Delhi District Court
Prakash Vats vs Deceased Sh. Rajesh Kumarthrough Legal ... on 13 December, 2023
IN THE COURT OF Dr. KAMINI LAU: DISTRICT JUDGE
(COMMERCIAL COURT)02, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
CS (COMM.) No. 2171/2022
CNR No. DLCT010130422022
Sh. Prakash Vats
Proprietor of M/s Pooja Chain 'N' Jewels
Shop at Keshav Complex 1167/1094
IIIrd Floor, Shop No. 2, Kucha Mahajani
Chandni Chowk, Delhi110006.
......Plaintiff
Versus
1. Sh. Rajesh Kumar (since deceased)
Proprietor of M/s Chetan'z Jewellers
through Legal Heirs;
2. Smt. Nisha Verma (Wife)
3. Sh. Chetan Verma (Son)
4. Ms. Priya Verma (Daughter)
All R/o 407, IInd Floor
Shop No. 10, Fountain Chowk
Civil Lines, Ludhiana, Punjab141001
Also at : H. No. 482, Zero No. Gali, Janak Puri
Ludhiana141003
......Defendants
Date of filing of suit: 14.09.2022
Arguments concluded on: 13.12.2023
Date of Judgment: 13.12.2023
Present: Sh. Tarun Aggarwal and Ms. Nisha Sharma
Advocates for the plaintiff.
Ms. Kamlesh Uniyal Advocate for defendant.
Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors.
CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 1 of 42
TABLE OF CONTENTS
Sr. No. Title Page No.
1 Brief Facts/ Case of the Plaintiff 25
2 Case of the Defendants 57
3 Issues 8
4 Evidence & List of Documents 825
5 Findings & Observations 2541
6 Conclusion/ Relief 42
JUDGMENT:
(1) This is a Civil Suit filed by the plaintiff Prakash Vats against the defendants seeking recovery of a sum of Rs.20,97,886 only along with interest @ 24% per annum.
BRIEF FACTS:
Case of the Plaintiff:
(2) The plaintiff Prakash Vats is the Proprietor of M/s Pooja Chain 'N' Jewels which is engaged in the wholesale business of sale purchase of gold ornaments. The case of the plaintiff is as under:
➢ That M/s Chetan's Jewellers is the proprietorship concern under the proprietorship of Sh. Rajesh Kumar (expired on 05.08.2021) leaving behind his legal heirs i.e. defendant no. 2 to 4 who inherit all the movable and immovable assets as well as acquire the firm of late Rajesh Kumar and as such are jointly and severally liable for the liability of the deceased Rajesh Kumar.
Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 2 of 42 ➢ That Sh. Rajesh Kumar (since deceased) was doing retail business of sale purchase of gold ornaments who placed the verbal orders with the plaintiff to purchase the gold armaments and as per his requests/ orders, the plaintiff delivered the gold ornaments at the shop of defendant vide invoice no. PCJ/1920/085 dated 22.11.2019 amounting to Rs.13,98,591/ which was duly acknowledged by Sh. Rajesh Kumar.
➢ That in discharge of the above said debt and liabilities, Sh. Rajesh Kumar issued the cheque bearing no. 000500 dated 26.11.2019, amounting to Rs.13,98,591/ drawn at HDFC Bank Ltd., The Mall, LGF 1, First Mall, Ludhiana Branch, towards the payment of above mentioned invoice to the plaintiff, with the assurance that the cheque shall be honoured on its presentation.
➢ That the plaintiff presented the aforesaid cheque with his banker i.e. Corporation Bank, Vishwas Nagar, Shahadara Delhi Branch and the said cheque was dishonoured with the remarks "drawer's signatures differs" vide returning memo dated 27.11.2019. ➢ That the plaintiff duly informed the defendant about dishonouring of aforesaid cheque and Sh. Rajesh Kumar was also asked vide Legal Notice dated 02.12.2019 through registered post dated 03.12.2019 to make the payment despite which the defendant Rajesh Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 3 of 42 Sharma (since deceased) has failed to pay the cheque amount and not even replied.
➢ That the plaintiff filed the complaint under Section 138 N.I. Act against the defendant in respect of the dishonoured cheque under the title "Pooja Chain 'N' Jewels Vs. M/s Chetan's Jewellers" which was Disposed Off by the concerned court vide order dated 02.04.2022 due to sudden death of Sh. Rajesh Kumar.
➢ That since the defendant no. 2 to 4 i.e. legal heirs of the deceased Rajesh Kumar inherit and enjoying all the movable and immovable assets as well as acquire the business in the name and style of M/s Chetan's Jewellers of deceased Rajesh Kumar, as such they are jointly and severally liable to pay the liabilities of the deceased Rajesh Kumar.
➢ That the plaintiff duly informed the defendant no. 2 to 4 about the dishonoured cheque and liability of Sh. Rajesh Kumar and asked them vide Legal Notice dated 07.02.2022 sent through speed post dated 09.02.2022, to make the payment but despite the service of the said Legal Notice, the defendants failed to make the payments.
➢ That despite various requests and demands, the defendants have not cleared the outstanding amount and as such the defendants are jointly, personally and Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 4 of 42 severally liable to pay the amount of Rs.20,97,886/ (i.e. Rs.13,98,591/ towards principal amount + Rs.6,99,295/ towards interest @ 24% per annum w.e.f. 01.01.2020 to 31.01.2022) + interest @24% on the said amount till realization.
Case of the Defendants:
(3) Pursuant to the filing of the suit, summons were directed to be issued against the defendants by the Ld. Predecessor of this Court vide order dated 01.10.2022 pursuant to which the defendants appeared through counsel on 28.11.2022 and thereafter, filed the Written Statement on 30.01.2023 (amended written statement filed on 01.08.2023). The case of the defendants is as under:
➢ That the plaintiff is a sole proprietorship concern which is not a legal entity which can sue or be sued in its own name and hence the verification clause of the plaint is no verification in the eyes of law and hence the suit is not maintainable.
➢ That the suit of the plaintiff is not maintainable against the defendants as none of the defendants is the proprietor of the defendant no.1 Sh. Rajesh Kumar who was earlier the proprietor of M/s Chetan's Jewellers, had left the said shop prior to his death having suffered heavy losses in the business and shifted to Ludhiana, Punjab and the said shop is not in Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 5 of 42 possession of the defendants.
➢ That the plaintiff has no cause of action in its favour to file the present suit against the defendants and as such the present suit is liable to be rejected under the provisions of Order VII Rule 11 of CPC.
➢ That the plaintiff has concealed relevant and material facts from the court to the effect that it was the plaintiff who abets Sh. Rajesh Kumar to commit suicide and deprived present defendants of the company of Sh. Rajesh Kumar.
➢ That the defendants reserve their right to take appropriate legal action against Sh. Prakash Vats the proprietor of the plaintiff for abetting Sh. Rajesh Kumar to commit suicide.
➢ That the documents filed along with the plaint are forged, manipulated and fabricated documents and as such the suit of the plaintiff is not maintainable and liable to be dismissed.
➢ That the deceased Sh. Rajesh Kumar had not placed any verbal order for purchase of gold ornaments and the plaintiff had not supplied any gold ornaments at the shop of Sh. Rajesh Kumar vide Invoice No. PCJ/19 20/085 dated 22.11.2019 amounting to Rs.13,98,591/ nor the same was acknowledged by Sh. Rajesh Kumar. ➢ That the invoice filed by the plaintiff does not bear the signatures of Sh. Rajesh Kumar and it seems that the said invoice has been manipulated, forged and Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 6 of 42 fabricated by the plaintiff.
➢ That had any such material been purchased by Sh.
Rajesh Kumar the said material would have been there in the shop in question but there was nothing in the shop when Sh. Rajesh Kumar left the shop in question. ➢ That the cheque in question was not issued by the Sh.
