Delhi District Court
M/S Suresh Chand Tarun Kumar vs Shri Khushi Mohd on 25 March, 2015
IN THE COURT OF SH. GURVINDER PAL SINGH
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
CS No. 69/2014
Unique I. D. No. 02401C0018592013
M/s Suresh Chand Tarun Kumar,
Shop No. 4049/51, Room No. 8,
First Floor, Udeseva Palace,
Naya Bazar, Delhi110006,
Through its Proprietor
Shri Suresh Chand .......PLAINTIFF
VERSUS
Shri Khushi Mohd.
S/o Shri Kalu Khan,
(Chane Mumfai Wala),
F101, Main Pusta Raod,
Near Buland Masjid, Shastri Park,
Delhi110055.
Also at:
Village & P.O. Kesarpur,
Tehsil Alwar, P.S. Saroli
District Bariely (U.P.)
........DEFENDANT
CS No. 69/2014 1/11
Date of institution of suit : 13.09.2006
Date of reserving for order : 04.03.2015
Date of pronouncement of order : 25.03.2015
SUIT FOR RECOVERY OF RS. 12,09,285.92 PAISE
JUDGMENT
1. Plaintiff, a proprietorship concern, wholesale dealer and trading in rice, wheat and groundnut etc. through its proprietor Sh. Suresh Chand had filed the suit for recovery of Rs. 12,09,285.92 paise against the defendant on 13.09.2006 on the premise that in the period between 23.11.2005 to 09.12.2005, the defendant had purchased goods worth Rs. 10,64,480.92 paise from the plaintiff on credit basis but despite legal notice of demand dated 05.07.2006 served upon defendant through counsel, the defendant failed to pay the aforesaid sum. So aforesaid sum along with interest has been claimed from the defendant by the plaintiff. It is also the case of the plaintiff that defendant used to lift the material (goods purchased on credit basis) on his own, however, the broker Shri Naresh Kumar Bansal always helped the defendant for transportation. CS No. 69/2014 2/11
2. Vide order dated 02.01.2008, due to nonappearance despite service by publication, the defendant was proceeded against exparte. Sh. Suresh Chand, proprietor of plaintiff was examined as PW1 vide affidavit Ex. PW1/A before my ld. Predecessor and after hearing exparte arguments, the suit was decreed for Rs. 12,09,285.92 paise with interest @ 12% per annum from the date of filing of suit till realisation with costs vide judgment dated 03.05.2008.
3. Vide order 03.06.2013, the decree dated 03.05.2008 against the defendant was set aside by my ld. predecessor on application u/o 9 Rule 13 CPC of defendant holding that defendant was never served properly/effectively with the process of present case at his address E11/A99/1, Buland Masjid, Shastri Park, Delhi110053 and he had no knowledge of the proceedings at the relevant time.
4. Defendant contested the suit by filing the written statement. Defendant pleaded that present suit was false, frivolous, vexatious and misconceived on the basis of forged documents to harass, pressurize and blackmail the defendant since defendant never purchased the goods in CS No. 69/2014 3/11 respect of bills relied upon by the plaintiff. Also has submitted that defendant had simply purchased goods worth Rs. 50,000/ from the plaintiff and said amount was paid in cash at the time of delivery of goods. Defendant also stated to have never resided at the address F101, Main Pushta Road, Near Buland Masjid, Shastri Park, Delhi110055 and plaintiff intentionally and deliberately gave wrong address of defendant to get the exparte decree by playing fraud upon the court. The defendant specifically denied of any purchase of goods between the period 23.11.2005 to 09.12.2005 worth Rs. 10,64,480.92 paise from the plaintiff on credit basis. Defendant also specifically denied of lifting any such material/goods purchased on his own and/or the fact that broker Shri Naresh Kumar Bansal having helped him for transportation as alleged. Each and every contention raised in the plaint has been categorically and specifically denied by the defendant in written statement.
5. Plaintiff filed replication to the written statement of the defendant to controvert the contentions of the written statement and to reiterate the averments of the plaint.
CS No. 69/2014 4/11
6. Vide order dated 06.01.2014 following issues were framed by my ld. predecessor:
1) Whether the plaintiff is entitled to the recovery of suit amount Rs. 12,09,285.92? OPP
2) Whether the plaintiff is entitled to the interest, as claimed? OPP
3) Relief
7. Sh. Suresh Chand, proprietor of plaintiff M/s Suresh Chand Tarun Kumar, proprietorship concern examined himself as PW1 and solitary plaintiff witness by way of affidavit Ex. PW1/A. PW1 relied upon documents viz. Photocopies of bills Ex. PW1/1A to Ex. PW1/1N whose originals were seen and returned during course of evidence; DVAT Forms Ex. PW1/2 & Ex. PW1/3; Legal Notice dated 05.07.2006 Ex. PW1/4; Postal Receipt, AD Card and Newspaper as Ex. PW1/5 to 10. PW1 was crossexamined.
8. Defendant examined himself as DW1 by way of affidavit CS No. 69/2014 5/11 Ex. DW1/A. DW1 was crossexamined.
9. I have heard arguments addressed by Ms. Seema Kanojia, ld. counsel for plaintiff; Sh. Matloob Ahmed, ld. counsel for defendant and have given thoughts to the rival contentions put forth, pleadings of the parties, evidence and have also examined the record of the case. Ld. counsel for parties argued in terms of pleadings of the parties in the case.
