Delhi District Court
Sushil Prakash Gupta vs Urmila Gupta on 19 October, 2023
IN THE COURT OF MS. MONA TARDI KERKETTA,
ADDITIONAL DISTRICT JUDGE-06,
SOUTH EAST DISTRICT, SAKET COURTS, DELHI
CS DJ No.531/2018
CRN No. DLSE01-002655-2018
Mr. Sushil Prakash Gupta,
S/o Mr. D.R. Gupta,
carrying on business under the name and style of
M/s. K.D. Steels as its Sole Proprietor at
M-21, Greater Kailash, Part-II Market,
New Delhi -110048
and at Naraina and now shifted to
S-401, Greater Kailash, Part-II,
New Delhi-110048. .....Plaintiff
Versus
Mrs. Urmil Gupta,
W/o Mr. Ashok Kumar Gupta,
carrying on business in the name
and style of M/s. Nitima Steels as
its Sole Proprietorix at
M-21, Greater Kailash Part-II Market,
New Delhi-110048
Now shifted to A-1/03, Pilot Court, Essel Tower,
M.G. Road, Gurgaon (Haryana). .....Defendant
Date of Filing: : 28.03.2018
Date of Final Arguments : 12.07.2023
Date of Judgment : 19.10.2023
Final Decision : Suit Decreed.
Appearances :
For the plaintiff : Sh. Siddharth Tyagi, Adv.
For the defendant : Sh. Vinod Kumar, Adv.
CS DJ No.531/2018 Page 1 of 20 ADJ-06/SE/SKT/Delhi
SUIT FOR RECOVERY OF Rs.48,44,907 (RUPEES FORTY
EIGHT LAKHS, FORTY FOUR THOUSAND NINE
HUNDRED & SEVEN ONLY)
JUDGMENT
1. Initially plaintiff filed the present suit under Order XXXVII CPC, however vide separate statement of learned counsel for the plaintiff, the present suit was converted into an ordinary suit for recovery on 18.04.2018.
2. The brief facts of the case as disclosed in the plaint are that plaintiff has been running the business of Iron and Steel etc. at M-21, Greater Kailash Part-II Market, New Delhi-110048 under the name and style of M/s. K.D. Steels, as its sole proprietor, since long and has been dealing with defendant in the ordinary course of his business. Defendant is the wife of real brother of plaintiff and has been enjoying credit facility in doing the business with plaintiff. Defendant is engaged in the business of iron and steel at M-21, Greater Kailash Part-II Market, New Delhi-110048. Plaintiff regularly maintained books of account with a running account, in the name of defendant, in the ordinary course of business. As per the said books of account as on 31.03.2010, a sum of Rs.40,99,000/- was due against defendant. Plaintiff sent a letter to defendant, containing the statement of such accounts for confirmation which defendant returned to plaintiff through courier on 15.05.2016 duly signing and endorsing the confirmation of the said account with the debit balance of Rs.48,44,907/- as on 31.03.2015. The outstanding amounts as per the balance confirmation letter are as under: -
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(i) As on 31.03.2010: Rs.40,99,000/-
(ii) As on 31.03.2011: Rs 21,16,000/- (iii) As on 31.03.2012: Rs.48,44,907/- (iv) As on 31.03.2013: Rs.48,44,907/- (v) As on 31.03.2014: Rs.48,44,907/- (vi) As on 31.03.2015: Rs.48,44,907/-
3. It is further stated that defendant failed and neglected to clear the outstanding payment, despite repeated requests and reminders of plaintiff, without any rhyme and reason. Finally, to avoid any litigation, plaintiff proposed defendant to settle the matter through Mediation and the matter was even referred to Delhi High Court Mediation Center but no fruitful outcome emerged from the Mediation proceedings.
Hence, the present suit.
4. Plaintiff prayed to pass the following relief in his favour and against defendant :
4.1) A decree for recovery of Rs.48,44,907/- along-with pendent-lite and future interest @ 18% per annum, till realization.
4.2) Cost of the suit.
4.3) Any other relief which this Hon'ble Court may deem fit and necessary, in the interest of justice.
