Delhi District Court
Dr. Prakash Khatri vs M/S Uniqure Fruit Agency And Ors on 5 October, 2023
-:: 1 ::- Dated: 05.10.2023
IN THE COURT OF MS. SHIVALI BANSAL
ADDITIONAL DISTRICT JUDGE-03 (NORTH)
ROHINI COURTS, DELHI
CNR No. DLNT010116902019
CS No. 597/19
Dr. Prakash Khatri
Vs.
M/S Uniqure Fruit Agency
And Ors.
ORDER
05.10.2023 1 Vide this order, I shall dispose off the application of the defendant no.
1 to 3 seeking leave to defend.
2 The plaintiff has filed the present suit under Order 37 CPC for recovery of Rs. 6,30,000/- along with interest. It is stated that the defendants are the partners of M/s. Unique Fruit Agency and they are doing business of fruits and vegetables at New Subzi Mandi, Azad Pur, Delhi.
3 It is stated that defendant no. 1 is a partnership firm and the defendant no. 2 to 5 are the partners of the same. It is stated that in August, 2018, the defendants contacted the plaintiff through his brother and requested the plaintiff to give a friendly loan. The plaintiff gave the defendants a friendly loan of Rs. 6,00,000/- along with interest @ 1% per month. It is stated that the said amount was paid to the defendants through 2 cheques of Rs. 3,00,000/- each bearing no. 247440 dated CS No. 597/19 Dr. Prakash Khatri Vs. M/s Unique Fruit Agency & Ors. Page: 1 of 11
-:: 2 ::- Dated: 05.10.2023 01.09.2018 and 259589 dated 08.01.2019 both drawn on OBC, Pitam Pura, Delhi-34. It is stated that at the same time, receipts and promissory notes were executed by the defendants for the receipt of the said loan.
4 It is stated that defendants paid interest against the first loan amount till 28.05.2019 and paid interest against the second loan till 07.06.2019. Thereafter, defendants stopped paying interest to the plaintiff. Despite repeated demands for the repayment of loan along with interest accrued till October, 2019, the defendants have not paid the loan amount along with interest. The plaintiff got served a legal notice dated 09.10.2019 to the defendants through its counsel through Regd. AD. It is stated that defendants are liable to pay a sum of Rs. 6,00,000/- along with Rs. 30,000/- on account of interest @ 1% per month. Hence, the present suit.
5 The averments made in the application seeking leave to defend are as under:-
5.1 Ld. Counsel for the defendants in their application seeking leave to defend has sated that there has certain triable issues which needs to be looked into. It is stated that the present suit is liable to be dismissed outrightly for non-joinder of necessary party, namely, Sh. Firdous Ahmed Sheikh who is one of the Partner out of four partners of the answering defendant no. 1. It is stated that plaintiff in collusion with the Sh. Fridous Ahmed Sheikh filed the present suit by misusing the Promissory Notes of the defendant no. 1. It is stated that defendant no.
CS No. 597/19 Dr. Prakash Khatri Vs. M/s Unique Fruit Agency & Ors. Page: 2 of 11
-:: 3 ::- Dated: 05.10.2023 4, Sh. Manohar Lal Vasandani does not have any concern with the defendant no. 1 / partnership firm.
5.2 It is stated that plaintiff and defendants are not known to each other and did not have business / friendly relations at any point time. It is further stated that no business transactions ever took place between the plaintiff and defendant no. 1 to 3. It is stated that brother of the plaintiff is not know to the defendants no. 1 to 3. It is denied that any of the defendants sought any loan from the plaintiff on behalf of defendant no. 1. The present suit is based upon the concocted and false story and is only filed in order to harass and humiliate the defendant no. 1 to 3. It is stated that even the mode of payment i.e. through cheques is forged as the cheques are of two different dates which is contrary to the averments made by the plaintiff. It is further stated that defendants did not issue any promissory note to the plaintiff.
