Delhi District Court
Sh. Vijay Khanna vs Sh. Shashank Khanna (Since Deceased) on 16 August, 2016
IN THE COURT OF SH. YOGESH KHANNA,
DISTT. & SESSIONS JUDGE (NORTHWEST),
ROHINI COURTS, DELHI.
CS No. 23/14
Sh. Vijay Khanna
Proprietor
M/s Madan Lal Khanna & Co.
r/o A39, PhaseIII
Ashok Vihar, Delhi .........Plaintiff
Vs.
Sh. Shashank Khanna (since deceased)
through legal representatives :
(a) Smt. Archala (wife)
(b) Sh. Rishab Khanna (son)
(c) Sh. Kshitij Khanna (son)
All r/o : H201, IIIrd Floor
Phase1, Ashok Vihar, Delhi.
......Defendant
Date of institution : 16.01.2014
Date of hearing arguments : 22.07.2016
Date of decision : 16.08.2016
JUDGMENT
1.By this Judgment, I shall decide the present suit filed by the plaintiff against Sh. Shashank Khanna seeking recovery of Rs.
CS No. 23/14 Page 1 of 96,20,000/ along with interests, averring therein that the plaintiff is the Proprietor of M/s Madan Lal Khanna & Co. which company is engaged in the business of sale and purchase of rubber; that Sh. Shashank Khanna was also engaged in the same trade and was having good business relations with the plaintiff and hence, he requested the plaintiff to give the ground floor of his property bearing no. A39, Ashok Vihar, PhaseIII, Delhi - 110052, on rent to him; that keeping in view the business and family relations, the son of the plaintiff let out the ground floor of the said property to the son of Shashank Khanna; that in the first week of February 2013, Shashank Khanna approached the plaintiff for some financial help as he was in need of money for engagement of his son namely Rishab Khanna and accordingly, the plaintiff agreed to extend financial assistance of Rs. 5,00,000/(Rs. 3,00,000/ through ECS facility + Rs. 2,00,000/ by cash) to Shashank Khanna in the month of February 2013 and Shashank Khanna promised to return the said amount within a month; that after expiry of one month, the Shashank Khanna issued a cheque bearing no. 000011 dated 04.06.2013 drawn on Kotak Mahindra Bank Ltd., K.G. Marg, New Delhi, which was drawn as 'self', which cheque was objected to by the plaintiff and he requested Shashank Khanna to issue a cheque in his (plaintiff's) name as the 'self' cheque will create a problem in the accounts; that with great persuasion and repeated requests made by CS No. 23/14 Page 2 of 9 the plaintiff, Shashank Khanna again issued two cheques, out of which one for Rs. 3,00,000/ bearing no. 000014 dated 04.06.2013 in the name of the plaintiff and another for Rs. 2,00,000/ again as 'self' bearing no. 000013 dated 04.06.2013, both drawn on Kotak Mahindra Bank Ltd.; that the cheque bearing no. 000014 for Rs. 3,00,000/ got dishonoured on 12.06.2013 and against which the plaintiff initiated the criminal proceedings against Shashank Khanna; that Shashank Khanna did not issue fresh cheque in the name of the plaintiff against the 'self' cheque bearing no. 000013 dated 04.06.2013.
It is further alleged that since then the plaintiff made several requests to Shashank Khanna to return the money, but he avoided the same on one pretext or the other, hence, finding no other alternative, the plaintiff issued a legal demand notice dated 31.05.2013 to Shashank Khanna which was duly served upon him, but despite service of the said legal demand notice, Shashank Khanna did not pay any amount to the plaintiff and rather sent a vague and bogus reply dated 12.06.2013.
On these allegations, the plaintiff has filed the present suit seeking recovery of Rs. 6,20,000/ viz. Rs. 5,00,000/ as principal amount and Rs. 1,20,000/ on account of interest till the date of filing of the present suit.
It is pertinent to mention here that Shashank Khanna CS No. 23/14 Page 3 of 9 expired during the pendency of the present suit and accordingly his legal heirs were brought on record by the plaintiff by way of an application under Order XXII Rule 4 r/w Sec. 151, which application was allowed vide order dated 19.05.2014. The defendants/legal heirs contested the suit of the plaintiff and filed a written statement taking various objections. The plaintiff filed a replication wherein he denied the contentions raised in the written statement and reaffirmed those as stated in the plaint.
2. From the pleadings of the parties and documents on record, following issues were framed on 09.07.2014 :
(i) Whether there is no privity of contract between the plaintiff and the legal heir of the defendant as stated in the Written Statement? If so, its effect? OPD
(ii) Whether the plaintiff is entitled for the suit amount as prayed in prayer clause of the plaint? OPP.
(iii) Whether the plaintiff is entitled for pendente lite and future interest, if so, then at what rate and for what period? OPP.
(iv) Relief.
In order to prove his case, the plaintiff appeared in the witness box as PW1 and tendered his affidavit in evidence as Ex. PW1/A. PW1 also relied upon various documents viz. Mark A i.e. cheque dated 04.06.2013 for Rs. 5,00,000/ drawn on self; Ex. PW1/1 i.e. the cheque dated 04.06.2013 for Rs. 3,00,000/ in favour CS No. 23/14 Page 4 of 9 of Madan Lal Khanna & Company; Ex. PW1/2 i.e. the original cheque dated 04.06.2013 for Rs. 2,00,000/ drawn on self; Ex. PW1/3 i.e. the returning memo dated 12.06.2013; Ex. PW1/4 i.e. the copy of legal notice; Ex. PW1/5 i.e. the registration receipt; Ex. PW1/6 i.e. the courier receipt; Ex. PW1/7 i.e. the AD Card; Ex. PW1/8 i.e. the reply dated 12.06.2013 to the legal notice; Ex. PW1/9 i.e. the certificate issued by Union Bank of India wherein the plaintiff has been shown as a Proprietor of M/s Madan Lal Khanna and Ex. PW1/10 i.e. special licence to deal in rubber given to him by the Rubber Board wherein he has been shown as a Proprietor of M/s Madan Lal Khanna & Co.
