Delhi District Court
Sh. Sushil Kumar Sharma vs M/S Weizman Forex Ltd on 21 January, 2023
IN THE COURT OF SH. GAURAV RAO: ADJ - 03: NEW
DELHI DISTRICT : PATIALA HOUSE COURTS : NEW
DELHI
CS No. 56701/16 (Old No. 67/15)
CNR No. DLND01-001613-2015
Sh. Sushil Kumar Sharma
s/o Sh. Raj Kishore Sharma
Office at 114/90, Mansarover Building,
Nehru Place,
New Delhi-110019.
........Plaintiff
Vs.
M/s Weizman Forex Ltd.
Through its Director (s)
502, Indra Prakash Building,
Barakhamba Road,
New Delhi - 110001.
.....Defendant
AND
CS No. 166/2016 (Old No. 329/14)
CNR No. DLND01-001595-2017
Weizman Forex Ltd.
(Through Its Authorised Representative)
208, Central Arcade, DLF,
Phase-II, Gurgaon
Haryana-122002
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 1/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
....Plaintiff
Versus
1.Lisa Impex
Through its proprietor,
Mr. N. Kumar
Having its office at,
418, Bhola Nath Nagar,
Shahdara, Delhi-32
2. Mr. N. Kumar
Proprietor of "Lisa Impex"
418, Bhola Nath Nagar,
Shahdara, Delhi-32
3. Sh. Sushil Kumar Sharma
Official of "Lisa Impex"
629, Sector-28,
Faridabad, Haryana
4. Mr. Anuj Sharma
'A.M. (Sales)' of "Lisa Impex"
629, Sector-28,
Faridabad, Haryana
5. Mr. Vijay Kumar
'A.M. (Sales)' of "Lisa Impex"
3484/1, Narang Colony,
Trinagar, New Delhi-35
......Defendants
Date of institution : 13.02.2015 (CS No. 56701/16)
: 24.11.2014 (CS No. 166/16)
Date on which
reserved for judgment : 21.01.2023
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 2/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
Date of decision : 21.01.2023
Decision : CS bearing no. 56701/16
stands dismissed and CS
bearing no. 166/16 stands
decreed
JUDGMENT
1. Vide this common judgment I shall be disposing of the present civil suit as well as civil suit bearing CS No. 166/16 titled as M/s Weizman Forex Ltd. Vs. Lisa Impex and ors.
Brief Facts of the present civil suit 1.1 The present suit for mandatory & permanent injunction and/or damages to the tune of Rs. 15,00,000/- has been filed by the plaintiff against the defendant.
Plaint/plaintiff's version
2. It is the plaintiff's case that he is carrying on the business of trading in high fashionable garments accessories in the name & style of M/s Ranzor Export.
2.1 It is his case that defendant is a Forex Company, he had taken foreign currency i.e. US dollar from the defendant and in this regard it raised bill bearing no. 15462 dated 12.06.2010 for a sum of Rs. 11,98,775/-.
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 3/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
2.2 It is his case that after having taken US dollar from it,
the defendant company pressurized him to provide the security against the said bill amount and as a security he kept 15 pieces of gold & diamond jewellary and property papers on 18.07.2010 with the defendant who gave the acknowledgement for the same.
2.3 It is further his case that against the above transaction of US Dollar, he paid the defendant, a total amount of Rs. 15,80,000/- with interest, on different dates, in cash as well as through demand drafts and though there was no interest clause but due to arbitrary attitude of the defendant, he agreed to pay some excess amount as interest to the defendant to save his gold & diamond jewellery items which are unique, antique & belonged to his wife and the market value of the jewellery is more than Rs. 15 lacs.
2.4 It is further his case that defendant had also given US dollar to Sh. Anuj Sharma vide bill No 15464 dated 12.06.2010 for a sum of Rs. 1,43,850/- and bills no. 1492 & 15463 both dated 12.06.2010 for a sum of Rs. 6,71,325/- and Rs. 3,78,830/- respectively, in favour of Sh. Vijay Kumar.
2.5 It is further his case that defendant company pressurized him to pay the liability of the above said persons, whereas, he has no concern with their liability.
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 4/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
2.6 It is his case that defendant had filed two cases, at
different places, with different grounds/plea against him & other persons u/s 138 of NI Act merely to pressurize him, whereas, he has no concern with cheques issued by Mr. N. Kumar, proprietor of M/s Lisha Impex.
2.7 It is his case that on 20.10.2010 defendant filed first case u/s 138 NI Act at Bangalore court, against him wherein the defendant stated that he is the proprietor of M/s Lisha Impex and also alleged that he had issued cheque bearing no. 871853 dated 17.6.2010 for a sum of Rs. 11,98,775/- towards discharge of debts/liabilities. It is his case that defendant had not made any other person a party in the said case except him, however, neither he is the proprietor of M/s Lisha Impex nor he had signed/issued the said cheque and the said case was ultimately decided against the defendant company.
2.8 It is further his case that on 24.01.2011 defendant filed the second case at Delhi u/s 138 NI Act alleging that N. Kumar is the proprietor of M/s Lisha Impex who had issued cheque no. 871854 dated 12.06.2010 for a sum of Rs. 11,94,030/- and in the said case defendant had stated that plaintiff is the officer of M/s Lisha Impex. It is further his case that in these two cases defendant had also filed forged and fabricated documents where his signatures are forged.
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 5/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
2.9 It is further his case that in the above said cases
defendant had taken different grounds/pleas just to harass & pressurize him to extract more money from him, against the alleged liabilities of those other persons.
2.10 It is further his case that after the entire amount was paid by M/s Lisha Impex, defendant withdrew the case filed in Delhi on 09.09.2013 and the fact that defendant had received the payment was admitted by representative of the defendant company in his cross examination before the Bangalore court on 28.09.2013.
2.11 It is further his case that during the pendency of the case in Delhi court, the matter was referred to Mediation Centre and defendant admitted that they have gold & diamond jewellery of the plaintiff and had given undertaking to return the same to him, however, the defendant has failed to return/hand over the said jewellery items to him despite receiving the payment.
2.12 It is further his case that even after receiving the entire money from M/s Lisha Impex, the defendant sent a legal notice dated 05.11.2013 to him with regard to sale of jewellery in public auction and he replied the said legal notice vide reply dated 18.11.2013.
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 6/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
2.13 It is further his case that he has no liability as he has
already paid the amount with interest to the defendant, he has no concern with the liabilities of Sh. Vijay Kumar & Sh. Anuj and he has also no concern with cheques issued by M/s Lisha Impex as he is neither its proprietor nor the signing authority.
2.14 It is further his case that on 02.02.2015 he came to know, from the office bearer of defendant, that defendant is going to sell his gold and diamond jewellery. Hence the present suit.
Written Statement
3. Defendant failed to file its written statement within the stipulated time and accordingly it's defence was struck off, by the Ld. Predecessor of this court, vide proceedings dated 28.10.2015.
Issues
4. Vide proceedings dated 28.10.2015, following issues were framed by the Ld. Predecessor of this court:-
1. Whether plaintiff is entitled to a decree of mandatory injunction for return of his claimed Gold/Diamond ornaments and property papers? OPP
2. Or in the alternation whether plaintiff is entitled to CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 7/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex damages of Rs. 15 lakh? OPP
3. Whether plaintiff is entitled to decree of permanent injunction thereby restraining the defendant from transferring the gold/diamond jewellery of the plaintiff?
OPP Plaintiff's evidene
5. Plaintiff examined himself in support of his case as PW1, tendered his evidence by way of affidavit Ex. PW1/1 and relied upon the following documents:-
A. Acknowledgement dated 15.02.2012 and 08.07.2010 as Ex. PW1/A. B. Certified copy of sale memo No. 15462 dated 11/12.06.2010 of Rs. 11,98,775/- as Ex. PW1/B. C. Certified copy of sale memo No. 15463 dated 11/12.06.2010 of Rs. 3,78,830/- as Ex. PW1/C. D. Certified copy of sale memo No. 15464 dated 11/12.06.2010 of Rs. 1,43,850/- as Ex. PW1/D. E. Certified copy of sale memo No. 1492 dated 11/12.06.2010 of Rs. 6,71,325/- as Ex. PW1/E. F. Certified copy of cheque bearing no. 871853 dated 17.06.2010 for a sum of Rs. 11,98,775/- as Ex.
PW1/F. G. Certified copy of cheque bearing no. 871854 dated 12.06.2010 for a sum of Rs. 11,94,030/- as Ex.
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 8/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
PW1/G.
H. Certified copy of criminal complaint u/s 138 NI Act
filed at New Delhi as Ex. PW1/H.
I. Certified copy of criminal complaint u/s 138 NI Act
filed at Banglore as Ex. PW1/I.
J. Certified copy of application for withdrawal of
complaint at New Delhi as Ex. PW1/J.
K. Certified copy of settlement dated 15.02.2013 before
Mediation Centre New Delhi as Ex. PW1/K.
L. Certified copy of cross examination dated
28.09.2013, 26.10.2013 & 28.01.2014 as Ex. PW1/L. M Certified copy of judgment dated 28.05.2014 in CC No. 26207/2011 as Ex. PW1/M. N. Legal notice dated 05.11.2013 as Ex. PW1/N. O. Reply dated 18.11.2014 with postal receipt dated 23.11.2013 as Ex. PW1/O. P. Certified copy of bank account opening form of SBI as Ex. PW1/P. Q. Copy of Import Export Code as Ex. PW1/Q. Pleadings of CS no. 166/16
6. The present suit has been filed by the plaintiff against the defendants for recovery of Rs. 13,97,514/-.
Plaint/plaintiff's version CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 9/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex
7. It is the case of the plaintiff that the it is a company duly incorporated & registered under the Companies Act, 1956, having its registered office at the address mentioned herein above and is engaged in the business of providing foreign exchange. It is its case that it has been duly licensed & approved by the Reserve Bank of India under AD-II category and has been operating in the above mentioned trade for number of years. It is further its case that Mr. Debajit Ray, its Area Manager has been duly appointed as its Authorized Representative to pursue the matter in entirety vide board resolution dated 16.12.2010.
