Delhi District Court
Ms. Timsi vs Smt. Deepika Bisht on 2 June, 2023
Timsi V. Deepika Bisht
IN THE COURT OF Dr. AJAY GULATI
ADDITIONAL DISTRICT JUDGE-02, WEST DISTRICT
DELHI.
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DLWT01-006792-2020
Ms. Timsi, w/o. Sh. Jamit Kumar
r/o. 1-37, Subhash Nagar, New Delhi 110027
.......Plaintiff
VERSUS
Smt. Deepika Bisht
w/o. Sh. Rajan Kumar Bisht
r/o. WZ 1291, Sant Nagar, Ground Floor
Rani Bagh, New Delhi 110034
...........Defendant
Date of institution of the case : 05.01.2021
Date reserved for judgment : 02.06.2023
Date of pronouncement of Judgment: 02.06.2023
JUDGEMENT
1. The present suit has been filed seeking recovery of Rs.15,00,000/- from the defendant.
2. The factual background to dispute raised in the present suit is as follows. Plaintiff and defendant were college friends and were Civ DJ 8/21 DLWT01-006792-2020 page no. 1 of pages15 Timsi V. Deepika Bisht acquainted with each other since the year 2008. In the year 2016, they again met through a common friend and renewed interaction.
3. Eventually, both plaintiff and the defendant started to meet often and occasionally defendant used to request the plaintiff for her credit card to make certain payments. The plaintiff would give her credit card as a friendly gesture and defendant also used to pay back the money so spent to the plaintiff. Defendant thus gradually gained the trust of the plaintiff.
4. On 31.12.2018, plaintiff was having some trouble at her work place and wanted to resign. When plaintiff confided in the defendant, she offered plaintiff to join her on a monthly retainership of Rs. 27,000/- at her office viz. 'SMILES FOR MILES' at Pitampura, New Delhi, which was a Travel Agency run by the defendant and her sister Daya. Believing the defendant, she joined the office of the defendant in January 2019. During the initial period, defendant would give her retainership amount well in time. Thereafter, on several occasions, defendant used the credit card of the plaintiff for booking air tickets. Soon, the same became a practice and defendant would more often run her business by using the plaintiff's credit cards for executing her regular business Civ DJ 8/21 DLWT01-006792-2020 page no. 2 of pages15 Timsi V. Deepika Bisht transactions and for purchasing air tickets etc. After gaining plaintiff's confidence, defendant pressurised the plaintiff to apply for additional credit cards and also for obtaining personal loans as defendant wanted to expand her business. The defendant also used to take away plaintiff's credit cards from her purse without informing her. Furthermore, taking advantage of the naïve and credulous nature of the plaintiff, defendant on the pretext of making the plaintiff 50% partner in her business, got some papers including some blank papers signed by the plaintiff. At the insistence of the defendant, plaintiff applied for a personal loan amounting to Rs. 3,00,000/-. Thereafter, plaintiff under the pressure of the defendant and her family members, took two more loans of Rs. 80,000/- and Rs. 2,00,000/- from HDFC Bank. Defendant kept the loan amounts with her after assuring of its repayment. Defendant is also said to have used plaintiff's credit cards while setting up her new office at Rani Bagh. However, plaintiff claims that she was never intimated about the business details by the defendant. However, she became suspicious when she saw a financer at the house of the mother of defendant, who had come for recovery of Rs. 25 lacs from the defendant and her sister, but who were denying their liability.
