Delhi District Court
Sh.V.K. Gupta vs M/S.Dimensions & Designers (P) Ltd on 4 January, 2008
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IN THE COURT OF SH. DAYA PRAKASH
ADDITIONAL DISTRICT JUDGE: DELHI
Suit No. : 384/03/01
Sh.V.K. Gupta,
Sole Proprietor
M/s.V.K. Timbers and Plywood Co.,
TA-89, Tuglakabad Extension,
Main Okhla Road,
New Delhi.
...Plaintiff
VERSUS
1. M/s.Dimensions & Designers (P) Ltd.
(Through its Managing Director/Directors/Principal
Officer etc.)
W-26, Greater Kailash-II,
New Delhi-48.
2. M/s.Dimensions Furnishers (P) Ltd.,
W-26, Greater Kailash-II,
New Delhi-48.
3. Sh.Hement Sood
Director of defendants no.1 & 2
Residence cum Office at W-26,
Greater Kailash-II,
New Delhi-48.
4. Mrs.Lipica Sood
Director of defendants no.1 & 2
w/o.Hemant Sood,
W-26, Greater Kailash-II,
New Delhi-48.
...Defendants
Date of Institution of the Suit: 09.02.2001
Date on which the judgment has been reserved: 10.12.07
Date of delivery of judgment: 07.01.2008
SUIT U/O.37 CPC FOR RECOVERY OF Rs.6,88,000/-
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JUDGMENT
1. By this judgment I shall dispose of the suit u/o.37 CPC for recovery of Rs.6,88,000/- filed by the plaintiff against the defendants.
2. In the plaint it is submitted that plaintiff carries on the business of sale and supply of Timber, Plywood etc. under the name and style of M/s.V.K. Timber and Plywood, New Delhi as sole proprietor of the same.
It is submitted that defendant no.1 which is a trading concern through defendants no.3 & 4 purchased the goods on short terms credit basis from the plaintiff. It is further submitted after adjustment a sum of Rs.7,62,429.48 was found to be due and outstanding against the defendants, as on 10.02.1998.
It is submitted that defendants issued six cheques amounting to Rs.4,00,000/- towards the part payment of total outstanding, in the name of plaintiff firm through their own sister company i.e. defendant no.2, however the said cheques got bounced despite the promise/assurances by the defendants regarding their encashment. After that plaintiff contacted the defendants and defendants asked the plaintiff to deposit all cheques after about a month and agreed to make 2/13 //3// the payment of Rs.3 lacs against the remaining liability of Rs.3,62,429.48. It is further submitted that defendants made the said payment by way of Bank Draft of Rs.3 lacs. It is further submitted that plaintiff resubmitted the cheques but the said cheques got bounced. Hence, plaintiff constrained to issue a notice u/s.138 NI Act, which defendants replied wherein defendants admitted the liability of at least Rs.1 lacs and evading the payment of said amount. Hence, the suit.
Plaintiff further submits that the cause of action arose in favour of the plaintiff and against the defendants; that this court has jurisdiction to try the present suit and that the suit has been properly valued for the purposes of jurisdiction and court fees.
Accordingly plaintiff seeks the following relief's:
a. Pass a decree for a sum of Rs.6,88,000/- being the amount of the cheques in question, given towards the part discharge of the liability including the interest @24% per annum from the date of the issue of the cheques and till filing of the suit, which at present comes to Rs.2,88,000/-;
b. Pass a decree thereby granting the interest pendente-lite and future interest @24% per annum to the plaintiff;
c. Award the cost of the present suit.
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3. Defendants filed their joint W.S. wherein they have raised several preliminary objections that plaintiff has not approached the Court with clean hands; that suit is based on false, fabricated and disputed documents; that suit has been filed without cause of action and suit is bad for misjoinder of defendant no.4.
In reply on merits, it is submitted that occasionally the defendant no.1 purchased goods from the plaintiff, the same were duly paid for when the goods were received against vouchers/bills. It is denied that a sum of Rs.7,62,429.48 was ever found to be due and outstanding against the defendants as on 10.02.1998. It is further denied that cheques of Rs.4 lacs were given towards the part payment of total outstanding by defendant no.2 on account of defendant no.1 to the plaintiff.