7.1 It is its case that defendant no. 1 is engaged in the business of import & export, as such their employees have to travel overseas frequently, defendant no. 2 is the sole proprietor of defendant no. 1 proprietorship concern and responsible for its day to day business transaction & working.
7.2 It is further its case that on 11.06.2010, defendant no. 2, along with defendants no. 3 to 5, approached it and defendant no. 2 represented himself as sole proprietor of "Lisa Impex" and defendants no. 3 to 5 also represented themselves as official representatives of defendant no. 1. It is further its case that defendant no. 2 requested it for providing foreign exchange to its officials i.e. defendants no. 3, 4 and 5 who were going to China in relation to some business trip on behalf of defendant no. 1.
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 10/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
7.3 It is further its case that defendant no. 2 in capacity of
the sole proprietor of defendant no. 1 had approached it at its office and executed an undertaking, on behalf of the defendants no. 3 to 5, that if any loss would be caused to it by defendant no. 3 to 5, he shall indemnify its losses. It is its case that on 11.06.2010, defendant no. 2 had given an undertaking on behalf of defendant no. 3 to 5 and had also given two cheques bearing no. 871854 and 871853 of Rs. 11,94,030/- and Rs. 11,98,775/- respectively dated 12.06.2010, both drawn on State Bank of India.
7.4 It is further its case that acting upon the assurance given by defendant no. 2, it provided foreign exchange to defendant no. 3 to 5 on 12.06.2010 vide sale memo no. 15462 for a sum of Rs. 11,98,775/- in the name of defendant no. 3, to defendant no. 4 vide sale memo no. 15464 for a sum of Rs. 1,43,875/- and to defendant no. 5 vide Sale Memos No. 15463 & 1492 for a sum of Rs. 3,78,830/- & Rs. 6,71,350/- respectively.
7.5 It is further its case that defendant no. 2 being the sole proprietor of defendant no. 1, in discharge of his liability/debts towards it with regard to foreign exchange provided by it vide sales memo nos. 15462, 15463, 15464 and 1492 respectively dated 12.06.2010, signed and issued a cheque bearing no.
"871854" dated 12.06.2010 amounting Rs. 11,94,030/- drawn CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 11/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex upon State Bank of India, (07196) Flyover Market, Defence Colony, New Delhi-2 and it was assured by the defendant nos. 2, 3, 4 and 5 jointly that the said cheque shall be duly en-cashed on its presentation.
7.6 It is further its case that it had presented the cheque bearing no. 871854 to its banker i.e. IndusInd Bank Ltd., 28 Gopaldas Bhawan, Barakhamba Road, New Delhi on 15.06.2010, for its realization, but it was shocked when the same returned unpaid from banker due to the reasons "Funds Insufficient" vide return memo dated 16.06.2010.
7.7 It is further its case that on 18.07.2010 defendant no. 3 had, in consideration of his liability towards it, handed over certain jewelery to it and had also promised to pay the entire dues within one week failing which it was at liberty to sell the same and recover its legible dues.
7.8 It is its case that on further assurance given by defendant no. 2, to honour the said cheque, it again presented the cheque to its banker i.e. IndusInd Bank Ltd. on 11.11.2010 for its realization but again it was shocked on receiving the return memo dated 12.11.2010 as the cheque no. 871854 was dishonoured again.
7.9 It is its case that it instituted a complaint u/s
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 12/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
138/141/142 of N.I. Act against the defendants at Patiala House Courts, New Delhi vide C.C. No. 214/2011 and in the aforesaid complaint the defendants had shown their desire to settle the matter amicably, as such the Hon'ble court had referred the matter to Mediator wherein, on 15.02.2012 a settlement had arrived between it and the defendants, however, on 17.04.2012 the defendants showed their inability to make the payment as per the mediation settlement dated 15.02.2012.
7.10 It is its case that the defendants further requested that they are willing to pay the amount after three months @10% interest as mentioned in Ld. Mediator's order and when the matter was listed before the Ld. MM, Patiala House Courts, New Delhi on 31.08.2012, the defendant's & their counsel admitted/acknowledged their liability/debt towards it and willingly made an offer to pay the amount of Rs. 8,12,805/- along with interest @10% calculated from 15.04.2012, however, same was not acceptable to it and it claimed an amount of Rs. 13,52,000/- @ 18% on the cheque amount from the date of dishonour.
7.11 It is further its case that it had instituted another complaint no. 26207/2011 u/s 138/141/142 of NI Act against cheque no. 871853 amounting to Rs. 11,98,775/- dated 13.06.2010 before the court of ACMM, Bangalore, which case had reached the stage of final arguments and there also the CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 13/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex defendants requested for settling the matter amicably and as such it decided to withdrew complaint no. 214/1/2011 and its A.R. made a statement to withdraw the case which was allowed by the Hon'ble court on 09.09.2013.
7.12 It is further its case that in C.C. No. 26207/2011, after the final arguments, the Hon'ble court of ACMM, Bangalore pronounced order dated 28.05.2014 wherein, defendant no. 1 and 3 who were arrayed as accused were acquitted as it was held that Section 141 is not attracted against them. It is its case that it was because of the mistake made by its counsel, by not impleading Sh. N. Kumar the sole proprietor of LISA Impex (defendant no. 2) that the complaint u/s 138 of N.I. Act failed to pin down accused no. 1 and 3.
7.13 Hence, the present suit.
Written Statement of defendant no. 1, 2 and 5
8. No WS was filed on behalf of defendant no. 1, 2 and 5 despite service through publication in the newspaper "Hindu"
and accordingly vide orders dated 11.09.2017, passed by the Ld. Predecessor of this court, their defence was struck off.
Written Statement of defendant no. 3 CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 14/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex
9. It was pleaded that the present suit has been filed against five defendants, including defendant no. 3, on the basis of a cheque issued by defendant no. 2 who was the proprietor of defendant no. 1. It was pleaded that the plaintiff has alleged that defendant no. 3 is the official of defendant no. 1, whereas, the said facts are not true and contrary to the plaintiff's complaint u/s 138 NI Act, which was filed by it before the Bangalore District Court, wherein it had stated that defendant no. 3 was the proprietor of defendant no. 1.
9.1 It was pleaded that the plaintiff was unable to prove that defendant no. 3 is/was the proprietor/official of defendant no. 1 and finally the said complaint u/s 138 NI Act was dismissed on merit vide judgment dated 28.05.2014 and the true fact is that the defendant no. 3 is neither the proprietor nor he had signed or has any concern with the cheque issued by defendant no. 2.
9.2 It was pleaded that he is carrying on business trading in High Fashionable Garments Accessories in the name and style of M/s Ranzor Export, he had taken foreign currency i.e. US Dollar from the plaintiff company and in this regard the plaintiff company had raised bill No. 15462 dated 12.06.2010 of Rs. 11,98,775/- upon him.
9.3 It was further pleaded that after taking the US Dollar
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 15/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
from the plaintiff company, it had pressurized him to provide the security against the said bill and as a security he kept 15 pieces of gold & diamond jewelery and property papers on 18.07.2010 with it and accordingly it had given the acknowledgement for the same.
It was pleaded that against the above transaction of US Dollar, he has paid an amount of Rs. 15,80,000/-, with interest, on different dates against the above bill. It was pleaded that though there is no interest clause but due to its arbitrary attitude, he agreed to pay some excess amount against the bill amount as interest to it, to save his gold & diamond jewellery items which are unique, antique & belongs to his wife and the value of these jewellery is more than 15 lacs in the market.
9.4 It was further pleaded that plaintiff had also given US dollar to more persons namely Mr. Vijay Kumar and Mr. Anuj Sharma on different dates vide separate bills i.e. Bill no. 15464 dated 12.06.2010 of Rs. 143850/- in favour of Sh. Anuj Sharma, Bill no. 1492 dated 12.06.2010 of Rs. 671325/- in favour of Sh. Vijay Kumar and Bill no. 15463 dated 12.06.2010 of Rs. 378830/- in favour of Sh. Vijay Kumar.
9.5 It was further pleaded that the plaintiff company pressurized him to pay the liability of the above said persons whereas he has no concern with their liability and finally CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 16/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex plaintiff filed two cases at different places with different grounds/plea against him and other persons u/s 138 NI Act. It was pleaded that the said cases were filed by the plaintiff just to pressurize him whereas he has no concern with the cheques issued by the proprietor Mr. N Kumar of M/s Lisa Impex.
9.6 It was pleaded that on 20.12.2010, the plaintiff company had filed the first case at Bangalore u/s 138 NI Act against him and in the said case the plaintiff company had stated that he is the proprietor of M/s Lisa Impex and that towards discharge of the debts/liabilities, he had issued cheque bearing number 871853 dated 17.06.2010 for a sum of Rs. 11,98,775/-. It was further pleaded that in the said case, the plaintiff had not made any other person a party except him, however, neither he is the proprietor/official of M/s Lisa Impex nor he has signed/issued the said cheque of Rs. 11,98,775/- in favour of the plaintiff company.
