Delhi District Court
Mohan Dass vs Apostle Institute For Technology For ... on 27 November, 2018
In the Court of Ms. Vineeta Goyal: Additional District Judge03
(South District) Saket Court Complex, New Delhi.
CS No. : 7034/16
CNR No. DLST010002512011
In the matter of :
Mohan Dass
Sole Proprietor of
M/s Solace Inn,
Office at 60, Pocket 2
Sector11, Dwarka
New Delhi110075 ......Plaintiff
V E R S U S
1.Apostle Institute for Technology for Women Office at A12, Shivalik (opp. Aurobindo College) Malviya Nagar New Delhi110027 Also at Plot no. 28/2, Knowledge ParkIII Greater Noida201308
2. Mr. Sachin Garg Secretary, Apostle Institute for Technology for Women A12, Shivalik (opp. Aurobindo College) Malviya Nagar New Delhi110027 .......Defendants Date of institution : 23.08.2011 Reserved for Judgment : 26.11.2018 Date of decision : 27.11.2018 Presence : Sh. Samdarshi Sanjay, counsel for the plaintiff.
Sh. Bharat Ahuja, counsel for the defendants.
CS No. 7034/16 Page 1 of 13J U D G M E N T
1. The plaintiff has filed the present suit for recovery of Rs.15,14,371/ alongwith interest against the defendants.
2. Brief facts as averred in the plaint are that plaintiff is sole proprietor of M/s Solace Inn and is engaged in the business of hostel services viz. boarding, lodging and transportation services. The defendant no. 1 through its Secretary Mr. Sachin Garg, being desirous of availing the hostel services, approached the plaintiff and thereafter MOU dated 20.06.2009 was entered into between the plaintiff and the defendant no. 1, through defendant no. 2. MOU was for an initial period of one year i.e. 20092010 further extendable subject to reconsideration of the terms and conditions. After deliberations the initial period was extended upto year 20102011 with enhancement in the services rendered by the plaintiff from Rs.47,000/ per student/ per annum to Rs.54,000/ per student/ per annum. The plaintiff had signed and executed MOU but the defendant no. 2 did not handover the original copy of MOU, signed by both the parties and inspite of several requests, reminders and follow ups, till date defendant no. 2 failed to provide the signed copy of MOU to the plaintiff on one pretext or other.
2.2. It is further averred that in terms of clause 3 of MOU, it was specifically agreed by the defendants that the plaintiff shall charge an amount of Rs.47,000/ per student/per annum for the services being availed by the students who were enrolled at the defendant no. 1 institute and it was obligation and responsibility of the defendants to pay the charges at the agreed rate for the students availing the facilities at the hostel of the plaintiff.
CS No. 7034/16 Page 2 of 132.3. It is further averred that as per clause 4 of the MOU, the payment of Rs.47,000/ per student/ per annum was to be paid to the plaintiff at the time of allotment of the room or in the event the defendants opted for payment in installments, the same was to be paid as per clause 5 of MOU. The payment was to be made by the defendants by way of cheque/ demand draft in the name of M/s Solace Inn, proprietorship concern payable at New Delhi.
2.4. It is further averred that subsequent to MOU being signed and executed between the plaintiff and the defendants, the defendants in order to inform its students who were then using the hostel facilities at Hall of residence (Meenakshi Apartment) issued a circular, which was notified on 21.07.2009 on the notice board of defendant no. 1 institute asked the students to shift to the hostel of the plaintiff. The defendants also informed its students vide the above circular that all payments for the hostel facilities being provided for by the plaintiff shall be made in defendant's account and no payments shall be made directly to any other hostel owner/ society in this regard. From 21.07.2009, all the students of the defendant no. 1 were directed to shift to the hostel of the plaintiff and effect to the terms and conditions of MOU was given by both the parties thereto.
