Delhi District Court
Chand Mehra And Ors vs Gurdeep Walia on 5 September, 2023
IN THE COURT OF SH RAJESH KUMAR SINGH
DISTRICT JUDGE (COMMERCIAL) (DIGITAL)-07
SOUTH-EAST, SAKET COURT, DELHI
Civil Suit (Comm.) No. 584/2022
CNR No. DLSE01-005408-2022
1. Chand Mehra
S-555, Greater Kailash-II,
New Delhi-110048
And
2. Rosheni Mehra
S-555, Greater Kailash-II,
New Delhi-110048
......Plaintiffs
Vs.
1. Gurdeep Walia
7A/3 Friends Colony,
New Delhi-110065
And
2. Gourmet Planet
A-184, Defence Colony
New Delhi-110024
...... Defendants
Date of E-filing (institution) of suit : 06.06.2022
Date of hearing of final argument : 26.08.2023
Date of Judgment : 05.09.2023
SUIT FOR RECOVERY OF ₹4,04,586/- ALONGWITH
PENDENTELITE AND FUTURE INTEREST @20% PER
ANNUM UNDER THE COMMERCIAL COURTS ACT
RAJESH
KUMAR
SINGH
Digitally signed
by RAJESH
CS (COMM) 584/22 CHAND MEHRA & ANR Vs. GURDEEP WALIA & ANR. PAGE No. 1 OF 20 KUMAR SINGH
Date: 2023.09.05
15:25:51 +0530
JUDGMENT
1. Plaintiffs have filed the suit for recovery of ₹4,04,586/- with pendente lite and future interest at the rate of 20% per annum. The break up of the claim is as follows:-
(i) ₹1,60,000/- given by the plaintiffs to the defendant on 18.08.2018 towards the Colombo, Sri Lanka Gourmet Food Experience Trip.
(ii) Interest of ₹ 1,14,586/- at the rate of 20% on the principal amount of ₹1,60,000/- calculated for the period 01.11.2018 till 15.05.2022.
(iii) Damages of ₹30,000/- towards out of pocket cost that plaintiffs incurred because defendant no. 1 unilaterally canceled the agreement/contract and because the plaintiffs had to make alternative arrangements for a trip to Sri Lanka.
(iv) Punitive damages of ₹1,00,000/- for slandering plaintiffs, causing emotional trauma, causing harassment, indulging in unethical conduct etc.
(v) Pendente lite and future interest at the rate of 20% per annum, cost of the suit and legal expenses of the plaintiffs.
2. Summons were issued to the defendant vide order dt. 07.06.2022. Defendant could not be served through post and ordinary process. He was finally served for 23.01.2023 through email. The email was sent by the Nazarat Branch on 16.12.2022. Ld. Counsel for the defendant appeared after the matter was adjourned RAJESH and submitted that the defendant was ready to pay the principal KUMAR SINGH Digitally signed by RAJESH KUMAR SINGH CS (COMM) 584/22 CHAND MEHRA & ANR Vs. GURDEEP WALIA & ANR. PAGE No. 2 OF 20 Date: 2023.09.05 15:25:58 +0530 amount of ₹1,60,000/- towards full and final settlement. He had brought a bankers cheque. The parties were referred for Mediation. The mediation failed.
3. The defendant moved an application for correction of his name in the memo of parties. In the memo of parties filed with the plaint Mr. Gurdeep Singh is shown as Defendant no. 1 and Gourmet Planet is shown as Defendant no. 2. The correction was allowed and plaintiff filed the amended memo of parties showing Mr. Gurdeep Walia as Defendant no. 1 and Gourmet Planet as Defendant no. 2. In the amended memo of parties, the name of the defendant is spelled as "Gurdip" instead of "Gurdeep". Gourmet Planet is not a legal person and therefore, it was not to be separately impleaded as a defendant. Accordingly, defendant no. 2 is deleted from the array of parties. Hereinafter Mr. Gurdeep Walia will be referred to as the Defendant.
4. After the mediation failed, the defendant deposited two FDRs in the court without prejudice to his rights. The first FDR was for ₹1,60,000/- (maturity value ₹ 1,71,835/-) and the second FDR was for ₹ 43,200/- (maturity value ₹46,395/-). Vide order dt. 16.05.2023 issues were framed and by the same order it was directed that the FDR for ₹1,60,000/- be released to the plaintiffs.
