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Delhi District Court

Monika Arora vs ) M/S. Adwiz Media on 14 January, 2016

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 IN THE COURT OF MS. NAVITA KUMARI BAGHA, ADJ­01 (SOUTH), 
                          SAKET COURTS, NEW DELHI

CS­345/11
Unique Case ID No.02406C0061272011

Monika Arora
W/o Sh. Anil Arora
R/o 4/22­B, Jangpura­B,
New Delhi.
                                              ........................ Plaintiff

                Vs.

1)       M/s. Adwiz Media
         M­9, Lajpat Nagar­II,
         New Delhi­110024


2)       Vishal Jaggi
         Partner
         M/s. Adwiz Media
         M­9, Lajpat Nagar­II,
         New Delhi­110024


3)       Kunal Jaggi
         Partner
         M/s. Adwiz Media
         M­9, Lajpat Nagar­II,
         New Delhi­110024
                                             ....................... Defendants

         Date of Institution                  :     17.03.2011
         Date of reserving judgment           :     07.01.2016
         Date of pronouncement of judgment    :     14.01.2016


     Suit for recovery of ₹4,62,000/­ alongwith pendentelite and 


CS No.345/11
Monika Arora
        Vs.
M/s. Adwiz Media & Ors.
                                                                                      Page 2 of 19




                                      future interest

J U D G M E N T :

­

1. The present suit was filed by plaintiff against the defendants on 16.03.2011. The brief facts of the suit as narrated in the Plaint are as follows:­ "The plaintiff, a working woman, had knowledge uptil the year 2008 that the defendant no.1 was a partnership firm consisting of defendant no.2, Ms. R.K. Divya and defendant no.3 as partners, but later on she learnt that Ms. R.K. Divya was no more a partner of defendant no.1 and that the defendant no.2 was running the firm i.e. the defendant no.1 as its Managing Partner/Proprietor. The Defendant no.2 & 3 were in distant relation to the plaintiff and the defendant no. 2 later on came into her close relationship as he became son­in­law of the brother of her husband. The defendant no. 2 approached the plaintiff in the month of March, 2008 for a friendly loan of ₹3,00,000/­ (Rupees Three Lacs only) for a period of one year to meet some shortcomings in his business, being run by him in the name of defendant no.1 and considering his request, the plaintiff extended the said loan to him vide cheque no.410613 dated 07.03.2008 and advised him to encash the said cheque after ten days as she had to meet out certain other financial liabilities. The said cheque was got encashed by the defendant no.2 on 17.03.2008. While availing the loan, the defendant no.2 had CS No.345/11 Monika Arora Vs. M/s. Adwiz Media & Ors.

assured the plaintiff to repay the loan within one year alongwith interest @ 18% per annum. But when after the passage of one year, the plaintiff demanded back her money, the defendants sought extension on one or the other pretext and being in relationship, the plaintiff never pressed very hard and granted time after time as sought by defendant no.2. The plaintiff had several meetings with defendant no.2 and lastly in the meeting held on 15.03.2011, the defendant flatly refused to make the payment to the plaintiff. Hence the plaintiff filed the present suit for recovery of total amount of ₹4,62,000/­ which includes principal amount of ₹3,00,000/­ and ₹1,62,000/­ as interest @18% per annum."

2. After service of summons, the defendants filed joint Written Statement on 26.04.2011 wherein it is denied that Ms. R.K. Divya was the partner of defendant no.1 and is stated that the defendant no.2 is a partner of defendant no.1 as its Managing Partner/proprietor. It is admitted by the defendants that the defendant no.2 & 3 were in distant relation with plaintiff and that now the defendant no.2 is in close relationship with plaintiff being son­in­law of the brother of her husband. However, it is denied that he had taken loan of ₹3 Lacs from the plaintiff and is stated that the brother­in­law (Jija) of defendant no.2 and 3 Amit Arora was in joint ownership, alongwith the plaintiff, of the immovable CS No.345/11 Monika Arora Vs. M/s. Adwiz Media & Ors.

