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Delhi District Court

Ms. Madhvi Jain vs M/S Berger Paints India Ltd on 18 November, 2022

      IN THE COURT OF ADDITIONAL DISTRICT JUDGE-03
       EAST DISTRICT, KARKARDOOMA COURTS: DELHI.

                   Presided by: Sh. RAJESH KUMAR
C.S. No.241/16




MS. MADHVI JAIN,
W/O SHRI RAJINDER KUMAR JAIN,
R/O 57-A/2, KRISHNA MANDIR MARG,
BLOCK-WB, SHAKARPUR,
DELHI-110092                 .......... PLAINTIFF

VERSUS

M/S BERGER PAINTS INDIA LTD.
OFFICE NO. 104, PLOT NO. 19,
SAGAR PLAZA BUILDING,
DELHI-110019,

ALSO, AT:

M/S BERGER PAINTS INDIA LTD.
A-99/3, OKHLA INDUSTRIAL AREA,
PHASE-II, NEW DELHI-110020
                                                       . .......... . DEFENDANT


           Date of Institution                :        24.10.2013
           Date of arguments                  :        09.11.2022
           Date of judgment                   :        18.11.2022

JUDGMENT

SUIT FOR DECLARATION AND CANCELLATION OF INSTRUMENT/CHEQUE BEARING NO. 013022 DATED 14.06.2013 OF RS. 13,16,806.58P. DRAWN ON KESHAV SEHKARI BANK, U-59, SHAKARPUR, DELHI AND INJUNCTION CASE OF THE PLAINTIFF.

1. The plaintiff has filed the present suit for declaration and cancellation of instrument/ cheque bearing no.013022 dated 14.06.2013 of Rs.13,16,806.58 p. drawn on Keshav Sekhari Bank, U-59, Shakarpur, Delhi and injunction against the defendant. The husband of plaintiff Shri R.K. Jain had been carrying on the business of sale and purchase of paints, distemper, white wash etc. of various companies. During the course of such business, the representatives/ employees/ sales men of the defendant, namely Mr. Bhatia, Mr. Manoj, Asstt. Sale Manager Mr. Ankit & Mr. Deepak Gauba came in contact with the plaintiff and induced her to have agency of the defendant of its product of various types paints, distemper and other allied goods of the defendant and assured of good return by way of commission, besides promising her to make prompt payment of the same as well as to make further payments in case of achieving target of the goods of the defendant besides promising to give various incentive of gifts and special discount etc. The salesmen/ representatives of the defendant accepted the above terms and conditions of the plaintiff somewhere in the year 2012 and agreed to the plaintiff on commission basis subject to the above terms and conditions. During the period of the said dealing, the employees of the defendant used to demand/ take blank cheques signed from the plaintiff so as to draw the bills as per their convenience and as per C.S. No.241/16 SMT. MADHVI JAIN VS. M/S BERGER PAINTS INDIA LTD.. Page 2 of 25 practice of the defendant and the plaintiff use to give the said blank cheques in good faith to the office of the defendant at Delhi without suspecting any foul play from the defendant. However, it was specifically agreed that the cheques so given would be encashed by the defendant subject to the approval and instruction of the plaintiff, otherwise, the cheques would not be presented. All such negotiations used to take place at the shop of plaintiff situated at 57-A/2, Krishna Mandir Marg, Block WB, Shakarpur, Delhi and sometimes at the offices of defendant situated at 104, Plot No. 19 Sagar Plaza Building, Delhi-110092 as well as sometimes at A- 99/3, Okhla Industrial Area, Phase-II, New Delhi-110020. Till then and till such period, plaintiff was not aware of any office of the defendant at Kolkata nor the employee of the defendant informed the plaintiff about the same. The plaintiff received a false and frivolous notice dated 04.07.2013 from Shri Saugata Basu, advocate from Kolkata of the defendant and plaintiff came to know about the Kolkatta office of the defendant, and then the defendant told the plaintiff that the dealing with her would be only in the jurisdiction of Delhi/New Delhi.

2. The plaintiff conducted good business of the product of the defendant and the defendant used to fill up the blank cheques, taken from the plaintiff for the purpose of making the bills and if instructed by the plaintiff, only then the cheques were encashed. Despite doing good business for the defendant, the defendant failed to provide silver card to the plaintiff pertaining to the sale conducted during the year 2012 till March 2013, also failed to pay Rs. 1 lakh despite having achieved target of 25 K.L. from 01.04.2013 to 30.04.2013, as well as failed to supply the gifts like Soap, mobile, AC( 1 ton) and discount of C.N. fort for the month of C.S. No.241/16 SMT. MADHVI JAIN VS. M/S BERGER PAINTS INDIA LTD.. Page 3 of 25 February, 2013 besides various other incentives, gifts like stainless steel set, umbrellas, electric glucose meter, ADIDAS cricket set and track-pent, LG optimus, one display gate in a new year at the shop etc. Defendant had also agreed to charge less Rs. 3 per liter due to installation of colour machine in the premises of the plaintiff from the date of installation of the same.