5. The case of the plaintiffs in brief is that defendant also known as Sonny Walia is promoter of "Gourmet Planet" on social media Platforms such as Facebook, Instagram etc. He organizes various events and invites the members to participate on making payment. RAJESH KUMAR Plaintiffs became members of the group in 2017 on the invitation by SINGH Digitally signed by RAJESH KUMAR SINGH CS (COMM) 584/22 CHAND MEHRA & ANR Vs. GURDEEP WALIA & ANR. PAGE No. 3 OF 20 Date: 2023.09.05 15:26:08 +0530 the defendant. The defendant organized events in 2017 and 2018. The plaintiffs participated in the trip to Kashmir in 2017.
6. On 14.08.2018, the defendant published a post inviting the members to join a Gourmet food experience trip to Colombo from 28.09.2018 to 02.10.2018. It is apposite to reproduce the invitation which reads as:-
"I have worked hard to bring to you 4 magical nights bespoke and specially curated trip to Colombo, Sri Lanka around the 2nd October weekend.
This package includes the following-
● Visa support documents
● Accommodation in Shangri-La Hotel which
has opened just a few months back and
rooms in premium category and updated
● All transfers
● Vehicles available for 10 hours for a group of
4 guests
● Breakfast (in the hotel)
● Economy class airfare
● Day trip to Galley
Working on a few extras as well
Meals planned at some of the best restaurants in Colombo like Ministry of Crab, Nihonbashi as well as some quaint and small restaurants left by the RAJESH KUMAR SINGH Dutch Settlers. Digitally signed by RAJESH KUMAR SINGH CS (COMM) 584/22 CHAND MEHRA & ANR Vs. GURDEEP WALIA & ANR. PAGE No. 4 OF 20 Date: 2023.09.05 15:26:14 +0530 Food is very cheap and currency being 1 INR = 2.2 LKR makes it a great value for money place to visit. The entire cost of this trip is coming to ₹80,000/- on twin sharing and ₹ 1,05,000/- on single occupancy (these are approx now)
7. Plaintiff no. 1 requested the defendant to allow him and plaintiff no. 2 to return from Sri Lanka on 05.10.2018. The defendant agreed. Tickets were booked. The plaintiffs also applied for the visa. The defendant subsequently informed the participants to keep approximately USD 500 for Food. The defendant also shared an estimate of the expected cost of food at different restaurants. The email is at page 24 of the documents filed by the plaintiff. Plaintiff no. 1 raised query about the expenses vide email dt. 20.09.2018. Defendant felt insulted and sent email dt. 21.09.2018. He asked whether the plaintiff no. 1 wanted him to put their trip under cancellation and refund. Plaintiff wrote a detailed email dt. 22.09.2018 which is at page 21 and 22 of the documents of the plaintiff. Ultimately the defendant canceled the trip.
8. On 22.09.2018, the plaintiff no. 1 requested the defendant to allow the plaintiffs to retain the air tickets. He told the defendant that one of the reasons for the plaintiffs to agree for the trip was that they wanted to visit their friend in Sri Lanka from 02.10.2018 to 05.10.2018. The said friend was battling with stage IV Cancer. The defendant declined the request and stated that part cancellation of RAJESH KUMAR the trip was not possible. The emails are at page 17 and 18 of the SINGH Digitally signed by RAJESH CS (COMM) 584/22 CHAND MEHRA & ANR Vs. GURDEEP WALIA & ANR. PAGE No. 5 OF 20 KUMAR SINGH Date: 2023.09.05 15:26:20 +0530 documents of the plaintiff. The plaintiffs had to purchase alternate tickets to go to Sri Lanka. Thereafter, the communication for the refund started. Initially, the defendant stated that there would be deduction of 10-15%. However, subsequently he agreed to make the complete refund. The defendant sent whatsapp message to the group members on 14.11.2018 stating that he would be seeking the bank details of the members by 26th of the month for the refund.
