Delhi District Court
Sh. Sahil Gupta vs Amit Anand on 6 February, 2023
-:: 1 ::- Date:06.02.2023
IN THE COURT OF MS. SHIVALI BANSAL
ADDITIONAL DISTRICT JUDGE-03 (NORTH)
ROHINI COURTS, DELHI
CNR No. DLNT010006762021
CS No. 76/21
In the matter of :-
Sh. Sahil Gupta
S/o Late Kuldeep Gupta
2nd Floor, B-3/9, Model Town-I,
New Delhi-110009. ...... Plaintiff
Versus
Amit Anand
S/o Sh. Sham Sunder
R/o 3A/12A, Opposite-C3A,
Mother Dairy Janakpuri,
Janakpuri B-1, West Delhi,
New Delhi - 110058
Also At:
C-3A/124A, Opposite-C3A,
Mother Dairy, Janakpuri B-1,
West Delhi, Delhi-110058
Present Working Office Address:
As HR Manager in
SIS Group Enterprises
A-28-29, Okhla Industrial Area Phase-I
Delhi-110020 ......Defendant
CS No. 76/21 Sahil Gupta Vs. Amit Anand Page: 1 of 14
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Date of Institution : 04.02.2021
Date of Final Argument : 21.01.2023
Date of pronouncement of judgment : 06.02.2023
SUIT FOR RECOVERY OF RS. 4,24,931/- ALONGWITH
PENDENTILITE AND FUTURE INTEREST
EX-PARTE JUDGMENT
1.The present suit is for recovery of Rs. 4,24,931/- alongwith pendentilite and future interest from the date of decree up to the date of realisation and costs of the suit with interest thereon.
2. The brief facts of the case as stated by the plaintiff in his plaint are as under:-
i. It is stated that the plaintiff is a Chartered Accountant by profession and a sole proprietor of Sahil Gupta and Co. having his registered office at B-3/9, 2nd Floor, Model Town-1, Delhi- 110009. Mr. Sahil Gupta in his individual capacity is duly authorized to file and institute the present suit.
ii. It is stated that the defendant is dealing as a front for a proprietorship concern "MINGLE TEA" registered in the name of Meenu Anand W/o the defendant. It is pertinent to mention that all the dealings and payments made till date on the behalf of "MINGLE TEA" were done by the defendant. The registered office of the proprietorship concern i.e. "MINGLE TEA" is CS No. 76/21 Sahil Gupta Vs. Amit Anand Page: 2 of 14
-:: 3 ::- Date:06.02.2023 C-3A/124A, opposite- C3A, Mother Dairy, Janakpuri B-1, West Delhi, Delhi- 110058.
iii. It is stated that plaintiff understood that the defendant's firm i.e. "MINGLE TEA" had been floated by the defendant. It is further stated that the defendant was nothing but a front for "MINGLE TEA".
iv. It is stated that in or around July- August 2015, the defendant, representing himself to be the actual owner of the "MINGLE TEA", came in contact with the plaintiff and since then the defendant had been availing professional services of the plaintiff.
v. It is stated that defendant regularly availed the professional services of the plaintiff till June of the financial year 2018-2019, pertaining to DVAT, FSSAI, GST and Income Tax compliances in relation to the defendant's proprietorship concern "MINGLE TEA" as well as other statutory compliances for himself. It is further stated that the plaintiff had also been raising the bills giving details about the services availed by the defendant and the value thereof.
vi. It is stated that the aforesaid bills raised by the plaintiff were duly accepted and acknowledged by the defendant. For the last time, the plaintiff had raised the bill dated 30.06.2019 of Rs. 1,26,000/- upon the defendant and on 13.02.2019, the defendant, for the last time, had made an 'on account' payment of Rs. 10,000/- to the plaintiff by way of Account transfer in the plaintiff's account. It is CS No. 76/21 Sahil Gupta Vs. Amit Anand Page: 3 of 14
-:: 4 ::- Date:06.02.2023 stated that on 30.06.2019, the defendant were still liable to pay a balance amount of Rs. 1,15,800/- in the account of "MINGLE TEA" to the plaintiff.
vii. It is stated that the defendant had agreed and undertaken to adjust the balance outstanding in his account within a short span of time and in any event, as and when demanded by the plaintiff.