Rajesh Kumar against any liability and as such there is no question of giving any assurance by Sh. Rajesh Kumar and that is why Sh. Rajesh Kumar would have thought fit not to reply the legal notice. ➢ That the said cheque might have been obtained by the plaintiff or anyone else from Sh. Rajesh Kumar or had been stolen from the shop and got the same converted into a document showing liability of the alleged amount against Sh. Rajesh Kumar, which is clear from writing appearing on the cheque in question. ➢ That the present defendants are neither jointly nor severally liable to pay any amount to the plaintiff since defendant no. 2 is house wife; defendant no. 3 is doing private job and with great difficulty is meeting both ends meet and maintaining himself and his mother whereas the defendant no. 4 is the daughter of late Sh. Rajesh Kumar living in her maternal house. ➢ That the notice dated 07.02.2022 was never served upon the defendants.
➢ That the present defendants are not liable to pay any amount to the plaintiff.
Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 7 of 42 ISSUES:
(4) On the basis of the pleadings of the parties, vide order dated 215.09.2023 the following issues were settled by this Court:
1. Whether there is no cause of action in favour of the plaintiff for filing the present suit against the present defendants, as alleged by the defendants in Written Statement (Para 3) ? (OPD)
2. Whether the plaintiff is entitled to recovery of the principal amount, as asked for in the plaint? (OPP)
3. In case if issue no.2 is decided in affirmative, whether the plaintiff is entitled for any interest, as asked for in the plaint ? (OPP)
4. Relief.
EVIDENCE & LIST OF DOCUMENTS:
(5) Here, I may note that vide vide order dated 12.10.2023, the Case Management Hearing Schedule was prepared and the Court Commissioner was appointed by this Court for recording the evidence of both the parties i.e. plaintiff as well as the defendant.
(6) The plaintiff Prakash Vats has examined himself as his sole witness as PW1 whereas the defendants have examined two witnesses namely Chetan Verma (DW1) and Arjun (DW2).
Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 8 of 42 (7) Before coming to the testimony of witnesses, the documents relied upon them are hereby put in a tabulated form as under:
List of documents:
Sr. Exhibit No. Details of documents Document No. relied upon by Plaintiff's Witness 1 Ex.PW1/1 Certified copy of complaint, PW1 Prakash (Colly. 19 pages) affidavit, order sheet and list of Vats documents.
2 Ex.PW1/2 & Original cheque and dishonour
Ex.PW1/3 memo
3 Ex.PW1/4 Legal Notice dated 02.12.2019
4 Ex.PW1/5 & Original postal receipts
Ex.PW1/6
5 Ex.PW1/7 & Return envelopes
Ex.PW1/8
6 Ex.PW1/9 Original invoice
7 Ex.PW1/10 Bank statement
8 Ex.PW1/11 Registration of GST
9 Ex.PW1/12 Copy of toll plaza receipts
(Colly. 2 pages)
10 Ex.PW1/13 Legal notice dated 07.02.2022
11 Ex.PW1/14 to Postal receipts
Ex.PW1/17
Defendant's evidence:
12 Ex.DW1/1 Authorization Letter dated DW1 Chetan
04.05.2023 Verma
(8) Now coming to the testimony of witnesses examined
by both the parties, which is put in a tabulated form as under:
Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors.
CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 9 of 42 Sl. Detail of Deposition No. the Witness Plaintiff's Evidence: 1. Prakash PW1 Prakash Vats is the plaintiff himself who in his
Vats (PW1) examinationinchief by way of affidavit Ex.PW1/A has corroborated what has been earlier stated in the main plaint in toto. He has placed his reliance on the following documents:
1. Certified copy of complaint, affidavit, order sheet and list of document which is PW1/1 (Colly. 19 pages)
2. Original cheque and dishonour memo which is Ex.PW1/2 & Ex.PW1/3
3. Legal Notice dated 02.12.2019 which is PW1/4
4. Original postal receipts which is PW1/5 & PW1/6
5. Return envelopes which is PW1/7 & PW1/8
6. Original invoice which is PW1/9
7. Bank statement which is PW1/10
8. Registration of GST which is PW1/11
9. Copy of toll plaza reciepts which is PW1/12 (Colly. 2 pages)
10. Legal notice dated 07.02.2022 which is PW1/13.
11. Postal receipts which is PW1/14 to PW1/17.
In his crossexamination on behalf of the defendants, the witness has deposed as under: ➢ That the cheque in question was handed over to him at the shop of defendant but he does not remember the exact address of the shop however it was situated in Sharafa Bazar, Ludhiana.
➢ That on 23.11.2019 at about 6 PM, the cheque was handed over to him by late Sh. Rajesh Kumar and at that time his brother Ravi Vats and one staff member of Rajesh Kumar were present, however he cannot tell if the name of the said staff member was Arjun.
➢ That when he reached the shop, Rajesh Kumar offered him tea and snacks; he handed over goods to Rajesh Kumar and bill and after verifying the goods, Rajesh Kumar acknowledged the second copy of the bill and Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 10 of 42 handed over the cheque of the bill amount. ➢ That it is wrong that he (witness) and his brother made Rajesh Kumar to consume excessive alcohol so as to make him inebriated and senseless to thereafter, forcibly took the cheque in question from deceased Rajesh Kumar.
➢ That it is wrong to suggest that Rajesh Kumar did not voluntarily hand over the cheque to him.
➢ That it is wrong that the said staff of the deceased Rajesh Kumar brought the alcohol and in his presence Rajesh Kumar was made to consume alcohol against his wishes.
➢ That is is wrong that they forcibly obtained acknowledgement from the deceased Rajesh Kumar.
➢ That generally they received the purchase/work order verbally/Telephonically.
➢ That the work order was placed by their customer before them.
➢ That it is wrong that the work order was placed before them in writing.
➢ That it is wrong that no verbal purchase order was placed to them by Deceased Sh. Raiesh Kumar.
➢ That it is wrong that he did not deliver any goods as per exhibit PW1/9 to Deceased Sh. Rajesh Kumar on 23.11.2019 as Deceased Sh. Rajesh Kumar did not place any verbal order to him.
➢ That it is wrong that signatures at point A over Ex.PW1/9 is forged one.
➢ That it is wrong that Deceased Sh. Rajesh Kumar had no liability to pay any amount to him.
➢ That it is wrong that Deceased Sh. Rajesh Kumar never gave any assurance to encash the Ex.PW1/2.
➢ That he had heard that Deceased Sh. Rajesh Kumar committed suicide.
➢ That before committing suicide by Deceased Sh. Rajesh Kumar, their mediation talks were going on at mediation center Karkardooma Court, Delhi, through Video conferencing.
Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 11 of 42 ➢ That it is wrong that he pressurized and threatened Deceased Sh. Rajesh Kumar during mediation talks through video conferencing to return his money otherwise he (witness) will implicate him (Rajesh Kumar) in false case. ➢ That it wrong that he again threatened Deceased Sh. Rajesh Kumar telephonically to face dire consequences due to which reason Deceased Sh. Rajesh Kumar committed suicide. ➢ That deceased Sh. Rajesh Kumar had no personal relation with him, however he had relation with his brother Sh. Ravi Vats. ➢ That they had visiting terms in the family function of Deceased Sh. Rajesh Kumar like marriage etc. and has voluntarily explained that he along with his brother Sh. Ravi Vats attended one marriage function in Deceased Sh. Rajesh Kumar family.
➢ That he is not aware of the current status of firm M/s. Chetan Z Jewellers and has voluntarily explained that Chetan is still doing jewellery business but he is not sure whether chetan is doing business under the name and style M/s Chetan Z jewellers as he has no business dealing with him.
➢ That it is wrong that after death of Sh. Rajesh Kumar all the legal heirs not inherited all the moveable and immovable assets of Late Sh. Rajesh Kumar.
➢ That Smt. Priya Verma (daughter of Deceased Sh. Rajesh Kumar) is married long back.
