Delhi District Court
Sh. Arvind Kumar vs Investment Point (India) Ltd on 4 March, 2015
IN THE COURT OF SHRI RAJ KUMAR: ADDL. DISTRICT
JUDGE09: TIS HAZARI COURTS : DELHI
Suit No. 471/14 (Old Suit No. 522/08)
Unique Case ID No. 02401C1200972008
Sh. Arvind Kumar
S/o Late Sh. Mitrasen Gupta
R/o H. NO. 584, Ward No. 2,
Jain Street, Panipat. ........... Plaintiff.
VERSUS
1. Investment Point (India) Ltd.
Through Its Managing Director
Member National Stock Exchange
of India 17F, Kamla Nagar,
Delhi110007
2. Sh. Santosh Gupta
Managing Director
Investment Point (India) Ltd.
17F, Kamla Nagar,
Delhi110007
3. Sh. Pawan Jain, Director
Investment Point (India) Ltd.
of India, 17F, Kamla Nagar,
Delhi110007
4. Sh. L.N. Saini, Director
Suit No. 471/14 (Old Suit No. 522/08) Page No. 1/30
Investment Point (India) Ltd.
17F, Kamla Nagar,
Delhi110007
5. Sh. S. Paramjeet Singh, Director
Investment Point (India) Ltd.
17F, Kamla Nagar,
Delhi110007 ......... Defendants.
Date of institution of the suit : 16.09.2008
Date on which order was reserved : 16.02.2015
Date of decision : 04.03.2015
SUIT FOR RECOVERY OF RS. 19,95,000/
JUDGMENT
The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint are that late Sh. Mitrasen Gupta (father of the plaintiff herein) had expired on 26.10.2000 at Panipat leaving behind the LRs as mentioned by the plaintiff in para no. 1 of the plaint. It has been further stated that the legal heirs of late Sh. Mitrasen Gupta have been granted the Succession Certificate in respect of the property of the deceased Sh. Mitrasen Gupta. It has been further stated that as per the amicable settlement amongst the legal heirs of late Sh. Mitrasen Gupta, the shares/ debentures etc. held in the name of Sh. Mitrasen Gupta came to be inherited by the plaintiff alone and as such, the plaintiff has the legal right to institute the present suit. It has Suit No. 471/14 (Old Suit No. 522/08) Page No. 2/30 been further stated that the defendant no. 1 is a company registered under the provisions of Companies Act, 1956 and the defendant no. 2 is the Managing Director of the defendant no. 1, whereas, the rest of the defendants are the Directors of the defendant no.1. It has been further stated that the defendant no. 1 is engaged in the activities of trading of the shares as per the instructions of its customers on commission basis. It has been further stated that the defendant no. 1 is governed by the rules and regulations of SEBI (Securities and Exchange Board of India) as well as by the guidelines of RBI. It has been further stated that the defendant no. 1 is also a trading member of National Stock Exchange of India (NSE). It has been further stated that late Sh. Mitrasen Gupta hired/ availed the services of the defendant w.e.f. 17.04.1996 to 03.12.1996 for sale/ purchase of his shares on payment of 50% commission on delivery shares and 10 NP and 40 NP per share on forward/ jobbing transactions as had been agreed in between him and the defendants. It has been further stated that there was an account of late Sh. Mitrasen Gupta with the defendants and no transaction was done after 03.12.1996. It has been further stated that the defendants, while doing the business, are under a legal obligation to comply with all the directions/ instructions of the Investors/ Shareholders. It has been further stated that late Sh. Mitrasen Gupta handed over account payee cheque bearing no. 519316 dated 17.04.1996 for an amount of Rs. 1 Lac drawn on Canara Bank, favouring IPIL, which Suit No. 471/14 (Old Suit No. 522/08) Page No. 3/30 was encashed on 17.04.1996, account payee cheque bearing no. 519362 dated 04.05.1996 for an amount of Rs. 1,35,000/ drawn on Canara bank, favouring IPIL encashed on 04.05.1996 and an account payee cheque no. 519363 dated 08.05.1996 for an amount of Rs. 70,000/ drawn on Canara Bank, favouring IPIL which was encashed on 08.05.1996. It has been further stated that the defendants did not deny the receipt the said cheques, but the defendants asserted, in their various letters, that the amount received had been duly entered in the accounts statement of the father of the plaintiff, whereas, this amount has not been accounted for in the accounts statement delivered by the defendants to the father of the plaintiff. It has been further stated that according to the contract notes/ orders placed by the father of the plaintiff, the defendants were required to deliver the following shares purchased by the father of the plaintiff by adjusting the amounts paid or due and after adjusting the value of the shares sold by him :
QTY. COMPANY/ TRANSACTION DATE DELIVERY DATE
SHARES NAME
20 ACC 29.11.1996 17.12.1996
3000 SBI 03.12.1996 17.12.1996
900 TELCO 27.11.1996 & 17.12.1996
02.12.1996
100 SBI BAD DELIVERY
50 TISCO BAD DELIVERY
Suit No. 471/14 (Old Suit No. 522/08) Page No. 4/30