5.3 It is stated that in the month of May, 2019, a hand bag of the defendant no. 3 was lost in which several signed blank promissory notes and cheques were kept along with some cash as the same were carried by him for business purposes. An intimation in this respect was also given by defendant no. 3 to the police officials and one N.C.R / L.R No. 1088638 /2019 was lodged at PS Crime Branch, Delhi on 28.05.2019. The plaintiff filed the blank spaces of the promissory notes and the presented the same before this court with malafide intention. On these grounds, the defendant had sought for leave to defend.
CS No. 597/19 Dr. Prakash Khatri Vs. M/s Unique Fruit Agency & Ors. Page: 3 of 11
-:: 4 ::- Dated: 05.10.2023
6 In the reply to the application seeking leave to defend it is stated as
under:-
6.1 That the present application is liable to be dismissed as the defendants did not annex any authority letter qua the authorized person who may pursue the case on behalf of partnership firm. It is stated that the defendants did not annex their bank accounts statements & ledger of accounts maintained by them for their partnership firm for the period 01.09.2018 to 07.06.2019 which will speak itself about the loan amount given by the plaintiff. It is pertinent to mention here that as the defendants did not mention their defence on detailed affidavit hence present application filed by he defendants should be dismissed on this ground.
6.2 That the defendants have lodged too many false N.C.R/L.R complaints to Delhi Police which is a punishable offence with the sole object to cheat innocent persons like plaintiff and copy of same obtained by the plaintiff from Delhi Police website. The false complaint the copy of which has been filed along with the leave to defend application was allegedly lodged by the defendants on 28.05.19 showing the incident of 27.05.19 whereas the friendly loan was advanced in September 2018 and January 2019 much prior to the said false NCR.
6.3 That the Punjab Money Lending Act, 2007, do not apply to the present case as it is not averred by the plaintiff that the plaintiff is engaged in the business of advancing loans. It is specifically pleaded by the plaintiff that the loan advanced to the defendants was a friendly CS No. 597/19 Dr. Prakash Khatri Vs. M/s Unique Fruit Agency & Ors. Page: 4 of 11
-:: 5 ::- Dated: 05.10.2023 in nature as the defendants are well known to the plaintiff through his brother.
6.4 That the defendants had also alleged that the promissory note is forged and fabricated. There is no police complaint on record that may have been filed by the defendants regarding forgery. On the other hand they are admitting the signatures on the promissory notes. The plaintiff has placed reliance upon the judgment Hon'ble apex court in the matter of "Michalec Engg & Mfg v. Bank Equipment Corpn" 1 in which supreme court clearly held that "If the defendant has no defence, or if the defence is sham or illusory, or practically moonshine, the defendant is not entitled to leave to defend". The plaintiff has also placed reliance upon the judgment of Hon'ble Delhi High Court in "Vipin Gupta v. Prem Singh2", in which it was held as under:
"In a summary suit for recovery of loan the plaintiff alleged that two cheques issued by defendant towards loan amount were returned unpaid by the Bank with remark 'account closed.' The plea of defendant was that he had lost wo cheques which were stolen by the plaintiff and used by him for filing the suit. The defendant had not denied his signature on the documents relied upon by plaintiff and had also given an undertaking to return the sum and executed receipt duly signed by him. It was held by the Delhi High Court that the plea raised by the defendant was sham and had no force and as such the rejection of leave to defend was held to be proper".
6.5 The plaintiff has placed reliance upon the decision of Hon'ble 1 AIR 1977 SC 577.
2 2006 (134) DLT 402: 2007 (1) Civil Court C 586 (DB) CS No. 597/19 Dr. Prakash Khatri Vs. M/s Unique Fruit Agency & Ors. Page: 5 of 11
-:: 6 ::- Dated: 05.10.2023 Supreme Court in "Chhotelal Pyarelal Versus Shikarchand3", wherein Hon'ble Supreme Court held that "the firm can sue and be sued in its own name without the partners be impleaded". It is further submitted that the plaintiff has annexed his bank account statements with the present reply showing cheques duly cleared in the bank account of the defendant no.1 which is a proof of payment of loan amount by the plaintiff to the defendants, hence, no triable issue is raised by defendants in present application. It is alleged by the defendants that several signed cheques have been lost also did not describe the denominations of the currency lost in that hand bag which show that the whole defence is sham and bogus. It is further submitted that the place where the handbag is lost also not described by the defendants. It is pertinent to mention that the N.C.R No. given by the defendants are also wrong and same does not belongs to defendant no.3 i.e. Sh. Deepak Kumar Vasandani. It is further submitted that the Annexure-A annexed by the defendants is also different which bears an N.C.R/ L.R No-1088960/2019 which pertains to defendant no.2 i.e. Sh. Tulsi Dass Vasandani and not pertains to defendant no.3. It is further submitted that in N.C.R/ L.R No-1088960/2019 it was also not described which bank names and account numbers cheque books have been lost. It also does not describe about ever loosing of signed cheque books or signed promissory notes.