property bearing no. L­II/92, Lajpat Nagar­II, New Delhi­110024 and the defendant no.2 in fact had facilitated the deal at the time of purchase of the said property and in selling the entire basement and ground floor of the said property to Ms. Neeraj Kohli and Ms. Ankita Kohli vide Agreement to sell dated 12.01.2006 and that the alleged amount of ₹3 Lacs was paid by the plaintiff to the defendant on account of his acted as facilitator. It is denied that the plaintiff had several meetings with the defendant no.2 and that lastly meeting was held on 15.03.2011. The liability of the defendants to pay the claimed amount has been denied.

3. The plaintiff has filed the Replication to the said Written Statement wherein she has denied almost all the averments of the defendants and reiterated & reaffirmed the contents of her Plaint. It is admitted by her in the Replication that Amit Arora was a joint owner alongwith her of the property bearing no. L­II/92, Lajpat Nagar­II, New Delhi­110024, but she has denied that the defendant no.2 had helped or facilitated her at the time of purchase of the said property or at the time of selling of entire basement and ground floor of the said property to Ms. Neeraj Kohli and Ms. Ankita Kohli vide Agreement to Sell dated 12.01.2006. She has submitted that the above­said property was purchased by her from her mother, who had inherited the same CS No.345/11 Monika Arora Vs. M/s. Adwiz Media & Ors.

from her husband (father of the plaintiff). It is further submitted that the alleged claim of the defendant that he had received the amount of ₹3 Lacs from the plaintiff towards the facilitation of sale/purchase as alleged gets falsified by the fact that it is not proportionate to the alleged Agreement to Sell which is even otherwise in question before the Hon'ble Delhi High Court in Suit no.2027/2007 titled as 'Neeraj Kohli & Anr. Vs. Amit Arora & Anr.' It is further stated that even otherwise the defendant no.1 is a firm involved in the business of online advertisement and not in the business of brokerage.

4. After the completion of pleadings, the following issues were framed by the Ld. Predecessor Court vide order dated 08.07.2011:­

1. Whether the plaintiff is entitled to the suit amount as prayed for? OPP

2. Whether the plaintiff is entitled to any interest? If so, at what rate? OPP

3. Relief.

5. In plaintiff's evidence, the plaintiff has examined two witnesses i.e. herself as PW­1 and her husband Anil Arora as PW­2. In defendants' evidence, the defendants have also examined two CS No.345/11 Monika Arora Vs. M/s. Adwiz Media & Ors.

witnesses i.e. defendant no.2 as DW­1 and Amit Arora as DW­2.

6. The PW­1, in her affidavit of evidence i.e. Ex.PW1/A, has deposed on similar lines of her Plaint. While reiterating the submissions made in the Plaint, she, in order to prove her case, has exhibited the following documents:­

(i) Ex.PW1/1 - Certificate dated 09.09.2010 issued by Bank of Baroda, certifying that the cheque no.410613 dated 07.03.2008 of ₹3,00,000/­ for Adwiz was cleared on 17.03.2008.

(ii) Ex.PW1/2 - Statement of Bank Account of plaintiff.

(iii) Ex.PW1/3 - Notice U/O.12 R.8 CPC dated 25.07.2011, given by plaintiff to defendants.

(iv) Ex.PW1/4 to PW1/6 - Three postal receipts.

7. The DW­1/defendant no.2, in his affidavit of evidence i.e. Ex.D­1, has deposed on the lines of Written Statement. While reiterating the submissions made in the Written Statement, he exhibited the following documents:­

(i) Ex.DW1/1 - Certified copy of Agreement to Sell dated 12.01.2006, executed between Vendors i.e. M/s. Jia Constructions (Proprietary Concern of Amit Arora) and the CS No.345/11 Monika Arora Vs. M/s. Adwiz Media & Ors.

plaintiff and Vendees i.e. Ms. Neeraj Kohli and Ms. Ankita Kohli.

