Delhi District Court
M/S Amar Brothers vs Shiva Shanker Proprietor on 11 September, 2014
1
IN THE COURT OF SH. SUNIL RANA
ADDL. DISTRICT JUDGE II(N/W): ROHINI: DELHI
CS NO.902/13
Unique Code No. 02404C0217812012
M/s Amar Brothers
Fruit Commission Agents
Through its partner Sh. Nand Kishore Wadhwa
C496, New Sabzi Mandi, Azadpur,
Delhi - 33 .... Plaintiff
VERSUS
Shiva Shanker Proprietor
M/s Sri Ayyappa Fruit Mandy
Fruit Commission Agent
Office no.21, 'C' Block APMC MKT,
(Near Electronic City)
Hosur Road, Bangalore560100
2.M/s Sri Ayyappa Fruit Mandy
Fruit Commission Agent
Office no.21, 'C' Block APMC MKT,
(Near Electronic City)
Hosur Road, Bangalore560100 .... Defendants
Date of Institution : 22.08.2012.
Date of reserved for order : 20.08.2014
Date of Decision : 11.09.2014.
CS no. 902/13 page no. 1 of 10
2
EXPARTE JUDGMENT
Vide this order/judgment, I shall decide the suit for recovery of
Rs.19,99,000/ along with interest @ 18% p.a. filed by the plaintiff against
the defendants.
1.Brief facts as stated in the plaint are that plaintiff is a partnership firm registered Under the Indian Partnership Act and Sh. Nand Kishore Wadhwa is one of the partner of plaintiff firm and authorized to file the suit. It is stated that plaintiff deals in trading of fruits on commission basis and running its business under the name & style M/s Amar Brothers and defendants had been purchasing the goods from the plaintiff.
2. It is further stated that defendants have approached the plaintiff and placed order from time to time and goods were supplied to the defendants through transport carrier Jai Ambay Fruit Carrier, 173, Transport Center, New Sabzi Mandi, Azadpur, Delhi33. It is further stated that plaintiff had been maintaining the accounts during the ordinary course of business and a sum of Rs.24,52,789/ was outstanding on 30.12.2008 towards defendants in the account books of the plaintiff but parties have agreed to settle in lump sum amount of Rs.17,50,000/ for the discharge of liabilities CS no. 902/13 page no. 2 of 10 3 of Rs.24,52,789/.
3. It has been further stated that as per settlement, defendants had issued five post dated cheques all drawn on Bank of Baroda Singena Agrahara, Bangalore560099 and details of cheques are as under :
(i).Cheque bearing no.501728 dt.05.01.2009 amounting to Rs.2,50,000/
(ii).Cheque bearing no.501729 dt.15.01.2009 amounting to Rs.2,50,000/
(iii).Cheque bearing no.501730 dt.15.03.2009 amounting to Rs.5,00,000/
(iv).Cheque bearing no.501731 dt.15.07.2009 amounting to Rs.3,75,000/
(v).Cheque bearing no.501732 dt.15.10.2009 amounting to Rs.3,75,000/
4. It has been further stated that defendants have informed the plaintiff telephonically and requested not to deposit the cheque no.501728 dt.05.01.2009, for a sum of Rs.2,50,000/ and delivered bank draft no.158777 dt.14.01.2009 of Bank of Baroda for a sum of Rs.1,50,000/ and balance amount of Rs.1 lac was also given in cash to the plaintiff in lieu of said cheque no. 501728.
5. It has been further stated that defendants had informed the plaintiff not to deposit the remaining cheques on one pretext or the other and the plaintiff was permitted to deposit the remaining cheques some times in the first CS no. 902/13 page no. 3 of 10 4 week of January,2010 and the cheque no. 501731 amounting to Rs.3,75,000/ was deposited with Central Bank of India, New Subzi Mandi Azadpur, Branch Delhi got dishonored with remarks " funds insufficient"
vide return memo dt. 13.01.2010 and the complaint U/s 138 N.I.Act on the basis of said cheque no. 501731 was filed before the Court of Ld. M.M., Delhi.
