Delhi District Court
Priyash Bhargava vs Ram Khilari on 11 December, 2020
IN THE COURT OF SH HASAN ANZAR, ADDITIONAL
DISTRICT JUDGE, WEST DISTRICT, TIS HAZARI
COURTS
CS No. 611223/16
In the matter of ;
Priyash Bhargava
Proprietor of M/s Bhargava Trading Co.
600/22, Ratan Motor Market,
Hamilton Road, Kashmere Gate,
Delhi-110006
..........Plaintiff
Versus
Ram Khilari
Proprietor of M/s R K Engineering Works
G-240 A, Adhiyapak Nagar,
Near Sanatan Dharam Mandir,
Nangloi, Delhi-110041
.......Defendant
AND
CS No. 609030/16
Ram Khilari
Proprietor of M/s R K Engineering Works
G-246 A, Adhyapak Nagar,
1
C S No 611223/2016 Priyash Bhagava vs Ram Khilari
& C S No. 609030/2016 Ram Khilari vs Priyash Bhargava
Near Sanatan Dharam Mandir,
Nangloi, Delhi-110041
..........Defendant/Counter Claimant
Versus
Priyash Bhargava
Proprietor of M/s Bhargava Trading Co.
600/22, Rattan Motor Market,
Hamilton Road, Kashmere Gate,
Delhi-110006
..........Plaintiff/Respondent
Date of Institution:24.08.2012
Reserved on :27.10.2020
Date of Judgment:11.12.2020
Appearances :
1. Mr Nilesh Kumar, Ld. Counsel for the plaintiff.
2. Mr V K Jain, Ld. Counsel for the defendant/Counter
claimant.
JUDGMENT
2 C S No 611223/2016 Priyash Bhagava vs Ram Khilari & C S No. 609030/2016 Ram Khilari vs Priyash Bhargava
1. This common judgment shall decide CS No. 611223/16 (Old No. 355/2012 titled as Priyash Bhargava vs Ram Khiladi) & Counter claim i.e. CS No. 609030/16 (Old No.407/2012) titled as Ram Khilari Vs Priyash Bhargava.
Facts as per plaint
2. Plaintiff has filed the suit for recovery of Rs 3,85000/- along with pendente lite and future interest @ 18 % p.a .
3. As per the facts pleaded in the plaint are that plaintiff placed order for the supply of two plastic die with specific drawing from defendant for a total sum of Rs 2.5 Lakhs Payment was made through cheques viz; (1) Rs 25,000 vide Cheque No.779564 dated 5.1.2009, (2) Rs 35,000 vide Cheque No.779585 of PNB dated 4.2.2009, (3) Rs 25000, vide Cheque No. 219631 of HDFC Bank dated 6.3.2009 (4) Rs 20,000, vide Cheque No. 219647 dated 21.03.2009 (5) Rs 30,000 vide Cheque No.225828 dated 8.4.2009 (6). Rs 15000, vide Cheque No. 225902 dated 25.08.2009 (7). Rs 1 Lakh vide Cheque No. 225868 dated 14.05.2009.
