Delhi District Court
Usha Devi vs Harish Jaggi on 21 December, 2013
Usha Devi Vs Harish Jaggi
IN THE COURT OF VIPLAV DABAS
CIVIL JUDGE-11 (CENTRAL) : DELHI
Civil Suit No. : 441/12
Unique Case ID No : 02401C0385112009
In the matter of:
Mrs. Usha Devi@ Usha Gupta
Proprietor of M/s Usha Infotech,
G-1, Mohan Tower, Community Centre,
Wazirpur Industrial Area,
Delhi-110052 .............. Plaintiff
Versus
Sh. Harish Jaggi,
Proprietor of Omkar Cables & Electronics,
At A-49, Amar Colony,
Lajpat Nagar-IV,
New Delhi-110024 .................... Defendant
Date of institution of the Suit : 10.02.2004
Date on which order was reserved : 20.12.2013
Date of decision : 21.12.2013
SUIT FOR RECOVERY OF A SUM OF RS. 43,450/-
JUDGMENT
1) Present suit was initially filed under order 37 CPC in the year 2004 seeking a decree of recovery for sum of Rs. 43,500/- alongwith pendentelite and future interest @ 24 % per annum till the realization of the aforesaid amount as well as costs which was converted to ordinary suit after conditional leave to defend was granted to the defendant by the Ld. Predecessor Court.
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2) It is averred in the plaint that the plaintiff is a proprietor of M/s Usha Infotech and is engaged in the business of Computer & networking products, that the defendant had purchased computer parts and hardware from the plaintiff totaling to Rs. 43,450/- which were duly received by the defendant vide bill no. UI/510/03-04 dated 17.07.2003, that after duly purchasing the said goods the defendant in order for payment of the bill/ invoice for goods purchased and in discharge of his liability issued cheque bearing no. 148934 dated 17.07.2003 for Rs. 43,450/- drawn on Canara Bank, East of Kailash, New Delhi which on presentation got dishonored with remarks Insufficient Funds. It is further averred that the dishonoring of cheque due to Insufficient Funds came to the notice of the plaintiff on 19.07.2003 vide bank memo of Canara Bank and thereafter the plaintiff sent a legal notice through postal as well as courier service on 23.07.2010 calling upon the defendant to pay he amount of cheque but the defendant instead of paying the amount sent a false and frivolous reply dated 05.08.2003. It is further averred that as the defendant did not pay the amount even after the receiving of demand notice, the plaintiff was constrained to file a criminal case under section 138 of the Negotiable Instrument Act titled as Mrs. Usha Devi @ Usha Gupta Vs Mr. Harish Jaggi which was instituted on 03.09.2003 in the Court of Sh. Raj Kapoor the then Ld. M.M, Delhi and that cause of action arose on 17.07.2003 when the defendant bought goods against valid voucher duly countersigned by him and issued cheque for clearing the due billed amount. It further arose on 19.07.2003 when the cheque got dishonored and lastly on 23.07.2003 when the plaintiff sent a demand notice through his advocate for legally recoverable amount of Rs. 43,470/-.
3) It is averred in the written statement filed on behalf of defendant that 2/9 Usha Devi Vs Harish Jaggi the suit of the plaintiff is false, fabricated, misconceived and baseless and no cause of action ever arose in favour of plaintiff, that the present suit does not fall within the ambit of order 37 CPC and is liable to be dismissed, that plaintiff has come to the Court with malafide intention to grab the hard earned money of the defendant, that the plaintiff has not even issued legal demand notice to the defendant, that plaintiff has concealed the material facts from this Hon'ble Court and that the suit is bad in view of provisions of Section 41(h) of Specific Relief Act. It is denied that the defendant had purchased computers and hardware from the plaintiff and that the said computer parts and hardware were SURECOM 8 PORT HUB Quantity 55 pieces @ Rs. 790/- per unit totaling to Rs. 43,450/- which were duly received by defendant vide bill UI-510/03-04 dated 17.07.2003. It is submitted that the material as alleged had not been supplied by the plaintiff to the defendant and as defendant was a new customer the plaintiff demanded a post dated cheque in advance for the supply of material through Sh. Vinay Kandhari who was working with the plaintiff. It is further denied that after duly purchasing the said goods the defendant in order for payment of the bills/ invoice for goods purchased and in discharge of his liability issued cheque bearing no. 148934 dated 17.07.2003 for Rs. 43,450/- drawn on Canara Bank, East of Kailash, New Delhi which was got dishonored on presentation with remarks Insufficient Funds. It is submitted that the cheque issued by the defendant was handed over to Sh. Vinay Kandhari who was the employee/ agent of the plaintiff and assured that material would be supplied within 2-3 days but no material was supplied by the plaintiff. It is further submitted that the defendant wrote a letter to the plaintiff for cancellation of the order against the cheque bearing no. 148394 dated 17.07.2003 on 22.07.2003 in which defendant clearly mentioned that he wants to cancel the order. It is further submitted that the notice and 3/9 Usha Devi Vs Harish Jaggi criminal case filed under section 138 of NI Act are false and frivolous.
