Delhi District Court
In The Matter Of Sunrise Offset Works vs Meet on 14 March, 2013
IN THE COURT OF SH. PRANJAL ANEJA
CIVIL JUDGE-14, CENTRAL, THC, DELHI
In the matter of SUNRISE OFFSET WORKS Vs MEET
KUMAR & ORS.
Suit No. 84/11
Unique ID No.024013068382007
M/s Sunrise Offset Works (P) Ltd.,
through its Director Mr. Neeraj Sharma,
having registered office at 370, Jagriti Enclave,
Delhi-110092. ...... PLAINTIFF.
Vs.
1. Sh. Meet Kumar,
S/o Sh. Praveen Kumar
2. Sh. Meet Kumar, as an authorized signatory
of M/s. Vanity Book Club or as its proprietor
or partner
3. M/s. Vanity Book Club,
A partnership or proprietorship concern,
through its partner or proprietor Mr. Meet
Kumar
All at 44, Bhagya Luxmu Apartments,
Sector-09, Rohini, Delhi-110085
..... DEFENDANTS
CS No. 84/11
Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 1 of 33
DATE OF INSTITUTION OF THE CASE :21.07.2007
DATE ON WHICH RESERVED FOR ORDER :26.02.2013
DATE OF ORDER/ JUDGMENT :14.03.2013
JUDGMENT:
SUIT FOR RECOVERY OF Rs. 1,21,751/- ALONG WITH PENDENTE-LITE AND FUTURE INTEREST.
1. The present suit has been filed by the plaintiff against the defendants for the recovery of an amount of Rs. 1,21,751/- along with interest @ 12% per annum pendente-lite and future interest till realization.
2. In brief, the case of the plaintiff is that the plaintiff accepted the offer of orders for printing work of two KG books given by Mr. Meet Kumar who approached the director of plaintiff company Mr. Neeraj Sharma and gave reference of the father of Mr. Neeraj Sharma. It is further alleged by plaintiff that defendant no. 1 vide challan no. 41752 dt. 15.03.2007 Ex PW 1/3 arranged delivery of paper to plaintiff company for printing followed by two lots of positives numbering 172 and 96 (totaling 268) upon which printing works was completed and the books CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 2 of 33 were delivered to defendant no. 1 in person against his acknowledgment on challan no. 078 dt. 26.03.2007 Ex PW 1/5. The plaintiff also avers that on insistence, Mr. Meet Kumar, authorized signatory of M/s Vanity Book Club, issued a post dated cheque no. 043493 dt. 18.04.2007 for Rs. 1,00,800/- Ex PW 1/7 and while he firstly issued it for Rs. 1,08,000/- and then scored of that figure and wrote the figure of Rs. 1,00,800/- and signed the cutting with a different pen and also the date of 18.04.2007 was put by him in such a manner that the date of "10.04.2007" when made as "18.04.2007" could not be suspected or doubted by the plaintiff or even by the bankers of the defendant unless specifically so informed and thus there was no question for the plaintiff to suspect the over writing, as has been later on pointed out by the banker of the defendant. That the said cheque was accepted as part payment without noticing the said trick of defendant with assurance of the defendant to make balance payment after preparation of the bill and after the encashment of the cheque in CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 3 of 33 question and that thereafter, the plaintiff prepared invoice no. (2006-2007)/103 dated 29.03.2007 Ex PW 1/6 and delivered it to the defendant no. 1 against his acknowledgment given on the same date. That the said cheque was dishonored with memo Ex PW 1/8 stating the reason that alteration in the date requires drawers full signature and it is no wonder that the bank has raised this objection on the asking of the defendants and therefore the defendants are liable to pay the cheque amount along with the balance of Rs. 15,056/-, notice charges and interest.
3. The averments of the plaintiff have been denied in the WS wherein the issuance of cheque Ex PW 1/7 is not denied but it is contended that it was signed by defendant no. 1 only in the capacity of authorized signatory of defendant no. 3 and not in his personal capacity and defendant no. 1 had no personal dealing with plaintiff and even defendant no. 1 is presently not associated with defendant no. 3. The defendant avers that the cheque was issued for Rs. 1,00,800/- only and so CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 4 of 33 the same amount was correctly written in words on the cheque, but the same was wrongly written as Rs. 1,08,000/- only in figure column inadvertently which was corrected subsequently and signed on the said correction, however the plaintiff cunningly altered (forged) the date of the cheque from 10.04.2007 to 18.04.2007 probably with the object of falsely establishing that the job was completed on 03.04.2007 and on the basis of 15 days' credit, got presented the cheque for payment on 18.04.2007 but the bank of defendants detected the over-writing in the date of the cheque and returned the same unrealized on account of the said over-writing.