6.6 It is further submitted that the NCR/ LR No-1088638/2019 is provided by the defendants which was not annexed by the defendants 3 AIR 1984 SC 1570 CS No. 597/19 Dr. Prakash Khatri Vs. M/s Unique Fruit Agency & Ors. Page: 6 of 11
-:: 7 ::- Dated: 05.10.2023 when it was cross verified by the plaintiff from Delhi Police official website he was shocked to get one another Lost Report lodged by the Defendant no.2 which is annexed herein in which defendant no.2 is claiming himself a Partner of New JK Fruits (some other partnership firm) and on same terms, he had lodged an another Lost report before Delhi Police in conspiracy with one Ms. Sakshi Vasandani. It is further submitted that defendants have acted in well planned move against the plaintiff in conspiracy with one Ms. Sakshi Vasandani who is also part of conspiracy and commission of crime.
7 During the course of proceedings, Ld. Counsel for the plaintiff has dropped the present proceedings against defendant no. 4 and 5 which was initially not objected by the defendant no. 1 to 3 and the matter proceeded. On 28.08.2023, the final arguments were heard and the matter was reserved for orders on 01.09.2023. On 01.09.2023, defendants have filed an application for re-arguments / additional arguments in their application. The said application was allowed and arguments were once again heard on behalf of defendant no. 1 to 3. During the course of arguments, the defendant no. 1 to 3 has objected to the fact that defendant no. 5 was wrongly dropped from the array of parties. The said contention of defendant no. 1 to 3 is baseless as the liability of the partners in a partnership firm is joint and several and the defendant no. 1 to 3 can exercise their rights of recovery against the other partners for any sum of money found to be due upon the partnership firm in favour of the plaintiff.
8 Heard. Record Perused.
CS No. 597/19 Dr. Prakash Khatri Vs. M/s Unique Fruit Agency & Ors. Page: 7 of 11
-:: 8 ::- Dated: 05.10.2023
9 On perusal of the bank account statement as well as the original
promissory notes dated 01.09.2018, it is clear that the partnership firm namely M/s. Unique Fruit Agency is under a legal liability to pay a sum of Rs. 6,00,000/- to the plaintiff. The signatures on the promissory notes is of defendant no. 2 i.e. Sh. Tulsi Dass Vasandani. The signatures of defendant no. 2 on the promissory notes is compared with his signatures on the affidavit annexed along with the application seeking leave to defend and found to be matching. The defendants have not raised any triable issue in his application for seeking leave to defend that would entitle the defendants for grant of unconditional leave to defend. The plea taken by the defendants that all the partners are not made a party in the present suit is inconsequential as a suit by third party is maintainable against a partnership firm through its partner. The Law does not mandate that all the partners needs to be made a party before the court of law. Moreover, in the present case, the signatures on the promissory notes is of defendant no. 2 who was acting for and on behalf of the partnership firm. The act of defendant no. 2 to execute promissory notes in favour of the plaintiff has bound the entire partnership firm along with its partners to repay the plaintiff. It is a trite law that a partner acts as an agent of the other partners as well as the partnership firm, binding all the other partners for his act. Thus, the plea of the defendants that all the partners are not made party is not sustainable.
10 Another contention of the defendants that the plaintiff is acting in collusion with some Sh. Firdous Ahmed Sheikh (allegedly one of the CS No. 597/19 Dr. Prakash Khatri Vs. M/s Unique Fruit Agency & Ors. Page: 8 of 11
-:: 9 ::- Dated: 05.10.2023 partner in the firm) and the present suit is filed by misusing the promissory notes of the defendant no. 1 to cause wrongful loss to the defendants is also not sustainable as no criminal complaint has been lodged by the defendants against the Sh. Firdous Ahmed Sheikh for alleged misuse of the promissory notes.
