Delhi District Court
V. S. Pharmaceuticals vs Pharmaceuticals Versus Mrs.Payal ... on 28 November, 2023
IN THE COURT OF ADDITIONAL DISTRICT JUDGE-08
(CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
Presided by : Ms. Vandana
RCA DJ No. 3/22
Unique ID No. : DLCT01-000153-2022
In the matter of:
V. S. Pharmaceuticals
Shop No. 1725, Ram Gali,
Bhagirath Palace, Chandni Chowk,
Delhi-110006
Through its Proprietor
Sh. Vijay Ahuja .....Appellant
Versus
1. Payal Ahuja,
W/o Sh. Gulshan Ahuja,
R/o Flat No. 804,
Sky Heights Apartments,
Satellite Road, Prahalad Nagar,
Ahemdabad, Gujarat-380015
2. M/s Womb Laboratories Pvt Ltd.
Plot No. 96, D/4 Sanathan Sanand Road,
Sanathal, Ahemdabad, Gujarat-382210
Through its Chariman and Managing Director
Sh. Gulshan Ahuja .....Respondents
RCA No. 3/2022 Page No. 1 of 14
Date of institution of the appeal : 03.02.2022
Date on which order was reserved : 28.11.2023
Date of Decision : 28.11.2023
JUDGMENT:
1. That the present appeal has been filed by the appellant challenging the decree dated 09.12.2021 passed in C.S. No. 594921 of 2016 by the Court of Ms. Aneeza Bishnoi, Civil Judge-06, Central, Tis Hazari Courts, Delhi, whereby the suit of the appellant/plaintiff was dismissed. For the sake of convenience, the parties will be referred by their original status.
2. That the brief facts of the matter as per the case of the appellant/plaintiff are as follows:-
2.1 The case of the appellant / plaintiff is that plaintiff is the proprietor of firm M/s V.S. Pharmaceuticals which is dealing in pharmaceuticals products at Delhi and defendant no. 1 is the relative of proprietor of plaintiff and the husband of defendant no. 1 has also been running pharmaceutical business in Gujarat in the name of defendant no.1. It is stated that on account of close relations plaintiff had given pharmaceutical goods on credit to defendant no. 2 and further invested lakhs of rupees in pharmaceutical raw material since he was allured on high profit return by the husband of defendant no.1.
It is further stated that goods and material were also supplied to RCA No. 3/2022 Page No. 2 of 14 another company of defendant by the name of M/s P & G Ahuja Biotech Ltd. and all the transactions have been conducted on record through bank transfers.
2.2 It is further averred that on the account of the goods supplied and funds transferred in due course, a sum of Rs.41,04,315/- remained due payable to the plaintiff by defendant no. 2 company and another sum of Rs. 20,99,822/- remained due payable to the plaintiff against the company M/s P & G Ahuja Biotech Ltd. which become payable from the year 2008-2009 to 2010-2011. It is further stated that in January 2009 plaintiff had applied for an auto loan with HDFC Bank and for that purpose certain blank cheques from his account signed were kept in the office drawer but on checking at the time of sanction of loan those cheque could not be found and accordingly an FIR was lodged vide NCR No. 354/2011, PS Chandni Chowk by the plaintiff. It is further stated that in the month of September, 2012 the plaintiff was in dire need of funds and asked defendant to return his money and also the value against goods supplied but they started to avoid the plaintiff and did not make any payment.
2.3 It is further stated that plaintiff received a notice U/S 138 N I Act got issued by the defendant with respect to said blank lost signed cheques. It is further stated that husband of defendant no. 1 had been frequently visiting the office of the plaintiff during the year 2009-2010 and it became clear that those cheques were misused by RCA No. 3/2022 Page No. 3 of 14 defendant by the acts of fabrication and forgery and accordingly plaintiff filed criminal complaint case no. 51190 of 2013 filed on 07.10.2013 for the offence of forgery and fabrication by using blank cheques and reply to the notice U/S 138 N I Act was also made on 05.08.2013. It is further stated that out of 18 blank signed cheques, three cheques had been misused by the defendant and defendant still held 15 other blank signed cheques leaves.
