Delhi District Court
Sh. Aditya Bajaj vs Mukesh Kumar on 11 November, 2011
IN THE COURT OF HARJYOT SINGH BHALLA
CIVIL JUDGE-01 SOUTH DISTRICT: SAKET, NEW DELHI
Suit No. 608/10
Case ID No. 02403C0313792009
In The Matter of:
Sh. Aditya Bajaj
Proprietor of
M/s. Aditya Bajaj,
W-6, G.K.-I,
New Delhi-110048. .................Plaintiff
Versus
Mukesh Kumar
R/o H.No. 5,
Street No. 7,
Andrews Gunj,
New Delhi. ..............Defendant
SUIT FOR RECOVERY OF RS. 80,400/- (RUPEES EIGHTY
THOUSAND FOUR HUNDRED ONLY)
Date of Institution : 08.05.2009
Date of reserving the Order : 21.09.2011
Date of pronouncement : 11.11.2011
J U D G M E N T:
1. By this judgment, I shall dispose off the above suit for recovery of Rs. 80,400/- filed by the plaintiff.
Averments Culled Out from the Pleadings:
Plaintiff's case as per Plaint:
2. Plaintiff is engaged in the business of export of Chess sets under the name and style of Ms/ Aditya Bajaj having its office at W-6, G.K.-I, Aditya Bajaj Vs. Mukesh Page 1 of 12 Suit No. 608/10 New Delhi-110048 as a proprietor. In the month of April, 2006, the defendant had applied for the post of IT Assistant to the plaintiff and plaintiff appointed the defendant to the said post at monthly gross salary of Rs. 8000/- per month. In March, 2007, the defendant requested the plaintiff for a personal loan of Rs.1 Lakh on the assurance that the same shall be refunded in monthly installments of Rs.8000/-. The plaintiff advanced the said loan of Rs. 1 Lakh to the defendant on March, 2007 and a loan agreement was executed on 31.03.2007.
3. The defendant intentionally and deliberately failed to repay the abovesaid loan amount and left the job of plaintiff on 03.07.2007without information or resignation. The plaintiff suffered losses and damages because of this act of the defendant. The defendant further failed to repay the loan amount. The loan has not been paid despite repeated demands and requests. It is stated that amount of Rs. 60,000/- is still balance and the defendant is also liable to pay interest @24% per annum w.e.f. 03.07.2007. On 13.05.2008, the plaintiff got the defendant served with a legal notice through registered post / UPC as well as through courier. The notice was duly served on the defendant and yet the defendant failed to pay the amount demanded. Since the amount has been withheld without any justification, the plaintiff is also entitled to interest. On adding interest element, the total outstanding as on the date of filing of the suit comes to Rs.80,400/-. The same has been claimed in the suit.
Defendants' case as per Written Statement :
4. The case of the defendant is that the defendant was working with the plaintiff till first week of January, 2008 and not July, 2007 as alleged. It is stated that defendant had already refunded a sum of Rs.48,000/- by July, Aditya Bajaj Vs. Mukesh Page 2 of 12 Suit No. 608/10 2007. Rs.40,000/- has already been admitted by the plaintiff and a further sum of Rs.8000/- towards the salary of July was also paid back taking total amount paid to Rs.48,000/-. Plaintiff is further liable to pay the salary of the months of August to December 2007 (5 months) which comes out to Rs. 40,000/-.
5. It is stated that therefore a sum of Rs. 88,000/- has already been repaid to the plaintiff and the balance amount of Rs.12,000/- is admittedly due and payable to the plaintiff. It is stated that the plaintiff has not acted honestly and therefore, not entitled to any interest. Defendant further states that he was working in the firm M/s. Global Exports and not under any firm by the name and style of M/s. Aditya Bajaj.
Replication:
6. The plaintiff filed his replication, it has been reiterated that the defendant left his job on 03.07.2007. It has been denied that the defendant has not paid the salaries for the month August to December, 2007. It is further averred that the amount of Rs.8,000/- for the month of July, 2007 is already adjusted in the amount of Rs.40,000/- admitted as received in the plaint. It has been reiterated that the defendant intentionally and deliberately left his job with the plaintiff firm as he intended to cheat the plaintiff. It has been denied that the defendant worked under M/s. Global Exports and not under the name and style of M/s. Aditya Bajaj. It has been reiterated that the defendant worked with M/s. Aditya Bajaj.
Issues:
7. On the pleadings of the parties, the following issues were framed:-
1. Whether the plaintiff is entitled to a decree for recovery of Rs.80,400/- ? OPP Aditya Bajaj Vs. Mukesh Page 3 of 12 Suit No. 608/10
2. Whether the defendant is liable to pay only Rs. 12,000/- to the plaintiff ? OPD
3. Relief.
8. Both the parties have lead their respective evidence. Plaintiff entered the witness box whereas the defendant entered the witness box as a witness for himself and also produced one Mr. Rajesh Singh who used to work with M/s. Global Exports. The plaintiff exhibited the following documents:-
A) Loan agreement Ex.PW1/1.