10. My issue wise findings are as under : Findings on issue no. 1 (1) Whether the plaintiff is entitled to the recovery of suit amount Rs. 12,09,285.92? OPP PW1 in his affidavit Ex. PW1/A asserted that defendant approached him through one broker Shri Naresh Kumar Bansal for the purpose of purchasing groundnuts and started purchasing groundnuts which were supplied to the defendant at his bhatti situated at Sunder Nagri. Also was asserted by PW1 that between 23.11.2005 to 09.12.2005, the defendant purchased goods worth Rs. 10,64,480.92 paise CS No. 69/2014 6/11 from his proprietorship concern on credit basis for which, 14 bills Ex. PW1/1A to Ex. PW1/1N were issued and defendant used to lift the material on its own, however, the broker Shri Naresh Kumar Bansal always helped the defendant for transportation. Form DVAT20 for the period from 01.11.2005 to 30.11.2005 Ex. PW1/2 and Form DVAT20 for the period from 01.12.2005 to 31.12.2005 Ex. PW1/3 have also been proved.
11. All the 14 bills Ex. PW1/1A to Ex. PW1/1N bear the description of purchaser as "Khushi Mohd., Sunder Nagri" beneath which there is mention either of 'Deen DayalNaresh ' or 'NareshDeen Dayal'. On none amongst the aforesaid 14 bills, the signatures/thumb impressions of defendant are appended nor the complete address of workplace or residence of defendant is mentioned therein. Sunder Nagri is not the place of abode of defendant. The alleged eyewitness of sale of goods, namely, broker Shri Naresh Kumar Bansal who is alleged to have always helped the defendant for transportation of goods purchased on credit from the plaintiff, has not been examined in plaintiff's evidence in the backdrop of blanket denial of any purchase of goods on credit from CS No. 69/2014 7/11 the plaintiff by the defendant. Plaintiff withheld the best evidence in the form of deposition of said broker Shri Naresh Kumar Bansal. There is no option for the court but to presume that had said broker Shri Naresh Kumar Bansal been examined by the plaintiff, his testimony would have been unfavourable to the plaintiff who withheld it, in accordance with Sec. 114 illustration (g) of Indian Evidence Act, 1872. In cross examination, PW1 candidly admitted that there was no agreement between him and defendant regarding sale/purchase transaction. To lend credence to said version, PW1, however, testified that there was no rule of executing of any agreement in the market. No evidence has been led by the plaintiff to establish such aforesaid market practice, nor the said broker has been called upon in witness box to testify about the transaction of sale of goods on credit to defendant. In the course of final arguments, it was admitted by plaintiff and his counsel that none of the 14 bills Ex. PW1/1A to Ex. PW1/1N bears signatures or thumb impressions of defendant with respect to sale of goods on credit to him.
12. In Ex. DW1/A, defendant DW1 asserted to have never resided at the address F101, Main Pushta Road, Near Buland Masjid, CS No. 69/2014 8/11 Shastri Park, Delhi110055. Also DW1 asserted that he had not purchased the alleged goods worth Rs. 10,64,480.92 paise during the period between 23.11.2005 to 09.12.2005 from the plaintiff on credit basis, as alleged by the plaintiff. DW1 also testified in terms of his averments in written statement elicited herein before. DW1 testified in his crossexamination that he was a petty shopkeeper, illiterate and in small business of sale of peanuts and namkeen etc. and used to purchase the goods against cash without any broker. DW1 denied of having purchased any goods through broker Shri Naresh Kumar Bansal at Naya Bazar. DW1 stated that he was neither income tax payee nor income tax assessee.
13. The oral assertion of sale of goods on credit by PW1 to defendant DW1 finds no corroboration from any of the 14 bills Ex. PW1/1A to Ex. PW1/1N for want of any signatures or thumb impressions of DW1 over them. The alleged eyewitness of said sale transactions as per the plaint, namely, broker Shri Naresh Kumar Bansal has not been brought in the witness box by the plaintiff. The plaintiff has not been able to prove that there was any market practice for non CS No. 69/2014 9/11 execution of agreement for sale of goods on credit basis or due to existence of Brokers' Association in Naya Bazar, there was no necessity for documentary evidence regarding the sale of goods on credit. The plaintiff has miserably failed to prove the sale of goods on credit vide bills Ex. PW1/1A to Ex. PW1/1N to defendant. Therefore, plaintiff is held not entitled for recovery of the amount of these bills. The issue is accordingly decided against plaintiff and in favour of defendant. Findings on issue no. 2 (2) Whether the plaintiff is entitled to the interest, as claimed? OPP
14. In view of my findings on issue no.1 above, the plaintiff is held not entitled for any interest. The issue is decided against the plaintiff and in favour of defendant.
Relief
15. In view of my findings on issue no.1 & 2 above, the plaintiff is held not entitled for recovery of Rs. 12,09,285.92 paise with CS No. 69/2014 10/11 or without interest from the defendant. The suit is dismissed with costs. Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in open Court (GURVINDER PAL SINGH)
on this 25.03.2015 Addl. Distt. Judge01 (Central)
Tis Hazari Courts, Delhi.
CS No. 69/2014 11/11