3. The defendant turned dishonest by not giving such incentives to the plaintiff despite achieving the target as set out by the defendant and on the contrary started making false demand without supplying the material and thus started blackmailing the plaintiff for raising bills by mentioning hefty amount not at all due from the plaintiff. When the plaintiff started raising objection to the defendant for claiming excess amount as well as mentioning the amount in the cheques as per their own whims and fancy and also when the plaintiff started demanding her above mentioned incentives, the defendant dishonestly issued a letter dated 25.05.2013 in the name of the firm of the plaintiff demanding Rs.13,11,743/- within one week. The said letter of the defendant was strongly repudiated by the plaintiff vide her notice/reply dated 07.06.2013 inter alia amongst stating being false and was not at all due from the plaintiff besides claiming her incentives as mentioned above from the defendant due to achieving sale target by the plaintiff and accordingly she called upon the defendant to fulfil their promise but the defendant failed to do the needful.

4. Instead of fulfilling the promise given by the defendant to the plaintiff, the plaintiff surprisingly received a notice dated 04.07.2013 from Saugata Basu, advocate from Kolkata thereby alleging that the C.S. No.241/16 SMT. MADHVI JAIN VS. M/S BERGER PAINTS INDIA LTD.. Page 4 of 25 plaintiff issued a cheque no. 013022 dated 14.06.2013 for Rs.13,16,806.58 p., drawn on Keshav Sehkarai Bank,U-59, Shakarpur, Delhi-92, towards her some alleged legal liability of the defendant. The said cheque on presentation was returned with the remarks "Funds Insufficient" and thus the defendant called by the plaintiff to pay such amount against the above said dishonoured cheque to their office at Kolkata, failing which threatened to initiate legal proceedings at Kolkata without considering that no part of cause of action either of civil or criminal nature ever arose within the jurisdiction of state of Kolkata and further that there was no mention of the above cheque in their letter dated 25.05.2013, which clearly establishes that the alleged amount was written in the said blank cheque after the letter dated 25.05.2013 to create a false and frivolous liability upon the plaintiff without the amount being due from the plaintiff and for which also no instruction was received from the plaintiff. Therefore, said cheque is liable to be declared illegal, invalid, inoperative, besides being nonest and said cheque is liable to be cancelled on the following grounds: -

A. The above cheque/instrument was taken in blank by the employee of the defendant only to raise bill in respect of proposed supply of goods by the defendant, thus, the said cheque was without any consideration and could not have been presented without the instruction and approval of the plaintiff.

B. The above cheque was misused by the defendant by mentioning the alleged amount not at all due from the plaintiff. C. The said cheque was not meant for encashment anywhere or at Kolkata and no part of cause of action ever arose in the jurisdiction of Kolkata, West Bengal.

D. There is/was no mention about this cheque in the letter of the defendant dated 25.05.2013, which further establishes that the amount was mentioned and manipulated subsequently by the defendant after the date of the said letter.

E. An instrument/cheque becomes void and unenforceable in law and no liability can be created on such person neither in civil or in criminal law.

F. The instrument becomes bogus and illegal on account of causing fabrication by the defendant.

G. No permission or authority of the plaintiff was taken to incorporate the alleged amount in the cheque in question by the defendant. H. It there is any dispute between the parties, then the same at the best can be of civil nature and for which defendant has to establish their claim in the court of law.

I. The said cheque was manipulated and fabricated by the defendant without their being any claim of the defendant towards the plaintiff. No case or complaint can be filed or can be initiated at Kolkata on the basis of the alleged fabricated cheque.

5. Plaintiff claimed the return of the said cheque from the defendant at Delhi from where the blank cheque was taken, however, the defendant failed to return the said cheque. Plaintiff served a legal notice dated 09.10.2013 upon the defendant calling upon the defendant to cancel the said cheque issued without any consideration. Despite service of said cheque, defendant has neither replied the same nor cancelled the cheque or declared the same as void on the contrary continued to extend threat to the plaintiff to misuse the cheque. Hence, C.S. No.241/16 SMT. MADHVI JAIN VS. M/S BERGER PAINTS INDIA LTD.. Page 6 of 25 the present suit is filed by the plaintiff.

