Delhi District Court
Uday Narayan Gupta vs M/S Accord Financial & Ors. on 28 February, 2014
UDAY NARAYAN GUPTA VS M/S ACCORD FINANCIAL & ORS.
IN THE COURT OF MS. RAJAT GOYAL: CJ04 (SOUTH):
SAKET COURTS COMPLEX, NEW DELHI
In the matter of :
CS No. 77/2013
UDAY NARAYAN GUPTA
S/o Shri Jamuna Prasad Gupta,
R/o 223D, PocketC, Mayur Vihar,
PhaseII, Delhi 110091 ... Plaintiff
Versus
1. M/S ACCORD FINANCIAL SERVICES,
A60, Basement Lajpat Nagar,
Part2, New Delhi - 110024
2. SHRI PAWAN AGGARWAL,
Partner of M/s Accord Financial Services,
A60, Basement Lajpat Nagar,
Part2, New Delhi - 110024
ALSO AT:
A60, Lajpat Nagar, Part2,
New Delhi - 110024
3. MRS. RAMNEET KAUR,
Partner of M/s Accord Financial Services,
A60, Basement Lajpat Nagar,
Part2, New Delhi - 110024
ALSO AT:
A114, Shivalik,
New Delhi - 110017 ... Defendants
Date of Institution : 20.01.2012
Date of Reserving Judgment : 26.02.2014
Date of Decision : 28.02.2014
CS No. 77/2013 Page 1 of 12
UDAY NARAYAN GUPTA VS M/S ACCORD FINANCIAL & ORS.
J U D G M E N T
(on Suit for recovery of Rs. 1,97,200/)
1. This suit was filed by the plaintiff for seeking a decree for recovery of Rs.1,97,200/ against the defendants alongwith interest @ 18% per annum.
2. Briefly stated, case of the plaintiff is that defendant no.1 is a partnership firm and defendants no.2 and 3 are its partners. That plaintiff was serving as IT head of defendant no.1 from 11.08.2006 to 31.12.2009 drawing a fixed monthly salary and incentive for additional work of SMC Insurance Brokers Pvt. Ltd. That due to some financial crunch faced by defendant no.1, defendants no.2 and 3 requested the plaintiff to advance some loan for smooth running of defendant no.1 firm. That the plaintiff advanced a loan of Rs.3,60,000/ by way of various cheques issued in favour of defendant no.1. That the defendants made a payment of Rs.2,15,000/ to the plaintiff as partial repayment of the loan amount. That another amount of Rs.1,22,000/ was paid to the plaintiff by the defendants as incentive for additional work done by him for SMC Insurance Brokers Pvt. Ltd. That defendants are liable to pay outstanding amount of Rs.1,45,000/ alongwith interest @18 % per annum to the plaintiff. That plaintiff requested for the said payment by way of letter dated 21.04.2011. That a legal notice dated 22.10.2011 was also sent by the plaintiff to the defendants in this regard, but to no CS No. 77/2013 Page 2 of 12 UDAY NARAYAN GUPTA VS M/S ACCORD FINANCIAL & ORS.
avail. Hence, the present suit.
3. Upon service of summons of the present suit, defendants appeared and filed their written statement (WS) denying the allegations as contained in the plaint. It was further stated on behalf of the defendants that the entire loan amount of Rs.3,60,000/ has been repaid by the defendants to the plaintiff. That the terms of employment of the plaintiff were governed by appointment letter dated 08.08.2006. That plaintiff was not entitled to any incentive for any work done for SMC Insurance Brokers Pvt. Ltd. That an amount of Rs. 4,00,000/ was paid by the defendants to the plaintiff by way of various cheques. That another amount of Rs.22,000/ was paid by the defendants to the plaintiff by way of cash on 26.12.2007. That a total amount of Rs.4,22,000/ was paid to the plaintiff against the loan given by him to defendant no.1 and also as his conveyance allowance. That the said amount does not include any incentive as plaintiff was not entitled to the same. That plaintiff has been guilty of indulging in stealing of database of customers of defendant no.1. That SMC Insurance Brokers Pvt. Ltd. was one of the clients of the defendants and that plaintiff had left the work of installing software project of SMC Insurance Brokers Pvt. Ltd. incomplete and defendants had to bear financial consequences for the same. That no amount is payable by the defendants to the plaintiff. Hence, the present suit be dismissed.
