Delhi District Court
M.M. Enterprises vs . Ashu Khan on 30 October, 2021
M.M. Enterprises vs. Ashu Khan
Civil Suit No.: 99158/16
IN THE COURT OF MS. SONAM SINGH, CIVIL JUDGE 07,
CENTRAL DISTT., TIS HAZARI COURTS, DELHI
Civil Suit No.: 99158/16
CNR No. : DLCT03-001938-2014
Date of Institution: 23.08.2014
Date of Reserving the judgment: 18.10.2021
Date of Decision: 30.10.2021
M.M. Enterprises
Prop. Ajay Shrivastav
Plot No. 8, Shop No. 2
Swayam Siddha Colony
West Punjabi Bagh
New Delhi-110026
............ Plaintiff
-versus-
Ashu Khan
S/o Jahurdin Khan Saifi
Office: Shop No. 349/2 Main Road
Sant Nagar, Burari, Delhi-110084
Residence:
(i) H.No. 36A, Block-C, Vandana Vihar
Village Nangloi Jat, New Delhi-110041
(ii) H.No. C-2, Balaji Apartments
Burari, Delhi- 110084
............ Defendant
Suit for Recovery of Rs 30,500/- (Rupees Thirty Thousand Five Hundred Only)
Present: Sh. Om Saran Gupta, AR of plaintiff.
None for defendant.
JUDGMENT
1) The present suit is filed for decree against defendant and in favor of plaintiff for Rs 30,500/- along with interest @ 3% per month during pendency of suit till realization of the suit.
Averments in the plaint:
Page 1 of 12 (Sonam Singh)Civil Judge-07, Central, Delhi M.M. Enterprises vs. Ashu Khan Civil Suit No.: 99158/16
2) It is averred that defendant is dealing in sale and purchase of multi brand used cars, insurance & finance and came in contact with plaintiff when defendant through auction purchased under constructive total loss Honda Amaze on 21st October 2013 with registration no. DL4CNC8202 in claim no. C-230013056103 having policy no. 231120055760300001 which belonged to plaintiff in the name of company-
MM Enterprises. It is averred that since then defendant maintained friendly relationships with plaintiff and on occasions narrated the style of business of sale and purchase of multi brand used & new cars and represented for investment in business with assurance of high returns of profit. It is averred that believing it to be true, plaintiff on 19.12.2013 made investment of Rs 6,80,000/- in cash in a deal as required by defendant for two Swift Maruti Suzuki Cars, and defendant against this investment issued a cheque bearing no. 009410 dated 24.12.2013 for Rs 6,80,000/- in favor of plaintiff MM Enterprises drawn in Yes Bank Br. Kamla Nagar, New Delhi-110007. On 24.12.2014 defendant called the plaintiff for presenting the said cheque and assured it to make payment in cash within 2-3 days. On 26.12.2013 defendant returned payment of Rs 6,49,500/- against the said cheque through one Padam Dhivan @ Raju using Ph. 9910040863. It is further averred that on 26.12.2013 after receiving payment of Rs 6,49,500/-, a balance of Rs 30,500/- was left due to defendant out of principal amount of Rs 6,80,000/- plus the profit earned in deal. It is further averred that defendant had called plaintiff for payment and settlement on 27.01.2014 at his show room/office of the firm of A.S. Motors at 349/2 Main Road, Sant Nagar, Burari, Delhi-110084 and instead of giving payment, issued letter dated 27.01.2014 for balance amount of Rs 30,500/- against cheque bearing no. 009410 dated 24.12.2013 and the plaintiff at the same time returned the said cheque to defendant on assurance of defendant to return the balance amount of Rs 30,500/- within a week along with profit earned. It is further averred that even after waiting for a fortnight defendant neither made payment of balance amount of Rs 30,500/- not called plaintiff and this created doubt in mind about defendant. Thereafter, plaintiff tried contacting and approaching the defendant but he could not be found, and during this time plaintiff came to know that defendant has taken large amount from other persons in same style. It is further Page 2 of 12 (Sonam Singh) Civil Judge-07, Central, Delhi M.M. Enterprises vs. Ashu Khan Civil Suit No.: 99158/16 averred that plaintiff had also invested Rs 6,82,000/- in another company which also belonged to defendant in the name of A.S.R Sales & Services Pvt. Ltd. and defendant had also issued cheque bearing no. 133704 dated 26.11.2013 drawn on Yes Bank Br. Kamla Nagar, New Delhi-110007 at the time of making investment in deal of Mahindra Scorpio VLX on 26.11.2013, and case against the said cheque bearing no. 133704 for Rs 6,82,000/- is pending trial. It is further averred that despite all efforts of plaintiff, defendant could not be contacted and therefore plaintiff on 04.03.2014 got a legal notice issued to defendant for Rs 30,500/- along with interest at the rate of 3% per month along with profit as assured by defendant. However, defendant despite receiving the notice neither replied nor made payment and hence, the present suit.
