Delhi District Court
Rajinder Kumar vs Prakash on 17 February, 2024
IN THE COURT OF SH. NARESH KUMAR MALHOTRA :
DISTRICT JUDGE (COMMERCIAL)-06
TIS HAZARI COURTS, WEST: DELHI
CS (COMM) Old No. 50/2019 & New No. 203/2020
CNR No. DLWT010098082019
17.02.2024
Mr. Rajinder Kumar,
S/o Late Sh. Resham Lal,
R/o C-1E, First Floor,
Mansarover Garden,
New Delhi-110015
Through Attorney
Mr. Rishabh Kumar,
S/o Mr. Rajinder Kumar,
R/o C-1E, First Floor,
Mansarover Garden,
New Delhi-110015.
.....Plaintiff
Vs.
Mr. Prakash,
S/o Late Sh. Resham lal,
R/o C-1E, Second Floor,
Mansarover Garden,
New Delhi-110015.
....Defendant
Date of Filing : 09.12.2019
Date of arguments : 17.02.2024
Date of judgment : 17.02.2024
SUIT FOR RECOVERY OF Rs. 20,00,000/- & INJUNCTION
ALONGWITH PENDENTE-LITE INTEREST AND
DAMAGES.
JUDGMENT:
1. Vide this judgment, I am deciding the suit for recovery of Rs. 20,00,000/- & injunction alongwith pendentelite interest and damages filed by the plaintiff against the defendant.
CS (Comm.) Old No. 50/19 & New No. 203/2020 -1-2. The essential facts for disposal of present suit as per plaint are as that the plaintiff is having serious medical conditions and suffering from diabetes, depression and heart problem. The present suit is filed through his son Sh. Rishabh Kumar on the basis of Special Power of Attorney and is competent and authorized to act on behalf of plaintiff. It is mentioned that the plaintiff and defendant are real brothers. They used to carry out business together vide a partnership firm operating under the name and brand of M/s. Resham Decor and with the passage of time, differences arose between the parties due to dishonest and illicit acts and intentions of the defendant. It is mentioned that both the parties decided to part their ways completely qua the businesses and it was mutually agreed between the parties that:-
(a) The plaintiff shall release/ transfer his share in the property bearing no. A-194, First Floor, W.H.S. Timber Market, Kirti Nagar, New Delhi-110015.;
(b) The defendant shall release/ transfer his share in the property bearing no. C1-E, First Floor, Mansarover Garden, New Delhi- 110015;
(c) The plaintiff shall release all of its shares/ rights in the partnership firm running under the name and brand of 'M/s.
Resham Decor" and the said partnership firm "M/s. Resham Decor" shall be converted into a partnership firm and the defendant shall be the sole proprietor of the same.
(d) That the books of accounts of the said partnership firm shall be completely closed down and the plaintiff shall not be entitled to use and/ or carry out any business with/by using the name "M/s. Resham Decor" and further the plaintiff shall have no CS (Comm.) Old No. 50/19 & New No. 203/2020 -2- rights/interest whatsoever with the said partnership firm being converted into a proprietorship firm.
(e) That the defendant shall be liable to pay a difference amount of Rs. 35,00,000/- to the plaintiff against the release/ transfer of plaintiff's share in the property bearing no. A-194, First Floor, W.H.S. Timber Market, Kirti Nagar, New Delhi-110015 to defendant and against the release/ transfer of all rights/ interests of the plaintiff in the partnership firm operating under the name and branch of M/s. Resham Decor.