4. The defendants have denied having arranged any delivery of alleged paper for printing to the plaintiff vide challan Ex PW 1/3 and state that it does not ever bear any signature or seal of the defendants or even the paper supplier. The printing and delivery of books is also denied and the signatures/ initials of Mr. Meet Kumar on the invoice Ex PW 1/5 are stated to be forged and CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 5 of 33 fabricated. It is the contention of the defendants that during the 2nd week of March, 2007 Mr. Neeraj Sharma and his wife visited defendant no. 1's house and told his father Mr. Praveen Kumar that they had come to see them and during conversations reminded about his (Neeraj Sharma's) press at Sahibabad (U. P.) and asked for some printing job. That although defendant no.3 i.e. Mr.Praveen Kumar was not inclined to get the printing job done due to long distance between Sahibabad and Rohini and also the press of plaintiff not having pre-print process facilities but on repeated persuasion of door- step service offer with 15 days' credit facility, defendant no. 3 agreed for small trial order with clear stipulation that since job order was given in respect of school book for the coming academic session, it had to print within the time schedule. That on 15.03.2007 somebody from the side of the plaintiff came to defendant's house and collected the job order adn film positives from Mr. Praveen Kumar and it was again made clean to representation of plaintiff that printing must be finalized CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 6 of 33 and the printed material delivered to the defendants by 25.03.2007 so that defendants could hand over it to their clients before 31.03.2007 i.e. before opening of schools. It is further stated by defendants that thereafter on 17.03.2007 some other representative of plaintiff brought one Ammonia pre-print proof of one set of eight pages only to get defendants' print order to start printing and insisted upon Mr. Praveen Kumar to issue a post dated cheque for entire amount although the same was to be issued after completion of entire job, however, in good faith, due to old acquaintance, it was issued for Rs. 1,00,800/- with date 10.04.2007 with clear instruction to present it only after delivery of entire material. But after receipt of cheque, job became very slack and defendant no. 3 had to visit the press again and again but Mr. Neeraj Sharma was not available in the press and finally when Mr. Neeraj Sharma met defendants on 28.03.2007 he informed that his printing machine had developed some technical fault and therefore he would not get the job done and thus defendant no. 3 was forced to cancel CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 7 of 33 the job order of plaintiff and had to get the same executed from some other source urgently and further repeatedly requested the plaintiff to return the said cheque but plaintiff did not return it. That the goods were never delivered by plaintiff to defendants and the cheque in question was grabbed by the defendants clandestinely who even did not send a protest to the defendants after discovering that the cheque was dated 18.04.2007 instead of dated 10.04.2007 as expected by the plaintiff.
5. In the replication, while denying the averments of the WS and reaffirming those of the plaint, it is stated that the goods in question were supplied to defendants after transfer of the same to registered office of plaintiff at Delhi. The plaintiff also admitted that press of plaintiff is situated in U. P.
6. Vide order sheet dated 20.03.2008 my Ld. Predecessor framed the following issues, which are as under:-
Issues:-
1. Whether present suit has not been filed by a CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 8 of 33 duly authorized person? OPD.
2. Whether suit is bad for mis-joinder of parties? OPD.
3. Whether the signature of the defendant on the documents is forged and fabricated? OPP.
4. Whether plaintiff entitled to the suit amount, if so, interest at what rate and for what period? OPP.
5. Relief.
Documents to write.
