Delhi District Court
K.V. Balakrishnan vs Mr. Bafna Mahavir Chand on 11 October, 2023
IN THE COURT OF MR. SATYABRATA PANDA, ADJ-04,
PATIALA HOUSE COURTS, NEW DELHI
CS NO.420 OF 2022
Date of institution: 28.09.2022
Date of arguments:22.05.2023
Date of judgment: 11.10.2023
Mr. K.V. Balakrishnan
Having chambers at
216, CK Daphtary Block Chambers,
Tilak Lane,
Supreme Court of India,
New Delhi 110001. ........Plaintiff
Versus
Mr. Bafna Mahavir Chand
299, Thambu Chetty Street,
Chennai - 600 001.
Email: [email protected]
Mobile: 9840070730 ........Defendant
JUDGMENT
1 The plaintiff has filed the present suit seeking recovery of Rs.
15,48,430/- along with interest towards legal services rendered as an advocate. The case of the plaintiff as pleaded in the plaint is as follows:
1.1 The Plaintiff is a practicing lawyer in New Delhi. The defendant is promotor of M/s. Bafna Pharmaceuticals Limited and had availed the legal services of the Plaintiff for defending his case/appeal filed against him before the National Company Law Appellate Tribunal, New Delhi (hereinafter referred to as 'NCLAT') bearing No. Comp App (AT) (INS) 203/2019 titled as Saravana Global CS NO.420/22 K.V BALAKRISHNAN VS. BAFNA MAHAVIR CHAND PAGE NO.1 Holdings Limited & Anr. Versus Bafna Pharmaceuticals and Others. The defendant was arrayed as respondent no.3 in the said appeal as the defendant was the ex- director of M/s. Bafna Pharmaceuticals. On or about 22.03.2019, the defendant visited the office of the plaintiff to discuss the aforesaid appeal. While discussing the case in detail the plaintiff had informed the defendant of his professional fees including the retainership fees that would be charged by the plaintiff. It was specifically informed to the defendant that the plaintiff would charge retainership fees of Rs. 15,00,000/- which included the fees only for representing the defendant before the Hon'ble NCLAT for conducting the entire case. It was also specifically informed to the defendant that in addition to the retainership fees the plaintiff would also be charging additional fees towards appearance, drafting and for expenses etc. The defendant agreed to pay the retainership fees and also agreed that in addition to the retainership fees he would also pay the professional fees and expenses as per the bills raised by the plaintiff from time to time for appearances made and for drafting application, replies, submissions etc. The plaintiff thereafter handed over to the defendant the retainership fees bill dated 22.03.2019 for Rs. 15,00,000/-. The Defendant agreed to clear the amounts of the plaintiff at the earliest. The defendant also requested the plaintiff to engage a senior advocate in the matter to represent the case before the Hon'ble NCLAT whenever the case was taken up for hearing and had also agreed to pay all the CS NO.420/22 K.V BALAKRISHNAN VS. BAFNA MAHAVIR CHAND PAGE NO.2 fees raised by the senior advocate. The defendant had assured and agreed to comply with all the terms made by the plaintiff for payment of his fees and expenses and also fees of the senior counsel. The plaintiff had also mentioned that he would take proper care and make sincere efforts while handling the appeal before the Hon'ble NCLAT. The plaintiff had also specifically informed the defendant for clearing the fees of the senior advocate well in advance before the hearing date and the defendant had also agreed and assured to pay the advance fees of the senior advocate.
1.2 The plaintiff duly discharged his duties promptly and diligently and had represented the defendant before the Hon'ble NCLAT on all the dates and had also complied with the directions passed by the Hon'ble NCLAT in regard to filing replies/submissions etc. The plaintiff , as per the request made by the defendant, had also engaged a senior advocate for arguing the case of the defendant before the Hon'ble NCLAT. The orders passed by the Hon'ble NCLAT would reveal that the senior advocate along with the plaintiff had appeared on all the dates of hearing fixed before the Hon'ble NCLAT and had represented the defendant. The plaintiff had raised another bill for the services rendered for Rs. 1,65,000/-.
The defendant had cleared part of the fees and paid only Rs.1,50,000/-. The defendant mentioned that the remaining amount of Rs.15,000/- was deducted towards CS NO.420/22 K.V BALAKRISHNAN VS. BAFNA MAHAVIR CHAND PAGE NO.3 TDS and was deposited by him but the said amount was not reflected in the TDS account paid by the defendant.