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5. In the month of January 2020, to the utter shock of the plaintiff, defendant stopped making payments towards plaintiff's retainership and also stopped making payments for clearing the outstanding dues of credit cards as well as loans taken by the plaintiff, on the pretext of taking benefit of moratorium period due to Covid-19. Thereafter, plaintiff could not meet the defendant owing to Covid-19 restrictions but she kept on sending messages to the defendant over her phone insisting upon her to clear the outstanding dues of the loans and purchases made by the defendant using plaintiff's credit cards. However, the defendant had malicious intents and avoided to clear outstanding dues on one pretext or other. The last payment towards the credit card dues was made in March 2020. Subsequently, defendant on 01.08.2020 refused to make any payments. Having been cheated and feeling aggrieved with the deceitful act of the defendant, plaintiff sent a legal notice on 26.10.2020 to the defendant demanding Rs. 15 lacs but the said notice was returned as unclaimed. However, the legal notice sent through speed post was duly served upon the defendant on 27.10.2020 but the same was never replied to nor any further payments were made by the defendant. Thereafter, plaintiff was constrained to file the present suit. Civ DJ 8/21
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6. Summon was issued to the defendant and the same was received by the defendant on 19.01.2021. Due to restrictions of Covid 19, a copy of summon alongwith the documents were sent to the defendant on her Whats App number also on 18.01.2021. Subsequently, her counsel entered appearance on 08.04.2021. The matter was thereafter posted for 23.07.2021. On 23.07.2021, none of the parties appeared in view of the anticipated third wave of the Covid-19 and the matter was further adjourned for 23.10.2021. On 23.10.2021, defendant did not appear in the hearing held through physical mode and the matter was further adjourned to 10.01.2022. However, till that date, no written statement had been filed by the defendant. Thereafter, on 14.03.2022, the right of the defendant to file written statement was closed and she was proceeded against exparte.
7. However, an application u/o. 9 rule 7CPC was filed by the defendant seeking setting aside of the exparte order which vide a detailed order was dismissed on 02.05.2023.
8. On 26.08.2022, plaintiff tendered her evidence and filed the following documents:
i) copy of the Personal Loan Statement as Ex. PW 1/1. Civ DJ 8/21
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ii) email printed copy of credit card insta loan as Ex. PW 1/2 (Colly). Iii) copies of HDFC Bank/ SBI Bank/ RBL Bank/ Indusind Bank and Bank of Baroda Accounts Statements having transactions of credit cards and loan (59 pages ) as Ex. PW 1/3.
iv) copy of legal notice dated 26.10.2020 as Ex. PW 1/4.
v) original postal receipts alongwith track reports as Ex. PW 1/5 (Colly).
vi) two speed post envelopes Ex. PW 1/6 (Colly).
vii) certificate u/s. 65 B of Indian Evidence Act as Ex. PW 1/7.
9. Vide further examination conducted on 04.04.2023, the plaintiff also filed the original credit cards i.e. the credit cards as listed below, which were exhibited as Ex. PW 1/8 to PW 1/14 (OSR).
(i) Credit Card Money Back Platinum of HDFC Bank bearing no.
5459648821552347 as Ex. PW 1/8.
(ii) Credit Card Platinum Maxima of RBL Bank, bearing no. 5243736311850817 as Ex. PW 1/9.
(iii) Credit Card fbb SBI bearing no. 4207399345771645 as Ex. PW 1/10.
(iv) Credit Card VISA Platinum SBI bearing no. 4611199145335 744 as Ex. PW 1/11.
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(v) Credit Card Easy VISA Platinum of Bank of Baroda bearing no. 4624901101466925 as Ex. PW 1/12.
(vi) Credit Card VISA Platinum bearing no. 4611199355489504 as Ex. PW 1/13.
vii) Credit Card Aura Edge Indusind Bank Platinum master card bearing no. 5244 8040 891 25006 as Ex. PW 1/14.
10. Plaintiff did not examine any other witness and closed her evidence. Exparte final submissions were thereafter addressed.
11. I have carefully perused the Court record.
12. The break up of the amount of Rs. 15,00,000/- as sought from the defendant is as follows:
a) outstanding retainership salary- w.e.f February 2020 to July 2020
b) liability towards three personal loans i.e. of Rs. 3 lacs, 2 lacs and Rs. 80,000/-
c) outstanding dues of the credit cards
13. The plaintiff in support of her case has relied upon exhibits PW1/1 to Ex. PW1/14 and has filed her affidavit in evidence as Ex. PW 1/A. The exhibits are the personal loans receipts and the credit card statements besides legal notice and the postal receipts (PW1/4 to Civ DJ 8/21 DLWT01-006792-2020 page no. 7 of pages15 Timsi V. Deepika Bisht PW1/6). Additionally, original credit cards used by the plaintiff allegedly on behalf of the defendant, were also exhibited.