5. Defendant contested the present suit on the following grounds :
5.1) The suit of the plaintiff is based on wrong and CS DJ No.531/2018 Page 3 of 20 ADJ-06/SE/SKT/Delhi baseless, frivolous, vexatious facts ; no cause of action ever arose in favour of plaintiff to file the present suit. As such, the suit is devoid of merits and liable to dismissed in limine. 5.2) Plaintiff did not file any other document except the balance confirmation letter from 2010 to 2015. Defendant never executed and signed the said balance confirmation letters. Being relative of defendant, plaintiff was acquainted with the signature of defendant. Plaintiff forged defendant's signature and fabricated the balance confirmation letters just to establish the cause of action against defendant and to bring the suit within limitation period.
5.3) The suit of plaintiff is barred by limitation. As per plaintiff's own case, the given outstanding payment first became due in the year 2011 but the suit was filed only on 28.03.2018. The forged and fabricated balance confirmation letter does not extend the limitation to file the present suit. 5.4) Plaintiff failed to produce any documentary proof in support of the outstanding payment of Rs.48,44,907/- as such, it is proved that the suit was filed as an afterthought. There existed no liability against defendant and nothing was due and payable by defendant to plaintiff.
5.5) Being a close relative, defendant completely trusted the acts of plaintiff without suspecting any foul play and kept extending financial assistance and other favours to plaintiff for the betterment of the business. In June 2021, defendant purchased the goods on behalf of plaintiff from M/s. Metal Trading Co. for Rs.37,00,000/- on 30.06.2011, Rs. 9,00,000/- & Rs. 42,000/-on 02.07.2011 and 04.07.2011 and Rs.9,41,752/-
CS DJ No.531/2018 Page 4 of 20 ADJ-06/SE/SKT/Delhi through RTGS and cheque bearing no.428608 drawn on Catholic Syrian Bank Ltd. GK-II Branch. The attitude of plaintiff changed towards defendant and her husband for the reasons known to plaintiff.
5.6) Defendant came to know of plaintiff's alleged claims of Rs.48,44,907/- only before the Mediation Center at Hon'ble High Court of Delhi. Prior to that, defendant never received any demand or letter of balance amount from plaintiff.
6. Replication to the written statement was filed on behalf of plaintiff, wherein, plaintiff denied the contents of written statement and reiterated and reaffirmed the contents of the plaint.
7. From the pleadings of the parties, the following issues were framed by Ld. Predecessor of this court, vide order dated 12.11.2018: -
1. Whether plaintiff is entitled for recovery of Rs.48,44,907/-? OPP.
2. Whether plaintiff is entitled for interest, if yes for what rate and for what period? OPP.
3. Whether defendant signed and executed the confirmation of the account having outstanding balance as stated in para 02 to 06 of plaint and documents 21 to 27 filed with the plaint? OPP.
4. Whether balance confirmation letters are forged and fabricated as alleged? OPD.
5. Whether the suit is barred by limitation? OPP.
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6. Relief.
8. Subsequent thereto, the matter was fixed for plaintiff's evidence. To prove his case, plaintiff examined himself as PW-1 and tendered his evidence by way of affidavit Ex.PW1/A and relied upon the following documents:
Ex.PW1/1 Balance confirmation letter as on 31.03.2010 Ex.PW1/2 Balance confirmation letter as on 31.03.2011 Ex.PW1/3 Balance confirmation letter as on 31.03.2012 Ex.PW1/4 Balance confirmation letter as on 31.03.2013 Ex.PW1/5 Balance confirmation letter as on 31.03.2014 Ex.PW1/6 Balance confirmation letter as on 31.03.2015 Ex.PW1/7 Original courier envelope Ex.PW1/8 Form DVAT-06 (Certificate of Registration under (OSR) Delhi Value Added Tax Act, 2004) (wrongly mentioned as Ex.PW-1/7 (OSR) in the cross examination dated 03.06.2019).
Ex.PW1/X1 Print out of Tracking Report Ex.PW1/X2 Affidavit under Section 65-B of Indian Evidence Act
9. PW-1 was duly cross examined by learned counsel for defendant. Thereafter, plaintiff's evidence was closed vide separate statement of the plaintiff dated 03.06.2019 before the Ld. Local Commissioner.