1.3 The plaintiff once again in the month of April 2019 demanded his retainership fee and the defendant had once again assured the plaintiff that he would clear the retainership fees bill at the earliest. The plaintiff had also raised another bill for Rs.1,00,000/- on 15.05.2019 towards drafting additional affidavit, list of dates, written submissions etc. on behalf of the defendant and had handed over the said bill to the defendant when he had come to Delhi to attend the hearing and for discussions. The said bill was also not cleared by the defendant and remains unpaid till date. The plaintiff was demanding his fees from time to time but the defendant used to buy time and kept on assuring the Plaintiff that he would clear all the fees of the plaintiff and sought time. The defendant used to mention about his financial difficulties due to the pendency of the appeal before the Hon'ble NCLAT and considering his request the plaintiff accommodated him and believed in the assurances given by the defendant that he will clear all his fees. The defendant was clearing the fees of the senior advocate though with delay and had cleared almost all the bill of the senior advocate except two bills.
1.4 The Hon'ble NCLAT while reserving the judgment in the appeal, vide order dated 09.05.2019 had directed all the parties including the defendant herein to file written CS NO.420/22 K.V BALAKRISHNAN VS. BAFNA MAHAVIR CHAND PAGE NO.4 submissions. The defendant had requested the plaintiff to prepare the same and get the same settled by the senior advocate. The plaintiff informed the defendant that the senior advocate will be charging his fees for settling the written submissions. The plaintiff immediately prepared the written submissions and as per the instructions of the defendant held conference with the senior advocate on 09.05.2019 itself and got the written submissions settled from the senior advocate and filed the same before the Hon'ble NCLAT. The conduct clearly demonstrates that the plaintiff was diligent in discharging his duties but the defendant failed and neglected to clear the dues of the plaintiff as set out in the present suit. For the services rendered the senior advocate raised his bill towards professional fees on the plaintiff on 09.05.2022. The said bill was also sent to the defendant by the plaintiff but the defendant did not honour his commitment in clearing the dues of the senior advocate causing harassment and embarrassment to the plaintiff. Vide email dated 05.06.2019 the plaintiff once again reminded the defendant to clear the balance fees of the plaintiff to which the defendant replied and had mentioned that he would release the fees one by one.
1.5 The plaintiff and the senior counsel made best efforts in the appeal on behalf of the defendant. Ultimately, the appeal against the defendant and others was dismissed by the Hon'ble NCLAT vide judgment dated 04.07.2019. The defendant was very happy after he succeeded in the CS NO.420/22 K.V BALAKRISHNAN VS. BAFNA MAHAVIR CHAND PAGE NO.5 Hon'ble NCLAT and also thanked the plaintiff for his efforts and agreed to clear all the dues soon. Thereafter in the first week of July 2019 he once again he assured that he would clear all the dues of the plaintiff and sought one week's time to clear all the dues of the plaintiff . The plaintiff believed the assurances given by the defendant and once again accommodated him.
1.6 The plaintiff was awaiting clearance of his pending bills when the defendant came to know about the filing of a Civil Appeal before the Hon'ble Supreme Court of India by the appellant (M/s.Saravana Global Holdings Limited) against the judgment passed in the appeal by the Hon'ble NCLAT. The defendant called the plaintiff and requested him to file a caveat petition urgently before the Hon'ble Supreme Court of India so that he is represented before the Hon'ble Supreme Court. The plaintiff informed him that he would charge Rs. 74,000/- for filing the caveat petition and for expenses for filing the same and the plaintiff immediately agreed to the terms of fees put forth by the plaintiff and again assured that he would clear all the pending bills and the fees for caveat of the plaintiff within two days of filing the caveat before the Hon'ble Supreme Court. The plaintiff believed the assurances of the Defendant and thereafter the plaintiff immediately filed the caveat petition before the Hon'ble Supreme Court. After filing, the plaintiff raised a bill dated 15.05.2019 for Rs. 74,000/-. The said CS NO.420/22 K.V BALAKRISHNAN VS. BAFNA MAHAVIR CHAND PAGE NO.6 bill and also the other pending bills were not cleared by the Defendant.
