Delhi District Court
Shri C. L. Arora vs Shri Jasveer Singh on 30 April, 2014
IN THE COURT OF MS. SHELLY ARORA,
ADDL. SENIOR CIVIL JUDGE-CUM- JUDGE SMALL CAUSE
COURT-CUM- GUARDIAN JUDGE,
DISTRICT: SOUTH, NEW DELHI.
CS No. 492/11
Unique ID No. 02406C0060352011
SHRI C. L. ARORA
S/o Late Moti Ram,
R/o B-59, 3rd Floor, Dayanand Colony,
Lajpat Nagar IV,
New Delhi. .................. Plaintiff.
Vs.
1. SHRI JASVEER SINGH
S/o Shri Jugal Kishore,
R/o 207, Sector-II, Sadiq Nagar,
Andrews Ganj,
New Delhi.
2. PURVA TELECOM PVT. LTD.
207, Sector-II, Sadiq Nagar,
New Delhi-110049. ...........Defendants.
DATE OF INSTITUTION : 16.03.2011
DATE OF RESERVING JUDGMENT : 29.04.2014
DATE OF PRONOUNCEMENT : 30.04.2014
CS No. 492/11 Sh. C. L. Arora Vs. Sh. Jasveer Singh & Anr. Page No. 1 of 23
JUDGMENT
Vide this judgment, I shall dispose of suit filed by Sh. C. L. Arora (hereinafter called the Plaintiff) against Sh. Jasveer Singh and Sh. Purva Telecom Pvt. Ltd. (hereinafter called the defendants) seeking recovery of Rs.1,62,500/-.
Relevant facts necessary for disposal of the present suit are as follows:-
1. In the suit, it is stated that plaintiff is the proprietor of Unique Cyber Cafe at B-41/B, Sanwal Nagar, New Delhi-110049 and defendant no. 1 is AR of defendant no. 2. It is stated that plaintiff has entered into collaboration with defendant no. 2 through defendant no. 1 vide notarized Partnership Deed dated 30.10.2009 for starting and providing internet services to the customers in the region of NCR of Delhi on certain mutually agreed terms and conditions as mentioned therein.
2. It is stated that plaintiff paid Rs.1.25 lacs being 50% share of the expenses of entire setup for providing internet services to customers in NCR of Delhi and in other cities to the defendant no. 2 by way of cheque no 078972 dated 26.10.2009 drawn on Vijaya Bank, Defence Colony, New Delhi. It is further stated that defendants also assured to pay Rs.20,000/- per month as salary to Mr. Vikram Arora, son of plaintiff as he was working with CS No. 492/11 Sh. C. L. Arora Vs. Sh. Jasveer Singh & Anr. Page No. 2 of 23 defendants but defendants have not paid salary to him. It is further submitted that defendants cheated on plaintiff and closed office at B-41/B, Sanwal Nagar, New Delhi and in these circumstances, it has become very difficult for plaintiff to work continuously with defendants.
3. It is further averred by the plaintiff that as per Clause (h) of the Partnership Deed, defendant no. 2 is supposed to refund the entire consideration amount in case, Unique Cyber Cafe is not interested for any reason in said partnership. Accordingly, plaintiff several times demanded his money back from defendants but they did not return the same. Thereafter, a legal notice dated 17.07.2010 was sent to defendants which was duly served but defendants still chose not to pay the said amount.
4. Plaintiff has prayed for passing a decree for a sum of Rs.
1,62,500/- in favour of plaintiff and against defendants with pendente-lite and future interest @24% per annum and costs of the suit.