It is mentioned that it was mutually agreed between the parties that the said transfer of properties and business between the parties alongwith the payment of amount of Rs. 35,00,000/- shall be concluded by or before August, 2016. In accordance with the mutually decided terms and conditions between the parties, a Memorandum of Understanding was executed between the parties dated 08.04.2016 (hereinafter to be referred to as the "MOU"). It is mentioned that subsequent to the execution of the said MOU, it was discovered by the parties that the intention of the parties could not be expressly communicated in the said MOU and there was grammatical mistakes in the said MOU. It is mentioned that in around July, 2016, the defendant requested additional time period from the plaintiff to pay the amount of Rs. 35,00,000/- as defendant has been able to arrange an amount of Rs. 15,00,000/- only. On the request of the defendant, plaintiff agreed to grant an additional time period to the defendant for making the complete payment. The parties had decided to get the transfer of properties done before August, 2016 as the defendant had to pay an amount of Rs. 5,00,000/- to the plaintiff qua the said transfer/ release of its rights in the property bearing no. A-
CS (Comm.) Old No. 50/19 & New No. 203/2020 -3-194, First Floor, W.H.S. Timber Market, Kirti Nagar, New Delhi-110015. The parties decided to get the properties transferred in July, 2016 itself, and for the purpose of dissolution of the said partnership firm and payment of the due qua the settlement of partnership firm/s account, separate agreements were executed between the parties. It is mentioned that on 18.07.2016, the relevant stamp papers were purchased by the parties and subsequently the properties between the parties were transferred/ exchanged/ released on 29.07.2016. It is mentioned that against the said transfer of plaintiff's share in property bearing no. A-194, First Floor, W.H.S. Timber Market, Kirti Nagar, New Delhi-110015, an amount of Rs. 5,00,000/- was paid to plaintiff by the defendant vide cheque bearing no. 086509 dated 25.07.2016 for an amount of Rs. 1,00,000/-, cheque bearing no. 086510 dated 28.07.2016 for an amount of Rs. 1,00,000/-, cheque bearing no. 086511 dated 02.08.2016 for an amount of Rs. 1,00,000/-, cheque bearing no. 086512 dated 05.08.2016 for an amount of Rs. 1,00,000/- and cheque bearing no. 086513 dated 10.08.2016 for an amount of Rs. 1,00,000/-. It is mentioned that in addition to the transfer of properties between the parties and the payment of Rs. 5,00,000/- to the plaintiff by the defendant, an additional amount of Rs. 10,00,000/- was paid to the plaintiff by the defendant in cash as part payment towards the payment of Rs. 30,00,000/- against the settlement qua the partnership firm. It is further mentioned that subsequent to the payment of the said amount of Rs. 10,00,000/-, the defendant was under an obligation to pay an additional amount of Rs. 20,00,000/- to the plaintiff towards the settlement of books of account of the partnership firm and on the request of the CS (Comm.) Old No. 50/19 & New No. 203/2020 -4- defendant an additional time period of two months was granted to the defendant to make the payment. It is mentioned that as per agreement dated 25.07.2016 (hereinafter to be referred to as the "Agreement") the balance amount of Rs. 20,00,000/- was to be paid to the plaintiff by the defendant on or before 30.09.2016 and plaintiff had given an additional time period of 2 months to the defendant for making the payment of balance amount of Rs. 20,00,000/-. It is mentioned that in continuation of the new terms and conditions decided between the parties qua the conversion of M/s. Resham Decor as a sole proprietorship firm being operated by the defendant; a separate Dissolution Deed dated 28.07.2016 (hereinafter to be referred to as the "Dissolution Deed") was also executed between the parties in furtherance of the said agreement qua the purpose of plaintiff's retirement from the partnership firm operating under the name and brand of M/s. Resham Decor. As per the terms and conditions, the said agreement and the dissolution deed specifically laid down the following:-
(a) That the plaintiff shall have no concern with the defendant's property and business and the plaintiff has retired from the partnership firm starting from 28.07.2016.
(b)That M/s. Resham Decor shall now be a sole proprietorship;
(c) That the defendant shall continue to carry out M/s. Resham Decor as a sole proprietor;
(d) That the books of accounts have been closed and the amount of Rs. 20,00,000/- being payable to the retiring partner/ plaintiff shall be paid to the plaintiff by or before 30.09.2016.