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4. It is averred that despite receipt of Rs. 2,50,000/-, only one die set was supplied by the defendant to the plaintiff Vide invoice dated 25.11.2009 of Rs 1,56,000. Die Set supplied was of no use to the of the plaintiff since it was defective. It is further pleaded that second die set was never supplied to the plaintiff. It is also asserted that legal notice dated 8.8.2012 demanding recovery of the payment alongwith interest remained unanswered. Plaintiff has filed civil suit for recovery of Rs. 385000/- seeking to recover Rs. 250000/- as the principal amount and Rs. 135000/- as interest alongwith pendentelite and future interest @ 18 % p.a. Written Statement
5. Summons of the suit were issued to defendant. Defendant filed Written Statement along with the counter claim. As per the stand taken in the Written Statement, is that only one order for the die set was placed by the plaintiff, not the two-die set as asserted in the plaint. It is further averred that verbal order for manufacturing of one die set as per sample was given on 13.05.2009 against which the plaintiff made a payment of Rs One Lakh through Cheque bearing no. 2258681 and same was duly encashed. Remaining amount of Rs 1.5 Lakhs paid through different cheques i.e. Rs. 25000, Rs. 35000, Rs. 25000, Rs. 20000, Rs. 30000 & Rs. 15000/- were in respect of the job 4 C S No 611223/2016 Priyash Bhagava vs Ram Khilari & C S No. 609030/2016 Ram Khilari vs Priyash Bhargava work performed by the defendant. It is also stated that cheques were given on 3.01.2009, 03.02.2009, 05.03.2009, 20.03.2009, 06.04.2009 and 24.08.2009. It is further stated that amount mentioned in the cheque in respect of the job work performed by the defendant were duly transferred in the bank account of defendant on 06.01.2009, 05.02.2009, 07.03.2009, 23.03.2009, 09.04.2009 and 26.08.2009. Defendant further claimed that amount of Rs 56,000/- is due payable against the invoice dated 25.11.2009. It is also stated that plaintiff is required to prove his case. Objections were raised to the effect that plaintiff deliberately sent the legal notice at the wrong address to derive an unfair advantage. Defendant raised strong plea that notice in the present suit was served after more than two years, 8 months and 13 days from the supply of die set at an incorrect address. It is also asserted that material facts were concealed by the plaintiff while filing the present suit. Defendant on the basis of the aforesaid fact prayed for an interest @ 18 % on Rs. 56000/-for the period of 25.11.2009 to 12.10.2012 i.e..29036/- apart from principal balance of Rs 56000. Defendant prayed for a total recovery Rs 85036/- as on 12.10.2012 along with an interest @ 18% p.a. till the date of payment. Defendant prayed for the dismissal of the suit filed by the plaintiff.
5C S No 611223/2016 Priyash Bhagava vs Ram Khilari & C S No. 609030/2016 Ram Khilari vs Priyash Bhargava Counter Claim
6. In the counter claim, it was pleaded that defendant did some job-work/die repair work for the plaintiff on 02.12.2008 and 18.12.2008 for an amount of Rs. 12000/- and Rs. 13000/- respectively against which cheque bearing no. 779564 of Rs. 25000/- was given on 03.01.2009 by the plaintiff and same is duly reflected/encashed in the bank account of defendant on 06.01.2009.
7. It is further pleaded in the counter claim that Defendant also carried another job work on 16.01.2009 and 28.01.2009 for an amount of Rs. 15000/- and Rs. 20000/- respectively against which cheque bearing no. 779585 of Rs. 35000/- was given on 03.02.2009 by the plaintiff and same was duly encashed/reflected in the bank account of defendant on 05.02.2009.
8. Defendant further carried job work for the plaintiff on 11.02.2009, 19.02.2009 and 28.02.2009 for a value of Rs . 12000/-, Rs. 18000/- and Rs. 15000/- respectively against which cheque bearing no. 219631 of Rs. 25,000 given on 5.3.2009 by the plaintiff and same was enchased on 7.3.2009. Another cheque bearing no. 219647 of Rs 6 C S No 611223/2016 Priyash Bhagava vs Ram Khilari & C S No. 609030/2016 Ram Khilari vs Priyash Bhargava 20,000 was given on 20.3.2009 which was encashed/reflected in the bank account of the defendant.
9. Defendant also carried out job work for the plaintiff on 15.03.2009 and 02.04.2009 for the amount of Rs. 16000/- and Rs. 14000/- respectively against which cheque bearing no. 225828 of Rs. 30000/- was given on 06.04.2009 by the plaintiff and same was duly encashed/reflected in the bank account of defendant on 09.04.2009.
10. Defendant carried out another job work on 02.08.2009 for the value of Rs. 15000/- against which cheque bearing no. 225902 of Rs. 15000/- was given on 4.08.2009 by the plaintiff and same was duly encashed/reflected in the bank statement of the defendant on 26.08.2009.
11. It is further averred that on 13.05.2009, plaintiff gave a verbal order for manufacturing of plastic die set and made an advance payment of Rs. One Lac as part payment vide cheque no. 225868 and cheque was duly credited on 15.05.2009 in the bank account of the defendant. Die set was supplied on 25.11.2009. It is further averred that remaining balancing principal amount of Rs 56000/- was 7 C S No 611223/2016 Priyash Bhagava vs Ram Khilari & C S No. 609030/2016 Ram Khilari vs Priyash Bhargava not paid by the plaintiff and in this respect the counter claim was preferred for an amount of Rs 85036/- as on 12.10.2012 along with an interest @ 18 % p.a. till the date of payment.