2.5. It is further averred that for the academic year 20092010, a total number of 45 students of defendant no. 1 were admitted in the hostel of the plaintiff and as per agreed payment terms, a sum of Rs.21,15,000/ was payable to the plaintiff. The said amount was not paid to the plaintiff on its due date but after several reminders and followups part payment of Rs.16 Laks was made and that also in installments. For the academic year 20092010, the amount still due CS No. 7034/16 Page 3 of 13 and payable is Rs.5,15,000/ which was payable on 15.04.2010. It is further averred that defendants have never been regular in payment to the plaintiff as per the agreed terms. It is further averred that even though the defendants had not cleared the entire outstanding payments for the academic session 20092010 of the plaintiff, the plaintiff on assurance made by Mr. R.K. Raghuvanshi, Director of the defendant no. 1, agreed to extend the hostel facilities to the students of defendant for another academic session 20102011 and it was agreed that charges per student/per annum for new academic session shall be Rs.54,000/. It is further averred that in academic session 20102011 total 33 students were admitted in the hostel of the plaintiff. However, despite giving the best services to the students, the defendant no. 1 did not release the outstanding amount for the academic session 2009 2011. Therefore, the defendant was constrained to send demand notice dated 17.08.2010.
2.6. It is further averred that as per the revised fee for the year 20102011, the bill for 1 st installment of Rs.8,91,000/ i.e. 50% of total bill was raised on 31.08.2011, but no payment was released despite several requests to the defendant no. 1. After several reminders, the defendants informed that they have collected a sum of Rs.8,26,100/ from the students who are admitted in the hostel of the plaintiff and that the balance amount be directly recovered from the students. The defendants assured that they will pay the amount of Rs.8,26,100/, however, the same has not been paid till date. It is averred that the entire outstanding amount for the year 20092010 and 20102011 comes to Rs.15,06,000/. It is further averred that defendants are also liable to pay interest @12% per annum on such outstanding amount. The plaintiff sent legal notice dated 01.04.2011, CS No. 7034/16 Page 4 of 13 however, till date the plaintiff has neither received any communication nor payment from the defendants, hence this suit.
3. Upon service, the defendants entered their appearance and filed joint written statement inter alia raising objection that present suit is not maintainable; this court has no jurisdiction; the suit is bad for non joinder of necessary parties; no proper courtfees had been paid; the plaintiff has approached this court with unclean hands and the suit is without any cause of action. On merits, the averments of the plaint were denied. The defendants submitted that the sole basis on which the plaintiff has filed the present suit is false and fabricated agreement dated 20.06.2009. Forgery is writ large which has been committed by the plaintiff i.e. the alleged MOU is dated 20.06.2009 on a stamp paper issued on 12.10.2009 which is not possible. It is further stated that there was neither MOU nor any understanding as alleged or at all between the plaintiff and the defendants. It was only an understanding whereunder if a student studying in their college and pays any amount to the defendant no. 1 for availing the hostel facilities from the plaintiff, the same would be paid to the plaintiff. However, infact students recommended by the institute who availed the services of the plaintiff, the plaintiff had charged the payment directly. The payment received by the institute from the students has already been paid. None of the students who have paid for the services of the hostel have been withheld by defendant institute. It is also submitted that the students were not happy and satisfied by the services of the plaintiff and even the building was not approved for the facilities to be provided by the plaintiff as it was unauthorized and illegal building in which no commercial activities was permissible in law. It is further submitted that even the MOU as placed on record by the plaintiff does not bear CS No. 7034/16 Page 5 of 13 any signatures on behalf of defendant institute. No such terms and conditions were ever agreed between the plaintiff and the defendants and/or could be binding upon the defendants. It is further submitted that the alleged circular is forged document and never circulated. It is further submitted that entire payment which have been received from the students were duly forwarded to the plaintiff and it was for the plaintiff to satisfy about the facility being provided to the hostellers and charge them directly. The plaintiff has been dealing with the students directly without the consent and the knowledge of the defendants. Even as per documents relied upon by the plaintiff vide letter dated 26.10.2010, it has been instructed to the plaintiff to collect the amount from the students for the current session of 20102011 directly. The plaintiff was to supply the information about the payment directly collected from the students but he has failed to supply any such information to the defendants. The defendants have stated that they are not liable to make any payment as alleged by the plaintiff and prayed that the suit filed by the plaintiff deserves dismissal.