9. The defendant did not return the amount. On 19.12.2019, the defendant telephonically told the plaintiffs that the amount of ₹1,60,000/- was safe with him as a fixed deposit and he would pay interest at the rate of 20%. In the emails sent by plaintiff no. 1 to the defendant, it was mentioned that he had agreed to repay the principal amount with interest at the rate of 20%. Before filing of the suit, the plaintiffs approached South-East DLSA for pre- institution mediation. As per report of South-East DLSA dt.
29.04.2022, the defendant did not appear in the pre-institution mediation despite two notices and the proceedings were closed as non-starter.
10. The defendant filed WS in which the primary contention is that money was received from the plaintiffs in cash and it was returned in cash. However, to buy peace he is ready to pay the principal amount with interest at the rate of 6% per annum for 54 months i.e. 18.08.2018 to 17.02.2023 and for this he deposited the FDR for ₹43,200/-. It is a rule of mediation that the terms of proposed settlement and the details of the negotiations should not be RAJESH disclosed if the mediation fails. However, the defendant mentioned KUMAR SINGH Digitally signed by RAJESH KUMAR CS (COMM) 584/22 CHAND MEHRA & ANR Vs. GURDEEP WALIA & ANR. PAGE No. 6 OF 20 SINGH Date: 2023.09.05 15:26:28 +0530 in the written statement that he had offered to pay to the plaintiffs in the mediation the principal amount with 6% interest. He generally denied the claims under various heads and also stated that the suit is barred by limitation. There is no specific reply to the averments made in para 1 to 43 of the plaint. It is cryptically stated that averments made in these paragraphs of the plaint are denied.
11. Plaintiffs filed replication to the WS. No objection was taken regarding disclosure of the proposed terms of settlement by the defendant. The plaintiffs stated that they were ready to settle the matter if the defendant paid the suit amount i.e. ₹4,04,586/- with interest at the rate of 6% per annum till the time of actual payment.
12. In the Written statement, the defendant raised the issue of limitation but it was not pressed. Defendant has himself stated that he would pay the interest with effect from 18.08.2018. If this date is taken as the date of cause of action, the limitation would expire on 18.08.2021. The period from 15.03.2020 to 18.02.2022 is to be excluded as directed by Hon'ble Supreme court in Suo Motu W.P. (C)3/20 and the plaintiff had 90 days time from 28.03.22 to file the suit. The suit was filed on 06.06.2022 i.e. before expiry of 90 days from 28.03.2022. Thus, it is clear that even from the date of cause of action disclosed by the defendant the suit is within limitation.
13. Issues were framed vide order dt. 16.05.2023. Onus of all the issues was on the plaintiffs. No issue was framed regarding the principal amount of ₹1,60,000/- as the defendant had agreed to return the amount and vide order dated 16.05.2023, the FDR RAJESH submitted by the defendant was ordered to be released to the KUMAR SINGH Digitally signed CS (COMM) 584/22 CHAND MEHRA & ANR Vs. GURDEEP WALIA & ANR. PAGE No. 7 OF 20 by RAJESH KUMAR SINGH Date: 2023.09.05 15:26:36 +0530 plaintiffs. The issues will be mentioned while examining them individually with reference to the pleadings, evidence and the arguments. Plaintiffs examined plaintiff no. 1 as PW-1. He has exhibited the documents as Ex. PW1/1 to Ex. PW1/14. He was cross examined by Ld. Counsel for defendant. The defendant did not lead evidence.
14. I have heard the arguments of Ms. Aastha Dhawan Ld. Counsel for the plaintiffs and the arguments of Mr. M. Salim Ld. Counsel for the defendant. Written arguments were filed today by Ld. Counsel for the plaintiff and I have gone through the written arguments. I have also carefully perused the record. The issues are decided as hereunder.
15. Issue No.1: Whether the defendant was guilty of breach of contract?
Section 2 (h) of the Contract Act defines contract as an agreement enforceable by law. Section 10 explains what agreements are contracts. The ingredients of a valid contract are (i) free consent
(ii) parties should be competent to contract (iii) there should be lawful consideration (iv) the object should be lawful and the agreement should not be expressly declared void by the Act.
