Delhi District Court
Vinod Sadhu vs Charan Singh on 29 August, 2019
IN THE COURT OF JSCCASCJGJ, SOUTHEAST DISTRICT, SAKET
COURTS, DELHI
Presided By : Sh. Jay Thareja, DJS
Civil Suit No.1298/17
Vinod Sadhu
Through Attorney
Uddit Sadhu
B21, Pamposh Enclave
Greater Kailash, PartI,
New Delhi 110048 ... Plaintiff
Versus
Charan Singh
S/o Sh. Mukh Ram
R/o D217, Dakshin Puri
Sector5, Ambedkar Nagar,
New Delhi110062 ... Defendant
SUIT FOR DECLARATION, MANDATORY INJUNCTION,
PERMANENT PROHIBITORY INJUNCTION AND
RECOVERY OF DAMAGES
DATE OF INSTITUTION : 09.11.2017
DATE OF FINAL ARGUMENTS : 09.08.2019
DATE OF DECISION : 29.08.2019
JUDGMENT
1. The plaintiff has filed this suit against the defendant seeking reliefs of declaration, mandatory injunction, permanent prohibitory injunction and recovery of damages1, as per the following prayer:
"Wherefore the plaintiff most respectfully and humbly 1 The relief of rendition of accounts was abandoned by the Ld. Advocate for the plaintiff, on 09.08.2019.Civil Suit No.1298/17
Vinod Sadhu v Charan Singh Page no.1 of 6 prays that this Hon'ble Court may graciously be pleased to:
1. Pass a decree of declaration in favour of the plaintiff and against the defendant declaring the plaintiff as the owner of the bike model Honda Shine bearing registration number DL 3S CN 5220 and further pass a decree of mandatory injunction in favour of the plaintiff and against the defendant directing the defendant to handover the original Registration Certificate and other documents of the said bike of the plaintiff along with his books of attendance until June 2017;
2. ...
3. Pass an appropriate decree of permanent injunction in favour of the plaintiff and against the defendant, restraining defendant, its representatives, assignees, attorneys, heirs, managers, agents or any such other person from interfering with the peaceful possession of the plaintiff to the suit property;
4. Pass a decree of damages for Rs.2,50,000/ in favour of the plaintiff and against the defendant along with interest @12% per annum till the date of realization of account of misappropriation of funds done by the plaintiff.
5. Pass any such other and or further order/directions as this Hon'ble Court may deem fit and proper in Civil Suit No.1298/17 Vinod Sadhu v Charan Singh Page no.2 of 6 interest of justice and in facts and circumstances of the present case."
2. In order to justify the grant of the aforesaid reliefs/prayer, the plaintiff has interalia pleaded in the plaint of this suit that the plaintiff is a NRI; that the plaintiff had inducted the defendant as a driver to work at his house at B21, Pamposh Enclave, New Delhi; that despite being unhappy with the services of the defendant, the plaintiff had (a) purchased a motor cycle no. DL 3S CN 5220, in the name of the defendant, in August 2013, (b) given loans of Rs.75,000/ and Rs.25,000/ to the defendant, in FebruaryMarch 2017 and (c) entrusted the defendant with a total sum of Rs.6,08,573/, for the purpose of renovation of the suit property; that in September 2017, the plaintiff had learned that the defendant had not paid dues of Rs.50,000/ to Sh. Muzir Ali, Painter for the work done at the suit property and the defendant had taken kick backs @18% from the labourers, working at the suit property; that when the plaintiff had confronted the defendant with the said facts, the defendant had earlier given vague answers but later admitted his guilt; that defendant is absconding since 20.09.2017, the date when the defendant had appeared at the suit property and threatened the labourers working at the suit property; that the plaintiff has made various complaints to the local police against the defendant but no action has been taken and that the plaintiff genuinely believes (a) that the defendant owes the plaintiff a sum of Rs.2,50,000/, (b) that the defendant poses a threat to the plaintiff, his family and the suit property and (c) that the defendant is liable to return to the plaintiff, the RC and other documents of motor cycle no. DL 3S CN 5220.
Civil Suit No.1298/17Vinod Sadhu v Charan Singh Page no.3 of 6
3. A perusal of the Court file reveals that upon filing of this suit, the summons for settlement of issues of this suit were ordered to be issued qua the defendant, by a Ld. Predecessor Judge, on 22.11.2017; that the said summons were returned back with the report that the defendant has left the given address; that consequently, the Ld. Advocate for the plaintiff had filed an application under Order V Rule 20 of CPC, 1908, seeking substituted service of the defendant by way of publication of summons in the newspapers "Veer Arjun" and "The Statesman"; that the said application was allowed by a Ld. Predecessor Judge, on 20.07.2018 and the defendant was served by way of publication of summons in the newspaper "Veer Arjun" and "The Statesman", on 22.08.2018; that after sufficiently waiting for appearance on behalf of the defendant, on 12.10.2018, the defendant was proceeded ex parte and that ultimately, the exparte evidence of PW1 Sh. Vinod Sadhu was recorded by a Ld. Predecessor Judge, on 04.12.2018.
