Delhi District Court
M/S Chunari Dupatta vs Rakesh Malik @ Tinki on 17 May, 2019
M/S CHUNARI DUPATTA V. RAKESH MALIK @ TINKI
IN THE COURT OF MS TYAGITA SINGH
SENIOR CIVIL JUDGE-CUM-RENT CONTROLLER (SOUTH),
SAKET COURTS, NEW DELHI
CS SCJ 3/17
CNR No.: DLST03-002139-2017
IN THE MATTER OF:
M/S CHUNARI DUPATTA
THROUGH ITS PROPRIETOR SH. SUDHIR KUMAR
AT 17/137, DDA FLAT,
DR. AMBEDKAR NAGAR, SEC-5,
NEW DELHI. ....PLAINTIFF
VERSUS
RAKESH MALIK @ TINKI
R/O O-47, GROUND FLOOR,
LAJPAT NAGAR-IV,
NEW DELHI-110024. ....DEFENDANT
DATE OF INSTITUTION : 08.12.2017
DATE OF RESERVING : 13.05.2019
DATE OF PRONOUNCEMENT : 17.05.2019
Advocates appearing in the case:
Sh. B.K. Dwivedi, Ld. counsel for plaintiff.
Defendant is ex-parte.
EX-PARTE JUDGMENT
1.Vide this ex-parte judgment, I shall decide the suit for CS SCJ 3/17 Page 1 of 7 M/S CHUNARI DUPATTA V. RAKESH MALIK @ TINKI recovery of Rs.39,500/-, with interest, filed by the plaintiff against the defendant.
2. Brief facts of the case necessary for disposal of the suit as mentioned in the plaint, are as follows:-
2.1 That the suit was filed under Order XXXVII of Code of Civil Procedure (hereinafter referred to as 'CPC') on the ground that plaintiff is engaged in business of supply of dupatta and other materials under the name and style of M/s Chunari Dupatta and defendant was his regular customer and used to purchase the dupattas/chunaris from plaintiff from time to time on payment by way of cash or on credit basis.
2.2 That on 21.06.2016, defendant approached plaintiff and purchased the articles from plaintiff on credit basis, for which plaintiff raised bill/cash memo No.148 dated 21.06.2016 for sum of Rs.26,035/- and further purchased dupattas on 25.06.2016 vide bill No. 156 dated 25.06.2016 for Rs.11,900/- and for the payment of the said Bill No. 156, the defendant issued a cheque bearing no.
000134 for Rs.11,000/- dated 07.10.2016 which was duly encashed on its presentation.
2.3 That thereafter on 08.08.2016, the defendant purchased dupattas from the plaintiff for a total sum of Rs.13,500/- and when CS SCJ 3/17 Page 2 of 7 M/S CHUNARI DUPATTA V. RAKESH MALIK @ TINKI the plaintiff was preparing the bill for the said purchase, the defendant told the plaintiff that the bill is not required for the said purchase and assured that he will make the total payment of Rs.39,500/- including payment towards bill No. 148 dated 21.06.2016 of Rs.26,035/-.
2.4 That the total outstanding amount against defendant is Rs.39,500/-, which was not paid by the defendant, and on request of plaintiff, defendant issued two cheques No. 969831 dated 08.08.2016 for Rs.19,500/- and cheque No. 969832 dated 19.08.2016 for Rs.20,000/-, both drawn on IndusInd Bank Ltd., Shop No.G-G G-6, G-7, Skipper House, Building No.62-63, Nehru Place, New Delhi in favour of the plaintiff, for discharge of his liability, but cheque No. 969832 dated 19.08.2016 was dishonoured with remarks ''Funds Insufficient' vide memo dated 01.12.2016 and cheque No. 969831 dated 08.08.2016 was dishonoured with remarks ''Instrument outdated' vide memo dated 01.12.2016.
2.5 That the defendant has not made payment despite issuance of legal notice dated 05.12.2016, due to which plaintiff has filed complaint under Section 138 NI Act in criminal court, which is still pending, and at present amount of Rs.39,500/- is due against the defendant towards payment of abovestated cheque amount. Plaintiff has claimed interest @ 18% per annum on the principal amount.
CS SCJ 3/17 Page 3 of 7M/S CHUNARI DUPATTA V. RAKESH MALIK @ TINKI
3. Defendant was duly served with summons under Order XXXVII CPC and he put up appearance for the first time on 25.07.2018 and settled the case with plaintiff and agreed to make payment of Rs.20,000/- to plaintiff as per his statement dated 25.07.2018, in installments of Rs.5,000/- per month. However, Sh. Sudhir Kumar, the proprietor of plaintiff stated on 22.10.2018 that the actual payment due from defendant is Rs.39,500/- with interest and he is not ready to accept the payment as per the settlement and statement of defendant dated 25.07.2018, as he will have to suffer huge loss due to said settlement.