16. Social agreements are not contracts. In his email dt. 21.09.2018 the defendant stated that he is not a travel agent. He also stated that he does not make money from Gourmet Planet. In the email dt. 22.09.2018 plaintiff no. 1 calculated the approximate cost under different heads and he did not factor any profit for the RAJESH defendant. These facts could have been pressed by the defendant to KUMAR SINGH Digitally signed by RAJESH KUMAR CS (COMM) 584/22 CHAND MEHRA & ANR Vs. GURDEEP WALIA & ANR. PAGE No. 8 OF 20 SINGH Date: 2023.09.05 15:26:42 +0530 question existence of a contract but the defendant did not raise this defence in the WS. There was a proposal by the defendant. The plaintiffs accepted the proposal and paid the amount. In absence of any pleading to the contrary by the defendant, the payment by the plaintiffs can be considered to be the consideration and we can say that there was a contract between the parties.
17. In the cross examination PW-1 was asked which terms of the contract had been violated by the defendant according to him. He stated that the defendant unilaterally tried to change the terms of the contract by asking for separate payment for the Gourmet meals. He further stated that the defendant refused to return the principal amount and to pay interest at the rate of 20% per annum w.e.f. 01.11.2018 despite agreeing to pay such interest.
18. The issue whether there was agreement to pay interest at the rate of 20% per annum will be examined while discussing issue no.
2. At this stage, it is to be seen whether the defendant altered the terms of the contract unilaterally and thereby committed breach of the contract. It is also to be seen whether cancellation of the trip by the defendant was a breach of contract?
19. A person is stated to have committed breach of the contract if he declines to perform his part of the contract. The dispute started because the defendant advised the group members to keep USD 500/- ready for the gourmet meals in Sri Lanka. The plaintiffs thought that the cost of the food was included in the cost of the tour which they had already paid. The defendant wrote e-mail dated RAJESH KUMAR 22.09.2018 to the plaintiff no. 1 in which he reproduced the SINGH Digitally signed by RAJESH CS (COMM) 584/22 CHAND MEHRA & ANR Vs. GURDEEP WALIA & ANR. PAGE No. 9 OF 20 KUMAR SINGH Date: 2023.09.05 15:26:49 +0530 post/invitation of 14.08.2018. He stated that if the plaintiffs assumed something on the basis of the Almaty mail or Kashmir trip it was not his fault. Reading of the 14.08.2018 invitation/post Ex. PW1/1 shows that the things included in the package were mentioned specifically with bullet points. These inclusions do not inclulde the meals at different restaurants at Colombo which is mentioned separately below the list of inclusions. The plaintiffs had no reason to have any doubt. If they had any doubts, they should have contacted the defendant before accepting the proposal.
20. Plaintiff no. 1 wrote e-mail dated 22.09.2018 which is at page 21 and 22 of the documents. In the said email, he admits that he had a conversation with persons called Anupama and Ron regarding the cost of the trip. He sought their perspective. He also gave a calculation of the cost of the trip. There is no evidence that the plaintiffs were willing to pay the additional amount for the food at the restaurants during the trip to Colombo. These facts show that the trip was canceled by the defendant not with a motive not to perform his part of the contract. The cancellation was occasioned due to the conduct of the plaintiffs. Plaintiffs not only questioned the rationale for charging for the food separately but they also raised this issue with others. There is no evidence that the issue was raised only for clarification and that the plaintiffs were willing to pay for the food in the restaurants in Sri Lanka separately. PW-1 has stated in his cross-examination that he told the defendant that he was cheating people. Under these circumstances, the cancellation of the trip by RAJESH the defendant was proper and there was no breach of contract by the KUMAR SINGH Digitally signed by CS (COMM) 584/22 CHAND MEHRA & ANR Vs. GURDEEP WALIA & ANR. PAGE No. 10 OF 20 RAJESH KUMAR SINGH Date: 2023.09.05 15:27:03 +0530 defendant. In the written arguments, reference has been made to inquires made by the plaintiffs with Mr. Vir Sanghvi and Ms. Marryam Reshii. These averments are beyond pleading.