Version of defendant:
3) In his Written Statement (WS), defendant has stated that plaintiff has furnished wrong, misleading information with malafide and ulterior motives and the suit is without any cause of action and is a counter blast to notice dated 04.03.2014 and suit for recovery filed by defendant against plaintiff for Rs 1,83,700/- It is further stated by defendant that there is no cause of action for filing the suit. It is further stated that defendant is indulged in business of sale, purchase, service and repair of vehicles and in November 2013, defendant had purchased a Scorpio for his client Sh. Anil Kumar Rana. R/o Ghaziabad, UP from Shiva Auto Car India Pvt. Ltd.
Lohia Nagar, Ghaziabad, UP and out of total sale consideration, said Anil Kumar Rana paid a sum of Rs 5,00,000/- vide DD No. 013286 and also paid road tax directly and on request of defendant, being familiar and acquaintance, plaintiff approached defendant for investment purposes earlier In order to earn profits, plaintiff made balance payment of Rs 6,34,000/- from his credit card in respect of aforesaid Scorpio Car. That though aforesaid payment was made by plaintiff as an investment in order to gain profits on sale of sale scorpio car, defendant had issued a cheque bearing no. 133704 dated 26.11.2013 drawn on Yes Bank amounting for Rs 6,82,000/- in favor of plaintiff in respect of refund of aforesaid invested money along with profit/commission of plaintiff. It is further stated that plaintiff called defendant and intimated that inadvertently the said cheque has been lost Page 3 of 12 (Sonam Singh) Civil Judge-07, Central, Delhi M.M. Enterprises vs. Ashu Khan Civil Suit No.: 99158/16 somewhere and requested defendant to issue a fresh cheque to plaintiff for his money and also assured defendant that plaintiff will not misuse the said cheque. That believing plaintiff, defendant issued a fresh cheque bearing no. 0009410 dated 24.12.2013 for Rs 6,80,000/- drawn on Yes Bank and also paid Rs 2,000/- to plaintiff in cash, and after issuing the cheque, plaintiff requested the defendant to get his car- Mahindra Thar insured and promised to make payment of insurance soon, and on the same day defendant got the car of plaintiff insured from ICICI Lombard and issued a cheque bearing no. 133719 for Rs 23,700/- from his account. It is further stated that on 26.12.2013 plaintiff approached the defendant and requested defendant that he is in need of Rs 6,50,000/- in cash urgently and has still not presented the said cheque dated 24.12.2013 and therefore requested defendant to pay Rs 6,50,000/- in cash in lieu of the cheque and when defendant asked plaintiff to pay for insurance and for cheque, plaintiff stated that he will adjust the same in balance payment of cheque and would return the cheque, and accordingly, defendant paid a sum of Rs 6,50,000/- in cash to plaintiff. It is further stated that defendant several times requested plaintiff to return the cheque and take his balance money of Rs 30,000/- and to pay insurance amount, however, plaintiff avoided the same, and on 13.01.2014 defendant got the stop payment of cheque bearing no. 009410 dated 24.12.2014 and also wrote a complaint to police. That on 27.01.2014 plaintiff had approached defendant and represented that he is in need of money and wishes to sell his Mahindra Thar bearing no. DL-12-CA-5232 and defendant agreed to purchase the car for Rs 4,50,000/- and on the same date paid a sum of Rs 1,83,700/- to plaintiff and promised to pay balance amount when plaintiff will deliver the possession of car. Thereafter, defendant on several occasions requested plaintiff to deliver the possession of Mahindra Thar and to return the cheques and to make payment for insurance, however plaintiff avoided the same and also threatened defendant. Thereafter, on 04.03.2014 defendant got a legal notice issued in respect of the deal of Mahindra Thar, demanding refund of Rs 1,83,700/- from plaintiff as earnest money, and being aggravated of the same, plaintiff malafidely presented the cheque bearing no. 133704 dated 26.11.2013.
