Delhi District Court
Sh. Badrul Islam vs Mrs. Rose Marry Kujur on 16 August, 2022
IN THE COURT OF SH. AVIRAL SHUKLA, CIVIL JUDGE-01, SOUTH
EAST DISTRICT, SAKET COURTS, NEW DELHI
Presiding Officer: Sh. Aviral Shukla, DJS
Suit No. 1772/19
In the matter of:-
Sh. Badrul Islam
Proprietor of M/s ABF International
Office at B-49, 3rd Floor,
Shaheen Bagh, Jamia Nagar,
New Delhi-110025. .....Plaintiff
Vs.
Mrs. Rose Marry Kujur,
W/o Sh. Mustaq Ali,
R/o A-260, First Floor,
Bhadana Market, Chungi No.2,
Lal Kuan, New Delhi
Also At:
1646-C/15, Near Hanuman Temple,
Govindpuri, Kalkaji, New Delhi .....Defendant
Date of institution of Suit : 24.10.2019
Date on which Judgment was reserved : 19.07.2022
Date of pronouncement of the Judgment : 16.08.2022
EX- PARTE JUDGEMENT
1.The plaintiff has instituted the present suit against the defendant for recovery of an amount of Rs. 2,57,290/- alongwith pendente-lite and future interest @ 18% per annum till the date of realization of the suit amount and costs.
2. The Plaintiff is a manufacturer of garments and is doing the work of manufacturing in different types of fabric. The defendant is stated to have been doing job work and in this regard approached the plaintiff for some Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date: 2022.08.16 16:20:10 +0530 CS No. 1772/19 Badrul Islam Vs. Rose Mary Kujur 1 of 6 work. It is stated that after seeing the work ability and work performance of the defendant, the plaintiff negotiated with the defendant and got prepared a work and costing format on 01.12.2016. The defendant demanded advance amount of Rs. 2,50,000/- i.e. about 25% of the work value. It is stated that as per the demand of the defendant and as per costing format, the defendant assured the plaintiff to complete the work as soon as possible. Thereafter, the plaintiff transferred the amount of Rs. 2,50,000/- to the defendant. Plaintiff has issued four purchase orders no. ABF0003/16 dated 23.12.2016, ABF0006/16 dated 23.12.2016, ABF0004/16 dated 23.12.2016 and ABF0007/16 dated 23.12.2016 to the defendant.
3. It is stated that the work of the plaintiff was time bound and after 15 days days from issue of the purchase orders, the plaintiff approached the defendant, but she was not found at her premises. After sometime, the defendant had contacted the plaintiff and told that she is facing crises and is going to 'finish her unit'. Defendant also gave assurance to the plaintiff to return the amount which she had taken as advance against the work order. Thereafter towards the discharge of her liability, defendant issued a cheque bearing no. 079950 dated 06.03.2018 for a sum of Rs. 2,57,290/-, drawn on Central Bank of India, Ram Tirath Nagar Branch, New Delhi and the amount of Rs. 7,290/- against the costing of samples and assured that the cheque shall be honoured on presentation. Upon presentment, the said cheque got dishonored and was returned back as unpaid with the remarks 'Funds Insufficient' vide return memo dated 09.03.2018. The plaintiff informed the defendant in this regard and the defendant assured the plaintiff to present the said cheque again for encashment after sometime, but the same got dishonoured with the same reason. Defendant again assured the plaintiff to present the said cheque after one month and as per the assurance, the AVIRAL Digitally signed by AVIRAL SHUKLA CS No. 1772/19 Badrul Islam Vs. Rose Mary Kujur SHUKLA 2 of 6 Date: 2022.08.16 16:20:19 +0530 plaintiff presented the said cheque but the same was again returned unpaid with the same reason vide cheque return memo dated 27.04.2018. It is alleged that defendant has not made any payment on one pretext or the other. Despite repeated requests, reminders and demands by the plaintiff, defendant failed to make payment of advance amount to the plaintiff. Thereafter, the plaintiff sent a legal notice dated 25.07.2019 to the defendant, but to no avail. It is prayed that defendant is liable to pay an outstanding amount of Rs. 2,57,290/- alongwith interest @ 18% per annum till the date of realization of the amount. Hence, the present suit.
4. Summons of the suit were sent, which stood served upon the defendant.
Defendant appeared in the proceedings through counsel and same has been recorded in ordersheet dated 12.01.2021. During the course of proceedings, counsel for defendant sought permission of the court to withdraw his vakalatnama stating that the defendant was not in contact with the counsel and same was allowed. Thereafter, the proceedings against defendant were set ex-parte vide order dated 11.11.2021.