WRITTEN STATEMENT ON BEHALF OF THE DEFENDANTS
3. Defendants had filed written statement wherein it is stated that the three cheques in question were issued by the plaintiff in discharge of his liability and there is no cause of action in favour of the plaintiff and the suit of the plaintiff is liable to be dismissed.
REPLICATION
4. Replication was filed on behalf of plaintiff to the written statement wherein all the averments made in the plaint were reiterated and contents of the written statement of defendants were denied.
5. On the basis of evidence, the suit of the plaintiff was dismissed vide order dated 09.12.2021 against which the present appeal has been preferred on the following grounds:-
i) The Ld. Trial Court has failed to appreciate that once the issue no. 1, 2 & 4 have been decided in favour of the plaintiff to hold that the subject cheques were held by the respondent/defendant blank RCA No. 3/2022 Page No. 4 of 14 & without any mandate of the appellant/plaintiff to the respondent/defendant for either holding the cheque as security or towards discharge of any debt liability, nothing more was required to be proved to entitle the plaintiff for the grant of relief seeking declaration that the said cheque was without any mandate.
ii) The Ld. trial court has also failed to appreciate that the decision on issue no. 3 framed by the court was directly related to the decision on issue no. 1, 2 & 4. If it is proved & concluded that the subject cheques held by the respondent/defendant were without any mandate from the appellant/plaintiff, any attempt or use of the same shall amount to misuse of the said blank cheque.
iii) That it is settled law as held by the Apex Court in the case of United Indian Insurance Co. Ltd. & Anr. V/s Sameer Chandra Chaudhary reported at (2005) 5 SCC 784 that :-
"The effect of admission is that it shifts the onus onto the person admitting the fact on the principle that what a party himself admits to be true may reasonably be presumed to be so & until the presumption is rebutted the fact admitted must be taken to be established. An admission is the best evidence that an opposing party can rely upon & though not conclusive is decisive of matter, unless successfully withdrawn or proved erroneous."
iv) That in terms of the provision of Indian Evidence Act, 1872, the facts and things admitted need not be proved. In the present matter the respondent/defendant witness DW-1 has categorically admitted that the subject cheque were blank signed & filled by the RCA No. 3/2022 Page No. 5 of 14 respondent/defendant party afterwards. It was further admitted that there is no proof or document filed by them to establish any debt liability on the plaintiff for the purpose of the said cheques. Hence, the subject suit could not be dismissed for want of evidence.
v) That the Ld. Trial Court has dismissed the suit only on the ground of no evidence. The Ld. Trial Court has misled itself to the extent that a fact proved through oral evidence by admission of the other side, needs no further proof whether oral or of documentary nature.
vi) That the Ld. Trial Court has failed to appreciate that the subject suit was not any suit for recovery of amount from the respondent/defendant & therefore there was no requirement on the part of the appellant/plaintiff to adduce documentary proof as to the recoverable dues from the respondent/defendant. The reference to the recoverable dues from the respondent/defendant was a passing reference & had no axis for the purpose of mandate against the subject cheques.
vii) That the Ld. Trial Court has failed to appreciate that it was the onus on the respondent/defendant to prove that the said cheques were delivered to them against some legally enforceable debt or as a security. In the absence of any such proof & failure on the part of the respondent /defendant the issue no. 1, 2 & 4 have been decided in favour of the plaintiff & therefore there was no occasion for the dismissal of the suit in the present case.
RCA No. 3/2022 Page No. 6 of 14viii) That the impugned judgment suffers from grave error of law since it has failed to consider that there were no claims made by the appellant/plaintiff as recorded in para 21 of the judgment. However, the relief sought by the appellant/plaintiff is only to the extent seeking declaration of the subject cheques to be declared null & void for want of mandate.