2. It has been further stated that the deliveries of the abovesaid shares had not been made by the defendants to the plaintiff. It has been further stated that a sum of Rs. 9,43,852.55/ was outstanding against the defendants on 17.12.1996 and the total costs of the purchased shares was Rs. 9,51,874.07/. It has been further stated that the plaintiff is filing the correct statement of accounts alongwith the plaint. It has been further stated that the defendants in their letter dated 01.01.1997 has admitted that no transaction was done after 03.12.1996. It has been further stated that the father of the plaintiff had totally stopped the selling/ purchasing of the shares w.e.f. 03.12.1996 as the defendants were not giving proper accounts statement/ payments. It has been further stated that on 26.12.1996 a registered letter no. PL4843 dispatched from Delhi on 23.12.1996 by the defendants were received by a relation of the father of the plaintiff at Panipat in which the defendants had demanded a sum of Rs. 7,00,440.56/ from the father of the plaintiff. The plaintiff has alleged that however, the letter was predated i.e. 08.12.1996 with the ulterior motive to usurp the shares purchased by the father of the plaintiff. It has been further stated that a reply dated 27.12.1996 was sent to the defendants, which was received by the defendants on 28.12.1996. It has been further stated that in the reply dated 27.12.1996, the defendants were reminded about the amount and about the pending deliveries. It has been further stated that the father of the plaintiff again received a registered Suit No. 471/14 (Old Suit No. 522/08) Page No. 5/30 letter on 03.12.1996 inviting the father of the plaintiff to visit the defendants. It has been further stated that on 04.01.1997, the father of the plaintiff visited the defendants at Delhi, but he was asked to sign some accounts statement/ contract notes/ bills without going through the contents before delivery of any shares. It has been further stated that the father of the plaintiff was helpless as his sufficient amount was blocked and as such, he put his signatures on various papers given by the defendants under coercion and threat. It has been further stated that after obtaining the signatures from the father of the plaintiff, the defendants had delivered on 20 shares of ACC, 900 shares of Telco and 1500 shares of SBI retaining the remaining 1600 shares of SBI and 50 shares of Tisco companies. It has been further stated that however, the father of the plaintiff had made a note in Urdu on the false accounts statement provided to him. It has been further stated that from the perusal of the account statements for the period from 01.04.1996 to 31.03.1997, the accounts statement for the period from 01.04.1996 to 18.11.1996 and the accounts statement for the period 01.04.1996 to 02.12.1996, it is apparent that false entries had been made in the latest statement of accounts and some entries made in the earlier statement had been erased. It has been further stated that late Sh. Mitrasen Gupta sent a notice dated 10.06.1997 through his Advocate and through courier and he also sent a telegram from Karnal to the defendants requesting them to sell his remaining 1600 Suit No. 471/14 (Old Suit No. 522/08) Page No. 6/30 SBI and 50 Tisco Shares at the best market rate, but the defendants refused to accept the courier on filmsy grounds. It has been further stated that the market rate of SBI shares was Rs. 350/ and of Tisco Shares of Rs. 220/ during the said period. It has been further stated that had the shares been delivered in time by the defendants, the father of the plaintiff could have sold the same at Rs. 372/ and Rs. 323/ besides earning the dividends @ Rs. 4/ on SBI Shares and Rs. 4.50/ on Tisco Shares. It has been further stated that during his lifetime, late Sh. Mitrasen Gupta filed a complaint case before Delhi State Consumer Redressal Commission, New Delhi and the said complaint case was contested by the defendants. It has been further stated that vide judgement dated 27.04.2007, the defendants were directed to pay a lump sum of Rs. 5 Lacs towards the loss suffered by the father of the plaintiff. It has been further stated that the defendants preferred an appeal bearing FAO No. 378/07 before Hon'ble National Commission and vide judgment dated 23.07.2007, the Hon'ble National Commission came to the conclusion that the plaintiff was not a consumer. It has been further stated that the Hon'ble National Commission advised the plaintiff to approach the Civil Court for recovery of the amount due from the defendants. It has been further stated that the value of the shares not delivered to the plaintiff comes to Rs. 5,60,000/ @ Rs. 350/ per share for the 1600 SBI Shares and Rs. 11,000/ @ Rs. 220/ per share for the 50 Tisco Share and as such, the Suit No. 471/14 (Old Suit No. 522/08) Page No. 7/30 plaintiff is entitled to recover an amount of Rs. 5,71,000/ as on 16.12.1996. The plaintiff has claimed an amount of Rs. 15,98,800/ towards the interest @ 24% per annum w.e.f. 17.12.1996 till 31.08.2008. It has been further stated that the total amount comes to Rs. 21,69,800/, but the plaintiff is limiting his claim only to Rs. 19,95,000/.
3. On the basis of the abovesaid allegations as contained in the plaint, the plaintiff has prayed for a decree for an amount of Rs. 19,95,000/ alongwith pendentelite and future interest @ 24% per annum from the date of the filing of the present suit till the date of the realization of the decreetal amount. The plaintiff has also prayed for the costs of the suit.