10. Subsequent thereto, the matter was fixed for defendant's evidence. However, defendant did not opt to lead evidence. Vide separate statement of learned proxy counsel for defendant dated 29.07.2019, defendant's evidence was closed.
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11. Subsequent thereto, the matter was fixed for final arguments. The final arguments were heard conclusively on 25.07.2023. The parties also filed the written arguments.
12. The final arguments submitted on behalf of plaintiff are as under :
12.1) As per books of accounts regularly maintained in the name of defendant in the ordinary course of business, the outstanding payment due and payable against defendant on 31.03.2015 is Rs.48,44,907/-.
12.2) The case of plaintiff stands proved in terms of Order 5 rule 8 CPC. Defendant in the written statement vaguely and simply denied the case of plaintiff without specifically denying the case of plaintiff, therefore, defendant is deemed to have accepted the case of plaintiff.
12.3) Through his evidence, plaintiff proved business transactions between the parties. Whereas, defendant failed to put her affirmative case/defence to plaintiff in the cross-examination.
Be it transactions done for plaintiff with M/s Metal Trading Co. Ltd.; forgery and fabrication of the balance confirmation letter and its non-receiving etc. Despite alleging forgery and fabrication of balance confirmation letters, defendant did not file any police complaint even after the lapse of substantial period. In view thereof, defendant deemed to have accepted the correctness of the contents of the said balance confirmation letter. Further, due to failure of defendant to cross-examine plaintiff on these material particulars, the version of plaintiff CS DJ No.531/2018 Page 7 of 20 ADJ-06/SE/SKT/Delhi must be taken as true and credible. (Ref: Vinergy International Pvt. Ltd. Vs. Dimple Dineshbhai Shah decided on 07.12.2016- BOMHC): Manu/MH/2621/2016) 12.4) Defendant admitted territorial jurisdiction of this court by not specifically denying the case of plaintiff on this aspect. The arguments of defendant qua territorial jurisdiction are beyond pleadings and no issue on this aspect was framed. The issue of territorial jurisdiction being a mixed question of fact and law, cannot be raised without pleadings. Plaintiff in para 07 of the plaint sufficiently explained as to how this court has jurisdiction to try this suit. Further, by virtue of the doctrine of "debtor must seek creditor" the court has ample territorial jurisdiction to try the present suit. (Ref: Allora Electric and Cable Co. Vs. Shiv Charan & Bros. and Ors., S.No.81/76, decided on 10.03.1998; Shradha Wassan & Ors. Vs. Anil Goel & Ors., IA No.3832/2018 in CS (OS) No.2045/2017)
13. The final arguments submitted on behalf of defendant are as under :
13.1) Plaintiff miserably failed to prove that defendant signed and executed the balance confirmation letters. On the other hand, defendant through cross-examination not only proved that the suit of plaintiff is barred by limitation but also demolished the complete case of plaintiff. As such, plaintiff is not entitled for recovery of the amount and interest thereon as claimed in the plaint.
13.2) Despite being in power and possession, plaintiff did not produce any books of accounts being maintained in CS DJ No.531/2018 Page 8 of 20 ADJ-06/SE/SKT/Delhi defendant's name in the ordinary course of business or purchase orders or invoices to prove the transactions with defendant. (Ref:
Escorts Limited Vs. Sai Autos and Others, suit no.2043 of 1987, decided on 20.07.1990).
13.3) Plaintiff failed to prove preparation or execution of the balance confirmation letters and its delivery to defendant as per law. In cross-examination, plaintiff stated that he had not prepared the same and the same might have been prepared by his CA ; plaintiff admitted that he did not have knowledge of computer; signatures on the balance confirmation letters were not appended in his presence; he did not remember who and when received the balance confirmation letters. (Ref: Sudhir Engineering Company Vs. Nitco Roadways Ltd., Suit No.765 of 1990, decided on 23.03.1995) The certificate under section 65-B of Indian Evidence Act of the CA or any other staff who prepared the same was admittedly not filed.