(ii) Ex.DW1/2 - Certified copy of receipt of ₹12 Lacs, paid by Ms. Neeraj Kohli & Ms. Ankita Kohli to M/s. Jia Constructions & the plaintiff.

(iii) Ex.DW1/3 - Certificate purported to be issued by Ms. Neeraj Kohli and Ms. Ankita Kohli.

8. I have heard the final arguments from both the sides and perused the record. My issue­wise findings are as under:­ ISSUE NO.1 Whether the plaintiff is entitled to the suit amount as prayed for?

9. The onus to prove this issue was upon the plaintiff. The PW­1 and PW­2, both, deposed in their affidavits of evidence i.e. Ex.PW1/A and Ex.PW2/1 that the defendant no.2 had approached the plaintiff in the month of March, 2008 for obtaining friendly loan of ₹3,00,000/­ for a period of one year on account of meeting the shortcomings in his business being run in the name of defendant no.1 and the plaintiff had extended him the said loan vide cheque no.410613 dated 07.03.2008 drawn on Bank of Baroda, Bhogal Branch, New Delhi which was not repaid by the defendants CS No.345/11 Monika Arora Vs. M/s. Adwiz Media & Ors.

despite a number of demands made by the plaintiff. They reiterated the same even in their cross­examination. But despite their categorical deposition on these points in examination­in­chief as well as in cross­examination, not even any suggestion was put to them to deny the same. It is settled law that if the opposite party fails to put his case in cross­examination, the testimony of the witness on that issue is deemed to be accepted as true. It is held by Hon'ble Supreme Court in Sarwan Singh Vs. State of Punjab, AIR 2002 SC 3652, "It is a rule of essential justice that whenever opponent has declined to avail himself of the opportunity to put his case in cross­examination, it must follow that evidence tendered on that issue ought to be accepted." It is also held by Hon'ble High Court of Delhi in Satyendra Kumar Sharma Vs. Jitender Kudsia, 2005 DLT 498, "Section 137 and 138 of Evidence Act ­ Cross­ examination - If a witness is not cross­examined on a particular point, the opposite party must be deemed to have accepted truth of the statement."

G. It is also held by Division Bench of Calcutta High Court in A.E. Carapiet Vs. A. Y. Derderian , AIR 1961 Calcutta 359, "The law is clear on the subject. Wherever the opponent CS No.345/11 Monika Arora Vs. M/s. Adwiz Media & Ors.

has declined to avail himself of the opportunity to put his essential and material case in cross­examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice."

10. Thus, in the absence of any suggestion to deny the deposition of PW­1 and PW­2, it is deemed admitted by defendants that the defendant no.2 had approached the plaintiff in March, 2008 for a friendly loan of ₹3,00,000/­ and the same was extended by her vide cheque dated 07.03.2008 which was not repaid by him.

11. Though, the defendants have admitted the receipt of ₹3,00,000/­ by the defendant no.2 from the plaintiff vide the above­said cheque but their defence is that the said amount was given by the plaintiff to defendant no.2 towards the brokerage charges with respect to property bearing no. L­II/92, Lajpat Nagar­II, New Delhi­110024. So, the onus to prove this plea of brokerage charges was upon the defendants. In order to discharge the said onus, they have examined two witnesses i.e. DW­1 Vishal Jaggi (who is defendant no.2) and DW­2, Amit Arora who was the joint owner alongwith the plaintiff of the above­said property. So far as the testimony of DW­1 is concerned, there are a number of contradictions in it. He stated during his cross­examination that the CS No.345/11 Monika Arora Vs. M/s. Adwiz Media & Ors.