4. Written statement has been filed on record by the defendants no. 1 and 2 stating therein that the present suit is without any cause of action because the father of the plaintiff had been trading through a sub broker M/s Mittal Investment and the cheques of Rs. 1 Lac, Rs. 1,35,000/ and Rs. 70,000/ were received and deposited in the account of the Sub Broker of the defendants company in 9615 and 9617 settlement for the trading period from 24.04.1996 to 30.04.1996. It has been further stated that the deliveries were released and accepted by the father of the plaintiff through the said subbroker. It has been further stated that the plaintiff is not the sole legal heir of his father and as such, the present suit filed by the plaintiff alone is bad for misjoinder and nonjoinder of the Suit No. 471/14 (Old Suit No. 522/08) Page No. 8/30 necessary parties. It has been further stated that the present suit is time barred and the plaintiff has not come to the Court with clean hands. It has been further stated that the plaintiff has claimed value of 1600 SBI Shares and 50 Tisco Shares, whereas, 1500 SBI Shares were sold by the father of the plaintiff on 10.12.1996 and sales were duly credited and afterwards, he had also received 100 SBI Shares. It has been further stated that so far as 50 Tisco Shares are concerned, they were not purchased during 9648 settlement as the same were the shares of bad deliveries of old deed. On merits, the defendants have admitted that the plaintiff is the son of late Sh. Mitrasen Gupta and that the defendant no. 1 is a company registered under the Companies Act. However, it has been denied that the defendant no. 2 is the Managing Director of the defendant no.1 company. It has been further stated that the defendant no. 2 is the Director of the defendant no. 1 company. The defendants have admitted that the defendant no. 1 is governed by the Rules and Regulations of SEBI as well as by the guidelines of RBI. It has been further stated that there has been no agreement in between the plaintiff and the defendants for membership for Direct Links Scheme of the defendants company. The defendants have reiterated the fact that the father of the plaintiff used to do commercial transactions of purchase and sale of the shares through his grandson Sh. Mohit Gupta, the Proprietor of M/s Mittal Investment, a SubBroker of the defendant no. 1 company. The defendants have denied Suit No. 471/14 (Old Suit No. 522/08) Page No. 9/30 that the plaintiff opened an account with the defendants on 17.04.1996. The defendants have taken the stand that from 17.04.1996 till 06.06.1996, the father of the plaintiff had been accounting his business in code no. CN101 of Mittal Investment and after 06.06.1996, the plaintiff was given a separate code number CMS04 on 07.06.1996 at the request of Mittal Investment as the father of the plaintiff was facing accounting problems in reconciliation. It has been further stated that the separate code CMS04 was given to the father of the plaintiff only to facilitate to give him the computerized accounts to settle his accounts properly. It has been further stated that the dispute is for the period of December 1996 for NSE settlement no. 9648, but the plaintiff is creating dispute of old cheques transaction for the period of April and May 1996 for NSE settlement no. 9615 and 9617 for which the father of the plaintiff had already received the due and final consideration for the said cheques. It has been further stated that the cheques of Rs. 1,35,000/ and of Rs. 70,000/ were received by the defendants company in code no. CM101 of Mittal Investment and the same was credited in the account of M/s Mittal Investment as the father of the plaintiff was a client of Mittal Investment. It has been further stated that the cheque for Rs. 1 Lac received on 17.04.1996 was towards enhancement of the margin money and the same was credited in margin account of M/s Mittal Investment. It has been further stated that during the period from 27.11.1996 to 03.12.1996, the Suit No. 471/14 (Old Suit No. 522/08) Page No. 10/30 father of the plaintiff had bought the following securities through Mittal Investment, which include the disputed 1500 Shares of SBI : ACC 20 Colgate 300
Reliance 1000
State Bank of India 15000
TELCO 900
TISCO 2000
5. It has been further stated that out of the abovesaid 15000 SBI Shares bought by the father of the plaintiff, 12000 SBI Shares were sold during the same settlement period. It has been further stated that 1500 SBI Shares were received by the father of the plaintiff and the remaining 1500 SBI Shares were sold by the father of the plaintiff on 10.12.1996. It has been further stated that the father of the plaintiff on 04.01.1997 acknowledged the sale of latter 1500 shares of SBI by him. It has been further stated that as such, nothing remains in the complaint with regard to 3000 SBI shares. It has been further stated that with regard to the Tisco shares, the net position was 2000 shares during the settlement 9648. It has been alleged by the defendants that the father of the plaintiff, first of all, used to gain the faith of the broker and after sometime, he Suit No. 471/14 (Old Suit No. 522/08) Page No. 11/30 used to quietly sell the shares and then he used to create dispute. The defendants have denied that a sum of Rs. 9,43,852.55/ was