6. It is further stated that cheque no. 501732 amounting to Rs.3,75,000/ was also deposited with their banker Central Bank of India, New Subzi Mandi Azadpur, Branch Delhi on 11.03.2010 and the said cheque was also got dishonored with remarks " funds insufficient" vide return memo dt. 15.03.2010.
7. It is further stated that cheque no. 520208 & 520209 amounting to Rs.3,75,000/ each were also deposited with their banker Central Bank of India, New Subzi Mandi Azadpur, Branch Delhi on 12.03.2010 and the said cheques were also got dishonored with remarks " funds insufficient"
vide return memo dt. 16.03.2010. It has been stated that a legal notice dt. 04.02.2010 & dt. 08.04.2010 in respect of the aforesaid dishonor cheques were issued and served upon the defendants but they have not paid the cheques amount and further failed to appear before the Court of Ld. M. M. Delhi and the proceedings U/s 82/83 of Cr.P.C. were initiated.
CS no. 902/13 page no. 4 of 10 5
8. It has been stated that the defendants have issued the cheques, which were got dishonored and the details are as follows: SL. No. Cheque No. Date Amount 1 501731 15.07.2009 3,75,000/ 2 501732 15.10.2009 3,75,000/ 3 520208 15.01.2010 3,75,000/ 4 520209 15.02.2010 3,75,000/
9. It has been stated that as per cheques drawn in favour of the plaintiff and statements of accounts maintained by plaintiff in the ordinary course of business, the defendants are liable to pay the amount of Rs. 15,00,000/ towards cheques and the interest amount of Rs. 6,30,000/ accrued thereon from 01.04.2010 up to 31.07.2012 totaling to Rs. 21,30,000/ . It is worthwhile to note here that the plaintiff has relinquished and reduced the interests amount from Rs.6,30,000/ to Rs, 4,99,000/ and filed the present suit only for a recovery of Rs. 19,99,000/(cheque amount of Rs. 15,00,000/ along with interest of Rs. 4,99,000/).
9. It has been prayed that defendants are liable to pay Rs.
19,99,000/ (including the cheques amount of Rs. 15,00,000/ and Rs. 4,99,000/ towards interest w.e.f dt. 01.04.2010 up to 31.07.2012) along CS no. 902/13 page no. 5 of 10 6 with pendentelite and future interest @ 18% p.a.
10. In the present case, summons were issued to the defendants but they could not be served by way of ordinary process and an application U/o 5 Rule 20 CPC was moved to serve the defendants by way of substituted service and said application was allowed by the Ld. Predecessor of this court vide order dated 15.02.2013 and plaintiff was directed to serve the defendants by way of publication in the local newspaper and accordingly the publication was done in the newspaper 'The Hindi Banglore' edition dt. 02.03.2013 for the appearance of defendants in the court but defendants had failed to appear in the court despite substituted service by way of publication and were proceeded exparte vide order dt. 27.05.2013 by the Ld. Predecessor of this court and matter was fixed for exparte evidence.
11. In order to prove its case, plaintiff has examined Sh. Nand Kishore Wadhwa partner of M/s. Amar Brothers as PW1 and Sh. Sunil Gupta, Ahlmad in the court of Ld. MM, Rohini courts, Delhi as PW2. Detailed testimonies of the witnesses shall be discussed in the later part of judgment.
12. I have heard the counsel for plaintiff and gone through the evidence as well as documents proved on record by the plaintiff.
13. PW1 has tendered his affidavit by way evidence Exhibited CS no. 902/13 page no. 6 of 10 7 PW1/A, which is identical on the line of averments made in the plaint and proved the certificate of Registration of Firm, which is exhibited PW1/1, copies of the bills 46 in numbers are Exhibited PW1/2 to Ex.PW1/47 (collectively), receipt of Jai Ambay Fruit Carrier, showing that goods were sent at the defendant's address are Exhibited PW1/48 to PW1/92 (collectively), certified copies of two complaints filed U/s. 138 N. I. Act alongwith documents by the plaintiff are Ex.PW1/93 & Ex.PW1/94(colly), copy of the ledger maintained by the plaintiff firm in the accounts books is exhibited PW1/96.