9.7 It was further pleaded that on 24.01.2011 the plaintiff company had filed the second case at Delhi Court wherein it had stated that N. Kumar is the proprietor of M/s Lisa Impex and the proprietor Mr. N Kumar had issued the cheque vide no. 871854 dated 12.06.2010 of Rs. 11,94,030/- and in the said case the plaintiff company had stated that he is the officer of M/s Lisa Impex. It was pleaded that in these two cases the plaintiff company had filed some documents which are forged and CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 17/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex fabricated, where his signatures, are forged and in this regard he reserves his right to file the criminal complaint against the director of the plaintiff company as and when they produce the original documents.
9.8 It was pleaded that after having received the entire amount from M/s Lisa Impex, who had issued the alleged cheque, the plaintiff company had withdrawn the said complaint before the Delhi Court on 09.09.2013 and the fact that it had received the payment against the Delhi Court case, was also confirmed by its representative Shri B Gopi Nath during his cross examination on 28.09.2013 before the Bangalore Court.
9.9 It was pleaded that during the pendency of the complaint filed at Delhi, the matter was referred to the Mediation Centre where the plaintiff company admitted that they have his gold & diamond articles and gave an undertaking to return the same to him.
9.10 It was further pleaded that even after having received the payment, as was confirmed by the AR of the plaintiff before the Banglore Court, the plaintiff company failed to return the gold & diamond jewellery to him and accordingly he filed a civil suit against the plaintiff company.
9.11 It was further pleaded that after withdrawing the
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 18/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
second complaint at Delhi, the plaintiff company with the intention to harass him continued with the first complaint at Bangalore against him and finally after conducting the trial, the Ld. Court at Bangalore was pleased to decide the first complaint u/s 138 NI Act against the plaintiff company and in his favour.
9.12 It was further pleaded that even after having received the entire money from M/s Lisa Impex, the plaintiff company sent a legal notice dated 05.11.2013 to him with regard to sale of jewellery in public auction which notice was replied by him vide reply dated 18.11.2013, posted on 23.11.2013.
9.13 It was pleaded that he has no liability against the plaintiff company as he has already paid the amount with interest totaling to Rs. 15,80,000/- against bill no. 15462 dated 12.06.2010 of Rs. 11,98,775/- and he has no concern with the outstanding/liabilities (if any) of Sh. Vijay Kumar and Mr. Anuj and has no concern with the cheques issued by M/s Lisa Impex as he is neither proprietor nor the signing authority in the said proprietorship concern.
Written statement of defendant no. 4.
10. It was pleaded that the plaintiff has filed the present suit on the basis of a cheque allegedly issued by defendant no. 2, who was the proprietor of defendant no. 1 and he is alleged to CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 19/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex be AM (Sales) of defendant no. 1, whereas, the said facts are not correct and neither he has any concern nor he is AM (Sales) of defendant no. 1.
10.1 It was pleaded that sales memo dated 12.06.2010 of Rs. 1,43,850/- is absolutely forged & fabricated as he neither signed on this alleged sales memo nor he has taken any US dollar from the plaintiff and his signature on sales memo is forged & fabricated.
10.2 It was further pleaded that that no ticket number, no visa of the country and no date of visiting the country are mentioned on the sales memo as the same is mandatory before issuing the foreign currency to the visitor and hence the entire bill is forged & fabricated.
10.3 It was further pleaded that if there was any transaction, same was between the plaintiff and defendant no. 1 & 2 and everything has been settled between them and that is why the plaintiff company withdrew its complaint u/s 138 NI Act from the court of Ld. MM, Patiala House, New Delhi.
Replication
11. In its replication, the plaintiff denied the averments of the written statements while simultaneously reiterating and CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 20/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex reaffirming the contents of the plaint.
Issues
12. On the basis of pleadings of the parties, following issues were framed, by the Ld. Predecessor of this court, vide proceedings dated 11.09.2017:-
1. Whether plaintiff has no cause of action against defendant no. 3 and 4 as they have no concern with M/s Lisa Impex, proprietorship firm of defendant no. 2? OPD-3 and 4.
2. Whether sale memo dated 12.06.2010 for Rs.
11,94,030/- contains false and fabricated signatures of defendant no. 4? OPD-4.
3. Whether plaintiff is entitled to recovery of Rs.
13,97,514/- along with 18% p.a. interest? OPP.
4. Relief.
Plaintiff's evidence
13. To prove its case, plaintiff examined Sh. Debajit Ray as PW1, who tendered his evidence by way of affidavit Ex. PW1/A and relied upon following documents:-
A. Board resolution dated 16.12.2010 along with original power of attorney as Ex. PW-1/1 . B. Sale memo no. 15462 dated 12.06.2010 as Ex. PW-
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 21/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
1/2.
C. Sale memo no. 15463 dated 12.06.2010 as Ex. PW-
1/3.
D. Sale memo no. 1492 dated 12.06.2010 as Ex.
PW-1/4.
E. Sale memo no. 15464 dated 12.06.2010 is as Ex.
PW-1/5.
F. Cheque no. 871854 dated 12.06.2010 along with
Return memo dated 16.06.2010 as Ex. PW-1/6 (colly).
G. Cheque no. 871853 dated 17.06.2010 along with Return memo dated 10.11.2010 as Ex. PW-1/7 (colly). H. Account opening form dated 07.12.2007 of Ranger Export of State Bank of India as Mark A. I. Certified copy of the court proceeding bearing CC No. 214/1/2011 under Section 138 as Ex. PW-
1/9.
J. Handwritten guarantee dated 18.07.2010 along with list of articles as Ex. PW-1/11 (colly.) K. Letter dated 11.06.2010 as Ex. PW-1/12.
L. Account statement/ledger for 01.04.2010 -
31.03.2011 as Ex. PW-1/10 (colly.) M. Invoices dated 26.07.2010, 21.08.2010, 26.08.2010, 28.08.2010, 06.09.2010 and 24.09.2010 as Ex. PW-
1/14 (colly.)
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 22/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
13.1 PW1 also led additional evidence by way of affidavit
PW1/B and relied upon the following documents:-
A. Copy of letter dated 17.11.2010 as Ex. PW1/15 B. Section 65B Certificate as Ex. PW-1/16.
Defendant no. 3's evidence
14. Defendant no. 3 examined himself as DW1, tendered his evidence by way of affidavit Ex. DW1/A and relied upon following documents:-
A. Judgment dated 28.05.2014 as Ex. DW-1/1. B. Bill No. 15462 dated 12.06.2010 as Ex. DW-1/2. C. Bill No. 15464 dated 12.06.2010 as Ex. DW-1/3. D. Bill No. 1492 dated 12.06.2010 as Ex. DW-1/4. E. Bill No. 15463 dated 12.06.2010 as Ex. DW-1/5. F. Criminal complaint along with documents filed by the plaintiff company at Bangalore Court as Ex. DW-1/6 (colly).
G. Cheque no. 871854 dated 12.06.2010 of Rs.
11,94,030/- as Ex. DW-1/7.
H. Criminal complaint no. 214/2011 filed by the plaintiff company before the Delhi Court as Ex. DW-1/8. I. Orders dated 09.09.2013 and 21.09.2013 as Ex. DW-
1/9 (colly).
J. Application for withdrawal before Delhi Court as Ex.
DW-1/10.
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 23/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
K. Cross examination dated 28.09.2013 before the
Bangalore Court as Ex. DW-1/11.
L. Settlement with acknowledgement dated 15.02.2012
before the Mediator, Delhi as Ex. DW-1/12.
M. Legal notice dated 15.11.2013 sent by the plaintiff company as Ex. DW-1/13.
N. Reply dated 11.11.2013 as Ex. DW-1/14.
O. Cheque no. 871853 dated 17.06.2010 of Rs.
11,98,775/- as Ex. DW-1/15.
P. Opening Bank Account Form with State Bank of India as Ex. DW-1/16.
Q. Import Export Code issued by the Government as Ex.
DW-1/17.
Defendant no. 4's evidence
15. Defendant no. 4 examined himself as DW4 and tendered his evidence by way of affidavit Ex. DW4/A. Findings
16. I have heard the Ld. counsels for the parties, given due consideration to the rival contentions raised at bar, carefully gone through the record and also considered the written arguments.
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 24/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
16.1 For the sake of convenience and to avoid any
confusion, plaintiff Sh. Sushil Kumar Sharma is referred to as the "plaintiff" for both the suits and M/s Weizmann Forex Ltd. is referred to as the "defendant company" and remaining defendants (of CS No. 166/16) are referred to as "other defendants/as per memo of parties" of CS No. 166/16 in both the suits.
16.2 All the issues, of both the suits, being interconnected are taken up together and the finding is as under:-
(CS No. 56701/16)
1. Whether plaintiff is entitled to a decree of mandatory injunction for return of his claimed Gold/Diamond ornaments and property papers? OPP
2. Or in the alternation whether plaintiff is entitled to damages of Rs. 15 lakh? OPP
3. Whether plaintiff is entitled to decree of permanent injunction thereby restraining the defendant from transferring the gold/diamond jewellery of the plaintiff?
OPP (CS No. 166/16)
1. Whether plaintiff has no cause of action against defendant no. 3 and 4 as they have no concern with CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 25/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex M/s Lisa Impex, proprietorship firm of defendant no. 2? OPD-3 and 4.
2. Whether sale memo dated 12.06.2010 for Rs.
11,94,030/- contains false and fabricated signatures of defendant no. 4? OPD-4.
3. Whether plaintiff is entitled to recovery of Rs.
13,97,514/- along with 18% p.a. interest? OPP.