outstanding against the defendants on 17.12.1996. It has been further stated that the total value of the purchase quantity by the father of the plaintiff during the period from 27.11.1996 to 03.12.1996 was Rs. 41,31,009.70/ and the value of the sale quantity was Rs. 34,31,340.00/ and the net difference of the debit was Rs. 6,99,669.70/ and by including the service tax, the same came to Rs. 7,00,440.56/. It has been further stated that a letter dated 08.12.1996 was prepared which was in the knowledge of the father of the plaintiff and in response to that, he paid Rs. 60,000/ on 08.12.1996 itself i.e. one day prior to the date of settlement no. 9648 and to make up the other deficiencies, he sold 1500 SBI Shares on 10.12.1996. It has been further stated that the statement of accounts submitted by the plaintiff is forged and fabricated. The defendants have admitted the demand raised by the defendants for a sum of Rs. 7,00,440.56/ vide letter dated 08.12.1996. The defendants have denied that the reply dated 27.12.1996 was sent to them. The defendants have denied the obtaining of the signatures of the father of the plaintiff forcibly on 27.12.1996. The defendants have taken the stand that the father of the plaintiff had put his signatures in the presence of his advocate Sh. P.K. Goel, in the office of the defendants after reading and going through the contents of the documents. The defendants have reiterated the stand that 1500 SBI Suit No. 471/14 (Old Suit No. 522/08) Page No. 12/30 Shares were sold by the father of the plaintiff on 10.12.1996 and this fact was acknowledged by the father of the plaintiff again on 04.01.1997. The defendants have further stated that so far as 50 Tisco Shares of bad deliveries are concerned, neither the plaintiff, nor, the father of the plaintiff had given any particulars for the last about 13 years for locating the bad deliveries. The defendants have further stated that the abovesaid 50 Tisco shares were not purchased by the father of the plaintiff in 9648 settlement. The defendants have further stated that with the malafide intention, the father of the plaintiff had put his comments in Urdu on 04.01.1997 knowingfully well that the officers of the defendants company were not knowing Urdu. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed with exemplary costs.
6. Replication has been filed on record by the plaintiff reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement filed by the defendants. In the replication, the plaintiff has admitted it to be correct that the father of the plaintiff had initially been trading through M/s Mittal Investment, but the plaintiff has taken the stand that his father had opened a trading account with the defendants.
7. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide orders dated 05.07.2010 : Suit No. 471/14 (Old Suit No. 522/08) Page No. 13/30
1) Whether the plaintiff is entitled for a decree for the recovery of a sum of Rs. 19,95,000/?OPP
2) Whether the plaintiff is entitled for interest at the rate of 24% p.a.?OPP
3) Whether the suit is not maintainable as it is without cause of action?OPD
4) Whether the father of the plaintiff had been trading through a sub broker M/s Mittal Investment of the defendant company?OPD
5) Whether the due deliveries thereto were released and accepted by the father of the plaintiff through sub broker M/s Mittal Investment?OPD
6) Whether the suit is bad for non joinder of the parties?
OPD
7) Whether the suit is barred by time?OPD
8) Whether the plaintiff has not come before the Hon'ble Court with clean hands?OPD
9) Whether there is no privity of contract between the plaintiff's father and the defendants?OPD
10) Relief.
EVIDENCE :
Suit No. 471/14 (Old Suit No. 522/08) Page No. 14/30
8. The plaintiff has examined himself as PW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record his evidence by way of affidavit as Ex. PW1/A, the copy of the Death Certificate of Sh. Mitrasen Gupta as Ex. PW1/1, copy of the settlement and the succession certificate as Ex. PW1/2, copy of the statement of account as Ex. PW1/3, copy of the letter dated 01.01.1997 as Ex. PW1/4, Letter dated 08.12.1996 as Ex. PW1/5, Reply dated 27.12.1996 as Ex. PW1/6, Letter dated 26.12.1997 as Ex. PW1/7, the statement of account for the period 01.04.1996 to 31.03.1997 as Ex. PW1/8, statement of account for the period 01.04.1996 to 02.12.1996 as Ex. PW1/9, notice dated 10.06.1997 as Ex. PW1/10, courier receipt as Ex. PW1/11, copy of the amended complaint as Ex. PW1/12, copies of the reply, replication and the evidence by way of affidavits before the Hon'ble Delhi State Consumer Disputes Redressal Commission as Ex. PW1/13 to Ex. PW1/15, copy of the judgement dated 27.04.2007 as Ex. PW1/16 and the copy of the judgement dated 23.07.2007 as Ex. PW1/17.
9. The plaintiff has further examined Sh. Chanderpal Yadav, the Associate of the Advocate Sh. P.K. Goel as PW2 and this witness, in his examinationinchief, has stated that he was working with Advocate Sh. P.K. Goel between 1994 to 2005. This witness has further stated that notice dated 10.06.1997 Ex. PW1/10 on record was dispatched to the Suit No. 471/14 (Old Suit No. 522/08) Page No. 15/30 defendant no.1. This witness has further stated that the certified copy of the letter dated 27.12.1996 was also sent by Sh. P.K. Goel, Advocate to the defendant no.1.
