Delhi District Court
Mansoor Razi vs Farman Ali on 8 February, 2024
1
Mansoor Razi Vs. Farman Ali
IN THE COURT OF GAURAV DAHIYA
CIVIL JUDGE-03,
SHAHDARA DIST., KKD COURTS, DELHI
Civil Suit No:- 1282/2022
Date of Institution: 18.10.2022
Date of Decision: 08.02.2024
Mansoor Razi
S/o Late Sh. Mohd. Qwar
R/o 1/5873, Main Road,
Kabool Nagar, Shahdara,
Delhi-32.
.... Plaintiff
Versus
Farman Ali
S/o Mehrabaan Ali
Chodhary Barf Depot,
School Block, Shakarpur,
Delhi-110092
.... Defendant
SUIT FOR RECOVERY OF RS. 1,00,000/- ALONGWITH
PENDENTE LITE AND FUTURE INTEREST
Civil Suit No: 1282/2022 Mansoor Razi
Vs.
Farman Ali (Gaurav Dahiya)
CJ03/Shd./KKD/Delhi
2
Mansoor Razi Vs. Farman Ali
Present:- None.
JUDGMENT:-
1) The present suit has been filed by the plaintiff seeking recovery of Rs.1,00,000/- along with pendente lite and future interest @ 18 % p.a. from the defendant and any other relief as deemed fit by this Court in favor of the plaintiff.
PLAINTIFF'S VERSION :-
2) Succinctly, as per the plaint, the case of plaintiff is that plaintiff was running a business of supplying ice. That defendant was retailer of ice and used to run his business in the name and style of Chodhary Barf Depot, School Block, Shakarpur, Delhi. That plaintiff has business relations with the defendant and they were in business dealing for last many years. That in the month of December 2021, defendant contacted the plaintiff for purchase of ice. That from 22.12.2021 to 10.04.2022, plaintiff had supplied ice worth Rs.1,22,000/- to the defendant. That after some time, to discharge his liability and to fully settle the matter, defendant issued one cheque bearing no. 634139 dated 15.04.2022 for amount of Rs.1,00,000/- drawn on State Bank of India, Zakir Nagar Branch, New Delhi with the assurance that same shall be duly encashed on presentation. That when plaintiff presented the said cheque for encashment, it got returned with the remark 'Payment stopped by drawer' vide return memo dated 06.05.2022. That thereafter, plaintiff made several request to the defendant to make the payment but to no Civil Suit No: 1282/2022 Mansoor Razi Vs. Farman Ali (Gaurav Dahiya) CJ03/Shd./KKD/Delhi 3 Mansoor Razi Vs. Farman Ali avail. That plaintiff also sent a legal notice dated 01.07.2022 calling upon the defendant to pay the due amount within 15 days, however, defendant did not comply to the said notice. That the aforesaid fact clearly shows that defendant had withheld the money of the plaintiff wrongly and malafidely. That defendant is liable to pay of Rs. 1,00,000/-
along with interest and hence the present suit.
WS OF DEFENDANT:-
3) On summons being issued, defendant appeared through his counsel and WS was filed on behalf of defendant. Preliminary objections were taken stating that suit of the plaintiff is devoid of cause of action and plaintiff had not approached the court with clean hands and had suppressed material facts. It was stated that plaintiff had not placed on record any invoice/bill/valid proof to show that the ice was supplied to the defendant on 22.12.2021 to 10.04.2022. That defendant contacted the plaintiff in December 2021 and both the parties entered orally into business transaction and defendant always used to make the payment of the ice supplied to him through online mode. That in the month of March 2022, defendant placed an order of ice worth Rs.1,00,000/- and the cheque bearing no. 634139 dated 15.04.2022 was given as a security cheque against the said order. That plaintiff neither supplied the ice to the defendant nor returned his cheque even after several requests, consequent to which defendant had to get the payment stopped by his banker. That defendant also duly replied the legal notice sent by the plaintiff. In reply on merits all the other averments of the plaint are denied in toto and it is prayed that suit may be dismissed with cost.
Civil Suit No: 1282/2022 Mansoor Razi
Vs.