4. Relief.
16.3 In nutshell the case of the plaintiff is that he had availed forex facility, taken foreign currency/US dollar from the defendant company against bill bearing no. 15462 totaling to Rs. 11,98,775/- and though he has repaid the said amount along with interest totaling to Rs. 15,80,000/-, however, the defendant company has till date not returned the gold & diamond jewellery as well as the property papers, which were kept by him as security and is rather threatening to sell the jewellery articles claiming that certain amount is still due from him, though no such amount is due from him and the liability to pay the outstanding amount, if any, is of other defendants and he has no concern with their liabilities.
16.4 As against the plaintiff's claim, it is the case of the defendant company that an amount of Rs. 13,97,514/-, which includes the principal of Rs. 8,12,805/-, is still due/outstanding from the plaintiff and other defendants towards the forex facility CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 26/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex availed by them.
16.5 At the outset, though the plaintiff is seeking relief of permanent & mandatory injunction, which are equitable reliefs, however, he has not approached the court with clean hands. He has concealed material facts as well as documents and has filed only self serving documents. Furthermore he has made false, incorrect statements on oath, as has been discussed in the later part of this judgment.
16.6 The law is well settled that a person, who seeks equity, must do equity, must come with clean hands. He, who comes to the Court with false claims, cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair & equitable manner and the Court denies the relief to a suitor who is himself guilty of misconduct in respect of the matter in controversy. The suppression of material facts in itself is a sufficient ground to decline the discretionary relief of injunction. A party seeking discretionary relief is duty bound to disclose all material facts which may, one way or the other, affect the decision.
16.7 In his plaint, the plaintiff did not disclose his relation with Sh. Anuj Sharma (defendant no. 4 in CS no. 166/16) who had also availed the forex facility from the defendant company vide sales memo Ex. PW1/D (also Ex. DW1/3 in CS No. 166/16) CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 27/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex Sh. Anuj Sharma is his son and plaintiff should have disclosed the said fact, which emerged for the first time during his cross- examination, in the plaint itself and why he did not do so has not been explained by him. In fact the same is malafide and itself smells of foul play. The relevant portion of the cross- examination of the plaintiff (PW1) in this regard read as "It is correct that Mr. Anuj Sharma is my son". Though at the same time he claimed "I have no knowledge if Mr. Anuj Sharma went to China".
16.8 Similarly though the plaintiff claimed that he has no concern or relation with Sh. N. Kumar or M/s Lisa Impex, however, it has emerged on record that he was knowing Sh. N. Kumar quite well and in fact there is/was a collusion between him and defendant no. 1, 2, 4 and 5. One complaint u/s 138 NI Act bearing CC no. 214/1 was filed against the plaintiff & defendant no. 1, 2, 4 and 5, by the defendant company, wherein the plaintiff was also summoned apart from the said defendants. The said matter was referred to Mediation by the court of Ld. MM and the plaintiff had admittedly signed a settlement before the Ld. Mediator. Plaintiff did not disclose about the mediation settlement/proceedings in the plaint and the plaint remained deliberately silent on this crucial aspect. The relevant portion of his (PW1) cross-examination in this regard reads as under:-
"I have present in all proceedings in Patiala House Court as well as before the Mediator as I had received the Summon from the Hon'ble Court in the said complaint case.
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 28/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
It is correct that I had signed on this settlement before the mediator (Voluntary I had signed on request/behalf to settle the matter of the Proprietor of M/s Lisa Impex as the proprietor of M/s Lisa Impex was not available)."
16.9 Merely because the proprietor of M/s Lisa Impex was not available, in my considered opinion, the plaintiff would not have signed the settlement unless he was knowing Sh. N. Kumar and unless the plaintiff admitted, acknowledged his liability towards the defendant company. As has been discussed in the later part of this judgment, the undertaking/settlement was given by him on his own behalf and not on behalf of Lisha Impex or Sh. N. Kumar (defendant no. 1 & 2 in CS No 166/16), as was otherwise claimed by the Ld. Counsel for the plaintiff during the arguments. His (PW1) further cross-examination read as under:-
"I don't know if two cheques were given by M/s Lisa Impex as security. It is correct that I had given (if any) undertaking to re- pay my outstanding of the Defendant Company in my hand writing. It is correct that I have furnished list of jewellery article before the Ld. Mediator..........I had not given any statement before the Court of Sh. Arul Verma, MM, Patiala House Court that I am ready to pay the amount of Rs. 8,12,805/- with 10% interest within 4 months (Voluntary the said statement (if any) was made by the proprietor M/s Lisa Impex).
I said that the settlement is arrived between M/s Lisa Impex and M/s Weizman Forex Ltd. and I have no concerned with the liability of M/s. Lisa Impex."
16.10 The certified copy of criminal complaint bearing no. 214/1 is available on record as Ex. PW1/H. As discussed above, the matter was referred for settlement to the mediation centre and as per proceedings dated 15.02.2012 it was the plaintiff who had undertaken to pay an amount of Rs. 8,12,805/- to the defendant CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 29/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex company, complainant therein, towards full and final settlement. The relevant portion of the proceedings i.e. Ex. PW1/K (also Ex. PW1/9 & Ex. DW1/12 in CS No. 166/16) are reproduced hereunder:-
"15.02.2012 Present: Sh. Debajit Ray, AR of the complainant with counsel Ms. Jyoti Srivastava, Adv.
Sh. Sushil Kumar Sharma, accused no. 3 in person. Sh. Vijay Kumar Garg, accused no.5 with counsel Sh. Jitender Kumar Garg, adv.
Process of mediation explained to the parties. Joint and independent sessions are held. After having discussions, the parties have settled the matter to the following effect.
1. It is agreed between the parties that the accused no. 3 Sh. Sushil Kumar will pay a total amount of Rs. 8,12,805/- (Rupees Eight Lacs twelve thousand eight hundred and five only) to the complainant towards full and final settlement against the claim of the complainant in the present matter.
2. The above settled amount will be paid by Sh. Sushil Kumar Sharma to the complainant on or before 15 th April, 2012 in the form of pay order or RTGS before the concerned court.
3. On receipt of the above settled amount before the concerned court, the complainant shall return the jewellery and other papers deposit with them by the accused, the list of which is already on court file also enclosed h/w and will also withdraw the present complaint case from the concerned court.
After receipt of the payment mentioned herein above by the complainant and receipt of the jewellery articles/papers by the accused, the parties will be left with no claim against each other in respect of present matter in dispute and there will be no liability against all the accused mentioned in memo of parties in the present complaint case.
4. In case accused No. 3 is failed to make the payment on the stipulated date, he shall be liable to pay interest at the rate of 10 per cent per annum on the said amount as per their standard practice and procedure.
The aforesaid settlement has been arrived at between the parties with their own free will and without any fear, pressure and coercion.
Parties are directed to appear before the concerned court on 17.03.2012, the date already fixed for necessary orders."
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 30/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
16.11 Not only the plaintiff was an accused in the said
matter but he had voluntarily entered into a settlement and the settlement was duly signed by him. In fact on the day of settlement he had appeared before the Ld. Mediator, he had also furnished the list of jewellery articles before the Ld. Mediator. If he had no liability, he would not have undertaken to make the payment to the defendant company nor would have he produced the jewellery articles. The settlement leaves no doubt that it was Sushil Kumar i.e. the plaintiff who had agreed to pay and not N. Kumar or any other person. In fact the plaintiff had also undertaken to make the payment with the interest, on account of delay, as is evident from proceedings dated 17.04.2012 & 31.08.2012 conducted before the Ld. MM. The relevant portion of the proceedings are reproduced hereunder:-
"17.4.2012 Present:Sh. Tarang Srivastava, counsel for the complainant along with AR. Accused 3 & 5 with counsel Sh. Pramod Kumar Sharma.
It is submitted by the accused persons that they are not in a position to make the payment as per Mediation order. However, they are willing to pay the amount after three months @ 10% interest as mentioned in the Mediation order.
31.08.2012 Complainant in person.
All the accused with counsel.
Ld. Counsel for the accused states that although the accused no. 3 could not pay the amount of settlement as awarded by the Ld. Mediator in time, the accused has shown his inclination to Pay the aforementioned amount along with the interest @ 10% as has been mandated by the Ld. Mediator's order dated 15.02.2012.
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 31/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
Ld. Counsel for the accused no. 3 also submits that the accused no. 3 is willing to pay the amount of Rs.8,12,805/- along with in interest of 10% from 15.04.2012.
16.12 Accused no. 3 was the plaintiff Sh. Sushil Kumar. Though during his cross-examination, in CS No. 166/16 as DW1 present suit, he stated as under:-
"Q 20.Is it correct that you had agreed to pay Rs. 8,12,805.00 to the Plaintiff Company towards full and final settlement before the Mediator on 15.02.2012 (Exh. PW1/9) and put in you signatures acknowledging the same?
A. Yes I did agree. Vol. On behalf of Sh. Vijay Kumar his lawyer was present individually and I was also present but neither the counsel for Sh. N. Kumar nor he himself was present. Sh. N. Kumar had told me to settle the matter on his behalf and that he will pay. Thereafter, Sh. N. Kumar had made the payment and that is why the plaintiff company had withdrawn the case."
,however, plaintiff would not have made the above statement only on the asking of Sh. N. Kumar, unless he was well known to him. As discussed above, the plaint and the WS in CS No. 166/16 are absolutely silent as regards his relation with Sh. N. Kumar.
16.13 Most importantly, the statement makes it amply clear that it was not made on behalf of N. Kumar but the statement was made by the plaintiff on his own behalf. The undertaking was given by the plaintiff for himself and not on behalf of Sh. N. Kumar. Furthermore though he claimed that N. Kumar had made the payment and that is why the complaint was withdrawn by the defendant company, but the same is factually incorrect and contrary to records. The complaint was withdrawn not on CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 32/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex account of payment having been made by the accused persons, particularly the plaintiff, but the same was withdrawn only to settle the matter i.e. the settlement had not been arrived at yet and payment was yet to be made.