10. The defendant no. 2 Sh. Santosh Gupta, Director of the defendant no. 1 company has examined himself as DW1 and in his evidence by way of affidavit Ex. DW1/A on record, he has reiterated and reaffirmed the stand as taken by the defendant in the written statement. This witness has placed on record the copy of the complaint dated 26.03.1997 of Sh. Mitter Sen Gupta to the National Stock Exchange as Ex. DW1/1, copy of the letter dated 26.03.1997 by the National Stock Exchange to the defendant no. 1 as Ex. DW1/2, copy of the reply dated 02.04.1997 to the National Stock Exchange as Ex. DW1/3, copy of the letter dated 08.01.1997 of Sh. Mohit Gupta to the defendants as Ex. DW1/4, copy of the application form for Direct Link Scheme of Mittal Investment as Ex. DW1/5, copies of seven sale bills of 9615 settlement of Mittal Investment collectively as Ex. DW1/6, copies of two sales bills of 9617 settlement of Mittal Investment collectively as Ex. DW1/7, account statement of Mittal Investment exhibited as Ex. DW1/8, the Net Position of 9617 settlement as Ex. DW1/9, copy of letter of the defendants dated 02.04.1997 to SEBI as Ex. DW1/10, copies of the letters of the defendants dated 05.04.1997 to Tisco as Ex. DW1/11 and Ex. DW1/12, copy of the letter of the defendants dated 05.04.1997 to Hindalco as Ex. DW1/13, Suit No. 471/14 (Old Suit No. 522/08) Page No. 16/30 copy of the letter of the defendants dated 07.04.1997 to Mohit Gupta as Ex. DW1/14, copy of reply dated 05.05.1997 of Tata Shares Registry Ltd. as Ex. DW1/15, account statement of Mitter Sen Gupta as Ex. PW1/16, letter dated 01.01.1997 to Mitter Sen Gupta as Ex. DW1/17, Letter dated 26.12.1996 to Mitter Sen Gupta as Ex. DW1/18, Letter dated 08.12.1996 to Mitter Sen Gupta as Ex. DW1/19, copies of sale bills of 9617 settlement (23 bills collectively) as Ex. DW1/20, the sale bill of 9648 settlement as Ex. DW1/21, the clientwise net position of settlement 9648 as Ex. DW1/22 and the copy of the sale bills of 9615 settlement as Ex. DW1/23.
11. The detailed testimonies of these witnesses shall be discussed in the later part of this judgement.
12. I have carefully gone through the entire material available on record and heard the rival submissions of Ld. counsels for both the parties. Both the parties have filed on record their written final arguments as well. I have also carefully gone through the written final arguments filed on record by the both the parties.
13. My issuewise finding on the abovesaid issues is as under:
Issues No. 1 to 6 :
14. All these issues are taken up together as the same are Suit No. 471/14 (Old Suit No. 522/08) Page No. 17/30 connected interse and overlap each other. Issues no. 1 and 2 relate to the prayer clause of the present suit and as such, the onus to prove issues no. 1 and 2 has been placed upon the plaintiff. Issues no. 3, 4, 5 and 6 relate to the objections of the defendants as contained in the written statement and as such, the onus to prove issues no. 3, 4, 5 and 6 has been placed upon the defendants.
15. Though, the plaintiff has alleged, in the plaint, that the amount of Rs. 1 Lac, Rs. 1.35 Lacs and Rs. 70,000/, which was given by Sh. Mittersen Gupta (deceased father of the plaintiff herein) to the defendant no.1 as mentioned by the plaintiff in para no. 10 of the plaint, has not been accounted for by the defendant no. 1 in the accounts statement, but, a careful perusal of the plaint reveals that the plaintiff has instituted the present suit for the recovery of the amount of 1600 SBI Shares and 50 Tisco shares. The plaintiff has alleged that 1600 SBI Shares and 50 Tisco shares were not delivered to the father of the plaintiff and the plaintiff has claimed the value of the said shares from the defendants by way of the filing of the present suit.
16. The defendants, in the written statement, have taken a categorical stand that the deceased Sh. Mitrasen Gupta (deceased father of the plaintiff herein) had been trading through a subbroker M/s Mittal Investment. The defendants have admitted the receipt of the cheques of Rs. 1 Lac, Rs. 1,35,000/ and Rs. 70,000/, but the defendants have taken Suit No. 471/14 (Old Suit No. 522/08) Page No. 18/30 the stand that the due credit thereof was given by the defendant no. 1 company in the account of the subbroker by virtue of settlement 9615 and 9617 for the trading period from 24.04.1996 to 30.04.1996. It has been further stated by the defendants in the written statement that the deliveries thereto were released and accepted by the father of the plaintiff through a subbroker of the defendants company. It has been further stated that out of 1600 SBI shares, 1500 SBI Shares were sold by the father of the plaintiff on 10.12.1996 and the sales were duly credited and afterwards, he had also received 100 shares. The defendants have further stated that so far as 50 Tisco shares are concerned, the same were not purchased during 9648 settlement as the said shares were the shares of bad deliveries of old deed. The defendants have denied any direct agreement in between the deceased father of the plaintiff and the defendant no.1. The defendants have further taken the stand that the father of the plaintiff on 04.01.1997 had acknowledged the sale of 1500 SBI shares by him. The defendants have further taken the stand that the father of the plaintiff alongwith his counsel Sh. P.K. Goel had visited the office of the defendants at Delhi on 04.01.1997 and collected the deliveries and the matter was settled. The defendants have further stated that the father of the plaintiff had put his signatures on all the documents in the presence of one Mr. P.K. Goel, Advocate of the father of the plaintiff in the office of the defendants after reading and going through Suit No. 471/14 (Old Suit No. 522/08) Page No. 19/30 the contents thereof. The defendants have further stated that the intention of the father of the plaintiff was malafide as he put his comments in Urdu on 04.01.1997 in the accounts statement knowingfully well that the officers of the defendant company were not knowing Urdu. It has been further stated that the father of the plaintiff used to put his signatures in English while receiving the deliveries and doing other transactions and as such, the putting of the comments in Urdu was malafide in itself.
