Delhi District Court
Laxmi Publications Pvt. Limited vs And on 27 January, 2009
SUIT NO.1082/2006
IN THE COURT OF SH. NARESH KUMAR MALHOTRA,
ADMINISTRATIVE CIVIL JUDGE, KARKARDOOMA, DELHI
SUIT NO.1082/2006
DATE OF INSTITUTION: 18.04.2006
DATE OF RESERVING ORDER: 21.01.2009
DATE OF DECISION: 27.01.2009
BETWEEN
LAXMI PUBLICATIONS PVT. LIMITED
22, Golden House,
Darya Ganj,
New Delhi- 110002.
........ Plaintiff
AND
SH. RAJESH SINHA
R/O F-217, Pandav Nagar,
Delhi -110092.
2. Sh. Rajesh Shukla
S/O Sh. U.S. Shukla
1498, Ranjeet Gali,
Paharganj, New Delhi.
3. Sh. Kewal Saluja
S/O Sh. Tilak Raj Saluja
4623, Shora Kothi,
Paharganj, New Delhi.
........ Defendants
(SUIT FOR MANDATORY INJUNCTION )
JUDGMENT
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SUIT NO.1082/2006
1 Vide this judgment, I shall decide a suit for mandatory injunction filed by the plaintiff against the defendant. Earlier the present suit was filed against all the defendants but vide order dated 31.01.07, the suit against defendants no. 2&3 was dismissed as withdrawn.
2 The essential facts for the disposal of present suit as per plaint are that the plaintiff is a private limited company duly registered under the Companies Act in the officer of Registrar of Companies, Haryana and NCR Delhi. Sh. Shankar Mishra has signed and verified the present suit who is authorized person to sign, file and verify the present suit. Defendant no.1 was an employee of plaintiff company and his job was to sell the books of plaintiff company which were entrusted to him by the plaintiff company. Books vide challan no. 208 dated 08.01.03, 220 dated 11.01.03, 227 dated 12.01.03, 234 dated 13.01.03 and 244 dated 14.01.03 were entrusted to defendant no.1. Defendant no.1 did not return these books to the plaintiff company and misappropriated the books mentioned above and the plaintiff has filed a separate complaint U/S 407 r/w section 420 IPC against the defendant no.1. Defendant no.1 also remained absent from his duties without any information w.e.f. 25.05.03. Plaintiff vide letter dated 16.07.03 informed the defendant no.1 to give accounts of books entrusted to him and explain the reason of his absence. Defendant no.1 did not send any 2 SUIT NO.1082/2006 reply and thereafter another reminders were sent by plaintiff to defendant no.1 on 24.07.03 and 08.08.03. Defendants no.2&3 stood guarantors of defendant no.1. It is prayed by plaintiff that defendant no.1 be directed to refund the books by passing a decree of mandatory injunction in favour of plaintiff and against the defendant.
3 Defendant no.1 contested the suit by filing written statement and has taken preliminary objection that the present suit is without any cause of action and the same is barred by limitation. Suit of plaintiff is directly hit by provisions of section 41 (h) of Specific Relief Act. The books mentioned in the plaint were for destination Kota and Udaipur and the books were for the purpose of sampling/specimen. The books were distributed by defendant no.1 on account of samples to various schools situated in Kota and Udaipur and the remaining books were duly transported to plaintiff through Milap Road Line Transport vide G R No.2249 dated 23.01.03 and through Divakar Transport Company vide G R No.21513 dated 01.02.03. The books were duly received and acknowledged by plaintiff vide challans no. 114 to 118 dated 10.02.03, 12.02.03 and 24.02.03. On merits, similar averments were made by the defendant. It is also averred that defendant no.1 conveyed to plaintiff to relinquish the job on 24.05.03 and the defendant no.1 vide resignation letter dated 26.05.03 resigned from the job 3 SUIT NO.1082/2006 which was duly handed over to the plaintiff. Resignation letter of defendant no.1 was duly accepted by the plaintiff. Dismissal of suit is prayed by the defendant.
4 Plaintiff had not filed the replication. From pleadings of the parties, following issues were framed by my Ld. predecessor on 03.10.2007 :-
1) Whether the plaintiff is entitled to a decree of permanent injunction, as prayed ?OPP
2) Whether the present suit is time barred, as alleged ?OPD
3) Whether the present suit is not maintainable in the present form, as alleged ?OPD
4) Relief.