1.7 The defendant once again requested the plaintiff to engage the senior advocate and also requested him to appear before the Hon'ble Supreme Court to represent the defendant who was arrayed as a respondent in the Civil Appeal bearing No. 5344/2019. The plaintiff had also instructed the defendant to clear the fees of the senior advocate well in advance before the hearing fixed before the Hon'ble Supreme Court. The defendant once again assured the plaintiff that he would clear the previous bill dated 10.05.2019 for Rs. 75,000/- and for the appearance before the Hon'ble Supreme Court of the senior advocate within one day and requested the plaintiff to engage the senior advocate. The plaintiff once again believing the assurances given by the defendant appeared before the Hon'ble Supreme Court and also engaged the senior advocate to represent the defendant before the Hon'ble Supreme Court on 15.07.2019. The said Civil Appeal No. 5344/2019 was listed before the Hon'ble Supreme Court on 15.07.2019 and the appeal was dismissed in favour of the defendant herein. The defendant thus also succeeded in the said appeal from the Hon'ble Supreme Court. The order dated 15.07.2019 demonstrates that the plaintiff and the senior advocate had appeared before the Hon'ble Supreme Court and represented the defendant. The defendant had assured that he would clear all the dues of the plaintiff before the CS NO.420/22 K.V BALAKRISHNAN VS. BAFNA MAHAVIR CHAND PAGE NO.7 listing of the case in the Hon'ble Supreme Court but failed and deliberately neglected to clear the dues of the plaintiff.
1.8 For the appearance made on behalf of the defendant on 15.07.2019 before the Hon'ble Supreme Court in the Civil Appeal No. 5344/2019 the senior advocate raised his professional fees bill dated 15.07.2019 for Rs. 2,20,000/-. The defendant did not clear the fees of the senior advocate, despite assurances made by him. Initially, the defendant had paid the fees of the senior counsel but his intentions became dishonest towards the end of the case and he did not pay the fees of the senior advocate who was engaged by the plaintiff on the request and instructions of the defendant. The defendant had assured to pay the fees of the senior advocate but did not clear it within the time as assured by the defendant. Due to the dishonest conduct of the defendant a sum of Rs. 2,95,000/- being the fees payable to the senior advocate fell on the plaintiff as the memo of fees is always raised by the senior advocate on the advocate who engages him. The defendant with ulterior motive intentionally induced the plaintiff to engage a senior advocate to represent his case and did not clear the fees of the senior advocate and has caused huge embarrassment to the plaintiff. The defendant did not clear two bills of the Senior Advocate dated 10.05.2019 for Rs.75,000/- and 15.07.2019 for Rs. 2,20,000/-. The plaintiff kept on reminding the defendant to clear the dues of the senior advocate but all the CS NO.420/22 K.V BALAKRISHNAN VS. BAFNA MAHAVIR CHAND PAGE NO.8 requests of the plaintiff went into the deaf ears of the defendant who had ulterior motives and did not clear the amounts. After getting the services of the plaintiff, the defendant failed and neglected to clear the legitimate dues of the plaintiff.
1.9 The plaintiff took all active steps to defend the appeal filed before the Hon'ble NCLAT. He had also prepared the reply in time and appeared before the Hon'ble NCLAT at all times whenever the case was listed. The plaintiff had also prepared the reply on behalf of the defendant and after the approval of the same it was filed. The plaintiff had also incurred preparation charges and the filing expenses. The plaintiff successfully defended the appeal and the verdict of the Hon'ble NCLAT and also the Hon'ble Supreme Court also came in favour of the defendant. The defendant kept on assuring the plaintiff that he would pay all the fees and the expenses of the plaintiff but failed and neglected to pay them.