13.4) The suit of plaintiff is barred by limitation as it was not filed within the period of three years. The benefit of acknowledgment under section 18 of the Limitation Act is not available as plaintiff failed to prove preparation, execution, and delivery of the balance confirmation letters. 13.5) The issue of jurisdiction goes to the root of the case and as this court has no jurisdiction to try and entertain the present suit. During cross-examination, plaintiff/ PW-1 admitted not filing any document on record to show that defendant was running the business from M-21, GK-II, New Delhi; the property from where defendant was running the business was sold out in the year 2014 and defendant shifted her business to Gurgaon; at CS DJ No.531/2018 Page 9 of 20 ADJ-06/SE/SKT/Delhi the time of filing the suit, plaintiff was not doing any business from M-21, GK-II, New Delhi.
13.6) The burden of proof to prove his case is on plaintiff.
Defendant through cross-examination demolished plaintiff's case and consequentially plaintiff failed to discharge the onus to prove his case.
FINDINGS OF COURT:
14. Let us now examine whether the suit of plaintiff deserves to be decreed in his favour and against defendant, on the basis of materials placed on record.
15. At the outset, it is observed that defendant did not raise any objection on the jurisdiction in his entire pleadings. In the written statement in response to jurisdictional para of the plaint (para no.5 to 7), defendant merely denied saying it to be wrong and concocted. Though there is no specific objection raised in the pleadings of defendant and no issue framed on the point of territorial jurisdiction of the court to entertain and try this suit, however, this aspect being a legal objection and as it goes to the root of the case, this court is under an obligation to satisfy itself on the jurisdictional issue even without there being any pleadings of defendant and issue framed. It is well settled that as per Section 21 CPC, the issue of territorial jurisdiction before the first court of instance has to be raised and in all cases where issues were settled at or before such settlement and unless there has been a consequent failure of justice which defendant failed to do. In the opinion of this court, defendant is barred from raising such plea at the stage of final arguments more particularly CS DJ No.531/2018 Page 10 of 20 ADJ-06/SE/SKT/Delhi when such plea was not taken in the pleadings or raised during the settlement of issues. In the further opinion of this court, defendant admitted the territorial jurisdiction of this court by not specifically denying in the written statement the case of plaintiff qua jurisdiction and his simple denial is deemed to be an admission in terms of provisions of Order V Rule 8 CPC as argued on behalf of plaintiff. Further, the document Ex.1/7 which is Form DVAT 06, showed plaintiff's address as M-21 Market, Greater Kailash-II, New Delhi-46, where all the relevant business transactions with defendant were stated to have taken place. In the cross-examination, on the asking of opposite counsel, PW-1 explicitly affirmed conducting business at the abovesaid premises for above 15 years, with associated sales tax and TIN nos. registered at that address; both the parties were conducting business at that location at the time of filing the suit. Further, the jurisdiction of this court is conferred even by virtue of application of the doctrine "debtor must seek creditor" as held in the judgment of Ms. Shradha Wasan vs. Anil Goyal (supra). The deposition of PW-1 qua jurisdictions as highlighted on behalf of defendant is inconsequential. Hence, it is held that this court possesses all necessary jurisdiction to entertain and try the present suit and all the objections of defendant qua territorial jurisdiction are rejected.
16. The issue-wise findings of the court are discussed as under :
Issue No. 3 : Whether defendant signed and executed the CS DJ No.531/2018 Page 11 of 20 ADJ-06/SE/SKT/Delhi confirmation of the account having outstanding balance as stated in para 02 to 06 of plaint and documents 21 to 27 filed with the plaint? OPP AND Issue no.4: Whether balance confirmation letters are forged and fabricated as alleged? OPD.
The above issues are taken up together as they can be decided through common discussion. The onus to prove issue no.3 was fixed upon plaintiff and issue no.4 upon defendant. Defendant argued that plaintiff failed to prove preparation or execution of the balance confirmation letters Ex.PW-1/1 to Ex.PW-1/6 and their delivery to defendant, as per law; plaintiff was to prove who prepared and took print out of the balance confirmation letter; in the cross-examination of PW-1, several facts emerged which went on to prove that the balance confirmation letters are not proved as per law.
