Delhi District Court
Pragti Financiers vs Sanjay on 7 November, 2023
IN THE COURT OF Ms BHARTI GARG, CIVIL
JUDGE 07, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
Civil Suit No. : 997/19
CNR No. : DLCT03-002405-2019
Date of Institution: 09.04.2019
Date of Reserving Judgment: 07.11.2023
Date of Decision: 07.11.2023
1. Pragti Financiers
AD-85A, Shalimar Bagh,
New Delhi.
Through its Proprietor Sh. Vikas Verma.
2. Sh. Vikas Verma,
Proprietor of Pragti Financiers
AD-85A, Shalimar Bagh,
New Delhi.
...............Plaintiff
Versus
1. Sh. Sanjay
S/o Sh. Ram Kishan
R/o D-67, Swami Dayanand Colony,
Kishan Ganj, Delhi-110007.
Second address:
Safai Karamchari in MCD
Ward No. 27, Duty Inderlok under Karol Bagh Zone,
MCD Office, Delhi-110035.
2. Sh. Mukesh
S/o Sh. Mangat
R/o D-53, Swami Dayanand Colony,
Kishan Ganj, Delhi-110007.
Second address:
Pragti Financiers & Anr. vs. Sanjay & Anr.
Civil Suit No:- 997/19 Page 1/ 9
Safai Karamchari in MCD
Ward No. 80, Duty Khari Baoli, Near Fatehpuri,
Under City Zone, Delhi-110006.
.............Defendants
Suit for recovery of Rs. 62,844/- along with interest
JUDGMENT (Ex-parte)
1. This is the suit for seeking recovery of Rs.62,844/- including adverse possession charges upto 07.03.2019 and till realization of decreetal amount.
PLAINT
2. Succinctly put, it is averred in the plaint that plaintiff no. 2 is the sole proprietor of plaintiff no.1 & is doing the business of financing/ renting of articles. Defendant no.1 (hirer) on the guarantee of defendant no.2 took on hire an LED TV Make USHA Model FVC5N, Chasis No.00087 on 26.10.2017. The total hire price of the said article is Rs. 46,000/- and defendant no. 1 had made an initial payment of Rs. 15,000/-. The defendants executed an agreement dated 26.10.2017 and it was agreed that defendant no.1 shall pay monthly amount of Rs.2,584/- for 12 months towards rent for hire with first payment to be made on or before 07.12.2017. It was further agreed that in the event of breach of any term of the agreement, the plaintiff shall be entitled to terminate the hiring agreement and the possession of article by defendant would be treated as adverse possession. It is averred that the defendant paid only an amount of Rs. 9,500/- as rent i.e. vide receipt no. 8117 dt. 07.02.18 for Pragti Financiers & Anr. vs. Sanjay & Anr.
Civil Suit No:- 997/19 Page 2/ 9Rs. 2,500/-, receipt no. 8517 dt. 22.04.18 for Rs. 4,500/- and receipt no. 8729 dt. 09.06.18 for Rs. 2,500/-, and failed to pay the remaining rent amounts on due dates. It is further averred that as per the statement of account maintained by plaintiff qua the defendants in the regular course of business, the latter are liable to pay a sum of Rs. 62,844/- (cost of article as Rs. 40,000/-, hire purchase charges as Rs. 6,000/- and monthly rent Rs. 31,844/- from 13.02.2019 minus the initial payment of Rs. 15,000/-). It is further stated that the defendants neither restored the possession of the article to the plaintiff nor paid the aforesaid amount despite repeated demands. The defendants were sent legal notice dated 13.02.2019 to pay the outstanding amount and restore the possession within 15 days, however, they have not complied with the notice despite service. Therefore, the present suit has been filed seeking the relief as mentioned in para no. 1 of the judgment.