CASE OF THE DEFENDANT AS PER WRITTEN STATEMENT

6. Summons were issued to the defendant and defendant appeared through Ld. Counsel. Defendant has filed the written statement. It is contended that present suit filed by the plaintiff is misconceived in facts and law. Plaintiff has not filed the suit with clean hands and has suppressed many material facts. Plaintiff has suppressed the fact that the subject matter of the suit i.e., cheque bearing no. 013022 dated 14.06.2013 of Rs.13,16,806.58/- was issued in favour of the defendant after reaching an amicable settlement on 14.06.2013 with the defendant company after dishonoring the same, a complaint case u/s 138 of NI Act pertaining to the same is pending in the court of Ld. CMM, Kolkata, wherein the plaintiff is standing as an accused. The plaintiff has concealed the fact that she received a summon on 31.08.2013 from the court of Ld. MM, Kolkata in CC No. 24965/13 in the above said cheque bouncing case, and only thereafter the plaintiff has chosen to institute the instant suit before the court without any jurisdiction. Plaintiff has obtained bail on 26.12.2013 in the court of Ld. MM, Kolkata. It is further contended that plaint of the plaintiff is liable to be dismissed u/o 7 rue 11 CPC for lack of proper cause of action. The plaint is liable to be dismissed as it is barred under the principles of waiver, acquiescence and estoppels.

7. The plaintiff has wrongly invoked the jurisdiction of this court. The plaintiff approached the defendant company at its head office at Kolkata for obtaining agency of its esteemed and reputed products. No promise was made from the defendant's end, except the commissions on C.S. No.241/16 SMT. MADHVI JAIN VS. M/S BERGER PAINTS INDIA LTD.. Page 7 of 25 sale of its products, rather the distribution and availment of gifts and other incentives on achieving sale targets are the discretion of the defendant company. The defendants had never made any delay or foul play in paying the commissions to the plaintiff. The work of a salesmen/ agent/ Manager representing the defendant company is limited to the extent that they have to take requisite and demands of products for sale of the agencies and thereby sending those requisites to the defendant company for supply. The salesman/ agent/ manager of the defendant company only collects the cheque after being signed and filled up properly and then sends the same to the head office of the defendant company for encashment. Plaintiff have issued the cheque in discharge of her liability in favour of the defendant company and have never issued any blank cheque to the defendant company, so there arose no possibility of taking instructions and approval from the plaintiff before presenting the cheques to the bank. Further all the goods were supplied by the defendant company from its head office on requisition of the plaintiff through its warehouses located at different part of the country. The defendant admits that its branch office is at Okhla Industrial Area, phase-II, New Delhi-110020, however, it is shocking and surprising to hear from the plaintiff that she is not aware of the head office of the company from which she has obtained an agency for selling its goods. It is denied that the notice dated 04.07.2013 from Sh. Saugata Basu was false and frivolous but the same was a valid demand of payment of sum against the goods supplied to the plaintiff. The plaintiff never achieved its targets on stipulated tie frame. Moreover, the gifts and incentives were promised to the plaintiff on achieving targets, and same is complete discretion of the defendant company. The defendant had never made any C.S. No.241/16 SMT. MADHVI JAIN VS. M/S BERGER PAINTS INDIA LTD.. Page 8 of 25 delay or foul play in paying the commission against its products and defendant had many a times supplied gift items to the plaintiff for appreciation. Moreover, even if the it is presumed that the gifts were not supplied to the plaintiff which is upon the discretion of the defendant, the plaintiff cannot deny paying its liabilities arising out of a valid business relation. The defendant company had supplied goods to the plaintiff as per her requisites and orders and the letter dated 25.05.2013 sent by the defendant company to the plaintiff demanding Rs. 13,11,743/- is a valid and legal demand which is liability of the plaintiff against the supply of the goods by the defendant to the plaintiff. It is also contended that plaintiff had issued cheque no. 013022 dated 14.06.2013 for Rs.13,16,806.58p. drawn on Keshav Sehkhari Bank U-59, Shakarpur, Delhi-92 after settling the dispute with the defendant company on 14.06.2013 and when same was presented by the defendant company for encashment to the bank of the defendant i.e., ICICI Bank Limited, Rasoi Court, 20, R.N. Mukherjee road , Kolkata , the same was dishonoured with the remark "funds insufficient", which clearly signifies the ulterior motives of the plaintiff. A legal notice dated 04.07.2013 of NI Act was served through the defendants Advocate to the plaintiff as a demand of payment.

8. The cheque in question is not mentioned in the letter dated 25.05.2013 because said cheques was issued by the defendant on 14.06.2013 after the settlement of all the disputes between the parties. the plaintiff has not submitted that the incentives were not properly paid to her or there was any delay. The plaintiff has also not submitted that the demand of Rs. 13,16,806/- was not against the supply of goods to her. The plaintiff only submitted that gifts were not given to her by the defendant company C.S. No.241/16 SMT. MADHVI JAIN VS. M/S BERGER PAINTS INDIA LTD.. Page 9 of 25 but only on this ground the plaintiff cannot escape from discharging her legal liability of payment of the said amount. The Defendants further denied all the other allegations as alleged in the plaint.

