Delhi District Court
Lakhan Lal vs . Raju Shekhawat on 9 June, 2022
Lakhan Lal vs. Raju Shekhawat
DLCT010035292019
IN THE COURT OF SH. PAWAN KUMAR JAIN
DISTRICT JUDGE (COMMERCIAL COURT)-03,
CENTRAL, TIS HAZARI COURTS, DELHI
CS (COMM) No.323/2019
Lakhan Lal
S/o Late Sh. Shiv Charan Das
R/o House No. 2207,
Masjid Khajoor Gali,
Hanuman Prasad Kinari Bazar,
Chandni Chowk, Delhi-110006. ....Plaintiff
Versus
Mr. Raju Shekhawat
S/o Late Sh. Omkar Singh Shekhawat
R/o 977, Punjabi Mohalla
Shora Kothi, Sabji Mandi,
Delhi-110007. ....Defendant
Date of Institution : 15.03.2019
Date on which Judgment reserved : 01.06.2022
Date on which judgment pronounced : 09.06.2022
CS (COMM) No.323/2019 Page No. 1 of 15
Lakhan Lal vs. Raju Shekhawat
SUIT FOR RECOVERY OF RS. 7,41,480/-
(RUPEES SEVEN LAKH FORTY ONE THOUSANDS
FOUR HUNDRED AND EIGHTY ONLY
JUDGMENT
1. Plaintiff has filed a commercial suit for recovery of Rs.7,41,480 with pendente lite and future interest at the rate of 18% per annum from the date of filing of the suit till realization of the amount.
2. To seek the above relief, plaintiff inter-alia alleges:-
(i) That plaintiff is running a jewelery shop and had business terms/relations with the defendant since 2014.
(ii) That in the month of January 2016, defendant took a packet containing 236.80 carat of precious stones 'Pukhraj' @ Rs. 3,700/- per carat having total value of Rs. 8,76,160/- from the plaintiff and assured the plaintiff that he would make the payment within few days after delivery of stones 'Pukhraj' to his customers at Agra or other places in India.
(iii) That since plaintiff had long term business relations and trust with the defendant, plaintiff handed over the above CS (COMM) No.323/2019 Page No. 2 of 15 Lakhan Lal vs. Raju Shekhawat previous stones to the defendant with the hope that he would keep his promise and pay the value of the precious stones as early as possible. But defendant did not turn up and even stopped visiting his shop.
(iv) That plaintiff made several requests to the defendant on phone to make payment, but defendant did not give any heed to his request. Despite several requests, defendant paid Rs. 5,000/- at two occasions i.e. Rs. 4,000/- and Rs. 1,000/-. Besides that defendant also returned the precious stones worth of Rs. 1,29,580/-. Thus, in total, defendant repaid a sum of Rs. 1,34,580/-.
(v) That thereafter, defendant had given a post dated cheque bearing No. 018746 dated 12.09.2018 drawn on ICICI Bank, Model Town Branch for a sum of Rs. 1,00,000/- in discharge of his liability. But on presentation, said cheque returned unpaid with the remarks 'Cheque is not in order'. Consequently, plaintiff filed a criminal complaint under Section 138 of the Negotiable Instruments Act.
(vi) That at last, plaintiff sent a legal notice dated 26.10.2018, but since defendant failed to make the payment, plaintiff filed a suit for a sum of Rs. 7,41,480/-
with pendente lite and future interest @ 18% p.a. CS (COMM) No.323/2019 Page No. 3 of 15 Lakhan Lal vs. Raju Shekhawat
3. Since defendant failed to file the written statement within the stipulated period, right of defendant to file the written statement was closed vide order dated 19.07.2019.
