Delhi District Court
Mr. Arun Bansal vs Vipin Jain on 16 May, 2015
In the Court of Virender Kumar Goyal
Additional District Judge01 (East)
Karkardooma Courts, Delhi.
Suit No.160/2009
Unique Case ID No.02402C0010142009
In the matter of :
M/s. Heaven Plast India Pvt. Ltd.
a company incorporated under
the Companies Act, 1956
having its registered offices at:
B18, PhaseII, Industrial Area,
Mangol Puri, Delhi110034.
Through its duly constituted attorney
and Authorized Representative:
Mr. Arun Bansal
S/o Sh. P.C. Bansal
C/o B18, PhaseII, Industrial Area,
Mangol Puri, Delhi110034 .....Plaintiff
Versus
1. Vipin Jain
S/o Sh. Raghubir Singh Jain
2. Ms. Namita Jain
W/o Sh. Vipin Jain
Both at:
(i) 1/9576, Street No.2,
Pratap Pura, Shahdara, Delhi110032
Also at:
(ii) Footwear Merchant
Suit No.160/2009 Page No.1 of 15
Anand Ganj (Purani Anaj Mandi),
Baraut, (U.P). .....Defendants
Date of Institution : 15.01.2009
Reserved for order on : 16.04.2015
Date of order : 16.05.2015
O R D E R
1. Vide this order, I shall dispose of an application U/o 37 rule 3(5), filed by the defendants, for grant of leave to defend.
2. Brief facts of the case are that the plaintiff has filed the present suit u/o 37 of CPC for recovery of Rs.16,55,988/ alongwith costs, interest pendente lite and future, against the defendants.
3. The summons of appearance were issued to the defendants and on the completion of service, defendants had filed their appearance and on service of summons for judgment, defendants have filed application under consideration for grant of leave to defend alongwith detailed affidavits, on the averments that suit is not maintainable, being summary suit filed U/o 37 CPC. The suit is filed on the basis of false and concocted facts and also on forged and fabricated documents. Defendants have not received copy of the application U/o 37 rule 3(4) CPC alongwith affidavit, on the basis of which, present suit has been filed. Defendant Sh. Suit No.160/2009 Page No.2 of 15 Vipin Jain used to deal with plaintiff and has placed orders directly to defendant to supply footwears, for sending ordered material to his clients. Defendant no.2 Smt. Namita Jain had/has no dealing of any nature with the plaintiff, as she is only a house wife and she has no connection with the dealings between the plaintiff and defendant Sh. Vipin Jain. As per usage, custom and market trend, plaintiff used to keep post dated blank cheques from defendant for security purposes. Defendant no.1 had given six undated blank cheques of Rs.45000/ to the plaintiff, which were issued by him from the account of his wife Smt. Namita Jain, who has nothing to do with the plaintiff. Defendant no.1 used to pay amount, as and when, he used to place order to the plaintiff for supplying the material and never defaulted in making payment of any order, placed to plaintiff. Defendant no.1 lastly placed order on 22.12.2006 and made payment to the plaintiff, as per order. The plaintiff had supplied defective/substandard goods to client of defendant no.1, which caused him great loss in reputation and business and when, this fact came to the knowledge of plaintiff, it did not pay any heed to request of defendant, so, defendant no.1 was left with no option, but, to stop dealings with plaintiff since 22.12.2006. Defendants no.1 asked the plaintiff to return him Suit No.160/2009 Page No.3 of 15 back, his six cheques, lying with plaintiff, as security, who assured that same will not be used and will be returned shortly. Defendant no.1 again contacted the plaintiff and asked to return the cheques, but, plaintiff postponed the matter on one pretext or other. Defendant no.1 was under
bonafide belief that plaintiff will not misuse his cheques. In the month of January, 2007, plaintiff filled one cheque, out of six cheques, by showing self and withdrawn a sum of Rs. 45000/ from the account of defendant no.1. When defendant no.1 came to know about the same, he closed his account. Plaintiff is harassing, humiliating and causing financial loss to defendant no.1 by presenting the remaining cheques, who is not liable to pay anything to the plaintiff. The plaintiff has cheated and misappropriated to defendant no.1 and also breached his trust. Plaintiff has no right to present the cheques, which were retained with him, as security. As per averments of plaintiff, there is neither any bill