Delhi District Court
Javed Akhtar vs Junaid Alam on 25 January, 2019
IN THE COURT OF CIVIL JUDGE, SOUTH EAST DISTRICT, SAKET
COURTS COMPLEX, SAKET, NEW DELHI
Presiding Officer: Ms. Shriya Agrawal, DJS
Suit No.52371/16
In the matter of:-
Javed Akhtar
S/o Shri Shamsul Hassan
R/o H.No.93A, Ground Floor,
Johri Farm, Jamia Nagar,
Okhla, New Delhi ..........Plaintiff
Vs.
Junaid Alam
S/o Late Mahfuz Hasan
R/o Haldwani Morh
Village Aliwaidipur
Zulfiqar Market
Greater Noida, U.P. ..........Defendant
Date of institution of Suit : 16.11.2015
Date on which order was reserved : 15.01.2019
Date of pronouncement of the order : 25.01.2019
EX-JUDGEMENT
1.The present suit has been instituted by the Plaintiff against the Defendant, for recovery of Rs.2,30,000/- alongwith pendente-lite and future interest.
2. The Plaintiff's case as per the amended plaint is that he carries on the business of supply of transit mixtures for building construction and planting alongwith his wife Smt. Musarrat Bano. The defendant had entered into an agreement with the plaintiff on 21.10.2012 at a place in Sarita Vihar , New Delhi, in respect of two vehicles bearing no.HR-38M- CS No.52371/16 Javed Akhtar Vs. Junaid Alam Page 1 of 6 5786 and HR-38K-6786, both trailers having 40 feet high bed, double excel, new 14 tyres each in good running condition, which are in the name of the wife of the plaintiff. The total value of the abovesaid two vehicles was calculated to be Rs.15,00,000/- and both the vehicles were financed from Kotak Mahindra Bank for Rs.7,07,000/-. In the terms of the agreement, it was agreed that the defendant would pay installments of loan amount of Rs.7,07,000/- and would run both the vehicles. It was also agreed between the parties that the plaintiff will take 50% of the profit from both vehicles. The remaining 50% would be paid to the defendant only after clearing of the cheques given by the defendant. The defendant had agreed to give 4 lacs through cheques and cash. The defendant has paid Rs.1,61,000/- by cash depositing the same in the bank of the plaintiff. The defendant has issued four cheques in the name of the plaintiff, who is the husband of the owner of the vehicles and the details thereof are as under:-
i. 106124 dated 15.11.2012 Rs.1,00,000/-
ii. 106126 dated 02.12.2012 Rs.1,00,000/-
iii. 106127 dated 05.04.2013 Rs.30,000/-
iv. 085875 dated 25.10.2012 Rs.20,000/-
_____________________
Total Rs.2,50,000/-
The cheques were drawn on HDFC Bank, Branch Dadri, U.P. The plaintiff had filed a complaint U/s 138 NI Act with respect to the cheque no.106127 dated 05.04.2013 for Rs.30,000/-, which was prosecuted in Saket Court, District South East, but was returned in view of judgment of the Hon'ble Supreme Court on account of want of CS No.52371/16 Javed Akhtar Vs. Junaid Alam Page 2 of 6 jurisdiction. The said two vehicles were handed over to the defendant on 30.06.2012 and the defendant had been running and usurping all profits all by himself and had not paid a single penny to the plaintiff since 30.06.2012 till 09.10.2013, despite several requests made by the plaintiff. Further, the defendant did not pay any tax/ installment towards the financed loan and also did not renew the permits of the abovesaid vehicles. The plaintiff has been paying installments of Rs.28,500/- per month and the loan has been cleared now. As per the information received by the plaintiff, the defendant has been plying both the vehicles in the name of a fictitious firm viz. KGN Trailer in place of KGN Logistic, which is in contravention of the agreed terms of the arrangement. Whenever the plaintiff would ask the defendant to present the abovesaid cheques in his bank, the defendant would request the plaintiff not to do the same, on one pretext or the other pretext and he succeeded in getting the validity period of the aforesaid cheques expired. The defendant has used the vehicles and has earned profits, however is not ready to give back the vehicles to the plaintiff. The plaintiff claims to have a filed a complaint U/s 200 Cr.P.C alongwith a separate application U/s 156 (3) Cr.P.C for registration of an FIR No.329/2013, P.S. Sarita Vihar U/s 420/406 IPC. Thereafter, the plaintiff moved an application to get the release of the above said vehicles on superdari and the concerned court directed the IO to seize the vehicles and accordingly ordered for their release on superdari vide order dated CS No.52371/16 Javed Akhtar Vs. Junaid Alam Page 3 of 6 09.10.2013. Since then, he has not made any payment to the plaintiff. The defendant had been using the said vehicles and earning Rs.5,00,000/- per month, whereas the plaintiff has been making payment of monthly installments regularly in respect of the said vehicles to Kotak Mahindra Bank. The defendant is therefore liable to pay a sum of Rs.2,30,000/- i.e. the amount of the aforesaid 3 cheques
(i) 106124 dated 15.11.2012 Rs.1,00,000/-, (ii) 106126 dated 02.12.2012 Rs.1,00,000/-, (iii) 106127 dated 05.04.2013 Rs.30,000/- alongwith interest to the plaintiff. Despite repeated demands and requests, the defendant has intentionally avoided to make the payment for the cheques amount to the plaintiff. The plaintiff has not claimed the amount of fourth cheque bearing no.085875 dated 25.10.2012 as the statutory period for claiming the same has expired. Accordingly, the present suit has been instituted for recovery of Rs.2,30,000/-alongwith interest 18% per annum.