4. From the pleadings of the parties, the following issues were framed on 20.11.2013 by the then Ld. Presiding Officer:
1. Whether the plaintiff is entitled for recovery of Rs.15,14,371/ from the defendants?OPP
2. Whether the plaintiff is entitled for interest, If yes, at what rate?OPP
3. relief.
CS No. 7034/16 Page 6 of 135. Both the parties led their respective evidence. I have heard arguments advanced by Ld. Counsels for the parties and gone through material on record.
Issues no. 1 and 2
6. Both these issues are taken up together being interconnected for the purposes of adjudication. The onus to prove these issues were upon the plaintiff.
6.1. The relationship between the parties as culled out in the plaint are that the plaintiff was providing hostel services to the students of the defendant no. 1. It is contended by the plaintiff that an MOU dated 20.06.2009 was entered between the plaintiff and defendants Mark 'A'. This MOU was not signed by any person on behalf of the defendants and the explanation given by the plaintiff that the original of this MOU was given to defendant no. 2 for signatures but the same was never returned on one or the other pretext. It is relevant that in the course of proceedings, plaintiff moved an application under Order XI Rule 14 CPC seeking directions to the defendants to produce the MOU beside another document i.e. circular dated 21.07.2009. However, the defendants denied having ever executed MOU and circular dated 21.07.2009, therefore, vide order dated 12.05.2016, the application was disposed off with observation that plaintiff is at liberty to prove the document in accordance with law.
6.2. In the written statement, the defendant vehemently denied any MOU having been executed particularly raising an CS No. 7034/16 Page 7 of 13 objection that the stamp paper of the MOU is dated 12.10.2009, therefore, this cannot be executed on 20.06.2009 as is claimed by the plaintiff. The defendant no. 2 appearing as DW1 on 29.08.2018 stood by this nonexecution of MOU in crossexamination. The plaintiff Mohan Dass appearing as PW1 in crossexamination on 16.12.2016 could not bring anything further in this regard. Similarly, PW2 Sh. Vinod Gupta in crossexamination on 16.08.2017 and 25.10.2017 could not establish execution of MOU by the defendant and hence this document cannot be relied upon.
6.3. The plaintiff has also placed heavy reliance upon a circular dated 21.07.2009 Mark 'B' alleging to have been issued by defendant no. 1 to its students informing that arrangement with erstwhile service provider of hostel accommodation namely Hall of Residence/ Meenakshi Apartment has been substituted with the services of the plaintiff Swaran Apartment/ Solace Inn. The students were directed to deposit hostel fee with the institute. The defendant has denied the circular and in the evidence of the plaintiff, PW1 and PW2 could not substantiate this circular regarding as to how the circular meant for internal circulation has reached the plaintiff, therefore, cannot be relied.