1.10 The defendant had assured the plaintiff that he would visit Delhi on 15.07.2019 and would attend the hearing and clear all the dues of the plaintiff and also of the senior advocate but he did not visit Delhi on 15.07.2019. Thereafter, the plaintiff sent a message to the defendant on 15.07.2019 after the success of the case and enquired as to when he will travel to Delhi to which the defendant responded that he would visit Delhi on 16.07.2019. On 16.07.2019 the plaintiff enquired as to when they will CS NO.420/22 K.V BALAKRISHNAN VS. BAFNA MAHAVIR CHAND PAGE NO.9 meet to which the defendant replied that he was in the hospital and informed the plaintiff that he will call. Thereafter the plaintiff sent several messages on 16.07.2019 but the defendant did not respond. On 17.07.2019 the defendant sent a message to the plaintiff stating that the fees money was arranged and will call the plaintiff by 11.00 am on 17.07.2019. The Defendant did not respond to the various calls made by the plaintiff and also did not respond to the messages sent by the plaintiff on 18.07.2019. On 19.07.2019 at around 2.17 pm the defendant sent a message which reads as under:
"patience Sir. Check your bank account please". Upon checking the bank account it was noticed that the defendant had on 19.07.2019 only paid part of the dues of the plaintiff of Rs.7,50,000/- through bank transfer and had not cleared the full dues of the plaintiff. The plaintiff thereafter on 20.07.2019 asked the defendant as to when the plaintiff would clear the balance dues of the plaintiff to which the defendant replied that he will update. The plaintiff sent several messages to the defendant and had also made calls to him but he started avoiding his calls and was sending messages like "can I call you later" or "Sorry Will call tomorrow". The entire month of July and mid-August the defendant did not properly respond to the plaintiff. The defendant had sought time till Friday, 23.08.2019 to clear all the payments due to the plaintiff and so the plaintiff reminded him of his promise on 22.08.2019 but he did not respond neither cleared all the dues of the plaintiff.
CS NO.420/22 K.V BALAKRISHNAN VS. BAFNA MAHAVIR CHAND PAGE NO.10 On 26.08.2019, the defendant sent a message and once again assured that he will clear all the dues of the plaintiff. This also demonstrates that the defendant always assured the plaintiff that he will clear the dues but failed and neglected to clear the dues of the plaintiff. The plaintiff kept on reminding the defendant about the outstanding fees payable by the defendant on many occasions. The defendant once again on 18.10.2019 assured the plaintiff that he was feeling guilty in not clearing the dues and assured the plaintiff that he would clear the dues at the earliest. This message stated: "not ignoring, filling guilty. Will solve at the earliest".
1.11 Thereafter the plaintiff was demanding his entire dues and the defendant used to pick up his call and assured that he will clear his dues but till date he had failed and neglected to clear the dues of the plaintiff. The defendant thereafter had went to the extent of blocking his telephone so that the messages are not received or sent to him and also that the plaintiff could never call him. When the defendant started ignoring the calls and messages the plaintiff wrote an email on 26.05.2020 to the Resolution Professional of the company M/s Bafna Pharmaceuticals and requested him to use his good offices in clearing balance dues of the plaintiff amounting to Rs. 12,19,000/-. The said Resolution professional replied, while marking a copy of the email sent by the plaintiff, stating that he will discuss with the defendant and would revert. On 13.06. 2020 the CS NO.420/22 K.V BALAKRISHNAN VS. BAFNA MAHAVIR CHAND PAGE NO.11 defendant requested the plaintiff to send the details of the pending bills. The plaintiff sent the copies of the pending bills to the defendant vide email dated 18.06.2020 but despite receipt of the email the defendant remained silent and did not clear the dues of the plaintiff . The plaintiff once again expressed his displeasure in regard to the conduct of the defendant in not clearing the dues and had issued an email dated 05.09.2020 and also an email dated 15.09.2020. The defendant did not bother to reply to the said email and also did not clear the dues of the plaintiff. On 20.09.2020 the plaintiff once again wrote an email setting out the assurances which the defendant had made to the plaintiff that he will be calling the plaintiff and clear the dues of the plaintiff by 21.09.2020. The plaintiff once again reminded him about his assurance vide email dated 21.09.2020. The plaintiff once again sent an email on 29.09.2020 and informed him about his conduct in not adhering to his commitments made by the defendant on 21.09.2020. Despite the assurances given to the plaintiff on various occasions the defendant failed to clear the legitimate dues of the plaintiff . The defendant only made part payment of the dues and did not pay the balance amount due to the plaintiff . The messages and also the emails suggest that the defendant deliberately failed to honour his commitments and did not pay the dues of the plaintiff . From the messages and emails exchanged it is also evident that the defendant has admitted to the dues of the plaintiff but has not cleared the dues of the CS NO.420/22 K.V BALAKRISHNAN VS. BAFNA MAHAVIR CHAND PAGE NO.12 plaintiff. The plaintiff had also intimated to the defendant that he would be initiating proceedings as against him for his failure to pay the dues of the plaintiff.