7. I have heard the arguments addressed on behalf of both the sides and perused the record. My issue-wise disposal of the present suit is as under:-
8. Issue No. 1:- Whether the present suit has not been filed by a duly authorized person? OPD.
The onus of proving this issue was upon the defendant. One of the preliminary objection raised by the defendants in their WS is that the present suit has not been filed by a duly authorized person. It is seen that the present suit has been filed by one Mr. Neeraj Sharma stating himself to be the director of the plaintiff company and the plaint is verified and the supporting affidavit is CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 9 of 33 filed by the said Mr. Neeraj Sharma in the capacity of director. Plaintiff has, in support, filed a copy of certificate of incorporation of the plaintiff company and Board Meeting resolution in favour of Mr. Neeraj Sharma as Mark A. In his cross-examination dt. 29.09.2009, the plaintiff/ PW-1 has stated that he has not been able to trace out the certificate of incorporation of his company. PW-1 further states that he has not brought the memorandum and articles of association but he can produce the same on the next date. The plaintiff has relied upon United Bank of India Vs. Naresh Kumar 1996 VII AD S.C. 208 wherein the Hon'ble Supreme Court while allowing the appeal held that it is difficult, in the circumstances, even to presume that the suit had been filed and tried without the appellant having authorized the institution of the same and the only logical conclusion which can come out is that Sh. L. K. Rohatgi must have been authorized to sign the plaint and in any case it must be held that the appellant had ratified the action of Sh. L. K. Rohatgi in signing the CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 10 of 33 plaint and thereafter it continued with the suit. In the said case it was held that the Court had to be satisfied that Sh. L. K. Rohatgi could sign the plaint on behalf of appellant as the suit had been filed in the name of appellant company and full amount of Court fee had been paid and documentary as well as oral evidence had been led on behalf of appellant and the suit had continued for about two years before the Trial Court. The Hon'ble Court further held that:
"In addition thereto and de hors Order 29 Rule 1 of the Code of Civil Procedure as a company is a juristic entity, it can duly authorize any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure. A person may be expressly authorized to sign the pleadings on behalf of the company for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been singned by one of it's officers a Corporation can ratify the said action of it's officer in signing the pleadings. Such ratification can be express or implied. The Court can on the basis of the evidence on record and after taking all the circumstances of the case specially with regard to the conduct of the trial come to the conclusion that the corporation had ratified the act of signing of the pleading by it's officer. "CS No. 84/11
Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 11 of 33
9. The plaintiff also relied upon M/s United India Insurance Company Ltd. & Anr Vs. M/s Okara Trade Parcel Carriage decided by the Hon'ble High Court of Delhi in RFA No. 160/1991 on 07.12.2010 wherein the Hon'ble Court also placed reliance upon the above mentioned ruling United Bank of India Vs. Naresh Kumar.
10. In the present case although the plaintiff could not bring the original certificate of incorporation, though photocopy of the same was filed as mark A, nevertheless there is no reason to doubt about the identity of the plaintiff company on whose behalf Mr. Neeraj Sharma has filed the suit and in whose favour a board resolution dt. 16.06.2007 was passed which has been filed in the form of Attested True copy of the extracts from the minutes of the meeting of the Board of Directors of the plaintiff company. Herein also the suit has been instituted on behalf of plaintiff company by an authorized person who is none-else but one of the director and CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 12 of 33 Court fees has been duly paid . The said director Mr. Neeraj Sharma is also having personal knowledge of the facts of the case as he was only involved in the whole transaction in question. The plaintiff/ PW-1 has even been asked in his cross-examination dt. 29.09.2009 at page 2 to which he has admitted that book of minutes was started on 10.03.2007. The said board resolution is of a later date i.e. 16.06.2007. The plaintiff/ PW-1 was also asked whether he had brought the minutes books of earlier period since incorporation to which he denied but it bears no relevant reason for the same to have been brought as only that resolution/ extract of the board meeting has been filed which authorizes Mr. Neeraj Sharma to file and pursue the present suit against the defendant. Thus, there is no palpable reason to doubt that the said Mr. Neeraj Sharma is not duly authorized person to institute the present suit. Thus, this issue is decided against the defendant and in favour of the plaintiff.
11. Issue No. 2:-Whether suit is bad for mis-joinder CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 13 of 33 of parties? OPD.
The onus of proving this issue is also upon the defendant. In the WS, this was raised as one of the preliminary issues contending that defendants no. 1 and 2 are the same person and they are not necessary parties as they are no more representing defendant no. 3, which is owned by their father Mr. Praveen Kumar. For deciding this issue the original memo of parties showing defendants needs to be looked upon which reads as under:
M/s Sunrise Offset Works (P) Ltd., through its Director Mr. Neeraj Sharma, having registered office at 370, Jagriti Enclave, Delhi-110092 .......... Plaintiff Vs.