5. Upon receipt of summons of the suit, Written Statement on behalf of defendants no. 1 and 2 was filed by the defendants submitting that therein that defendant no. 1 is the proprietor of defendant no. 2. It is averred that defendants filed an application CS No. 492/11 Sh. C. L. Arora Vs. Sh. Jasveer Singh & Anr. Page No. 3 of 23 under Section 340 Cr. P. C. in respect of forged partnership deed dated 30.10.2009, said deed has never been signed by defendant and thus, his signatures have been forged by plaintiff therein for his benefit. It is averred that plaintiff did issue a cheque bearing No. 078972 dated 26.10.2009 of Rs.1,25,000/- in favour of defendant no. 2 only for providing the wi-fi services. He also submitted that an amount of Rs.22,000/- towards hardware and Rs.15,000/- towards software was also spent during such installations in his office but till date said amount has not been paid to defendants. It is denied that plaintiff had entered into any collaboration with defendant no. 2 through defendant no. 1, as an AR of defendant no. 2 vide partnership deed dated 30.10.2009 for starting and providing internet services to the customers in the region of NCR of Delhi and other cities. It is further averred that defendants have not entered in any partnership deed and the said partnership deed has been made by plaintiff by forging signature of defendant no.
1. It is prayed that present suit of plaintiff be dismissed with heavy costs.
6. Replication on behalf of plaintiff was filed against the written statement in which the averments mentioned in the plaint were reiterated and the submissions made in the written statement were denied.
CS No. 492/11 Sh. C. L. Arora Vs. Sh. Jasveer Singh & Anr. Page No. 4 of 23
7. Following issues were framed from the pleadings of the parties vide Order dated 15.09.2011 passed by the Ld. Predecessor of this Court:
1. Whether the plaintiff has not come to the court with clean hands and has concealed the material facts from the court, if so, what facts?OPD
2. Whether the defendants did not enter into any collaboration with the plaintiff?OPD
3. Whether plaintiff is entitled to recover a sum of Rs.1,62,500/- as prayed for in the suit?OPP
4. Whether the plaintiff is entitled for interest, if so, at what rate and for which period?OPP
5. Relief.
8. The matter was then listed for Plaintiff's Evidence.
Evidentiary affidavit of plaintiff was tendered as Ex. PW-1/A as part of Plaintiff Evidence. PW-1 relied upon the documents as part of his affidavit as Ex. PW-1/1 to Ex. PW-1/7 which are as follows:
CS No. 492/11 Sh. C. L. Arora Vs. Sh. Jasveer Singh & Anr. Page No. 5 of 23 Ex. PW-1/1 is original Partnership Deed dated 30.10.2009 (although exhibited as Ex. PW-1/4 in the affidavit), Ex. PW-1/2 is copy of legal notice dated 17.07.2010 (although exhibited as Ex. PW-1/5 in the affidavit), Ex. PW-1/3 is Postal receipt dated 29.07.2010 (although exhibited as Ex. PW-1/6 in the affidavit), Ex. PW-1/4 is AD (although exhibited as Ex. PW-1/7 in the affidavit),
9. PW-1 has admitted in cross examination by counsel for defendants that he was running a Cyber Cafe since 02.04.2009 which was closed on 31.03.2010. He further submitted that he did not know the exact price of equipments/articles in the Cyber Cafe but it was approximately more than Rs.1,00,000/-. He submitted his monthly income from said cafe to be around Rs. 9,000/- and the rent of place from where he running cafe was Rs.8,000/- per month. It was admitted that partnership deed with defendants with regard to providing internet service was entered into for B-41/B, Sanwal Nagar, New Delhi. PW-1 has deposed that at the time of signing the Partnership Deed, his wife Smt. Jai Arora, his son Vikram Arora, brother in law of defendant no. 1 Sh. Pramod and neighbour Sh. Sunny and his younger brother Sh. Lalit Arora were present there. He further CS No. 492/11 Sh. C. L. Arora Vs. Sh. Jasveer Singh & Anr. Page No. 6 of 23 testified that he had handedover the cheque of Rs.1,25,000/- to defendant no. 1 after signing of Partnership Deed. He further stated that the partnership continued for 4 to 5 months and about 10 customers were enrolled during that period further clarifying that the instruments were purchased and installed by the defendant no. 1 in House No. B41/B, Sanwal Nagar, New Delhi. He further clarified that the defendant carried away the instruments on his own when he was not present at his residence as the residence of defendant no. 1 was in close vicinity.