4) Replication to the written statement of defendant was not filed by the plaintiff.
5) On the basis of the pleadings of the parties following issues were framed on 04.11.2009 by the Ld. Predecessor Court.
1. Whether the plaintiff is entitled to decree for Rs. 43,450/-
against defendant alongwith interest @ Rs. 24 % per annum as prayed? OPP.
2. Whether the bill dated 17.07.2003 relied upon by the plaintiff is forged and fabricated? OPD.
3. Relief
6) Plaintiff led evidence in order to establish her case who examined herself as PW-1 by filing her evidentiary affidavit Ex. PW-1/A and relied upon the documents i.e the certified copy of bill dated 17.07.2003 exhibited as Ex. PW-1/1, the certified copy of cheque exhibited as Ex. PW-1/2, the certified copy of the dishonor memorandum exhibited as Ex. PW-1/3, certified copy of notice exhibited as Ex. PW-1/4 is marked as Mark B, postal receipt, UPC and AD Card are exhibited as Ex. PW-1/5 to Ex. PW- 1/7 respectively, the certified copy of the SPA exhibited as Ex. PW-1/8 is marked as Mark B and documents marked as Mark X, Y and Z. The plaintiff also brought witness namely Sh. Vijay, Assistant Ahlamd in the Court of Sh. Viplav Dabas, the then Ld. M.M, Delhi who was also examined, cross examined and discharged. Thereafter, the plaintiff's evidence was closed by recording statement of Ld. Counsel for plaintiff.
4/9Usha Devi Vs Harish Jaggi The defendant examined himself as DW-1 by filing his evidentiary affidavit Ex. DW-1/A and relied upon the documents i.e letter exhibited as Ex. DW- 1/1, courier receipt exhibited as Ex. DW-1/2(colly), legal notice exhibited as Ex. DW-1/3 is marked as Mark B, the copy of cheques/invoices exhibited as Ex. DW-1/4(colly) and letter for cancellation of order marked as Mark A. The defendant also brought witness DW-2 Sh. Gagan Jaggi who was also examined, cross examined and discharged. Thereafter the DE was closed on recording of statement of Ld. Counsel for Defendant.
7) After carefully going through the material available on record and hearing the arguments advanced by counsels for the parties, the issue- wise findings of this court are as under:-
Issue No.1 Whether the plaintiff is entitled to decree for Rs. 43,450/- against defendant alongwith interest @ 24 % per annum as prayed? OPP.
Issue No.2.
Whether the bill dated 17.07.2003 relied upon by the plaintiff is forged and fabricated? OPD.
Both these issues are decided together as they are interconnected. Onus to prove the issue no.1 was on the plaintiff who has filed the present case against the defendant based on the facts that the defendant purchased computer parts and hardware from the plaintiff worth Rs. 43,450/- which were received by the defendant vide bill dated 17.07.2003, that in discharge of his liability towards the payment of bill/ invoice of the 5/9 Usha Devi Vs Harish Jaggi aforesaid goods the defendant issued cheque bearing no. 148934 dated 17.07.2003 for Rs. 43,450/- which was dishonoured due to insufficiency of funds on its presentation and that the cause of action arose against the defendant on 17.07.2003 when he bought the goods against the voucher duly counter signed by him. The plaintiff affirmed the aforesaid version in her evidentiary affidavit and further deposed that the defendant had purchased the computer parts and hardware from her firm, that the defendant had duly received the said purchased goods and the bill was raised by her son Sh. Jatin Gupta. Perusal of the written statement filed on behalf of the defendant reveals that the defendant has disputed the factum of supply of computer parts by the plaintiff and receiving of goods by putting his signature on the invoice as well as the factum of visiting the shop of the plaintiff though the defendant has admitted entering into the present transaction with the plaintiff through Sh. Vinay Khandari whom the defendant had issued the cheque in question as an advance cheque. From the plaint and the evidentiary affidavit filed on behalf of the plaintiff, it appears that the transaction in question was conducted and completed in the presence of the plaintiff. However, in the cross examination the plaintiff testified that the dealing took place through her son Sh. Jatin Gupta, that she came to know about the dealing after the cheque was dishonoured and that she can not say whether the dealing in question took place through Sh. Vinay Khandari which indicates that the plaintiff is deposing contradictory to her evidentiary affidavit, that she is not an eye witness of the alleged transaction and that there is a probability that the alleged transaction may have been conducted through Sh. Vinay Khandari as per the defence version. The plaintiff further testified during her cross examination that the cheque in question was handed over in her office after receiving the delivery of goods in July 2007 and improved her version 6/9 Usha Devi Vs Harish Jaggi by again saying that it happened in July 2003 which is a material inconsistency putting a question mark on the factum of delivery of the goods as well as handing over of the cheque in response thereto thereby