Page 4 of 12 (Sonam Singh)Civil Judge-07, Central, Delhi M.M. Enterprises vs. Ashu Khan Civil Suit No.: 99158/16 Apart from this, defendant has denied the averments of plaint being false, frivolous illegal, ill motivated and contrary to facts and record.
Replication by plaintiff:
4) In the replication filed by plaintiff, contents of the written statement have been denied and it is stated that plaintiff never approached defendant on his own and defendant came in contact with plaintiff when he purchased Honda Amaze DL-4C-
NC-8202 which belonged to plaintiff in an auction. In first meeting, defendant represented to return plaintiff Honda Amaze DL-4C-NC-8202 in the prize purchased after earning profit from insurance claim and as such defendant after getting it repaired again got it insured in the name of plaintiff. It is further stated that on 26.12.2013 defendant returned payment of Rs 6,49,500/- to plaintiff through one Padam Dhivan @ Raju using ph 9910040863. Apart from this, plaintiff has reaffirmed and reiterated the contents of plaint.
5) On 18.03.2016, Sh. Ajay Srivastav was examined by the Ld. Predecessor Court under Order X of CPC wherein he stated that his wife is ill for last 2-3 years and therefore, he could not appear. He has further stated that he is the proprietor of M.M. Enterprises (plaintiff) and all the business transactions/business affairs are being looked after by his attorney namely- Sh. O.S. Gupta. He has further stated that he is putting signatures on documents, however all business transactions are being done by the said attorney and that he has never talked with defendant w.r.t any matter but has seen him. He has further stated that for last three years he is not going to his shop and not doing the business transactions in name of M.M. Enterprises.
Settlement of Issues:
6) From the pleadings of parties, following issues have been framed by the Ld. Predecessor of this Court vide order dt. 18.03.2016:
1. Whether the plaintiff is entitled for recovery of sum of Rs 30,500/-? OPP
2. Whether the plaintiff is entitled for pendentelite and future if affirmative, at what? OPP
3. Relief.Page 5 of 12 (Sonam Singh)
Civil Judge-07, Central, Delhi M.M. Enterprises vs. Ashu Khan Civil Suit No.: 99158/16 Plaintiff's evidence:
7) To prove its case, one behalf of plaintiff Sh. Om Sharan Gupta is examined as PW-
1 who tendered his evidence by way of affidavit which is Ex. PW1/A1. He has relied upon the following documents:
Ex. PW1/A Original document showing balance amount of Rs 30,500/- issued against cheque 009410 dated 27.01.2014 under signature of Ashu Khan.
Ex. PW1/B Notice dated 04.03.2014 (running into 3 pages) Ex. PW1/C Postal receipts Ex. PW1/D Courier receipts Mark X/1 Photocopy of cheque no. 009410 dated 24.12.2013 Mark X/2 Document of tracking of consignment Mark X/3 Document of HDFC Ergo General Insurance Co. Ltd. Mark X/4 Document of HDFC Ergo General Insurance Co. Ltd.
for insurance claim
Mark X/5 Document of ICICI Lombard
Mark X/6 Document of final report form (running 1 to 7)
PW-1 was cross examined and discharged on 24.04.2017 and on the same date plaintiff's evidence was closed.