17. It is observed that in para 02 of the plaint, plaintiff averred that plaintiff had sent balance conformation letters Ex.PW-1/1 to Ex.PW-1/6 to defendant who acknowledged the same by signing and sent back to plaintiff. In response to the same in the written statement, defendant stated it to be wrong. Defendant also stated that no such balance confirmation letters Ex.PW-1/1 to Ex.PW-1/6 were ever issued by plaintiff to defendant and plaintiff had forged the signatures of defendant and fabricated them to develop an illegal claim against defendant. From defendant's pleadings it is revealed that defendant did not specifically deny plaintiff's claim on this CS DJ No.531/2018 Page 12 of 20 ADJ-06/SE/SKT/Delhi aspect and the denial so made is simple in nature. Order VIII Rule 5 CPC provides that if defendant does not make specific denial of the facts stated in the plaint, then the court will take such facts as pleaded in the plaint to be admitted. However, the court has been left with the discretion to require the facts to be proved even if they are admitted or if the party does not deny such facts. In the judgment Allora Electric & Cable Co. Vs. M/s Shiv Charan & Bros.& Ors. (Supra), it was held that "the object of this provision is to narrow the issues to be tried in the case and to enable either party to know what the real point is to be discussed and decided. The word "specifically" qualifies not only the word "deny" but also the words "stated to be not admitted" and therefore a refusal to admit must also be specifically stated. A defendant can admit or deny the several allegations made in the plaint and if he decides to deny any such allegations, he must do so clearly and explicitly. A vague or evasive reply by the defendant cannot be considered to be a denial of fact alleged by the plaintiff. A party is expected to expressly deny the fact which is within its knowledge and a general denial is not a specific denial by "necessary implication". In other words, the denial should be definite and unambiguous."(Emphasis supplied para
10).
18. In the present suit, defendant in the written statement did not choose to deny stating that the contents of para 02 are either incorrect or wrong and denied, therefore, in terms of order 8 rule 5 of CPC, as a general rule, defendant deemed to have admitted that preparation/ execution of the balance confirmation letters Ex.PW-1/1 to Ex.PW-1/6 and their delivery to defendant. However, let us also examine whether plaintiff was able to prove CS DJ No.531/2018 Page 13 of 20 ADJ-06/SE/SKT/Delhi the same on the basis of the evidence led. Defendant argued that through cross-examination of PW-1, defendant was able to prove plaintiff's failure to prove as to who prepared and executed the said balance confirmation letters as per law. Defendant pointed out PW-1's deposition that balance confirmation letters were printouts and no certificate under Section 65-B of Indian Evidence Act was filed by plaintiff in support of such computer generated documents and he did not have knowledge of computer; balance confirmation letters were not prepared by him and they might have been prepared by his CA or office staff; signatures appearing on the same were not put by defendant in his presence; he had received Ex.PW-1/1 to Ex.PW-1/5 by hand but did not remember who handed over the same and stated that they might have been received by his staff in the office; he did not remember the date when they were received back after the defendant's acknowledgement; Ex.PW-1/1 to Ex.PW-1/5 were not received by him through Ex.PW-1/7 and only Ex.PW-1/6 was. Defendant also pointed out that though plaintiff filed the Ex.PW-1/1 to Ex.PW-1/6 but in cross examination, he deposed that they were handed by him to CA and same might have been filed by him alongwith the tax returns. He further deposed that he did not write any letter to his CA before filing the present suit and he did not even discuss the dispute before filing the present suit.
