Delhi District Court
D'Souza Philip vs Martin Joseph on 24 January, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL SENIOR CIVIL JUDGE
SAKET COURTS, NEW DELHI
CS NO. 723/11
D'Souza Philip
R/o AIIMS Qtr No. 61/Type 3.
Ayur Vigyan Nagar,
Khelgaon Marg, New Delhi 49
..... Plaintiff
Vs.
Martin Joseph
Now residing at
Behind Mangalya Marriage Beurau,
Compani Padi, Temple Road,
Attoor P.O.,Cheruthuruthi (P.S.)
Trichur District, Kerala680592
..... Defendant
SUIT FOR RECOVERY OF RS. 1,09,000/ (RUPEES ONE LAC AND
NINE THOUSAND ONLY) WITH PENDENTE LITE AND FUTURE
INTEREST
DATE OF INSTITUTION : 15.12.2011
DATE OF RESERVING JUDGMENT : 15.01.2013
DATE OF PRONOUNCEMENT : 24.01.2013
CS No. 723/11 Page 1 of 7 Saket
EXPARTE JUDGMENT
1.The present suit has been filed by the plaintiff against the defendant for recovery of Rs. 1,09,000/ with pendente lite and future interest @ 12% per annum along with cost of the suit.
2. Brief facts of the case as set out in the plaint are that plaintiff is a resident of Delhi and the defendant is a resident of Kerala. The defendant came to Delhi during January, 2008 and requested the plaintiff for some financial assistance to complete the shooting of a movie in Malayalam. The defendant had told the plaintiff that he had to receive some money from someone in Delhi which he could not get as expected and thus he was running short of little money for completion of his film. The defendant assured that he would pay the money after some time and also assured that he shall give a post dated cheque towards the said liability. It is stated that keeping a trust in the defendant and his words, the plaintiff paid an amount of Rs. 1,09,000/ to the defendant and the defendant has given a bankers cheque bearing No. 661400 dated 15.12.2008 of A/C No. 59134 maintained by the defendant at Canara Bank, Chelakkara Branch, Trichur District, Kerala for the said amount against his financial liability towards the plaintiff. It is stated that defendant met the plaintiff many times in Kerala on various dates CS No. 723/11 Page 2 of 7 Saket after issuance of the said cheque and kept on assuring that money would be available by the time the said cheque is presented at the bankers of the defendant for collection. The defendant in the month of November/December 2008 informed the plaintiff that the plaintiff could present the said cheque bearing No. 661400 dated 15.12.2008. Even the defendant made assurance of bringing the said money in cash from Kerala to Delhi in order to clear his liability, but due to the risk factor the defendant suggested that plaintiff should present the said cheque in Delhi at the banker of the plaintiff. The plaintiff had consented to the said suggestion and presented the said cheque at his banker on 05.02.2009. The bankers of the plaintiff had sent the said cheque to the banker of the defendant, but the said cheque was returned unpaid on 26.02.2009 by the banker of the plaintiff due to insufficiency of funds. The plaintiff has sent a legal notice thereafter, but despite receiving the said notice, the defendant did not make the payment to the plaintiff. Hence, the present suit.
3. The plaintiff has prayed for passing a decree of Rs.1,09,000/ along with interest @ 12% p.a. pendente lite and future on the above stated amount in his favour and against the defendant.
4. The defendant was served with the summons of the suit on CS No. 723/11 Page 3 of 7 Saket 28.07.2012, but despite service defendant failed to appear in the court and accordingly was proceeded exparte vide order dated 26.10.2012
5. Thereafter, in order to prove his case, the plaintiff examined himself as PW1 and filed his evidence by way of affidavit Ex. PW1/B in which he reiterated the averments made in the plaint. He has also placed on record the certified copy of the cheque bearing No. 661400 dated 15.12.2008 as Ex. PW1/1 and copy of memo of the banker as Ex. PW1/2.