1.12 It is stated in the plaint that the total dues of the plaintiff for the services rendered to the defendant are as under:
DATE OF BILL BILL AMOUNT
22.03.2019 15,00,000.00
15.05.2019 1,00,000.00
15.07.2019 74,000.00
10.05.2019 (senior advocate) 75,000.00
15.07.2019 (senior advocate) 2,20,000.00
Total Rs. 19,69,000
Less part payment received on 7,50,000/-
19.07.2019 from the defendant
Balance principal amount due to Rs. 12,19,000/-
the Plaintiff.
1.13 The plaintiff has also calculated interest @ 9% p.a. on the aforesaid amount of Rs. 12,19,000/- from 15.07.2019 till 18.07.2022 which was Rs. 3,29,430.57. On this basis, the plaintiff has claimed amount of Rs.15,48,430/- in the suit. The plaintiff has also claimed subsequent interest @ 9% p.a. from the date of filing of the suit till actual realisation.
2 The summons in the suit were duly served on the defendant on 07/11/2022 through speed post and on 08/11/2022 through CS NO.420/22 K.V BALAKRISHNAN VS. BAFNA MAHAVIR CHAND PAGE NO.13 registered courier. On 01/02/2023, the learned counsel for the defendant entered appearance and submitted that the defendant would be filing the written statement within the time stipulated by law. However, on the next date of hearing i.e. 11/05/2023, none appeared on behalf of the defendant despite repeated calls and the suit was proceeded ex parte against the defendant. The plaintiff's evidence was recorded ex parte. In support of his case, the plaintiff has examined himself as PW-1 and has tendered his affidavit in evidence Ex.PW-1/A in which he has deposed along the lines of the plaint. The plaintiff has relied upon the following documents:
1.1 Copy of bill dated 22.03.2019 issued by the plaintiff to the defendant for Rs. 15,00,000/- is Ex. PW-1/1. 1.2 Print out of orders passed by NCLAT is Ex. PW-1/2 (colly).
1.3 Copy of bill dated 15.05.2019 issued by the plaintiff to the defendant for Rs. 1,00,000/- is Ex. PW-1/3. 1.4 Print out of the email dated 05.06.2019 from the defendant to the plaintiff is Ex. PW-1/4.
1.5 Print out of the judgment passed by NCLAT is Ex.
PW-1/5.
1.6 Copy of bill dated 15.07.2019 issued by the plaintiff to the defendant for Rs. 74,000/- is Ex. PW-1/6. 1.7 Printout of the order dated 15.07.2019 passed by the Hon'ble Supreme Court is Ex. PW-1/7.
1.8 Copy of bill dated 15.07.2019 issued by the Sr. Advocate to the plaintiff Rs. 2,20,000/- is Ex. PW- 1/8.
CS NO.420/22 K.V BALAKRISHNAN VS. BAFNA MAHAVIR CHAND PAGE NO.14 1.9 Copy of bill dated 15.07.2019 issued by Sr. Advocate to the plaintiff for Rs. 15,00,000/- and bill dated 10.05.2019 for Rs. 75,000/- is Ex. PW-1/9.
1.10 Print out screen shots of massages exchanged between plaintiff and defendant during the period July, 2019 till January, 2020 is Ex. PW-1/10 (colly). 1.11 Print of email dated 25.05.2020 and 26.05.2020 is Ex.
PW-1/11 (colly).
1.12 Print out of email dated 13.06.2020 issued by the defendant to plaintiff is Ex. PW-1/12.
1.13 Print out of email dated 05.09.2020 issued by the plaintiff to defendant is Ex. PW-1/13.
1.14 Print out of email dated 20.09.2020 and 21.09.2020 is Ex. PW-1/14.
1.15 Print out of email dated 20.09.2020 issued by the plaintiff to defendant is Ex. PW-1/15.
1.16 Print out of email dated 25.07.2022 issued by the defendant to plaintiff is Ex. PW-1/16.
1.17 Print out of email dated 25.07.2020 alongwith trail emails is Ex. PW-1/17.
1.18 Print out of email dated 25.07.2022 alongwith trail emails is Ex. PW-1/18.
1.19 Print out of email dated 26.07.2022 alongwith trail emails is Ex. PW-1/19.
1.20 Print out of email dated 26.07.2022 alongwith trail emails is Ex. PW-1/20.
1.21 Print out of email dated 04.08.2022 alongwith trail emails is Ex. PW-1/21.
CS NO.420/22 K.V BALAKRISHNAN VS. BAFNA MAHAVIR CHAND PAGE NO.15 1.22 Print out of email dated 25.08.2022 alongwith trail emails is Ex. PW-1/22.