6.4. In the aforesaid circumstance, the business relationship between the parties has to be gathered from surrounding circumstances and other documents. The plaintiff has relied upon number of documents such as list of students enrolled with defendant and availing hostel facilities and other services of the plaintiff concern Ex. PW1/3, communication dated 15.04.2010 Ex. PW1/4, statement of accounts Ex. PW1/5, communication dated 15.04.2010 issued on behalf CS No. 7034/16 Page 8 of 13 of concern alongwith brief statement of payables which was duly received and acknowledged by the defendant on 16.04.2010 Ex. PW1/6 and PW1/7, communication dated 18.05.2010 Ex. PW1/8, communication dated 17.08.2010 Ex. PW1/10, communication dated 26.10.2010 Ex. PW1/12, photocopies of cheques issued to the plaintiffs Ex. PW1/16A to PW1/16C, statement of accounts Ex. PW1/15, legal notice and postal receipts Ex. PW1/17 and PW1/18 respectively, which were substantiated with oral deposition by PW1. PW2 appearing as witness too produced certified copy of bank account statement of the plaintiff for the period 20092010 and 20102011 as Ex. PW2/1 and Ex. PW2/2 respectively. The witnesses were subjected to lengthy cross examination in respect of these documents and statement of accounts but nothing could be elicited to discredit veracity of these documents. However, it would be relevant to refer to the crossexamination of DW1 Sh. Sachin Garg conducted on 29.08.2018 wherein he has admitted that during the financial year 200910, the defendant no. 1 has paid Rs.16 Lacs to the plaintiff on account of hostel fees collected from the students by the defendant no. 1. The witness has in this regard stated as under : " Q: Whether subsequent to Ex. PW1/2 you have paid Rs.15 Lakhs in the financial year in the year 20092010?
Ans. Yes. (VOL: Students used to pay hostel fee to the institute which was in turn used ot be paid to the plaintiff, said amount was paid on aforesaid account.) I do not remember the specific amount paid by each student towards hostel facility since it's an old matter. I cannot give any account statement in this regard as the institute has been closed long time back, however I am not exactly sure when it was closed.
I admit issuance of Ex. PW16/A and the endorsement made CS No. 7034/16 Page 9 of 13 there upon. It is correct that during the financial year 20092010 defendant no. 1 received whatever amount was deposited by students with defendant no. 1 towards hostel charges.
Q: On what basis, did you pay Rs.15 Lakhs to the plaintiff in the year 20092010?
Ans. We used to pay the amount to the plaintiff as per directions of students/their parents.
I cannot specify the number of students for whom I have paid Rs.15 Lakhs. I cannot, as of now, give financial statement in this regard. It is wrong to suggest that I am deliberately not giving the financial statement as it would go against me. I do not remember whether the arrangement mentioned in para 4 of reply on merits of my written statement continued till the end of academic session 20102011. It is incorrect to suggest that I am stating falsely in this regard.
Q: It is correct that vide letter dated 26.10.2010 Mark Ex. PW1/12, you had asked the plaintiff to collect the hostel charges directly from the students for the session 20102011?
Ans. It is correct.
Attention of the witness is drawn to copy of cheque/draft bearing no. 005820 and it has been asked from him whether the cheque/draft was issued by defendant no.1 in favour of the plaintiff. Witness answer the question in positive. For the sake of identification copy of said cheque/draft is marked as Ex. DW1/PX1. "
6.5. It transpires from the above that during the year 200910 the arrangement between the parties was that the defendant no. 1 would collect hostel fees from the students, the plaintiff would provide services to the students and subsequently the defendants would make CS No. 7034/16 Page 10 of 13 the payment to the plaintiff. In this financial year, the plaintiff claims that 45 students availed the services @Rs.47,000/, the amount payable was Rs.21,15,000/ out of which the defendants paid Rs.16 Lacs in the form of cheques and drafts as Rs.5,00,000/ on 01.11.2009, Rs.5,00,000/ on 25.11.2009, Rs.5,00,000/ on 11.02.2010 and Rs.1,00,000/ on 13.05.2010 which is evident from PW1/16A, Ex. PW1/16B, Ex. PW1/16C and Ex. PW1/PX1. These payments were duly credited to the account submitted as Ex. PW1/14 and Ex. PW1/15. After giving credit of these Rs.16 Lacs, the outstanding payment for the academic year 200910 worked out to be Rs.5,15,000/ which has been claimed in the suit alongwith interest for this year. In the next academic year 2010 11, the plaintiff claimed that 33 students availed hostel services @Rs.54,000/ per student which amounted to Rs.17,82,000/. However, in his arguments, the defendant after collecting initial installment from the students issued letter to the plaintiff on 26.10.2010 Ex. PW1/12 asking the plaintiff to collect rest of the amount directly from the students as discussed with the Chairman. This letter was put to DW1 in crossexamination and the following was stated : "Q: What do you mean by the expression "rest of the amount" as specified in Ex. PW1/12?