17. Going by the abovesaid controversy as is culled out from the respective pleadings of the parties, the vital question to be considered by this Court is as to whether the plaintiff has been able to prove that 1600 SBI Shares and 50 Tisco shares were not accounted for and delivered by the defendant no. 1 company to the father of the plaintiff. This Court has to further consider as to whether the plaintiff has been able to prove that the credit of the amount of Rs. 1 Lac, Rs. 1.35 Lacs and Rs. 70,000/ was not given by the defendant no. 1 company.
18. If the plaint, as a whole, is carefully gone through, it becomes evidently and apparently clear that in the entire plaint, the plaintiff has not stated even a single word about M/s Mittal Investment, the Proprietorship concern of Sh. Mohit Gupta. Sh. Mohit Gupta was, none other, but the grandson of the deceased Sh. Mitrasen Gupta. The defendants have taken a categorical stand that Sh. Mitrasen Gupta used to deal with M/s Mittal Investment, a subbroker of the defendant no. 1 Suit No. 471/14 (Old Suit No. 522/08) Page No. 20/30 company.
19. Now, coming to the evidence, in the crossexamination, PW1 i.e. the plaintiff himself states that he knows Sh. Mohit Gupta, who is the son of his sister. PW1 admits it to be correct that Sh. Mohit Gupta is the proprietor of M/s Mittal Investment. PW1 further states that there was no dealing through Sh. Mohit Gupta. However, PW1, in the same cross examination done on 05.05.2012, states that he cannot tell if Mr. Mohit Gupta transferred Rs. 1,19,001.73/ in the accounts of his father, which were accepted by his father. PW1 admits it to be correct that a sub account no. CMS04 was given by the defendant no. 1 company, but PW1 states that the account number was given due to the dispute in between his father and the defendant no.1. PW1 further states that sub account no. CMS04 was assigned in June, 1996 due to dispute in between his father and the defendant no.1. PW1 further states that his father was not having any separate account number before June, 1996. PW1 further states that initially, his father was not dealing with the defendant through M/s Mittal Investment.
20. During the crossexamination of PW1, the Ld. Predecessor of this Court has given the observation that in the replication in para no. 1 thereof, the plaintiff has admitted that his father was initially trading through M/s Mittal Investment. PW1 further states that he has no documents to show that the defendant no. 1 opened the account of his Suit No. 471/14 (Old Suit No. 522/08) Page No. 21/30 father with M/s Mittal Investment. PW1 admits it to be correct that M/s Mittal Investment transferred some money in the account of his father from its own account. By way of volunteer, PW1, however, states that the amount was transferred on the instructions of the defendant no.1. PW1 further states that he has no document to show that M/s Mittal Investment transferred the money in the account of his father from its own account on the asking of the defendant no.1. PW1 further states that he used to accompany his father to Investment Point about 20 to 25 days a month and remained there from 9:30 am till 3:30 pm. PW1 admits it to be correct that the a suit was filed before the Ld. ACJ, Panipat by him against his brother. PW1 admits it to be correct that his father purchased 3000 shares of SBI. PW1 admits it to be correct that 3000 SBI shares were purchased much later from the date of encashment of three cheques of Rs. 1 Lac, Rs. 1,35,000/ and Rs. 70,000/.
21. In response to the question as to how payment against 3000 SBI shares was made, PW1 has answered that some amount was already in the account of his father, some other shares were sold and the payment of Rs. 1 Lac, Rs. 1,35,000/ and Rs. 70,000/ was made by his father. PW1 admits it to be correct that out of 1600 shares of SBI claimed by him, there was bad delivery of 100 shares. PW1 admits it to be correct that he had taken 100 shares of SBI against bad delivery. PW1 further states that no settlement was reached in between his father and M/s Mittal Suit No. 471/14 (Old Suit No. 522/08) Page No. 22/30 Investment in his presence. PW1 admits it to be correct that he visited Investment Point on 04.01.1997 alongwith his father and Mr. Goel, Advocate was also with them at that time. PW1 further states that they had taken delivery of 20 shares of ACC, 900 shares of Telco, 1600 shares of SBI and balance 50 shares of Tisco and 1600 shares of SBI were left with the defendant no.1. PW1 admits it to be correct that there was bad delivery of 50 shares of Tisco. PW1 further states that he is not having the detail of the bad delivery of the shares. PW1 denies the suggestion that his father sold 1500 shares of SBI on 10.12.1996. PW1 further states that he does not know what was the liability against which his father paid Rs. 60,000/ to the defendant on 08.12.1996. PW1 admits it to be correct that weekly settlement was made at Investment Point. PW1 further states that the settlement was made in the account of his father every week at Investment Point. PW1 admits it to be correct that the settlement no. 9648 was for the period 27.11.1996 to 03.12.1996, however, he visited Investment Point on 08.12.1996 for making the payment of Rs. 60,000/.