As per the plaintiff, defendant had not made the payment of Rs. 20,00,000/- till September, 2016 despite numerous CS (Comm.) Old No. 50/19 & New No. 203/2020 -5- requests by the plaintiff. It is mentioned that the defendant before the expiry of the said agreement between the parties, requested the plaintiff for an additional time of 15-20 days in making the payment to which the plaintiff agreed and subsequently, in October, 2016, the defendant had issued a cheque bearing no. 002844 dated 03.01.2017 for a sum of Rs. 20,00,000/- in favour of plaintiff in discharge of liability. The said cheque was presented by the plaintiff with its banker and same was dishonoured for the reasons "Account Dormant" vide bank return memo dated 18.01.2017. Subsequent to the dishonor of the cheque, the plaintiff requested the defendant numerous times but no payment was made by the defendant. As per the plaintiff, the defendant was always putting on the matter on one pretext or the other and sought more time to make the payment and started ignoring the requests of the plaintiff. The plaintiff has filed complaint u/s 138 of NI Act against the defendant. It is prayed that a decree of Rs. 20 lacs be passed in favour of the plaintiff and against the defendant. The plaintiff has also claimed interest @ 12% per annum pendent-lite and future from 03.01.2017 till realization. Plaintiff has also prayed for a decree of perpetual injunction restraining the defendant from using the signed documents and cheques of the plaintiff in any manner. Plaintiff has also claimed Rs. 50,000/- as damages on the account of mental harassment and prospective loss and Rs. 50,000/- as litigation expenses.
3. The defendant has filed written statement mentioning that the suit of the plaintiff is not maintainable as plaintiff has no locus standi to file the present suit. The plaintiff has intentionally CS (Comm.) Old No. 50/19 & New No. 203/2020 -6- and deliberately misused the blank signed cheque of the defendant and committed perjury, forgery and fraud. It is mentioned that the plaintiff and the defendant are real brothers and were doing joint business in the name and style of M/s. Resham Decor. Both the brothers were in possession of blank signed cheques of each other under good faith. However, the business was under losses and as such both the brothers decided to close down the said business at Shop No. 3 in A-198, WHS, Timber Market, Kirti Nagar, New Delhi-110015. There is no amount due or payable amongst the parties in respect of the aforesaid business of M/s. Resham Decor. As per the defendant, the present suit is not maintainable as there is no cause of action in filing the present suit. It is mentioned that the aforesaid partnership was never dissolved among the partners and the same is still lying defunct and there is no business activities of the said firm since 2015. There is no commercial dispute as defined under the Commercial Act 2015. The suit is liable to be dismissed and rejected under Order 7 Rule 11 CPC r/w Section 2 (c) of the Commercial Court Act, 2015. As per the defendant, the plaintiff has released his one half share in the property No. A-194, First Floor, WHS, Timber Market, New Delhi measuring 200 sq. yards in favour of the defendant and the defendant transferred his share in the property No. C-1-E, First Floor, Mansarovar Garden, New Delhi in favour of the plaintiff. The defendant had further paid a sum of Rs. 35,00,000/- to plaintiff i.e. the difference of the value of the property surrendered by both the parties in favour of each other. As per the defendant, the family settlement was duly acted upon and both the parties executed registered sale deeds/ transfer documents and relinquished their respective shares in CS (Comm.) Old No. 50/19 & New No. 203/2020 -7- favour of each other. The partition among the plaintiff and defendant was duly complied by both the parties and at present both the parties are enjoying their respective shares as independent and exclusive owners of the respective property. There is no dispute between the parties nor there is any amount payable or due by the defendant to the plaintiff. The suit of the plaintiff is not maintainable as same is filed by the attorney of the plaintiff. The attorney of the plaintiff is neither authorized nor competent to file the present suit. The plaintiff is very much aware that the cheque in question has been forged, fabricated and misused by him. The plaintiff is not suffering from any medical ailment. The suit of the plaintiff is not maintainable as the plaintiff has filed a complaint u/s 138 of NI Act and same is pending for adjudication before the Ld. MM, Tis Hazari Courts, Delhi. The plaintiff appeared as a witness in pre-summoning but thereafter, he did not appear for cross examination. The plaintiff in the said criminal case is also being represented by his attorney. The suit of the plaintiff is not maintainable as the plaintiff has duly received the entire payment of Rs. 35,00,000/- from the defendant