16.14 Furthermore it has also emerged on record that he along with Sh. N. Kumar, his son Anuj Kumar Sharma and Lisha Impex had jointly moved an application under 145 (2) of the NI Act before court of Ld. MM. But for they knowing each other, they would not have moved the joint application. Interestingly, it is the same counsel who is representing the plaintiff in the present matter, who had been representing him in the complaint case as well. Though the plaintiff claimed that the said complaint case was withdrawn as the defendant company had received the payment but during his cross-examination the plaintiff admitted that no payment was ever made by N. Kumar in his presence. The relevant portion of cross-examination of Sh. Sushil Kumar/DW1 in CS No. 166/16 is reproduced hereunder:-
"Q21 Did Sh. N.Kumar make the payment in your presence? A. He might have paid as that is why the plaintiff company had withdrawn the case.
Q 22. Who were the Counsel appear for you and for your son, Sh. Anuj Kumar Sharma?
A. Earlier we had same lawyer. Now we have different lawyers. Sh. Pramod Sharma is present counsel representing me in this case.
Q23. Is it correct that you along with you counsel gave a statement that you are willing to pay Rs. 8,12,805.00 along with interest @ 10% from 15.04.2012 before the court of Sh. Arul Verma, Learned MM, Patiala House Courts on 31.08.2012 (Exh. PW1/10 (colly.)?
A. I had not given any statement. It was dictated by the
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 33/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
Judge.
Q24. Is it correct that you, Sh. N. Kumar Sharma, Sh. Anuj Kr. Sharma and Lisa Impex had filed a joint S. 145(2) application (Exh. PW1/10 (colly.) before the Court of Ms. Bhawana Kalia, Learned MM for defending the complaint case before PHC? A. Since it was not my cheque I may have given it. Q25. Is it correct that all of you, Lisa Impex, Sh. N.K. Sharma and Anuj Kr. Sharma were represented through the same Counsel, Sh. Parmod Sharma in Com. Case No. 214/2011 at Patiala House Court and you had authorised him jointly by a vakalatnama dated 06.09.2011 signed by you all?
A. It is correct." 16.15 Though plaintiff denied any concern, relation with
Lisha Impex or Sh. N. Kumar, however, in CS No. 166/16, the defendant company had filed one document/letter dated
17.11.2010 i.e. Ex. PW1/15 whereby the plaintiff had admitted that Lisha Impex is their sister concern. The relevant portion of the letter is reproduced hereunder:-
"I Sushil Kumar Sharma Prop. of Ranzer Export (India) I-47, lajpat nagar, New Delhi, here by confirm that lisha Impex is our sister concerned company, as I was in overseas trip for some business deal for that so I have some liabilities which I have to pay to the Weizmann Forex Ltd. I fully takes the responsibility to pay the amount and I assure you to settle the matter very soon. For reference I am attaching herewith my PAN card copy."
16.16 The relevant portion of cross examination of defendant company's witness Sh. Debajit Rai, as PW1 in CS No. 166/16, is reproduced hereunder:-
"The said document Exh. PW1/15 was handed over by Mr. Sushil Kumar on 17.10.2010 in his office at Lajpat Nagar. It was given to Mr. Chandresh Mehta, Manager of Gurgaon Branch of Plaintiff Company and Mr. Murli, Senior Executive, Gurgaon Branch of Plaintiff Company who used to deal with Mr. Sushil Sharma and Lisha Impex. Vol. Both the said persons have now left the Plaintiff Company."
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 34/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex 16.17 Defendant company's witness/PW1 categorically stated that it is the plaintiff's responsibility to make the outstanding payment as he was the only person dealing with the defendant company and had undertaken to make the payment. His categoric statement remained unchallenged, uncontradicted. Furthermore as regards Anuj Sharma (defendant no. 4) a suggestion was given to PW1, that he had traveled being sponsored by Lisha Impex. The said suggestion is not only fatal to defendant 4's claim of sales invoice being forged but it also it also proves his connection, link with Lisha Impex. The relevant portion of cross-examination of PW1 Sh. Debajit Rai is reproduced hereunder:-
"Again said that it was admitted by Mr. Sushil Sharma before the Court of Sh. Arul Verma, Ld. MM, Patiala House Courts that they owed a sum of Rs. 14,50,000/- to the Plaintiff Company.
The present Suit is filed by the Plaintiff Company not on the basis of Rs. 8,12,805/- or Rs. 14,50,000/- but is filed on the basis of the above mentioned two cheques which are issued by Lisa Impex.The witness is confronted with the Sales Memos Exh. PW1/2 to PW1/5. It is wrong to suggest that the said sales memos are issued under the individual names as mentioned thereon. The said sales memos Exh. PW1/2 to PW1/5 are issued by the Plaintiff Company under LERMS/BT Visits under the Company's letter heads of Lisha Impex. The said letter heads of Lisha Impex supported by the sales memos are signed by the proprietor Mr. N. Kumar. The sales memos were handed over by the Plaintiff company to the respective travellers whose names are mentioned on the sales memos.
......Q. Whether the Plaintiff Company is asking for any outstanding payment from Lisha Impex for individual travellers?
A. Sushil Kumar Sharma is the responsible for payment of outstanding if as he was the only person who used to deal with the plaintiff company.
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 35/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
...........Q. Who has given the undertaking to pay the money at the time of Forex purchase/dealing by the individual travellers? A. Mr. Sushil Kumar Sharma.
..........Q. Whether the facts mentioned in the said para of the affidavit are correct or the statement made by you above in question?
A. Vol. It was Mr. Sushil Kumar Sharma who had undertaken to the plaintiff company that he is completely liable to pay the outstanding to the plaintiff company and as a guarantee he had also deposited jewellery item and also had undertaken to if he fails to clear the outstanding then the plaintiff company can liquidate the said jewellery items.
It is incorrect to suggest that the jewellery items given by Mr. Sushil Kumar Sharma were given against the sales memo in his individual name i.e. Exh PW1/2.
................It wrong to suggest that the plaintiff company had withdrawn the complaint case under section 138 NI Act filed in the Delhi Court as the plaintiff company Red received the payments against the said complaint.
Q. If the payment is not received by the plaintiff company against the complaint case under section 138 NI Act then why did the plaintiff company withdraw the same? A. Against the Bangalore case the plaintiff company had received part payment ie. Rs. 15,80,000/- approx. and remaining outstanding Rs. 8,12,805/- plus interest accrued has to be recovered from Mr. Sushil Kumar Sharma. Because the Bangalore case was going on that's why the plaintiff company has withdrawn the case from Delhi Court.
Q. The representative of the plaintiff company had stated in his cross examination in Bangalore case that the plaintiff company had received the money whether the said fact is correct or not? A. No. Vol. The witness in the Bangalore Court was misguided/ not aware of e payments as well as facts and that is why he gave a wrong statement.
............Q. On what basis and reason you have mentioned in a Criminal Complaint in Delhi that Mr. N. Kumar is the proprietor of Lisa Impex where as on the other hand in Bangalore Court you have mentioned that Mr. Sushil Kumar Sharma is the proprietor of Lisa Impex.
A. Mr. Sushil Kumar Sharma was dealing with us since beginning as a proprietor of M/s. Lisa Impex and he was main dealing person for all documentation, withdrawal of currency and correspondence. Even as per declaration with us Mr. Sushil Kumar Sharma was proprietor of the Lisa Impex. As far as Bangalore case is concerned Mr. Gopinath who was the AR of CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 36/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex the plaintiff Company made a mistake in making Mr. Sushil Kumar Sharma as a Director of the Lisa Impex. .......As per my knowledge today Mr. Sushil Kumar Sharma is the owner of M/s. Lisa Impex Company. You can say that owner means that he is proprietor or main dealing person. ......It incorrect to say that the Plaintiff Company had withdrawn the complaint from Delhi Court as the Plaintiff Company had received the entire payment of outstanding against the Defendants.
........It is correct that the Defendant no. 4 has travelled being sponsored by the company, M/s Lisa Impex that is the only reason that we have not taken his documents i.e. Visa and Ticket. Vol. We have taken his passport.
It is correct that we have taken the receipt of the amount forwarded to Defendant no. 4 as his signatures were taken on his sales memo."
16.18 No doubt CC No. 214/1 was withdrawn, by the defendant company, vide application dated 06.09.2013 i.e. Ex. PW1/J (also Ex DW1/10 in CS No. 166/16), filed on 07.09.2013 and taken up on 09.09.2013 but, as discussed above, the same was not on account of the matter having been settled but on account of the fact that matter is likely to be settled. Neither the application nor the statement of the AR anywhere mentions about complete/full settlement having been arrived at already or the payment being made pursuant to the settlement. The arguments of the Ld. Counsel for the plaintiff that the matter was withdrawn only after the payment was made not only does not inspire confidence but is contrary to the records. The relevant para of the application is reproduced hereunder:-
4.That the complainant company want to amicably settled the dispute with the accused out of court and is seriously contemplating to withdraw the present complaint case from this Hon'ble court.
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 37/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex 16.19 The relevant portion of the statement/proceedings dated 09.09.2013 i.e. Ex. DW1/9 (colly) (in CS no. 166/16) reads as under:-
I want to withdraw the present complaint with respect to cheque in question as the matter will be settled with the accused with the management of the company. I may kindly be permitted to withdraw the same.