22. DW1, in the crossexamination, states that the dispute with the father of the plaintiff is confined to the period in between 27.11.1996 to 03.12.1996. DW1 further states that the account code was CMS04 and the said account was opened on 07.06.1996. DW1 admits it to be correct that the consumer case had been filed by Sh. Mitrasen Gupta against them, which was pursued by his legal heirs. DW1 further admits it to be Suit No. 471/14 (Old Suit No. 522/08) Page No. 23/30 correct that Ex. PW1/12 is the copy of the said complaint. DW1 further admits it to be correct that copy of the reply filed by the defendants before the Delhi State Consumer Dispute Redressal Commission is Ex. PW1/13 and Ex. PW1/14 was the replication. DW1 further admits it to be correct that the defendants approached the National Commission against the orders of State Commission dated 27.04.2007. DW1 further admits it to be correct that Sh. Mitrasen Gupta was having direct dealing only from 07.06.1996 under the code CMS04. DW1 further admits it to be correct that the three cheques, which have been mentioned in the plaint, and the evidence by way of affidavit of PW1 as well were received. DW1 further admits it to be correct that DW1 further admits it to be correct that the same were received from Mittal Investment, proprietor Sh. Mohit Gupta, who was a subbroker of the defendant no.1 and due credit of all three cheques was given to M/s Mittal Investment. DW1 further states that he cannot tell if these cheques had been issued by Sh. Mitrasen Gupta from his personal account. DW1 further states that the bill regarding trading of 1500 shares of SBI is Ex. DW1/21 and it bears the signatures of Sh. Mitrasen Gupta at point X and he put the signatures on Ex. DW1/21 in his presence. DW1 denies the suggestion that the signatures at point X on Ex. DW1/21 were forged by him. DW1 denies the suggestion that Sh. Mitrasen Gupta never signed Ex. DW1/21. DW1 further states that 1500 shares of SBI were sold with the consent of Sh. Mitrasen Gupta and the Suit No. 471/14 (Old Suit No. 522/08) Page No. 24/30 consent is also on Ex. DW1/21.
23. The categorical stand of the plaintiff is that his father was not dealing through the medium of M/s Mittal Investment. In the replication, the plaintiff has admitted that initially, his father was dealing through the medium of M/s Mittal Investment. But, in the cross examination, PW1 states that his father was not dealing with the defendants through M/s Mittal Investment initially. As such, the cross of PW1 is opposite to the stand of the plaintiff as contained in the replication. PW1 is not able to tell as to when the defendant no. 1 opened the account of his father with M/s Mittal Investment. PW1 admits it to be correct that M/s Mittal Investment transferred some money in the account of his father from its own account. PW1, in the crossexamination, has admitted that he knows Sh. Mohit Gupta, who is the son of his sister.
24. As such, I have no hesitation to hold that the plaintiff has utterly failed to prove on record that his father was not dealing with the defendant no. 1 initially through M/s Mittal Investment. To my mind, the testimony of DW1 is more reliable and trustworthy because DW1 has stuck to his stand that the separate account bearing no. CMS04 was given to the father of the plaintiff only from 07.06.1996 as he was having direct dealing with the defendant no. 1 from 07.06.1996.
25. It has to be seen that one of the contentions of the plaintiff is that no credit of the amount of Rs. 1 Lac, Rs. 1.35 Lacs and Rs. 70,000/ Suit No. 471/14 (Old Suit No. 522/08) Page No. 25/30 was given to the father of the plaintiff by the defendant no.1. In the cross examination, PW1 states that the payment of 3000 SBI Shares, which were admittedly purchased by the father of PW1 was done by his father in the following manner, "Some amount was already in the account of my father, some other shares were sold and the payment of Rs. 1 Lac, Rs. 1.35 Lacs and Rs. 70,000/ were made by his father." However, in the very next line in the same crossexamination, PW1 admits it to be correct that 3000 SBI Shares were purchased much later from the date of encashment of three cheques of Rs. 1 Lac, Rs. 1.35 Lacs and Rs. 70,000/. As such, I have no hesitation to hold that PW1 has utterly failed to show that the said payments of Rs. 1 Lac, Rs. 1.35 Lacs and Rs. 70,000/ was done by his father towards the purchase money of 3000 SBI shares. DW1 has stuck to his stand as contained in the written statement on record by the defendants that due credit of the said amount was given to M/s Mittal Investment, which is a subbroker of the defendant no.1. As such, I have no hesitation to hold that the plaintiff has utterly failed to prove on record that no credit of the said amount was given by the defendant no. 1 to the father of the plaintiff.