as per the mutual family settlement. Now, the son of the plaintiff has become dishonest and manipulating the blank signed cheque of the defendant. The defendant has neither filled the cheque nor it bears the hand writing of the defendant. The defendant has not issued the said cheque in favour of the plaintiff and there is no amount payable and any due outstanding against the defendant. As per the defendant, the family settlement was duly acted upon by both the parties. The suit is not maintainable as same is barred by limitation. The plaintiff has filed the present suit on the basis of Family settlement dated CS (Comm.) Old No. 50/19 & New No. 203/2020 -8- 08.04.2016, 25.07.2016 & 28.07.2016 whereas the present suit has been filed in December, 2019 i.e. beyond the period of three years. The suit of the plaintiff is not maintainable as no dissolution of partnership was signed or executed between the plaintiff and the defendant. The alleged dissolution of partnership 28.07.2016 is forged and fabricated. The partnership firm M/s. Resham Decor was never dissolved and lying defunct. In reply on merits, it is mentioned that suit by the attorney is not maintainable as plaintiff is hale and in sound state of mind. The MOU dated 08.04.2016 was recorded and agreed between the parties and was duly acted upon between the parties. It is mentioned that the terms of the said agreement are duly mentioned in the document annexed with the plaint by the plaintiff. As per MOU dated 08.04.2016 it was agreed that both the parties are running their business under the name and style of M/s. Resham Decor, Shop No. 3, A-198, WHS, Timber Market, Kirti Nagar, New Delhi-110015 in partnership and now both the parties have decided to close down the said business from the said premises and both the parties have no concern with the said business/ shop. As per the defendant, it is crystal clear from the above submission that the settlement arrived between the parties was merely with regard to closure of partnership business amongst the brothers. Since, the partnership business was under
losses and there was no income or profit from the said partnership business of M/s. Resham Decor. It is denied that there was any typographical mistake in the MOU. As per MOU dated 08.04.2016 & 25.07.2016, the defendant has paid agreed amount of Rs. 35 lacs to the plaintiff. However, after the payment of Rs. 35 lacs, the plaintiff did not transfer or surrender CS (Comm.) Old No. 50/19 & New No. 203/2020 -9- his share in the partnership firm. It is denied that any outstanding amount is payable by the defendant to the plaintiff. The defendant has paid the entire amount of settlement to the plaintiff by cash as well as by cheque and as such there is nothing payable by the defendant to the plaintiff. The plaintiff has received the total settlement amount as such both the brothers i.e. plaintiff and the defendant have executed the titled documents in favour of each other and has released their shares in their respected properties in favour of each other as per the settlement dated 08.04.2016. As per the defendant, the alleged dissolution deed dated 28.07.2016 is forged and fabricated and was never executed or signed by the plaintiff and defendant. No rendition of account is being finalized among the partners and as such there is no question of settlement of dues between the partners. The plaintiff has malafidely mentioned the clause-"d" in this para which itself specify the lie of the plaintiff as in the document dated 28.07.2016 there is no mention of Clause "d" i.e. "that the books of accounts have been closed and the amount of Rs. 20,00,000/- being payable to the retiring partner/ plaintiff shall be paid to the plaintiff by or before 30.09.2016". Thus, it is proved that the plaintiff has concealed the true and material facts The plaintiff has deliberately and intentionally reframed himself to appear and contest the present suit as the plaintiff has strong apprehension that he may be prosecuted for perjury. Dismissal of suit is prayed by the defendant.
4. The plaintiff has filed replication and controverted the allegations made in the written statement and further reaffirmed the averments made in the plaint.CS (Comm.) Old No. 50/19 & New No. 203/2020 -10-
5. On the basis of pleadings of the parties, following issues were framed by my Ld. Predecessor on 07.06.2022, which are as under:-
1) Whether plaintiff is entitled for recovery of Rs. 20,00,000/- from the defendant as alleged ? OPP.
2) Whether plaintiff is entitled for injunction against defendant from using signed cheques and documents as alleged ? OPP
3) Whether plaintiff has no locus standi to file the present suit ? OPD
4) Whether there is no cause of action in favour of plaintiff ? OPD
5) Whether the suit is not filed through proper authorised representative ? OPD
6) Whether suit is time barred ? OPD
7) Whether suit is not maintainable as no dissolution of the partnership is signed between the plaintiff and defendant ? OPD
8) Relief.