9. Replication has been filed by the plaintiff to the written statements filed by defendant. The contents of written statements filed by defendant were denied and reiterated the plaint averments in the said replication. The plaintiff also submitted that the complaint case filed by the defendant before Ld. CMM, Kolkata is absolutely false and frivolous. No settlement arrived between the parties on 14.06.2013 for the alleged amount. The alleged cheque was taken by the employees of the defendant company in blank only to raise the bills in respect of proposed supply of goods, hence the said cheque was without consideration and had been manipulated by the employees of the defendant company under their own handwriting.

ISSUES

10. Having heard the Ld. Counsels and upon completion of pleadings, my Ld. Predecessor had framed the following issues vide order dated 13.03.2014:

1. Whether plaintiff is entitled to a decree of declaration, as prayed for? OPP

2. Whether the plaintiff is also entitled to a decree of permanent injunction, as prayed for? OPP

3. Whether the plaintiff is the guilty of concealment of material facts from the court? OPD

4. Whether suit of the plaintiff is liable to be dismissed in accordance with the provisions of Order 7 rule 11 CPC for want C.S. No.241/16 SMT. MADHVI JAIN VS. M/S BERGER PAINTS INDIA LTD.. Page 10 of 25 of cause of action? OPD

5. Relief.

PLAINTIFF'S EVIDENCE

11. To prove her case, plaintiff has examined only herself as witness as PW-1. PW-1 has tendered her evidence by way of affidavit at Ex. PW1/A. PW-1 relied upon following documents: -

1. Photocopy of notice dated 04.07.2013 sent by the defendant to the plaintiff is Mark-A,

2. Original letter dated 25.05.2013 sent by defendant to the firm of the plaintiff is Ex. PW1/1,

3. Photocopy of the reply dated 07.06.2013 of the letter dated 25.05.2013 sent by the plaintiff to the defendant is Mark-B.

4. Reply dated 07.09.2013 Mark C. 5.Notice dated 09.10.2013 EX.PW1/4

6. Two postal receipts EX.PW1/5 and EX.PW1/6.

PE was closed on 20.11.2019 vide separate statement.

DEFENDANT'S EVIDENCE

12. In support of its case, defendant company has examined only one witness on its behalf as DW-1. DW-1 Shri Anant Painoli, Division Commercial Manager has tendered his evidence way of affidavit which is Ex. DW1/A and he relied upon documents:

1. Ex. DW1/1- the original resolution dated 31.12.2013 in his favour.

2. Ex. DW1/2- the copy of the criminal complaint u/s 138 NI Act filed before Kolkata court.

3. Ex. DW1/3- the copy of cheque no. 013022 drawn on Keshav Sehkhari Bank Ltd. U-59, Shakarpur, Delhi dated 14.06.2013 amounting to Rs.13,16,806.58 /-.

4. Ex. DW1/4- the copy of return memo.

DW-1 has also relied upon documents which were already exhibited as Ex. PW1/D1 (colly 16 pages), Ex. PW1/D2 to Ex. PW1/D8, Ex. PW1/1, Ex. PW1/10, Ex. PW1/D9, Ex. PW1/11 and Ex. PW1/4.

DE was closed vide separate statement dated 13.05.2022. FINAL ARGUMENTS

13. Arguments were heard on either side.

ISSUES WISE FINDINGS

14. I have given thoughtful consideration to the submissions made on behalf of parties, considered the relevant provisions of the law, testimony of witnesses and pleadings of both the parties and material on record. The issue wise finding is as under:

Issue no.3.

Whether the plaintiff is the guilty of concealment of material facts from the court? OPD The onus to prove this issue is upon the defendants. In the written statement, it is contended by the defendant that the plaintiff has not come to the court with clean hands and has suppressed the material facts from this court. According to plaintiff, subject matter of the suit i.e. cheque bearing no. 013022 dated 14.06.2013 of Rs.13,16,806.58/- was issued in favour of the defendant by the plaintiff after reaching an amicable settlement on C.S. No.241/16 SMT. MADHVI JAIN VS. M/S BERGER PAINTS INDIA LTD.. Page 12 of 25 14.06.2013 with the defendant company and after dishonor of the same constituting an offence u/s 138 NI Act, a complaint case pertaining to the same is pending in the court of Ld. Chief Metropolitan Court, Kolkata, wherein the plaintiff is standing as an accused and plaintiff has concealed the fact that she received a summon on 31.08.2013 from the court of Ld. MM, Kolkata in CC No. 24965/13 in the above said cheque bouncing case prior to the filing of the present case, and also obtained bail on 26.12.2013 in the court of Ld. MM, Kolkata. Perusal of plaint shows that the plaintiff has not mentioned about pendency of the aforesaid complaint case in the court at Kolkata and in her replication the plaintiff has merely stated that the aforesaid complaint case filed by the defendant before the court at Kolkata is absolutely false and frivolous, as no settlement in this regard between the parties arrived on 14.06.2013. In the prayer clause (b) of plaint also it is mentioned that plaintiff be restrained from initiating any unlawful legal proceedings regarding the cheque in question. No reasonable explanation has been given by the plaintiff in the replication as to why the fact regarding pendency of the aforesaid complaint case at Kolkata was not mentioned. Even in the evidence by way of affidavit filed by the plaintiff, the plaintiff has not mentioned about the pendency of the aforesaid case.