Defendant's witness:
8) On behalf of defendant one witness: Sh. Ashu Khan was examined as DW-1 who tendered his evidence by way of affidavit Ex. DW1/A. He has relied upon the following documents:
Mark A Copy of insurance policy
Mark B Letter of stop payment
Mark C Complaint dated 13.01.2014
Mark D Receipt dated 27.01.2014
Mark E Legal notice dated 04.03.2014
Mark F Copy of suit filed by defendant against plaintiff
Page 6 of 12 (Sonam Singh)
Civil Judge-07, Central, Delhi
M.M. Enterprises vs. Ashu Khan
Civil Suit No.: 99158/16
Mark G Copy of reply dated 05.04.2014 to legal notice dated
24.03.2014
DW-1 was cross examined and discharged on 17.11.2017 and on the same date defendant's evidence was closed. On 11.05.18, application of plaintiff filed under Order XVIII Rule 17 read with Section 151 of CPC was allowed and on 07.07.2018 DW-1 was further cross-examined and discharged.
9) Final arguments have been advanced by the AR of plaintiff, however, as none appeared on behalf of defendant despite giving various opportunities, therefore, vide order dated 20.09.2021 the right of defendant to advance arguments was closed.
Findings:
Issue No.1: Whether the plaintiff is entitled for recovery of sum of Rs 30,500/-? OPP
10) On behalf of plaintiff, Sh. Om Saran Gupta has been examined as PW-1 who has tendered his evidence by way of affidavit which is Ex.PW1/A1 and he has relied upon the documents as mentioned in para no. (7) above. In his cross-examination, the witness has stated that he's a practicing advocate and also retainer of several companies and he was doing work of retainership of all transactions of plaintiff firm including financial and legal issues and doesn't have authority to enter into any business transaction on behalf of plaintiff firm. He has further stated that there was another power of attorney executed by plaintiff firm in his favour prior to SPA dated 03.11.2015, however, he's lost the same. The witness has stated that the present plaint has been signed by him as an attorney, however, not verified by him.
The witness has further stated that contents of para no. 1 to 4 of his affidavit are beyond pleadings. He has stated that the dealing qua vehicle Honda Amaze with defendant was done by plaintiff and not by him, however, the witness has denied the suggestion that he has no knowledge about the aforesaid deal and further stated that he had always been accompanying plaintiff and as such has full knowledge about the said deal. The witness also pointed out document Mark X/4 as pertaining to the said deal entered between parties through insurance company. The witness Page 7 of 12 (Sonam Singh) Civil Judge-07, Central, Delhi M.M. Enterprises vs. Ashu Khan Civil Suit No.: 99158/16 has stated that no deal of purchase of Honda Amaze was entered between parties. He has further stated that para no.6 of his affidavit are part of his replication. He has stated that at present M.M. Enterprises is not doing any business and business of plaintiff firm was closed in 2014 because of damages caused by defendant and further stated that plaintiff firm had never started dealing in sale/purchase of vehicles and in fact defendant was dealing therein and plaintiff had invested in said business w.e.f 26.11.2013. The witness has further stated that no written agreement was executed between parties at the time of aforesaid investment, however, a cheque dated 24.12.2013 was issued by defendant from the account of his proprietorship firm M/S A.S. Motors in favour plaintiff for amount of Rs 6,80,000/- It is further stated that the said transaction was the second deal between parties, and first deal was qua Mahindra Scorpio dated 26.11.2013 wherein plaintiff had invested approximately Rs 6,34,000/- with defendant and payment was made through credit card of plaintiff and against the first transaction, a cheque of Rs 6,82,000/- was issued by defendant in favour of plaintiff from the account of M/S ASR Sales and Services Pvt. Ltd. and defendant had assured plaintiff that as and when he will receive the payment from client, he would instruct the plaintiff for presentation of cheque. Apart from this, witness has denied all the suggestions of ld. Counsel for defendant.