➢ That it is wrong that all the legal heirs of Late Sh. Rajesh Kumar are not liable to pay any amount.
➢ That his last visit to Sh. Rajesh was on 23.11.2019.
➢ That it is wrong that on 23.11.2019 no goods were delivered to Late Sh. Rajesh Kumar. ➢ That he has no knowledge whether the firm being run by Deceased Sh. Rajesh has become defunct and his house is lying mortgage with financer/Bank.
Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 12 of 42 Defendant's evidence:
2. Chetan DW1 Chetan Verma is the defendant no.3 who in his Verma examination in chief by way of affidavit has (DW1) corroborated what the defendants have stated in their written statement. He has placed his reliance upon an Authorization Letter dated 04.05.2023 which is Ex.DW1/1. The witness has also relied upon the Bank Statement qua Mortgage which was de exhibited not being filed in original along with Written Statement.
In his crossexamination by the Ld. Counsel for the plaintiff, the witness has deposed as under:
➢ That he had studied upto 10" standard and is doing business of sale and purchase of Silver. ➢ That he does not run his business by any name. ➢ That the premises i.e. 484, Janakpuri. Gali No. Zero, Ludhiana, Punjab, 90 sq. yards i.e. in which he and his family members are residing, is in the name of his father, by virtue of registered sale deed.
➢ That this premises is constructed upto 3rd storey and is an ancestral property.
➢ That his father had a four wheeler i.e. a car. Baleno (number of which he is not aware) and one two wheeler.
➢ That the Baleno brand new car was purchased by his father in the year 20182019 which was sold out by him and his family and they received only Rs. 1.5 Lakhs after adjustment of the Loan amount after the death of his father. ➢ That the Activa Scooter is being used by them. ➢ That his father had no immovable property except the premises bearing No.484, Janakpuri, Gali No. zero, Ludhiana, Punjab.
➢ That he is not aware of the Loan amount which his father took against the above said property. ➢ That he is not aware of the amount of Loan which was outstanding after the death of his father.
➢ That his father did not own any shop, he had two shops which were on rent and the tenancy of one rented shop is very old.
➢ That he is not aware whether his father was income tax assessee.
Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 13 of 42 ➢ That his father he was running his business of goldsmith from the shop bearing No. Sarafa Bazar, 1st Floor, Ludhiana, Punjab by the name and style of "M/s Chetan Jewelers. ➢ That his father used to bear the household expenses towards his family consisting of himself (witness) and his mother. ➢ That prior to death of his father he was unemployed.
➢ That his mother is a homemaker.
➢ That his father was the only sole bread earner of his family.
➢ That he is not aware the household expenses of his family during life of his father. ➢ That the Car Loan was not "insured". ➢ That after death of his father, he himself, his mother and sister inherited the premises as mentioned herein above.
➢ That he knew Prakash Vats as he attended marriage function of his sister which took place in the year 2016.
➢ That Prakash Vats had stayed back for three days for attending marriage functions and his father told him that Prakash Vats is his friend. ➢ That he is not aware whether Prakash Vats and his father had any business relation/ transactions.
➢ That his father had an LIC Policy but it was lapsed for not paying some premium. ➢ That there was no other policy in the name of his father.
➢ That he is not aware of the amount for which his father was insured.
➢ That he is not aware as to how many Bank accounts his father would maintain, the names of the banks and branch as well.
➢ That after the death of his father, he and his family did not get any documents pertaining to the bank accounts.
➢ That he is not aware the business turnover which his father had during his lifetime. ➢ That he is earning about Rs.25,00030,000 per month.
➢ That in a month he purchased silver amounting to Rs. 1.52.0 Lakhs and sell the same on higher amount.
Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 14 of 42 ➢ That he run his business on approval basis in which no money is required in advance and he simply go to shopkeepers, take prepared ornaments from them, sell them and the difference purchase and sale is my profit. ➢ That he is bearing his family entire household expenses which is approximately Rs.12,000 13,000 per month.
➢ That his married sister does not shoulder any expenses of his family.
➢ That none else, expect him is bearing his family household expenses, however, sometimes his maternal uncle helps them.
➢ That he is not aware as to from how many persons his father was to get his money. ➢ That it wrong that he is deliberately and intentionally concealing bank account details which his father had during his lifetime or the amount he was to get from his business acquaintances or the financial strength he had. ➢ That he is not aware if his father used to run his business on credit basis or in cash basis. ➢ That the alleged signatures of his father at point A on Ex.PW1/2 are denied.
➢ That the address mentioned at point A on Ex.PW1/4 and Ex.PW1/13 is the correct address of his father's shop.
➢ That the address mentioned on Ex.PW1/9 at point B is the correct address of his father's shop, however, he cannot admit or deny that GST number mentioned at point C on Ex.PW1/9 is of his father firm or not. ➢ That the alleged signatures of his father on Ex.PW1/9 at Point A are denied.
➢ That Ex.PW1/13 was received to him and his family as well.
➢ That neither he nor his family members replied to this notice.
➢ That Sh. Prakash Vats had instituted a case against his father for dishonor of a cheque. ➢ That he is not aware of anything relating to Ex.PW1/1.
➢ That he is not aware that his father took bail in this matter or his father offered for a settlement by way of Mediation.
Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 15 of 42 ➢ That he is not aware as to when his father surrendered the GST Number belonging to him. ➢ That he is not aware as to for which amount his father used to pay bank installments. ➢ That he is not aware as to by which mode his father used to place purchase orders before the shopkeepers from whom he used to purchase ornaments/gold.
➢ That he is also not aware any business dealings between Plaintiff, his brother and his father however he knew that his father and Prakash Vats and Ravi Vats were friends.
➢ That he is not aware if his father was maintaining account books, profits and loss A/c, Trading A/c, Balance Sheet, Cash Register and Stock Register qua the business he was running prior to his death.
➢ That he did not tell to his counsel regarding above said facts.
➢ That the affidavit of evidence which is Ex.DW1/A was prepared on his instruction by his counsel.
➢ That it is wrong that he narrated false and frivolous story in Paras No.3, 4, 5 & 6 of his affidavit which is Ex.DWI/A. ➢ That CCTV cameras were installed in his father's shop for the purpose of recording the activities/ happenings in the shop of his father.
➢ That a boy namely Arjun was the only person serving with his father.
➢ That he is not aware whether any accountant was working with his father.
➢ That he cannot admit or deny whether accountant was working with his father or not. ➢ That his father was an occasional drinker. ➢ That he is not aware whether his father issued any cheque in November, 2019.
➢ That he does not have any document which shows that Arjun was working with his father. ➢ That it wrong that Arjun was not working with his father or he has fabricated a false story qua Arjun being working with his father. ➢ That his father did not tell him that he had any kind of jhagda/ quarrel in November, 2019 at shop, though Arjun told him about jhagda at Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 16 of 42 shop in November, 2019.
➢ That his father was present at that time when Arjun narrated to him about above said jhagda.
➢ That Rajesh Kumar did not tell him and his family about any jhagda as narrated by Arjun. ➢ That neither he nor his other family members nor his father made any complaint to police authority in connection of the above said jhagda as disclosed by Arjun to them since his father told them that he did not want to lodge any complaint on account of very good relations he had with the persons involved. ➢ That it is wrong to that no such jhagda took place as alleged by him in his affidavit with regard to the plaintiff and his father and for this reason no complaint was made by them. ➢ That he correctly stated in para No.7 of his affidavit Ex.DW1/A that no notice was received by defendants.
➢ That he is referring to the notice which was received by his father during his lifetime "...jo jamanat wala tha...".
➢ That he had got signed and submitted his written statement after having understood the contents of the same.
➢ That he admits that whatever mentioned in para 10 of written statement relating to non receiving of legal notice dated 07.02.2022 is incorrect.