14. Plaintiff claims that she joined the defendant's office in January 2019 and started working for which the defendant used to pay a retainership fees @ Rs. 27000/- per month. However, plaintiff has not filed any document which goes to substantiate that there was a relationship of employer and employee or master and servant or even Principal and agent between the plaintiff and the defendant. Plaintiff has further not filed on record any document which goes to substantiate any contract of employment or of consultancy between the plaintiff and the defendant or that the defendant was liable to pay an amount of Rs. 27000/- per month towards the monthly retainership to the plaintiff. The plaintiff in her legal notice marked as Ex. PW 1/4 has claimed an amount of Rs. 15,00,000/- towards a friendly loan given by the plaintiff to the defendant, which is alleged to have been given the same through her credit cards, two loans (Rs. 3,00,000/- and Rs. 2,00,000/-) and cash transfer in the Paytm wallet of January 2019-2020 for the travel ticketing (domestic and international) business of the defendant. In the legal notice, no mention of any outstanding retainer fee/ salary has been made Civ DJ 8/21 DLWT01-006792-2020 page no. 8 of pages15 Timsi V. Deepika Bisht by the plaintiff. The plaintiff, in the plaint, while quantifying the suit claim at the same value i.e. Rs. 15,00,000/- has claimed that no salary for the period w.e.f. February 2020 to Jul 2020 has been paid to her by the defendant but no particular amount towards the outstanding salary has been quantified in the entire plaint. The plaintiff has further failed to point out from the bank statement filed by her that she was in receipt of any salary / retainership amount of Rs. 27000/- allegedly received by her w.e.f. January 2019 till January 2020. Accordingly, in the understanding of the Court, the plaintiff has not been able to prove her contention/claim in regard to the monthly retainership which has been alleged by the plaintiff to be outstanding against the defendant w.e.f. February 2020 to July 2020.
15. So far as the claim of the plaintiff qua the liability of the defendant towards the personal loan is concerned, the plaintiff in her legal notice Ex. PW 1/4 has claimed that she extended friendly loan of an amount of Rs. 15,00,000/- to the defendant. i.e. through her credit card payments, two separate credit card loans of Rs. 3,00,000/- and Rs.2,00,000/- and cash transfers in the Paytm wallet of Defendant from January 2019-2020 for the travel ticketing (domestic and international) Civ DJ 8/21 DLWT01-006792-2020 page no. 9 of pages15 Timsi V. Deepika Bisht business of the defendant. However, in the plaint, in para 10 and 11, it was averred that plaintiff had obtained a personal loan amounting to Rs. 3,00,000/-, having been granted by the bank and which was taken away by the defendant for her business, and also that she had obtained two more loans amounting to Rs. 80,000/- and Rs. 2,00,000/- at the insistence of the defendant's family. The plaintiff while alleging that she had obtained two personal loans (Rs. 3,00,000/- & Rs. 2,00,000/-) in the legal notice and Rs. 3,00,000/, Rs. 80,000/- and Rs. 2,00,000/- in the plaint, has nowhere specified as to on which date were the alleged personal loans taken by her and as to how was the said amount transferred to the defendant. Although, the plaintiff has claimed to have taken three personal loans on the insistence of the defendant but she has failed to prove the same through the documents filed on record. The evidence of the plaintiff when read with the documents and more particularly with the legal notice issued by her and which has been exhibited as Ex. PW 1/4, does not inspire confidence as in the legal notice she has raised the demand of Rs. 15,00,000/- towards the liability of loan by highlighting two specific loans of Rs. 3,00,000/- and Rs. 2,00,000/-, whereas in the plaint, she has enhanced the amount of Civ DJ 8/21 DLWT01-006792-2020 page no. 10 of pages15 Timsi V. Deepika Bisht personal loan to Rs. 5,80,000/- and that too is bereft of any details as to when such personal loans were obtained. There is no document on record or exhibited by the plaintiff which connects the plaintiff to the defendant or which goes to prove that any loan was obtained by the plaintiff for and on behalf of the defendant. Accordingly, in view of the above findings, claim of the plaintiff towards the loan liabilities incurred by her on behalf of the defendant is not proved.