In his cross-examination, DW-1 (defendant) has admitted his signature in Ex. PW1/A which is the original document showing balance amount of Rs 30,500/- issued against cheque no. 009410 dated 27.01.2014 under signature of defendant. The witness has stated that the said document is in handwriting of AR of plaintiff and one more receipt was exhibited and the same is Mark D and signed by AR stating himself to be proprietor of plaintiff. The witness has stated that cheque no. mentioned in Ex. PW1/A is of his firm namely A.S. Motors and that he is the proprietor of said A.S. Motors. The witness has further stated that he admits the liability if Rs 30,500/- as mentioned in Ex. PW1/A, however, the same is not in respect of cheque bearing no. 009410. The witness has further stated that he had issued a cheque bearing no. 133704 for Rs 6,82,000/- on 26.11.2013 and the same was stated to be lost and therefore, defendant issued a new cheque bearing no.
Page 8 of 12 (Sonam Singh)Civil Judge-07, Central, Delhi M.M. Enterprises vs. Ashu Khan Civil Suit No.: 99158/16 009410 amounting to Rs 6,80,000/- and paid Rs 2000/- in cash. The witness has further stated that he had paid Rs 6,50,000/- in cash to plaintiff and balance Rs 30,000/- was to be paid by him and there is no liability except for Rs 30,000/-. He has further stated that he doesn't remember if one of the currency notes of Rs 500/- was counterfeit out of Rs 6,50,000/- and therefore the balance amount remains as Rs 30,500/- which has been admitted in receipt Ex. PW1/A. The witness has further stated that the balance amount of Rs 30,500/- is related to other cheque bearing no. 133704 and he cannot tell without seeing the cheque from which account it has been issued and has further stated that he is the signing authority of both the cheques. The witness has further stated that he doesn't know if cheque bearing no. 133704 is from A.S. Motors or not, and cannot tell if the said cheque is of M/s ASR Sales & Services Pvt. Ltd. or not without seeing the same. Defendant has further denied the suggestion that he doesn't own liability of Rs 30,500/- to plaintiff. The witness has further stated that he is the Director as well as signing authority in M/s ASR Sales and Services Pvt. Ltd. In his further cross-examination, the attention of witness was drawn to the certified copy of cheque dated 26.11.2013 Ex. DW1/P1 and the defendant-witness has identified his signature on the said cheque bearing no. 133704 belonging to ASR Sales & Services Pvt. Ltd. and the witness has stated that the said cheque doesn't belong to the account of AS Motors (Proprietor Ashu Khan).
On perusal of evidence of parties, it transpires that the main contention of the defendant is that his liability for Rs 30,500/- is not against the cheque bearing no. 009410, rather the same is qua cheque no. 133704 which was issued in lieu of cheque no. 009410 as the same was stated to be lost by plaintiff. It is, however, admitted by defendant that he is the proprietor of A.S. Motors, and Director as well as signing authority in M/s ASR Sales & Services Pvt. Ltd. Perusal of evidence of defendant shows that he has relied upon various documents, however, they are not original documents, but photocopies and have been Marked- A to G. Per contra, plaintiff has relied upon receipt dated 27.01.2014 which is Ex. PW1/A bearing the signature of defendant for balance amount of Rs 30,500/- against cheque no. 009410 as on 27.01.2014. In his cross-examination, defendant has admitted his Page 9 of 12 (Sonam Singh) Civil Judge-07, Central, Delhi M.M. Enterprises vs. Ashu Khan Civil Suit No.: 99158/16 signature on this document, however, he has stated that one more receipt was exhibited and the same is Mark D. Perusal of this document shows that that it is signed in the name of Ajay qua receipt of payment of Rs 1,83,700/- against Thar no. 05231 on 27.01.2014 from defendant, however, defendant in order to establish this payment has neither examined the signatory of the receipt (that is-Ajay) nor examined the AR on this point during his cross-examination who he claims to have signed this document representing himself as proprietor of plaintiff. Thus in absence of proper proof the said document filed on behalf of