6. In evidence attorney of the plaintiff Sh. Rishabh Kumar S/o Sh. Rajinder Kumar appeared as PW-1. This witness has filed affidavit on the lines of plaint. This witness has proved documents Ex. PW-1/1 to Ex. PW-1/4, Ex. PW-1/6 to Ex. PW- 1/8, document Mark-B and SPA dated 06.01.2018 as Mark-A. This witness is duly cross examined by Ld. Counsel for defendant. During cross examination, this witness has admitted that the present suit has been filed by him only and not by his CS (Comm.) Old No. 50/19 & New No. 203/2020 -11- father. He has also admitted that the documents filed by him in the present suit do not bear his signatures. He has admitted that his father had filed a case under Section 138 NI Act which is pending before the Ld. MM and the same complaint was signed by his father and later he started representing the matter as SPA. This witness has admitted that Ex. PW-1/D-1 is the photocopy of the complaint u/s 138 NI Act filed by his father and Ex. PW-1/D- 2 is the evidence by way of affidavit of his father in the said complaint case. He has admitted that Ex. PW-1/D-3 is the cheque and the legal notice dated 31.01.2017 filed alongwith the complaint case. He has also admitted that copy of the certified copy Ex. PW-1/D-4 is his cross examination recorded in the said complaint case. This witness has admitted that the cheque in question is the same cheque which is the subject matter of the complaint u/s 138 NI Act case. He has admitted that in the said complaint nothing has been mentioned regarding dissolution of partnership or any business transaction. He has admitted that Mark-B i.e. Dissolution Deed dated 28.07.2016 was not filed in the complaint case by his father. This witness had admitted that there was a family settlement between his father and defendant in respect of movable and immovable properties between them. This witness has also admitted that the family settlement was duly acted upon and the properties mentioned in the family settlement were duly transferred amongst the brothers. He has categorically stated that he is not signatory to Ex. PW-1/3 and Ex. PW-1/4. He has also admitted that the cheque in question is not mentioned in Ex. PW-1/3 and Ex. PW-1/4. He has admitted that his father and defendant had gone to Registrar for mutation of the property in their respective names in compliance with the CS (Comm.) Old No. 50/19 & New No. 203/2020 -12- family settlement. He has denied the suggestion that the entire payment as per family settlement was paid to his father. He has also denied the suggestion that before the Registrar both the plaintiff and defendant had admitted that all the conditions regarding Ex. PW-1/3 and Ex. PW-1/4 had been fulfilled and payment has been received. This witness has admitted that he was not involved in the affairs of the partnership firm of his father and defendant. He has also admitted that in the compromise deed, there is no mention of the cheque in question. This witness has admitted that five cheques of Rs. 1 lakh each had been given by the defendant to his father as per compromise deed were credited in the account of his father. This witness for the first time has stated that his father is suffering from bipolar disorder. This witness has further stated that he is not aware if the particulars of the cheque are filled by the defendant or not.
7. On the other hand, defendant has examined himself as DW-1. This witness has filed affidavit on the lines of the written statement. This witness has proved copy of complaint u/s 138 NI Act CC No. 1456/17 as Ex. DW-1/1 (already exhibited as PW1/D1 in the cross examination of PW1), certified copy of evidence and cross examination of Rishabh Kumar attorney of the plaintiff in CC No. 1546/2017 as Ex. DW-1/2 (already exhibited as PW1/D4 in the cross examination of PW1), copy of blank cheques signed by the plaintiff bearing no. 000111 as Ex. DW-1/3 (already exhibited as DW1/1 in the statement of DW2), copy of three blank papers of Rs. 50/- each signed by both plaintiff and defendant in the year, 2011 as Ex. DW-1/4 (already exhibited as DW2/2 (colly) in the statement of DW2), copy of CS (Comm.) Old No. 50/19 & New No. 203/2020 -13- legal notice dated 06.01.2017 as Ex. DW-1/5, copy of partnership deed Ex. Mark-A. This witness is duly cross examined by Ld. Counsel for plaintiff. During cross examination, this witness has admitted that he had made payment of Rs. 15 lacs to the plaintiff at the time of execution of first MOU. He has also admitted that Ex. DW1/PX1 is the affidavit fled by him before the Ld. MM in a complaint case u/s 138 NI Act. He has admitted that at the time of execution of second MOU on 25.07.2016 he had to make payment of Rs. 20 lacs to the plaintiff. He has also admitted that he had sought two months time to make the payment of Rs. 20 lacs to the plaintiff. This witness has admitted that he had not placed on record any receipt/ document to show that he had made payment of Rs. 20 lacs on 29.07.2016. He has stated that he had not withdrawn the amount of Rs. 20 lakh from any bank. This witness has stated that he had taken this amount from his in laws. This witness has admitted that he had not shown this amount in his ITR. This witness has also admitted that he and the plaintiff were the signatory of the bank account of the firm and his family as well as the family of the plaintiff were aware about the modalities of the agreement dated 08.04.2016 and 25.07.2016.