viii. It is further stated that on or around 01/02.12.2015, the defendant approached the plaintiff for a personal/friendly loan of Rs. 1,00,000/-(one lakh only) on the pretext of urgent need of funds. That around 05/06.12.2015, the defendant again approached the plaintiff and the plaintiff had acceded to the request of the defendant and had advanced Rs. 1,00,000/- (one lakh only) through Bank in four installments i.e.;
Date Amount Through
10.12.2015 25,000/- Transferred from Bank
16.01.2016 10,000/- Transferred from Bank
16.01.2016 15,000/- Transferred from Bank
13.06.2016 50,000/- Transferred from Bank
UTR No. SBIN91615857027
ix. It is submitted that the aforesaid loan of Rs. 1,00,000/- (one lakh only) was mutually agreed to be returned with the interest of 24% per annum on the principal amount. It is further submitted that in CS No. 76/21 Sahil Gupta Vs. Amit Anand Page: 4 of 14
-:: 5 ::- Date:06.02.2023 the meanwhile, professional services of the Plaintiff had been continued till June 2019 with the defendant.
x. It is stated that on 28.02.2018, the defendant had issued a cheque of Rs. 19,000/- bearing cheque no. 008049 on behalf of "MINGLE TEA" account in favour of the plaintiff. The aforestated cheque was dishonored vide memo dated 01.03.2018. It is further stated that the plaintiff immediately informed about the abovestated dishonor to the defendant and on request of the defendant, the plaintiff again deposited the aforestated cheque for clearance on 08.03.2018 but the same was again dishonored on 09.03.2018. It was further requested by the defendant that he would clear the amount as soon as possible and further not to take any legal recourse against him. The plaintiff acceded to the request made by the defendant and did not file any complaint case pertaining to dishonour of cheque against the defendant.
xi. It is stated that on 01.08.2018, the first and only installment of Rs. 15,000/- was received in the account of the plaintiff against the loan amount. The defendant further requested to the plaintiff that he would clear the entire outstanding amount pertaining to both the accounts as soon as possible.
xii. It is further stated that the defendant had issued a cheque dated 18.01.2019, bearing cheque no. 738777 of Rs. 50,000/- (fifty thousand only), in the favour of the plaintiff in the account of "MINGLE TEA".
CS No. 76/21 Sahil Gupta Vs. Amit Anand Page: 5 of 14
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xiii.It is stated that on 18.01.2019, after the prior confirmation from the defendant, the plaintiff on 22.01.2019 had deposited the said cheque in his bank account but the said cheque was dishonored due to the reason "funds insufficient". The plaintiff immediately informed about the said dishonor to the defendant upon which the defendant bought some more time from the plaintiff to clear the outstanding amount of the plaintiff.
xiv. It is stated that on persistent demand by the plaintiff, the defendant again asked the plaintiff to re-deposit the cheque bearing cheque no. 738777 to the bank on 30.01.2019. However, the cheque was again dishonored due to the same reason i.e. "fund insufficient. Subsequently, the defendant requested the plaintiff to hold the cheque and not to present the same without prior information to the defendant. The plaintiff on being friendly terms with the defendant acceded to the request of the defendant.
xv. It is further stated that the last outstanding balance shown in the plaintiff's ledger, as on 30.11.2020 is Rs 1,15,800/-(One Lakh Fifteen thousand and eight hundred, without interest) pertaining to "MINGLE TEA' and Rs. 2,79,400/-(Two Lakh Seventy Nine Thousand Four Hundred Only) pertaining to the personal loan account, which are still outstanding till filling of the present suit. The plaintiff regularly requested for his amount but no payment had ever been received on either of the accounts after 13.02.2019 from the defendant.
CS No. 76/21 Sahil Gupta Vs. Amit Anand Page: 6 of 14
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xvi.That on or around November/December 2019, the defendant committed to make the entire payment pertaining to both the accounts but he failed to make any such payment to the plaintiff. The plaintiff tried to contact the defendant several times; however, the defendant did not answer the phone calls of the plaintiff.
xvii. It is stated by the plaintiff that he maintained books of account in the regular course of his business. The aforesaid bills issued by the plaintiff were debited in the account maintained in the name of the defendants and similarly, whenever the payments were received, the same were credited to the account of the defendant. The plaintiff also maintained books of account pertaining to the loan account and its interest calculation, in the name of the defendant. Each and every month the amount of interest was debited in the account of the defendant and similarly, whenever the payments were received, the same were credited to the account of the defendant.
xviii. It is stated that plaintiff sent a legal notice to the defendant on 20.09.2019 (sent through APV VIDHIGYA, Advocates and Legal Consultants) on all the addresses mention in the memo of parties calling upon the defendant to liquidate their liability towards the plaintiff and pay the amount of Rs. 1,15,800/- and 2,68,521/- together with costs and interest. Despite that, the defendant ha failed to pay any amount to the plaintiff.