It is submitted that plaintiff has not submitted the cheques as told by the defendants. It is submitted that payment of Rs.3 lacs was made against the cheque of Rs.3 lacs which had been dishonoured on the date when the payment of Rs.3 lacs was made. It is further submitted on 18.02.1998 only four cheques stood dishonoured and the defendant on coming to know about the same immediately 4/13 //5// arranged for payment of Rs.3 lacs by Cashier Cheque which was handed over to the plaintiff on very next day and at that time remaining cheques amounting to Rs.1,00,000/- had not been dishonoured. Hence, there was no question of payment of Rs.3 lacs against the remaining liability. It is further submitted defendants have never accepted the liability of Rs.7,62,429.48 and do not recognize having to make any payment of Rs.3,62,429.48 as the said figure has been concocted by the plaintiff only to take advantage of cheques which he had in his possession of Rs.3 lacs which he was bound to return after having received Rs.3 lacs by Cashier Cheque. Accordingly it is prayed that the suit filed by the plaintiff be dismissed with costs.
4. Subsequently, replication to the W.S. of the defendantd was filed wherein the plaintiff has denied the allegations made in the W.S. and reiterated the averments contained in the plaint.
5. After the completion of pleadings following issues were framed by the Ld. Predecessor of the Court on 04.05.2004:
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1. Whether suit is bad for misjoinder of defendant no.4, if so, its effect?OPD
2. Whether defendant had made payment of Rs.3 lacs towards cheques no.029381, 029382, 029383, 029384 and plaintiff did not return the cheques?OPD
3. Whether or not cheques worth Rs.4 lacs as mentioned in the claim were given by defendant no.2 on account of defendant no.1?Onus of proof on both the parties.
4. Whether plaintiff is entitled to decree in the sum of Rs.6,88,000/- or any other amount and from which of the defendants?OPP
5. Whether plaintiff is entitled to interest at the rate of 24% per annum or any other rate and for what period?OPP
6. In evidence on behalf of plaintiff, plaintiff Sh.V.K. Gupta himself deposed as PW1. In evidence by way of affidavit PW1 supported the averments made in the WS and got exhibited the consolidated statement of account from 01.01.1996 to 06.04.1998 maintained by plaintiff in ordinary course of business as Ex.PW1/1. The separate statements of accounts (total 5) for the said period as Ex.PW1/1-A to Ex.PW1/1-E. The original 6 cheques for total sum of Rs.4 lacs as Ex.PW1/2 to Ex.PW1/7. The Returning Memo dt. 18.02.1998 and 21.02.1998 as Ex.PW1/8 to Ex.PW1/13. The judgment/decree dt.27.11.2003 passed in suit for recovery of 6/13 //7// remaining amount of Rs.62,429.48/- filed by the plaintiff as Ex.PW1/14. The 6 Returning Memos dt.02.04.1998 and 06.04.1998 as Ex.PW1/15 to Ex.PW1/20. The notice u/s.138 of NI Act as Ex.PW1/21. The Reply of the said notice by the defendants as Ex.PW1/22. The copy of the application filed by defendants for dropping the proceedings before Criminal Court as Ex.PW1/25.
In cross examination PW1 deposed that he had business relations with defendant since 1993. PW1 admit that terms and conditions had been mutually decided between the parties. PW1 deposed that they had business dealing till 1998. PW1 further deposed that principle amount is Rs.4 lacs with balance interest and the rate of interest has been calculated as 24% per annum and he has claimed interest from 1998 till 2000. PW1 deposed that he never claimed any interest prior to 1998. PW1 denied that it was mutually decided that no interest was to be paid.
Further cross of PW1 treated as nil vide order dt.18.02.2006 as none appeared on behalf of defendants to cross examine the PW1.
7. Since the defendants failed to appear for leading 7/13 //8// the defendant evidence, the evidence of defendant was closed vide order 25.03.2006. Thereafter defendants moved an application u/o.47 R/w. Section 151 CPC as well as application u/s.5 of the Limitation Act for review of orders dt.18.02.2006 and 25.03.2006 which were dismissed vide order dt.05.02.2007.
8. Arguments on behalf of plaintiff heard. Advocate of defendant repeatedly failed to appear to advance oral arguments nor filed any written arguments.
9. My findings with respect to the issues are as follows:
REGARDING ISSUE NO.1 & 2
"Whether suit is bad for misjoinder of defendant no.4, if so, its effect?OPD"
& ''Whether defendant had made payment of Rs.3 lacs towards cheques no.029381, 029382, 029383, 029384 and plaintiff did not return the cheques?OPD'' These issues were OPD i.e. onus was on the defendants to prove these issues.
Defendants have not led any evidence on these issues nor they have argued. Hence, I have no option except 8/13 //9// to decide issues no.1 to 2 against the defendants. Accordingly, issues no.1 to 2 are decided against the defendants.