6. I have heard the plaintiff and perused the record carefully.
7. The case of the plaintiff is that the defendant is a resident of Kerala and he came to Delhi during January, 2008 and requested the plaintiff for some financial assistance to complete the shooting of a movie in Malayalam. The defendant assured that he would pay the money after some time and also assured that he shall give a post dated cheque towards the said liability. Accordingly, the plaintiff paid an amount of Rs. 1,09,000/ to the defendant and the defendant gave a bankers cheque bearing No. 661400 dated 15.12.2008 of A/C No. 59134 maintained by the defendant at Canara Bank, Chelakkara Branch, Trichur District, Kerala for the said amount against his financial liability towards the plaintiff. The defendant assured many times that money CS No. 723/11 Page 4 of 7 Saket would be available by the time the said cheque is presented at the bankers of the defendant for collection. The defendant in the month of November/December 2008 informed the plaintiff that the plaintiff could present the said cheque bearing No. 661400 dated 15.12.2008 and accordingly the plaintiff presented the said cheque at his banker on 05.02.2009. The bankers of the plaintiff sent the said cheque to the banker of the defendant, but the said cheque was returned unpaid on 26.02.2009 by the banker of the plaintiff due to insufficiency of funds. The plaintiff sent a legal notice to the defendant thereafter, but despite service the defendant did not make the payment of the aforesaid amount.
8. In order to prove its case, the plaintiff examined himself as PW1 and reiterated the aforesaid averments in his examinationinchief and has placed on record the certified copy of cheque bearing No. 661400 dated 15.12.2008 issued by the defendant as Ex. PW1/1 and memorandum of cheques unpaid as Ex. PW1/2.
9. The testimony of PW1 has gone unrebutted and un challenged and there is no reason to disbelieve his version. In view of unrebutted and uncontroverted testimony of PW1 and documents placed on record by PW1, it is proved on record that defendant availed facility of finance from the plaintiff for Rs. 1,09,000/ for completing CS No. 723/11 Page 5 of 7 Saket his film and had issued a post dated bankers cheque bearing No. 661400 dated 15.12.2008 Ex. PW1/1 towards his liability towards the plaintiff. It is also proved on record that at the asking of the defendant, the plaintiff presented the said cheque to his banker on 05.02.2009 who sent the said cheque to the banker of the defendant, but on 26.02.2009 the said cheque was returned unpaid by the bankers of defendant due to insufficiency of funds. The plaintiff has also placed on record the certified copy of the Memorandum of Cheque Unpaid issued by the banker of the defendant as Ex. PW1/2 showing that cheque has been returned with remarks 'Funds Insufficient'.
10. In view of above unrebutted testimony of plaintiff and material available on record, it is proved that the defendant has not returned the payment of Rs. 1,09,000/ to the plaintiff and the cheque issued by him in favour of the plaintiff has been dishonoured and, therefore, the plaintiff is entitled for recovery of Rs. 1,09,000/ from the defendant.
11. Accordingly, the present suit is decreed in favour of plaintiff and against the defendant for a sum of Rs. 1,09,000/ along with interest @ 9 % p.a. from filing of the suit till realization of the decreetal amount. The plaintiff is also entitled for cost of the suit. Decreesheet CS No. 723/11 Page 6 of 7 Saket be prepared accordingly.
File be consigned to record room.
Announced in Open Court (Balwant Rai Bansal)
on 24th January, 2013 Additional Senior Civil Judge (South)
Saket Courts, New Delhi
CS No. 723/11 Page 7 of 7 Saket
CS No. 723/11
24.01.2013
Present: None.
Vide my separate judgment of even date dictated and announced in the open court, the suit filed by the plaintiff is decreed. Decree sheet be prepared accordingly.
File be consigned to Record Room.
(Balwant Rai Bansal)
JSCC/ASCJ(South)
Saket Courts, New Delhi
24.01.2013
CS No. 723/11 Page 8 of 7 Saket