CS No. 77/2013 Page 3 of 12UDAY NARAYAN GUPTA VS M/S ACCORD FINANCIAL & ORS.
4. Plaintiff filed replication to the WS of the defendants denying the preliminary objections and other averments as contained in the WS. Averments as contained in the plaint were once again reiterated by way of the replication.
5. On the basis of the pleadings of the parties, following issues were framed vide order dated 06.02.2013 :
1. Whether the plaintiff is entitled to a decree of Rs. 1,97,200/ as prayed in clause (i) of the prayer clause? OPP
2. Whether the plaintiff is entitled to interest? If so, at what rate and for what period ? OPP
3. Relief.
6. In order to prove his case, the plaintiff examined as many as four witnesses. PW1 was the plaintiff himself. PW2 was the summoned witness from the Income Tax Department. PW3 was Ms. Rachna Gupta (wife of the plaintiff) and PW4 was Mr. Akhilesh Kumar Pandey (ex employee of defendant no.1). Defendants, on the other hand, examined a total of five witnesses. DW1 was Mr. Sunil Soni (exemployee of defendant no.1). DW2 was Mr. Ashish Dhiman and DW3 was Mr. Ravi Baliyan (exemployees of defendant no.1). Thereafter, defendants examined defendant no.2 Mr. Pawan Aggarwal as DW4. DW5 was SI Anil Malik from Cyber Crime Cell.
CS No. 77/2013 Page 4 of 12UDAY NARAYAN GUPTA VS M/S ACCORD FINANCIAL & ORS.
7. I have heard the contentions of both the sides and also gone through the record carefully. My issuewise findings are as under:
ISSUE NO.1 Whether the plaintiff is entitled to a decree of Rs. 1,97,200/ as prayed in clause (i) of the prayer clause? OPP
8. The onus to prove this issue was upon the plaintiff. It is the case of the plaintiff that a loan of Rs.3,60,000/ was advanced by the plaintiff to defendant no.1 by way of various cheques. Defendants have admitted to the same. It has, however, been submitted on behalf of the defendants that the entire amount of loan has been repaid by the defendants. On the other hand, Ld. Counsel for the plaintiff has argued that defendants have made a payment of only Rs.2,15,000/ towards partial repayment of the loan amount. It has further been submitted on behalf of the plaintiff that another amount of Rs.1,22,000/ was paid by the defendants to the plaintiff on account of incentive earned by him for additional work done by the plaintiff for SMC Insurance Brokers Pvt. Ltd. In view of the specific averment of the plaintiff that amount of Rs.1,22,000/ was received by him on account of incentive earned and not repayment of the loan amount, it was for the plaintiff to prove that the said amount was indeed received by him as incentive. Ex.PW1/D1 is appointment letter of the plaintiff dated 08.08.2006. The same has been admitted by the plaintiff in his cross examination as PW1. As per CS No. 77/2013 Page 5 of 12 UDAY NARAYAN GUPTA VS M/S ACCORD FINANCIAL & ORS.
Ex.PW1/D1, plaintiff was entitled to a gross monthly salary of Rs.35,000/. It must be noted here that Ex.PW1/D1 does not speak about plaintiff being entitled to any incentive. However, Ld. Counsel for the plaintiff has argued that Ex.PW2/7 is computation of income of the plaintiff for the financial year 200910 which clearly shows that plaintiff was entitled to an incentive of Rs.1,22,000/ during the said financial year. The same stands corroborated by Ex.PW2/6 which is income tax return of the plaintiff for the assessment year 201011. Both Ex.PW2/6 and Ex.PW2/7 have been duly proved by income tax inspector Mr. Mukesh Kumar appearing as PW2. Ld. Counsel for the plaintiff has argued that amount of Rs.1,22,000/ out of total amount of Rs.1,25,000/ received by the plaintiff by way of cheque bearing no. 484659 dated 26.10.2009 was received as incentive and that only Rs.3,000/ was towards repayment of the loan. Ld. Counsel for the defendants has argued that plaintiff was not entitled to any incentive whatsoever. In this regard, he has pointed out to Ex.PW1/3 which is Form 16 of the plaintiff pertaining to the financial year 200910 as per which it has been shown that plaintiff is entitled to refund of income tax of Rs.23,468/. Ld. Counsel for the defendant has argued that amount of Rs. 1,22,000/ was inadvertently shown as incentive in Ex.PW2/7 and that the said mistake was later on discovered by the defendants and hence, the TDS charged on the said amount was shown as refundable money vide Ex.PW1/3. The said argument of the Ld. Counsel for the defendants stands CS No. 77/2013 Page 6 of 12 UDAY NARAYAN GUPTA VS M/S ACCORD FINANCIAL & ORS.