19. In this regard, this court finds that during the course of final arguments, defendant did not press for or advance arguments on the point of forged signatures and fabrication of the CS DJ No.531/2018 Page 14 of 20 ADJ-06/SE/SKT/Delhi balance confirmation letters and emphasized that plaintiff did not prove them in accordance with law. It is further observed that though defendant denied executing and signing balance confirmation letters in favour of plaintiff and also asserted them to be forged and fabricated and also non-receipt of any balance confirmation letters from plaintiff. However, defendant did not provide specific details regarding the alleged forgery and fabrication of the same. Defendant vaguely claimed that plaintiff had forged her signatures and fabricated the balance confirmation letters just to establish cause of action and bring the suit within limitation. It is pertinent to mention that defendant did not lead any evidence to prove the alleged forgery and fabrication of balance confirmation letters. On the other hand, plaintiff reiterated his version by deposing on the line of contents of plaint. Further, during the cross-examination of PW-1, except for giving few suggestions, no relevant cross-questions were put on these aspects and no favourable answers could be extracted. There were no cross-questions on the signatures appearing on the balance confirmation letters at point A and no suggestion given that those signatures were not of defendant. In the opinion of this court, to prove the pleas of forgery of defendant's signatures and fabrication of balance confirmation letters, defendant was required to get them examined from handwriting expert who could have compared the signatures of defendant, prepared his reports and deposed about the same, however, defendant failed to do so, as such an adverse inference is liable to be drawn against defendant for withholding the best of evidence. Be that as it may, this court is also competent to compare CS DJ No.531/2018 Page 15 of 20 ADJ-06/SE/SKT/Delhi disputed signatures with the admitted or proved signatures of defendant available on record, in terms of section 73 of Indian Evidence Act. On comparison, it is found that signatures of defendant at point A on the balance confirmation letters are one and the same as the admitted ones. Defendant failed to explain and justify as to why she did not take any legal actions against plaintiff for forgery and fabrication of balance confirmation letters of outstanding payment of huge amount of Rs48,44,907/-.
20. Now dealing with arguments of defendant regarding deposition of plaintiff thereby proving preparation or execution and delivery of balance confirmation letters to defendant not being proved as per law. In this regard, the court finds that all these questions are related to the mode and manner of preparing/executing, sending and receiving of the balance confirmation letters. In fact, in the entire cross-examination, neither the affirmative case of defendant was put nor put the cross-questions on material particulars to plaintiff. Admittedly, plaintiff is the proprietor of M/s KD Steels and had signed them in the capacity of proprietor/owner. In the entire plaint, it is nowhere pleaded that it was plaintiff who had prepared/executed, sent them or received them back after defendant's acknowledgement by him in person. It is a matter of common understanding that this type of work is performed only by the staff. Similarly, plaintiff nowhere claimed that defendant had put signatures on the balance confirmation letters in his presence. Defendant did not lead evidence to prove the suggestions put to PW-1. Therefore, the court finds that deposition of PW-1 as CS DJ No.531/2018 Page 16 of 20 ADJ-06/SE/SKT/Delhi described above is insufficient to disprove plaintiff's claims.
21. Now dealing with defendant's arguments regarding plaintiff's failure to produce and prove the business dealings with defendant to the tune of principal amount of Rs.48,44,907/- by way of additional documentary proof such as statement of account, purchase orders, invoices etc. At the outset, it is observed that the business dealings of plaintiff with defendant and her husband is nowhere denied in the defendant's pleadings. In fact, in the cross-examination of PW-1, defendant put such questions, which went on to prove the business transactions with defendant. In cross-examination dated 23.04.2019, plaintiff was asked whether he had any business dealings with defendant; where the goods were sold and purchased by plaintiff. In response, PW-1 deposed that he had dealings with defendant's firm and he had purchased and sold goods to defendant and for that he had raised invoices and vice versa. Defendant did not put any question or suggestion that no supply of goods was made to defendant etc. So far as arguments regarding non-production of purchase order, invoice etc. and drawing of adverse inference for the same are concerned, it is observed that plaintiff initially filed the suit under order XXXVII CPC on the basis of balance confirmation letters and later on the suit was converted into an ordinary suit. Plaintiff chose not to file any other document except the balance confirmation letters. In the opinion of this court, defendant could not have sought production of the documents straightaway during cross-examination of plaintiff without first issuing any notice to plaintiff under order 12 rule 8 CS DJ No.531/2018 Page 17 of 20 ADJ-06/SE/SKT/Delhi CPC or even resorting to the provision of order XIII CPC for production and discovery of documents during the trial of the suit. In this circumstance, drawing adverse inference against plaintiff shall not be justified.