1. Ms. Meet Kumar, son of Mr. Praveen Kumar
2. Mr. Meet Kumar, as an authorized signatory of M/s Vanity Book Club or as its proprietor, or partner.
3. M/s Vanity Book Club, A Partnership or Proprietorship concern, through its partner or proprietor Mr. Meet Kumar:
All at 44, Bhagya Luxmi Apartments, CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 14 of 33 Sector-9, Rohini, Delhi-110085. .............Defendants.
12. Upon disclosure in the WS that the father of defendant no. 1 and defendant no. 2 Mr. Praveen Kumar owns the defendant no. 3 concern and therefore the plaintiff filed application u/o 1 rule 10 CPC which was allowed vide order sheet dated 07.02.2008 and the amended memo of parties allowed to be taken on record showing defendants reads as under:- "1. Mr. Meet Kumar, son of Mr. Praveen Kumar
2. Mr. Meet Kumar, as an authorized signatory of M/s Vanity Book Club
3. Mr. Praveen Kumar, Proprietor of M/s Vanity Book Club All at 44, Bhagya Laxmi Apartments, Sector-9, Rohini, Delhi-110085."
13. It is averred in para 3 of the preliminary objections of the WS that defendant no. 1 and defendant no. 2 are not necessary parties as they are no more representing defendant no. 3, which is owned by their father Mr. CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 15 of 33 Praveen Kumar. A careful reading of the above mentioned para 3 of WS itself reveals and implies that defendant no. 1 and defendant no. 2, who is one person, was representing defendant no. 3 at the relevant points of time i.e. in the transactions in question in the present suit. By virtue of this Mr. Meet Kumar is necessary party and cannot wriggle himself out from the present suit merely by taking a plea that he is no more representing defendant no. 3. In this regard it is very pertinent to mention the deposition of Mr. Praveen Kumar, defendant no. 3 who appeared as DW-1 and who stated in his cross-
examination dt. 06.07.2010 that:
"All dealing with plaintiff were done jointly by me and by my son." This deposition clearly establishes that defendant no. 1 and defendant no. 2 are also necessary parties to the present suit which cannot be said to be bad for mis-joinder of parties. The defendants have failed to prove this issue which is decided against them and in favour of the plaintiff.
14.Issue No. 3 & 4:-CS No. 84/11
Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 16 of 33 Issue No. 3:- Whether the signature of the defendant on the documents is forged and fabricated? OPP.
Issue No. 4:- Whether plaintiff entitled to the suit amount, if so, interest at what rate and for what period? OPP.
15. Both these issues require common discussion and hence they are taken together.
16. The present suit has been instituted on behalf of plaintiff for the recovery of money on account of alleged supply of books to the defendants who had issued a cheque which was not honored for the reason that alteration in date required drawer's full signature. The case of the plaintiff is that the director of the plaintiff's firm Mr. Neeraj Sharma accepted the offer of orders for printing work of two KG books given by Mr. Meet Kumar i.e. defendant no. 1 who had approached Mr. Neeraj Sharma and gave reference of his (Meet Kumar's) father and that defendant no. 1 arranged delivery of paper vide CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 17 of 33 challan Ex PW 1/3 to plaintiff for printing followed by two lots of positives upon which printing was completed and books were delivered to defendant no. 1 against acknowledgment on invoice Ex PW 1/5. A post dated cheque for Rs. 1,00,800/- dt. 18.04.2007 Ex PW 1/7 was also issued by defendant no. 1 authorized signatory of M/s Vanity Books Club and it was accepted as part payment. The contention of the plaintiff is that he could not notice the trick of defendant who had issued the said cheque with interpolation on the date by making the date 10.04.2007 as 18.04.2007 in such a manner which could not be detected unless specifically told to bankers.
That plaintiff also issued tax invoice Ex PW 1/6 and delivered it to defendant no. 1 against his acknowledgment.