8. Defendant has examined Sh. Vinod Gupta, Ahlamd in the court of Ld. MM-02, NI Act, West District, THC, Delhi as DW-
2. This witness has proved photocopy of cheque as Ex. DW-2/1 and photocopies of three bank stamp papers as Ex. DW-2/2 (colly).
9. Defendant has also examined Sh. Gagandeep Singh Kohli, Branch Head, Axis Bank, Mansarovar Graden, Delhi-110015 as CS (Comm.) Old No. 50/19 & New No. 203/2020 -14- DW-3. This witness has proved certified copy of account opening form of saving account no. 910010014103679 as Ex. DW-3/1, certified copy of bank statement from 01.01.2010 to 31.03.2022 as Ex. DW-3/2 (colly), the last customer induced transaction done on 23.04.2013 and the certificate of Dormant account as Ex. DW-3/3 and certificate u/s 65-B of Indian Evidence Act as Ex. DW-3/4 and letter of bank as Ex. DW-3/5.
10. I have heard Ld. Counsels for both the parties at length and perused the record carefully.
11. My issue-wise findings are as under:-
12. First of all, I am deciding Issue no. 6.
Issue No. 6- Whether suit is time barred ? OPD.
The burden to prove this issue is upon the defendant. It is contended by ld. Counsel for defendant that present suit is barred by limitation. Ld. Counsel for plaintiff has relied on agreement executed between the plaintiff an defendant on 08.04.2016 which is Ex. PW-1/3 and agreement dated 25.07.2016 which is Ex. PW-1/4. He has also placed on record Deed of Dissolution of partnership dated 28.07.2016. Plaintiff has also proved the copy of cheque as Ex. PW-1/6 and bank return memo as Ex. PW-1/7. The cheque Ex. PW-1/6 is dated 06.01.2017 and its returning memo Ex. PW-1/7 is dated 18.01.2017. The present suit is filed on the basis of certified copy of cheque. The present suit was filed on 09.12.2019 i.e. within the period of limitation. Accordingly, the defendant is not able to prove this issue and this CS (Comm.) Old No. 50/19 & New No. 203/2020 -15- issue is decided in favour of the plaintiff and against the defendant.
13. Issue No. 4 -Whether there is no cause of action in fvour of plaintiff ? OPD.
The burden to prove this issue is on the defendant. It is the case of the defendant that there is no cause of action in filing the present suit. The present suit is filed on the basis of cheque and compromise deed dated 08.04.2016, 25.07.2016 and dissolution deed dated 28.07.2016. Perusal of plaint reveals that there is cause of action in filing the present suit. Accordingly, defendant is not able to prove this issue and this issue is decided in favour of the plaintiff and against the defendant.
14. Issue No. 3 - Whether plaintiff has no locus standi to file the present suit ? OPD & Issue No. 5- Whether the suit is not filed through proper authorised representative ? OPD Both the issues are interconnected and can be decided together. The burden to prove both the issues is upon the defendant. The present suit was filed in December, 2019. Perusal of plaint reveals that this plaint was filed by the attorney of the plaintiff on 09.12.2019. The present suit has been filed by Sh. Rishabh Kumar, who is son of the plaintiff and plaint has been signed by Sh. Rishabh Kumar being attorney of the plaintiff. Alongwith the plaintiff, the plaintiff has not filed any Power of Attorney to show that he was authorized by his father to file the present suit. During the pendency of the suit, the attorney of the plaintiff has again filed plaint alongwith statement of truth and CS (Comm.) Old No. 50/19 & New No. 203/2020 -16- memo of parties. This fresh suit was filed on 14.10.2020. The plaintiff has placed on record copy of attorney which is Mark-A. The plaintiff has not filed original power of attorney and only copy to copy of Special Power of Attorney has been filed which is Mark-A. I am of the view that plaintiff was required to file original Special Power of Attorney to show that plaintiff has authorized him to file the present suit. The plaintiff has not summoned any witness from the court of Ld. MM to prove the SPA. The document Mark-B shows that plaintiff has only filed the copy of Special Power of Attorney in the complaint u/s 138 of NI Act pending before Ld. MM. No reliance can be given on copy to copy of Special Power of attorney. It can be held that son of the plaintiff has no locus standi to file the present suit, as suit is not filed through proper authorized person. I am of the view that defendant is able to prove both the issues and accordingly, both the issues are decided in favour of the defendant and against the plaintiff.