10. PW-2 is Manish Kumar, Jr. Office, Retail Liability Group in ICICI Bank Ltd. who testified that there was no account in ICICI Bank, Defence Colony Branch in the name of M/s Purva Pvt. Ltd. He was not put to cross examination by counsel for defendants despite opportunity.
11. PW-3 Sh. R. K. Saini, Sr. Technical Asstt., Office of Registrar of Companies, Nehru Place, New Delhi produced the following summoned record pertaining to Purva Telecom Pvt. Ltd. as in certified copy of Certificate of Incorporation Ex. PW-3/1, certified copy of Form 32 as Ex. PW-3/2, certified copy of Form 18 Ex. PW-3/3, certified copy of Memorandum of Association Ex. PW-3/4, certified copy of Articles of Association CS No. 492/11 Sh. C. L. Arora Vs. Sh. Jasveer Singh & Anr. Page No. 7 of 23 Ex. PW-3/5, certified copy of Form 20 B alongwith copy of Annual Return made upon 30.09.2010 Ex. PW-3/6, certified copy of Form 23AC alongwith copy of Balance Sheet as at 31.03.2010 Ex. PW-3/7 and certified copy of Form 23CA alongwith copy of Profit & Loss Account for the year ended on 31.03.2010 Ex. PW-3/8.
In cross examination by counsel for defendants, he submitted that there were two Directors of the Company as per Form 32 and the company is required to file another Form 32 in case of appointment of a fresh Director which has not been done in this case.
12. PW-4 Sh. Prakash Chand, Public Relation Inspector, Andrews Ganj Post Office, New Delhi produced the record regarding Receipt No. RLAD B 8180 dated 29.07.2010 submitting that the contents of the envelope were handed over to the addressee Jasvir Singh who also signed the delivery slip dated 31.07.2010 which is Ex. PW4/A. He was not put to cross examination by counsel for defendants despite opportunity.
13. PW-5 is Ms. Jai Arora, who tendered his evidentiary affidavit as Ex. P-5 bearing his signatures at Points A and B. She testified in her cross examination by counsel for defendants that the Partnership Deed was executed at Unique Cyber Cafe, CS No. 492/11 Sh. C. L. Arora Vs. Sh. Jasveer Singh & Anr. Page No. 8 of 23 Sanwal Nagar, Delhi in October, 2009 in her presence and that a cheque of Rs.1,25,000/- was handed over to Mr. Jasvir Singh after signing of partnership deed on the same day, executed for providing the internet connection in NCR as well as in Delhi.
14. PW-6 is Sh. Vikram Arora who also testified on the lines of PW-5 Ms. Jai Arora submitted that defendant assured him a salary of Rs.20,000/- per month.
In cross examination by counsel for the defendants, he stated that the defendants did not issue any appointment letter to him. He declined the suggestion that there was no assurance on behalf of defendants to pay him Rs.20,000/- a month.
15. PW-7 is Sh. Sunny who testified that the partnership deed Ex. PW-1/1 bears his name at Point A written by himself but plaintiff and defendant did not sign the document in his presence.
16. PW-8 is Sh. Lalit Sharma, Officer of ICICI Bank, Regional Processing Centre, Jhandewalan Extension, New Delhi who produced the summoned record of statement of account of Purva Telecom Ltd. w.e.f. 01.04.2009 till 31.03.2010 which is Ex. PW-8/A (Colly). He also clarified that the cheque bearing no. 078972 for an amount of Rs.1,25,000/- from Sh. C. L. Arora CS No. 492/11 Sh. C. L. Arora Vs. Sh. Jasveer Singh & Anr. Page No. 9 of 23 issued from Vijaya Bank was credited in favour of Purva Telecom Ltd. on 29.10.2009. He was not put to cross examination by counsel for defendants despite opportunity.
17. PW-9 Sh. Lalit Sachdeva, Asstt. Manager, Vijaya Bank, Defence Colony, New Delhi produced the summoned record of Statement of Account of Sh. C. L. Arora which is Ex. PW-9/A as per which a Cheque Bearing No. 078972 was cleared from the Bank on 29.10.2009 in favour of Purva Telecom Pvt. Ltd. He was not put to cross examination by counsel for defendants despite opportunity.