➢ That he is not aware what date of legal notice mentioned in this para by his counsel. ➢ That he was under impression that the said legal notice was prior to death of his father and hence, it has been mentioned in Ex.DW1/P1 at point B that legal notice dated 07.02.2022. ➢ That after seeing Ex.DW1/P1, the witness has explained that the line mentioned at point B about denial of legal notice dated 07.02.2022 was written under the impression that the said legal notice was prior to death of his father. ➢ That he cannot say whether he signed and filed Ex.DW1P1 (i.e. Affidavit of Admission/Denial of documents of plaintiff) was prepared after seen the documents or not as he does not understand English as he is only 10th Pass.
Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 17 of 42 ➢ That he signed Ex.DW1/P1 after contents of the same being explained by his counsel in his vernacular language.
➢ That he not aware of the entire proceedings of Mediation Cell qua the litigation between his father and the plaintiff U/s 138 of NI Act. ➢ That he has not made any complaint against anyone for provoking his father to commit suicide.
➢ That it is wrong that Ex.PW1/2 and Ex.PW1/9 bear signatures of his father at point A. ➢ That it is also wrong that he and his family are liable to repay the debts of his father for the reason that they have inherited the assets left behind by him.
➢ That it is wrong that he is not authorized to make statement on behalf of his mother and sister or an authority letter being filed is forged and fabricated.
➢ That it is wrong that he has filed a wrong affidavit qua admission/denial or he has filed an incorrect affidavit in the court.
3. Arjun DW12Arjun is the alleged employee of the deceased (DW2) Rajesh Kumar who in his examination in chief by way of affidavit Ex.DW2/A has deposed on the following aspects:
1. That he was employed as a servant at the shop of Late Rajesh Kumar at Shop Bearing No.2, First Floor, Sarafa Bazar, Ludhiana, Punjab.
2. That the plaintiff and his brother namely Ravi were frequent visitors at the shop of Late Rajesh Kumar due to which reason he is well conversant with the happenings which took place between the plaintiff and Late Rajesh Kumar.
3. That he worked with Late Rajesh Kumar at his jewelery shop for a period of 6 years at a monthly salary of Rs.12,000/.
4. That he used to keep the keys of the shop with him and used to open and close the shop everyday and after the death of Rajesh Kumar he had left the shop since the family members of Rajesh Kumar closed the shop.
5. That on 23.11.2029 while he was present at the shop at about 55:30 PM the plaintiff and Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors.
CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 18 of 42 his brother Ravi reached the shop .
6. That both the brothers were already drunk and after some exchange of greetings, Prakash Vats told Rajesh Kumar to get a bottle of liquor.
7. That Late Rajesh Kumar ordered him (witness) to bring a bottle of liquor and some snacks etc. pursuant to which he brought the same.
8. That Late Rajesh Kumar showed his unwillingness to drink on the premise that his health was not allowing the same, yet both the brothers pressurized him to drink.
9. That both the brothers purposely make Late Rajesh Kumar to drink excessive liquor and even another bottle of liquor was brought by him (witness) on the asking of Prakash Vats and an amount of Rs.1000/ was given to him by Prakash Vats for buying the bottle.
10. That after some time Prakash Vats and Ravi started talking in a very high tone and misbehaved with Rajesh Kumar and asked Rajesh Kumar to give a cheque on which Rajesh Kumar denied outrightly stating that "... Jab meri taraf kuch nikalta hi nahi hai to main cheque kyu du,,,".
11. That on this Prakash Vats caught hold Rajesh Kumar with his collar and thrashed him by stating "....cheque to tujhe dena hi padega nahi to jaan se hath dhona padega...".
12. That Rajesh Kumar was not in his senses due to excess liquor and in the meanwhile Prakash Vats snatched the chequebook from Late Rajesh Kumar for forcibly made him to sign.
13. That Rajesh Kumar did not sign the cheque of his own but he was made to sign it and his hand was shaking because of the liquor and fear and no other document was signed by Late Rajesh Kumar.
14. That Prakash Vats and Ravi hurriedly left the shop at about 11:45 and 12:00 PM after which he (witness) brought Rajesh Kumar to his home and narrated the incident to the family members of Rajesh Kumar.
15. That Rajesh Kumar did not attend the shop for about a period of one week.
Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 19 of 42 In his crossexamination by the Ld. Counsel for the plaintiff, the witness has deposed on the following aspects:
➢ That he had studied upto 12th standard. ➢ That he knew deceased Rajesh Kumar for a period of about 10 years.
➢ That his father used to work with Rajesh Kumar as a Plumber therefore, they had good terms with deceased Sh. Rajesh Kumar. ➢ That he worked with deceased Rajesh Kumar at M/s Chetan Jewellers, Sarafa Bazar, 1st Floor. Ludhiana. Punjab for 6 years i.e. from 2013 to 2021.
➢ That during his tenure, no one else worked as servant/ helper with deceased Rajesh Kumar. ➢ That he does not have any appointment letter/ document qua his employment with Rajesh Kumar as he worked with Rajesh Kumar (main chaipani lane ka kaam karta tha). ➢ That he used to get his salary @ Rs.12,000/ per month since 2013 to 2021.
➢ That Chetan Verma asked him to come to the court to give his evidence in this case. ➢ That he has come, first time in order to depose before court, at Delhi.
➢ That he can read and write English. ➢ That this is his 2nd visit to Tis Hazari Court, and prior to that he had visited Tis Hazari Courts about a week ago.
➢ That he knew Prakash Vats and met him about 45 times as Prakash Vats used to visit at shop, frequently.
➢ That Prakash Vats used to visit to deliver the prepared ornaments on the order of Rajesh Kumar.
➢ That he is not aware whether Rajesh Kumar used to give purchase order verbally, in writing, on telephonically and by visiting personally at Plaintiff's shop.
➢ That his duty hours were 10 AM to 8 PM and Sunday used to be an off for him.
➢ That CCTV camera's used to record the activities of the shop of the Rajesh Kumar. ➢ That he knew all the visitors of Rajesh Kumar, who used to come at the shop of Rajesh Kumar Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 20 of 42 for different works.
➢ That he is not known to the creditors and debtors who used to come at the shop of Rajesh Kumar.
➢ That he is not aware as to from how many persons Rajesh Kumar were to take money and also not aware as to whom, Rajesh Kumar was to pay money.
➢ That the shop of Rajesh Kumar was situated in a busy market, however, only 2 shops were running where shop of the Rajesh Kumar was situated.
➢ That Rajesh Kumar did not consume alcohol. ➢ That in case, any altercation would take place in the shop of Rajesh Kumar, it would certainly be recorded by CCTV camera's installed therein, public would not come to know about it.
➢ That he does not remember on which dates in the month of November 2019 "Sunday" fell. ➢ That he remained at his home on four Sundays and besides it he may have been stayed at his home for twothree days in view of the festivals i.e. Diwali and Chhath Puja.
➢ That the electricity reading was recorded on 10 November, 2019.
➢ That he is not aware how many Bank Accounts were maintained by Deceased Rajesh Kumar. ➢ That he is not aware how many Banks deceased Rajesh Kumar took loan.
➢ That he is not aware whether deceased Rajesh Kumar had applied loan from the Banks. ➢ That he is not aware how much stock was lying in the shop and how much sale in the shop per day.
➢ That he is not aware whether deceased Rajesh Kumar used to sale and purchase goods on credit basis or cash.
➢ That sometimes deceased Rajesh Kumar and Accountant Ravi Kumar used to go Bank to deposit and withdraw cash from the Bank. ➢ That the Accountant who used to work for Rajesh Kumar, used to visit his shop once or twice in a month as far as Chetan Verma i.e. son of the deceased Rajesh Kumar and Sunil Verma i.e. younger brother of deceased Rajesh Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 21 of 42 Kumar are concerned, they used to visit occasionally for the purpose of delivering lunch.
➢ That the family of Rajesh Kumar consists of Rajesh Kumar, his wife Nisha Verma, his daughter Priya Verma, his son Chetan Verma, his brother Sunil Verma and Sunil Verma's wife, whose name he is not aware.