12. Plaintiff filed reply/written statement to the counter claim denying the allegations made in the counter claim. It is averred that there is no evidence whatsoever to suggest that any repair/ job work was carried out by the defendant/ counter claimant from 02.12.2008 to 24.08.2009. Plaintiff reiterated his stand for amount of Rs. 2,50,000 was paid toward two die sets. Plaintiff took the stand no cause of action is disclosed in the counter claim. Plaintiff prayed for dismissal of the counter claim.
13. Replication to written statement filed by the plaintiff is reiteration of the stand taken in the plaint.
Issues framed in both the suits.
14. On the basis of pleadings of the parties, following issues were famed on 30.11.2013 in respect of the Suit No. 355/2012 (Suit) & 407/2012 (Counter Claim). :-
8C S No 611223/2016 Priyash Bhagava vs Ram Khilari & C S No. 609030/2016 Ram Khilari vs Priyash Bhargava Issue No.1:- Whether the plaintiff of Suit No. 355/12 Priyash Bhargava had placed an order for manufacturing of two plastic die sets with specific drawing to the defendant ? OPP Issue No.2:- Whether the plaintiff has paid the entire amount of Rs. 2,50,000/- towards the said two plastic dies as averred in para no. 4 of the plaint in CS No. 355/12? OPP Issue No.3:- Whether the defendant supplied only one plastic die set in violation of the orders placed by the plaintiff and that too which was defective, which defective plastic die set was also not repaired by the defendant despite repeated requests of the plaintiff ? OPP Issue No.4:- Whether the defendant is liable to refund the entire amount of Rs. 2,50,000/- to the plaintiff with interest @ 18 % per annum ? OPP Issue No.5:- Whether the cost of the one plastic die set was Rs. 1,50,000/- plus VAT @ 4% amounting to Rs.6000/- totaling Rs. 1,56,000/- which was supplied by the defendant to the plaintiff ? OPD Issue No.6:- Whether the defendant is entitled to recover Rs. 56000/- as the balance principal amount with interest w.e.f. 25.11.2009 till 12.10.2012 amounting to Rs. 85036/- as per tax and invoice dated 25.11.2009 ? OPD 9 C S No 611223/2016 Priyash Bhagava vs Ram Khilari & C S No. 609030/2016 Ram Khilari vs Priyash Bhargava Issue No.7:- Relief.
Issue No.8:- Whether the defendant is entitled to recover Rs. 56000/- as the balance principal amount with interest w.e.f. 25.11.2009 till 12.10.2012 amounting to Rs. 85036/- as per tax and invoice dated 25.11.2009 ? OPD Issue No.9:-Whether the plaintiff of CS NO. 355/12 had sent the notice of demand dated 08.08.2012 to the defendant as on erroneous address at G-240A, Adhyapak Nagar, Nangloi Delhi intentionally and if so, its effect ? OPD Issue No.10: - Whether the defendant thereto arrayed as plaintiff of CS No. 407/12 and counter claimant of CS No. 355/12 is entitled to the amount claimed to the counter claim? OPD Issue No. 11: Relief
15. Vide Order dated 30.11.2013 both suit and counter claim was consolidated. The common evidence was lead in the civil suit NO. 355/2012(61123/2016) and was also directed to be read for the counter claim.
Evidence of the parties.
16. Plaintiff examined himself. He relied upon four documents i.e. Ex PW-1/ Statement of account HDFC 10 C S No 611223/2016 Priyash Bhagava vs Ram Khilari & C S No. 609030/2016 Ram Khilari vs Priyash Bhargava Bank, Ex PW-1/2 i.e. Legal Notice, Ex PW-1/3 & Ex PW-1/4 i.e. Postal Receipts. Ex P-1 Invoice dated 25.11.2009.
17. Defendant/Counter Claim examined himself as DW-
1. Defendant relied upon Ex DW-1/1 Statement of Account of Syndicate Bank alongwith the certificate under Section 65 B of Indian Evidence Act. Ex DW-1/2 is Income Tax Returns for the assessment year 2010-2011 Ex DW-1/3 is the Income Tax Returns for the assessment year 2011- 2012.
18. I have heard the arguments advanced on behalf of the Ld. Counsel for the parties. I have also perused the written submissions filed on behalf of the defendant/Counter Claimant.