defendant no.1 i.e. Adwiz Media was in the business of information technology and was not connected at all with his property dealing business. But then he shifted the stand and said that Adwiz Media was also in property transactions sometimes, though he admitted that as per the Partnership Deed, Adwiz Media was not dealing in the property transactions. It appears that he changed his version when it struck to his mind that the cheque in question i.e. bearing no.410613 dated 07.03.2008 was obtained by him in the name of defendant no.1 and it was his case that the said cheque was towards payment of brokerage charges. He then stated that he was not related at all with M/s. Arcade Realtors, but did not refute the fact that his name was printed on the visiting card of M/s. Arcade Realtors. In the Written Statement, he denied that Ms. R.K. Divya was a partner of defendant no.1, but in his cross­examination he said that she was also partner alongwith him and defendant no.3. In para 4 of his affidavit of evidence i.e. Ex.D­1, he deposed that the cheque of ₹3,00,000/­ bearing no. 410613 dated 07.03.2008 was given by plaintiff to him on account of the deal facilitated by him for selling the entire basement and ground floor of property bearing no. L­II/92, Lajpat Nagar­II, New Delhi­110024 to Mrs. Neeraj Kohli and Ms. Ankita Kohli vide Agreement to Sell dated 12.01.2006. But, in his cross­examination, he improved his version and said that he had acted as a broker in CS No.345/11 Monika Arora Vs. M/s. Adwiz Media & Ors.

agreement dated 17.11.2005 between Sheel Thareja and Monika Arora and Amit Arora and that he had facilitated the said deal and thereafter helped them in selling the basement and ground floor, in getting sanctioned plan, demolition, solving all property disputes and in entering into agreement dated 12.01.2006. It is pertinent to mention here that the Agreement to Sell dated 12.01.2006 could not get fructified and a suit for Specific Performance was filed in the year 2007 bearing no.2027/07 by the Vendees of Agreement to Sell i.e. Mrs. Neeraj Kohli & Ms. Ankita Kohli in the Hon'ble Delhi High Court. Thus, in a scenario, when the deal is not finalized and a suit is pending against the plaintiff with respect to the same incomplete deal, how is it possible that she would have paid the brokerage charges to the defendant no.2? When a suggestion was given to DW­1/defendant no.2 during his cross­examination in this regard, he admitted it correct that the suit with respect to the Agreement to Sell dated 12.01.2006 i.e. Ex.DW1/1 was filed in 2007 whereas he had claimed to have received the brokerage of ₹3,00,000/­ from the plaintiff in March, 2008. Since, it was sounding quite illogical that brokerage was paid when the deal had failed and the suit was pending in that regard, the DW­1, suddenly improved his version and created altogether a new story of having acted as broker in agreement dated 17.11.2005, having helped in getting the sanctioned plan, in demolition and in solving property CS No.345/11 Monika Arora Vs. M/s. Adwiz Media & Ors.

disputes. By creating an altogether new story, he had tried to justify that the alleged brokerage was not exclusively for the deal relating to Agreement to Sell dated 12.01.2006 but for all the above­said services rendered by him. It is pertinent to mention here that the said statement is beyond pleadings and it is settled law that no evidence could be led on a plea not raised in the pleadings (Ravinder Singh Vs. Janmeja Singh, AIR 2000 SC 3026). Therefore, DW­1 could also not lead evidence beyond pleadings. The lies of DW­1 did not stop here only. In the starting of his cross­examination, he said that Adwiz Media was not operational since 2008, but later on, he said that he had obtained the cheque of ₹3.00 Lacs from the plaintiff in the name of Adwiz Media because he wanted to put that money for the functioning of its (Adwiz Media's) business. Thus, in view of the aforesaid, it is held that the testimony of DW­1 is full of contradictions and falsities and hence, could not be relied upon.

12. So far as the DW­2 is concerned, he had deposed in his affidavit of evidence i.e. Ex.DW2/A that the amount of ₹3,00,000/­ was paid by the plaintiff to defendants on account of the services rendered by defendant no.2 in facilitating the deal of Agreement to Sell dated 12.01.2006 and not towards any friendly loan. This DW­2 is the same person who was the joint owner alongwith CS No.345/11 Monika Arora Vs. M/s. Adwiz Media & Ors.