creating grave doubt about the plaintiff's version and thus substantiates the defendant's case. The plaintiff further admitted that delivery was not given to the defendant in her presence, that an employee of the defendant took the delivery of the goods and handed over the cheque in the plaintiff's firm, that she can not tell the exact time of the said delivery which is in contrast to the plaintiff's version in the plaint and the affidavit that it was the defendant who had taken the delivery and issued the cheque thereby bringing the plaintiff's version of alleged delivery to defendant and consequent issuance of cheque by him to a nought. It is admitted by the plaintiff that the present transaction was the first and only transaction conducted with the defendant and that she had dealings with Sh. Vijay Kandhari since 2003 indicating that the plaintiff was having business relations with Sh. Vijay Kandhari also as per the defence version. Instead of denying the question as to whether the disputed cheque issued in the name of the plaintiff firm was received by Sh. Vinay Kandhari from the defendant, the plaintiff deposed that she can not tell the same which probablizes the defence version that the cheque was handed over to Sh.
Vinay Kandhari by the defendant as an advance cheque and falsifies the plaintiff's case that the cheque was given to the plaintiff or her son by the defendant or on his behalf thereby making the plaintiff's entire version doubtful. Plaintiff further admitted that delivery was given in the presence of her son and that she can not tell the exact time of delivery which again probablizes the defence version that the delivery of goods as alleged by the plaintiff was not made thereby making the plaintiff's version unbelievable. Perusal of the invoice Ex. PW-1/1 indicates that the factum 7/9 Usha Devi Vs Harish Jaggi of receiving of the cheque in question against the goods allegedly supplied has not been mentioned which in ordinary course is usually mentioned by the prudent businessman. Plaintiff further admitted that signatures on the cheque and invoice are different which clearly shows that defendant is not the signatory to the invoice and had hence not taken the delivery as averred in the plaint thereby creating serious doubt on the genuinety of the invoice. It is further admitted by the plaintiff that the invoice is a computer generated document. As per Law computer, generated document being an electronic document is to be proved by following the requirement stated in Section 65(b) of Indian Evidence Act which have not been complied in the present case thereby making the said invoice inadmissible in evidence. It is pertinent to mention that the aforesaid invoice Ex. PW-1/1 after raising of which the goods were supplied and the cheque in question was issued has not been proved by calling its author or its signatory i.e son of the plaintiff though the said invoice is being disputed by the defendant as forged and fabricated since the very beginning of the case. Perusal of the testimony of plaintiff further shows that the plaintiff's son was the main person through whom the alleged transaction was completed but the plaintiff did not bring her son in the witness box for discharging the burden of the facts asserted by her in the plaint and extracted by the defendant from her during the cross examination which is a material omission on the part of the plaintiff giving rise to an adverse inference against the plaintiff's case as well as the genuinety of the alleged invoice Ex. PW-1/1. It is apparent that the plaintiff is not an eyewitness to to any part of transaction which is disputed firmly by the defendant indicating that her testimony is unbelievable being hearsay and is of no legal consequence. It thus emerges from the scrutiny of the cross examination of PW-1 that the defendant has been able to put a question mark on the genuineness of the alleged invoice Ex. PW-1/1 which 8/9 Usha Devi Vs Harish Jaggi amounts to discharging of defendant's onus to prove that the invoice Ex. PW-1/1 is false and fabricated as per issue no. 2 and shifting of the onus on the plaintiff for proving that the invoice Ex. PW-1/1 is genuine which the plaintiff failed to rebut. From the aforesaid discussion, it is clear that the plaintiff has failed to raise a preponderance of probability showing that the goods in question were supplied or delivered to the defendant which in turn rebuts the presumption of existence of debt or liability at the time of issuance of the cheque by the defendant and thus probablizes the defence version that the cheque in question was issued as an advance cheque against which the goods were never supplied. So, both these issues are decided in favour of the defendant and against the plaintiff.
Issue No.3 Relief In view of the findings on the aforesaid issues, the suit of the plaintiff is hereby dismissed.
Parties are left to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Announced in the open court (VIPLAV DABAS)
today i.e on 21.12.2013 CJ-11/CENTRAL/DELHI
21.12.2013
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