3. The summons were issued and one counsel had appeared for the defendant on 19.04.2017 and again on 27.05.2017. However, no written statement was filed on behalf of the defendant in the matter. Therefore, vide order dated 28.11.2017, when despite repeated calls, none appeared for the defendant, it was inferred that the defendant was not interested in contesting the suit and the proceedings were therefore set ex-parte against the defendant vide order dated 28.11.2017.
CS No.52371/16 Javed Akhtar Vs. Junaid Alam Page 4 of 6
4. The plaintiff has tendered towards ex-parte plaintiff's evidence his affidavit Ex.PW1/1, relying inter-alia upon the Agreement Mark PW1/A, Cheques Ex.PW1/B, Ex.PW1/C & Ex.PW1/D, Form No.23 for the two vehicles Ex.PW1/F and Ex.PW1/G, Installments Ex.PW1/E.
5. Ex-parte final arguments have been heard. Record stands perused.
6. The plaintiff has instituted the suit for the recovery of the prayed amount against the defendant, essentially on the strength of SPA executed in his favour (Mark PW1/I) by his wife who is stated to be owner of the two vehicles in question and the contractual arrangement between the plaintiff and the defendant (20.10.2012) with respect to the two vehicles/trailers and for the payments agreed to be made towards the same, as claimed to be set out in the agreement. Plaintiff has also relied upon two original cheques dated 02.12.2012 for Rs.1 lac and 15.11.2012 for Rs.1 lacs and certified copy of third cheque dated 05.04.2013 for Rs.30,000/-. The said cheques are shown to have been issued in favour of plaintiff by one Mr. Mohd.Juned Ekbal/ Javed Khan. It has been claimed that these cheques were issued for the payment that were towards the utilization the above said trailers / vehicles. Upon perusal of the agreement Mark PW1/A of which plaintiff had subsequently filed certified copy, it is clear that said receipt-cum- agreement dated 21.10.2012 on the very face of it is an incomplete document. There is reference to certain cheques, the details whereof have not been mentioned in the said document on record. It is highly criptively worded as it does not even reveal the complete set of terms and conditions which are stated to have formed the contractual arrangement inter-se the parties. Even the cheques on record are shown to issued by one Mr. Mohd Juned Ekbal /Javed Khan and not the defendant herein I.e Junaid Alam. Even otherwise, the plaintiff has CS No.52371/16 Javed Akhtar Vs. Junaid Alam Page 5 of 6 averred that two vehicles belonged to his wife, by whom one Special Power Attorney is stated to have been executed in the favour of the former, that was required to be proved, as per law. Therefore, with there being no lawful contract proved by the plaintiff to have been executed between the parties and with the plaintiff having also failed to prove the issuance of the cheques by the very same defendant, against whom the present suit has been filed, the difference in the name being a glaring discrepancy, the plaintiff clearly has not been able to establish his own case. The present suit therefore merits dismissal. It accordingly, stands dismissed as devoid of merits for the above discussed reasons.
Digitally signedby SHRIYA
7. Decree sheet be prepared. SHRIYA AGRAWAL Date: AGRAWAL 2019.01.28
8. File be consigned to Record Room. 18:16:02 +0530 Pronounced in the open Court (Shriya Agrawal) on 25.01.2019 Civil Judge, South East, Saket Court, New Delhi 25.01.2019 CS No.52371/16 Javed Akhtar Vs. Junaid Alam Page 6 of 6