15. Issue No. 7- Whether suit is not maintainable as no dissolution of the partnership is signed between the plaintiff and defendant ? OPD The burden to prove this issue is on the defendant. It is the case of the defendant that deed of dissolution is not signed by him. The Deed of Dissolution is proved on record as Mark-B. During cross examination, DW-1 has admitted that his signature at point-A on document Mark-B. But he has stated that he has not signed any dissolution deed. I am of the view that as DW-1 has admitted his signature on deed of dissolution, the defendant is not CS (Comm.) Old No. 50/19 & New No. 203/2020 -17- able to prove this issue. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
16. Issue No. 1 - Whether plaintiff is entitled for recovery of Rs. 20,00,000/- from the defendant as alleged ? OPP & Issue No. 2- Whether plaintiff is entitled for injunction against defendant from using signed cheques and documents as alleged ? OPP Both the issues are interconnected and can be decided together. The burden to prove both the issues is upon the plaintiff. To prove both the issues, the attorney of the plaintiff appeared as PW-1. As I observed in Issues No. 3 & 5 that the present suit has been filed by the son of the plaintiff and no Special Power of Attorney has been placed on record. PW-1 has filed affidavit on the lines of plaint and during cross examination has admitted that the present suit has been filed by him only and not by his father. He has categorically stated that he is not signatory to Ex. PW-1/3 and Ex. PW-1/4. He has also admitted that the cheque in question is not mentioned in Ex. PW-1/3 and Ex.PW-1/4. He has denied the suggestion that the entire payment as per family settlement was paid to his father. This witness has admitted that he was not involved in the affairs of the partnership firm of his father and defendant. PW-1 in the cross examination has stated that his father is suffering from bipolar disorder but the attorney of the plaintiff has not placed on record any document to show that father of PW-1 is suffering from bipolar disorder. I have perused the medical documents which is proved on record as Ex. PW-1/2 (colly). In none of the document it is mentioned that plaintiff is suffering from bipolar disorder nor the attorney of CS (Comm.) Old No. 50/19 & New No. 203/2020 -18- the plaintiff has placed on record prescription of any doctor to show that plaintiff is suffering from bipolar disorder. Even the photocopy of medical documents placed on record by the attorney of plaintiff pertains to the year, 2017 onwards. These documents suggest that father of the plaintiff is suffering acute gastritis and document dated 12.11.2017 shows that plaintiff is suffering from Chest pain, so it cannot be said that plaintiff is suffering from bipolar disorder.