Discussion
19. My issues wise finding in respect of the issues are as under ;
Issue No.1:- Whether the plaintiff of Suit No. 355/12 Priyash Bhargava had placed an order for manufacturing of two plastic die sets with specific drawing to the defendant ? OPP Issue No.2:- Whether the plaintiff has paid the entire amount of Rs. 2,50,000/- towards the said two plastic dies 11 C S No 611223/2016 Priyash Bhagava vs Ram Khilari & C S No. 609030/2016 Ram Khilari vs Priyash Bhargava as averred in para no. 4 of the plaint in CS No. 355/12 ? OPP Issue No.5:- Whether the cost of the one plastic die set was Rs. 1,50,000/- plus VAT @ 4% amounting to Rs.6000/- totaling Rs. 1,56,000/- which was supplied by the defendant to the plaintiff ? OPD Issue No.6:- Whether the defendant is entitled to recover Rs. 56000/- as the balance principal amount with interest w.e.f. 25.11.2009 till 12.10.2012 amounting to Rs. 85036/- as per tax and invoice dated 25.11.2009 ? OPD Issue No.8:- Whether the defendant is entitled to recover Rs. 56000/- as the balance principal amount with interest w.e.f. 25.11.2009 till 12.10.2012 amounting to Rs. 85036/- as per tax and invoice dated 25.11.2009 ? OPD Issue No.10: - Whether the defendant thereto arrayed as plaintiff of CS No. 407/12 and counter claimant of CS No. 355/12 is entitled to the amount claimed to the counter claim? OPD
20. Issue No.1,2,5,6,8 &10 are interconnected with each other and is being taken up together for the purposes of discussion since it requires appreciation of common facts and material.
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21. Plaintiff/PW-1 deposed that Rs. 2.50 Lacs was paid through different cheques as pleaded in the plaint. Relevant to state that defendant admitted the receipt of amount through different cheques in his deposition as well as in the Written Statement. The amount paid by the plaintiff to defendant is also corroborated in the statement of account vide Ex.DW1/1. Objection of the defendant to the effect that Ex.PW1/1(Bank Statement) as relied by plaintiff cannot be read into evidence because of want of certificate under section 65-B of Indian Evidence Act even if accepted would not make much difference in view of the admission made by the defendant that Rs 2.5 Lakhs was paid by the plaintiff to the defendant.
22. As per the Defendant/DW-1, Except one Cheque bearing No. 225681 dated 15.05.2009 of Rs 1 Lakh, remaining cheques mentioned in the plaint were in respect of the job work performed by the defendant. Cheque bearing No. 225681 dated 15.05.2009 was an advance payment in respect of one Die Set supplied to the plaintiff vide Ex P-1. In order to appreciate the contention of the defendant, the central issue that requires to be appreciated whether the defendant had completed or performed job 13 C S No 611223/2016 Priyash Bhagava vs Ram Khilari & C S No. 609030/2016 Ram Khilari vs Priyash Bhargava work for the plaintiff as pleaded in the written Statement cum counter claim.
23. Reading of the plaint and also evidence by way of affidavit of plaintiff would establish that plaintiff made categoric assertion that payment of Rs 2.5 Lakhs was in respect of two plastic dies through cheques and no job work was assigned to the defendant.