➢ That he is not aware how many cars, two wheelers maintained by deceased Rajesh Kumar.
➢ That he is not aware whether the residential property is in the name of deceased Sh. Rajesh Kumar or not.
➢ That he did not consume liquor and is also not aware how many liquor shops in Sarafa Bazar were in existence.
➢ That he used to sit inside the shop and observed all the activities in the shop. ➢ That he is not aware as to how many FIRs are pending against deceased Rajesh Kumar. ➢ That in his presence Sh. Sachin and few other persons used to visit at shop for the purpose of taking their amounts.
➢ That he is not aware whether deceased Rajesh Kumar died due to heavy debts.
➢ That he cannot tell the day and date in November 2019 when Plaintiff Prakash Vats visited shop of the deceased Rajesh Kumar but it was November 2019.
➢ That he also does not remember how many persons visited on the day on which Prakash Vats had visited the shop of deceased Rajesh Kumar in November, 2019.
➢ That he is not aware the date when Prakash Vats and Ravi Vats visited deceased Rajesh Kumar shop in November, 2019.
➢ That nobody told him about it and it is within his personal knowledge.
➢ That he did not disclose the date to the counsel who prepared his Affidavit when Ravi Vats and Prakash Vats came to deceased Rajesh Kumar in November, 2019.
➢ That in the month of November, 2019, Prakash Vats and Ravi Vats visited the shop of Rajesh Kumar, only once.
Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 22 of 42 ➢ That when Prakash Vats and Ravi Vats came at the shop only him, Rajesh Kumar, Prakash Vats and Ravi vats were present there even during the entire stay of Prakash Vats and Ravi Vats.
➢ That the entire happenings which took place in the shop were recorded through the cameras which were installed in the shop. ➢ That Prakash Vats and Ravi Vats stayed back there in the shop for the period of 45 hours. ➢ That manhandling took place between Rajesh Kumar and Prakash Vats and at that time he could not do anything.
➢ That Prakash Vats caught the collar of Rajesh Kumar and his arm as well, meanwhile, Ravi Vats intervened and tried to pacify them. ➢ That they they all were sitting in the shop, one shutter of the shop was opened and glass door was locked from inside.
➢ That when he went to take water and tea snacks, he was not aware what transaction took place in between Rajesh Kumar and Prakash Vats.
➢ That he can identify the signatures of deceased Rajesh Kumar who used to sign in his presence.
➢ That Ex.PW1/2 bear signature of Late Sh. Rajesh Kumar.
➢ That he is not aware if any party would take signatures of Rajesh Kumar on bills while delivering the goods to deceased Rajesh Kumar.
➢ That he is not aware if deceased Rajesh Kumar was Income Tax Payee or not.
➢ That he is not aware of the day, prior to November 2019, when Prakash Vats visited the shop of Rajesh Kumar.
➢ That he cannot tell as to how many times Prakash Vats and Rajesh Kumar consumed liquor, however they used to drink. ➢ That he did not obtain cash memo regarding purchase of liquor in November, 2019. ➢ that he is not aware about the transactions of sale and purchase done between Rajesh Kumar and Prakash Vats.
Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 23 of 42 ➢ That after heart attack, Rajesh Kumar was advised by the Doctor not to consume liquor, even then, Rajesh Kumar would drink occasionally with his friends and relatives. ➢ That it is wrong that no manhandling took place in his presence in the shop of Rajesh Kumar between Rajesh Kumar and Prakash Vats in the month of November, 2019. ➢ That Sh. Rajesh Kumar declined to take liquor however, on the insistence of Prakash Vats, he became agreeable to take liquor.
➢ That no physical force was applied by Prakash Vats and by his brother to consume liquor on Rajesh Kumar.
➢ That no serious altercations/manhandling took place in between Prakash Vats and Rajesh Kumar warranting calling of police. ➢ That it is wrong that Prakash Vats did not get signatures of Late Rajesh Kumar on a paper forcibly.
➢ That Prakash Vats caught hold of the collar and hand of Rajesh Kumar and made him sign on cheque only.
➢ That Prakash Vats forcibly caught hold the collar of Rajesh Kumar and threatened to take out a cheque from the drawer.
➢ That Rajesh Kumar took out a cheque book which contained only one leaf, same being an old one.
➢ That Prakash Vats and Ravi Vats did not carry any weapons with them.
➢ That it is wrong that the contents of paras No. 2 & 3 of his affidavit are incorrect.
➢ That he is not aware how much amount of gold ornaments and cash were lying in the shop in the month of November, 2019 when Prakash Vats and Ravi Vats visited the shop of deceased Rajesh Kumar, though some amount of Gold was lying there but he cannot tell the weight. ➢ That Rajesh Kumar was maintaining car but he cannot tell the number and make of the said car.
➢ That he had told the family members of Rajesh Kumar regarding the incident of manhandling which took place between Rajesh Kumar and Prakash Vats.
Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 24 of 42 ➢ That before death of late Rajesh Kumar, he (witness) used to open the shop and had gold ornaments in the shop.
➢ That after November, 2019, after the incident, Rajesh Kumar did not open the shop himself for a period of 710 days, during this period, Rajesh Kumar did not open the shop and only he (witness) used to open the shop, the keys of the valuable only with the Rajesh Kumar. ➢ That when he narrated the entire incident to the family of Late Rajesh Kumar, they did not react.
➢ That after the death of Rajesh Kumar, I handed over the keys of the shop to his wife Smt. Nisha Verma and thereafter, never visited the shop. ➢ That he is not aware as to who took the goods, gold ornaments which were lying in the shop after the death of Rajesh Kumar.
➢ That he did not file any proof with regard to his identity that he is Arjun.
FINDINGS AND OBSERVATIONS:
(9) I have heard the arguments advanced before me by the Ld. Counsel for the plaintiff and considered the oral arguments along with written memorandum of arguments filed on behalf of the plaintiff. My findings on the various issues are as under: Issue No. 1: Whether there is no cause of action in favour of the plaintiff for filing the present suit against the present defendants, as alleged by the defendants in Written Statement (Para 3)? (OPD) Issue No.2: Whether the plaintiff is entitled to recovery of the principal amount, as asked for in the plaint?
(OPP) Issue No.3: In case if issue no.2 is decided in affirmative, whether the plaintiff is entitled for any interest, as asked for in the plaint? (OPP) Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 25 of 42 (10) All the above issues are clubbed together for sake of convenience involving common discussion. Onus of proving issues no.1 was upon the defendants and onus of proving the issue no. 2 and 3 was upon the plaintiff. (11) The case of the plaintiff Prakash Vats is that he is the Proprietor of M/s Pooja Chain 'N' Jewels which is engaged in the wholesale business of sale purchase of gold ornaments.