Farman Ali (Gaurav Dahiya)
CJ03/Shd./KKD/Delhi
4
Mansoor Razi Vs. Farman Ali
ISSUES:-
4) From the pleading of the parties following issues were framed vide
order dt. 08.06.2023:-
1. Whether the cheque in question dated 15.04.2022 was issued by the defendant only for purpose of security and same has been misued by the plaintiff? (OPD)
2. Whether the plaintiff is entitled to recovery of Rs.1 lakh alongwith interest from the defendant, as prayed for? (OPP)
3. Relief.
PLAINTIFF'S EVIDENCE:
5) To prove his case, the plaintiff examined himself into the witness box as PW-1 and tendered his affidavit Ex. PW-1/A and relied upon the documents from Ex.PW1/1 to Ex.PW1/7 including Cheque bearing no.634139 dated 15.04.2022, which is Ex. PW1/1, Return memo dated 06.05.2022 which is Ex. PW1/2, Legal notice which is Ex. PW1/3, Speed post dated 01.07.2022 which is Ex. PW1/4, Track report which is Ex. PW1/5, Adhaar card of deponent which is Ex. PW1/6 (OSR), Call recording which is Ex. PW1/7. Thereafter, he was duly cross examined by counsel for defendant and thereafter, PE was closed vide statement of plaintiff dated 18.09.2023.
Civil Suit No: 1282/2022 Mansoor Razi
Vs.
Farman Ali (Gaurav Dahiya)
CJ03/Shd./KKD/Delhi
5
Mansoor Razi Vs. Farman Ali
DEFENDANT'S EVIDENCE:-
6) On the other hand, defendant examined himself into the witness
box as DW-1 and tendered his affidavit Ex. DW-1/A. He was duly cross examined by counsel for plaintiff and thereafter DE was closed on 01.12.2023.
ARGUMENTS:-
7) It has been argued by Ld. Counsel for plaintiff that regular transactions used to take place between the plaintiff and the defendant wherein, ice was being supplied by the plaintiff and after the supply of the ice, defendant used to make the payments within a week or so. It is further argued that for the ice supply between 22.12.2021 and 10.04.2022, an outstanding amount of Rs.1,22,000/- became due towards the defendant which was settled for Rs.1,00,000/- and as an assurance for the payment, a cheque was also given by the defendant. It is further argued that the said cheque was given for clearing the outstanding dues towards discharge of liability and not as a security cheque.
8) Per contra, ld counsel for defendant has argued that the cheque in question was given by the defendant as a security cheque towards one big order for purchase of ice placed in the month of March 2022 by the defendant with the plaintiff. It is further argued that the plaintiff failed to deliver the order and for that reason, the defendant intimated his bank about stopping payment for the cheque in question.
Civil Suit No: 1282/2022 Mansoor Razi
Vs.
Farman Ali (Gaurav Dahiya)
CJ03/Shd./KKD/Delhi
6
Mansoor Razi Vs. Farman Ali
9) Arguments advanced on behalf of Ld. Counsel for both the parties
have been heard. File has been minutely perused. My issue wise findings are as follows:-
ISSUE NO. 110) The onus to prove the fact that the cheque in question was given as a security cheque was placed on the defendant.
11) It is observed in a nutshell, the case of plaintiff is that the ice was being supplied by the plaintiff to the defendant and after the supply of the same, defendant used to make the payments within a week or so.
That the transactions for supply of ice pertaining to which the present dispute arose took place between 22.12.2021 and 10.04.2022 for which, an outstanding amount of Rs.1,22,000/- became due towards the defendant. That when the defendant failed to make the payment even after repeated requests, it was orally settled between the parties for Rs.1,00,000/-, in lieu of which, cheque Ex.PW1/1 was given by the defendant. That the cheque was presented before the bank and returned back by the bank with the remarks/reasons 'payment stopped by drawer' vide return memo Ex.PW1/2.
12) The defendant took the plea that the cheque in question was given as a security cheque and therefore, the burden was placed on him to prove this fact by evidence. The defendant has relied on the contradictions in the cross examination of the plaintiff wherein at one Civil Suit No: 1282/2022 Mansoor Razi Vs. Farman Ali (Gaurav Dahiya) CJ03/Shd./KKD/Delhi 7 Mansoor Razi Vs. Farman Ali point, the plaintiff has deposed that he used to give kachha bill to customers while selling ice and he has failed to produce any such bill for the order placed by the defendant. The defendant has further relied on the admission made by the plaintiff during his cross examination that the defendant used to make online payments sometime via UPI or paytm.
13) It is to observe that the defendant has not placed on record any document in support of his claim and has not even produced any witness to depose that the said cheque was given as a security cheque only. Further, in his evidence affidavit Ex.DW1/A, the defendant has asserted that the cheque in question was given as a security cheque towards his order to buy ice worth of Rs.1,00,000/- from the plaintiff in March 2022 and the plaintiff neither placed the order nor returned the cheque in consequence of which, he got payment stopped by his banker. To the utter surprise of this court, the plaintiff neither gave any written criminal complaint to the police nor filed any civil suit for breach of contract. The defendant in his evidence affidavit has admitted the business transactions between him and the plaintiff and has also admitted supply of ice between 22.12.2021 and 10.04.2022 by the plaintiff to him. He has also admitted that he used to make payment after purchase only.