11 Another contention of the defendants that the plaintiff has with bad and malafide intention impleaded defendant no. 4 as a party to the present suit becomes infructuous as subsequently defendant no. 4 is deleted from the array of parties. The defendants have raised the contention that there are no business transactions between the plaintiff and defendant no. 1 to 3, also has no bearing upon the facts of the case as the plaintiff has never alleged business dealings between the plaintiff and defendant no. 1 to 3. Moreover, the plaintiff has already shown that a sum of Rs. 6,00,000/- was advanced to the defendant no. 1 by way of two cheques, therefore, in absence of any business dealings between the plaintiff and the defendants, the logical conclusion is that the plaintiff has advanced such a sum of money as a friendly loan and therefore, the possibility of concoction in the version of the plaintiff is ruled out.
12 The defendants have also alleged that the payment made by the plaintiff is through forged cheques. However, this court is unable to understand the fact that the cheques were issued by the plaintiff to the defendant no. 1 which were credited in the account of defendant no. 1 and debited from the account of the plaintiff. Thus, who has forged whose signatures is unclear, why will the plaintiff forge his signatures CS No. 597/19 Dr. Prakash Khatri Vs. M/s Unique Fruit Agency & Ors. Page: 9 of 11
-:: 10 ::- Dated: 05.10.2023 to make a payment of Rs. 6,00,000/- to defendant no. 1 who is unknown to him and why would defendant no. 1 retain a sum of Rs. 6,00,000/- wrongly received by him through plaintiff and issue promissory notes in lieu of such payments. In fact the version of the plaintiff is also supported by the fact that, the mode of payment i.e. cheque no. 247440 and 259589 is also specified in the promissory notes. Thus, the defence raised by the defendants is sham and moonshine. The information report dated 28.05.2019 specifically states that in the office bag there were promissory notes which were lost. It cannot be ruled out that the defendants have lodged the report just to escape repayment of loan amount and to create a defence. The plaintiff in his plaint has stated that the plaintiff stopped paying the interest against the first loan on 28.05.2019 and against the second loan on 07.06.2019. These dates are relevant as they are proximate to the information report lodged by the defendant no. 2. It is has been rightly stated by the plaintiff in his reply to the application seeking leave to defend that the details of the bank name and cheque book number, promissory notes were not provided by the defendant no. 2. It is also rightly stated that the defendants have stated in the application that defendant no. 3 had lost the office bag but the intimation is lodged by defendant no. 2 who claims himself to be the partner of some other partnership firm, namely, M/s. New J. K Fruits. Thus, in the considered opinion of this court, it is more likely that the defendants in order to cause wrongful loss to the plaintiff has lodged an information report dated 28.05.2019 and thereafter, stopped paying any interest to the plaintiff. The defendants are not entitled to grant of CS No. 597/19 Dr. Prakash Khatri Vs. M/s Unique Fruit Agency & Ors. Page: 10 of 11
-:: 11 ::- Dated: 05.10.2023 leave to defend and the suit of the plaintiff is liable to be decreed. The plaintiff is not able to show any document wherein an interest @ 1% per month was agreed to be paid by the defendants and therefore, the plaintiff is not entitled to any interest upon the said principal amount. Accordingly, the plaintiff is entitled to a sum of Rs. 6,00,000/- along with interest @ 6 % per annum from the date of decree till actual realization of the suit.
13 Accordingly, the application of the defendant seeking leave to defend is dismissed and the suit of the plaintiff is decreed.
Decree sheet be prepared accordingly.
File be consigned to record room. Digitally signed
SHIVALI by SHIVALI
BANSAL
Announced in the open BANSAL Date: 2023.10.05
Court on 05.10.2023 16:28:26 +0530
Shivali Bansal
Additional District Judge-03
North District, Rohini Courts, Delhi
CS No. 597/19 Dr. Prakash Khatri Vs. M/s Unique Fruit Agency & Ors. Page: 11 of 11