24. When a party/person makes an assertion that a particular payment was made in respect of a specific work assigned to it, then onus would be on the upon the party receiving the payment to explain satisfactorily on which account and for what purpose the money was appropriated. Defendant's asseveration in respect of the job work and value of the work for the sake of convenience is shown in the following table;
Dates on which Job Work Value of
Performed work
02.12.2008 Rs. 12,000/-
18.12.2008 Rs. 13,000/-
16.01.2009 Rs. 15,000/-
14
C S No 611223/2016 Priyash Bhagava vs Ram Khilari & C S No. 609030/2016 Ram Khilari vs Priyash Bhargava 28.01.2009 Rs. 20,000/-
11.02.2009 Rs. 12,000/-
19.02.2009 Rs. 18,000/-
28.02.2009 Rs. 15,000/-
15.03.2009 Rs. 16,000/-
02.04.2009 Rs. 14,000/-
02.08.2009 Rs. 15,000/-
25. Pertinently no bills or invoice in respect of the value work performed or delivered is filed either in the written statement or counter claim. The plea of defendant is that various cheques except one was in respect of the job work performed by the defendant. On the crucial issue of the job work performed/ repair of die set, both the written statement as well as the counter claim are conspicuous by their silence in respect of job work performed or the repair of die set. It has merely used the word "job work/ die repairing work die" in a loose and general sense. Not a single witness was examined by defendant in respect of the nature of job performed by the defendant or the detailed nature of the job work undertaken by the defendant except for mentioning certain dates in the written statement and counter claim. The evidence of defendant is exiguous in 15 C S No 611223/2016 Priyash Bhagava vs Ram Khilari & C S No. 609030/2016 Ram Khilari vs Priyash Bhargava this regard. More importantly, on a specific question in the cross examination of DW-1/Defendant on 6.5.2019, the defendant stated as under
" usually when job work is completed the invoice is issued however there are instances when we do not issue the invoice. When the work is sourced from local dealers, we usually do not get challan. It is correct that when we received order from the plaintiff, we were having the sales tax number. In cases, after completing the job work, if we do not issue invoice, we used to tell orally that work has been completed and payments are received but receipts are not issued. I did not issue any invoice against the job work done for the plaintiff in the year 2009. I did not send any challan or builty against the job work done for the plaintiff in the year 2009. It is wrong to suggest that I did not do any job work for the plaintiff.
I did not file any document which show placement of job work by the plaintiff. "
The answer provided in the cross examination by defendant would demonstrate that case of the defendant with regard to performance of any job work or repair of die set is not substantiated by any documentary evidence. No movement register or internal register or job card with 16 C S No 611223/2016 Priyash Bhagava vs Ram Khilari & C S No. 609030/2016 Ram Khilari vs Priyash Bhargava regard to the work performed by the defendant was brought by the defendant during the trial. Hence, the bald claim of the defendant to the effect that payment was made by the plaintiff towards the job work is not established.
26. The contention raised on behalf of defendant is that record is not maintained in respect of the job work since in those days' sales tax are not paid in respect of the job work. The contention that no tax axes are paid on the job work is unbelievable. Even if one assumes for a moment that taxes are not paid, and if some kuccha transaction (undocumented transaction) is undertaken, then burden would be on the party(defendant) asserting such a transaction. Defendant except for emphasizing on certain dates in the written statement that various cheques given on a particular date against a job work does not help the defendant/ counter claimant since it is not established what job work was performed by the defendant.
Defendant/Counter claimant has even failed to justify on the basis of which record, dates were mentioned in the written statement. The attempt on the part of the defendant to show that admitted receipt of various cheque by corelating with the alleged job is not established by convincing evidence.
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27. The defendant has failed to prove that any job performed was performed it. However, the counter claim of the defendant is being considered independently. Defendant/Counter Claimant has relied upon income tax returns for the assessment years 2011- 2012 and 2010- 2011 vide Ex DW-1/2 and Ex DW-1/3 to substantiate the claim to recover Rs 56000/- against the unpaid due against Ex P-1.
28. Perusal of the Income Tax Assessment for the year 2010-2011 vide Ex DW1/3 is annexed with the balance sheet vide Ex DW-1/P-1 (mark was given pursuant to the question put to defendant by the counsel for the plaintiff). It is relevant to mention that in the account for the financial year of April 2009 to 31st March 2010, would show that the stand of defendant was to the effect that defendant has received an amount of Rs. One Lakh against the tax invoice vide Ex P-1 of Rs 156,000. Ex DW-1/P-1 also mentions bill were raised on 21.04.2009 and 18.05.2009 having the value of Rs 16500 and 12500, surprisingly this value does not match with value of any of the job work as mentioned in the written statement. The defence as well as counter claim of defendant/ counter claim is further shattered from the answer given in the cross examination 18 C S No 611223/2016 Priyash Bhagava vs Ram Khilari & C S No. 609030/2016 Ram Khilari vs Priyash Bhargava dated 21.09.09.2019 in respect of bill no. 109 and 127 as mentioned in Ex DW-1/P-1 in which defendant stated that he did not hand over the bills to the plaintiff. Therefore, no reliance or trust can be placed on the mere statement of account as annexed with Income Tax Return vide Ex DW- 1/3.