corroborated by the testimony of DW2. It must also be noted here that Mark A is a copy of one email dated 04.02.2010 sent by the plaintiff to the defendants. Though Mark A is not certified in accordance with Section 65 B of Indian Evidence Act, 1872, PW1 has admitted to sending the said email in his cross examination. Hence, the same can be read into evidence. As per Mark A which is dated 04.02.2010, it was plaintiff's own version that no incentive had been paid by the defendants to him till that date. Thus, when the plaintiff has himself admitted in Mark A that he had not received any incentive till 04.02.2010, it now does not lie in the mouth of the plaintiff to contend that amount of Rs.1,22,000/ was received by him on 26.10.2009 was received as way of incentive. Hence, I am of the opinion that the entire amount of Rs.1,25,000/ received by the plaintiff on 26.10.2009 by way of cheque bearing no.484659 was towards repayment of the loan and not as some incentive earned by the plaintiff.
9. It has been argued on behalf of the defendants that a payment of Rs.4,00,000/ was made to the plaintiff by way of various cheques, details of which are as under: S. No. Cheque No. Amount (Rs.) Date
1. 794875 20,000/ 22.11.2007
2. 815007 18,000/ 27.11.2007
3. 823625 65,000/ 26.11.2007
4. 004969 1,00,000/ 17.03.2009
5. 084659 1,25,000/ 26.10.2009 CS No. 77/2013 Page 7 of 12 UDAY NARAYAN GUPTA VS M/S ACCORD FINANCIAL & ORS.
6. 484664 47,000/ 29.10.2009
7. 000204 15,000/ 23.12.2009
8. 000205 10,000/ 23.12.2009
10. It must be mentioned here that amount of Rs.
65,000/ given to the plaintiff by way of cheque dated 26.12.2007 was with respect to a loan advanced by the defendants to the plaintiff for purchase of a car by the plaintiff. It has been admitted by the defendants that the said amount of Rs.65,000/ has been duly repaid by the plaintiff. Thus, the amount of Rs.65,000/ paid by way of cheque bearing no. 823625 dated 26.12.2007 has nothing to do with the loan of Rs.3,60,000/ advanced by the plaintiff to the defendants.
11. Ld. Counsel for the plaintiff has argued that cheques bearing no.000204 and 000205 both dated 23.12.2009 for a sum of Rs.15,000/ and Rs.10,000/ respectively were not issued to the plaintiff. The said fact has been admitted by defendant no.2 in his cross examination as DW4. DW4 has admitted that the said cheques were issued in the name of Ms. Rachna Gupta, wife of the plaintiff. Ld. Counsel for the plaintiff has argued that the said cheques were issued by the defendants for repayment of a loan of Rs.25,000/ availed by the defendants from the wife of the plaintiff. Ms. Rachna Gupta, appearing as PW3 has stated that a sum of Rs. 15,000/ was withdrawn by her from her savings bank CS No. 77/2013 Page 8 of 12 UDAY NARAYAN GUPTA VS M/S ACCORD FINANCIAL & ORS.
account and another Rs.11,000/ was withdrawn by her husband (plaintiff) from his own account on 09.08.2009 as the plaintiff was requested by defendant no.2 to advance a loan of Rs.25,000/ to defendant no.1 firm for payment of certain telephone bills. Ex.PW3/1 is a copy of bank account statement of Ms. Rachna Gupta which shows that an amount of Rs.15,000/ was withdrawn by her on 09.08.2009 and that later on cheques bearing no. 000204 and 000205 were credited into her account on 26.12.2009. Defendants have failed to explain as to why the said cheques were issued in the name of the wife of the plaintiff if the same were towards repayment of loan availed by defendant no.1 from the plaintiff. DW4, in his cross examination, has merely stated that the said cheques were issued in favour of the wife of the plaintiff at the request of the plaintiff. The said explanation does not inspire any confidence as the transaction in question was not a transaction between two individuals but was one involving a firm. It seems highly unlikely that a firm, which maintains various books of accounts etc. and is duly audited by a CA would issue cheques in favour of a third party with respect to loan availed by the said firm from some other person. Thus, it seems that payment of Rs.25,000/ made by way of cheques bearing no. 000204 and 000205, both dated 23.12.2009 was not towards repayment of loan of Rs. 3,60,000/ availed by defendant no.1 from the plaintiff.