Hence, this court is of the view that despite having knowledge plaintiff has concealed the fact regarding pendency of the aforesaid complaint case u/s 138 NI Act at Kolkata. Hence, issue no. 3 is decided against the plaintiff and in favour of defendant.

15. Issue no. 1.

Whether plaintiff is entitled to a decree of declaration, as prayed for? OPP C.S. No.241/16 SMT. MADHVI JAIN VS. M/S BERGER PAINTS INDIA LTD.. Page 13 of 25 The onus to prove this issue is upon the plaintiff. To prove her case, plaintiff has examined only one witness herself as PW-1. In the present issue, plaintiff has sought a decree for declaration and cancellation of the instrument/ cheque bearing no. 013022 dated 14.06.2013 for Rs.13,16,806.58p/- in favour of plaintiff and against the defendant and its officials thereby declaring the said cheque as void and illegal as well as to declare the said cheque as cancelled. In order to prove her claim one contention of the plaintiff is that aforesaid cheque was taken in blank by the employee of the defendant only to raise bill in respect of proposed supply of goods by the defendant and aforesaid cheque was without any consideration which could not have been presented without the instruction and approval of the plaintiff. Another contention of the plaintiff is that the defendant promised to offer incentives, gifts etc. for sale of the products, and as the defendant did not provide incentives, gifts, etc. as promised , the plaintiff is not liable to pay any outstanding amount, if any.

16. In order to prove the first contention plaintiff stated that aforesaid cheque was misused by the defendant by mentioning the alleged amount not at all due from the plaintiff. It is pertinent to note here that as per the averments of the plaint the signature of the plaintiff on the cheque in dispute is not is denied. It is not the case of the plaintiff that her signature on the cheque was obtained by putting her under pressure or coercion or under compelling circumstances. As per the averments of the plaint itself, it is clear that plaintiff herself signed the cheque willfully and even handed over the same to the employees of the defendant. The onus is upon the plaintiff to show that the cheque was blank and was not issued against the delivery of any good supplied by the defendant. It is pertinent to C.S. No.241/16 SMT. MADHVI JAIN VS. M/S BERGER PAINTS INDIA LTD.. Page 14 of 25 note here that none of the documents produced and relied upon by the plaintiff relates to the business transaction between the plaintiff and the defendant. During cross-examination the plaintiff/PW-1 admitted that she had taken the dealership of the defendant company. Plaintiff stated in her cross-examination that dispute with the defendant arose in the year 2013. The PW-1 also stated that her accountant Sh. R.K Gupta used to maintain the account in the register at her shop. Plaintiff also stated that account of her shop was not audited. Plaintiff also admitted that stock register, purchase register, sale register, and ledger were never maintained at her shop. The plaintiff admitted that she has not filed stock register, ledger account, bills, trading account, profit and loss account, balance sheet of all the disputed years, more particularly from the year 2013-2013 and 2013- 2014. The plaintiff also stated during her cross-examination that she never checked the authority of any sales person of the defendant company as to whether he was authorized to offer such schemes, incentives, targets, on behalf of the defendant company.

