Bangalore District Court
Sri.Hanif Ahmed vs Sri.Prince Yakoob Habibuddhin Tusi on 23 June, 2015
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BANGALORE [CCH.No.42]
PRESENT: SRI.BASAVARAJ B.COM., LL.M.
XLI Addl. City Civil Judge
Dated this the 23rd day of June 2015.
O.S.No.9057/2013
PLAINTIFF : Sri.Hanif Ahmed,
S/o.Late B.M.Ahmed Baba,
38 years,
R/at. D1 Esteem Splender,
III Floor, Behind Madhuban,
Hosur Main Road,
Opp. Adugodi Police Station,
Bangalore.
(By Sri.S.K., Advocate)
.Vs.
DEFENDANT : Sri.Prince Yakoob Habibuddhin Tusi
@ Prince Tusi,
S/o.Prince Yakoob Harifuddhin Tusi,
42 years,
R/at.No.8-9-40, Moghals of Hindustan,
Moghal Villa, No.67, Dattanagar,
Kanchanbag, Hyderabad-500 058.
Also at :
No.5/9/12, Ground Floor,
Samrat Commercial Complex,
Opp: RBI Bannk, Saifabad,
Hyderabad-560 004.
(Exparte)
2 O.S.No.9057/2013
JUDGMENT
The plaintiff has filed this suit for the recovery of Rs.30,19,740/- from the defendant with further interest at the rate of 18% per annum till actual payment and also such other reliefs.
2. The plaint averments in brief are as under:
The plaintiff is in the business of running a Travel Tourism Enterprises from the last seven years in the name and style of "HIZ Travel Pvt. Ltd.," at B.T.M.II Stage, Bangalore and accordingly, the plaintiff used to arrange the tour package facilities to the pilgrimages i.e., by way of group tour to Iraq, Seria and other Gulf countries. During the year 2010, the defendant got introduced to him through one of his family friends Dr.B.K.Yusuf and after some time, the defendant became the close friend of the plaintiff and shown his interest to take the agency of the plaintiff's business at Hyderabad in the name of "Moghal Emperors Logistics Pvt. Ltd.". The plaintiff, in order to expand his business out of state agreed with the defendant to open an 3 O.S.No.9057/2013 office at Hyderabad jointly in the name of plaintiff and defendant at House bearing Municipal No.5/9/12, Ground Floor, Samrat Commercial Complex, Opp: RBI Bank, Saifabad, Hyderabad by executing a lease deed, dated:20.09.2010 in the joint name of the plaintiff and the defendant. After opening the above said office in the year 2010, the plaintiff had conducted a pilgrimage group tour on the advice of the defendant for 45 people to Iraq and Syria. The defendant was also one of the customers for the said tour on behalf of the plaintiff. The plaintiff booked the Air Tickets for the customers, hotel accommodation and sightseeing with transports for the said group i.e., for 14 nights and 15 days and for the said trip, the plaintiff fixed an amount of Rs.60,000/- per head. The plaintiff was unable to visit the Hyderabad Office on a daily basis and he requested the defendant to receive the amounts from the customers and to transfer the same to the plaintiff's bank account at Bangalore. However, the plaintiff's employees also were there at Hyderabad office. Accordingly, the defendant received a sum of Rs.27,00,000/- in total from 4 O.S.No.9057/2013 the customers on behalf of the plaintiff at their Hyderabad office and the defendant also issued the receipts to the customers for the amount collected by him on behalf of the plaintiff. The said group departed from Hyderabad to Iraq and Syria on 23.11.2010 and returned back on 10.12.2010.