21. Issue No. 2 Whether the plaintiffs are entitled for a sum of ₹1,14,586/- towards pre-suit interest @ 20% for the period 01.11.2018 to 15.05.2022? OPP It is stated in the plaint that on 19.12.2019 during a telephonic conversation, the defendant told that the amount of ₹1,60,000/- was safe with him as a fixed deposit and that he would pay interest @ 20% per annum. In his subsequent messages, plaintiff no. 1 told the defendant that he had agreed to pay interest @ 20% per annum. The defendant did not controvert the messages and never claimed that he had not agreed to pay interest @ 20% per annum. Ld. Counsel for the plaintiff read the emails and the whatsapp messages. Plaintiff no. 1 had sent whatsapp message to the defendant on 10.01.2019 in which he mentioned that he was waiting for the confirmation of the date in January 2019 when the defendant would return the amount of ₹1,60,000/- with interest @ 20% per annum w.e.f. 01.11.2018. Plaintiff no. 1 again sent similar message on 21.01.2019. The defendant did not deny that he had made promise to pay interest @ 20% per annum. He simply stated "chand ji are you back in Delhi". Plaintiff no. 1 replied in affirmative and thereafter the defendant stated "let me call you around 5 today".
22. According to the plaintiff the telephonic promise made by the defendant to pay the interest @ 20% per annum coupled with his Digitally conduct reflected from the exchange of messages, shows that there signed by RAJESH RAJESH KUMAR KUMAR SINGH SINGH Date:
2023.09.05 CS (COMM) 584/22 CHAND MEHRA & ANR Vs. GURDEEP WALIA & ANR. PAGE No. 11 OF 20 15:27:11 +0530 was an agreement to pay interest @ 20% per annum w.e.f. 01.11.2018. Plaintiff has placed reliance on Indian Oil Corporation through its Senior Manager Vs. Shree Ganesh Petroleum Rajgurunagar through its Prop. Mr. Laxman Dagdu Thite decided by Hon'ble Supreme Court on 01.02.2022. It is stated that the terms of the contract cannot be altered. Relying upon Sughar Singh Vs. Hari Singh decided by Hon'ble Supreme court on 26.10.2021 it is stated that the amendment in the Specific Relief Act which inserted Section 10 (a) will not apply retrospectively. In this regard reliance is also placed on another judgment dt. 25.08.2022 in the matter of Smt. Katta Sujatha Reddy & Anr. Vs. Siddamsetty Infra Projects Pvt. Ltd. & Ors. Reliance is also placed on the judgment dt.
23.01.2023 in the matter of the Chief Engineer, Water Resources Department & Anr. Vs. Rattan India Ltd. through its Director.
23. The judgments cited at Bar by Ld. Counsel for the plaintiff do not lay down general rule that absence of denial to certain claims made by the plaintiff in his messages would tantamount to an admission of existence of an agreement. In R. K. Gandhi & Ors. Vs. Ist Labour court, West Bengal & Ors. 2009 SCC OnLine Cal 1684, Hon'ble Calcutta High Court examined the issue whether failure to deny an allegation would amount to admission. Hon'ble High Court referred to Section 17 of the Evidence Act and came to the conclusion that admission has to be specific and in writing. In the messages exchanged between the parties, there is no express undertaking by the defendant that he would pay interest @ 20% per RAJESH annum. Such promise cannot be presumed because there was KUMAR SINGH Digitally signed by CS (COMM) 584/22 CHAND MEHRA & ANR Vs. GURDEEP WALIA & ANR. PAGE No. 12 OF 20 RAJESH KUMAR SINGH Date: 2023.09.05 15:27:19 +0530 absence of denial/rebuttal to the statements made by plaintiff no. 1 in his messages that the defendant had agreed to pay interest @ 20% per annum. This is not the rate of interest charged by the banks even for business loans. Why would the defendant offer to pay such interest?
24. There was no agreement to pay interest @ 20% per annum. The defendant had stated in his message dated 14.11.2018 at page 76 & 77 of the documents that in case he did not get the refund in 10 days, he would approach the members of the group for their account details by 26.11.2018 and he would transfer the amount from his own account. Ld. Counsel for the plaintiff submitted that in his reply to the police in response of the complaint filed by the plaintiffs, the defendant had stated that he had not received ₹1,60,000/- from the plaintiffs. In the written statement he has stated that the amount was already returned in cash but no evidence has been led in this regard. Defendant had agreed to return the amount in November 2018. His message amounts to a written instrument and plaintiffs can be granted interest under Section 3 (1) (a) of Interest Act 1978.