17. On the other hand, it is contended in the WS that though issuance of cheque Ex PW 1/7 is not denied but the same was signed by defendant no.1 only as authorized signatory of M/s Vanity Book Club and not in the capacity of its proprietor who is actually Mr. Praveen CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 18 of 33 Kumar, the father of defendant no. 1 and that defendant no. 1 had no personnal dealing with plaintiff. The story of defendant is that it was Mr. Neeraj Sharma (director of plaintiff) and his wife who came at the house of defendant and requested for order of printing job to which defendants agreed for a small trial on repeated persuasion and on the basis of acquaintance with his father. The defendant further alleges that plaintiff gave 15 days credit with door step service. It is stated by defendant that due to old acquaintance the said cheque Ex PW 1/7 was issued with stipulated date 10.04.2007 and instruction to present it only after delivery of entire material. But on 28.03.2007 plaintiff informed defendant no. 3 that his printing machine had developed technical fault and therefore the job could not be done. That neither any printed books were delivered to defendants nor defendant no. 1 signed over any invoice Ex PW 1/5 or Ex PW 1/6. The cheque Ex PW 1/7 got dishonored due to alteration on the date from 10.04.2007 to 18.04.2007 probably with the object of falsely establishing that the CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 19 of 33 job was completed on 03.04.2007 and on the basis of 15 days credit, got presented it for payment on 18.04.2007 but the bank detected the over-writing in the date and returned it unrealized.
18. In the factual matrix of the present case the defendants have denied having received any goods (books) and have also denied the signature i.e. acknowledgment. The defendants contend that defendant no. 1 had no personal dealing with plaintiff and defendant no. 1 issued the cheque Ex PW 1/7 only as authorized signatory and not in his personal capacity and also that even defendant no. 1 presently is not associated with defendant no. 3. In this regard, although it has already been observed while deciding issue no. 2 above, it is again noted that defendant no. 3 in his cross- examination dt. 06.07.2010 has clearly deposed that all dealings with the plaintiff were jointly done by him and his son i.e. defendant no. 1. This is necessary to be reiterated here again for the reason that the cheque Ex PW 1/7 has been admitted to have been issued by CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 20 of 33 defendant no. 1. The cheque thus carries the presumption u/s 118 of the Negotiable Instruments Act, 1881 and presumption is with the cheque that it was for consideration. In order to refute or rebut the presumption, the defendants have raised the defence that the goods were never delivered to defendant and defendant no. 1 even did not sign on the invoice Ex PW 1/5 and Ex PW 1/6 which bear forged signatures. The defendant has also alleged that it was the alteration/ forgery made by plaintiff on the date mentioned on the cheque Ex PW 1/7 which was detected by the bank due to which the cheque was not honored. Dealing firstly with the aspect of alteration in the date, it is seen that the said cheque bears the date 18.04.2007 and there is a cutting on the figure column with signatures which are admitted. The contention of the plaintiff is that the date 18.04.2007 was made/ written in such manner that none can detect the interpolation unless told.
19. Perusal of the said cheque Ex PW 1/7 shows that a man of ordinary prudence would read the date CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 21 of 33 mentioned on the cheque as 18.04.2007" and only a very minute observation would show that the initially that date would have been written as '10' and later the figure '0' is changed to '8' by interpolation. But this can only be detected by any person on minute observation or his attention being specifically drawn towards the same and not in routine manner. It creates suspicion in the given circumstances of the case that the said cheque Ex PW 1/7 was dishonored for the said alteration in the date, as shown in return memo Ex PW 1/8, although the cheque bears cutting in the figure column and surprisingly two signatures at the place where signatures are affixed. Another aspect attached with the cheque is that the defendant states in WS para 7 (page 9) that on 28.03.2007 he was informed by Mr. Neeraj Sharma that the printing machine had developed some technical fault and for that reason job could not be done and therefore defendant no. 3 was forced to cancel the job order. It is very pertinent to observe that the defendant did not direct their banker to stop the payment of the said CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 22 of 33 cheque and even no notice in writing was written to the plaintiff for the return of the said cheque, although defendant states that verbal requests were made to the plaintiff. As per defendant the date on the cheque was 10.04.2007 they why did he wait for so many days after 28.03.2007, when he allegedly cancelled the job order, and did not ordered for stop payment or sent a notice to plaintiff. No such steps were taken by defendant even on or after 10.04.2007 i.e. date of cheque as per defendant, when it could have been presented for payment anytime and it was presented on 18.04.2007 and no cogent reasons have been stated by defendant for not taking any such step as ordinarily any reasonable person is not expected person to take such risk of keeping a duly signed and filled up cheque, whose date has arrived, with the drawee in case consideration has not passed on by the drawee to the drawer. The reason stated by the defendant in WS for such alleged alteration of date is that plaintiff's intention was to falsely establish that the job was completed on 03.04.2007 and on the CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 23 of 33 basis of 15 days credit got the cheque presented on 18.04.2007. This reason is not justifiable and sustainable as it is based on the averments of the defendant itself that plaintiff offered 15 days credit which have not been proved. The reason also cannot be believed as it is stated by defendant in the WS itself that it was made clear to the plaintiff that the printing must be finalized and delivered to defendants by 25.03.2007.