17. The plaintiff also stated during her cross-examination that the defendant entered into terms and conditions with her as stated by her in para No.1of the affidavit but she cannot produce any document to show that defendant had entered into particular terms and conditions with her. The plaintiff has also admitted that she has not produced the bills against which goods were supplied to her by the defendant from time to time. The plaintiff admitted that as soon as the goods were delivered to her, the defendant used to issue invoices thereto and the amount of the goods used to be mentioned in the invoices, and she used to make all the payments by way of cheques only. The plaintiff also admitted that copies of bills Mark A C.S. No.241/16 SMT. MADHVI JAIN VS. M/S BERGER PAINTS INDIA LTD.. Page 15 of 25 to Mark D produced by the defendant bears stamp of the plaintiff firm which was put by the authorized employee of the plaintiff. The plaintiff also stated that she cannot show any agreement that defendant company used to take blank cheques from her. The plaintiff also admitted the she has not filed any documents to show that the defendant had agreed to give silver card, mobile, AC (.5 ton), CN discount for the month of February 2013, BP Primer Drum, other gifts, AC of ½ ton in respect of March,2013 as well as incentives like stainless steel set, umbrellas, electric glucose meter, adidas cricket set, track paint, LG Optimus, one display gate in a year as well as Rs. 3 less per litre due to installation of colour machine in the premises of the plaintiff. The plaintiff also admitted that she has not sent any letter to the defendant regarding not providing her abovesaid incentives. The plaintiff also admitted that defendant sent her letter dated 25.05.2013 EX.PW1/1 for recovery of dues and she has not filed statement of account enclosed with the same as the same was sent by the defendant. The plaintiff also admitted that in reply dated 07.06.2013 EX.PW1/D9 she for the first time raised the issue of incentives and schemes. The plaintiff also admitted that in her evidence by way of affidavit she has not mentioned as to what targets were given to her and what targets she had achieved monthly, quarterly and year wise. The plaintiff also admitted that she had not mentioned the fact of Rs. 3 per liter will be charged less due to installation of colour machine in any notice or reply sent by her to the defendant whereas same is mentioned in her affidavit and plaint. The plaintiff also admitted that in her reply dated 07.06.2013 Ex.PW1/D11, plaintiff stated to the defendant that until and unless her claims regarding aforesaid incentives and schemes are settled, the plaintiff will not make any C.S. No.241/16 SMT. MADHVI JAIN VS. M/S BERGER PAINTS INDIA LTD.. Page 16 of 25 payment. The plaintiff also admitted that after the dishonour of the cheque in question, the defendant issued a notice EX.PW1/D10 and defendant gave her 15 days to clear the amount and when plaintiff failed to clear payment, the defendant filed a complaint case u/s 138of NI Act against her in Kolkata. The plaintiff also admitted during her cross-examination that she had not written any letter to the defendant to the effect that the colour machine was lying defected and no technician came from the office of the defendant to repair the same. The plaintiff also admitted that plaintiff did not maintain the record of any of the security cheques given to the defendant. The plaintiff also admitted during cross-examination that plaintiff did not file any case or complaint to take back the cheques. The plaintiff also admitted that present case was filed after the defendant filed complaint case against the plaintiff in Kolkata. The plaintiff also admitted that plaintiff has not filed any case in respect of four cheques as mentioned in her reply dated 07.09.2013 EX.PW1/D11 against the defendant and she cannot tell the particulars of those four cheques and particulars of those cheques is also not mentioned in the aforesaid reply dated 07.09.2013.

18. DW1 Sh. Anant Painoli was duly cross-examined by the Ld. Counsel of the plaintiff. The DW during cross-examination admitted that the cheque in question , is not mentioned in the letter dated 25.05.2013 EX.PW1/1 but witness also stated that the disputed cheque was given by the plaintiff after said letter EX.PW1/1. No other questions were asked on behalf of the plaintiff from the DW to discredit the stand of the defendant to show that plaintiff never issued the cheque in question after the letter dated 25.05.2013.

19. In view of the above, it is evident that plaintiff has not placed C.S. No.241/16 SMT. MADHVI JAIN VS. M/S BERGER PAINTS INDIA LTD.. Page 17 of 25 any document to prove that the cheque in question was not issued against any transaction between plaintiff and defendant. The plaintiff has not placed on record any bills, statement of account etc. to prove that plaintiff has no outstanding liability against the defendant. The plaintiff has also not been able to prove that the cheques issued by the plaintiff to the defendant were subject to the approval of the plaintiff as no written agreement was placed on record and proved by the plaintiff to corroborate her contention. The plaintiff contends that blank cheque was given to the defendant without mentioning any amount but defendant contends stated that duly filled cheques were given. In absence of any documentary evidence, the contention of the plaintiff does not inspire confidence, hence it is difficult to believe that the plaintiff issued blank cheque to the defendant without mentioning any amount.

20. Even if one is to believe, though not pleaded, that the cheque in question was given to the plaintiff in blank the plaintiff having done so, impliedly authorized the defendant to fill up the amount thereon and realize thereunder the monies due to him. There is a presumption in law of liability of a person signing a cheque and when the said person pleads that the cheque was signed in blank and handed over to another, there is a presumption of the person to whom blank signed cheque is delivered/handed over being authorized to fill up the same. Reference in this regard can be made to Purushottam Maniklal Gandhi Vs. Manohar K.Deshmukh MANU/MH/1188/2006, MOJJ Engineering Systems Ltd. Vs. A.B. Sugars Ltd. 154 (2008) DLT 579, Vijender Singh Vs. Eicher Motors Ltd. MANU/DE/2021/2011 and Puneet Kumar Agarwal Vs. M/s Imaginations Agri Exports MANU/DE/0822/2013. It is settled law that it is C.S. No.241/16 SMT. MADHVI JAIN VS. M/S BERGER PAINTS INDIA LTD.. Page 18 of 25 open to a person to sign and deliver a blank or incomplete instrument, and it is equally open for the holder to fill up blanks and specify the amount therein. The Hon,ble Supreme Court in T. Nagappa Vs. Y.R. Murlidhar (2008) 5 SCC 633 discussing the scope of Section 20 of the Negotiable Instruments Act held that by virtue of the said provision a right is created in the holder of the cheque, which prima facie authorises the holder to complete the incomplete negotiable instrument, subject to conditions contained therein. In Vijender Singh Vs. Eicher Motors Limited MANU/DE/2021/2011 it was held a blank cheque signed and handed over meant that the person signing it had given implied authority to the holder to fill up the blank which he had left and the person issuing a blank cheque is to understand the consequences of doing so and cannot escape his liability only on the ground that blank cheque had been issued.