25. Under Section 3 (1) (a) the rate of interest cannot exceed the current rate of interest. Defendant offered to pay interest @ 6% per annum. The ICICI Bank is paying 7% interest on the fixed deposit. The rate of interest is lower for saving accounts. Plaintiffs have not lead any evidence regarding the current rate of interest. The rate of interest offered by the defendant is reasonable and interest can be awarded @ 6% per annum. Defendant offered to pay the interest for RAJESH the period 18.08.2018 to 17.02.2023. Plaintiff has claimed interest KUMAR SINGH CS (COMM) 584/22 CHAND MEHRA & ANR Vs. GURDEEP WALIA & ANR. PAGE No. 13 OF 20 Digitally signed by RAJESH KUMAR SINGH Date: 2023.09.05 15:27:26 +0530 for the period 01.11.2018 to 15.05.2022 towards the pre-institution interest. Plaintiff cannot be given interest for a period more than what he has asked towards the pre-institution interest. Therefore, plaintiff is entitled to simple interest @ 6% per annum for the period 01.11.2018 to 15.05.2022 towards pre-institution interest.
26. Issue no. 2 is decided partly in favour of the plaintiffs. They are not entitled for the interest @ 20% per annum and the amount as claimed. However, they are entitled for interest @ 6% per annum on the principal amount of ₹1,60,000/- for the period 01.11.2018 to 15.05.2022. Accordingly, they are awarded ₹34,000/- as pre- institution interest.
27. Issue No. 3 Whether the plaintiffs are entitled to a sum of ₹30,000/- towards cost incurred by the plaintiffs against alleged unilateral cancellation of the contract by the defendant? OPP Plaintiffs have claimed the amount of ₹30,000/- towards "out of pocket expenses". Ld. Counsel for the plaintiffs submitted that the defendant did not allow the plaintiffs to retain the air tickets for Colombo which had already been booked. Plaintiffs had to purchase the air tickets separately and they spent ₹40,000/- on the air tickets. Inadvertently the amount was mentioned as ₹30,000/-. It is the cost of the air tickets which the plaintiffs are claiming.
28. Ld. Counsel for the plaintiffs was asked as to how this claim is justified. Plaintiffs have claimed the refund of the entire amount of ₹1,60,000/- which included the cost of air tickets for the trip to Sri Lanka. Once they have asked for the refund of the entire amount, how can they ask the defendant to pay for the air tickets which they Digitally signed by RAJESH RAJESH KUMAR KUMAR SINGH CS (COMM) 584/22 CHAND MEHRA & ANR Vs. GURDEEP WALIA & ANR. PAGE No. 14 OF 20 SINGH Date:
2023.09.05 15:27:34 +0530 purchased after cancellation of the trip? The plaintiffs could have probably claimed the extra amount which they spent on the air tickets. This amount also would not have been awarded to the plaintiffs as they have failed to prove that the defendant was guilty of breach of contract. Ld. Counsel for the plaintiff had no answer and she could not justify this claim. In the written arguments attempt has been made to justify the claim by stating that the plaintiffs would have agreed for deduction of ₹ 40,000/- from the principal claim had the defendant allowed them to retain the tickets. It is also stated that u/S 73 of the Contract Act, the plaintiffs are entitled to claim the amount spent on the alternate air tickets. There is no substance in the explanation offered in the written arguments. The plaintiffs have asked for the complete refund of the principal amount which includes the cost of air tickets. Therefore, they cannot resort to Section 73 to claim the amount of air tickets in addition to the entire principal amount of ₹1,60,000/-. The claim is totally unjustified. The issue is decided against the plaintiffs and it is held that they are not entitled for the amount of ₹30,000/- or any other amount on account of out of pocket expenses due to cancellation of the contract by the defendant.
29. Issue No. 4 Whether the plaintiffs are entitled to damages of ₹1,00,000/- on account of emotional trauma, harassment etc as claimed? OPP.