In view of the above, both the issues are decided in favour of plaintiff and against defendant.
22. Issue No.5: Whether the suit is barred by limitation?
OPP.
The onus to prove this issue was fixed upon plaintiff by the order of Ld. Predecessor. Defendant argued that plaintiff's claims pertained to the year 2011 and the suit filed on 31.03.2018 after the expiry of the period of three years, rendered the suit time-barred. Defendant further argued that the benefit of acknowledgment under section 18 of the Limitation Act was not available for plaintiff's failure to prove preparation, execution, and delivery of the balance confirmation letters.
23. In this regard, it is observed that while dealing with issue nos. 3 &4 the court has already come to the conclusion that defendant failed to prove the balance confirmation letters Ex.PW- 1/1 to Ex.PW-1/6 as forged and fabricated as such the arguments of defendant that the balance confirmation letters were forged and fabricated to bring the suit within limitation period is without any merit. It is further observed that in para 02 of the plaint, plaintiff specifically stated that he was regularly maintaining a running account and the books of accounts in the name of defendant in the ordinary course of business and, as of CS DJ No.531/2018 Page 18 of 20 ADJ-06/SE/SKT/Delhi 31.03.2010, a sum of Rs. 40,99,000/- was due from defendant for which plaintiff sent a letter containing the statement of such accounts for confirmation of the account from defendant. In response, defendant in the written statement, simply denied the contents of para 02 of the plaint being wrong and concocted. Hence, the present suit is found to be based on an open, mutual, and current account and when a suit is based on current, open, mutual account, the period of limitation as per Article I of the Limitation Act commences at the end of the financial year in which the last transaction as reflected in the statement of account is entered. (Ref: Fresh and Healthy Enterprises Ltd. Vs. M/s R.K. Brothers, RFA No.319/2017 decided on 24.08.2018). It is observed that in the present case, the last financial year mentioned in the balance confirmation letter Ex.PW-1/6 is 31 st March,2015. Therefore, the limitation will commence as per Article 1 of the Limitation Act on 01.04.2015 and the suit having been filed on 28.03.2018 is within limitation period. The issue no.5 is accordingly decided in favour of plaintiff and against defendant.
24. Issue No.1 : Whether plaintiff is entitled for recovery of Rs.48,44,907/- ? OPP.
& Issue No.2 : Whether the plaintiff is entitled for interest, if yes for what rate and for what period ? OPP.
The onus to prove these issues was fixed upon the plaintiff. To prove his case, plaintiff deposed on the line of CS DJ No.531/2018 Page 19 of 20 ADJ-06/SE/SKT/Delhi contents of the plaint and exhibited the relevant documents as mentioned in his deposition. On the other hand, defendant failed to refute plaintiff's claim through counter evidence. In view of the same and findings returned on the above issues, the court has come to the conclusion that plaintiff successfully discharged the onus to prove his case against defendant and is thus entitled to recovery of Rs.48,44,907/-(Rupees Forty Eight Lakh Forty Four Thousand Nine Hundred and Seven Only). There is no evidence adduced to prove that there was an agreement for pre-suit interest between the parties, in case of default. Hence, the ends of justice would be met, if plaintiff is awarded interest @ 6% per annum, in terms of section 34 CPC. The issues are decided in favour of plaintiff and against defendant accordingly.
25. Relief :
In view of findings on the issues framed, the suit of plaintiff is decreed for recovery of Rs.48,44,907/- (Rupees Forty Eight Lakh Forty Four Thousand Nine Hundred and Seven Only) alongwith pendent-lite and future interest @ 6 % per annum, in terms of Section 34 CPC. Cost of the suit is also awarded. Decree sheet be prepared accordingly.
26. File be consigned to record room, after due compliance.
Announced in the open MONA TARDI KERKETTA Court on this 19th Day of Addl. District Judge(SE)-06 October, 2023 Saket Courts, Delhi CS DJ No.531/2018 Page 20 of 20 ADJ-06/SE/SKT/Delhi