12. Ld. Counsel for the defendants has argued that an CS No. 77/2013 Page 9 of 12 UDAY NARAYAN GUPTA VS M/S ACCORD FINANCIAL & ORS.
amount of Rs.22,000/ was paid by defendants to the plaintiff by way of cash on 26.12.2007 towards part payment of the loan of Rs.3,60,000/. However, apart from the oral testimony of DW4, there is absolutely no proof of the said payment. DW4 has admitted in his cross examination that there is no proof regarding the said payment of Rs.22,000/.
13. Ld. Counsel for the defendants has argued that an amount of Rs.20,000/ was paid to the plaintiff by way of cheque bearing no.794875 dated 22.11.2007 and that another amount of Rs.18,000/ was paid to the plaintiff by way of cheque bearing no.815007 dated 27.11.2007. The receipt of said cheques has not been denied by the plaintiff. However, it has been submitted on behalf of the plaintiff that the said cheques were issued for reimbursing the plaintiff regarding expenditure incurred by the plaintiff out of his own pocket for work related to the defendants. However, the said contention of the plaintiff is not supported by any evidence whatsoever. There is absolutely nothing on record to prove that plaintiff had spent that money out of his own pocket for official discharge of his functions pertaining to defendant no.1. There is no receipt or invoice to prove that plaintiff had ever spent that amount towards any payment made to one Akhilesh Kumar Singh for website designing as averred by PW1 in his cross examination. In the absence of any proof, I am of the opinion that the amount of Rs.38,000/ given by way of the above mentioned cheques was towards repayment of the loan CS No. 77/2013 Page 10 of 12 UDAY NARAYAN GUPTA VS M/S ACCORD FINANCIAL & ORS.
and not as reimbursement of the plaintiff towards any expenses incurred by him.
14. Ld. Counsel for the defendants has submitted that an amount of Rs.47,000/ was further paid to the plaintiff by way of cheque bearing no.484664 dated 29.10.2009 towards partial repayment of the loan. The said cheque has not been denied by the plaintiff and has rather been admitted by PW1 by way of his affidavit Ex.PW1/A. Plaintiff has also admitted to receiving Rs.1,00,000/ by way of cheque bearing no.0049699 dated 18.03.2009 towards partial repayment of the loan.
15. From the above discussion, it follows that repayment of loan as mentioned below stands duly proved, either by way of evidence on record or admission of the plaintiff:
Date Amount Cheque No.
22.11.2007 20,000/ 794875
27.11.2007 18,000/ 815007
18.03.2009 1,00,000/ 0049699
26.10.2009 1,25,000/ 084659
29.10.2009 47,000/ 0484664
16. Thus, it follows that defendants had paid a total amount of Rs.3,10,000/ towards repayment of loan out of the total amount of Rs.3,60,000/. There is no proof regarding payment of remaining amount of Rs.50,000/ by the defendants. Hence, issue no.1 is decided accordingly.
CS No. 77/2013 Page 11 of 12UDAY NARAYAN GUPTA VS M/S ACCORD FINANCIAL & ORS.
ISSUE NO.2 Whether the plaintiff is entitled to interest? If so, at what rate and for what period ? OPP
17. Plaintiff has claimed interest @18% per annum. However, given the fact that these transaction was not a commercial one, I am of the opinion that interest @6% per annum from the date of institution of the present suit till realization is just and appropriate in the facts and circumstances of the present case. Hence, issue no.2 is decided accordingly.
Relief:
18. As a consequence to my findings on the above mentioned issues, suit of the plaintiff is partly decreed and a decree for recovery of Rs.50,000/ along with interest @ 6% per annum from the date of institution of this suit till realization is passed in favour of the plaintiff and against the defendants jointly and severally. Costs of the suit are also awarded to the plaintiff. Decree sheet be prepared accordingly.
19. File be consigned to the record room after due compliance.
Announced in the open Court on 28.02.2014 (Rajat Goyal) CJ04 (South)/Saket Courts New Delhi/28.02.2014 CS No. 77/2013 Page 12 of 12