Ld. Counsel for the plaintiffs submitted that the plaintiffs had to undergo mental trauma as the defendant did not return the amount Digitally of ₹1,60,000/- despite repeated follow-up and despite the assurance signed by RAJESH RAJESH KUMAR KUMAR SINGH SINGH Date:
2023.09.05 CS (COMM) 584/22 CHAND MEHRA & ANR Vs. GURDEEP WALIA & ANR. PAGE No. 15 OF 20 15:27:42 +0530 given by him that the amount would be returned by November 2018. Ld. Counsel further submitted that the defendant slandered the plaintiffs. When asked as to what is the evidence for slandering, Ld. Counsel for the plaintiffs submitted that the plaintiffs made a complaint to the police and in the reply the defendant alleged that plaintiffs are dishonest. The defendant also demanded investigation against the plaintiffs. Ld. Counsel further submitted that the plaintiffs wanted to place on record the copy of police complaint and reply filed by the defendant by way of the application under Order XI Rule 1 (5) CPC which was moved on 26.08.2023 but the court did not entertain the application. It is interesting to note that in the cross-examination, Ld. Counsel for the defendant asked PW-1 whether he had placed the police complaint on record of this case. PW-1 stated that there was no need to file the police complaint on record of this case. He also stated that police opined that it was a civil dispute. Attempt was made to place the document on record after the plaintiffs realized that there was no evidence for slandering. Today an application for review of the order dt. 26.08.2023 was moved. Submissions of Ld. Counsel for the plaintiff were heard and by a separate order, the application was dismissed.
30. The plaintiffs have used the ground of the illness of their friend in Sri Lanka to support the claim for mental trauma. It is stated that the friend was suffering with Stage-IV Cancer and they had planned to meet her from 02.10.2018 to 05.10.2018. They also planned to carry some Indian traditional remedies for her which were advised by her doctor in Sri Lanka. PW-1 admitted that the Digitally signed by RAJESH RAJESH KUMAR KUMAR SINGH CS (COMM) 584/22 CHAND MEHRA & ANR Vs. GURDEEP WALIA & ANR. PAGE No. 16 OF 20 SINGH Date:
2023.09.05 15:27:51 +0530 prime reason for signing up for the trip was not to meet the friend. He stated that the plaintiffs had informed the defendant that they would use the opportunity to meet the friend. Perusal of record shows that before 22.09.2018, no intimation had been given to the defendant that the friend of the plaintiffs was suffering with cancer and that they wanted to use the trip as an opportunity to meet her.
31. The claim for punitive damages is a claim under the law of torts and it does not arise out of the contract between the parties. The difference between a claim arising out of contract and a claim based on the law of torts has been explained by Pollock & Mulla in 15th Edition at page 1093 of the book "The Indian Contract Act 1872". A commercial dispute is defined u/S 2 (c) (xviii) and it should arise out of agreements for sale of goods or provision of services. The contract between the parties did not provide for punitive damages and it is not a claim arising out of the contract. Order II Rule (3) allows the plaintiffs to join the causes of action. Plaintiffs have claimed interest on the principal amount. They could have come to the court in 2019. There is no substance in the allegation that they were slandered or they suffered mental trauma due to refusal of the defendant to return the amount. The interest on the principal amount is an adequate compensation. There is no evidence to support the claim for punitive damages. The claim is totally unjustified. It is to be noted that the defendant is not guilty of breach of contract. The authority cited in the written arguments Koninlijke Philips N. V. & Anr. Vs. Amazestore & Ors. does not RAJESH help the plaintiffs. The issue is decided against the plaintiffs. KUMAR SINGH CS (COMM) 584/22 CHAND MEHRA & ANR Vs. GURDEEP WALIA & ANR. PAGE No. 17 OF 20 Digitally signed by RAJESH KUMAR SINGH Date: 2023.09.05 15:28:00 +0530 Plaintiffs are not entitled to any amount towards the claim for punitive damages.
32. Issue No. 5 Whether plaintiffs are entitled to pendente-lite and future interest? OPP If yes, at what rate ? OPP There was no agreement regarding payment of interest on the principal amount. Plaintiffs have already been granted pre- institution interest. Pendente-lite and future interest is granted under Section 34 CPC. This is a discretionary relief. The plaintiffs made unreasonable claims. They refused to accept a genuine offer made by the defendant after institution of the suit. Therefore, they are not entitled to pendente-lite and future interest. The issue is decided accordingly against the plaintiffs.