defendant cannot be relied upon by the court. Further, in Ex. PW1/A not only the signature of defendant is present at point A, but the cheque no. 009410 against which Rs 30,500/- has been claimed is also mentioned at point B dated 27.01.2014. Furthermore, defendant has clearly stated in his cross-examination that the cheque no. mentioned in Ex. PW1/A belongs to his firm namely A.S. Motors of which he is the proprietor. On perusal of affidavit of defendant, it transpires that defendant has deposed that apart from two cheques mentioned above, he has also paid Rs 6,50,000/- and Rs 1,83,700/- to plaintiff, however, none of these payments made have been proved by defendant. Defendant has also not been able to show that the admitted liability of Rs 30,500/- is not in respect of cheque bearing no. 009410. Defendant has further denied the suggestion that he doesn't own liability of Rs 30,500/- to plaintiff in his cross-examination. Furthermore, it is also contended by defendant that cheque no. 009410 was issued in lieu of cheque no. 133704, however, in his cross-examination, defendant has stated that cheque no. 009410 is of his firm- A.S. Motors whereas during further cross-examination, defendant has stated that cheque no. 133704 belongs to ASR Sales & Services Pvt. Ltd. and the same is also mentioned in plaint as well as affidavit of PW-1 wherein it is also deposed that against cheque no. 133704 was issued qua investment in Mahindra Scorpio and the same is pending trial in Ld. MM Court. Thus, on one hand defendant has made various contentions in his written statement and affidavit, however, none of those have been proved by him and documents marked by defendant cannot be relied upon in absence of their proper proof, whereas, on the other hand, plaintiff has relied upon the (original) document which is Ex. PW1/A Page 10 of 12 (Sonam Singh) Civil Judge-07, Central, Delhi M.M. Enterprises vs. Ashu Khan Civil Suit No.: 99158/16 dated 27.01.2014 signed by defendant qua the amount claimed for Rs 30,500/- against cheque no. 009410 and the same has been explicitly admitted by defendant in his cross-examination. Accordingly, in view of the findings and discussion made above, issue no.1 is decided in favour of plaintiff and against defendant.
Issue No.2: Whether the plaintiff is entitled for pendentelite and future if affirmative, at what? OPP
11) Plaintiff has also claimed interest @ 3% per month during the pendency of suit till realisation of the amount. During final arguments, it was asked from the AR of plaintiff if there is/was any agreement between parties qua the interest claimed and the same was denied. Thus, in absence of anything agreed between the parties- oral and/or documentary, the court is of the view that interest @3% per month cannot be awarded being on the higher side, and interest at the rate of 9% per annum is considered reasonable and equitable in this case as also considering the prevailing market conditions, to be calculated on the principal sum of Rs 30,500/- from the date of filing of suit till its payment. Issue no. 2 is decided accordingly in favor of plaintiff and against defendant to the extent discussed herein.
Issue no. 3: Relief
12) In light of findings on the issues above, the present suit is hereby decreed with costs in favor of plaintiff and against defendant directing the defendant to pay an amount of Rs. 30,500/- along with simple interest @ 9% per annum to be calculated on the said amount from the date of filing of suit till the date of realization of said amount.
13) Decree sheet be prepared accordingly.
14) File be consigned to record room after due compliance.
Page 11 of 12 (Sonam Singh)Civil Judge-07, Central, Delhi M.M. Enterprises vs. Ashu Khan Civil Suit No.: 99158/16 Digitally signed SONAM bySINGH SONAM SINGH Date: 2021.10.30 16:56:44 +05'30' Pronounced in open court through VC: (Sonam Singh) Dated: 30.10.2021 Civil Judge-07, Central, Tis Hazari Courts, Delhi Note: This Judgment contains twelve pages and all the pages have been checked and signed by me.
SONAM Digitally signed by SONAM SINGH SINGH 16:57:20 +05'30' Date: 2021.10.30 (Sonam Singh) Civil Judge-07, Central, Tis Hazari Courts, Delhi Page 12 of 12 (Sonam Singh) Civil Judge-07, Central, Delhi