CS No. 76/21 Sahil Gupta Vs. Amit Anand Page: 7 of 14
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xix. It is stated that the defendant is liable to pay to the plaintiff the following amounts:
(i) Balance outstanding amount pertaining to "MINGLE TEA" account as mentioned above: Rs. 1,15,800/-
(ii) Balance outstanding amount pertaining to the Loan account including Interest charges as mentioned above: Rs. 2,79,400/-
(iii) Interest at the rate of 9% per annum on Rs. 1,15,800/- with effect from 13.02.2019 till the date of institution of the present suit. Rs. 18,731/-
(iv) Costs of the legal notice dated 20.09.2019 Rs. 11,000/-
Total: Rs. 4,24,931/-
3. It is prayed by the plaintiff that a decree of Rs. 4,24,931/- be passed in his favour along with pendente lite and future interest @ 18% per annum from the date of institution of the suit till its realization.
4. The defendant was served and he was proceeded ex-parte vide order dated 13.09.2022.
5. The PW-1 is Sh. Sahil Gupta, S/o Late Sh. Kuldeep Gupta, aged about 33 years, office at 2nd floor, B-3/9, Model Town-1, New Delhi-110009 R/o 102, West Mukherji Nagar, Delhi-110009. He tendered his affidavit in evidence Ex. PW 1/A, same bear his signature at point K CS No. 76/21 Sahil Gupta Vs. Amit Anand Page: 8 of 14
-:: 9 ::- Date:06.02.2023 and L. He relied upon the following documents in my affidavit of evidence.
i. Copy of Aadhar Card of the defendant is marked as Mark-A. ii. Certified true copy of the bill dated 13.03.2016 of Rs. 20,200/- is Ex. PW1/1.
iii. Certified true copy of the bill dated 20.08.2016 of Rs. 3,500/- is Ex. PW1/2 that bears the signature and seal of the deponent/proprietorship concern/professional firm at point "B".
iv. Certified true copy of the bill dated 31.03.2017 of Rs. 54,100/- is Ex. PW1/3 that bears the signature and seal of the deponent / proprietorship concern / professional firm at point "C".
v. Certified true copy of the bill dated 30.06.2017 of Rs. 2,000/- is Ex. PW1/4 that bears the signature and seal of the deponent/proprietorship concern / professional firm at point "D".
vi. Certified true copy of the bill dated 30.06.2019 of Rs. 1,26,000/- is Ex. PW1/5 that bears the signature and seal of the deponent/proprietorship concern / professional firm at point "E".
vii. Certified true copy of the ledger accounts pertaining to MINGLE TEA in the books of the plaintiff with effect from 31.03.2016 up to 13.02.2019 (colly.) is Ex. PW1/6 that bears the CS No. 76/21 Sahil Gupta Vs. Amit Anand Page: 9 of 14
-:: 10 ::- Date:06.02.2023 signature and seal of the deponent/proprietorship concern/professional firm at point "F".
viii.Certified copy of the bank statements of the plaintiff from 01.01.2015 to 18.03.2019 is Ex. PW1/7 (colly.).
ix. True copy of the cheque dated 28.08.2018 of Rs. 19,000/- is Ex.PW1/8.
x. True copy of the memo dated 09.03.2018 is Ex. PW1/9.
xi. True copy of the cheque dated 18.01.2019 of Rs. 50,000/- is Ex. PW1/10.
xii. True copy of the memo dated 31.01.2019 is Ex. PW1/11.
xiii.Certified copy of the ledger accounts pertaining to the MINGLE TEA in the books of the plaintiff with effect from 10.12.2015 up to 30.11.2020 (colly.) is Ex. PW1/12(colly) that bears the signature and seal of the deponent/proprietorship concern/professional firm at point "G".
xiv. True copy of the chats is Ex. PW1/13.
xv. Certified copy of the interest calculation pertaining to the loan account from 10.12.2015 to 30.11.2020 is Ex. PW1/14 that bears the signature and seal of the deponent /proprietorship concern/professional firm at point "H".
xvi. Office copy of the legal notice dated 20.09.2020 is Ex. PW1/15.
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xvii.Computer printout of the tracking reports obtained from the website of Indian Postal department (3) (Colly.) is Ex. PW1/16.
xviii.Original speed post receipts (3) (colly.) is Ex. PW1/17.
xix. Original returned speed post envelops sent to the defendant on one of his addresses is Ex. PW1/18.
xx. Certified copy of the interest calculation pertaining to the MINGLE TEA account from 13.02.2019 to 30.11.2020 is Ex. PW1/19 that bears the signature and seal of the deponent/proprietorship concern/professional firm at point "I".
xxi. The original certificate u/s 65B (4) (c) is Ex. PW1/20 and at point 'J' bears the signature of the deponent.