B) Legal notice and PW1/2.
C) Postal receipts and AD Card Ex.PW1/3 to Ex.PW1/5.
9. The defendant exhibited the acknowledgment dated 03.12.2007 given by the plaintiff Ex.PW1/A. No other documents were exhibited by the parties. Parties have addressed oral arguments. My issue-wise findings are as under:-
Issue wise findings:
10. Issue no. 1: Whether the plaintiff is entitled to a decree for recovery of Rs.80,400/- ? Briefly, the case of the plaintiff was that the defendant was working in his proprietorship concern M/s. Aditya Bajaj up till 2007. He had taken loan of Rs.1 Lakh and repaid a sum of Rs.40,000/- only till the time he was in employment with the plaintiff. I shall now examine whether the plaintiff has been able to prove even this much of his case. The version of the defendant was that Rs.48000/- had been paid back to the plaintiff as the salary received for the month of July, 2007 was also repaid to the plaintiff. As per the plaintiff, the defendant had left the job on 3rd July, 2007 itself, therefore, there would be no occasion for plaintiff to pay salary for the month of July 2007 to the defendant. The plaintiff has no where stated as to Aditya Bajaj Vs. Mukesh Page 4 of 12 Suit No. 608/10 how the defendant had paid Rs.40,000/- to him. All that has been averred is that a sum of Rs.40,000/- had been received. The loan was given on 31.03.2007. The salary of the defendant was Rs.8000/- if the money was being returned only from salary then by no means would the defendant be able to pay Rs.40000/- if the repayment commenced from April, 2007. From April, 2007 to June, 2007, not more than Rs.24000/- could have been repaid. If the defendant left the job on 03.07.2007, there would be no salary for the month of July, 2007. However admission by the plaintiff in the replication more specifically in para no. E and G that Rs.8000/- towards salary for the month of July, 2007 had also been received by the plaintiff belies the case of the plaintiff that the defendant had left the job on 03.07.2007.
11. Since the defendant had admitted that he had received a sum of Rs.1,00,000/- but had pleaded that he was liable to pay Rs.12,000/- only to the plaintiff to satisfy the loan of Rs.1,00,000/-, the balance having been repaid in cash as well as by way of salary remaining unpaid, the defendant had led evidence first. In his evidence the defendant had categorically deposed that he was working with Global Exports and he was also asked to work for the other establishment controlled by the plaintiff functioning from the same premises. The defendant also relied upon a receipt dated 03.12.2007 Ex.DW1/A which records that the plaintiff had received a sum of "Rs.40,000/- cash in loan payment by his salary over a period of nine months". The defendant deposed that he was in employment with the plaintiff in January, 2008. The plaintiff had not paid salary for the period August to December, 2007 and the receipt Ex.DW1/A showed the presence of the defendant in the work place in the month of December, 2007. The relevant portion of cross examination of DW1 dated 01.02.2011, is also being quoted hereinbelow :
Aditya Bajaj Vs. Mukesh Page 5 of 12 Suit No. 608/10"I was working with the Aditya Bajaj from 2006......I left the services of plaintiff in the first week of January 2008. Plaintiff used to give salary by way of cheques. It is incorrect to suggest that I worked with plaintiff till 03.07.2007".
12. In his cross examination dated 26.05.2011, the plaintiff elicited the following answers from the defendant:
"Global exports used to pay me by a cheque. Cheque was in my name. I used to withdraw amount from the bank. Vol. if it was in my name I used to withdraw and if it was account payee I used to deposit in my account........ I do not remember when the account payee cheques were given to me by Global Exports. I took loan from Aditya Bajaj. I used to pay him by cash. It is wrong to suggest that I left my job in Global Exports in July 2007. I used to pay Rs. 8000/- as installment towards payment of my loan. Global Exports used to pay me Rs.8000/- as salary. The entire salary used to be withdrawn from the bank and paid to plaintiff. It is wrong to suggest that I left my job in Global Exports because I had to pay my entire salary to the plaintiff towards installment."
13. The defendant also produced one Mr. Ajay Singh as DW2. The DW2 filed his affidavit stating that he was working as Accountant in M/s. Global Exports W-6, GK-I and the defendant was also working as IT Assistant in M/s. Global Exports @Rs.8000/- per month up till first week of January, 2008. He was paid till July, 2007 and not thereafter. In his cross examination, the plaintiff elicited the following answers from the witness:
"I do not have knowledge that Mukesh had left the job of Global Exports in July, 2007....... I cannot say when did Mukesh leave his job."
