Delhi District Court
Sh. Mohd. Aleem vs M/S. Earth Sellers Hitech Home Ltd on 1 August, 2014
IN THE COURT OF SH SUNIL K. AGGARWAL: ADDL.
DISTRICT JUDGE (CENTRAL) 10: DELHI
Suit No. 159/13
1.Sh. Mohd. Aleem S/o Mohd. Rasheed
2. Mrs. Zaman Ara, W/o Sh. Mohd. Aleem, Both R/o House no. 2573, Gali Devi Das, Sarak Prem Narain, Churi Walan, Delhi 110006. ....Plaintiffs VERSUS
1. M/s. Earth Sellers Hitech Home Ltd.
939, 9th Floor, Ijmima Complex, Mindspace, Behind Infinity Mall, New Link Road, Malad (W), Mumbai - 400064.
2. Shri Ravi Khanna Prop. of M/s Earth Sellers 939, 9th Floor, Ijmima Complex, Mindspace, Behind Infinity Mall, New Link Road, Malad (W), Mumbai - 400064. ....Defendants Plaint presented on 06.05.2013 E XP A R T E J U D G M E N T:
1. This suit for recovery of Rs. 3,74,324/ with interest at the Suit no. 159 of 2013 Page no. 1 of 7 rate of 12% per annum has been filed by the plaintiffs who were related as husband and wife. It is stated that defendant no. l is engaged in the business of real estate and defendant no. 2 is associated with it and is responsible for its day to day business. A plot bearing no. 303 in the 'PALMSERENE' was booked by plaintiff no. 1 in the name of plaintiff no. 2 with defendant no. 1 by paying an amount of Rs. 2,98,254/ through cheques. With the passage of time, the booking was cancelled by the plaintiffs and defendant no. 1 was requested to refund the amount. In pursuance thereof defendant no. 1 sent six post dated monthly cheques bearing dates from 30.10.2010 to 30.03.2011 bearing signatures of defendant no. 2 as authorized signatory of defendant no. 1 for Rs. 54,680/ each drawn in favour of plaintiff no. 2, alongwith letter dated 08.05.2010. The defendant no. 1 has been addressing all the correspondence to plaintiff no. 1. Subsequently, these cheques were replaced by other six cheques bearing date from 30.12.2010 to 30.05.2011 for Rs. 54,680/ each drawn in the name of plaintiff no. 2 were sent by the defendants in replacement of earlier cheques. All these cheques were signed by defendant no. 2. The plaintiffs had returned the earlier six cheques to the defendants in compliance of the direction.
2. Out of the above cheques, plaintiffs deposited cheque dated 30.12.2010 and 30.03.2011 for encashment in the account of plaintiff no. 2 but they were dishonored. Other cheques were not presented on the request of defendants as they had promised to pay a lumpsum amount in lieu thereof. On being pointed out, defendant no.
Suit no. 159 of 2013 Page no. 2 of 7 2 issued two fresh cheques against the dishonored cheques, one of which was honored while the other could not be presented as per the requests of defendant no. 2. While the plaintiffs believed the defendants in good faith, later are found to have played tactics so that the claim of plaintiffs may become barred by time. The defendants have postponed the payment of due amount to the plaintiff on one or the other pretexts. They failed to send reply or comply with the demand of plaintiffs vide legal notice dated 03.04.2013. The outstanding principal amount of Rs. 2,73,400/ is entitled to interest at the rate of 12% per annum from the defendants w.e.f. May, 2010 and a sum of Rs. 98,424/ had accumulated on this account till the date of filing of the suit. A sum of Rs. 2,500/ by way of cost of notice have also been claimed in the suit.
3. The defendants both existing at the same address, initially could not be served in ordinary manner as their office/premises was found locked. The processes sent through Speed Post also returned undelivered with remarks 'unclaimedintimation pasted'. On the subsequent dates while the ordinary process returned with remarks that no responsible person to receive the process on behalf of the defendants could be found at the given address, the process sent through Speed Post was found to have been delivered at the address of the defendant on 21.09.2013. The defendants however did not turn up nor submitted defence within statutory period under Order VIII Rule 1 CPC hence they were proceeded exparte on 12.11.2013.