18. Evidentiary affidavit of defendant no. 1 was tendered as Ex. DW-1/A as part of Defendant Evidence.
In his cross examination by counsel for plaintiff, he submitted that the registered office of defendant no. 2 is being run from House No. 207, Sector II, Sadik Nagar, New Delhi which belongs to his father in law and is a Govt. Accommodation. He clarified that defendant no. 2 is Private Limited company and he is the Director of Company which is engaged in providing Wireless Media Service Ltd. He also testified that he had received Rs.1,25,000/- from the plaintiff to set up wi-fi system and that the money was taken in the name of defendant no. 2. He further submitted that income tax return of CS No. 492/11 Sh. C. L. Arora Vs. Sh. Jasveer Singh & Anr. Page No. 10 of 23 defendant no. 2 is not filed. He also submitted that he did not receive any legal notice Ex. PW-1/2 and that AD Card Ex. PW-1/4 do not bear his signatures. He also specified that he did not enter into any collaboration with the plaintiff and as such, Ex. PW-1/1 do not bear his signatures at Point B.
19. Defendant Evidence was closed vide Order dated 31.10.2012 passed by Ld. Predecessor of this Court.
20. Final arguments were advanced on behalf of counsel for the plaintiff and defendants.
21. Counsel for plaintiff contended that defendant no. 1 on behalf of defendant no. 2 did enter into collaboration with plaintiff but later backed off and cheated on plaintiff, thus in terms of deed entered into by both parties, defendant is under an obligation to return the consideration amount for the purpose he could not fulfill. Counsel for defendants contended that defendant no. 1 never entered into any collaboration and consideration amount received was for wi-fi services installed at request of plaintiff with amount still outstanding on part of plaintiff to pay. He thus requested for dismissal of suit.
22. I have perused the case record carefully.
CS No. 492/11 Sh. C. L. Arora Vs. Sh. Jasveer Singh & Anr. Page No. 11 of 23
23. My issue-wise findings are as below: -
ISSUES NO. 1 :
Whether the plaintiff has not come to the court with clean hands and has concealed the material facts from the court, if so, what facts?OPD Burden of proving this issue is upon defendants. Defendant no. 2 also stands represented by defendant no. 1 who has called himself as the Director of defendant no. 2 which is a Private Limited Company. The version of defendants denying the case of plaintiff is that the amount of Rs.1,25,000/- received by way of cheque honoured in his account was against installation of wi-fi system at the instance of plaintiff. Defendants have not produced any document to show or to reflect as in any receipt or acknowledgment vide which the wi-fi system was installed. He also not produced any document to show that he has been maintaining statement of account of his own company wherein the payment of Rs.1,25,000/- has been reflected against installation of wi-fi system with the plaintiff. Defendant no. 1 has merely denied the version of the plaintiff but has not produced any witness or document to substantiate his own version. Defendants have not been able to specify other than plain denial of collaboration document as to what all facts were CS No. 492/11 Sh. C. L. Arora Vs. Sh. Jasveer Singh & Anr. Page No. 12 of 23 concealed by the plaintiff and that what were the real facts instead. Interestingly, counsel for defendants has contended in his final arguments that the actual grudge of the plaintiff is about dissatisfaction with the installed system on account of alleged sub-standard use of materials involved. This has not been affirmed by defendant no. 1 when he appeared in the witness box as DW-1. The dis-satisfaction, if any, has neither been putforth to the defendants nor any such response thereto has been given by the defendants. Accordingly, defendants have not been able to discharge the burden to be able to prove this issue against the plaintiff.