4. Both the parties failed to arrive at final settlement and plaintiff had refused to accept the amount of Rs.20,000/- as full and final settlement, due to which the suit was proceeded further.
5. Vide order dated 20.12.2018, the suit was treated as an ordinary suit for recovery and liberty was granted to defendant for filing written statement. However, defendant failed to file any written statement in this case and stopped appearing in the case, due to which he was proceeded against ex-parte on 19.02.2019 and case was kept for ex-parte plaintiff's evidence.
6. In ex-parte plaintiff's evidence, Sh. Sudhir Kumar, Proprietor of plaintiff has tendered his evidence by way of affidavit as Ex.PW1/1 and exhibited the following documents:
CS SCJ 3/17 Page 4 of 7M/S CHUNARI DUPATTA V. RAKESH MALIK @ TINKI Sl. No. Documents Exhibits 1 Copy of bills dated 21.06.2016 and Mark PW1/A 25.06.2016 2 Original cheque no. 969831 dated Ex. PW1/B 08.08.2016 3 Certified copy of Cheque no. 969832 dated Ex. PW1/C, 19.08.2016 4 Return Memo dated 01.12.2016 of cheque Ex. PW1/D no. 69831 5 Certified copy of Return memo dated Ex. PW1/E 01.12.2016 of Cheque No. 969832 6 Copy of Legal Notice dated 05.12.2016 Mark PW1/F 7 Copy of Postal Receipt Mark PW1/G 8 Computer generated copy of Tracking Mark PW1/H, Report 9 Copy of Aadhar Card of the witness Mark PW1/I
7. Ex-parte final arguments were heard on the last date and case was fixed for ex-parte judgment for today.
BRIEF REASONS FOR DECISION AND DECISION THEREOF
8. Perusal of documents exhibited on record reveals that plaintiff has filed on record the memo of parties of complaint under Section 138 NI Act, which had been filed by him in the Court of MM, PS: Kotla Mubarakpur, alongwith copy of cheque No. 969832 dated 19.08.2016 as Ex.PW1/C and stated that he had filed complaint under Section 138 NI Act in respect of one cheque but he CS SCJ 3/17 Page 5 of 7 M/S CHUNARI DUPATTA V. RAKESH MALIK @ TINKI has not filed any complaint in respect of the second cheque. The original cheque No. 969831 dated 08.08.2016 for Rs.19,500/- drawn on IndusInd Bank, Shop No.G-5, G-6, G-7, Skipper House, Building No.62-63, Nehru Place, New Delhi has been exhibited on record as Ex.PW1/B alongwith the original return memo Ex.PW1/D. The copies of bills have been marked as Mark-PW1/A. Despite grant of sufficient opportunities, defendant failed to file any written statement and failed to explain how he was liable to make payment of Rs.20,000/- only and not liable to make payment of the entire amount as prayed in the plaint.
9. During final arguments, Ld. counsel for plaintiff had undertaken that if the suit is decreed on merits in this case, the complaint under Section 138 NI Act filed against defendant for dishonouring of cheque No. 969832 dated 19.08.2016 for sum of Rs.20,000/-, will be withdrawn by the plaintiff from the concerned criminal court. The entire evidence brought on record by the plaintiff has remained uncontroverted and unrebutted. Hence, it is clear that plaintiff has been able to prove his case on the basis of burden of proof of preponderance of probabilities. Therefore, the suit of plaintiff stands decreed for recovery of entire sum of Rs.39,500/-. However, interest at the rate of 18%, as claimed, is exorbitant. In my considered opinion, grant of interest @ 9% per annum would be adequate.
CS SCJ 3/17 Page 6 of 7M/S CHUNARI DUPATTA V. RAKESH MALIK @ TINKI RELIEF
10. In view of the aforesaid discussion, the suit of the plaintiff is decreed in favour of the plaintiff and against the defendant for a sum of Rs.39,500/- (Rupees Thirty Nine Thousand Five Hundred Only) alongwith simple interest @ 9% per annum on principal amount from the date of filing of the suit till date of decree. Plaintiff is further entitled to simple interest @ 6% per annum from date of decree till date of payment of decreetal amount. Costs of the suit are also awarded in favour of the plaintiff, to be paid by the defendant.
11. Decree sheet be prepared accordingly. File be consigned to record room.
(Announced in the open (Tyagita Singh)
Court on 17.05.2019) SCJ-cum-RC (South), Saket Courts
New Delhi
Digitally
signed by
TYAGITA
TYAGITA SINGH
SINGH Date:
2019.05.29
10:58:28
+0530
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