According to the plaintiff, the defendant Rajesh Kumar (since deceased) was the Proprietor of M/s Chetan's Jewellers and was doing retail business of sale purchase of gold ornaments who placed the verbal orders with the plaintiff to purchase the gold armaments and as per his requests/ orders, the plaintiff delivered the gold ornaments at the shop of defendant vide invoice no. PCJ/1920/085 dated 22.11.2019 amounting to Rs.13,98,591/ which was duly acknowledged by Sh. Rajesh Kumar. The case of the plaintiff is that in discharge of the above said debt and liabilities, Sh. Rajesh Kumar issued the cheque bearing no. 000500 dated 26.11.2019, amounting to Rs.13,98,591/ drawn at HDFC Bank Ltd., The Mall, LGF 1, First Mall, Ludhiana Branch, towards the payment of above mentioned invoice to the plaintiff, with the assurance that the cheque shall be honoured on its presentation. However, when the plaintiff presented the aforesaid cheque with his banker i.e. Corporation Bank, Vishwas Nagar, Shahadara Delhi Branch, the said cheque was dishonoured with the remarks "drawer's signatures differs"
vide returning memo dated 27.11.2019. According to the Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 26 of 42 plaintiff, he duly informed the defendant about dishonouring of aforesaid cheque and Sh. Rajesh Kumar was also asked vide Legal Notice dated 02.12.2019 through registered post dated 03.12.2019 to make the payment despite which the defendant Rajesh Sharma (since deceased) has failed to pay the cheque amount and not even replied. The plaintiff has also filed a complaint under Section 138 N.I. Act against the defendant in respect of the dishonoured cheque under the title "Pooja Chain 'N' Jewels Vs. M/s Chetan's Jewellers" which was Disposed Off by the concerned court vide order dated 02.04.2022 due to sudden death of Sh. Rajesh Kumar. According to the plaintiff, since the defendants no. 2 to 4 i.e. legal heirs of the deceased Rajesh Kumar inherit and enjoying all the movable and immovable assets as well as acquire the business in the name and style of M/s Chetan's Jewellers of deceased Rajesh Kumar, as such they are jointly and severally liable to pay the liabilities of the deceased Rajesh Kumar. It is also the case of the plaintiff that he had duly informed the defendant no. 2 to 4 about the dishonoured cheque and liability of Sh. Rajesh Kumar and asked them vide Legal Notice dated 07.02.2022 sent through speed post dated 09.02.2022, to make the payment but despite the service of the said Legal Notice, the defendants failed to make the payments. According to the plaintiff, despite various requests and demands, the defendants have not cleared the outstanding amount and as such the defendants are jointly, personally and severally liable to pay the amount of Rs.20,97,886/ (i.e. Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 27 of 42 Rs.13,98,591/ towards principal amount + Rs.6,99,295/ towards interest @ 24% per annum w.e.f. 01.01.2020 to 31.01.2022) + interest @24% on the said amount till realization. (12) On the other hand, the case of the defendants no. 2 to 4 who are the legal heirs of the deceased Rajesh Kumar is that the suit of the plaintiff is not maintainable against the defendants as none of the defendants is the proprietor of the defendant no.1 Sh.
Rajesh Kumar who was earlier the proprietor of M/s Chetan's Jewellers, had left the said shop prior to his death having suffered heavy losses in the business and shifted to Ludhiana, Punjab and the said shop is not in possession of the defendants. According to the defendants, the plaintiff has no cause of action in its favour to file the present suit against the defendants and the documents filed along with the plaint are forged, manipulated and fabricated documents and as such the suit of the plaintiff is not maintainable and liable to be dismissed. The defendants have denied that the deceased Sh. Rajesh Kumar ever placed any verbal order for purchase of gold ornaments and claimed the plaintiff had not supplied any gold ornaments at the shop of Rajesh Kumar vide Invoice No. PCJ/1920/085 dated 22.11.2019 amounting to Rs.13,98,591/ nor the same was acknowledged by Sh. Rajesh Kumar. They have also denied the invoice filed by the plaintiff claiming that it does not bear the signatures of Sh. Rajesh Kumar and it seems that the said invoice has been manipulated, forged and fabricated by the plaintiff. The case of the defendants is that the cheque in question was not issued by Sh. Rajesh Kumar against any liability and as such there is no question of giving Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 28 of 42 any assurance by Sh. Rajesh Kumar and that is why Sh. Rajesh Kumar would have thought fit not to reply the legal notice. It has been alleged that the cheque might have been obtained by the plaintiff or anyone else from Sh. Rajesh Kumar or had been stolen from the shop and got the same converted into a document showing liability of the alleged amount against Sh. Rajesh Kumar, which is clear from writing appearing on the cheque in question. According to the defendants, they are neither jointly nor severally liable to pay any amount to the plaintiff. (13) In order to prove his case the plaintiff Prakash Vats has examined himself as his sole witness as PW1 whereas the defendants have examined two witnesses namely Chetan Verma i.e. Defendant no.4 (son of the defendant no.1) as DW1 and the alleged employee of Rajesh Kumar namely Arjun as DW2. (14) I have gone through the records of the case and the testimonies of the witnesses examined by the parties. At the very Outset, I may observe that the plaintiff has filed the present suit against the defendants for recovery of Rs.20,97,886/ along with pendentelite and future interest on the ground that the defendant had purchased goods from the plaintiff. Reference is made to the provisions of Section 2 (1) (c) of Commercial Courts Act, 2015 which read as under:
(c) "commercial dispute" means a dispute arising out of
(i) ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents;
(ii) export or import of merchandise or services;
(iii) issues relating to admiralty and maritime law;
Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 29 of 42
(iv) transactions relating to aircraft, aircraft engines, aircraft equipment and helicopters, including sales, leasing and financing of the same;
(v) carriage of goods;
(vi) construction and infrastructure contracts, including tenders;
(vii) agreements relating to immovable property used exclusively in trade or commerce;
(viii) franchising agreements;
(ix) distribution and licensing agreements;
(x) management and consultancy agreements;
(xi) joint venture agreements;
(xii) shareholders agreements;
(xiii) subscription and investment agreements pertaining to the services industry including outsourcing services and financial services;
(xiv) mercantile agency and mercantile usage;
(xv) partnership agreements;
(xvi) technology development agreements; (xvii) intellectual property rights relating to registered and unregistered trademarks, copyright, patent, design, domain names, geographical indications and semiconductor integrated circuits; (xviii) agreements for sale of goods or provision of services;
(xix) exploitation of oil and gas reserves or other natural resources including electromagnetic spectrum;
(xx) insurance and reinsurance;
(xxi) contracts of agency relating to any of the above; and (xxii) such other commercial disputes as may be notified by the Central Government.
(15) The provisions of Section 2 (1) (c) of Commercial Courts Act as above are very much clear. Sale of goods are governed by Sale of Goods Act, they pertain to movable properties, any dispute of sale or agreement to sale of goods of specified value do come within the jurisdiction of Commercial Courts Act. The clause also includes the services and guarantee given for the goods sold. The service or guarantee may be oral Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 30 of 42 or written. Therefore, the facts as alleged in the plaint fall under commercial dispute.
(16) Secondly, with regard to the Pecuniary Jurisdiction to adjudicate the matter which is in dispute, reliance is placed upon the provisions of Section 3 of Commercial Courts Act, 2015 which provides that:
Section 3: Constitution of Commercial Courts:
3. (1) The State Government, may after consultation with the concerned High Court, by notification, constitute such number of Commercial Courts at District level, as it may deem necessary for the purpose of exercising the jurisdiction and powers conferred on those Courts under this Act:
[Provided that with respect to the High Courts having ordinary original civil jurisdiction, the State Government may, after consultation with the concerned High Court, by notification, constitute Commercial Courts at the District Judge level:
Provided further that with respect to a territory over which the High Courts have ordinary original civil jurisdiction, the State Government may, by notification, specify such pecuniary value which shall not be less than three lakh rupees and not more than the pecuniary jurisdiction exercisable by the District Courts, as it may consider necessary.] 3[(1A) Notwithstanding anything contained in this Act, the State Government may, after consultation with the concerned High Court, by notification, specify such pecuniary value which shall not be less than three lakh rupees or such higher value, for whole or part of the State, as it may consider necessary.] (17) Admittedly, the Commercial Court Act was amended on 03.05.2018 and by virtue of the amendment and by virtue of the notification, the pecuniary value of the Commercial Courts Act shall not be less than Rs.3,00,000/. In the present case, the claim amount which shown in the plaint is of Rs.20,97,886/ and Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors.
CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 31 of 42 hence, this court has the pecuniary jurisdiction to adjudicate upon the issues in dispute.
(18) Thirdly, I note that this court has the Territorial Jurisdiction to try the present suit since as per the record the plaintiff Prakash Vats is having his shop at Keshav Complex, 1167/1094, 3rd Floor, Shop No.2, Kucha Mahajani, Chandni Chowk, Delhi110006 which falls within the territorial jurisdiction of this Court.