nor any exchange between the plaintiff and defendants, nor there is any hoondi, agreement or promissory note, executed by defendants, on the basis of which, plaintiff can file the suit U/o 37 of CPC. There is neither any written contract or any liquidated liability against defendants. The alleged bills, on the basis of which, plaintiff sought recovery of amount, are Suit No.160/2009 Page No.4 of 15 totally false, forged and fabricated. Defendants never purchased, accepted or acknowledged, the said goods through alleged bills. The forgery and fabrication on the said bills are very much clear, as same are bearing ink and style of the same Pen and same are not mentioning any G.R./Bilty Number, against supplying of the goods to the defendants by the plaintiff. Plaintiff has failed to disclose the mode of transport, by which, it sent the alleged goods and to whom, the said G.R. No. belongs. On enquiry from transport company, it came to know the alleged G.R. No. has no connection with the plaintiff company. If any material is supplied from Delhi to U.P. (Brauat), there is a legal requirement of Govt. i.e. Form No.31 alongwith TIN No. or Sales Tax No. The invoices placed on record by plaintiff do not bear Form No.31 or TIN No. or Sales Tax No. and in the absence thereof, no material can be supplied from Delhi to UP (Brauat), which proves that no such alleged material was ever supplied by the plaintiff to the defendant no.1 at any point of time and the alleged invoices and bills, are raised to extort money from defendants, which are totally false and fabricated. Defendant no.1 had never ever any running account with plaintiff nor alleged goods were ever purchased or delivered by defendant no.1 at any point of time. Suit No.160/2009 Page No.5 of 15 Defendant no.1 never ever placed any order to the plaintiff for supplying the alleged goods, so, the question of issuing or acknowledging the goods, does not arise. The alleged bills do not bear the signatures of defendants, so, their genuineness is also under doubt. Defendants never accepted alleged goods from the plaintiff with any such understanding that payment shall be made within three days from the date of receipt of goods. Cheques in question were issued by defendant no.1 from the account of defendant no.2, being security, which were misused by the plaintiff. It is not in the knowledge of defendant no.1 that plaintiff is a partnership firm, who has failed to place on record any partnership deed. The suit is barred under the provisions of 67(2) of Partnership Act. Mr. Arun Bansal has no authority to file and institute the present suit in the absence of any authority or delegation of power in his favour. The alleged goods were delivered at Bhaurut i.e. outside the jurisdiction of court and defendants reside and work for gain at Bharaut, UP, so, this court has no jurisdiction to try and decide the suit. There is a substantial defence in favour of defendants and the suit need trial and prayed for granting unconditional leave to defend.
4. On the other hand, the plaintiff has filed reply to the said application and stated that defendants are guilty of Suit No.160/2009 Page No.6 of 15 suppression of facts. Defendants have not maintained their promise to pay the money and enjoyed the goods (Footwear) without their payment. A criminal case against the defendants regarding dishonour of cheque, has also been filed, wherein Ld. MM had issued non bailable warrants against defendant no.2 for evading service. The contents of the application under consideration are denied in entirety.
Defendants have no ground to grant leave to defend, as the invoices filed with suit, are duly acted and accepted by the defendants, who had issued cheques, by accepting valid contract entered into between parties. Defendants have admitted their liability in reply dated 08.08.2007 to legal notice dated 15.07.2007, issued by plaintiff. Defendants have failed to disclose any reason for granting them unconditional leave to defend. Application is filed to try and raise a sham and moonshine defence. Replying to the application on merit, it is denied that defendants have good case in their favour, especially when they have admitted their liability towards plaintiff. Application is filed to delay the proceedings and prayed for dismissal of the application with exemplary penal costs.