ISSUES NO. 2 :
Whether the defendants did not enter into any collaboration with the plaintiff?OPD Burden of proving this issue is upon defendant. The collaboration agreement is the crux of the entire version of the plaintiff which has been squarely denied by the defendants. Defendant no. 1 has denied ever having entered into any such agreement with the plaintiff at any point of time also denying thereby his signatures. The agreement has been titled as a Partnership Deed. In that document of Partnership Deed Ex. PW-1/1, Unique Cyber Cafe being run by Sh. C. L. Arora and CS No. 492/11 Sh. C. L. Arora Vs. Sh. Jasveer Singh & Anr. Page No. 13 of 23 Purva Telecom Pvt. Ltd. run by Sh. Jasvir Singh are averred to be equal partners. In that Partnership Deed, the status of Unique Cyber Cafe and Purva Telecom Pvt. Ltd. as in their legal entity has not been made clear. Defendant no. 1 has simply denied his signatures on that partnership deed and refused to have acknowledged his intention of entering into any such collaboration with plaintiff at any point of time. The case of plaintiff is based upon this Partnership Deed itself. It is important to note that this particular issue is on a negative premise as in the defendants are supposed to prove that they never entered into any such collaboration as mentioned in term and conditions of this partnership deed Ex. PW-1/1. It is further significant to note that the defendant no. 1 who appeared in witness box as DW-1 admitted having received a consideration amount of Rs. 1,25,000/- from the plaintiff. However, he claimed that the amount was taken for providing the wi-fi set up to the plaintiff and not towards 50% of the expenses for setting up and providing internet services to the customers in the region of NCR of Delhi and other cities. It was thus incumbent for him to prove all along that he accepted the monetary consideration for a particular service to be provided by him. It is noteworthy that he has not filed any document to show that the monetary consideration was accepted for a service which was delivered to the plaintiff accordingly. Rather, it was the plaintiff only who CS No. 492/11 Sh. C. L. Arora Vs. Sh. Jasveer Singh & Anr. Page No. 14 of 23 called for the records from the Office of Registrar of Companies placed on record by PW-3 as an employee of the Office of Registrar of Companies. The document placed on record by PW-3 contain copy of Balance Sheet as on 31.03.2010 as Ex. PW-1/7 and the copy of Profit and Loss Account for the year ending at 31.03.2010. As such, any amount of Rs.1,25,000/- does not stand reflected in any of those statements. It was for the defendants to place on record its ledger account which he is under an obligation to maintain to show the purpose for which the amount received and discharged. The affidavit Ex. DW-1/A interestingly contains the affirmation of defendant no. 1 being the proprietor of defendant no. 2. It was only in the cross examination that the defendant no. 1 admitted being one of the Directors of Company Purva Telecom Pvt. Ltd. registered with the Registrar of Companies.
A bare denial on the part of defendants cannot take the place of proof on their part of a particular issue under consideration. This more so when the plaintiff has produced witnesses all along, even the attesting witnesses to prove the document Ex.PW-1/1, the partnership deed asserting the consideration to be against 50% of the total expenses of setting up the services to be run from his own Cyber Cafe.
In view of the my above discussion, it is held that defendants have not been able to discharge the burden levied CS No. 492/11 Sh. C. L. Arora Vs. Sh. Jasveer Singh & Anr. Page No. 15 of 23 upon them to prove this issue. This issue accordingly stands decided in favour of plaintiff and against the defendants.
ISSUE NO. 3 & 4:
Whether plaintiff is entitled to recover a sum of Rs. 1,62,500/- as prayed for in the suit?OPP Whether the plaintiff is entitled for interest, if so, at what rate and for which period?OPP Burden of proving these issues is upon plaintiff. Plaintiff has claimed an amount of Rs.1,62,500/- on the basis of Clause
(h) of the Partnership Deed Ex. PW-1/1 as in to refund the amount of Rs.1,25,000/- paid by the plaintiff to defendants alongwith interest @24% per annum from 01.11.2009 till 31.01.2011 which comes out to be Rs.1,62,500/-. Plaintiff has all along called his Proprietorship Firm to be in partnership with the company in which the defendant no. 1 is one of the Director.
