Bhardwaj and Mr. Vinod Ghai and according to the memorandum of understanding reached between the parties a new set of dies/moulds was to be made by M/s Lada Enterprises for the specified tea/ coffee set of the choice of defendant as per the design approved by the defendant and it was decided that the work would be completed by 31.08.2000. The estimated cost of the said dies/moulds was calculated to be Rs. 4.80 lac which was to be paid by the defendant as per the memorandum of understanding reached as under:
(i) 50% on signing MOU.
Sh. Rakesh Thapar Vs. Smt. Anuradha Kakkar Page No. 2 of pages 12 th
(ii)25% 15 days (15 August, 2000)
(iii)25% 31st August, 2000 th The first set of samples was to be ready by 15 September, 2000. It was also decided that 10% of the total cost of dies/moulds would be paid as commission to Mr. Vinod Ghai for the consultancy of his service which comes to Rs.48000/ only. After making the aforesaid initial of Rs.2,70,000/ the defendant further avoided to pay the balance on the one pretext or the other but as the work on the said dies/moulds had started it was not possible to stop the work in between, and in the process M/s Lada Enterprises completed the production of the said dies/mould. As the plaintiff was away in Australia on some business in the month of September, the defendant, in absence of the plaintiff, convinced M/s Lada Enterprises that the defendant have already paid the plaintiff the entire amount of Rs.5,28,000/ which includes the commission of Mr. Vinod Ghai (although she had paid only Rs.2,70,000/ to the plaintiff) and requested to supply the said product which was supplied to the defendant by M/s Lada Enterprises without receiving the balance amount. Since the plaintiff was instrumental for payment to M/s Lada Enterprises and Mr. Vinod Ghai on behalf of the defendant and as the plaintiff had an arrangement with M/s Lada Enterprises and Mr. Vinod Ghai, the aforesaid persons started calling the plaintiff to pay balance amount due upon the defendant.
The amount which was due against the defendant is as under:
(i). Balance payment of the price of dies moulds : Rs. 2,10,000/ Sh. Rakesh Thapar Vs. Smt. Anuradha Kakkar Page No. 3 of pages 12
(ii) Payment of commission to Mr. Vinod Ghai : Rs. 48,000/
(iii) Interest @ 18% per annum : Rs.1,23,840/ Total Rs. 3,81,840/ (Rs.Three lacs eighty one thousand eight hundred and Fourty only).
M/s Lada Enterprises and Mr. vinod Ghai had an arrangement with the plaintiff only which was of course on behalf of the defendant, the said M/s Lada Enterprises and Mr. Vinod Ghai have not been paid till date alongwith interest from the plaintiff. The defendant is enjoying and selling the tea/coffee set prepared on the basis of the said dies/moulds and earning huge profit but not paid the balance amount which is to be paid through plaintiff to the M/s Lada Enterprises and Mr. Vinod Ghai. After returning from Australia the plaintiff asked the defendant to make the aforesaid balance payment but she avoided and ultimately the plaintiff through his counsel sent a legal demand notice to the defendant on 29.03.2001 through registered cover which was received returned back but the notice sent through UPC cover was served upon the defendant. The cause of action for filing the suit firstly arose on 02.08.2000 when the specification of the dias/ moulds was decided. It further arose on 28.08.2000 when the oral MOU was arrived it further arose on completion of dias/moulds in September, 2000 and thereafter it arose on various dates when the demand for payment of balance amount was made and it finally arose on 29.03.2001 when legal demand notice through counsel was sent to the defendant. It is claimed that the suit has been filed within the period of limitation and this court has territorial and pecuniary jurisdiction to try Sh. Rakesh Thapar Vs. Smt. Anuradha Kakkar Page No. 4 of pages 12 and entertain the suit and the suit has been properly valued for the purpose of jurisdiction and court fee and appropriate court fee has been paid.