The defendant being one of the members of the pilgrimage group and having collected Rs.27,00,000/- from the customers on behalf of the plaintiff, the defendant was supposed to pay the said full amount to the plaintiff before leaving for the tour, but however the defendant gave only Rs.9,00,000/- to the plaintiff by assuring the plaintiff that he would pay the balance amount of Rs.18,00,000/- after returning from the tour. However, the plaintiff requested the defendant to hand over him the balance of Rs.18,00,000/-, since the plaintiff was in shortage of funds for arranging the trip. The defendant informed the plaintiff that he was received the cheques from the customers and immediately after the realization of the same, he will handover the money through defendant's brother. The 5 O.S.No.9057/2013 defendant with one or other reason did not pay the balance amount of Rs.18,00,000/- till the date of travel. However, the plaintiff handed over all the documents like Passports, Air Tickets, etc., pertaining to the trip with the defendant vide confirmation letter dated:22.11.2010 and in the said letter also, the plaintiff requested the defendant to settle the balance amount of Rs.18,00,000/- due from him. The plaintiff, believing on the assurance made by the defendant had arranged the trip for the customers for their Visa, Accommodation, Air Ticket, etc., as per the schedule by arranging the funds. Immediately after the return of the defendant from the trip, the plaintiff asked the defendant to pay the balance amount of Rs.18,00,000/- and other expenses incurred by him to the trip, but to the utter shock of the plaintiff, the defendant failed to pay the balance amount of Rs.18,00,000/- due from him. The plaintiff even met the defendant personally and asked for the balance amount and other miscellaneous expenses, which totally comes around Rs.19,60,870/- spent by him for arranging the trip, but the defendant did not turn up. Finally, the 6 O.S.No.9057/2013 plaintiff got issued the demand notice to the defendant on 31.12.2010 requesting him to settle the balance payment. In the said notice, the plaintiff shown all the expenses incurred by him for the trip under different heads, which totally amounting to Rs.19,60,870/-. Unfortunately, the defendant instead of honouring the said notice, replied denying the balance of the amount of Rs.19,60,870/- due from him. Though the plaintiff is made his best efforts to impress upon the defendant that he made huge loss arranging the trip by spending from his pocket, the defendant did not bother to settle the accounts. Apart from that, the defendant threatened the plaintiff with dire consequences that he would teach a lesson to the plaintiff, if he continued to ask any further amounts due from him and also lied with the plaintiff that some of the customers had not paid the amounts for the trip, for which the plaintiff issued the demand notice on 19.01.2011 asking them to pay the amounts. But to his utter surprise, all the customers relied that they had paid the amounts before undertaking the trip itself to the defendant and that after 7 O.S.No.9057/2013 receiving the notice by them from the plaintiff, they rushed to the defendant when he had shown a letter head of the plaintiff for having received the total amounts paid by the defendant to the plaintiff i.e., the amounts collected from the customers. Immediately after receiving the reply letters from the customers, the plaintiff rushed to the defendant at Hyderabad and asked the defendant to pay the balance amount of Rs.19,60,870/-, at that time, the defendant refused to pay the amount to the plaintiff. That apart, threatened the plaintiff with dire consequences that he would teach a lesson if the plaintiff asked the amount any further. Further, the defendant showed a letter head of the plaintiff that which reads that the plaintiff received the balance amount of Rs.19,60,870/- from the defendant on 22.11.2010 itself i.e., before the trip. The plaintiff was shocked to see the letter head of him with his signature, since at no point of time he had issued such a receipt on his letter head with his signature. Thereby, the plaintiff came to know that to cheat the plaintiff by defaulting to pay the money, with a dishonest intention, fabricated a false 8 O.S.No.9057/2013 receipt in the letter head of the plaintiff's company by forging the signature of the plaintiff. When the things stood thus, without any other option, the plaintiff filed a complaint against the defendant before the Madiwala Police Station, Bangalore on 23.03.2011 for the criminal offences like cheating, breach of trust and fraud committed by the defendant, which was registered in Crime No.286/2011, dated:24.03.2011 by the Madiwala Police against the defendant.
The Madiwala Police during the course of investigation sent the aforesaid fabricated letter head of the defendant to the Forensic Science Laboratory, Madiwala, Bangalore for examination of the Hand-writing Expert with regard to the truthfulness of the signature and the certificate issued by the Expert of the Laboratory, state the signature if a forged one. When the things stood thus, the Madiwala Police filed a charge sheet against the defendant in Crime No.286/2011 for the offences punishable under Sections 420, 468, 471 and 506 of IPC. Hence, by investigation of the police, it is distinctly proved 9 O.S.No.9057/2013 that the defendant did not pay Rs.18,00,000/- due by him to the plaintiff and also with a dishonest intention, the defendant fabricated the documents for having received Rs.18,00,000/- by the plaintiff. So, prays to decree the suit.
3. In spite of service of summons, the defendant has failed to appear before the court and so, the defendant is placed exparte.
4. The plaintiff has examined himself as P.W.1 and has got marked 66 documents at Exs.P.1 to 66 and has closed the side.
5. Heard the arguments of the learned counsel for the plaintiff.
6. On the basis of the above materials, the following points arise for my consideration.
(1) Whether the plaintiff is entitled to recover an amount of Rs.30,19,740/- from the defendant with interest at the rate of 18% per annum from the date of suit till realization ? 10 O.S.No.9057/2013 (2) What Order ?