14. PW2 is a summoned witness and has brought the summoned record pertaining to two complaint bearing CC no.14330/01/10 & 14331/01/10, titled M/s. Amar Brothers Vs. M/s Sri Ayyappa Fruit Mandi and deposed that certified copies of complaints filed on record are Ex.PW1/93 & Ex.PW1/94 as per the record maintained in the court file.
15. I have gone through the testimonies of the PWs as well as various, documents proved on record. I find force in the argument of counsel for the plaintiff that case of plaintiff stands proved in view of the unrebutted & unchallenged testimonies of plaintiff's witnesses i.e PW1 and PW2.
16. The initial onus to prove its case is always on the plaintiffs and if it CS no. 902/13 page no. 7 of 10 8 discharges that onus and makes out a case which entitles them to a relief, the onus shifts to the defendants to prove those circumstances, if any, which would disentitle the plaintiff of the same. Plaintiff has discharged the initial onus by proving the documents on record by leading evidence to show that defendants are liable to pay cheques amount in discharge of its liability and the onus thereafter shifted upon the defendants. However, in my opinion, this onus of proof has not been discharged by the defendants in as much as since the defendants had neither appeared nor set up any defence and no oral or documentary evidence whatsoever has been brought on record by the defendants. This court is of the view that one thing is evidence led, and the other thing is the weight required to be attached to the same. It is well settled that matter is decided after weighing the respective evidence which is led by both the parties.
17. In view of the facts & circumstances of the case and evidence brought on record, which has remained unrebutted and unchallenged. It can be concluded that case of the plaintiff stands proved against the defendants. Accordingly, suit is decided in favour of the plaintiff and against the defendants. The plaintiff has filed a suit for recovery of cheque amount of Rs. 15,00,000/ alongwith amount of Rs.4,99,000/ (w.e.f. 01.04.2010 up to 31.07.2012) towards interests and pendentelite & future interest @ 18% CS no. 902/13 page no. 8 of 10 9 p. a.
18. It is worthwhile to note here that no evidence has been led by the plaintiff with regard to the claim of interest @ 18% on cheques amount of Rs. 15,00,000/. Hon'ble Supreme Court in the recent chain of judgments titled as "Rajendra Construction Co. Vs. Maharashtra Housing & Area Development Authority & Ors. 2005 (6) SCC 678, McDermott International Inc. Vs. Burn Standard Co. Ltd. and Others 2006(11) SCC 181, Rajasthan State Road Transport Corporation Vs. Indag Rubber Ltd. (2006) 7 SCC 700, and Krishna Bhagya Jala Nigam Ltd. Vs. G. Harischandra 2007 (2) SCC 720" has mandated that courts must reduce the high rate of interest on account of the consistent fall in the rates of interest in the changed economic scenario. Relying upon the above mentioned judgments, it can be easily concluded that interest claimed @ 18% p.a. by the plaintiff is on the higher side and in the absence of any evidence cannot be granted. Hence, plaintiff will be thus entitled to interest @ 9% p.a. on the cheques amount of Rs. 15,00,000/.
19. Hence, the present suit is hereby decreed in favour of the plaintiff and against the defendants for a sum of Rs. 15,00,000/ along with interest @ 9% p.a. from the filing of the suit till the realization of decreetal amount from the defendants as they are jointly and severally liable to pay to the CS no. 902/13 page no. 9 of 10 10 plaintiff. Cost of the suit is also awarded in favour of the plaintiff. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the Open Court (SUNIL RANA) On 11.09.2014 ADJII: ROHINI: DELHI CS no. 902/13 page no. 10 of 10