26. As stated by me hereinabove, the present suit has been filed by the plaintiff for claiming the account of 1600 SBI Shares and 50 Tisco shares. It has to be seen that in the crossexamination, PW1 has categorically admitted that 100 shares of SBI were against the bad Suit No. 471/14 (Old Suit No. 522/08) Page No. 26/30 delivery and he had taken 100 shares of SBI against bad delivery. PW1, in the crossexamination, has categorically admitted that on 04.01.1997, he alongwith his Advocate Sh. P.K. Goel, visited the office of the defendant no. 1. DW1 has stuck to the point in the crossexamination that Ex. DW1/21 clearly states that 1600 SBI Shares were sold on the instructions of the father of the plaintiff and Ex. DW1/21 also contains the consent of the father of the plaintiff.
27. In the pleadings i.e. in para no. 17 of the replication, the plaintiff has denied the visit of Sh. P.K. Goel, Advocate of the father of the plaintiff on 04.01.1997, but in the crossexamination, the visit of Sh. P.K. Goel, Advocate has been categorically admitted. PW1, in the cross examination, admits it to be correct that there was a bad delivery of 50 shares of Tisco. PW1 further admits it to be correct, in the cross examination, that the weekly settlement was done at the office of the defendant no.1 and the settlement was made in the account of his father every week at Investment Point. PW1 admits it to be correct that the settlement no. 9648 was for the period from 27.11.1996 to 03.12.1996. I am of the opinion that PW1 has utterly failed to point out as to why the amount of Rs. 60,000/ was paid by his father to the defendant no. 1 on 08.12.1996. PW1 clearly states, in the crossexamination, that he does not know what was the liability against which his father paid Rs. 60,000/ to the defendant no. 1 on 08.12.1996.
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28. As such, I am of the opinion that if weighed on the scale of preponderance of probabilities, the testimony of DW1 is more reliable and trustworthy as compared to the testimony of PWs. To my mind, the plaintiff has utterly failed to prove on record that the delivery of 1600 SBI Shares and 50 Tisco shares was not accounted for by the defendant no.1. To my mind, the plaintiff is not entitled for the decree for an amount of Rs. 19,95,000/ together with the interest. Accordingly, issues no. 1 and 2 are decided against the plaintiff.
29. I am also of the opinion that the suit of the plaintiff is without any cause of action in the light of the abovesaid discussion. Accordingly, issue no. 3 is decided against the plaintiff. I am also of the opinion that the defendant no. 1 has been able to prove that the father of the plaintiff had been trading through a subbroker M/s Mittal Investment of the defendant no. 1 and as such, issue no. 4 is decided in favour of the defendants and against the plaintiff. I am also of the opinion that the defendants have been able to prove issue no. 5 in their favour and accordingly, issue no. 5 is also decided in favour of the defendants and against the plaintiff.
30. So far as issue no. 6 is concerned, in the light of the abovesaid discussion, to my mind, M/s Mittal Investment is a necessary and proper party and as such, the defendants have been able to prove that the suit is bad for nonjoinder of M/s Mittal Investment. Accordingly, Suit No. 471/14 (Old Suit No. 522/08) Page No. 28/30 issue no. 6 is decided against the plaintiff and in favour of the defendants. Issue no. 7 :
31. It is not in dispute that the plaintiff herein instituted a complaint case before Delhi State Consumer Redressal Commission, New Delhi. The defendant no.1 against the orders dated 27.04.2007 preferred an appeal before the Hon'ble National Commission and the Hon'ble National Commission vide orders dated 23.07.2007 held that the plaintiff was not the consumer under the provisions of the Consumer Protection Act and the plaintiff was at liberty to approach the Civil Courts for recovery of the amount due from the defendants. The present suit has been instituted by the plaintiff on 17.09.2008. As such, I am of the opinion that the defendants have failed to prove on record as to how the present suit of the plaintiff is barred by law of limitation. Accordingly, issue no. 7 is decided against the defendants and in favour of the plaintiff.
Issue No. 8 :
32. In the light of my findings upon issues no. 1 to 6, I am of the opinion that the plaintiff has not come to the Court with clean hands as the plaintiff has concealed the fact in the plaint itself that the father of the plaintiff was dealing with the defendant no. 1 initially through the Suit No. 471/14 (Old Suit No. 522/08) Page No. 29/30 medium of M/s Mittal Investment. As such, to my mind, the defendants have been able to prove issue no. 8 in their favour and accordingly, issue no. 8 is decided in favour of the defendants and against the plaintiff. Issue No. 9 :
33. DW1, in the crossexamination, has categorically admitted that all the tradings of Sh. Mitrasen Gupta after 07.06.1996 were done from the terminal of the defendants in their office. DW1 has further admitted, in the crossexamination, that Sh. Mitrasen Gupta was having direct dealing only from 07.06.1996. As such, I am of the opinion that the defendants have failed to prove on record that there was no privity of contract in between the father of the plaintiff and the defendants. Accordingly, issue no. 9 is decided against the defendants and in favour of the plaintiff.
Relief :
34. In the light of my findings on issues no. 1 and 2, the suit of the plaintiff is hereby dismissed. No orders as to the costs.
Decree sheet be drawn accordingly by the Reader.
File be consigned to Record Room after due compliance.
Announced in the open court (RAJ KUMAR)
on this 04th day of March 2015. ADJ09 (Central)
Tis Hazari Courts, Delhi.
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