3. The defendant contested the suit by filing her written statement and alongwith her written statement she has also filed her counter claim wherein she has claimed that the suit as filed by the plaintiff is wrong and misconceived, the plaintiff has suppressed the actual and material facts from the court, the claims of the plaintiff are false and misleading, the memorandum of understanding dated 28.08.2000 filed by the plaintiff is a fabricated documents also it does not bear the signatures of any other person except the plaintiff rather the actual MOU entered between he plaintiff and the defendant dated 07.08.2000 which bears the signatures of both of them. Further plaintiff has claimed in para No. 6 of the plaint that an oral MOU was entered into on 28.08.2000. The plaintiff has also fabricated the E-mails. It is also claimed that the suit is bad for non joinder of necessary parties and is liable to be dismissed. The plaintiff has failed to include Vinod Ghai and Gulzari Lal Bhardwaj as necessary parties in the suit. The plaintiff has not given his correct address in the suit. The plaintiff has not paid any money to Vinod Ghai or Mr. Gulzari Lal Bhardwaj. The plaintiff has no direct interest in the suit. The suit is a disparate attempt by the plaintiff to avoid the criminal action as the defendant has filed a complaint against the plaintiff with the police for cheating, misappropriation and criminal breach of trust. Although it is correct that plaintiff had introduced the defendant with Mr. Vinod Ghai and Mr. Guljari Lal Bhardwaj and for the manufacturing of dias/mould and a MOU and a non Sh. Rakesh Thapar Vs. Smt. Anuradha Kakkar Page No. 5 of pages 12 disclosure and non circumvention agreement both dated 07.08.2000 were made between the parties and the defendant gave an advance money of Rs.5000/ as a commission to the plaintiff and she subsequently gave a cheque of Rs.2,70,000/ to the plaintiff for giving to Mr. Gulzari Lal Bhardwaj as an advance for completion of the aforesaid work, however the plaintiff left for Australia and in his absence when she contacted Mr. Ghai and Bhardwaj they told her that they have received no advance from the plaintiff. Finally on 20.09.2000 Mr. Vinod Ghai came to her house in her absence and gave some bits and pieces of stainless steel but they were not according to her specification and requirement. Then she made inquiries about the plaintiff and she was shocked to know that the plaintiff had cheated many people of their money in the aforesaid manner. She accordingly lodged a criminal complaint against the plaintiff and during the course of inquiry conducted by PW Cell of Delhi Police it was admitted by Mr. Ghai and Gulzari Lal Bhardwaj on 09.03.2003 the stainless pieces delivered by them was not dias/moulds and it costs them Rs.10000/. The plaintiff was questioned by the police on 12.06.2003 and he claimed before the police that he had filed a suit against the defendant. It is denied that the plaintiff is a family friend of defendant. Mr. Vinod Ghai was introduced as a defendant as an agent of the plaintiff and the defendant paid a sum of Rs. 5000/ to him and Mr. Vinod Ghai introduced the defendant to Mr. Bhardwaj as a manufactures of tea/coffee moulds. The amount of Rs.2,70,000/ given to the plaintiff by the defendants were to be paid by the plaintiff to Mr. Bhardwaj. The factum of the receipt of legal demand Sh. Rakesh Thapar Vs. Smt. Anuradha Kakkar Page No. 6 of pages 12 notice has been denied.
4. In her counter claim the defendant has claimed that at the instance of plaintiff she had paid an amount of Rs. 5000/ to Mr. Vinod Ghai and the commission for finding manufactures for dias/moulds required for the production of tea/coffee sets. Mr. Ghai introduced her with Mr Gulzari Lal Bhardwaj as a manufacturer of aforesaid items. Therafter in the meeting held between defendant and Gulzari Lal Bhardwaj she was agreed that she would pay an advance of Rs.2,70,000/ to Mr. Bhardwaj and in return Mr. Bhardwaj would supply the defendant the dias/moulds by 20.08.2000. On 04.08.2000, the defendant gave a cheque of Rs.2,70,000/ to the plaintiff as an advance payment for Mr. Bhardwaj. However, thereafter no information regarding the progress of the work was given to the defendant by any of them. The plaintiff without giving any details left for Australia and in his absence when the defendant contacted Mr. Ghai and Bhardwaj she came to know that they have received no advance from the plaintiff. During the course of inquiry conducted by the police it was revealed that the stainless steel pieces manufactured by Mr. Bhardwaj were not dias/moulds and it costs them less then Rs.10000/. Both of them were not aware about the sum of money paid by the defendant to the plaintiff. The defendant has entered huge losses due to the fraud played upon her by the plaintiff and the plaintiff is liable to pay to the defendant a sum of Rs.2,75,000/ as she did not receive a single dias/moulds as agreed upon. The plaintiff is further liable to pay the sum of Rs.2,25,000/ as damages to the defendant as she was unable to meet her selling Sh. Rakesh Thapar Vs. Smt. Anuradha Kakkar Page No. 7 of pages 12 commitments and she lost several business opportunities as a result of the fraud committed by the plaintiff. The cause of action for filing the counter claim accrued on 04.08.2000 when the advance payment of Rs.2,70,000/ was made. It further arose when the plaintiff failed to supply the defendant the dias/ moulds as promised the cause of action is still continuing as the plaintiff has not refunded her money to her. It is claimed that the counter claim has been filed within the period of limitation. This court has jurisdiction to try and entertain the same. The value of the counter claim has been fixed as Rs. 5 lacs for the purposes of court fees and jurisdiction but no court fee has been affixed on the counter claim. In the counter claim/ counter claimant prayed for dismissal of the suit of the plaintiff and passing of a decree on the basis of the counter claim in favour of the defendant and against the plaintiff for a sum of Rs. 5 lacs with interest @ 18% from the date of institution of the counter claim till the payment of the decreetal amount.
5. The plaintiff filed the replication to the written statement of the defendant wherein the objections/claim taken by the defendant in the written statement has been strongly denied and the averments those were taken in the plaint were reaffirmed and reasserted. It is stated that the MOU dated 07.08.2000 is also the agreement between the parties and the same contents have been mentioned in the MOU dated 07.08.2000 the plaintiff has signed but similar to the MOU dated 28.08.2000 it was unsigned by the defendant. It is claimed that the party to the agreement were the plaintiff and the defendant and Mr. Vinod Ghai and Mr. Bhardwaj are not the party to the agreement so Sh. Rakesh Thapar Vs. Smt. Anuradha Kakkar Page No. 8 of pages 12 they are not the necessary parties to the suit. In fact, the plaintiff is a person who was responsible to pay Mr. Vinod Ghai and Mr. Bhardwaj on behalf of the defendant for performance of the work of manufacturing of aforesaid items agreed upon.