(19) Fourthly, in so far as the aspect of Limitation is concerned, I note that the cheque bearing No. 000500 dated 26.11.2019 for a sum of Rs.13,98,591/ allegedly issued by the defendant, got dishonoured on 27.11.2019. Therefore, the present suit having been filed on 14.09.2022 is within the period of Limitation.
(20) Fifthly, a perusal of the record shows that before filing the present suit, the preinstitution mediation proceedings were initiated by the plaintiff on 30.04.222. The NonStarter Report dated 17.08.2022 shows that notices were issued to the defendant for 30.05.2022 & 16.07.2022. As per the Non Starter Report, the notices were delivered on the second address but the defendant had not appeared to participate in the medication process as a result of which the Non Starter Report was issued. (21) Sixthly, now coming to the aspect of maintainability of the present suit against the defendants no.2 to 4 i.e. Smt. Nisha Verma, Chetan Verma and Ms. Priya Verma who are the legal heirs of the defendant no.1 Rajesh Kumar who had expired Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 32 of 42 on 05.08.2021. The case of the defendants are that they are only the Legal Heirs of the deceased Rajesh Kumar and are not aware of any transactions which took place between the plaintiff and Rajeesh Kumar and cannot be held liable for the same. In this regard, I may note that a similar issue had arisen before the Hon'ble Delhi High Court in the case of Bank of India Vs. Industrial Polymer reported in 1991 (93) BOMLR 218 has held that the suit against the legal heirs of the deceased is maintainable. The relevant portion of the observations are quoted as under:
"....... 7. Order XXXVII does not exclude from its purview a suit where the heirs and legal representatives of a deceased are party defendants. Nor is there any protection under the Civil Procedure Code to the heirs and legal representatives of a deceased defendant from a decree being passed against them, provided of course, that the right to sue them survives. The protection which Section 52 of the Civil Procedure Code gives to the heirs and legal representatives of a defendant is a protection against the enforcement of a decree against them in execution. Under Section 52, where a decree is passed against a party as the legal representative of a deceased person and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of such property. The decree can be executed to the extent of the property of the deceased in his hands. This is a protection which is granted at the stage of execution. Hence even in a case where a decree is passed against such an heir or legal representative under Order XXXVII of the Civil Procedure Code, the decree can be executed only to the extent of the estate of the deceased coming to his hands. The apprehension of the learned judge in the case of Rajesh Steel Centre (supra) is, therefore, unfounded.
8. In the case of Lallu Bhagvan v. Tribhuvan Motiram (1889) I.L.R. 13 Bom. 633 (D.B.), a Division Bench of this Court held that the decree against the legal representatives of a deceased debtor can be passed even Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors.
CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 33 of 42 if they have not inherited any property. If they have not inherited any property, the only result is that the decree can not be executed against them. This is a matter to be decided at the stage of execution. It does not affect the right of a court to pass a decree. This decision has been followed in the case of Ranjitsingh v. Narmadi (1931) A.I.R. Nagpur 173 where it is held that where an heir of a debtor is sued it is not open to him to raise the plea in course of the suit that he does not hold the assets of the deceased debtor. The plea is confined to execution only....."
9. In our view, therefore, the difficulty expressed by the learned single Judge in the case of Rajesh Steel Centre v. Rashmi K. Agarwal (supra) is misconceived. A summary Suit can be filed against an heir and legal representative of a deceased defendant and the provisions of Order XXXVII apply in full to such a suit also. The decree however, can be executed only to the extent of the estate of the deceased in the hands of the judgment debtor. We therefore agree with Variava J. that the summons for Judgment against the heirs of defendant No.3 is maintainable...."
(22) Similar view has been taken by the Hon'ble Delhi High Court in the case of Sarla Devi & Ors. Vs. Daya Ram & Ors. reported in 60 (1995) DLT 3 (DB) and also in the case of Sanjeev Jain Vs. Rajni Dhingra & Ors. in CS (OS) No. 378/2018 decided on 19.12.2018.
(23) Applying the settled principles of law to the facts of the present case, it is evident that Chetan Verma (DW1) has specifically admitted in his crossexamination that he himself, his mother and his sister have inherited the movable and immovable properties left behind by deceased Rajesh Kumar. Therefore, I hold that the present suit is maintainable against the defendants no.2 to 4 who are the legal heirs of the deceased Rajesh Kumar Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 34 of 42 and accordingly, there exists a valid cause of action in favour of the plaintiff.
(24) Seventhly, in his testimony the plaintiff Prakash Vats (PW1) has placed his reliance upon certified copy of complaint under Section 138 of NI Act, affidavit, order sheet and list of document which are Ex.PW1/1 (Colly. 19 pages); Original cheque and dishonour memo which are Ex.PW1/2 & Ex.PW1/3; Legal Notice dated 02.12.2019 which is Ex.PW1/4; Original postal receipts which are Ex.PW1/5 & Ex.PW1/6; Return envelopes which are Ex.PW1/7 & Ex.PW1/8; Original invoice which is Ex.PW1/9; Bank statement which is Ex.PW1/10; Registration of GST which is Ex.PW1/11; Copy of toll plaza receipts which are Ex.PW1/12 (Colly. 2 pages); Legal notice dated 07.02.2022 which is Ex.PW1/13 and postal receipts which are Ex.PW1/14 to Ex.PW1/17. In his crossexamination, the plaintiff has specifically deposed that the cheque in question was handed over to him by Sh. Rajesh Kumar at his shop on 23.11.2019 at about 6:00 PM in the presence of his brother Sh. Ravi Vats and one staff member of the deceased Rajesh Kumar whose name he cannot tell. According to the witness, when he reached the shop Rajesh Kumar offered him tea and snacks after which he handed over goods along with bill to Rajesh Kumar and after verifying the goods, Rajesh Kumar acknowledged the second copy of the bill and handed over the cheque of the bill amount. The plaintiff has also explained that he had no personal relations with Rajesh Kumar who had relations with his brother Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 35 of 42 Sh. Ravi Vats and they had visiting terms in the family function of the deceased Rajesh Kumar. The relevant portion of the cross examination of the plaintiff Prakash Vats is reproduced as under:
".....Q. In whose presence the cheque in question was handed over to you and at what time and date? A On 23.11.2019 at about 6 pm, the cheque was handed over to me by Late Sh. Rajesh Kumar, at the time of handing over the cheque Sh. Rajesh Kumar (Deceased), my brother Sh. Ravi Vats and one staff member of deceased Rajesh Kumar were present apart from me. I do not remember the name of staff member. I cannot tell if the name of the staff member name Arjun, However, one staff member was present during stay at the shop. Q When you entered the shop what and how the conversation started between him and Rajesh? A When I reached the shop Rajesh Kumar offered me tea and snacks, I handed over goods to Sh. Rajesh Kumar and bill and after verifying the goods, Sh. Rajesh Kumar acknowledged the second copy of the bill and handed over the cheque of the bill amount..... ...... Deceased Sh. Rajesh Kumar had no personal relation with me however he had relation with my brother Sh. Ravi Vats. It is correct that we had visiting terms in the family function of deceased Sh. Rajesh Kumar like marriage etc. voluntary I along with my my brother Sh. Ravi Vats attended one marriage function in deceased Sh. Rajesh Kumar family.....".
(25) The plaintiff Prakash Vats (PW1) has specifically denied the suggestion that he did not deliver any goods as per Ex.PW1/9 to the deceased Rajesh Kumar. He has also denied the suggestion that he and his brother made Rajesh Kumar to consume excessive alcohol and forcibly took the cheque in question from the deceased. It is evident from the cross examination of Prakash Vats (PW1) that he stood by his version and there are no contradictions in the case putforth by the plaintiff.
Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 36 of 42 (26) Eighthly, in so far as the defendants are concerned, the defendant no.3 Chetan Verma (DW1) has in his cross examination specifically admitted that after death of his father, he himself, his mother and sister (i.e. the defendants no. 2 to 4) inherited the property bearing No. 484, Janak Puri, Gali No. Zero, Ludhiana, Punjab. Here, I may note that the witness Chetan Verma (DW1) has been crossexamined at length by the Ld. Counsel for the plaintiff and the witness Chetan Verma could not answer the relevant questions put to him. He is unable to tell the manner in which his father used to run his business i.e. on credit basis or cash basis nor was he aware as to how his father used to place the purchase orders for purchasing the goods/ ornaments nor was he aware of any business dealings between the plaintiff and his father. He was also not aware of the details of bank accounts of his father and whether his father was maintaining any account books, profit and loss account, trading account, balance sheets, cash registered and stock register qua the business he was running. The witness Chetan Verma (DW1) who is the son of the deceased Rajesh Kumar is also not aware whether his father had issued any cheque in November 2019 or not. Here, I may note that in their written statement in para 10 the defendants claimed that no such notice dated 07.02.2022 was ever received by them. Further, in para 7 of his examination in chief by way of affidavit which is Ex.DW1/1 the witness Chetan Verma specifically stated that no notice was received by the defendants. However, in his crossexamination he has admitted that Ex.PW1/13 (i.e. legal notice dated 07.02022 sent by the Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 37 of 42 plaintiff) was received to him and his family as well but neither he nor his family members responded to this notice. This is a major contradiction in the case of the defendants. (27) Ninethly, coming next to the testimony of Arjun (DW2) who claims himself to be the employee of Rajesh Kumar (deceased). He in his examination in chief by way of affidavit which is Ex.DW2/A claimed that on 23.11.2019 while he was present in the shop, the plaintiff Prakash Vats and his brother Ravi Vats came and both the brothers pressurized Rajesh Kumar to drink excessive liquor and when Rajesh Kumar was not in senses, the plaintiff Prakash Vats snatched the cheque book from Rajesh Kumar and forcibly made him to sign. This witness has been crossexamined by the Ld. Counsel for the plaintiff at length.
(28) It is writ large from the testimony of witness examined by the defendants namely Arjun (DW2) that he was the employee of the deceased Rajesh Kumar which fact has been confirmed by the plaintiff Prakash Vats in his testimony where he states that at the time of signing of the cheque in question, apart from himself and his brother, an employee of the deceased was also present. I may observe that though Arjun (DW2) has in his affidavit of evidence has testified that Rajesh Kumar was forced to consume alcohol and thereafter signatures of Rajesh Kumar were obtained on the cheque forcibly but in his crossexamination he has retracted from his earlier version and specifically admitted that no force was applied to Rajesh Kumar. He has also Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 38 of 42 admitted that CCTV cameras were installed in the shop and the entire incident had been caught in the CCTV cameras. If this be so, then why the incident was not reported to the police. Further, I observe that in his crossexamination Arjun (DW2) has admitted the signatures of Rajesh Kumar on the cheque Ex.PW1/2. There is no reason to disbelieve him since being an employee of Rajesh Kumar, he is the best witness who could have identified the signatures of Rajesh Kumar having seen him writing and signing.
(29) Tenthly, I may note that it is an admitted case of both Chetan Verma (DW1) and Arjun (DW2) that CCTV Cameras were installed at the shop of Rajesh Kumar and despite the same no CCTV Footage of the relevant date i.e. 23.11.2019 has been placed on record to prove that the plaintiff had pressurized Rajesh Kumar (deceased) to issue the cheque in question or that Rajesh Kumar was manhandled by the plaintiff and his brother. It was the best evidence available with the defendants which has been withheld from this Court. It is also evident from the testimonies of defendants witnesses that they were already aware of the alleged incident dated 23.11.2019, despite the same they did not file any complaint either with the local police or before any other competent authority regarding the cheque in question having been obtained forcibly by the plaintiff from Rajesh Kumar. An adverse inference is therefore drawn against the defendants.
Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 39 of 42 (30) Eleventhly, though it is the case of the defendants that it was the plaintiff Prakash Vats abetted Sh. Rajesh Kumar to commit suicide, yet it is admitted by Chetan Verma (DW1) that they have not made any complaint to police or any authority regarding any provocation to Rajesh Kumar to commit suicide. (31) Twelfthly, it is an admitted case of Chetan Verma (DW1) that they have received the legal notice dated 07.02.2022 to which no reply was sent. In this regard, I may note that it is a settled law that service of notice having been admitted/ proved without reservation and that having not replied, in that eventuality adverse inference should be drawn because the defendant kept quite over the notice and did not send any reply. [Ref: Kalu Ram Vs. Sita Ram reported in 1980 RLR (Note) 44 and Metropolis Travels & Resorts (I) Ltd. Vs. Shri Sumit Kalra & Anr. reported in 98 (2002) DLT 573]. In the present case also the defendants have received the legal notice dated Ex.PW1/13 from the plaintiff despite which they did not reply to the same, for which an adverse inference is drawn against them. (32) Thirteenthly, the plaintiff Prakash Vats has duly proved the sale of gold ornaments to the defendant no.1 Rajesh Kumar (since deceased) for a total sum of Rs.13,98,591/ which finds corroboration and confirmation from Invoice No. PCJ/19 20/085 dated 22.11.2019 which is Ex.PW1/9. The plaintiff has also proved that pursuant to the same, the defendant no.1 Rajesh Kumar (since deceased) had issued a cheque bearing No. 000500 dated 26.11.2019 (Ex.PW1/2), amounting to Rs.13,98,591/ Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 40 of 42 drawn at HDFC Bank Ltd., The Mall, LGF 1, First Mall, Ludhiana Branch, towards the payment of above invoice. It has also been proved that when the plaintiff presented the above cheque with his banker, the said cheque was dishonoured with the remarks "drawer's signatures differs" vide returning memo dated 27.11.2019 (Ex.PW1/3). It also stands proved that the plaintiff had filed a complaint under Section 138 of NI Act which was pending before the court of Ld. MM, Shahdara, Delhi which was Disposed Off by the concerned court vide order dated 02.04.2022 due to death of Rajesh Kumar. This being the background, I hereby hold that the plaintiff is entitled to recovery of principal amount of Rs.13,98,591/ from the defendants. (33) Lastly, in so far as the Interest on the principal amount is concerned, the plaintiff is claiming an interest @ 24% per annum. In this regard, I may observe that there is no written agreement between the parties with regard to the interest and even the Invoice Ex.PW1/9 does not bear any interest clause. Even otherwise, in my considered view the rate of interest of 24% is excessive and hence, in the interest of justice, the plaintiff is held entitled to the recovery of principal amount of Rs.13,98,591/ along with interest @ 6% per annum from the date of Legal Notice i.e. 07.02.2022 till the date of realization of the same. The plaintiff is also held entitled to the costs of the suit.
(34) All the three issues are accordingly decided in favour of the plaintiff and against the defendants.
Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 41 of 42 CONCLUSIONS & RELIEF:
(35) In view of my findings on the various issues, I hereby hold that the plaintiff is entitled to following reliefs:
A) That the plaintiff is entitled to recovery of principal amount of Rs.13,98,591/ from the defendants. B) That the plaintiff is entitled to the recovery of principal outstanding amount of Rs.13,98,591/ along with interest @ 6% per annum from the date of Legal Notice i.e. 07.02.2022 till the date of realization of the same.
C) That the plaintiff is also entitled to the Costs of the Suit.
(36) Suit of the plaintiff is accordingly Decreed. Decree Sheet be prepared accordingly.
(37) File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 13.12.2023 District Judge (Commercial Court)02, Central, Tis Hazari Courts, Delhi Prakash Vats Vs. Rajesh Kumar (deceased through LRs) & Ors. CS (Comm) No. 2171/2022, Judgment dated 13.12.2023 Page No. 42 of 42