16.20 There is no dispute that the forex facility was availed by the plaintiff. The plaintiff during his cross examination claimed "I have no any concerned with M/s Lisa Impex. I had never went to China on behalf of M/s Lisa Impex". If not on behalf of M/s Lisa Impex then on whose behalf did he go to China and for what business, has not been explained by the plaitniff. If he had gone in his individual capacity or as proprietor of M/s Ranzor Export, under which style & name he claims to have been carrying on business/trading in fashionable garments accessories, then it was for the plaintiff to prove the same, however, he miserably failed to do so. Not only no document was filed by the plaintiff to show his connection with M/s Ranzor Export but the plaintiff also failed to prove the business he transacted at China, for which he had availed the forex facility from the defendant company. No bills, invoices, challan, import duty payment etc. was proved by the plaintiff in this regard. This leaves very little doubt that he had indeed gone to China on behalf of M/s Lisa Impex which had availed the forex facility and which becomes more crystal clear from sale memo Ex. PW1/B (also Ex. DW1/2 in CS No. 166/16) dated CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 38/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex 11/12.06.2010 vide which foreign currency was sold to the plaintiff. It is clearly mentioned on the top of the sale memo as "BT/Lisha Impex", that means bill to Lisha Impex. Why plaintiff's sale memo would be billed to Lisha Impex, unless the forex facility was availed by the plaintiff on behalf of Lisha Impex, has not been explained by the plaintiff. Same is with respect to the sale memos in the name of Sh. Vijay Kumar i.e. PW1/C and Ex. PW1/E (also Ex. DW1/4 and Ex. DW1/5 in CS No. 166/16).
16.21 Plaintiff Sushil Kumar had admittedly given an undertaking to the defendant to pay the entire dues with interest within one week of 18.07.2010, failing which the defendant was at liberty to sell the jewellery articles as was handed over to it by him. The said undertaking, duly signed by the plaintiff, is on record as Ex. PW1/11 (CS No. 166/16) and the same is reproduced hereunder:-
In consideration my liability/dues payable to Weizmann forex Ltd., Gurgaon I handover jewellery as per details attached to secure the dues. I promise to pay entire dues with interest by one week failing which the company may sell the same for the liquidation of their dues."
16.22 The said undertaking was given after dishonor of cheque bearing no. 871854 i.e. Ex. DW1/7 (CS No. 166/16). The said cheque was purportedly issued from the account of Lisha Impex and was signed by N. Kumar who is defendant no. 2 in CS No. 166/16. In fact the said cheque was mentioned as the CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 39/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex mode of payment, vide which the amount was to be repaid to the defendant company by Sh. Anuj Sharma and Sh. Vijay Kumar i.e. defendants no. 4 & 5 in CS No. 166/16. As already discussed above, Anuj Sharma is the plaintiff's son which material fact was concealed by the plaintiff. The mode of payment in the plaintiff's sales memo is vide cheque no. 871853. The said cheque was also issued from the account of Lisha Impex and was signed by N. Kumar. Both these cheques were admittedly dishonored on presentment. Cheque no. 871854 i.e. Ex. PW1/G amounting to Rs. 11,94,030/- was dishonored vide cheque return memos dated 16.06.2010 and 12.11.2010 whereas cheque no. 871853 i.e. Ex.
PW1/F (also Ex. DW1/15) amounting to Rs. 11,98,775/- was dishonored vide cheque return memo Ex. PW1/7 (colly) (in CS no. 166/16).
16.23 The relevant portion of cross-examination of Sh. Sushil Kumar (DW1) in CS No. 166/16 is reproduced hereunder:-
"Q6. Is it correct that only after the 1s cheque no. 871854 of Rs. 11,94,000.00 was dishonoured that you stood guarantee on 18.07.2010 to pay the entire liability in one week by handing over the jewellery articles?
A. No. The cheque does not belong to me. I had paid the amount of Rs. 1,75,000.00 and Rs. 1,00,000.00 in instalment. Since I could not pay the entire amount in one go I gave my jewellery instead as security. Thereafter I paid the entire amount of bill and interest of Rs. 15,80,000.00 in instalment. Q7. The witness is confronted with the letter dated 18.07.2010 (Exh. PW1/11). In the said letter you did not talk about instalments. Instead you undertook to make the entire payment within one week failing which the Company is free to sell the entire jewellery articles to realise its dues?
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 40/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
A. Yes I had given the undertaking pledging the jewellery
articles. Vol. They had said that they would return the jewellery on payment of Rs. 15,80,000.00 as the same was antique jewellery and belonged to my wife. Therefore, I had made the payment of Rs. 15,80,000.00."
16.24 Though the plaintiff claimed to have made payment of Rs. 15,80,000/- towards the bill along with the interest but he has failed to explain as to what was the interest claimed by the defendant and agreed by him to be paid in respect of bill/sales memo Ex. PW1/B. He has not explained as to at what rate he had paid the interest to the defendant. The very fact that he had paid Rs. 15,80,000/- against the sales memo of Rs, 11,98,775/- proves that he was making payment not only in respect of the forex facility availed by him, his sales memo Ex. PW1/B but also in respect of other sales memo Ex. PW1/C to E. Most importantly the payment was made only after the dishonor of cheque bearing no. 871854 i.e. Ex. PW1/G (also Ex. PW1/6 and Ex DW1/7 in CS no. 166/16). Though as per the undertaking, in case he failed to make the payment to the defendant company, the defendant company could sell the jewellery articles to recover the amount, however, during his cross-examination he made a false statement that he had not given any such undertaking. The relevant portion of his cross-examination as DW1 in CS No. 166/16 in this regard reads as under:-
"Q9 Apart from letter 18.07.2010 did you enter into any agreement with the company that you will pay Rs. 15,80,000.00 only and the company will release the pledged jewellery? A. There was no such agreement as I had made the payments of Rs. 1,75,000.00 and Rs. 1,00,000.00 in cash before the said letter dated 18.07.2010.
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 41/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
Q10. Did you give plaintiff company right to sell the pledged jewellery articles within 7 days to satisfy their dues? A. No. I have not given any such right to sell my jewellery. Q11. When both the cheques i.e. 871854 and 871853 for an amount of Rs. 11,94,034.00 and Rs. 11,98,775.00 respectively were dishonoured in November 2010 you came forward and gave some more jewellery on 18.12.2010 to satisfy and cover the entire liability of Rs. 23,92,805.00?
A. I had concern only with my liability of Rs. 11,98,775.00 and only against this I had surrendered the jewellery.
Witness is confronted with hand written letter 18.12.2010 (Exh. PW1/11 (colly)) Q.12 By way of the said letter Did you give one chain, one pendant and one kadha?
A. Yes. 16.25 Though plaintiff denied having any concern with Sh.
Narender Kumar Sharma i.e. N. Kumar, who had issued the above cheques, however, during his cross-examination it has emerged on record that he was the introducer when Sh. Narender Kumar Sharma opened the account in SBI Bank. This was another crucial fact concealed by the plaintiff. Unless they were known to each other, plaintiff would not have signed as an introducer in the account opening form i.e. Ex. PW1/P (also Ex. DW1/16 in CS No. 166/16) of Sh. N. Kumar. The relevant portion of his cross-examination as DW1 in CS No. 166/16 is reproduced hereunder:-
"Q13.Are you relative of Sh. Narender Kumar Sharma and Sh. Anuj Kumar Sharma?
A. I have no concern with Sh. Narender Kumar Sharma but Sh. Anuj Kumar Sharma is my son.
Q14. Did you stand as introducer of Sh. Narender Kumar Sharma while he opened an account with SBI as per Mark A Account Opening Form?
A. I may be. Since he was in the same building. Vol. But I have no concerned with him."
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 42/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex 16.26 It is also to be seen that the address of Lisha Impex in the account opening form i.e. Ex. PW1/P and Mark A is the same as the plaintiff's address i.e. I-26, Lajpat Nagar I, New Delhi, as becomes evident from the following statement made by him during his cross-examination:-
"Q15. You have mentioned in you affidavit that you are proprietor of Ranzer Exports?
A. Yes.
Q16. The office of proprietorship firm of yours, Ranzer Exports is situated where?
A. The registered office is at Faridabad. However, I used to operate from I-26, Lajpat Nagar I, New Delhi."
16.27 Not only he claimed that their office was in the same building and admitted being the introducer in the account opening form but the very fact that as per the sales memo the amount to the defendant company was secured/ was to be repaid through the cheque of N. Kumar, which ultimately got dishonored, goes a long way to prove that they were well known to each other or else why would N. Kumar issue cheques to the defendant company for repayment of forex facility availed by the plaintiff.
16.28 Most importantly, vide Ex. PW1/15, as discussed above, plaintiff admitted Lisha Impex to be his sister concern. Though he claimed that the said document is forged & fabricated but admittedly till date no legal action has been initiated by him against the defendant company for filing and replying upon Ex. PW1/15. Had it indeed been a forged & fabricate document, CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 43/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex plaintiff would have definitely initiated legal action against the defendant company. Not doing so till date, itself proves that the claims of forgery are nothing but an afterthought. The relevant portion of the cross-examination of the plaintiff reads as under:-
"Q17. Did you give another undertaking on vide letter dated
17.11.2010 (Exh. P/15) to pay all the liability of Lisa Impex towards the Plaintiff Company when both the cheques issued by Lisa Impex were dishonoured?
A. This is a fabricated letter given on my letter head. This does not even bear my signatures. The signatures are forged."
16.29 Plaintiff had been making payment to the defendant company and in the cash voucher/receipt relied upon by the defendant company in CS no. 166/16 i.e. Ex. PW1/14 (colly), it is mentioned as "by amount paid by Sh. Sushil Kumar Sharma towards repayment of outstanding dues of Lisha Impex". Plaintiff did not even once object to the defendant company issuing the cash vouchers/receipts in the above manner, which he would have definitely done had the payment been made by him on his behalf only and not on behalf of, towards the liability of Lisha Impex. Furthermore despite being so mentioned on the vouchers Ex. PW1/14 (colly) plaintiff made a false statement during his cross-examination as under:-
"Q19. Is it correct that as per the cash vouchers (Exh. PW1/14(colly.)) issued to you specifically states that payment is made against dues of Lisa Impex?