6. The plaintiff did not file written statement to the counter claim raised by the defendant, rather, he preferred an application U/o 7 Rule 11 CPC which was allowed and accordingly the counter claim as raised by the defendant on the ground that the same was filed beyond the period of limitation i.e 3 years from the date of accrual of the cause of action for filing the counter claim.
7. After rejection of the counter claim and completion of the pleadings of the parties in respect of the suit of the plaintiff the following issues were framed vide order dated 11.07.2005:
(i).Whether the suit is bad for non joinder of necessary parties?
OPD.
(ii).Whether the plaintiff is entitled to the relief of recovery of Rs.3,81,840/ as prayed for? OPP.
(iii).Whether the plaintiff is entitled to the interest, if so, at what rate? OPP.
(iv).Relief.
8. After framing of issues the plaintiff was directed to bring his evidence, However subsequently the plaintiff remained absent and ultimately the suit of the plaintiff was dismissed in default on 27.03.2006. Subsequently plaintiff moved an application for restoration of the suit. Notice of which was issued to the defendant but she could not be served by ordinary mode of service but Sh. Rakesh Thapar Vs. Smt. Anuradha Kakkar Page No. 9 of pages 12 ultimately she was directed to be served by way of publication in the newspaper "National Harald" and accordingly she was served by way of publication in the said newspaper dated 02.07.2007. But despite of service, the Defendant did not appear and accordingly she was proceeded against exparte in the application. The suit was restored to its original number and place and plaintiff was asked to bring his evidence.
9. Accordingly, the plaintiff Rakesh Thaper tendered his evidence by way of affidavit, which is Ex.P1. In the said affidavit, plaintiff reiterated and reaffirmed the contents the plaint and proved the following documents on record:
(i). Acknowledgment receipt in respect of cheque no.704995. : Ex.PW1/1.
(ii). Finalized Sketch. : Ex.PW1/2.
(iii). Balance Sheet of the plaintiff's account
showing transfer of Rs.2,70,000/ (for
starting of the project) by defendant on
07.08.2000. : Mark A & B.
(iv). Memorandum of Understanding (vide which
it was decided that the work will be completed
by 31.08.2000 and the estimated cost of the
work was calculated to be Rs.4.80 Lakhs and
first sample was to be ready by 15.09.2000. : Ex.PW1/4.
(v). Copies of Email dtd. 26.10.2000 & 02.09.02
sent by Mr. Ghai to the plaintiff demanding
the payment of balance amount. : Ex.PW1/5 &
Ex.PW1/6.
Sh. Rakesh Thapar Vs. Smt. Anuradha Kakkar Page No. 10 of pages 12
(vi). Legal Demand Notice. : Ex.PW1/7.
(vii). Returned registered cover : Ex.PW1/8.
(viii). UPC Receipt. : Ex.PW1/9.
The evidence led by the plaintiff remained uncontroverted and unrebutted on record as the defendant neither appeared to cross examine the said witness nor led any evidence in his rebuttal. Further, the counter claim preferred by the defendant also dismissed being barred by limitation upon moving of an application by the plaintiff U/o 7 R 11 CPC. As such plaintiff is entitled for a decree in his favour and against the defendant for the sum of Rs.3,81,840/ (Rs. Three Lakh Eighty One Thousand Eight Hundred Forty Only) alongwith interest @ 8% per annum from the date of filing of the suit till its realization. Cost of the suit is also awarded to the plaintiff. Decree stands passed accordingly.
10. Decree Sheet be prepared.
11. File be consigned to Record Room after completion of necessary formalities.
(Announced in the open court (RAKESH KUMAR)
today on 30.03.2010) ADDL. DISTRICT JUDGE20 (C)
Sh. Rakesh Thapar Vs. Smt. Anuradha Kakkar Page No. 11 of pages 12
Suit No.1358/08
Sh. Rakesh Thapar Vs. Smt. Anuradha Kakkar
30.03.2010
Present: Ld. counsel for plaintiff.
Proxy counsel for defendant.
Written Arguments filed by Ld. counsel for plaintiff. Oral arguments also heard.
Put up at 4.00 p.m for orders.
(RAKESH KUMAR)
ADJ20 (C)/DELHI/30.03.2010
30.03.2010 (at 4.00 p.m)
Present: As before.
Vide a separate judgment, suit of the plaintiff is decreed. Decree Sheet be prepared.
File be consigned to Record Room after completion of necessary formalities.
(RAKESH KUMAR) ADJ20 (C)/DELHI/30.03.2010 Sh. Rakesh Thapar Vs. Smt. Anuradha Kakkar Page No. 12 of pages 12