6. Notice of the appeal was issued to the respondent.
7. Detailed reply to the appeal was filed. Vide reply, it has been stated that Ld. Trial Court rightly passed the impugned judgment / decree dated 09.12.2021. It has been stated further that for clearing the legal outstanding, appellant issued some signed blank cheques as security for doing the said business together out of those cheques, cheque no. 301978 and 301979 issued by the appellant were drawn on ING VYAS Bank, which later returned unpaid / bounced with the reason "account closed" and the acknowledgment for the same was received on 28.06.2013 by the respondent. Hence, prayer was made to dismiss the appeal with heavy costs as Ld. Trial Court, after considering the materials available on record passed the impugned judgment / order.
8. Rejoinder was also filed to the above said reply denying all the averments made in the reply to the appeal.
RCA No. 3/2022 Page No. 7 of 149. Arguments heard. Ld. Trial court record perused.
10. In the case in hand, following issues were framed by the Ld. Trial Court which are as under:-
(i) Whether the cheques in question have been issued by the plaintiff in discharge of any debt liability ? OPD
(ii) Whether the cheques in question were blank or signed before it reached to the possession of defendant ? OPP
(iii) Whether the defendants have misused the blank cheques ? OPP
(iv) Whether the cheques in question had any mandate for any payment in favour of the defendant ? OPD.
(v) Relief.
11. The issue no. 1, 2 and 4 were decided against the defendant by the Ld. Trial court, however, the issue no. 3 was decided against the plaintiff and in favour of the defendant, hence, the suit of the plaintiff was dismissed. So far as the observation made while deciding the issue no. 1, 2 and 4 are concerned, they have not been challenged either by the appellant or by respondent.
12. Only the findings of the Ld. Trial Court with respect to issue no. 3 have been challenged submitting that once the issue no. 1, 2 & 4 have been decided in favour of the plaintiff to hold that the subject cheques were held by the respondent/defendant blank & RCA No. 3/2022 Page No. 8 of 14 without any mandate of the appellant/plaintiff to the respondent/defendant for either holding the cheque as security or towards discharge of any debt liability, nothing more was required to be proved to entitle the plaintiff for the grant of relief seeking declaration that the said cheque was without any mandate. It is relevant to point out that while deciding the issue no. 1, 3 and 4 against the defendant and in favour of the plaintiff, the Ld. Trial Court made an observation that the defendants / respondents have failed to prove that the cheques in question have been issued by the appellant / plaintiff in discharge of any debt liability, further, the respondent/ defendant also remained failed to prove the fact that the cheques in question had any mandate for any payment in favour of the respondent / defendant. This observation automatically have direct bearing on the issue no. 3, when respondent / defendant have been observed to be failed in proving that the cheques in question were given in discharge of any debt liability or cheques in question or has any mandate for any payment in favour of the defendant then it leads to the only conclusion that the cheques have been misused by the respondent / defendant. If we look at the cross-examination of DW-1, he categorically admitted that, I have not placed on record any document with respect to any financial liability against Vijay Ahuja, plaintiff. It is correct to say that the cheques with regard to section 138 NI Act were blank and were filled afterward by us.RCA No. 3/2022 Page No. 9 of 14
13. It is also relevant to mention here that while deposing before the court DW-1 testified that, the said cheques were given to us as security. However, in the WS, it has been stated by the defendant that the plaintiff issued the cheques towards the supplies received by him for his business. Apparently, the stand taken by the defendant in the WS, and his testimony are in direct contradiction which raises a strong doubt over the story of the defendant.
14. The onus to prove the issue no. 3 i.e. Whether the defendants have misused the blank cheques ?, was upon the plaintiff. But here, comes the law of admission in picture. Section 58 of Indian Evidence Act lays down that admissions are not required to be proved.
15. It is held by the Hon'ble Apex court in the matter of Nagindas Ramdas Vs. Dalpatram Ichharam @ Brijram & Ors. reported at (1984) 1 SCC 242 in para 27 that:-
"Admission, if true & clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under section 58 of the Indian Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them & constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive.RCA No. 3/2022 Page No. 10 of 14
16. Section 31 of Indian Evidence Act is also relevant here which lays down that admissions are not conclusive proof of the matters admitted, but they may operate as estoppels.