A. It is wrong."
16.30 Before the forex facility was availed by the plaintiff vide sales memo Ex. PW1/B, one letter dated 11.06.2010 was CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 44/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex written by Lisha Impex on its letter head, through its proprietor Sh. N. Kumar, whereby request was made to provide it's officials with the foreign exchange. The plaintiff has been shown as Director of Lisha Impex in the said letter. Why he was so shown could not be explained by the plaintiff and it further proves the link, connection and in fact collusion between him and Lisha Impex & N. Kumar and for that matter the other defendants whose particulars are mentioned in the said letter. The said letter is on record as Ex. PW1/12 in CS No. 166/16 and the same is reproduced hereunder:-
"To The Manager Weizmann Forex Ltd.
Gurgaon-122002.
Regarding release of foreign exchange to our Company We hereby approach you with a request to release foreign exchange to the undernoted representatives of our company who are travelling to China on a business visit. This may please be done in accordance with the latest RBI guidelines pertaining to business visit abroad. We certify that the expenses of the above trip are being borne by us and we undertake that the same will be utilized for the purpose stated above. We declare that we have not submitted and do not intend to submit any application for the same trip to RBI or any other authorised dealer. We hereby declare that the transaction, details of which are specifically mentioned above does not involve and is not designed for the purpose of any contravention or evasion of the provisions of section 10 (50 chapter iii of the foreign exchange management Act 1999)or of any rule regulation notification direction or order made there under. We also hereby agree and undertake to give such information/documents as will reasonably satisfy you about this transaction in terms of the above declaration. We also undertake that if we refuse to comply with any such requirement or only unsatisfactory compliance therewith, the AD shall refuse in writing to undertake the transaction and shall if it has reason to believe that any contravention/evasion is contemplated by us report the matter to Reserve Bank of India.
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 45/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
Name of the person undertaking the trip : Sh. Sushil Kumar Sharma Sh. Anuj Sharma Sh. Vijay Kumar
Address 629, Sec-28, Faridabad 629, Sec-28, Faridabad 3484/1 Narang
Colony,Trinagar,
New Delhi -110035
Designation : Director AM Sales AM Sales
Nationality : Indian Indian Indian
Passport Number/DOI/DOE/P. ISSUE : H-6960119 F-3467690 H-3804821
Countries to be visited : China China China
Purpose of visit : Business Business Business
Approx Duration Stay in Abroad : 15 Days 15 Days 15 Days
Total Foreign Exchange Required : USD 3000 CN & 22000 TC USD 3000 CN USD 3000 CN &
18900 TC
In Payment of the above foreign exchange being purchased for the above stated 3 gentlemen namely Sh. Sushil Kumar Sharma, Sh. Anuj Sharma & Sh. Vijay Kumar, we are enclosing undernoted cheques:
1) Cheque No. 871854 Amounting Rs. 11,94,030/- (State Bank of India)
2) Cheque No. 871853 Amounting Rs. 11,98,775/- (State Bank of India) Thanking you yours sincerely For Lisha Impex Proprietor"
16.31 Had there been no connection between plaintiff and Lisha Impex and Sh. N. Kumar, Sh. N. Kumar would not have written the above letter to the defendant. There would have been no reason or occasion why their crucial details i.e. address, passport number etc. would have been available with N. Kumar as were detailed by him in Ex. PW1/12. The amount of US dollars and traveler's cheque is exactly same as is in invoices Ex.PW1/B to E. All this proves that there was indeed a connection between plaintiff, his son Anuj Sharma, Sh. Vijay Kumar, Sh. N. Kumar and Lisha Impex. The relevant portion of the cross-examination the plaintiff as DW1 in CS no. 166/16 is reproduced hereunder:-
"Q1. Can you tell whether you were shown as Representative and Director of the Defendant No. 1 Company in letter dated 11.06.2010 (Exh. PW1/12)?
A. It is wrong as I was not a proprietor or Director or signing CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 46/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex authority in the said M/s. Lisa Impex.
Q2. Whether the letter dated 11.06.2010 showing disbursal of an amount of USD 3000 and 22,000 TC is a correct depiction? A. I have no concern with the amount mentioned in the said letter.
Q3. Can you tell the amount released by the Sale Memo No. 15462 dated 12.06.2010 to you?
A. Yes. I have admitted this amount of the Sale Memo. Q4. Can you tell whether the Cheque mentioned in the Sale Memo dated 12.06.2010 s given against the Foreign Exchange provided to you?
A. The cheque mentioned in the said Sales Memo is not mine and I have not given. I have taken the Foreign Exhange as mentioned in the Sales Memo on credit basis."
16.32 Not only plaintiff's statement during his cross- examination, but even his son Sh. Anuj Sharma's statement during cross-examination as DW4 in CS No. 166/16 leaves no doubt that they were making false statements so as to avoid their liability and the entire record leaves no doubt that all of them in collusion with each other wants to defeat the rightful claim of the defendant company and they did cause wrongful gains to themselves while causing wrongful loss to the defendant company. The relevant portion of DW4 is reproduced hereunder:-
"Q.1 How do you know Mr. N. Kumar?
A. I don't know Mr. N. Kumar properly.
Q 2. Do you know that 2 cheques (Exh. PW1/13) were tendered on 11.06.2010 to facilitate your travel to china?
A. No.
Q3. Did you go to China in 2010?
A. I will have to check it.
Q4. Do you know that there are endorsements in the passports? Do you have endorsement for China in your passport?
A. Yes.
Q5. In your Affidavit you did not file copy of the passport, can you produce it?
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 47/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
A. Yes I can produce it. I did not take $ 3000 from the
Plaintiff Company to facilitate my trip to China. Q.6 Did you in your statement of defence in the complaint case no. 214/2011 filed by the Plaintiff Company take the plea that you did not take $ 3000 from the plaintiff Company?
A. I might have taken this defence.
Witness is confronted with PW1/9 (colly).,Application under section 45 (2) of N.I. Act.
Q.7 Did you take this plea that you have not received $3000 from the plaintiff company in this Application? A. It is a very old matter. Therefore I cannot recollect. Q.8 Did you participate in the Mediation Proceeding before the Patiala House Court?
A. I used to come for the Court proceedings, but I cannot recollect if I participated in Mediation proceedings. Q.9 Is it correct that one Counsel represented you, your father (Sushil Kumar), Mr. N.Kumar and Lisa Impex in that proceeding?
A. For me and my father Mr. Sushil Kumar there was one Counsel i.e. Mr. Parmod Sharma the current Advocate of my father. I don't remember who was the counsel for Mr. N.K.Kumar and Lisa Impex.
Witness is confronted with the Vakalatnama filed in the said complaint case at Patiala House, which is part of Exh. PW1/14 (Colly). The confirms the signature at point A to be of Mr. Sushil Kumar Sharma, at point B to be of Mr. N. Kumar and at point C to be of the witness himself (Anuj Sharma).
Q11. It is correct that the jewellery articles given by your father was pledged against the entire liability of Lisa Impex, your father and yours?
A. I know that jewellery was pledged. But my father would know if it was given against entire liability. Witness is confronted with the order dated 17.04.2012 passed by Ms. Bhawna Kalia, Learned MM in the said complaint case at Patiala House, which is part of Ex. PW 1/9(colly) Q.12 Is it correct that Mr. Parmod Sharma had given a statement on 17.04.2012 on your behalf, your father's behalf and on behalf of Lisa Impex and Mr.N.Kumar that they are willing to pay an amount of Rs. 8,12,805.00 along with interest @ 10 %?
A. I don't recollect. Vol. Probably that amount has been paid."
16.33 Undoubtedly in the criminal complaint bearing no.
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 48/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
214/1 i.e. Ex. PW1/H the plaintiff was arrayed as an accused in the capacity of one of the official of Lisha Impex and Sh. N. Kumar was shown as the proprietor of Lisha Impex, whereas, in the criminal complaint filed before the Bangalore Court i.e. CC No. 26207/11, (certified copy of the judgment is on record as Ex. PW1/M (also Ex. DW1/1 in CS No. 166/16) and the cross- examination the defendant's witness is on record as Ex. PW1/L) the plaintiff was arrayed as an accused as the proprietor of Lisha Impex and not only before this court but before the Bangalore Court also the defendant company failed to prove that the plaintiff was indeed the proprietor of Lisha Impex, however, merely because the defendant company failed to prove so does not imply that there was no connection between the plaintiff and Lisha Impex or the other defendants, accused persons in those criminal cases. The Bangalore case or for that matter the case filed at Delhi are at best an example of naivety on the part of the defendant company. It is a classic case of the defendant company having been ill advised on the legal aspect and what an unprofessional legal advise can lead to. The manner in which both the cases were pursued by the legal representatives of the defendant company speaks for itself. But to give advantage of the same to the plaintiff in the present suit/litigation would amount to perpetuating the wrong committed by the plaintiff as well as would defeat the ends of justice.
16.34 As regards the outstanding amount, amount due from
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 49/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
the plaintiff, it had been specifically stated by the defendant's witness Sh. B. Gopi Nath, in his evidence by way affidavit, before the Bangalore court as under:-
"I submit that after filing the complaint on 20.12.2001, the accused has paid a sum of Rs. 3,85,950/- (Rupees three lakhs eighty five thousand nine hundred and fifty only) on various dates from 29.01.2011 to 26.08.2011 and there is still an outstanding balance of Rs. 8,12,805/- (Rupees eight lakhs twelve thousand eight hundred and five only)."