21. Another contention of the plaintiff is that as the defendant promised to offer incentives, gifts etc. for sale of the products, and as the defendant did not provide incentives, gifts, etc. as promised, the plaintiff is not liable to pay any outstanding amount, if any. This contention of the plaintiff itself appears to be self-contradictory, because at one place plaintiff is contending that blank cheque was issued to the defendant but same was subject to the approval of the plaintiff in respect of the proposed supply of goods by the defendant and hence the cheque was without any consideration, while on the contrary plaintiff stated that unless and until the claims of the plaintiff regarding incentives, gifts, etc. for sale of products are settled, the plaintiff will not make any payment. The plaintiff has admitted this fact and same was mentioned in his reply dated 07.09.2013 EX.PW1/D11. Hence plaintiff has admitted her liability for the amount to C.S. No.241/16 SMT. MADHVI JAIN VS. M/S BERGER PAINTS INDIA LTD.. Page 19 of 25 be paid to the defendant. Moreover, no documents have been placed on record by the plaintiff to prove that the defendant has ever agreed or bound itself to pay any incentives, gifts, etc. as mentioned in the plaint. Even for the sake of arguments it is presumed that the defendant has any monetary liability towards the plaintiff, this cannot be a ground to declare the cheque in question as illegal and null and void. Admittedly the plaintiff has not mentioned the amount in the plaint which the defendant was required to pay nor any documentary evidence has been filed to prove the same. Hence there is no merit in the contention of the plaintiff that as the defendant has not fulfilled its promise to provide incentives, gifts, etc., the plaintiff is entitled for declaration that the cheque in question be declared as null and void. In view of the above discussion, this court is of the view that none of the grounds raised by the plaintiff entitles the plaintiff to seek a declaration that the cheque in question is void and illegal. Hence, issue no. 1 is decided in favour of the defendant and against the plaintiff.

22. Issue no. 2 Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for?

The onus to prove this issue is upon the plaintiff. The plaintiff has prayed that the defendants and its officials be restrained from initiating any legal proceedings in respect of the cheque in question at Kolkata Court (India) which has no jurisdiction to entertain any case regarding the same. In order to prove this issue, the plaintiff has raised two grounds. First ground is that plaintiff issued to the defendant the cheque in question in blank without mentioning any amount and defendant cannot claim any liability against the same as the cheque was not issued against any C.S. No.241/16 SMT. MADHVI JAIN VS. M/S BERGER PAINTS INDIA LTD.. Page 20 of 25 outstanding towards the defendant, hence same was without any consideration. In view of the discussion of issue no. 1, this court has already answered the first contention of the defendant, hence there is no need to discuss the same as there is no merit. Another contention of the plaintiff is that the Kolkata court has no jurisdiction, hence the defendant be restrained from initiating any unlawful legal proceedings in respect of the cheque in question. It is pertinent to mention here that as per written statement a complaint case having CC No24965/2013 regarding dishonour of the cheque in question had already been filed by the defendant against the plaintiff before the court of Ld. Metropolitan Magistrate in Kolkata and the defendant had already received the summons of the same, on 31.08.2013 prior to filing of the present suit, and the plaintiff had obtained bail on 26.12.2013. The fact regarding aforesaid case is not mentioned by the plaintiff in the plaint of this case. This court while deciding issue no.3 has already observed that the plaintiff has concealed this fact from the court. The plaintiff in her replication has only stated that the case filed by the defendant in Kolkata is absolutely false and frivolous but no explanation has been given as to why this fact was not mentioned in the plaint. Admittedly no other civil proceeding regarding the recovery of the cheque amount is filed by the defendant against the plaintiff in Kolkata court. From perusal of the prayer clause of the plaint it is evident that no relief is sought by the plaintiff to restrain the defendant from proceeding with the aforesaid complaint case of dishonour of the cheque which is pending in the court at Kolkata. Moreover, relevant portion of Section 41 of The Specific Relief Act which sets out the circumstances where the relief of Injunction cannot be granted are as follows.:

(a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;

(b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought;

(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter;

23. As far as Section 41(a) is concerned, it is to be noted that the plaintiff has nowhere claimed that filing of the complaint case by the defendant at Kolkata or civil case for recovery will lead to multiplicity of proceeding. Admittedly only one complaint case u/s 138 of NI Act is pending between the parties at Kolkata and no civil suit for recovery of the amount mentioned in the cheque, is pending between the parties. Hence no injunction can be granted in favour of the plaintiff as per section 41(a) of the Specific Relief Act, 1963. As far as Section 41(b) is concerned it has been held in M/S Aristo Printers Pt. Ltd. vs Purbanchal Erade Centre , AIR 1992 Guwahati 81that the criminal court in which proceeding u/s 138 of NI Act are pending is not subordinate to civil court and are not in the same hierarchy of courts. Hence in view of section 41(b) also this court cannot grant injunction in favour of the plaintiff as the court at Kolkata where criminal case u/s 138 of NI Act is pending is not subordinate to this court. Moreover, as per section 41(d) of the Specific Relief Act 1963, no injunction can be granted to restrain a person from instituting and proceeding with a criminal matter. Hence neither the relief of mandatory injunction nor relief of permanent injunction can be granted in view of section 41(d).