Ans. Whatever amount the students had deposited towards the hostel charges with us was paid to the plaintiff. Rest of the amount was to be realized by the plaintiff directly from the students.
It is correct that I have not specified the amount deposited by the students or paid to the plaintiff towards hostel charges for 2010 2011, in my pleadings. (VOL: The arrangement was between plaintiff and the students. We used to pay the plaintiff according to the directions of students/their parents). It is correct that I have not filed any document in this regard. I cannot say whether I have paid only Rs.1 CS No. 7034/16 Page 11 of 13 Lakh to the plaintiff towards financial year 20102011 (VOL: It's an old matter). It is wrong to suggest that the plaintiff was providing hostel services to defendant. (VOL: the arrangement was between plaintiff and the students and we had paid money only on behalf of the students) Q: On what basis you were making payments to the plaintiff? Ans. Students used to pay hostel fee to the institute which was in turn used to be paid to the plaintiff. Said amount was paid on aforesaid account.
I do not have any record to show that the students were not satisfied with the facility provided by the plaintiff. Defendants did not make any complaint to any authority to the effect that hostel of the plaintiff was housed in an unauthorized building. It is wrong to suggest that the allegations made by me in this regard are false. It is wrong to suggest that I am deposing falsely."
6.6. It is claimed by the plaintiff that out of the total amount of Rs.17,82,000/ he has received amount from the students directly but defendant no. 1 has not paid Rs.8,26,100/ as collected by it. The plaintiff also relied upon the bill of first installment dated 31.08.2010 Ex. PW1/11 issued by defendant no. 1. A complete scanning of documents adduced by the plaintiff, the relationship between the parties cannot be denied. The defendants have not produced even a single copy of account and the basis of calculation if any contrary to the calculation of the outstanding submitted by the plaintiff. In totality, for two years the plaintiff claimed outstanding of Rs.5,15,100/ for the year 200910 and Rs.8,26,100/ for the year 201011 alongwith interest @12% per annum. This claim is resting upon number of other documents such as list of the students having availed hostel services given in Ex. PW1/3 and Ex. PW1/9 for both the years. The plaintiff has also rested his claim on other correspondences made during the CS No. 7034/16 Page 12 of 13 aforesaid period with the defendants. The defendants have not come forward to produce its own version of the account rather in the cross examination, DW1 has expressed his inability to provide any financial statement of account even in regard of amount already paid to the plaintiff, hence, in these circumstances, the version of the plaintiff based on statement of accounts cannot be disbelieved. The plaintiff is entitled to Rs.5,15,000/ for the year 200910 and Rs.8,26,100/ for the year 201011 amounting to total of Rs.13,41,100/. The claim of the plaintiff about 12% of interest per annum is not supported from the documents on record and agreement between the parties. The plaintiff is not awarded an interest upto the date of filing of suit, however, interest @6% per annum is awarded on the above mentioned amount from the date of filing of suit till its realization. Issue no(s) 1 and 2 are accordingly decided in favour of the plaintiff and against the defendants.
Relief
7. In view of above discussion in issue no(s) 1 and 2, the suit of the plaintiff is decreed. The plaintiff is entitled to recover a sum of Rs.13,41,100/ from the defendants alongwith interest @6% from the date of filing of suit till its realization. Cost of the suit is also awarded in favour of the plaintiff. Decree sheet be prepared accordingly.
File be consigned to record room.
Digitally signed by VINEETA VINEETA GOYAL
Pronounced in the Open Court GOYAL Date:
2018.11.29
on 27.11.2018 15:23:47 +0530
(Vineeta Goyal)
Additional District Judge
South District: Saket: New Delhi
CS No. 7034/16 Page 13 of 13