16.35 It is to be noted that it was for the same/above amount that the plaintiff had given an undertaking, arrived at settlement before the mediation centre on 15.02.2012, as has been discussed above. The total value of the four sales invoices i.e. Ex. PW1/B to Ex. PW1/E comes to Rs. 23,92,805/-. Admittedly plaintiff has paid a sum of Rs. 15,80,000/-. This leaves an outstanding amount of Rs. 8,12,805/- which amount plaintiff had agreed to pay to the defendant company. What the plaintiff is trying to confuse is that as against the sales invoice Ex. PW1/B for a sum of Rs. 11,98,775/- he has already paid a sum of Rs. 15,80,000/- to the defendant company but the defendant company is still retaining his gold and diamond jewellery, however, the fact remains that an amount of Rs. 8,12,805/- is still due towards the sales invoices Ex. PW1/B to E. The said amount has not been repaid and the plaintiff's claim that the amount has been repaid by N. Kumar is not only false and frivolous but the same could not be even remotely substantiated.
16.36 No doubt sales invoices Ex. PW1/C to E are in the
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 50/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
name of Sh. Anuj Sharma and Vijay Kumar, however, it was the plaintiff who had agreed to settle with the defendant and also agreed to pay the said amount to the defendant. It was only in pursuant to his statement vide proceedings dated 15.02.2012 that the complaint was withdrawn by the defendant company. Plaintiff cannot be permitted to back out of the said undertaking/settlement. Atleast he cannot be permitted to cry foul when it is he and his associates i.e. the other defendants who have caused loss to the defendant company.
16.37 Though in his evidence by way of affidavit Ex. PW1/1 in para 4 plaintiff claimed that after having availed the forex facility from the defendant, he was pressurized to provide security against the sales memo/forex facility i.e. Ex. PW1/B and accordingly he kept his gold & diamond jewellery as well as property papers on 18.07.2010 vide list Ex. PW1/A and acknowledgement of the same day i.e. Ex. PW1/11 (in CS No. 166/16) as security with the defendant, however, it is to be seen that the security was already provided vide cheque no. 871853 i.e. Ex.PW1/F (also Ex. DW1/15) issued from the account of Lisha Impex and signed by N. Kumar, as is reflected in the sales memo Ex. PW1/B, which cheque ultimately got dishonored. It was only after dishonor of the cheque that the plaintiff had given the security on 18.07.2010. It otherwise sans logic that without taking any security the defendant company would have released the forex facility to the plaintiff. This further proves the CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 51/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex connection, relation between the plaintiff and Lisha Impex & N. Kumar.
16.38 Therefore, as long as there is outstanding amount against the plaintiff to the tune of Rs. 8,12,805/-, which was admitted to be paid by the plaintiff to the defendant company vide undertaking dated 15.02.2012, 17.04.2012 and 31.08.2012 and which amount has not been paid till date along with interest as was agreed to be paid on the delayed payment, the plaintiff is not entitled to return of gold & diamond ornaments/jewellery or the property papers. In fact in terms of his understanding the defendant company is at liberty to sell the articles to recover the amount. He is also not entitled to damages of Rs. 15 lacs as has been prayed, till the outstanding amount is paid to the defendant company. This is in addition to the fact that the plaintiff has failed to explain or prove how he is entitled to Rs. 15 lacs as damages i.e. on what basis. He has failed to prove the worth/value of the jewellery. No bills, invoices etc. has been proved in this regard. Plaintiff has failed to prove that the value of the jewellery is indeed Rs. 15 lacs.
16.39 Therefore issue no. 1, 2 and 3 in the present suit (CS No. 56701/2016) are decided against the plaintiff. As the issues have been decided against the plaintiff, plaintiff is not entitled to any relief. Suit of the plaintiff i.e. CS No. 56701/2016 is liable to be dismissed. I order accordingly.
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 52/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
16.40 As far as issue no. 1 in CS No. 166/16 is concerned
though defendant company has failed to prove that defendant no. 3 and 4 are the proprietors of defendant no. 1 concern i.e. M/s Lisha Impex, nonetheless defendant no. 3 and 4 had availed the forex facility from the defendant company vide sale memo Ex. PW1/B and Ex. PW1/D. Though the total amount of forex facility availed by them comes to Rs. 13,42,625/- and admittedly amount of Rs. 15,80,000/- has been paid by the plaintiff nonetheless there is still an outstanding of Rs. 8,12,805/- qua the sales memo Ex. PW1/C and Ex. PW1/E. Plaintiff, as discussed above, had undertaken to pay the outstanding amount failing which he had also agreed that defendant company shall be at liberty to sell the gold & diamond jewellery. Considering the discussion as above there appears to be clear collusion between the plaintiff (defendant no. 3 in CS No. 166/16), his son (defendant no. 4) and the remaining defendants. The sales memo were billed to Lisha Impex and were secured through the cheques of Lisha Impex. The forex facility was provided by the defendant company only on the basis of letter written by N. Kumar, proprietor of Lisha Impex on 11.06.2010. Thus there is direct connection between defendant no. 3 & 4 and defendant no. 1 & 2 and thus there is enough cause of action in favour of the defendant company against the plaintiff/defendant no. 3 and defendant no. 4.
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 53/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
16.41 Therefore issue no. 1 is decided against defendant no.
3 and 4.
16.42 As far as issue no. 2 is concerned the onus to prove
the same was upon defendant no. 4. However there is no sale memo dated 12.06.2010 in the sum of Rs. 11,94,030/- and there appear to be typographical error in issue no. 2. Instead there is a cheque bearing no. 871854 dated 12.06.2010 for a sum of Rs. 11,94,030/- i.e. Ex. PW1/G as was signed by N. Kumar and which got dishonored on presentment, as discussed above. The sales memo in the name of defendant no. 4 is Ex. PW1/D for a sum of Rs. 1,43,875/-. Though defendant no. 4 had claimed that the said sale memo is forged & fabricated, however, no evidence was led by defendant no. 4 to prove the same. Though he denied that he took 3000 US dollar from the defendant company vide the said sale memo but he was making a false statement. He had indeed availed the forex facility. In case he had not so availed the facility and not gone to China, he should have proved the said fact. In fact, as has been discussed above, his answers/replies during the cross-examination remained evasive as regards to his visit to China. He did not produce his passport. Except for taking the bald plea that the sale memo is forged, defendant no. 4 did not lead any evidence to prove the same. Therefore issue no. 2 is decided against defendant no. 4.
16.43 As far as issue no. 3 is concerned, in view of the
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 54/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex
above discussion, it is held that the defendant company is indeed entitled to a sum of Rs. 8,12,805/-. Though defendant company has claimed an amount of Rs. 13,97,514/- which includes the principal outstanding of Rs. 8,12,805/- and the remaining is interest, however, the interest has been calculated @ 18% per annum w.e.f. 12.06.2010 till the filing of the suit, which in my considered opinion is penal interest. Nonetheless considering the fact that plaintiff had agreed to pay interest @ 10 % per annum on the principal amount of Rs. 8,12,805/- before the Ld. Mediator and Ld. MM, defendant company is entitled to recovery of a sum of Rs. 8,12,805/- along with interest @ 10% per annum w.e.f. 01.12.2011 i.e. since about 3 years before filing of suit bearing no. 166/16 till the date of filing of the suit.
16.44 As far as against whom the defendant company can claim recovery is concerned, in view of the undertakings given by the plaintiff, on 18.07.2010, 15.02.2012, 17.04.2012 & 31.08.2012 which constitutes valid acknowledgement of the debt/liability on the part of the plaintiff and also brings the suit within limitation as per section 18 of the Limitation Act 1963, the defendant company is entitled to recover the amount from him.
16.45 As far as defendant no. 4 and 5 are concerned, though they are also liable to pay, however, the suit is hopelessly barred by limitation as the sales memo are dated 11/12.06.2010 and CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 55/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex there is no acknowledgement of debt/liability which could have brought Civil suit bearing no. 166/16 filed on 24.11.2014 within the limitation period against the said defendants.
16.46 As far as defendant no. 1 is concerned, it being a proprietorship concern, is not a separate legal entity in the eyes of law. Liability if any on behalf of Lisha Impex is/was of its proprietor i.e. defendant no. 2. However, the suit against him also is hopelessly barred by limitation. Defendant company is also entitled to pendentlite and future interest @ 6 % per annum till the realization of decreetal amount. Issue no. 3 stands accordingly decided.
Relief
17. CS No. 166/16 is decreed in favour of plaintiff (defendant company) and it is held that it is entitled to recovery of a sum of Rs. 8,12,805/- along with interest @ 10% per annum w.e.f. 01.12.2011 i.e. since about 3 years before filing of suit bearing no. 166/16 till the date of filing of the suit against defendant no. 3 (plaintiff in CS No. 56701/16), who is liable to pay the said amount to the defendant company. Defendant company is also entitled to pendentlite and future interest @ 6 % per annum till the realization of decreetal amount.
18. Decree sheet be prepared accordingly. I order CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 56/57 & 166/16 & M/s Weizmann Forex Ltd. Vs. Lisa Impex accordingly.
19. Files be consigned to record room after necessary compliance.
Announced in the open court (Gaurav Rao)
on 21st January 2023 ADJ-03/PHC/
New Delhi District,
New Delhi.
CS No. 56701/16 Sushil Kumar Sharma Vs M/s Weizman Forex Ltd. 57/57
& 166/16 &
M/s Weizmann Forex Ltd. Vs. Lisa Impex