29. Perusal of the Income Tax Assessment for the year 2011-2012 in respect of the Financial Year 2010-2011 and in the annexed statement of account reflects the name of plaintiff as Sundry Debtor at Point X for Rs 56,000. Merely putting a liability on the person that he is liable to pay Rs 56000/- would not make him liable to be pay such amount unless transaction is established. (performance of previous job work is established). Section 21 of the Indian Evidence Act provides that an admission cannot be proved by or on behalf of the person who makes them.
30. The invoice Ex.P-1 does not mention the receipt of Rs. One Lac having been received from the plaintiff or some amount is due from the defendant. As mentioned earlier that bill no. 109 and 127 mentioned in Ex.DW1/P1 were never produced before the court. If the defendant was in habit of putting the bills in respect of job work, then it 19 C S No 611223/2016 Priyash Bhagava vs Ram Khilari & C S No. 609030/2016 Ram Khilari vs Priyash Bhargava would be plausible to expect that he would be keeping bill in respect of other transaction but in the present case, no bills etc. of the so-called job work was filed by the defendant.
31. No Statement of account for the year 2008-2009 was filed by the defendant indicating that receipt of payment of Rs 105,000(Since payment of Rs 1,45,000 was made in the financial year 2009-2010.) Although plea is taken that in the financial year 2008 and 2009 job work was performed was by the defendant. No bills, no statement of account and no ITR showing the receipt with respect of payment of job work done on 02.12.2008, 18.12.2008, 16.01.2009 and 28.01.2009, 11.02.2009, 19.02.2009 and 28.02.2009 were placed on record by defendant.
32. It appears that whole defence revolves around the fact to use Rs 2.5 Lakhs paid by the plaintiff through cheques and to use transaction for his own benefits by giving unverified dates for the job work.
33. As per the plaintiff, he placed an order for the manufacturing of two plastic dies with specific drawing to the defendant and whereas as per defendant he received an order in respect of one plastic die from the plaintiff. Perusal of the cross examination would reflect that plaintiff 20 C S No 611223/2016 Priyash Bhagava vs Ram Khilari & C S No. 609030/2016 Ram Khilari vs Priyash Bhargava was put to searching cross examination by the Ld. Counsel for the defendant. Plaintiff took a categorical stand in his cross examination that he placed the oral order with specific drawing. PW-1 denied all suggestions that order was made in respect of one of Die Set and furthermore he denied the suggestion that cheque of Rs 13.05.2009 was in respect of one Die Set. PW-1 has taken a consistent stand that he made the payment in respect of one set and he deposed that he deposed that he made payment in respect of the two set. The testimony of PW-1 appears to be truthful for the reason that admittedly payment of Rs. 2.5. Lakhs was made by the plaintiff and the defence of the defendant to the effect that remaining payment of Rs 1.5 Lakhs was in respect of the job work undertaken by the defendant was already rejected and there does not appear any justification or the reason for the plaintiff to make further payment to the defendant. Therefore, plaintiff made payment in respect of the two die sets as pleaded in the plaint. PW-1 has admitted receipt of one die set from the defendant vide Ex P-1 and never raised any dispute with regard to the value of die set mentioned in the die set.
34. In view of the abovementioned mentioned discussion, Issue No.1 and 2 are decided in favour of the plaintiff as against the defendant. Issue No. 5 is decided in favour of 21 C S No 611223/2016 Priyash Bhagava vs Ram Khilari & C S No. 609030/2016 Ram Khilari vs Priyash Bhargava the defendant as against the plaintiff. Issue No. 6, 8 and 10 are one and same and they are being decided against the defendant and in favour of the plaintiff.
35. Issue No.3:- Whether the defendant supplied only one plastic die set in violation of the orders placed by the plaintiff and that too which was defective, which defective plastic die set was also not repaired by the defendant despite repeated requests of the plaintiff ? OPP
36. Oral testimony of PW-1 and Ex P-1, establishes that only one die set was supplied to the plaintiff although the plaintiff has placed order in respect of the two dies. However, the assertion of PW-1 to the effect that defective die was provided and same was not repaired despite repeated request is not established. Neither in the plaint nor in his evidence, PW-1 has provided the description in respect of the defects noted in the die set and there is absolutely no evidence to establish that there was any shortcoming in respect of the die set supplied vide Ex P-1. Plaintiff failed to prove that there is any defect in the die supplied by the defendant to the plaintiff vide Ex P-1 Therefore, issue No.3 is decided in favour of the defendant as against the plaintiff.