7. My findings to the above points are as under:
POINT No.1 - In the Affirmative, POINT No.2 - As per the final order, for the following :
REASONS
8. POINT No.1 : The plaintiff filed his affidavit in lieu of examination in chief as P.W.1, wherein he has reiterated the averments made in the plaint. In support of his case, the plaintiff has also produced Exs.P.1 to 66. Ex.P.1 is the certified copy of the Certificate of Incorporation of the plaintiff firm for the year 2010-11, Ex.P.2 is the certified copy of the Lease Deed entered by the plaintiff and defendant with the landlord in Hyderabad, Ex.P.3 is the certified copy of the quotation in respect of the tour package conducted by the plaintiff on behalf of the defendant, Exs.P.4 to 51 are the certified copies of Air Tickets and in that the defendant is also one of the member in the tour, Exs.P.52 and 53 are the certified copies of the 11 O.S.No.9057/2013 bank statement of HDFC Bank, Ex.P.54 is the certified copy of the letter addressed to the defendant, Ex.P.55 is the certified copy of the demand notice issued to the defendant calling upon to pay the amount of Rs.19,60,870/- with respect to the pilgrimage tour, Exs.P.56 and 57 are the certified copies of the replies given by the customers to the plaintiff stating that they have paid the entire tour amount to the defendant, Ex.P.58 is the certified copy of the F.I.R., in Crime No.286/2011 which is registered on the basis of the complaint given by the plaintiff against the defendant stating that the defendant cheated the plaintiff without paying the pilgrimage tour amount, Ex.P.59 is the certified copy of the complaint, Ex.P.60 is the certified copy of the F.S.L. Report, Ex.P.61 is the certified copy of the charge sheet filed in C.C.No.21348/2012 wherein the Madiwala Police, Bangalore filed a charge sheet against the defendant for the cheating with respect to the transaction stated in the plaint, Ex.P.62 is the certified copy of the Registration Certificate for the year 2008-09, Ex.P.63 is the certified copy of the Certificate of Accreditation, Exs.P.64 and 65 are 12 O.S.No.9057/2013 the certified copies of the supplier's invoice and Ex.P.66 is the certified copy of the sample receipt. The defendant remained exparte. The absence of the defendant shows that he has no objection to decree the suit. So, the case of the plaintiff goes unchallenged. There is no reason to disbelieve the case of the plaintiff. Hence, its case has to be accepted in toto. So, it has to be held that the plaintiff is entitled to recover an amount of Rs.30,19,740 with interest at the rate of 18% per annum from the date of suit till realization from the defendant. Accordingly, the Point No.1 is answered in the Affirmative.
9. POINT No.2 : In view of my finding on Point No.1 in the Affirmative, the suit filed by the plaintiff has to be decreed with costs. In the result, I proceed to pass the following :
ORDER The suit of the plaintiff is decreed with costs. 13 O.S.No.9057/2013 The defendant is held liable to pay an amount of Rs.30,19,740/- to the plaintiff with interest @ 18% per annum from the date of suit till realization.
Draw the decree accordingly.
(Dictated to the Judgment-writer/Stenographer directly on the computer, thereafter corrected and then pronounced by me in the open court, on this the 23rd day of June 2015) ( BASAVARAJ ) XLI Addl. City Civil Judge, Bangalore.
ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 Haneef Ahmed
b) Defendant's side: NIL.
II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 C/c. of Certificate of Incorporation
Ex.P.2 C/c. of Lease Deed
Ex.P.3 C/c. of quotation
Exs.P.4 to 51 C/copies of Air Tickets
Exs.P.52 & 53 C/copies of HDFC Bank Statement
Ex.P.54 C/c. of letter addressed to the
14 O.S.No.9057/2013
defendant
Ex.P.55 C/c. of demand notice
Exs.P.56 & 57 C/copies of the replies given by the customers Ex.P.58 C/c. of FIR Ex.P.59 C/c. of complaint Ex.P.60 C/c. of F.S.L.Report Ex.P.61 C/c. of charge sheet Ex.P.62 C/c. of Registration Certificate Ex.P.63 C/c. of Certificate of Accreditation Exs.P.64 & 65 C/copies of supplier's invoice Ex.P.66 C/c. of sample receipt
b) defendants side : NIL ( BASAVARAJ ) XLI ADDL.CITY CIVIL JUDGE BANGALORE 15 O.S.No.9057/2013 23.06.2015 P-SK D-Ex-parte Judgment pronounced in the open court vide separate order.
ORDER The suit of the plaintiff is decreed with costs.
16 O.S.No.9057/2013 The defendant is held liable to pay an amount of Rs.30,19,740/- to the plaintiff with interest @ 18% per annum from the date of suit till realization. Draw the decree accordingly. ( BASAVARAJ ) XLI ADDL.CITY CIVIL JUDGE BANGALORE 17 O.S.No.9057/2013