WRITTEN STATEMENT:-
3. Pursuant to service of summons, defendant no. 1 appeared before the court, but failed to appear subsequently, after which, he was proceeded against ex-parte vide order dated 12.04.2022. On the other hand, defendant no. 2 appeared and filed written statement, wherein he has admitted that he was the guarantor of defendant no. 1 in respect of the alleged transaction of hire purchase agreement made between defendant no. 1 and plaintiff. However, he has denied that he is liable to make any payment to the plaintiff since complete payment was already made by defendant no. 1 to the plaintiff. It is pleaded that Pragti Financiers & Anr. vs. Sanjay & Anr.Civil Suit No:- 997/19 Page 3/ 9
defendant no. 1 had purchased the LED TV of Rs. 40,000/- from the plaintiff and after deducting the initial payment of Rs. 15,000/-, he had to pay only Rs. 25,000/- out of which Rs. 9,500/- were paid in the manner asserted by plaintiff and further, Rs. 15,000/- were paid towards the settlement. All other averments of the plaint are refuted and it is prayed that the suit be dismissed.
REPLICATION:-
4. In pursuance of written statement filed by defendant no. 2, plaintiffs filed replication, in which the averments of plaint have been reiterated and the allegations of written statement have been denied.
ISSUES:-
5. On the basis of the pleadings of the parties, following issues were framed vide order dated 12.07.2022 by the Ld. Predecessor of this Court:-
Issue no.1- Whether plaintiff has no locus standi to file the present suit against defendant no. 2? OPD2 Issue no. 2- Whether defendant no. 2 has no liability for payment of remaining amount as guarantor as fully payment has already been made by defendant no. 1? OPD2 Issue no. 3- Whether plaintiff is entitled to a decree of Rs. 62,844/- including adverse Pragti Financiers & Anr. vs. Sanjay & Anr.Civil Suit No:- 997/19 Page 4/ 9
possession charges up to 07.03.19 and till realization of decreetal amount? OPP Issue no. 4 - Relief.
PLAINTIFF EVIDENCE:-
6. In order to prove his case, the witness namely Sh.
Vikas Verma stepped into the witness box and was examined as PW1, who tendered his evidence by way of affidavit as Ex. PW1/A and relied upon following documents:-
i. Ex. PW1/1- Agreement dt. 26.10.17.
ii. Ex. PW1/2 (colly) - Legal notice dt. 13.02.19 alongwith postal receipts and tracking reports. iii. Ex. PW1/3 (colly) - Statement of account.
iv. Ex. PW1/4 - Certificate u/s 65B of Indian Evidence Act.
v. Ex. PW1/5 - Tax invoice/Bill dt. 26.10.17.
7. However, despite giving opportunity for cross- examination of PW1, the same was not availed by defendant no. 1 as he was ex-parte and also by defendant no. 2 despite sufficient opportunities, whereafter the right of defendant no. 2 to cross examine PW1 was closed vide order dt. 21.03.23 and he was also proceeded against ex-parte. Thereafter, plaintiff no. 2 closed evidence vide statement dated 21.03.2023 and the matter was listed for DE.
DEFENDANT EVIDENCE:-
Pragti Financiers & Anr. vs. Sanjay & Anr.Civil Suit No:- 997/19 Page 5/ 9
8. Despite grant of sufficient opportunities, no evidence was led by defendants and as they had apready been proceeded ex-parte, their right to lead evidence was closed vide order dt. 26.08.23 and the matter was taken up for final arguments. During the course of final arguments, it was submitted on behalf of plaintiffs that an amount of Rs. 15,000/-
was paid by defendant no. 1 after the filing of suit and hence, the plaintiffs are seeking recovery of only Rs. 47,844/-.
9. Heard the Ld. counsel for plaintiff. Perused the record. The issue-wise adjudication and the findings of the court are as under :-
ISSUE NO.3:-
10. The onus to prove this issue lies on the plaintiffs. In that regard PW1 namely Vikas Verma has deposed on the lines of the pleadings. The perusal of agreement dt. 26.10.17 Ex. PW1/1 reveals that one LED TV Make USHA Model FVC5N, Chasis No.00087 was taken on hire purchase basis by defendant no. 1 from the plaintiffs and defendant no. 2 had stood as the guarantor of defendant no. 1. It is further evident from the agreement that the total cash price of the said article is Rs. 40,000/-, the hire purchase charges are Rs. 6,000/- and the said total hire purchase price of Rs. 46,000/-, after deducting the initial payment of Rs. 15,000/- was payable in 12 monthly installments @ Rs. 2,584/-. Despite appearance, defendant no. 1 did not dispute the genuineness of the said agreement. Rather, defendant no. 2 also specifically admitted the execution of said agreement in his Pragti Financiers & Anr. vs. Sanjay & Anr.