17. Ld. Counsel for defendant has placed reliance on judgment titled as "Mohinder Kaur Vs. Sant Pal Singh" CA Nos. 2869- 2870 of 2010 passed by Hon'ble Supreme Court of India. In this judgment, the Hon'ble Apex Court has relied upon judgment titled as "Janki Vashdeo Bhojwani and another v. Indusind Bank Limited and Ors." AIR 2005 SC 439 wherein, it is held that "Power of attorney holder, cannot depose in place and instated of principal". In this judgment, it is held that "In the context of the directions given by this Court, shifting the burden of proving on the appellants that they have a share in the property, it was obligatory on the appellants to have entered the box and discharged the burden by themselves. The question whether the appellants have any independent source of income and have contributed towards the purchase of the property from their own independence income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them. The power of attorney holder does not have the personal knowledge of the matter of the appellants and therefore, he can neither depose on his personal knowledge nor can be be cross examined on those facts which CS (Comm.) Old No. 50/19 & New No. 203/2020 -19- are to the personal knowledge of the principal". In this judgment, it is also held that Order III, Rules 1 and 2, CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In ouir view the word "acts" employed in Order III, Rules 1 and 2, CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined". In this judgment, it is also held that "Having regard to the directions in the order of remanded by which this Court placed the burden of proving on the appellants that they have a share in the property, it was obligatory on the part of the appellants to have entered the box and discharged the burden. Instead, they allowed Mr. Bhojwani to represent them and the Tribunal erred in allowing the power of attorney holder to enter the box and depose instead of the appellants. Thus, the appellants have failed to establish that they have any independent source of income and they had contributed for the purchase of the property from their own independent income. We accordingly hold that the Tribunal has erred in holding that they have a share and are co-owners of the property in question. The finding recorded by the Tribunal in this respect is set aside". In CS (Comm.) Old No. 50/19 & New No. 203/2020 -20- this judgment, it is held that "Apart from what has been stated, this Court in the case of Vidhyadhar v. Manikrao and another, (1999) 3 SCC 573 observed at page 583 SCC that "where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross- examined by the other side, a presumption would be arise that the case set up by him is not correct". In this judgment, it is held that "In civil dispute the conduct of the parties is material. The appellants have not approached the Court with clean hands. From the conduct of the parties it is apparent that it was a ploy to salvage the property from sale in the execution of Decree". In this judgment, it is also held that "On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri v. State of Rajasthan, 1986 (2) WLL 713 it was held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff".
This judgment is fully applicable to the facts of the case in hand. In the present case also the plaintiff has not come in the witness box to depose nor any original power of attorney has been placed on record. DW-1 has specifically stated that he has paid the amount of Rs. 20 lacs to the plaintiff. The plaintiff has not come in the witness box to face cross examination. I am of the view that in view of judgment titled Janki Vashdeo CS (Comm.) Old No. 50/19 & New No. 203/2020 -21- Bhojwani and another v. Indusind Bank Limited and Ors. An adverse influence can be drawn against the plaintiff. Moreover, no reason has been given by the plaintiff for not appearing to depose as per plaint and to face the cross examination by the defendant. I am of the view that PW-1 is not competent to depose on behalf of plaintiff, who is his father.
18. It is contention of Ld. Counsel for plaintiff that DW-1 has admitted that all the affairs of partnership firm were in the knowledge of the family members of both the parties i.e. plaintiff and defendant, thus, PW-1 was aware about the execution of agreement dated 08.04.2016 & 25.07.2016. I am not inclined to accept this contention of Ld. Counsel for plaintiff as PW-1 is not signatory of agreements dated 08.04.2016 & 25.07.2016. Moreover, it is categorically admitted by PW-1 that he is not signatory to the agreement dated 08.04.2016 which is Ex. PW- 1/3 and agreement dated 25.07.2016 which is Ex. PW-1/4 and he was not involved in the affairs of the partnership firm of his father and defendant. A specific suggestion has been given by the defendant to PW-1 that the entire payment as per family settlement was paid to his father. He has also denied the suggestion that before the Registrar both the plaintiff and defendant had admitted that all the conditions regarding Ex. PW- 1/3 and Ex. PW-1/4 had been fulfilled and payment has been received. I am of the view that it was incumbent on the part of the plaintiff to come in the witness box to prove the averments of the plaint and to face the cross examination. The plaintiff is not able to prove Issues no. 1 &2 and accordingly both the issues are decided in favour of the defendant and against the plaintiff.
CS (Comm.) Old No. 50/19 & New No. 203/2020 -22-19. RELIEF:
In view of my above discussions, the suit filed by the plaintiff is without any merits and same is hereby dismissed with no order as to cost. Decree sheet be prepared accordingly. File be consigned to record room, after necessary compliance.
Announced in the (NARESH KUMAR MALHOTRA) open court on 17.02.24 District Judge, Comm. Court-06 West, Tis Hazari Courts Extension Block, Delhi/17.02.2024 CS (Comm.) Old No. 50/19 & New No. 203/2020 -23-