16. So far as the claim of the plaintiff qua the liability of defendant towards the credit cards outstanding dues is concerned, plaintiff contends in her plaint that w.e.f. January 2019 she joined the defendant's office (SMILES FOR MILES TRAVELS) and started working with her. It is further the case of the plaintiff that since the plaintiff had good credit card limits, the defendant by taking advantage of her simplicity, started booking the air tickets by using petitioner's two credit cards (HDFC and SBI). It is further the case of the plaintiff that at the insistence of the defendant, the plaintiff applied for more credit cards from RBL bank, IndusInd Bank and Bank of Baroda.
17. The plaintiff alleges that the defendant used to book all tickets for her domestic and international travel ticketing business by using the Civ DJ 8/21 DLWT01-006792-2020 page no. 11 of pages15 Timsi V. Deepika Bisht abovesaid credit cards of the plaintiff. It is further the case of the plaintiff that last payment towards the credit card bills of the plaintiff was made by defendant till February 2020 which was paid in the month of March 2020 and thereafter, defendant stopped making the payments towards the dues of credit card in which either loan was taken/transactions were made, on the pretext of availing benefit of moratorium due to COVID-
19.
18. Plaintiff further contends that she sent various messages to the defendant to clear the outstanding/liability of all credit cards and despite the plaintiff receiving messages from the bank for clearing the dues of the purchases done through credit cards as well as towards loan, no repayment was made by the defendant.
19. In support of her claim towards the outstanding dues incurred by the plaintiff on her credit card on behalf of the defendant, reliance has been placed upon exhibits Ex. PW 1/2 and Ex. PW 1/3 by the plaintiff, which are the account statements primarily of HDFC Bank. The plaintiff however has failed to quantify for various heads of claims including the claims towards outstanding credit card payments. The plaintiff has further, at no place, specified as to the exact quantum of the credit card Civ DJ 8/21 DLWT01-006792-2020 page no. 12 of pages15 Timsi V. Deepika Bisht dues which are alleged to have been incurred by her on behalf of and for the business of the defendant, and also the period during which such dues have been incurred by her. The detailed account statement are not helpful at all in making assessment of the amount which plaintiff is claiming from the defendant. The account statements contain numerous transaction all of which have to be attributed to the plaintiff in the absence of any cogent proof to the effect that such payments were made/ expenses were incurred by plaintiff on behalf of the defendant. There are large number of transactions which have purportedly been incurred at transactions carried out at 'Smiles For Miles' Travel but proof of these transactions alone is not sufficient to fasten liability on the defendant, especially since plaintiff has not even been able to prima facie prove her professional relationship with defendant or with 'Smiles for Miles Travel'. Specifically for the loans, which plaintiff claims were obtained for and at the asking of the defendant, plaintiff should have led evidence to show that such loans, after having been disbursed to the plaintiff, were further transferred to the accounts of the defendant and that she had been depositing the loan installments from her account. Perusal of the Court record reveals that some semblance of evidence in regard to whether Civ DJ 8/21 DLWT01-006792-2020 page no. 13 of pages15 Timsi V. Deepika Bisht plaintiff had actually taken loan on behalf of the defendant and had incurred expenses on transactions through her credit cards on behalf of the defendant is provided by 'Whats App' chats between plaintiff and the defendant. However, said chats have not been exhibited. Accordingly, this Court is of the opinion that the Plaintiff has failed to prove that the credit facility availed by her from various banks through the credit cards was availed by her for and on behalf of the defendant or the business of the defendant.
20. It is settled law that the Plaintiff has to stand on her/ his/its own legs and despite the defendant being ex-parte, the Plaintiff is duty bound to prove any legally enforceable liability towards the Defendant by leading cogent evidence. The Plaintiff in the present case has failed to prove the relationship of creditor and debtor between her and defendant and has merely placed reliance upon the bank statements which are insufficient to saddle the Defendant with the unsubstantiated liabilities. No endeavor in the present case has been made by the Plaintiff to quantify the liabilities alleged by her to be outstanding against the Defendant.
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21. That being so, the Court is of the opinion that the Plaintiff has failed to discharge the burden placed upon her warranting the dismissal of the present suit.
22. Suit accordingly stands Dismissed being devoid of merit. No order as to costs. File be consigned to the record room.
Announced in the open court (Ajay Gulati-1)
on 2nd June 2023 Addl. District Judge-02
(West District) 02.06.23
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