14. Even though the plaintiff's case was that the defendant was Aditya Bajaj Vs. Mukesh Page 6 of 12 Suit No. 608/10 working with M/s. Aditya Bajaj and not with M/s. Global Exports no suggestion was put to either of the witnesses that the defendant was working with M/s. Aditya Bajaj and not M/s. Global Exports. Thus, the defendant was able to prove that he was working with M/s. Global Exports as averred by him in his written statement.
15. At this stage, it is pertinent to note that in order to appreciate the evidence of the parties the court has to consider the weight which can be attached to the testimony of any particular witness. The demeanor of witness, the consistencies and inconsistencies in the stand of the witness/party, as well as, any improvements made by a party to the litigation during the course of the trial, etc. are relevant factors which have to be kept in mind while appreciating evidence.
16. It is pertinent to note here that, in the WS the defendant had categorically stated that he was not working with M/s. Aditya Bajaj but with M/s. Global Exports. In the replication, the plaintiff denied the averment and reiterated that the defendant was working with M/s. Aditya Bajaj.
17. Faced with the unrebutted testimony of the defendant's witnesses to the effect that the defendant was working with M/s. Global Exports, the plaintiff took a U-turn and changed his own case at the time of recording of plaintiff's evidence, which in this case was being led after recording of defendant's evidence. In his affidavit by way of evidence, the plaintiff abandoned his stand and deposed that "at the time of filing of the suit the deponent was the proprietor of the firm M/s. Aditya Bajaj". It is further recorded in the affidavit that :
"that the defendant was working in firm M/s. Global Exports at the same address wherein the deponent had his place of work. At the relevant time, Smt. Anjali Bajaj was the Aditya Bajaj Vs. Mukesh Page 7 of 12 Suit No. 608/10 proprietor of the firm M/s. Global Exports. The deponent is son of Smt. Anjali Bajaj and was aware of the business and day to day proceedings of the Global Exports at the relevant point of time. The defendant stopped attending his job with the firm Global Exports since 03.07.2007.....".
18. However, in his cross examination dated 26.08.2011, the witness PW1 admitted and I quote :
"I have not given any cheque for the salary of July 2007 to the defendant on 27 July 2007 bearing no. 196938. Vol. Cheque was given by Global Export. It is correct that I received Rs.8000/- in cash for the month of July 2007. However I cannot say whether the amount was paid to me after encashing any cheque no. 196938. the attendance register of the defendant has not been filed in court. Q. Whether the defendant worked in your company up till January 2008 ?
Ans: I do not own any company. The defendant was working in my Mother's company/Firm Global Exports. He left in early July 2007. I was also an employee in the Firm."
19. On further cross examination, the witness gave the following answers:
"I do not know whether the defendant has been paid after August, 2007 till December, 2007. Vol. As per my knowledge, he had left the firm in July, 2007........... I cannot say whether the firm did not pay the salary due to global recession. Vol. I have no concern with the management of Global Exports."
20. Thus, the plaintiff abandoned his pleadings at the stage of recording of evidence without making any attempt to amend the same. The evidence was led by plaintiff as well to show that the defendant was working with M/s. Global Exports when the plaintiff had in his replication denied this Aditya Bajaj Vs. Mukesh Page 8 of 12 Suit No. 608/10 very averment made in the written statement and reiterated that the defendant was working with M/s. Aditya Bajaj and not M/s. Global Exports. It is a settled proposition of law that a party is bound to prove its case as alleged and covered by the issues framed. The principle is borne out from the maxim secundum allegate et probata. It is equally settled that a party should not be allowed to succeed on a case which it has failed to set up except by way of amendment. Reliance is placed upon the decision reported as A. Gangadhar Rao vs. G. Gangarao AIR 1968 AP 291.
21. Not only has the plaintiff failed to prove the case as pleaded but has palpably made false averments and refused to make amends even after the incorrectness / falsity of the averment was pointed out by the defendant. The plaintiff insisted that what the defendant was saying was incorrect despite being put to notice and only at the stage of evidence, the plaintiff demonstrates a complete volte face. It is a settled proposition of law that a party which intentionally misrepresents facts or conceals facts from the court is liable to be thrown out at the very threshhold and not entitled to any indulgence by the court. Reliance is placed upon S.P.C. Naidu Vs. Jagannath, AIR 1994 SC 853. This issue is liable to be decided against the plaintiff herein on this ground alone.
22. However, there is yet another aspect. The plaintiff has not even whispered about any meeting with the defendant in the month of December, 2007. There is no averment that any receipt / affidavit was given by the plaintiff to the defendant in the month of December, 2007. On one hand, the case of the plaintiff is that the defendant left the job with the plaintiff on 03.07.2007, on the other hand, the defendant is issued a receipt / handed a certificate by the plaintiff in the month of December, 2007. The said receipt Aditya Bajaj Vs. Mukesh Page 9 of 12 Suit No. 608/10 reads as follows :
".... till date he has refund me Rs.40,000 cash in loan payment by his salary over a period of nine months in relation to a contract agreement made between I Aditya Bajaj......... and Mr. Mukesh........ dated 31.03.2007."