20. The defendant allege that after cancelling the job order given to plaintiff the defendant got the same executed from some other source urgently but even such alleged source has been named nor any person has been examined as a witness to prove such averments.
21. The defendant have alleged that the signatures of defendant no. 1 on documents i.e. invoice Ex PW 1/5 and Ex PW 1/6 are forged and in this respect has examined a handwriting expert as defendant no. 2. Firstly, it is pertinent to note that although the WS was singed by defendant no. 1 and defendant no. 3 and defendant no. 1 was also named as a witness in the list of witnesses filed CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 24 of 33 on behalf of defendants but the signatures on invoices Ex PW 1/5 and Ex PW 1/6 have not been denied by defendant no. 1 during the admission denial of documents conducted on 20.03.2008 when issues were framed but have rather been denied by defendant no. 3, his father, who has nowhere stated that he recognizes the initials of defendant no. 1 or has seen signing defendant no. 1 or familiar with his signatures/initials. The same was important as defendant no. 1 despite being named in the list of witnesses has not appeared in the case to withstand the test of cross-examination. Thus, the denial of the signatures/ initials of defendant no. 1 stands only in the pleadings i.e. WS and is not proved by defendant no. 1 as he abstained from appearing and deposing himself in the witness box. Even when the defendant/ DW-1 was asked specifically in his cross-examination dt. 27.11.2010 whether he would like to call his son Mr. Meet Kumar and examine in this case, to which he answered that he cannot say. It is also clearly not disclosed in the said cross-examination the CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 25 of 33 place where defendant no. 1 is undergoing training out of Delhi and even what kind of training and in what institute/ organization. The defendant no. 3/ DW-1 has deposed that defendant no. 1 cannot come unless there are very drastic circumstances and he only gets a leave of 15 days after six months and the last leave was granted to him in January, 2010. The said cross- examination was recorded on 27.11.2010 and therefore near about 11 months had elapsed from defendant no. 1's last visit and therefore defendant no. 1 could have appeared as a witness to prove the averments of the WS, especially when he had been named in the list of witnesses. Thus, adverse inference is hereby drawn for defendant 1 not appearing to depose in the present case.
22. The defendant no. 3 also got a handwriting expert examined as DW-2 who filed his report as Ex DW 2/A along with the comparison of signatures Ex DW 2/1 to Ex DW 2/5. From the report of expert DW-2 it is observed that the signatures of defendant no. 1 on the cheque Ex CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 26 of 33 PW 1/7 and also on another cheque (supplied by defendant no. 3 but not exhibited) have been treated an admitted signatures and the two signatures on invoices Ex PW 1/5 and Ex PW 1/6 have been treated as questioned signatures. The conclusion/ opinion given by expert DW-2 in his report Ex PW 2/A is that the person who wrote questioned signatures did not write admitted signatures i.e. they do not match. In this regard it is pertinent to note that the questioned signatures which are initials only are compared with admitted signatures which are not initials but are full signatures. It was even asked in his cross-examination to the expert witness DW-2 that why specimen signatures of initial of defendant no. 1 were not taken to which he answered that the admitted signatures that were provided were enough to make opinion on the same and no requirement was felt for taking the specimen signatures of defendant no. 1. It has even been disclosed by DW-2 that only defendant no. 3 came to his office and defendant no. 1 was not available. Although the field of CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 27 of 33 handwriting comparing has developed but it would have been prudent on the part of the expert to have asked for specimen initials of defendant no. 1 or for defendant no. 3 to have himself provided the same to the expert by bringing defendant no. 1 to the Court for giving specimen initials as it cannot be said with certainity that in every case the initials can be compared with full signatures. A person may sign differently in initials from his full signatures. Another aspect of looking at the evidence of DW-2 is that since he has acted on the information/ identification of signatures of defendant no. 1 provided by defendant no. 3 then his opinion is shadowed by hearsay. Thus, on the basis of above reasoning it is not safe to rely upon the opinion of expert DW-2.