Heard. Record perused.
6. The plaintiff in the present suit has joined two cause of actions against the defendant. His first cause of action pertains to recovery of professional fee from a proprietorship firm, namely, M/s. Mingle Tea and the second cause of action pertains to recover a friendly loan of Rs. 1,00,000/- @ 24% per annum allegedly advanced by the plaintiff to the defendant. This court is dealing with the aforesaid two cause of actions separately as under:-
i. Action for recovery of professional fee from the proprietorship firm.
CS No. 76/21 Sahil Gupta Vs. Amit Anand Page: 11 of 14
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The plaintiff has instituted the present suit against the defendant who is not a proprietor of the firm i.e. M/s. Mingle Tea against whom recovery of professional fee is alleged. The plaintiff in his plaint has categorically stated that M/s. Mingle Tea is a proprietorship firm in the name of Smt. Meenu Anand who is the wife of the defendant. The plaintiff has not placed on record any document to suggest why a recovery is sought against the defendant in his individual capacity and not the proprietorship firm. In the instant case, proprietorship firm through its proprietor was a necessary party and in the absence of necessary party, no relief can be granted to the plaintiff against the defendant as far as this cause of action is concerned. Moreover, on perusal of Ex. PW1/1, Ex. PW1/2, Ex. PW1/3, Ex. PW1/4 and Ex. PW1/5, it is found that they have the certified true copy of the bill which are generated by the plaintiff himself and is without any acknowledgment from the defendant. The veracity of the said invoices Ex. PW1/1 to Ex. PW1/5 cannot be presumed, especially when the plaintiff in his plaint has stated that the bills were duly accepted and acknowledged by the defendant.
ii. Action for recovery of friendly loan.
It is the case of the plaintiff that plaintiff has advanced a friendly loan of Rs. 1,00,000/- @ 24% per annum to the defendant on 01/02.12.2015 and a part payment in the loan account was made by the defendant on 01.08.2018 which was received by the plaintiff in CS No. 76/21 Sahil Gupta Vs. Amit Anand Page: 12 of 14
-:: 13 ::- Date:06.02.2023 his bank account. On perusal of Ex. PW1/12, it is found that the plaintiff in his statement of account has shown the receipt of the payment from account no. 50100060572720, however, on perusal of Ex. PW1/7, it is found that the amounts stated to be advanced by the plaintiff to the defendant has been actually advanced to the proprietorship concern of the defendant shown as under :-
Date Amount Through Entities
10.12.2015 25,000/- Transferred from Bank Amit
16.01.2016 10,000/- Transferred from Bank MITS Consulting, Indian Overseas Bank 16.01.2016 15,000/- Transferred from Bank MITS Consulting, Indian Overseas Bank 13.06.2016 50,000/- Transferred from Bank MITS Consulting, Indian UTR No. Overseas Bank SBIN91615857027 On perusal of Ex. PW1/14, it is found that MITS Consulting is a proprietorship firm of the defendant. This means that the plaintiff is seeking recovery of Rs. 75,000/- @ 24 % per annum from the proprietorship firm of the defendant without stating the same in his pleadings and without making the proprietorship firm through its proprietor i.e. the defendant a party before this Court. In absence of any pleading, the claim of the plaintiff is not maintainable against the defendant in his individual capacity.
The present suit is bad for non-joinder of necessary parties. However, on the basis of the plaint and documents relied upon by CS No. 76/21 Sahil Gupta Vs. Amit Anand Page: 13 of 14
-:: 14 ::- Date:06.02.2023 the plaintiff, it is clear that the plaintiff is entitled to claim a sum of Rs. 25,000/- from the defendant. Since, a part payment of Rs.15,000/- is already received by the plaintiff from the defendant on 01.08.2018, therefore, the suit of the plaintiff is decreed to the extent of Rs. 10,000/- @ 24 % per annum from the date of the filing of the suit till its actual realization.
Decree sheet be prepared accordingly.
File be consigned to record room.
SHIVALI Digitally signed by SHIVALI BANSAL BANSAL Date: 2023.02.06 16:46:03 +0530 Announced in open Shivali Bansal Court on 06.02.2023 Additional District Judge-03 North District, Rohini Courts, Delhi CS No. 76/21 Sahil Gupta Vs. Amit Anand Page: 14 of 14