23. This document has been produced in the court by the defendant on 21.08.2010 before the framing of issues. It is pertinent to note here that in his affidavit Ex.PW1/A in para no. 8 the plaintiff states that :
"on 03.12.2007, the defendant approached the deponent at his office and requested some time to make payments of the remaining amounts and asked the deponent to issue an acknowledgment of the amount already paid by the defendant to the deponent. That deponent in all fairness issued the acknowledgment dated 03.12.2007 whereby the deponent acknowledged the receipt of an amount of Rs. 40000 received from the defendant over a period of nine months out of the loan agreement period of 13 months."
24. In his cross examination, the plaintiff was confronted with this document and he admitted that :
"it is correct that meeting of December, 2007 has not been mentioned by me in the plaint. Vol. in the meantime he had requested for preparation of Ex.RW1/A which was signed on the next date."
25. The answer suggests that there were more than one meetings in the month of December, 2007. One in which the acknowledgment was requested for and the other in which the same was given. However, there is no mention of either of these meetings in the plaint. It is pertinent to note that the stamp paper on which this acknowledgment of 03.12.2007 is drawn was purchased on 29.11.2007 in the name of the plaintiff. The acknowledgment is signed on 03.12.2007 itself. It is highly improbable that request was made on Aditya Bajaj Vs. Mukesh Page 10 of 12 Suit No. 608/10 03.12.2007 for the acknowledgment when the stamp paper is itself dated 29.11.2007 and it is also improbable that the same was signed on the next date while it bears the date of execution as 03.12.2007 itself. It is also highly improbable that the plaintiff would issue such a receipt to a person who had absconded in July, 2007 without repaying the loan to the plaintiff. The acknowledgment suggests that sum of Rs.40000/- was paid by salary over a period of nine months whereas the case proved and admitted between the parties is that amount was repaid in cash after the defendant used to withdraw the amount from his account or after encashing cheque given.
26. The Evidence Act allows full effect to be given to circumstances or conditions of probability or improbability. While deciding an issue of fact the Judges are bound to call into aid their experience in life and can test the evidence placed before them on the basis of probability and improbability. Reliance is placed on the decision in Gopeshwar Dutt vs B. Dutt XVI CWN 265 and Chaturbhuj Pande vs Collector, Raigarh AIR 1965 SC 255.
27. The defendant has been able to demolish the case of the plaintiff on the yardstick of probability as well as by demolishing the credibility of the plaintiff as a witness.
28. The plaintiff has failed to prove his case as pleaded and accordingly, this issue is decided against the plaintiff.
29. Issue no. 2: Whether the defendant is liable to pay only Rs. 12,000/- to the plaintiff ? The case of the defendant is that Rs. 48,000/- was paid by way of cash and the remaining amount has to be adjusted from the five months salary due and payable to the defendant for the months August to December, 2007. A sum of Rs. 12,000/- admitted to be due was paid by the defendant to the plaintiff during the pendency of the present suit as per cross Aditya Bajaj Vs. Mukesh Page 11 of 12 Suit No. 608/10 examination dated 26.08.2011.
30. It is the case of the defendant that the salary for five months ought to have been adjusted against the outstanding loan and the plaintiff has failed to do so. In my view these pleadings constitute a set off, though not a legal set off but an equitable set off as it is the case of the defendant that the plaintiff had to make such adjustment but failed to do so and now the defendant wants to set off those amounts against the amount claimed by the plaintiff. Reliance is placed upon the decision in M/s. Durga Pharma Distributors & Anr. Vs. Geoffrey Manners & Co. Ltd. & Ors., AIR 2000 AP 242, more specifically para no. 12 and 13 at 247. In The Bank of Rajasthan Ltd. Vs. Sh. Pala Ram Gupta & Anr., AIR 2001 Delhi 58, more specifically at para no. 16 and 17, it was laid down that a plea for set off must be raised specifically and court fees ought to be paid thereupon and the plaintiff is expected to file a written statement thereto. Since court fees had not been paid and the set off was not specifically pleaded nor did the plaintiff file a written statement thereto, the claim need not be examined. Therefore, this issue cannot be decided in view of the decision in The Bank of Rajasthan (Supra).
31. The suit is liable to be dismissed as the plaintiff has failed to prove his case as pleaded. File be consigned to record room.
Dictated in the open Court Harjyot Singh Bhalla,
On 11.11.2011 Civil Judge-1, South District,
New Delhi.
Aditya Bajaj Vs. Mukesh Page 12 of 12
Suit No. 608/10