3 The plaintiff has also deposed in his affidavit in evidence that subsequent to the filing of the suit he had received an amount of Rs. 4,69,000/- from the defendant, and accordingly upon adjustment, the principal amount outstanding came to Rs. 7,50,000/-.
4 It is pertinent to mention that on 22/05/2023 the plaintiff's ex parte evidence was recorded and the final arguments by the plaintiff were also heard and the matter was put up for pronouncement of judgment. However, subsequently, before the pronouncement of the judgment, the defendant filed an application under Order IX Rule 7 CPC for setting aside the order proceeding ex parte against the defendant. This application has been dismissed by a separate order passed today.
5 I have considered the ex parte submissions of the plaintiff and I have perused the record.
6 The defendant had been duly served in the suit on 07/11/2022 and again on 08/11/2022 and on 01/02/2023 and was also represented by a lawyer who entered appearance on behalf of the defendant in the suit and sought time to file written statement. However, despite opportunity, the defendant did not file any written statement disputing the pleadings of the plaintiff made in the plaint and even did not appear in the subsequent hearings and was proceeded ex parte. The conduct of the defendant in the suit has been evasive CS NO.420/22 K.V BALAKRISHNAN VS. BAFNA MAHAVIR CHAND PAGE NO.16 and geared towards delaying the suit. The defendant could not make any good ground to show for his non-appearance in the suit, and as such even his application for setting aside the order proceeding ex parte against the defendant has also been dismissed. The averments made by the plaintiff in the plaint are unrebutted and unchallenged. There being no dispute raised by the defendant by way of filing of written statement by the defendant, the case of the plaintiff as put forth in the plaint is undisputed and is accepted. The plaintiff has already deposed as a witness along the lines of the plaint. The plaintiff's testimony is also unchallenged. I have no special reason to disbelieve the testimony of the plaintiff. The documentary evidence relied upon by the plaintiff is also unchallenged.
7 The plaintiff has proved that the plaintiff had rendered the legal services as has been pleaded in the plaint and that there was agreement between the parties that the plaintiff was to be paid for the legal services as per the invoices raised. The plaintiff has also proved that he had raised the invoices towards legal services rendered. The last invoice was raised on 15/07/2019. The correspondence between the parties over messages on the mobile phone Ex.PW-1/10 which is subsequent to 15/07/2019 shows that the defendant has never raised any dispute as to the invoices raised by the plaintiff and that the defendant was only trying to delay the payment. On 16/07/2019, the plaintiff messaged: "What about the payment sir. Please call back." On 17/07/2019, the defendant responded: "Will call you by 11, money arranged." From 17/07/2017 till 19/07/2019, the plaintiff has repeatedly messaged the defendant to respond. On 19/07/2019, the defendant writes CS NO.420/22 K.V BALAKRISHNAN VS. BAFNA MAHAVIR CHAND PAGE NO.17 "Patience sir. Check your bank account please." On 20/07/2019, the plaintiff writes: "Dear sir. Please let me know when I will get the balance". To this, the defendant writes: "Will update". Thereafter, there are various messages from the plaintiff from 26/07/2019 till 26/08/2019 asking for a response from the defendant. On 26/08/2019, the plaintiff writes to the defendant that the defendant was not even responding and that "[T]his was not proper". To this, the defendant responds that "I do not know what is proper. But rest assured it will be cleared." Thus, the tone of the defendant has throughout been that the defendant would be clearing the payments. Thereafter, again there are various messages by the plaintiff asking for payment and asking why the defendant was not responding to calls. On 17/10/2019, the plaintiff again messages that: "Sir please clear the dues. Am in difficult position". On 18/10/2019, the plaintiff writes that the defendant was ignoring his calls and messages but was responding to others. To this, the defendant writes: "Not ignoring, filling guilty. Will solve at the earliest". Thereafter, there is also messaging by the plaintiff to the defendant till December 2019 to clear the dues. On 06/12/2019, the plaintiff asks the defendant to clear some amount at least and that it was getting tough. To this, the defendant writes on 06.12.2019 that he understands.