23. Defendant has cross-examined plaintiff on 29.09.2009 upon the aspects of delivery of goods. The plaintiff/ PW-1 has deposed that he has made payment of printing work done from the press at Sahibabad but has not filed any documentary proof pertaining to the CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 28 of 33 same. Also at page 5 of the said cross-examination plaintiff/ PW-1 denied to the suggestion that he was not having any printing press. These depositions cannot help the defendant as it is the averment of the defendant himself in WS para 7 on merits that there was a press of Mr. Neeraj Sharma at Sahibabad. Defendants has also stated at page 8 of WS that he had to visit the press again and again for getting the job done. The certificate in the shape of press declaration is also not relevant in the facts and circumstances of the present case. The plaintiff/ PW-1 has volunteered to depose that defendants had given oral approval for print order as they were present in the press. This deposition is also not doubtful in the event of the averments of WS at page 8 that defendant no. 3 had to visit the press of Mr. Neeraj Sharma again and again to enquire about the progress of the job.
24. The plaintiff/ PW-1 has admitted that he did not produce any accounts pertaining to M/s Sunrise offset works and M/s Sunrise Mediation consultants. But CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 29 of 33 merely not producing the said accounts cannot discard the transaction as occurred between plaintiff and defendants.
25. In the cross-examination of defendant no. 3/ DW-1 dt. 06.07.2010 he was questioned about the cheque being voluntarily given against supply of printed material. The witness DW-1 has replied that he have the cheque after lot of persuasion by Mr. Neeraj Sharma and it was taken by him even before the job was started and not against the supply of printing material. While in the WS para 7 at page 8, it is stated that some other representative of plaintiff brought one Ammonia pre-print proof on one set of 8 pages and assured about remaining proofs and insisted for a post dated cheque. Thus it cannot be said that cheque was given even before the work started and not against supply of printing material. It is also observed that in cross-examination of DW-1 dt. 06.07.2010 he deposes that he does not know if the order for printing was cancelled on 28.03.2007 which runs to the averment in WS para 7 at page 9. It is CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 30 of 33 pertinent to note that the witness DW-1 admits to the suggestion in his said cross-examination dt. 06.07.2010 that inspite of non-supply of printing material, he did not ask the plaintiff's company to return the cheque. Further the witness DW-1 deposes that regarding the supply of books to Army school he cannot say and he does not know if he can search out the acknowledgment of the delivery of books. The DW-1 has admitted the photostate copies of the positives running into 22 pages filed by the plaintiff.
26. From all the above discussion what is to be logically concluded is that the defendants have not been able to refute/ rebut the presumption u/s 118 of N.I. Act in respect of the cheque Ex PW 1/7 and the preponderance of probability goes in favour of the plaintiff. It has also been observed that both Mr. Meet Kumar and Mr. Praveen Kumar jointly were involved in the transaction in question and therefore are jointly and severally liable to pay the liability to the plaintiff company. Thus, the plaintiff is entitled to the invoice (Ex PW 1/6) amount of CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 31 of 33 Rs. 1,15,856/-, which includes the cheque amount, against the defendants jointly and severally. Regarding interest claimed, it is seen that interest @ 12% per annum has been claimed w.e.f. 20.04.2006 and claimed 18% per annum pendent-lite and future but I consider the rate of 12% per annum to be appropriate in the facts and circumstances of the case chargeable on the said principal amount of Rs. 1,15,856/- w.e.f. the date of cheque i.e. 18.04.2007 till realization. Thus, the issues no. 3 and 4 are decided in f avour of the plaintiff and against the defendants.
RELIEF
27. In view of the findings on all the issues above, the present suit is decreed in favour of the plaintiff company and against the defendants jointly and severally for an amount of Rs. 1,15,856/- along with interest @ 12% per annum w.e.f. 18.04.2007 till realization.
28. Costs of the suit are also awarded in favour of the plaintiff.
29. Decree sheet be prepared accordingly. CS No. 84/11 Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 32 of 33
30. File be consigned to record room after necessary compliance.
Announced in open Court (PRANJAL ANEJA)
on 14.03.2013 CIVIL JUDGE-14, CENTRAL
THC/DELHI/14.03.2013
CS No. 84/11
Sunrise Offset Works Pvt. Ltd. Vs. Meet Kumar Page No. 33 of 33