5. To prove its case, plaintiff examined himself as the sole witness and tendered his evidence by way of affidavit Ex.PW1/A and relied upon the following documents: -
(i) Certificate of Importer Exporter Code Ex.PW1/1
(ii) The document of the defendant under Indian Registration Act provided by the defendant to the plaintiff Ex.PW1/2 (colly)
(iii) Statement of Account of the plaintiff Ex.PW1/3
(iv) Purchase Orders and Costing Format Ex.PW1/4 (colly) (v) Original cheque Ex.PW1/5
(vi) Cheque return memos dated 09.03.2018 and 27.04.2018 Ex.PW1/6 (colly)
(vii) Copy of legal notice dated 25.07.2019 Ex.PW1/7
(viii) Postal receipts Ex.PW1/8 (colly) AVIRAL Digitally signed by AVIRAL SHUKLA SHUKLA Date: 2022.08.16 16:20:28 +0530 CS No. 1772/19 Badrul Islam Vs. Rose Mary Kujur 3 of 6
(ix) Return envelops Ex.PW1/9 (colly)
6. Since none appeared for the defendant when the plaintiff was to be examined, the evidence was recorded ex-parte. Thereafter, plaintiff closed its ex-parte evidence on 30.03.2022 and the matter was posted for ex-parte final arguments.
7. During the course of final arguments, the Ld. counsel for plaintiff relied on the aforesaid exhibited documents and the unrebutted deposition of PW1 to pray for a decree for the suit amount of Rs. 2,57,290/- along with interest @ 18% per annum.
8. Heard the ex-parte final arguments advanced by counsel for plaintiff. This court has carefully perused the evidence on record in light of the pleadings of the plaintiff and considered the oral submissions of Ld counself for plaintiff.
9. To prove its case, the plaintiff has placed reliance upon the Purchase Orders and Costing Format Ex.PW1/4 (colly) alongwith the statement of account of the plaintiff Ex.PW1/3 to show that advance was paid to the defendant in lieu of the purchase orders. Further, the plaintiff has relied upon the cheque dated 06.03.2018 bearing no. 079950 (Ex.PW1/5) that was issued by the defendant in the name of proprietorship of plaintiff namely M/s ABF International. The aforesaid cheque was dishonoured upon presentation and the same is reflected in cheque return memos Ex.PW1/6 (colly). The aforesaid documents establishe on the preponderance of probability that an amount of Rs. 2,57,290/- was due and payable by the defendant to the plaintiff and the same has remained unpaid. The court can therefore safely Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date: 2022.08.16 16:20:39 +0530 CS No. 1772/19 Badrul Islam Vs. Rose Mary Kujur 4 of 6 rely on the documents, more so when the evidence has remained uncontroverted and unchallenged. The service of legal notice Ex.PW1/7 is deemed to be proved from the accompanying original postal receipt Ex.PW1/8 (colly). Since the suit amount was not received despite service of legal notice, it stands established that such an amount remained wholly unpaid.
10. Furthermore, the deposition of PW-1 and the documents relied upon by the said witness stands unrebutted and unchallenged, as the witness was not cross examined by the defendant. This court does not find any reason to disbelieve the unrebutted testimony of PW-1 recorded on oath in the court.
11. In view of the foregoing reasons, it stands established that a sum of Rs.
2,57,290/- is due on the defendant to be paid to the plaintiff.
12. Since this court has already found that the plaintiff is entitled to recover a sum of Rs. 2,57,290/- from the defendant, there is merit in the prayer for interest. The claimed interest of plaintiff at the rate of 18% per annum is excessive in the facts and circumstances of the present case. The just claim of the plaintiff shall be served, if interest at the rate of 10% is granted from the date of filing of the suit till the date of realization of the suit amount.
13. The plaintiff, having incurred expenses in pursuing the present litigation, is also entitled to the costs of the suit.
Relief
14. In view of the foregoing reasons, the present suit is decreed in favour of the plaintiff and against the defendant. The plaintiff is held entitled to recover from the defendant a sum of Rs. 2,57,290/- alongwith interest @ 10% per Digitally signed by AVIRAL AVIRAL SHUKLA CS No. 1772/19 Badrul Islam Vs. Rose Mary Kujur SHUKLA 5 of 6 Date: 2022.08.16 16:20:47 +0530 annum on the principal amount from the date of filing of the suit till the date of realization of the suit amount.
15. The plaintiff is also awarded costs of the suit.
16. Decree sheet be prepared accordingly accordingly.
17. File be consigned to Record-Room after due compliance.
AVIRAL Digitally signed by
AVIRAL SHUKLA
Pronounced in the open
SHUKLA Date: 2022.08.16
16:20:53 +0530
(Aviral Shukla)
Court on 16.08.2022 Civil Judge-01, South East,
Saket Court, New Delhi.
16.08.2022
CS No. 1772/19 Badrul Islam Vs. Rose Mary Kujur 6 of 6