4. In order to prove his case, plaintiff examined the following witnesses:
PW1 : Mr. Lakhan Lal, plaintiff himself PW2 : Mr. Jeevan Singh Verma PW3 : Mr. Vinod Verma
5. Learned counsel appearing for the plaintiff vehemently contended that plaintiff had handed over precious stones worth of Rs.8,76,160/- to the defendant on his assurance that he would make the payment within few days after delivery of the precious stones to his customers at Agra and some other places of India. But since he failed to make the payment, defendant committed breach of the contract. Since the defendant made a part payment of Rs. 5,000/- and returned some precious stones worth of Rs. 1,29,580/- in installment, defendant is liable to make the balance payment of Rs. 7,41,480/-. It was further argued that since the defendant did not make the payment in time, defendant is also liable to pay pendente lite and future interest @ 18% p.a. 5.1 Per contra, learned counsel appearing for the defendant refuted the said contentions by sagaciously arguing that CS (COMM) No.323/2019 Page No. 4 of 15 Lakhan Lal vs. Raju Shekhawat the plaintiff has not come before the Court with clean hands and concocted a false story to set up his case. It was argued that plaintiff is not running any jewelery shop and this fact is admitted by the plaintiff in his cross-examination. Since the plaintiff had not handed over any precious stones to the defendant at any point of time, due to that reason, no receipt is filed on record. Though the plaintiff had filed a photocopy of one receipt, but the same is not admissible in evidence as it is a photocopy and it does not even bear the signature of either of the parties. It was further contended that since the transaction if any, between the parties was not a 'sale', defendant is not liable to make any payment. It was further argued that during cross-examination, plaintiff admitted that the alleged precious stones were given to him by one Mr. Sood and since Mr. Sood was not examined by the plaintiff and there is nothing on record to show that plaintiff had suffered any loss because of the said transaction, plaintiff is not entitled to any relief.
6. I have heard rival submissions advanced by learned counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their submissions.
7. From the submissions advanced by counsel for the parties, first question that emerges for adjudication is: Whether plaintiff was running a jewelery shop as pleaded in the plaint and testified in the evidence?
CS (COMM) No.323/2019 Page No. 5 of 15Lakhan Lal vs. Raju Shekhawat 7.1 Plaintiff in para 2 of his plaint categorically averred that plaintiff is running a jewelery shop at Shop No. 2, 1758/1759, Kucha Lattu Shah, Dariba Kalan, Chandni Chowk, Delhi. He testified the same in the affidavit of his examination-in-chief. Thus, plaintiff had set up a case that he was running a jewelery shop at the above address. Initially, during his cross-examination, he testified that he is dealing in jewelery for the last six years but he has no employee at his shop and further testified that at the relevant time, he had just opened the shop. But later on, he deposed that he did not use to issue any invoice to his customers and then deposed that infact he was working as a broker. He further clarified that he was not attached with any shopkeeper. He further testified that he did not maintain any record of his transactions.
7.2 PW2 is known to the plaintiff, in his cross- examination, he testified that plaintiff is like his elder brother as he knew him since his childhood and further deposed that plaintiff is not running the business of jewelery and further explained that he had a vacant shop at Dariba Kalan, Chandni Chowk and plaintiff used to sit there.
7.3 PW3 is also known to the plaintiff, which is also admitted by PW3 in his cross-examination by testifying that he knew the plaintiff for the last 10-15 years. Though PW3 also CS (COMM) No.323/2019 Page No. 6 of 15 Lakhan Lal vs. Raju Shekhawat testified that shop of plaintiff is located adjoining to his shop, yet in the light of the deposition made by PW1 & PW2, testimony of PW3 to the extent that plaintiff has a shop does not inspire any confidence. PW3 also admitted in his cross-examination that plaintiff does not deal in jewelery but testified that he deals in precious stones and diamonds.
7.4 From the above, it becomes clear that plaintiff is not running a jewelery shop as pleaded and testified by him in his examination-in-chief. Rather, he was working as a broker but he was not attached with any shopkeeper. It also becomes clear that plaintiff did not use to maintain any record of the transaction. According to PW1, it was his first transaction as he deposed in his cross-examination that except the transaction in question, he had not sold any gold, stones/gems to any other customer.
8. The next question that crops up from the submissions advanced by counsel for the parties is: Whether there was any business relations between the parties as pleaded and testified by the plaintiff?
8.1 Plaintiff in para 2 of his plaint categorically stated that the defendant had business terms/relations with the plaintiff in doing business of gems and jewelery since 2014. Since the present suit was filed in March 2019, it means the plaintiff had business relations with the defendant for the last more than 05 CS (COMM) No.323/2019 Page No. 7 of 15 Lakhan Lal vs. Raju Shekhawat years. The same fact is testified by the plaintiff in para 2 of his examination-in-chief. In his cross-examination, PW1 categorically admitted that he had no other business relation with the defendant. This admission shows that there was no business relationship between the parties as pleaded by the plaintiff in his plaint and testified by him in his examination-in-chief.
9. The next question that arises for adjudication is:
Whether there is any cogent evidence on record to show that the plaintiff had given the alleged precious stones to the defendant?
9.1 PW1 in his cross-examination testified that he had given the entire 'Pukhraj' to defendant for the purpose of selling.