In "Hakim Rai Vs. Ganga Ram AIR 1926 LAH 340" the word "Person" is defined under Clause 39 of Section 3 of General Clauses Act, 1897 as "to include any company or association of body of individuals whether incorporated or not." From the above definition, it is clear that a person may be natural or artificial or some natural and other artificial. Artificial person can enter into an agreement of partnership provided CS No. 492/11 Sh. C. L. Arora Vs. Sh. Jasveer Singh & Anr. Page No. 16 of 23 they are empowered by their constitution to do so.
In "Ganga Metal Refining Vs. CIT, West Bengal AIR (1967) Cal 429", it is held as under:
"Taking into account the provisions of the Companies Act and the Indian Partnership Act it will not be possible to comply with the provisions of the two Acts regarding legislation etc, of the two companies which were to enter into partnership. As such although there is no prohibition under the Act for the companies to enter into partnership there are all the same difficulties in the way. There must be special authorization by two companies before any such partnership can be entered into."
Thus, a natural and individual entity is not forbidden to, as such, enter into partnership with artificial entity as per the tenets of Indian Partnership Act, 1932. The constitution of the artificial legal entity, however, has to devolve the power of entering into any such partnership with any other entity. The Memorandum of Association and Articles of Association relied upon by the plaintiff placed on record by PW-3 as Ex. PW-3/4 and Ex. PW-3/5, however, apparently do not contain any such power having been given to any of the Directors of the company Purva Telecom Pvt. Ltd.
Plaintiff has completely and absolutely relied upon the execution of the Partnership Deed as the proof of the CS No. 492/11 Sh. C. L. Arora Vs. Sh. Jasveer Singh & Anr. Page No. 17 of 23 relationship of partners between his proprietorship concern and the company of defendant no. 1 as Director. Section 6 of Indian Partnership Act, 1932 which is reproduced as under provides the mode of determining whether a person is or is not a partner in a firm.
"6. Mode of determining existence of partnership - In determining whether a group of persons is or is not a firm, or whether a person is or is not a partner in a firm, regard shall be had to the real relation between the parties, as shown by all relevant facts taken together.
Explanation 1-- The sharing of profits or of gross returns arising from property by persons holding a joint or common interest in that property does not of itself make such persons partners.
Explanation 2-- Te receipt by a person of a share of the profits of a business, or of a payment contingent upon the earning of profits or varying with the profits earned by a business, does not of itself make him a partner with the persons carrying on the business;
and, in particular, the receipt of such share or payment--
(a) by a lender of money to persons engaged or about to engage in any business,
(b) by a servant or agent as remuneration, CS No. 492/11 Sh. C. L. Arora Vs. Sh. Jasveer Singh & Anr. Page No. 18 of 23
(c) by the widow or child of a deceased partner, as annuity, or
(d) by a previous owner of part owner of the business, as consideration for the sale of the goodwill or share thereof, the sale of the goodwill or share thereof, does not of itself make the receiver a partner with the persons carrying on the business.
In "Helper Girdharbhai Vs. Saiyed Mohmad Mirasaheb Kadri AIR 1987 SC 1782" it was held as under:
Elements of partnership: The following important elements must be there in order to establish partnership: (1) an agreement entered into by all the parties concerned; (2) the agreement must be to share profits of business; and (3) the business must be carried on by all or any of the persons concerned acting for all.
In this case, apart from the deed in question and the initial consideration which were paid towards 50% of the expenses of the entire set up, there is nothing placed on record by the plaintiff to show that there was some effort on the part of defendants as well to act upon the commitment they supposedly entered into. There is nothing to show that there was infact sharing of any sort of profit or interest or returns arising of the business entered into by both the sides. The present suit also CS No. 492/11 Sh. C. L. Arora Vs. Sh. Jasveer Singh & Anr. Page No. 19 of 23 has not been filed for any Dissolution of the Firm or Rendition of Accounts. There are issues with regard to execution of the Partnership Deed Ex. PW-1/1 also as in admittedly the signatures at the deed were made at the Cyber Cafe and then the signatories went to get the same notarized although it is another issue whether notarization of the agreement at all was a legal requirement in such like cases. Any of the Books of Accounts for the internet business required to be maintained even as per the terms of Partnership Deed Ex. PW-1/1 also have not been placed on record and thus, can be presumed that those were never maintained. Thus, the partnership deed Ex. PW-1/1 in these strictu legal term and sense do not fall within the ambit of creating a Partnership in the spirit envisioned by Indian Partnership Act, 1932. However, even though it falls short of that parameter, still a sense of collaboration/meeting of minds/agreement comes through by reading through the contents of Ex. PW-1/1. The document Ex. PW-1/1 in original has been placed on record for the perusal of the Court. The witnesses to the execution of that agreement also have been produced in the witness box out of whom one of the witnesses has supported and affirmed the execution of agreement between plaintiff and defendants.