The plaintiff examined one more witness PW2 Sh. Amarnath Anand, Manager of Union Bank of India, Chandni Chown Delhi, who appeared in the witness box as PW2 and proved the CC A/c No. 307105040000144 in the name of M/s Madan Lal Khanna w.e.f. 01.01.2013 to 01.06.2013. He proved documents Exs. PW2/A and PW2/B. PW1 was partly cross examined. When the matter was listed for further cross examination on 10.02.2016, none appeared on behalf of the defendant and as such vide order dated 10.02.2016, the defendants/legal heirs were proceeded ex parte.
3. I have heard the learned Counsel for the plaintiff and have also gone through the record carefully.
CS No. 23/14 Page 5 of 9Considering the pleadings, the issues framed, evidence led and arguments addressed, my issuewise finding is as under : ISSUE NO. (i) :
"Whether there is no privity of contract between the plaintiff and the legal heir of the defendant as stated in the Written Statement? If so, its effect? OPD.
The onus to prove this issue was upon the defendants. The defendants have alleged that there is no privity of contract between the parties, but they have not alleged anywhere that they have not inherited anything from the plaintiff. Since as per the allegations, Shashank Khanna had taken a loan of Rs. 5,00,000/ for the engagement of his son namely Rishab Khanna and since after death of Shashank Khanna right to sue survives against his legal heirs, the decree can be passed against them. Even otherwise, the onus to prove this issue was upon the defendants/legal heirs and they themselves have not come forward to lead any evidence. This issue is thus decided against the defendants/legal heirs and in favour of the plaintiff.
ISSUE NO. (ii) :
Whether the plaintiff is entitled for the suit amount as prayed in prayer clause of the plaint? OPP.
The onus to prove this issue is upon the plaintiff. The plaintiff has proved various documents viz. the cheque dated 04.06.2013 for Rs. 5,00,000/ drawn on self as Mark A; the CS No. 23/14 Page 6 of 9 cheque dated 04.06.2013 for Rs. 3,00,000/ in favour of Madan Lal Khanna & Company as Ex. PW1/1; the original cheque dated
04.06.2013 for Rs. 2,00,000/ drawn on self as Ex. PW1/2; the returning memo dated 12.06.2013 as Ex. PW1/3; the copy of legal notice as Ex. PW1/4; the registration receipt as Ex. PW1/5; the courier receipt as Ex. PW1/6; the AD Card as Ex. PW1/7 and the reply dated 12.06.2013 to the legal notice as Ex. PW1/8; the certificate issued by Union Bank of India wherein he has been shown as a Proprietor of M/s Madan Lal Khanna as Ex. PW1/9 and special licence to deal in rubber given to him by the Rubber Board wherein he has been shown as a Proprietor of M/s Madan Lal Khanna & Co. as Ex. PW1/10.
Moreso if one peruse the reply Ex. PW1/8, the defendant Shashank Khanna admitted receipt of Rs. 3,00,000/, though he alleged that it was so received on behalf of one Sh. Vinod Kumar and it was paid to him by the defendant. The defence per se appears to be frivolous as on the one hand, the defendant denies the receipt of any amount but whereas in his reply Ex. PW1/8 admits the receipt of Rs. 3,00,000/ though he gives yet another explanation, which he ultimately failed to elaborate or prove. Further, PW2 Sh. Amarnath Anand, the Manager of Union Bank of India had proved the record i.e. CC A/c No. 307105040000144 in the name of M/s Madan Lal Khanna w.e.f. 01.01.2013 to 01.06.2013 where such CS No. 23/14 Page 7 of 9 payment was shown. More so, there is no opposition from the side of the defendants/legal heirs and hence, the testimonies of PW1 and PW2 have remained unrebutted, unchallenged and there is nothing on record to disbelieve such testimonies. Therefrom the un rebutted & unchallenged testimonies of PW1 and PW2 coupled with various documents, duly proved, I am of the opinion that the plaintiff has been successful in proving his claim and hence, is entitle to recover the loan amount. Thus, this issue is decided in favour of the plaintiff and against the defendants/legal heirs in terms of above.
ISSUE NO. (iii) :
Whether the plaintiff is entitled for pendente lite and future interest, if so, then at what rate and for what period? OPP.
The onus to prove this issue is also upon the plaintiff. Though the plaintiff has prayed for an interest @ 24% per annum, but has not shown any agreement for the same. Hence, it would be appropriate if the interest @ 9% per annum is granted to the plaintiff w.e.f. 04.06.2013 till realization of the decretal amount. This issue is accordingly decided.
RELIEF :
Thus, in view of my above discussion, a decree for a sum of Rs. 5,00,000/ with costs is passed in favour of the plaintiff and against CS No. 23/14 Page 8 of 9 the defendant. Further the plaintiff shall also be entitle to recover interest @ 9% per annum w.e.f. 04.06.2013 till its realization. Decree Sheet be prepared accordingly and file be consigned to Record Room.
Announced in the open Court
today i.e. 16.08.2016 (YOGESH KHANNA)
Distt. & Sessions Judge (N/W)
Rohini Courts, Delhi
CS No. 23/14 Page 9 of 9