33. Issue No. 6 Whether plaintiffs are entitled for the cost of the suit? If yes, the quantum?
In the written arguments, plaintiffs have claimed cost to the tune of ₹75,000/- towards litigation cost and ₹ 6,500/- towards court fee. Detailed averments have been made regarding the conduct of the defendant starting from the beginning. Defendant claims that the principal amount had been returned before filing of the suit but he did not lead any evidence and this was also not suggested in the cross-examination of PW-1. In the order-sheet dated 16.05.2023, it is noted that Ld. Counsel for the defendant submitted that in the written statement the defendant wanted to say that he had offered to return the principal amount to the plaintiffs in cash. The defendant did not appear in the pre-institution mediation. Filing of the suit by Digitally the plaintiff for the principal amount of ₹ 1,60,000/- was justified. RAJESH signed by RAJESH KUMAR KUMAR SINGH SINGH Date:
2023.09.05 CS (COMM) 584/22 CHAND MEHRA & ANR Vs. GURDEEP WALIA & ANR. PAGE No. 18 OF 20 15:28:08 +0530 They could have also claimed the pre-institution interest. However, their claims for ₹ 30,000/- towards out of pocket expenses and ₹ 1,00,000/- towards punitive damages were totally unjustified. No evidence was led to prove the litigation expenses of ₹ 75,000/-. The plaintiffs not only made these unjustified claims but continued to press the same. Not only they pressed unjustified claims but they also moved the application under Order XI Rule 1 (5) CPC and the application u/S 151 CPC which were without merit and which led to further wastage of the precious judicial time.
34. The legal process is to be used to address the legal injuries and not to settle personal scores or to satisfy ego. In Ramarameshwari Devi & Anr. Vs. Nirmala Devi & Ors. (2011) 8 SCC 249, Hon'ble Supreme Court held that cost should be imposed for making frivolous claims.
35. Plaintiffs are entitled for the proportionate cost in respect of the relief granted to them but they are also liable to be burdened with cost for making exaggerated claims and refusing to accept bona fide offer for settlement which led to wastage of valuable time of the court. In my view, the plaintiffs should be burdened with the same cost to which they are entitled and as a result no cost would be payable to them. The cost payable to the plaintiffs by the defendant shall be deposited by the defendant in the court and the same shall be adjusted towards the cost to be paid by the plaintiffs. The court fee payable on the amount of ₹1,94,000/- is ₹4248/-. The counsel fee on the amount of ₹1,94,000/- as per the scale provided under the Delhi High Court Rules is ₹8380/-. There is also a sum of ₹1000/- RAJESH KUMAR SINGH CS (COMM) 584/22 CHAND MEHRA & ANR Vs. GURDEEP WALIA & ANR. PAGE No. 19 OF 20 Digitally signed by RAJESH KUMAR SINGH Date: 2023.09.05 15:28:19 +0530 towards pre-institution mediation charges. Therefore, the total cost is ₹13,628/-.
36. Relief Plaintiffs are entitled for a sum of ₹1,94,000/- towards the principal amount with pre-institution interest. FDR of ₹1,60,000/- has already been released to them. The plaintiffs shall inform the court about the total amount released to them by the bank so that the balance amount towards the interest of ₹34,000/- can be calculated. The defendant shall deposit the interest component in the court within two weeks of the intimation to him regarding the balance amount to be paid. Plaintiffs are entitled to cost of ₹13,628/- and the same amount is also imposed upon them as cost. Consequently, the defendant shall deposit the cost of ₹13,628/- in the State account in the court and the cost will not be paid to the plaintiffs. The cost be deposited in the court by the defendant within two weeks from the date of this judgment. Decree-sheet be prepared. File be consigned Digitally signed to Record Room. RAJESH by RAJESH KUMAR SINGH KUMAR Date:
SINGH 2023.09.05 15:28:29 +0530 (Rajesh Kumar Singh) District Judge (Comm.) Digital-07 South East, Saket Courts Delhi 05.09.2023 CS (COMM) 584/22 CHAND MEHRA & ANR Vs. GURDEEP WALIA & ANR. PAGE No. 20 OF 20