Civil Suit No:- 997/19 Page 6/ 9written statement. The same is further corroborated by the invoice dt. 26.10.17 qua the aforesaid article Ex.PW1/5.
11. Furthermore, the statement of accounts Ex. PW1/3 (colly) shows that an amount of Rs. 62,844/- was payable by the defendants as on 07.03.2019, in respect of the hire purchase agreement in question. The statement is supported with the certificate u/S 65B of the Indian Evidence Act, 1872 Ex. PW1/4. The copy of legal notice dt. 13.02.19 and postal receipts Ex. PW1/2 (colly) are on record which further lend credence to the case of plaintiffs.
12. The above said documents have remained unrebutted and uncontroverted in view of no reply and no cross- examination by the defendants. Moreover, there is no reason on record to discredit the unrebutted testimony of PW1. It was for the defendants to dispute the contractual relationship with the plaintiff or to dispute the genuineness and correctness of the statement of accounts or to establish that outstanding amount claimed or part thereof has already been paid to the plaintiff. Nonetheless, defendants have failed to do so.
13. In addition to this, the suit is well within the limitation period as the same has been filed within three years from the date when the hire purchase agreement dt. 26.10.17 was executed between the parties. Also, this court has the territorial jurisdiction to try the suit as part of cause of action has arisen within the jurisdiction of this court as has been established from the unrebutted testimony of PW1. Accordingly, the plaintiffs Pragti Financiers & Anr. vs. Sanjay & Anr.
Civil Suit No:- 997/19 Page 7/ 9have duly discharged their burden of proof under section 101 of the Indian Evidence Act, 1872 and successfully proved the case on the scale of balance of probabilities. After deducting the payment of Rs. 15,000/- made by defendant no. 1 subsequent to the filing of the suit, the plaintiffs are entitled to the recovery of Rs. 47,844/- from the defendants towards principal amount including adverse possession charges. Accordingly , issue no. 3 is decided against the defendants and in favour of plaintiffs.
ISSUE NO.1 and 2:-
14. Both these issues are taken up together as they are inter connected requiring common discussion of law and facts. The onus to prove these issue lies on the defendant no. 2. No evidence was led by defendant no. 2 to establish that plaintiff has no locus standi to file suit against him or that he has no liability to make the remaining payment as guarantor. On the contrary, in view of the finding related to issue no. 3, it is held that plaintiffs are entitled to the recovery of Rs. 47,844/- against the defendants. It is no gainsay that the liability of guarantor is co- extensive with that of principle debtor as is provided u/s 128 of The Indian Contract Act, 1872. Consequently, issue no. 1 and 2 are decided against the defendants and in favour of plaintiffs.
RELIEF :-
15. In the light of discussion in foregoing paragraphs, the suit of plaintiffs are hereby decreed as follows:-
Pragti Financiers & Anr. vs. Sanjay & Anr.Civil Suit No:- 997/19 Page 8/ 9
a) The defendants shall pay, jointly and severally, an amount of Rs. 47,844/- to the plaintiffs.
b) Costs of the suit shall be paid by defendants to the plaintiff as per rules.
16. Let the decree sheet be drawn up accordingly.
17. File be consigned to record room after due Digitally compliance. signed by BHARTI BHARTI GARG GARG Date:
Pronounced in open court 2023.11.07
15:52:58
Dated: 07.11.2023 +0530
(Bharti Garg)
Civil Judge-07, Central,
Tis Hazari Courts, Delhi
Note: This judgment contains nine pages and all the pages have Digitally been checked and signed by me. BHARTI signed by BHARTI GARG Date:
GARG 2023.11.07
15:53:07
+0530
(Bharti Garg)
Civil Judge-07, Central,
Tis Hazari Courts, Delhi
Pragti Financiers & Anr. vs. Sanjay & Anr.
Civil Suit No:- 997/19 Page 9/ 9