17. In view of the above categorical admission of the defendant, there was, as such, left nothing for the plaintiff for leading evidence to show his accounts and documents related to business dealings with the defendant. The admissions of the defendant prima facie lead to a presumption that the defendant has misused the blank cheques. The above said presumption become more strong in view of the contradictory pleas of the defendant as in the WS, the defendant has stated that the plaintiff had issued the cheques for supplies received by him for his business. Apparently, no blank cheques are issued in such kind of transactions. On the other hand, in order to cover up this, it was testified by DW-1 that cheques in question were given as security that the cheques were given to them as security, but he failed to mention as to in which transaction the above said security cheques were given. But, obviously, the above said presumption is rebuttal presumption.
18. It is settled law as held by the Apex Court in the case of United Indian Insurance Co. Ltd. & Anr. V/s Sameer Chandra Chaudhary reported at (2005) 5 SCC 784 that:-
"The effect of admission is that if shifts the onus onto the person admitting the fact on the principle that what a party himself admits to RCA No. 3/2022 Page No. 11 of 14 be true may reasonably be presumed to be so & until the presumption is rebutted the fact admitted must be taken to be established. An admission is the best evidence that an opposing party can rely upon & though not conclusive is decisive of matter, unless successfully withdrawn or proved erroneous."
19. But as stated above, the defendant miserably failed to rebut the above said presumption which arose on the basis of admission. In my considered view, it was wrongly observed by the Ld. Trial Court that the plaintiff has not provided sufficient evidence to prove the outstanding account statement against the respondent / defendant as the burden to prove the fact that cheques have not been misused by the defendant, in the light of his admission had automatically shifted upon the respondent / defendant.
20. Further, it is also relevant to note that the suit was not for any recovery of any amount from the respondent / defendant and therefore, there was no requirement on the part of the appellant / plaintiff to prove his accounts statement. The Ld. Trial Court has failed to appreciate that the certificate under Section 65 of Indian Evidence is a supporting verification in law which can be submitted even after filing the document in question. Even, otherwise in the present matter the statement account mark C if left to be proved, would not cause any fatal effect on the relief sought. Further more, the ledger account statement & other document pertaining to the dues RCA No. 3/2022 Page No. 12 of 14 against the respondent/ defendant have no direct impact on the issue of mandate against the said cheques. Therefore, the conclusion drawn by the trial court while deciding the issue no. 3 is wrong.
21. In view of forgoing analysis and observation, the present appeal stands allowed and the impugned order / judgment dated 09.12.2021 is set aside, accordingly.
RELIEF
22. In view of the aforesaid discussion, the suit of the appellants / plaintiffs stands decreed with the following reliefs:-
(i) A decree of declaration is passed in favour of the appellant / plaintiff and against the respondents / defendants, whereby declaring the bank cheques in question bearing serial no. 412565, 412566, 484423, 484424, 484425, 484445, 941730, 941731, 952811, 941732, 952810, 941733, 9417134, 941735, 941736 & 952803 drawn on ICICI Bank, Chandni Chowk, Delhi (from the current account CA No. 629205025089 of the plaintiff firm) is null and void.
(ii) A decree of injunction is passed in favour of the appellant / plaintiff and against the respondents / defendants, restraining the respondents / defendants from making any use of the said blank cheques. The respondents / defendants are also directed to return the same to the appellant / plaintiff within a month.
(iii) The plaintiff is also awarded the costs of the suit.RCA No. 3/2022 Page No. 13 of 14
23. Decree sheet be prepared accordingly.
24. A Copy of this order be sent to the Ld. Trial Court alongwith trial court record. File of the present appeal be consigned to Digitally record room after due compliance. signed by VANDANA VANDANA Date:
2023.11.28 16:41:55 +0530 Pronounced in the open Court (VANDANA) on 28nd November, 2023. Additional District Judge-08 Central District : Tis Hazari Courts Delhi.RCA No. 3/2022 Page No. 14 of 14