5. Counter affidavit also filed on behalf of plaintiff to the affidavits of defendants, wherein it is averred that summary Suit No.160/2009 Page No.7 of 15 suit filed u/o 37 of CPC is maintainable, as defendants accepted the goods unconditionally and issued cheques in lieu of same, by admitting their liability on invoices/bills. It is denied that defendants received only summons and not application and affidavit. The defendants tried to mislead the court. The defendants have admitted in their reply to legal notice, issued by the plaintiff that they have received goods and not made the payment. Defendants also admitted in their application that they have received the goods from plaintiff. Defendant no.2 is involved in the business with defendant no. 1 and is not a house wife, as cheques are issued by defendant no.2 and she is proprietor of defendant firm. Defendant no.2 is actively working with defendant no.1. It is absurd to state that it was the practice of plaintiff to take blank cheques from defendants, as security. A bare perusal of cheques issued, show that date and signatures, are in same ink by a single person. It is denied that defendant no.2 has nothing to do with plaintiff. Defendant no.2 does not mention any reason for issuing such cheques. Defendant no.1 has not produced any document to show that payments were made by him, as and when orders were placed. Statement of defendant no.2 that defendant no.1 never defaulted in payment of any order itself is contradictory, as she admits the fact of not making Suit No.160/2009 Page No.8 of 15 the payment in question and has no concern with the business of defendant no.1. It is denied that goods supplied to the defendants were defective and/or defendant no.1 suffered great loss in business. Defendants have not placed on record any document to show that goods were defective. Defendants have never raised their voice and have never issued any notice or letter, which is usual custom in business before filing suit. It is denied that defendant no.1 asked to return six cheques at any point. The cheques were against the supply of goods and not against security. Cheques were issued from the joint account of defendants, in lieu of goods given to them. It is denied that plaintiff has committed acts of cheating, misappropriation, breach of trust etc. A criminal case is pending against the defendants in Delhi Courts and non bailable warrants were issued against them. Parties to the suit have entered into a legal contract, so, the provisions of order 37 of CPC are applicable. Defendants issued cheques against invoices. Defendants admitted that they purchased the goods till December, 2006. G.R. No. is mentioned in the middle of every bill. One side, defendants state that G. R. No. is not mentioned on bills, on the other side, they admit the same. It is denied that plaintiff ever supplied goods at Uttar Pradesh or any other state. The Suit No.160/2009 Page No.9 of 15 goods have always been supplied at Delhi. TIN Number is also mentioned at top left side of each bill/invoice. No sales tax is levied on footwear having a below price tag of Rs.300/ per pair. It is denied that no goods were supplied to defendants. It is denied that documents were fabricated to extort money from defendants. It is denied that defendant no. 1 had no account with plaintiff or never purchased goods from him. Statements of defendants are self contradictory, as one side they state that they purchased the goods from plaintiff till December, 2006, on the other side, they state that they never dealt with plaintiff. Defendants have specifically admitted in their reply dated 08.08.2007 to the legal notice of the plaintiff that they purchased goods from plaintiff till 2006. Cheques issued, clearly show signatures of defendants no.2 and not of defendant no.1. It is denied that cheques were issued, as security. Defendants admitted in para 6 of affidavit that they purchased the goods directly from plaintiff. The goods were delivered to the defendant at Delhi and were transported by them to Baraut. The invoices also show that jurisdiction in case of any dispute, shall be at Delhi. The cheques were dishonoured at Delhi. The payments were to be received at Delhi. Goods were supplied at Delhi. Thus, this court has jurisdiction to try and entertain Suit No.160/2009 Page No.10 of 15 the suit. The defendants have put forth bogus, baseless, false, frivolous and absurd allegations, which are sham and moonshine, so, they are not entitled for leave to defend.
6. I have heard the ld. counsel for the plaintiff and perused the record.
7. In both leave to defend filed on behalf of both the defendants, similar objections have been raised. It is alleged that they have got substantial defence to contest the case, suit is not maintainable in the present form; complete documents were not received, suit is based on false and fabricated documents, cheques issued, were infact issued by defendant no.2, as security.
8. It is not denied that defendant no.1 used to deal with the plaintiff and has been placing order directly to supply the material to his clients. Whereas, defendant no.2 has nothing to do with the business. The issuance of blank cheques of Rs.45000/ each has not been denied in any manner. It is also alleged that plaintiff supplied defective goods to the clients of defendant no.1, due to which, he suffered loss in reputation and business, so, defendant no.1 stopped dealing with the plaintiff since 22.12.2006 and asked him to return six blank cheques, which were not returned, but, were misused by the plaintiff.
Suit No.160/2009 Page No.11 of 15
9. It is also alleged that jurisdiction of this court is barred, as defendants are neither residing nor working for gain in Delhi. The authority of Mr. Arun Bansal to file and institute the present suit has also been challenged.