But he also admitted that he did not maintain any record of the said transaction. He also admitted that he had not filed any document to show that he had ever given 'Pukhraj' to the defendant except the receipt Ex. PW1/1, but also admitted that same is a photocopy and does not bear the signature of defendant. Though he swiftly added that Ex. PW1/1 is in the handwriting of the defendant and denied the suggestion that same is not in the handwriting of the defendant. Since there is no explanation why he had not filed the original receipt, it would not be safe to place any reliance on the photocopy Ex. PW1/1 which even does not bear the signature of the defendant.
10. Next moot question that emerges from the CS (COMM) No.323/2019 Page No. 8 of 15 Lakhan Lal vs. Raju Shekhawat submissions of the counsel for the parties is: Whether the transaction that allegedly took place between the parties was 'Sale'? If not 'Sale' then what was it?
10.1 In para 3 of the plaint, it is averred that in the month of January 2016, defendant took a packet containing 236.80 carat of 'Pukhraj' @ Rs. 3,700/- per carat having total value of Rs. 8,76,160/- from plaintiff and assured him that he would make the payment within few days after delivering the same to his customers at Agra and other places in India. The same is reiterated by the plaintiff in his examination-in-chief. However, in his cross- examination, he clarified that he gave the precious stones 'Pukhraj' to the defendant for the purpose of selling and further admitted that he did not sell the 'Pukhraj' to defendant but gave him to sell the same. The term 'buyer' is defined under Section 2 (1) of the Sales of Goods Act, 1930 & 'seller' is defined under Section 2(13) of the Act. Section 2(1) of the Act says "Buyer' means a person who buys or agrees to buy goods." whereas Section 2(13) says, "Seller' means a person who sells or agrees to sell goods."
10.2 PW1 in his cross-examination admitted that he gave 'Pukhraj' to defendant for the purpose of selling and further admitted that he did not sell the same to defendant but gave him to sell the same. Thus, from his testimony, it is clear that PW1 did not sell the alleged precious stones to the defendant; nor defendant CS (COMM) No.323/2019 Page No. 9 of 15 Lakhan Lal vs. Raju Shekhawat agreed to buy the same. Hence, the handing over the precious stones to the defendant does not amount to 'sale'. Now question arises then what was it?
10.3 Bailment is defined under Section 148 of the Contract Act as under:
148. 'Bailment', 'bailor' and 'bailee' defined.--A 'bailment' is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the 'bailor'. The person to whom they are delivered is called the 'bailee'.
Explanation.--If a person is already in possession of the goods of other contracts to hold them as a bailee, he thereby becomes the bailee, and the owner becomes the bailor of such goods, although they may not have been delivered by way of bailment.
10.4. As per the testimony of PW1, the alleged precious stones were handed over to the defendant for the purpose of sale to his customers, thus the delivery of precious stones by the plaintiff to the defendant amounts 'bailment' in terms of Section 148 of the Contract Act. Since the goods were delivered by the plaintiff to the defendant, plaintiff is the 'bailor' and defendant becomes a 'bailee'.
10.5 Section 160 of the Act casts certain duty on the 'bailee'. Section 160 reads as under:
CS (COMM) No.323/2019 Page No. 10 of 15Lakhan Lal vs. Raju Shekhawat
160. Return of goods bailed, on expiration of time or accomplishment of purpose.--It is the duty of the bailee to return, or deliver according to the bailor's directions, the goods bailed, without demand, as soon as the time for which they were bailed has expired, or the purpose for which they were bailed has been accomplished.
10.6 Thus, according to Section 160 of the Act, it was the duty of the defendant to return the precious stones to the plaintiff when he failed to sell the same or if sold the same, he was supposed to return the sale consideration to the plaintiff. As evident from the testimony of witnesses examined by the plaintiff that defendant failed to return the goods or the sale consideration, defendant committed the breach of Section 160 of the Act.
10.7. The consequences of default in returning of the goods is explained in Section 161 of the Act, which is reproduced as under:
161. Bailee's responsibility when goods are not duly returned.--If by the fault of the bailee, the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from that time.
10.8 Since the defendant failed to return the precious stones to the plaintiff, in terms of Section 161 of the Act, defendant is responsible to the plaintiff for any loss, destruction or deterioration of the goods from that time. Since in the present case, plaintiff only claims the equivalent value of the balance CS (COMM) No.323/2019 Page No. 11 of 15 Lakhan Lal vs. Raju Shekhawat undelivered precious stones, plaintiff is only seeking relief of monetary loss and plaintiff is not seeking the return of the remaining precious stones.