Defendant no. 1 has denied having put his signatures on the agreement Ex. PW-1/1. Section 73 of Indian Evidence CS No. 492/11 Sh. C. L. Arora Vs. Sh. Jasveer Singh & Anr. Page No. 20 of 23 Act, 1872 appears to be of relevance at this stage which is reproduced as under:
"Comparison of signature, writing or seal with others admitted or proved - In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose."
It is laid down in the case titled as Satish Jayanthilal Shah Vs. Pankaj Mashruwala, (1997) 2 Crimes 203 (Guj), "Under the law, the Court has power to compare signatures/handwriting strengthening its finding based on other cogent material and evidence or record."
DW-1 Sh. Jasbeer Singh who is defendant no. 1 in this case and supposedly entered into an agreement Ex. PW-1/1, had put his signatures on the testimony sheet on two pages. DW-1 Sh. Jasbeer Singh denied his signatures on the agreement Ex. PW-1/1 and AD of the Legal Notice Ex. PW-1/4. The signatures of DW-1/D-1 on the testimony sheet and also on the affidavit accompanying and supporting the WS, if compared CS No. 492/11 Sh. C. L. Arora Vs. Sh. Jasveer Singh & Anr. Page No. 21 of 23 can be seen to be similar and thus, can be attributed to be the handwriting of a single person. This coupled with the affirmation of the plaintiff qua the execution of this document and also that of one of the witnesses having signed the agreement alongwith the others who were present at the time when it was signed by both the sides go on to show that some kind of collaboration was indeed intended to be entered into by way of this agreement. It is clear that the agreement entered into did not work out which is the reason that even its execution is being denied on the part of defendants. Defendants in this case have not filed any Counter Claim towards any amount due on the plaintiff payable to them for any negligence of duty on the part of plaintiff. Plaintiff has affirmed that the hardware set up established by the defendants at his Cyber Cafe for providing internet services also was taken away surreptiously from the Cyber Cafe by the defendants. The purpose for which the monetary consideration was given to the defendants was not fulfilled. Plaintiff accordingly is entitled to recover the amount, he paid towards a particular purpose as he intended by executing an agreement with the defendants.
In view of the discussion made above, it is held that the plaintiff has been able to discharge the burden levied upon it to prove its entitlement to recover amount of Rs.1,25,000/- paid by him to the defendants.
CS No. 492/11 Sh. C. L. Arora Vs. Sh. Jasveer Singh & Anr. Page No. 22 of 23 Interest as mentioned in the plaint sought by the plaintiff against defendants is 24% per annum. I am of the view that though transaction in question is commercial in nature but interest @24% per annum would be on higher side. Accordingly, interest @6% per annum is granted on principal sum of Rs. 1,25,000/- from date of filing of present suit till realization. Accordingly Issues No. 3 and 4 are decided in favour of plaintiff and against the defendants.
ISSUE NO. 5/RELIEF In view of my findings with regard to Issues no. 1 to 4, I hereby decree suit of plaintiff. It is ordered that defendants shall pay sum of Rs.1,25,000/- to plaintiff alongwith interest @6% per annum from date of filing of present suit till realization. Costs of suit are awarded in favour of plaintiff.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in open Court on 30.04.2014 Present Judgment contains 23 pages and each page contains my signature.
(Shelly Arora) JSCC-cum-ASCJ-cum-GJ South District, Saket Courts, New Delhi.
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