10. The suit has been filed by Sh. Arun Bansal. The plaintiff is a private limited company. Memorandum and Articles of Association have been placed on record. Certified copy of the resolution dated 08.06.2007 has also been placed on record, by which, Sh. Arun Bansal is authorized to file the present suit.
11. In the suit, the addresses of the defendants were shown of Delhi i.e. Shahdara and of Baraut, U.P. According to the record, initially summons were issued to both the defendants at the address of Delhi, wherein it was reported that they were not residing and were residing at Baraut, which shows that identity of both the defendants were known to the person i.e. Mr. K K Jain, owner of the house and he was known to the defendants. It is not pleaded anywhere that defendants never resided at the address given of Delhi or that they were not residing while dealing with plaintiff firm, so, the objection raised regarding territorial jurisdiction of the court to entertain and adjudicate the present suit, is of no consequence. Even the payments were made in cash, as Suit No.160/2009 Page No.12 of 15 reflecting in statement of account, filed by the plaintiff, which shows that cash payments were made at Delhi by the defendants and nothing has been alleged as to whether such cash payment were collected by the plaintiff from the residence of UP of defendants.
12. The statement of account has been filed by the plaintiff, according to which, the goods were sold to the defendants i.e. Jain Sales Corporation. It started from 28.06.2006 till 24.03.2007. Against sales, cash payments were made by the defendants of Rs.50000/, 49000/, 45000/, 40000/ at various occasions. So, it seems to be improbable that six blank cheques of Rs.45000/ each were given by the defendants, as security. If defendant no.2 was not involved in the business, then, there could not be any occasion for issuing the six blank cheques of Rs.45000/ each from the account of defendant no.2 by defendant no.1. In the pleading also, it is mentioned that defendants used to place orders with the plaintiff. According to the retail invoice/cash memo bills, placed on record, the goods were sent to the defendants through transport and bills have been issued in the name of defendant no.1 mentioning his name as Vipin Jain Baraut Wala, photocopies of which have also been placed on record alongwith bill books. The cheques are Suit No.160/2009 Page No.13 of 15 signed by defendant no.2, issued in the name of plaintiff firm for a sum of Rs.45000/ each, which shows that these were not blank cheques in any manner nor were given as security. The cheques are of different dates and defendants did not take any action against the plaintiff in respect of these cheques when they stopped dealing with the plaintiff from 22.12.2006 onwards. Legal demand notice was also issued on 25.07.2007 at both the addresses of the defendants and for the first time, it was replied by the defendants vide reply dated 08.08.2007 and prior to that defendants did not take any action against the plaintiff for not returning the alleged cheques, given as security, as alleged, which itself shows that cheques were not issued, as security at any time.
13. Ld. counsel for the plaintiff has relied upon the judgment M/s. Punjab Pen House V. M/s. Samrat Bicycle Ltd, AIR 1992 Delhi 1, wherein it is held that when goods supplied through bill on terms and conditions, duly agreed by the parties, it amounts to a written contract between the parties.
14. The contradictory facts have been raised by the defendants. On one hand, they are alleging that the bills / invoices are forged and fabricated and on the other hand, they are claiming that goods supplied were defective. Either there Suit No.160/2009 Page No.14 of 15 could by any situation defective goods were supplied or bills are forged and fabricated. Both cannot coexist.
15. Counter copies of the declaration of the import have also been filed, issued by Jain Sales Corporation, Baraut, which itself has been filed by the plaintiff. Defendants have not filed any document in any manner in support of their plausible defence, as raised. These counter copies could not be in possession of the plaintiff, unless issued by the defendants. According to the defendants, they have stopped dealing with the plaintiff since 22.12.2006, whereas, this declaration has been issued on 06.02.2007 itself, so, both the defendants have failed to raise any substantial defence to contest the suit. Accordingly, leave to defend of both the defendants, are dismissed, being meritless.
16. In view of the above, suit of the plaintiff for a sum of Rs.16,55,988/ is decreed in favour of plaintiff and against the defendants, jointly and severally alongwith costs. Interest is also allowed @ 18% per annum from the date of filing of the suit till the date of decree. Decree sheet be prepared accordingly. File be consigned to the record room. Announced in the open Court on: 16.05.2015 ( Virender Kumar Goyal ) Additional District Judge01 (East)/KKD/Delhi.
Suit No.160/2009 Page No.15 of 15