plaintiff of the property bearing no. L­II/92, Lajpat Nagar­II, New Delhi­24 and had executed the Agreement to Sell dated 12.01.2006 as Vender alongwith the plaintiff. When a question was put to him that it was one Mr. Mahesh and not defendant no.2, who was the broker in the above­said deal who had also signed on the Agreement to Sell, he said that he did not know him. When he was asked about the rate of brokerage, he gave evasive reply that the rate of brokerage is not fixed now­a­days. This witness appears to have deliberately withheld the true facts and thus his testimony does not transpires confidence. Moreover, he was not present at the time of giving of loan by the plaintiff to defendant no.2, then how can he say that it was not loan rather the payment of brokerage charges. The PW­2 had categorically stated during his cross­examination that only plaintiff, PW­2 and defendant no.2 were present at the time of advancement of loan. Since no suggestion was given to PW­2 to deny the said fact, so the same is deemed to be admitted. As held earlier, it is also established in the absence of any suggestion in cross­examination, that a loan of ₹3,00,000/­ was advanced by the plaintiff to the defendant no.2 when he approached her in March, 2008 for friendly loan. Thus, how the DW­2, who was neither a party to the talks of availing loan nor present at the time of handing over the loan cheque, could say that the said money was not a loan rather brokerage? CS No.345/11 Monika Arora Vs. M/s. Adwiz Media & Ors.

Hence, his testimony on this point could also not be relied upon. The defendants, in order to prove defendant no.2 as broker with respect to Agreement to Sell dated 14.01.2006, have filed a certificate Ex.DW1/3 wherein it is written that Vishal Jaggi had served as broker for Jia Construction (Proprietary Concern of Amit Arora) & Monika Arora with regard to property bearing address L­92, Lajpat Nagar­II, New Delhi­110024 (reference agreement to sell dated 14/01/2006). But this document is not going to render any help to the defendants, firstly, because though it is purported to be issued by the Vendees Ms. Neeraj Kohli and Ms. Ankita Kohli, but it is not signed by them and secondly, they have not been examined to prove the document if issued at their instance.

13. The counsel for plaintiff has vehemently argued that the defendant no.2 had concocted the story of brokerage just to avoid the repayment of loan taken by him. He has submitted that it is highly improbable that without finalization/completion of deal, the plaintiff would pay the brokerage of ₹3,00,000/­ to the defendant no.2 when she herself had got only ₹6,00,000/­ as earnest money. He has further submitted that as a prevailing practice, the brokerage is generally fixed as 1% of the total consideration amount and the plea of defendant no.2 gets falsified on this account also as the alleged brokerage is in no manner proportionate to the CS No.345/11 Monika Arora Vs. M/s. Adwiz Media & Ors.

consideration amount of ₹1,02,00,000/­ (Rupees One Crore and Two Lacs only). I find force in his contention. The defendant no.2 has neither placed on record any documentary proof of his being engaged as broker by the plaintiff nor even otherwise stated about the terms & conditions of the alleged brokerage or the amount to be paid towards brokerage. As a general practice, the brokerage charges are paid when the deal gets completed. But in the present case, admittedly the deal was never got completed, rather a suit for Specific Performance was filed by the Vendees with respect to the said deal, which is still pending. It is not the case of the defendants that the brokerage was agreed to be paid even before the completion of the deal. Hence, it becomes difficult to digest that the brokerage was paid by the plaintiff to defendant no.2 before completion of the deal and that too, when the suit was pending against her with respect to the said deal. The defendants have also nowhere stated as to what was the fixed rate or percentage of brokerage or the time for making such payment. Even the counsel appearing from their side could also not answer these queries during the final arguments.