8 The plaintiff has also relied upon email correspondence between the parties. The plaintiff had written an email dated 25.05.2020 Ex.PW1/11 to the Resolution Professional of M/s Bafna Pharmaceuticals Ltd. stating that there was a balance amount of Rs.12,19,000/- which was pending and requested the Resolution Professional to use his good offices for getting due demands from CS NO.420/22 K.V BALAKRISHNAN VS. BAFNA MAHAVIR CHAND PAGE NO.18 the defendant. To this, the Resolution Professional wrote that he had noticed the concern and would discuss with the defendant and revert. Thereafter, there is email dated 13.06.2020 Ex.PW1/12 from the defendant to the plaintiff in which the defendant asked the plaintiff to send the details of the pending bills. In response, the plaintiff sent email dated 18.06.2020 Ex.PW1/12 to the defendant giving the details of the bills which were pending, which are the same bills for which the plaintiff has filed the present suit. The plaintiff requested that these bills be cleared. Along with the email, the plaintiff has also sent copies of the bills. Thereafter, there are emails dated 05.09.2020 and 15.09.2020 Ex.PW1/13, email dated 20.09.2020 Ex.PW1/14 and email dated 21.09.2020 and 29.09.2020 Ex.PW1/15 from the plaintiff to the defendant, from a perusal of which, it is clear that the plaintiff was running after the defendant for the payments but the payments was not being made. From the ex parte evidence led, it is clear that the defendant never disputed his liability to make payment of the outstanding amount of Rs.12,19,000/- towards pending invoices.
9 Thus, on the basis of the ex parte evidence led by the plaintiff, I would hold that the plaintiff on a balance of probabilities has been able to prove that there was a balance outstanding of Rs. 12,19,000/- which was due and payable by the defendant to the plaintiff as pleaded in the plaint. Subsequent to the filing of the suit, the defendant has paid an amount of Rs. 4,69,000/- to the plaintiff, although it is not clear as to the exact date when the said amount was paid. The plaintiff has now claimed upon adjustment, CS NO.420/22 K.V BALAKRISHNAN VS. BAFNA MAHAVIR CHAND PAGE NO.19 the principal amount outstanding of Rs. 7,50,000/- as well as the pre- suit interest and pendente lite and future interest. I would hold that the plaintiff would be entitled to decree for sum of Rs. 7,50,000/-. The claim for pre-suit interest would be governed by the Interest Act, 1978 whereas the pendente-lite and future interest would be u/s 34 CPC. In case of pre-suit interest, in the absence of any proof of agreement, either express or implied, or usage having the force of law regarding the payment of interest, and in the absence of any written instrument whereunder the debt was payable at a certain time, the claim of interest could be sustained only if there was a written notice of demand to that effect which had been issued. (See Zile Singh Vs. Mangloo Ram Bansal (2008) 146 DLT 50) In the present case, it is not the case of the plaintiff that there was any agreement regarding payment of interest or that there was any usage having force of law regarding payment of interest. There is also no written instrument under which the amounts were payable at a certain time. The plaintiff has not brought my attention to any written notice issued by the plaintiff to the defendant claiming payment of interest. As such, the plaintiff would only be granted the pendente lite and future interest. The plaintiff is granted interest on the sum of Rs. 7,50,000/- @ 9% p.a. from the date of filing of the suit till actual realisation.
10 Accordingly, decree is passed in favour of the plaintiff and against the defendant for sum of Rs. 7,50,000/- along with interest @ 9% p.a. from the date of filing of the suit till actual realisation. Costs are decreed in favour of the plaintiff. Let the decree sheet be drawn up accordingly.
CS NO.420/22 K.V BALAKRISHNAN VS. BAFNA MAHAVIR CHAND PAGE NO.20 Judgment pronounced in open court.
File be consigned to record room.
(SATYABRATA PANDA) Additional District Judge-04 Judge Code- DL01057 PHC/New Delhi/11.10.2023 CS NO.420/22 K.V BALAKRISHNAN VS. BAFNA MAHAVIR CHAND PAGE NO.21