14) Further, the defendant has himself admitted that previously also there were transactions between the parties on the basis of oral agreed terms. However, the defendant has not produced any bill pertaining to previous transactions for which payments had been made by him through online mode. Thus the argument of the defendant that the plaintiff has not produced any bill of this particular transaction does not carry any Civil Suit No: 1282/2022 Mansoor Razi Vs. Farman Ali (Gaurav Dahiya) CJ03/Shd./KKD/Delhi 8 Mansoor Razi Vs. Farman Ali weight as there are no bills for the previous transactions also, however, payment by the defendant is admitted.
15) The defendant had not uttered even a single word, if the said cheque was given as blank dated and there is no other reason to presume that cheque would have been given by the defendant after filling the date, as a security cheque and why some cheque being filled with date and amount would have been received by the plaintiff as a security cheque, which would have got stale if not used within the period of three months from the date of cheque.
16) Thus the position is that the business relations between the parties for supply of ice are established and it is also admitted that cheque in question belongs to the defendant. Due to the reasons mentioned in preceeding paragraphs the defendant has failed to prove that the cheque in question was given for security only and was misused by the plaintiff. Accordingly, issue no.1 is decided against the defendant.
ISSUE NO.2:-
17) Having discussed the case in brief while dealing with issue no.1, it is to observe that the plaintiff in his evidence affidavit Ex.PW1/A has asserted the facts averred by him in his plaint. The stance taken by him that he used to supply ice to the defendant has been admitted by the defendant in his evidence affidavit Ex.DW1/A. That ice had been supplied by him from 22.12.2021 to 10.04.2022 to the defendant and that Civil Suit No: 1282/2022 Mansoor Razi Vs. Farman Ali (Gaurav Dahiya) CJ03/Shd./KKD/Delhi 9 Mansoor Razi Vs. Farman Ali a cheque was given by the defendant to him towards full and final payment as per oral settlement agreed between them. The cheque bearing no. 634139 dated 15.04.2022 is Ex.PW1/1 and the defendant has not disputed the factum of cheque. The return memo of the cheque has been exhibited as Ex.PW1/2, thus proving the fact that cheque was returned by the bank for reason of payment stopped by drawer. To prove the fact of liability of the defendant towards the plaintiff for which the cheque in question was given by defendant to him, a CD containing call records dated 18.04.2022, 05.05.2022 and call after filing of the case has been exhibited as Ex.PW1/7. The transcript and certificate under Section 65-B Indian Evidence Act has also been placed on record along with the CD.
Perusal of the CD and transcript would show that there are conversations between the parties relating to liability of money and presenting of the cheque in the bank.
18) The plaintiff was cross examined at length by the defendant, however, nothing substantial came out of the cross examination. Though the plaintiff has admitted that no bill was given by him for the order placed with him during the period 22.12.2021 to 10.04.2022, however, the same is not very relevant as the oral business transactions have been admitted by the defendant in his evidence affidavit and he has failed to prove that the cheque in question was given as a security cheque only.
19) Accordingly, the entire plea taken on behalf of defendant that said cheque was a security cheque seems to be false and on the other hand, the version of plaintiff is duly proved on the standard of preponderance of probabilities.
Civil Suit No: 1282/2022 Mansoor Razi
Vs.
Farman Ali (Gaurav Dahiya)
CJ03/Shd./KKD/Delhi
10
Mansoor Razi Vs. Farman Ali
20) Accordingly, it is concluded that defendant is liable to pay the amount of Rs.1,00,000/- to the plaintiff. Regarding the interest claimed at the rate of 18 % per annum, it is observed that since there was no agreed rate of interest on the delayed payment, the interest of 9% p.a. is awarded on the amount of Rs.1,00,000/ with effect from date of institution of suit till date of recovery of the amount would suffice and is accordingly allowed. Issue no.2 is accordingly decided in favor of the plaintiff and against the defendant.
ISSUE NO. 3 RELIEF
21) In view of findings of above issues, suit of the plaintiff is hereby decreed with cost to the effect that the defendant will pay the amount of Rs.1,00,000/- to the plaintiff along with simple interest pentente lite and future @ 09 % p.a. from the date of institution of suit till date of realization of the said amount, within 01 month from date of decree. Decree sheet be prepared accordingly.
Pronounced in open court: (Gaurav Dahiya)
Dated: 08.02.2024 Civil Judge-03, Shahdara
KKD Courts, Delhi
Note :-This Judgment contains ten pages and all the pages have been checked and signed by me.
(Gaurav Dahiya)
Dated: 08.02.2024 Civil Judge-03, Shahdara
KKD Courts, Delhi
Civil Suit No: 1282/2022 Mansoor Razi
Vs.
Farman Ali (Gaurav Dahiya)
CJ03/Shd./KKD/Delhi