14. Thus, in view of the aforesaid analysis, it is clear that the defendants have failed to prove the plea of receipt of ₹3,00,000/­ towards brokerage charges whereas the plaintiff has duly CS No.345/11 Monika Arora Vs. M/s. Adwiz Media & Ors.

established that she had advanced a loan of ₹3,00,000/­ to the defendant no.2, which the latter had failed to repay. Thus, it is held that the plaintiff is entitled to recover the said amount of ₹3,00,000/­. Now, the question arises that which defendant is liable to pay the said amount. The case of the plaintiff is that she had extended loan of ₹3,00,000/­ to the defendant no.2. Thus, it is defendant no.2 alone who is liable to pay the loan. The defendant no.1 could not be held liable to repay the loan simply because the cheque was drawn in its name on the request of defendant no.2. The plaintiff had not granted any loan to the defendant no.1 as the friendly loan was granted by her to the defendant no.2 only. Since the partnership firm i.e. defendant no.1 is not liable to repay the said loan, so, its other partner i.e. defendant no.3, who otherwise had no liability, could also not be held liable merely because he is one of the partners of defendant no.1. The plaintiff/PW­1 has, otherwise also, deposed in her cross­examination that she is not concerned with defendant no.3 as only defendant no.2 had approached her for loan. Hence, it is held that the plaintiff is entitled to recover the loan amount of ₹3,00,000/­ (Rupees Three Lacs only) from the defendant no.2 only. The Issue No.1 is accordingly decided in favour of the plaintiff and against the defendant.

CS No.345/11 Monika Arora Vs. M/s. Adwiz Media & Ors.

Issue No.2 Whether the plaintiff is entitled to any interest? If so, at what rate?

15. The onus to prove this issue was upon the plaintiff. The plaintiff has claimed pre­suit, pendentelite and future interest @ 18% per annum. So far as the interest part is concerned, Sec.34 of CPC deals with the pendente­lite and future interest whereas the payment of pre­suit interest is governed by Sec.3 and 4 of Interest Act, 1978. As per Sec.3(1)(a) of Interest Act, if the proceedings relate to a debt payable by virtue of a written instrument at a certain time, then, the interest may be allowed from the date when the debt is payable. And as per Sec.3(1)(b) of Interest Act, if the proceedings do not relate to a debt payable by virtue of a written instrument at a certain time, then the Court may allow interest from the date mentioned in this regard in the written notice given by the person entitled. And debt has been defined in Sec.2(c) of Interest Act as any liability for an ascertained sum of money. In the present case, there is neither any written instrument nor any written notice as contemplated under Sec.3(1)(a)&(b) of Interest Act. Hence, plaintiff is not entitled to any pre­suit interest. However, this Court is of considered opinion that since the defendant no.2 has failed to repay the loan to the plaintiff and has thus deprived her of the use of her money, so interests of justice CS No.345/11 Monika Arora Vs. M/s. Adwiz Media & Ors.

demand that plaintiff should be compensated in terms of interest and that the interests of justice would sufficiently meet if the plaintiff is granted pendentelite interest @12% per annum and future interest @ 6% per annum till realization. Hence, this issue is accordingly decided in favour of the plaintiff and against the defendant.

Relief

16. The present suit is decreed in favour of the plaintiff and against the defendant no.2 for a sum of ₹3,00,000/­ (Rupees Three Lacs only) alongwith pendentelite interest @ 12% per annum and future interest @ 6% per annum till realization. Cost of the suit is also awarded in favour of the plaintiff.

17. Decree­sheet be prepared accordingly. File be consigned to Record Room after necessary compliance.

(Announced in open Court on 14.01.2016) (Navita Kumari Bagha) ADJ­01, South District, Saket Courts, New Delhi CS No.345/11 Monika Arora Vs. M/s. Adwiz Media & Ors.

CS­345/11 Monika Arora Vs. M/s. Adwiz Media & Ors.

14.01.2016

Present:         None.

Vide separate judgment, the present suit is decreed in favour of the plaintiff and against the defendant no.2 for a sum of ₹3,00,000/­ (Rupees Three Lacs only) alongwith pendentelite interest @ 12% per annum and future interest @ 6% per annum till realization. Cost of the suit is also awarded in favour of the plaintiff.

Decree­sheet be prepared accordingly. File be consigned to Record Room after necessary compliance.

(Navita Kumari Bagha) ADJ­01(South), Saket Courts 14.01.2016 CS No.345/11 Monika Arora Vs. M/s. Adwiz Media & Ors.