REGARDING ISSUE NO.3 ''Whether or not cheques worth Rs.4 lacs as mentioned in the claim were given by defendant no.2 on account of defendant no.1?Onus of proof on both the parties.'' The onus to prove this issue was on both the parties. Plaintiff led evidence as PW1. PW1 was partly cross examined and defendant failed to cross examine PW1 further. In cross examination plaintiff had stated that the cheques were given by defendant no.2 on behalf of defendant no.1.
Defendants failed to lead any evidence. I have seen the pleadings, evidence and documents on record and feel that defendants have failed to prove this issue rather plaintiff has proved that the cheques worth Rs.4,00,000/- as mentioned in the claim were given by defendant no.2 on account of defendant no.1, on the following grounds:-
firstly, it is proved on record that the material was supplied to defendant no.1. The cheques of Rs.4 lacs are placed on record. These cheques were issued on behalf of 9/13 //10// defendant no.2. There is no ledger account with respect to defendant no.2. The cheques are signed by Sh.Hemant Sood for M/s. Dimensions Furnishers Pvt. Ltd. He is also the Director of defendant no.1.
Secondly, in the WS which is signed by Sh.Hemant Sood on behalf of all defendants, it is has not been explained how defendant no.2 gave cheques to the plaintiff or on what account. It is a proved fact as not denied that defendants no.3 & 4 are the directors of defendants no.1 & 2. Defendant no.3 has not denied his signatures on cheques Ex.PW1/2, Ex.PW1/3, Ex.PW1/4, Ex.PW1/5, Ex.PW1/6 and Ex.PW1/7. The total of these cheques is Rs.4 Lacs.
Thirdly, the address of all the defendants i.e. the companies as well the directors, are same i.e. W-26, Greater Kailash-II, New Delhi-48.
In view of above, I feel that plaintiff has proved that cheques worth Rs.4 Lacs as mentioned in the claim were given by the defendant no.2 on account of defendant no.1. The issue no.3 is decided in favour of plaintiff and against the defendants.
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//11// REGARDING ISSUE NO.4 ''Whether plaintiff is entitled to decree in the sum of Rs.6,88,000/- or any other amount and from which of the defendants?OPP' I have seen the pleadings, evidence and documents on record and feel that plaintiff has partly proved the issue on the following grounds:-
firstly, affidavit of plaintiff is on record. PW1 was partly cross examined. Remaining cross examination could not be done by the defendant owing of their repeated absence. Hence, the facts as stated in the evidence remained unrebutted.
Secondly, there was another suit between the parties being suit no.15/01 which was disposed by the Ld. ADJ Sh.A.K. Garg, vide judgment dt.27.11.2003. In that suit the statement of accounts being marked X-1 and X-5 were admitted by the defendants.
Thirdly, the complaint case is Ex.PW1/24 and paras no.6 and 7 of that complaint case contains the 11/13 //12// admissions which are relevant for the disposal of present claim of the plaintiff also.
Fourthly, in suit no.15/01 part of the claim/issue was decided in favour of plaintiff. Plaintiff in the present suit amount for Rs.6,88,000/- claimed Rs.4 Lacs as a cheques amount and Rs.2,88,000/- as interest from 14.02.1998 till filing of the suit. This is an admitted position that at the time of dealing between the parties, there was no question of payment of interest nor it was discussed. Further it has been clarified that no interest shall be payable by the defendant. Hence, plaintiff is not entitled to 24% interest from 14.12.1999 till filing of the suit. Keeping in view the business transaction between the parties, I feel that 9% per annum interest from 14.02.1989 till filing of the suit, will met end of the justice.
In view of above, issue no.4 is decided partly in favour of plaintiff. The plaintiff is entitled to cheques amount of Rs.4,00,000/- alongwith interest @ 9% per annum from 14.02.1989 till filing of the suit. REGARDING ISSUE NO.5 ''Whether plaintiff is entitled to interest at the rate of 24% per annum or any other rate 12/13 //13// and for what period?OPP'' Keeping in view the prevalent commercial interest rate, I feel let interest at the rate of 9% per annum be granted in favour of plaintiff on the decreetal amount (Rs.4,00,000/- plus interest @ 9% per annum from 14.02.1989 till filing of the suit) from the date of filing of the suit till its realisation.
10. On the basis of findings given on all issues, the suit of plaintiff against the defendants decreed for a sum of Rs.4,00,000/- with interest @ 9% per annum from 14.02.1998 till filing of the suit. Plaintiff is also entitled to cost and interest @9% per annum from the date of filing of the suit till its realisation.
11. Decree Sheet be prepared accordingly. File be consigned to Record Room.
Announced in open Court DAYA PRAKASH today on dated 07.01.2008 ADDITIONAL DISTRICT JUDGE DELHI 13/13