10.9 Besides Section 161 of the Act, Section 73 of the Contract Act is also applicable which reads as under:
73.Compensation for loss or damage caused by breach of contract- When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of thing from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.
10.10 A combined reading of Section 161 and Section 73 of the Contract Act, makes it clear that plaintiff is entitled to seek compensation from the defendant in respect of loss caused to him for not returning of the previous stones to him within a reasonable period, which were allegedly given to him for the purpose of sale.
Now question arises whether there is any evidence to show that plaintiff had suffered any loss because of the breach on the part of the defendant?
11. Plaintiff neither in his plaint nor in his examination- in-chief explained how he suffered any loss because of the default on the part of defendant. PW1 in his cross-examination deposed that one Mr. Sood used to visit the market and one day he gave his CS (COMM) No.323/2019 Page No. 12 of 15 Lakhan Lal vs. Raju Shekhawat 'Pukhraj' stones and asked him to sell the same. Consequently, he handed over the same to the defendant to sell the same. Since Mr. Sood handed over 'Pukhraj' stones to the plaintiff with directions to sell the same, Mr. Sood became the 'bailor' and plaintiff became 'bailee'. As it is undisputed fact that plaintiff failed to return the 'Pukhraj' to Mr. Sood, in terms of Section 161 of the Act, plaintiff became liable to compensate Mr. Sood for the loss caused to him.
11.1 During trial, plaintiff failed to lead any evidence to establish that he had compensated Mr. Sood in any manner either by paying the value of the precious stones or paid any token damages to him. Even plaintiff did not deem it appropriate to disclose true facts in his pleadings and made an attempt to project an impression that the precious stones belonged to him whereas the same were originally belonged to Mr. Sood. Even in his examination-in-chief, he concealed this relevant material fact from the court. He admitted this fact only in his cross- examination. In fact the loss if any, had been caused to Mr. Sood and not to the plaintiff. Plaintiff would have suffered loss, if he had compensated Mr. Sood, but there is no such evidence on record. Even the witnesses examined by the plaintiff did not utter a single word in this regard. Since the plaintiff had not suffered any loss in the alleged transaction, defendant is not responsible to compensate the plaintiff.
CS (COMM) No.323/2019 Page No. 13 of 15Lakhan Lal vs. Raju Shekhawat 11.2 Further, to ascertain the approximate loss, it is essential to assess the value of the precious stones which were allegedly handed over to the defendant. In order to assess the value of the precious stones, Mr. Sood was one of the most relevant witnesses, but plaintiff preferred not to examine him. As already stated, Mr. Sood was the owner of the alleged precious stones, he was the best person to tell what was the approximate value of the precious stones, but since plaintiff did not deem it appropriate to examine him, there is no cogent evidence on record to prove what was the approximate value of the alleged precious stones. In the absence of any approximate value of alleged precious stones, the loss if any, caused to the plaintiff cannot be ascertained.
12. Next question that needs adjudication is: Whether plaintiff approached the Court with clean hands?
12.1 As already stated that plaintiff had made false averment in his plaint that he was running a jewelery shop at Chandni Chowk whereas he was merely a broker and was not attached with any shopkeeper. Similarly, plaintiff also falsely allegedly that he had business terms/relations with the defendant since 2014 whereas it was his first transaction with the defendant. Further, plaintiff deliberately concealed relevant material fact from the Court that the precious stones belonged to Mr. Sood and same were given to him to sell the same. On the contrary, in the CS (COMM) No.323/2019 Page No. 14 of 15 Lakhan Lal vs. Raju Shekhawat pleading, it was projected that the precious stones belonged to him being the jeweler and he gave the same to the defendant being his old customer for the purpose of selling. All these are sufficient to hold that plaintiff has not approached the Court with clean hands.
13. In view of the foregoing discussion, I am of the considered opinion that the evidences led by the plaintiff are insufficient to prove the plaintiff's case even on the standard of preponderance of probability. Accordingly, I hereby dismiss the suit.
14. No order as to cost.
15. Decree-sheet be prepared accordingly.
16. File be consigned to record room after due compliance.
Digitally
signed by
PAWAN PAWAN
KUMAR JAIN
KUMAR Date:
Announced in the open Court
JAIN 2022.06.09
16:06:32
+0530
on this 9th day of June, 2022.
(PAWAN KUMAR JAIN)
District Judge (Commercial Court)-03
Central, Tis Hazari Courts, Delhi.
CS (COMM) No.323/2019 Page No. 15 of 15