4. In order to adjudicate upon this suit, I had heard Sh. Kunal Raheja, Ld. Advocate for the plaintiff, on 09.08.2019. On the said date, the Ld. Advocate for the plaintiff had submitted that the case of the plaintiff stands duly proved by virtue of the unchallenged testimony of PW1 Sh. Vinod Sadhu and as such, the plaintiff should be granted the decree, as prayed for.
5. After perusing the record of the Court file and considering the submissions made by the Ld. Advocate for the plaintiff, on 09.08.2019, I find the relief of declaration sought by the plaintiff cannot be granted by this Court because the certificate, Ex.PW2/B, tendered in evidence by PW2 Sh. R. K. Civil Suit No.1298/17 Vinod Sadhu v Charan Singh Page no.4 of 6 Pawa, Assistant Section Officer, SouthZone, Transport Department, New Delhi, clearly reflects that the defendant is the owner of the motor cycle no. DL 3S CN 5220 and because the remedy of the plaintiff is to seek recovery of the money paid by the plaintiff qua the said motor cycle, from the defendant.
6. Further, I find that the relief of mandatory injunction sought by the plaintiff cannot be granted by this Court (a) because till the defendant remains the owner of the motor cycle no. DL 3S CN 5220, the defendant has right to retain the RC and other documents of the motor cycle no. DL 3S CN 5220 and (b) because the grant of the said relief to the plaintiff, is even otherwise, exfacie hit by Section 41(h) of the Specific Relief Act, 1963. In regard to the latter reason, it is relevant to note that in order to obtain the RC and other documents of motor cycle no. DL 3S CN 5220, the plaintiff should have filed a suit for possession against the defendant as per Section 7 or 8 of the Specific Relief Act, 1963, after valuing the relief of possession for the purpose of courtfees as per Section 7(iv)(a) of the Courtfees Act, 1870.
7. Further, I find that the relief of permanent prohibitory injunction sought by the plaintiff can be granted by this Court because the unchallenged testimony of the plaintiff viz. PW1 Sh. Vinod Sadhu supported by the complaints dated 30.09.2017 and 18.10.2017, Ex.PW1/B (colly) establishes that the defendant had threatened to illegally interfere in the peaceful possession of the plaintiff qua the suit property.
8. Further, I find that the relief of recovery of 'damages' of Rs.2,50,000/ sought by the plaintiff cannot be granted by this Court because 'damages' are awarded by a Court, in cases of tortious liability or in case of a Civil Suit No.1298/17 Vinod Sadhu v Charan Singh Page no.5 of 6 breach of contract and not in a case like the present case, where the defendant/employee has embezzled the money given by the plaintiff/employer and failed to return a loan given by the plaintiff/employer.
9. Lastly, I find that on account of the residual prayer made in the plaint of this suit, this Court can grant the relief of recovery of Rs.2,50,000/ alongwith 6% per annum interest to the plaintiff (a) because the unchallenged testimony of the plaintiff viz. PW1 Sh. Vinod Sadhu supported by the bank statement, Ex.PW1/A establishes that the defendant had embezzled a sum of Rs.1,50,000/ from the plaintiff and failed to return the loan of Rs.1,00,000/ given by the plaintiff and (b) because Section 34 of CPC, 1908, authorizes this Court to grant pendentelite and future interest @6% per annum.
10. In view of the aforesaid findings, this suit is partly decreed in favour of the plaintiff and the against the defendant. The defendant is hereby restrained from illegally interfering in the peaceful possession of the plaintiff qua the suit property viz. House at B21, Pamposh Enclave, New Delhi. Also, the defendant is hereby directed to pay to the plaintiff, a sum of Rs.2,50,000/ alongwith pendentelite and future interest @6% per annum.
11. After preparation of the decree sheet by the Reader, the file shall be consigned to the record room. Digitally signed JAY by JAY THAREJA THAREJA Date: 2019.08.29 16:50:29 +0530 Announced in open Court (Jay Thareja) today on 29.08.2019 JSCC/ASCJ/GJ/SOUTHEAST DISTRICT, SAKET COURTS/Delhi Civil Suit No.1298/17 Vinod Sadhu v Charan Singh Page no.6 of 6