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37. Issue No.9:- Whether the plaintiff of CS NO. 355/12 had sent the notice of demand dated 08.08.2012 to the defendant as on erroneous address at G-240A, Adhyapak Nagar, Nangloi Delhi intentionally and if so, its effect ? OPD
38. Strong objection was taken on behalf of the defendant demand notice was deliberately sent at an incorrect address by the plaintiff intentionally on the premise that plaintiff would claim non reply of the legal notice (vide Ex PW-1/2) as the ground in the suit to assert his claim in the suit and further to claim high interest at @ 18 percent annum on the basis of the legal notice.
39. Undeniably, legal notice Ex PW-1/2 and postal receipt Ex PW-1/3 and Ex PW-1/4 mentions incorrect address of defendant as " G-240A, Adhyapak Nagar, Nangloi, New Delhi whereas the correct should have been "G-246 A , Adhyapak Nagar, Nangloi, New Delhi." However, it appears to be the typographical error on the part of the counsel for the plaintiff and same is evident from the cross examination of the plaintiff that he disclosed the correct address of the defendant. The error is in respect of stating 23 C S No 611223/2016 Priyash Bhagava vs Ram Khilari & C S No. 609030/2016 Ram Khilari vs Priyash Bhargava the correct digit in the legal notice whereas the other part of the address is substantially same and same cannot be intentional, more so in a situation when the legal notice was sent by the counsel for the plaintiff. The second contention of the counsel for the defendant that wrong address would provide benefit to the plaintiff as plaintiff would claim interest from the date of legal notice. The contention in reference to the present case would not make much impact as there was only a gap of one month in dispatching the legal notice and filing of the present case. The only effect is that while considering the present case, the legal notice Ex PW-1/2 is to be excluded from the consideration and furthermore the plaintiff would not be entitled to any benefit for service of legal notice Thus, issue is decided accordingly against the defendant and in favour of the plaintiff.
40. Issue No.4:- Whether the defendant is liable to refund the entire amount of Rs. 2,50,000/- to the plaintiff with interest @ 18 % per annum ? OPP
34. In view of the detailed discussion as made in issues 1,2,5,6,8 and 10, it is established that plaintiff made a payment of Rs 2.5 Lakhs to the defendant. Plaintiff accepted the supply of one die from the defendant vide Ex P-1 and never disputed the price of 156,000 as raised by 24 C S No 611223/2016 Priyash Bhagava vs Ram Khilari & C S No. 609030/2016 Ram Khilari vs Priyash Bhargava the defendant in tax/invoice memo at any stage and defence of the defendant to the effect that remaining payment of Rs 1.5 Lakhs was towards the job work was rejected. It is also established that one die set supplied vide Ex P-1 is not defective. Meaning thereby that plaintiff would entitle to Rs.250,000 minus Rs 1, 56,000 i.e., Rs 94000/- from the defendant. Therefore, this issue is decided accordingly in favour of the plaintiff against the defendant to the extent that the plaintiff would be entitled Rs 94,000 from the defendant. Considering the fact that rate of interest has considerably lower down in the recent year, it would be appropriate that interest @ 6 percent per annum be awarded to the plaintiff from the date of the filing of the suit till the date of realization.
Relief (Issue No.7 and 11)
41. In view of the abovementioned discussion, the civil suit bearing No. 611223/16 filed by the plaintiff is decreed. It is held that plaintiff is entitled to recover Rs 94,000/- from the defendant/Counter Claimant alongwith an interest @ 6 percent per annum from the date of the filing of the suit till the date of realization alongwith the proportionate cost . Decree Sheet be prepared.
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42. In view of the abovementioned discussion, the civil suit bearing No.609030/16 filed by the Defendant/Counter Claim is dismissed without cost. Decree Sheet be prepared.
File be consigned to record room after due compliance.
Digitally signedHASAN byANZAR HASAN Announced through Video Conferencing ANZAR Date: 2020.12.11 15:54:25 +05'30' On 11.12.2020 (HASAN ANZAR) ADJ-06, WEST DISTRICT THC/DELHI 26 C S No 611223/2016 Priyash Bhagava vs Ram Khilari & C S No. 609030/2016 Ram Khilari vs Priyash Bhargava