24. The plaintiff has sought relief of permanent injunction, restraining the defendant from initiating the any civil proceeding for recovery of cheque amount in Kolkata on the ground of territorial jurisdiction. It is to be noted that in Civil Cases when the suit is filed, a plaintiff believes that the civil court before which he has filed the plaint has jurisdiction to try and decide the suit and therefore, he expressly and categorically declares in the plaint that the court does have jurisdiction, however, the defendant is free to impugn the jurisdiction. However, it is settled principle of law that the challenge to jurisdiction has to be raised before the same court. The civil court has inherent jurisdiction to decide its own jurisdiction. It is possible that the court arrives at a conclusion that it has no jurisdiction. If the court proceeds to decide a decree without jurisdiction, such decree is null and void. Hence the question whether a court has jurisdiction or not, has to be decided by the same court where the suit is filed, but with a presumption in favour of existence of jurisdiction. Hence this court cannot decide the issue of jurisdiction as no suit of recovery of cheque amount is pending before this court. Hence, issue no. 2 is decided in favour of defendant and against the plaintiff.

25. Issue no.4.

Whether suit of the plaintiff is liable to be dismissed in accordance with the provisions of Order 7 rule 11 CPC for want of cause of action?OPD Onus to prove this issue is upon the defendant. It is contended in the written statement that plaint of the plaintiff is liable to be dismissed under Order 7 rule 11 CPC for lack of proper cause of action.

26. The defendant has submitted that the entire claim of the plaintiff is without any cause of action. The plaintiff has filed the present suit praying that the cheque in question issued by the plaintiff in favour of the defendant be declared null and void and the defendants be restrained from initiating any unlawful proceeding in respect of said cheque at Kolkata as court of Kolkata has no territorial jurisdiction to entertain the case regarding the same. The plaintiff in the plaint has not claimed that the cheque in question was signed by her under the force, fear or undue influence created on behalf of the defendant. The contention taken by the plaintiff that the amount in the cheque was not filled by the plaintiff is an issue which is to be decided by the court where the suit or criminal proceeding for recovery of the amount mentioned in the cheque, will be filed. Moreover, plaintiff has not filed any documentary evidence alongwith the plaint to substantiate her claim that the cheque in question was without any consideration. Another contention of the plaintiff is that the defendant offerred to provide incentives, gifts etc. but failed to provide the same, therefore, the plaintiff is not liable to pay any amount to the defendant. This contention of the plaintiff itself appears to be self contradictory as at one place the plaintiff denies liability of the cheque amount, while on the other hand the plaintiff indirectly admits liability but refuses to fulfill its liability towards the defendant on the ground that the defendant failed to provide incentive/ gifts etc. Moreover, alongwith the plaint, no documents were filed by the plaintiff to show that the defendant agreed to provide any incentive/gifts etc for the sale of products on achieving the targets. Moreover, the veracity of the cheque in question and liability of concerned person in its respect is to be decided not only in C.S. No.241/16 SMT. MADHVI JAIN VS. M/S BERGER PAINTS INDIA LTD.. Page 24 of 25 criminal case u/s 138 of the NI Act but also in the civil suit for recovery, if any to be filed by the defendant. Apparently, the plaintiff filed this suit pre- emptorily to dent the claim of the defendant. There are wholly unnecessary proceedings burdening the docket of the court. The suit in shape of debarring the opposite party is not maintainable. Non-existence of this suit, on the other hand, will not jeopardize the plaintiff as the plaintiff will have ample opportunity to establish her claim and will not be rendered remediless. Hence the present suit is found to be incompetent and pre- emptory.Hence, this court is of the view that on perusal of averments in the plaint, it does not disclose a cause of action. Hence, issue no.4 is decided in favour of defendant and against the defendant.

RELIEF

27. In view of above discussion, plaintiff has not been able to prove her case on the touchstone of preponderance of probability. Hence, the following order:

ORDER The suit of the plaintiff is dismissed. There is no order as to costs. Digitally signed by Decree sheet be prepared accordingly. RAJESH RAJESH KUMAR File be consigned to record room as per rules. KUMAR Date:

2022.11.18 16:15:07 +0530 Typed to the dictation directly, (Rajesh Kumar) corrected and pronounced in Additional District Judge-03, open court on18.11.2022 East District/KKD Courts, Delhi.