5 The case was fixed for evidence. Plaintiff examined Sh. Shankar Mishra as PW1. This witness filed an affidavit in examination-in- chief and proved the copy of incorporation certificate as Ex.PW1/1, the resolution in favour of PW1 was proved as Ex.PW1/2, the payment letter of defendant no.1 was proved as Ex.PW1/3. The photocopy of challans were proved as Mark A to Mark G. On the other hand, defendant appeared as DW1.
4 SUIT NO.1082/2006 6 I have heard both the counsels and gone through the records.
My findings on the above issues are as follows:-
Before deciding issue no.1, I am deciding issues no.2 and 3. ISSUE NO.2 :-
7 The onus to prove this issue is on the defendant. Counsel for defendant has contended that if we peruse the plaint, the books were entrusted to defendant no.1 from 08.01.03 to 14.01.03 and the present suit has been filed after the period of limitation. Plaintiff has placed on record the photocopies of challans. The books were supplied to defendant no.1 vide challan no. 208 dated 08.01.03, 220 dated 11.01.03, 227 dated 12.01.03, 234 dated 13.01.03 and 244 dated 14.01.03. Lastly, the books were received by the defendant no.1 vide challan no. 244 dated 14.01.03. PW1 also admitted that defendant no.1 was entrusted the last consignment on 14.01.03 and the present suit was filed by the plaintiff on 18.04.06 i.e. beyond the limitation period of three years. This issue is decided in favour of defendant and against the plaintiff.
5 SUIT NO.1082/2006 ISSUE NO.3 :-
8 Burden to prove this issue is on defendant. Present suit is for decree of mandatory injunction thereby directing the defendant no.1 to return the books. PW1 admitted that whatever books were entrusted to defendant no.1 through challans Ex.PW1/D1 (colly) were returned by defendant no.1 to plaintiff through challans Ex.PW1/D2 consisting of 12 pages. Vide Ex.PW1/D2, the books were returned to the plaintiff vide challan no.114, 115, 116, 117, 118. 123, 124, 125, 127, 128, 151 and 152.
PW1 admitted all these challans which are proved as Ex.PW1/D2(colly). Thus the books which were not distributed by defendant no.1 were returned to plaintiff.
9 The next plea of plaintiff is that defendant no.1 has remained absent without any intimation. Defendant has placed on record a copy of resignation letter dated 26.05.03 Ex.DW1/1. The No Dues Certificate cum resignation acceptance certificate was proved by defendant no.1 as Ex.DW1/2. This letter is duly signed by the Managing Director of plaintiff company. In this resignation letter, it is also mentioned that neither the company nor the defendant has any claim against each other whatsoever in any manner. Thus, at the time of resignation, there were no dues 6 SUIT NO.1082/2006 against the defendant no.1. Plaintiff has filed the present suit without any rhyme and reason. Moreover, defendant no.1 filed an affidavit in examination-in-chief and plaintiff has not cross- examined the witness. Thus, testimony of DW1 remains unrebutted. This issue is decided in favour of defendant and against the plaintiff.
ISSUE NO.1 :-
10 The burden to prove this issue is on the plaintiff. PW1 admitted in the cross- examination that the books were in respect of which the present suit has been filed were not entrusted to defendant no.1 for the purpose of sale. He further admitted that the books vide challans Ex.PW1/D1 were entrusted to defendant no.1 only for samples and vide challans Ex.PW1/D2, the same were returned to plaintiff. It is also admitted that plaintiff used to deliver the books to defendant no.1 as sample. Thus, plaintiff is not able to prove this issue. As I already decided issues no.2&3 in favour of defendant and against the plaintiff. Further, plaintiff has not cross- examined defendant no.1 and his testimony remains unchallanged and unrebutted. This issue is also decided in favour of defendant and against the plaintiff.
7 SUIT NO.1082/2006 RELIEF :-
11 In view of my findings on the above said issues, the suit of plaintiff is without any merit and the same is dismissed with cost of Rs.2,000/-. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
ANNOUNCED IN OPEN COURT (NARESH KUMAR MALHOTRA)
ON 27-01-2009 ADMINISTRATIVE CIVIL JUDGE
KKD/DELHI
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