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4. An application for correction/modification in the description of defendant no. 2 was filed by the plaintiff under Order VI Rule 17 CPC. It was allowed on 30.04.2014. The summons were again sent to defendant no. 2 with his new description but the Speed Post returned with remarks 'unclaimedintimation pasted'. In the light of precedent laid in 'State of M.P. Vs. Hira Lal, 1996 I AD(SC) 874' & 'M/s Bhavani Auto Distributors Vs. K. Murlidharan, 2008 (NOC) 139 (Gujarat)' the defendant no. 2 was deemed to have been duly served on or about 16.05.2014 and held exparte on 01.07.2014 on nonappearance.
5. Plaintiffs have examined only plaintiff no. 1 in exparte evidence who has generally stated his case and proved letter of defendant no. 1 regarding shifting from previous address to the present address Ex. PW 1/1, receipt dated 19.07.2008 Ex. PW 1/2, Copy of letter dated 08.05.2010 Ex. PW 1/3, Copies of six cheques of which originals were annexed to the said letter Ex. PW 1/4 to Ex. PW 1/9, six cheques issued by defendant no. 2 and two bank memos Ex. PW 1/10 to Ex. PW 1/18, legal notice Ex. PW 1/19, postal receipts Ex. PW 1/20 & Ex. PW 1/21, tracking reports generated from India Post website Ex. PW 1/22 and Ex. PW 1/23. The plaintiffs had opted for not examining any other witness.
6. I have heard Sh. Megh Nath Jha, Adv. Ld. counsel for the plaintiffs and carefully perused the record. All the cheques were Suit no. 159 of 2013 Page no. 4 of 7 issued by the defendants in the name of plaintiff no. 2 in discharge of their liability under the payment receipt Ex. PW 1/2 from her through her husband. Plaintiff no. 1 does not proclaimed his own interest either in the booking of plot with the defendant no. 1 or in the suit amount. He himself has confined his role to the person to whom the defendants were addressing their correspondence. It has not been shown that the amount being claimed from the defendants had originally emanated from plaintiff no. 1. Plaintiff no. 1 therefore has no personal interest in the matter. His impleadment in the suit was not really necessary for its effective disposal. He has been arrayed only to straighten the facts as the defendants were conspicuously addressing their letters in respect of the booking of plaintiff no. 2, to him.
7. While the plot was booked by plaintiff no. 2 with defendant no. 1 and it had refunded the booking amount to her vide cheques Ex. PW 1/4 to Ex. PW 1/9 forwarded through letter Ex. PW 1/3, defendant no. 2 somehow came to own the liability by issuing subsequent cheques Ex. PW 1/10 to Ex. PW 1/15 and Ex. PW 1/17. Both the defendants are thus jointly and severally liable in this case.
8. Although, the booking amount was deposited by plaintiff no. 2 on or about 19.07.2008 and the suit was filed in May, 2013 yet the repeated issuance of cheques by the defendants towards refund of booking amount reflect their acknowledgment of liability. A fresh period of limitation had commenced from the validity period of cheques Ex. PW 1/4 to Ex. PW 1/9 and again from the validity period Suit no. 159 of 2013 Page no. 5 of 7 of cheques Ex. PW 1/10 to Ex. PW 1/15 and Ex. PW 1/17. The defendants remained silent and noncommittal in making payment to plaintiff no. 2 despite receipt of legal notice Ex. PW 1/19 in the first week of April, 2013. Such conduct of defendants is a relevant factor to be considered against them as has been held in 'Atma Ram Properties Vs. Air India, 1997 V AD (Delhi) 662'. By abstaining from court proceedings of which the defendants are taken to be conscious of consequences, they have lent credibility to the case of plaintiffs.
9. The plaintiffs on their part did not disclose the date of cancellation of booking of the plot. The statement of account reflecting the outstanding amount has also not been prepared and filed in the case. The date of encashment of one of the cheques for Rs. 54,680/ has been withheld. Apparently, the total amount of six cheques i.e. Rs. 3,28,080/ included the component of interest/compensation over and above the booking amount. On adjustment of one of the encashed cheque, sum of Rs. 2,73,400/ remained outstanding on or about 01.01.2011. The plaintiff is legitimately entitled to interest at a reasonable rate on this amount from such said date. It is well settled principle of law that interest is not penalty but normal credence on the capital. The defendants are bound to keep the plaintiff reimbursed with an amount not only equivalent to the money invested by her free from inflation but also for deprivation of the opportunity of multiplying it. Since the defendants are utilizing the money of plaintiffs for their commercial Suit no. 159 of 2013 Page no. 6 of 7 venture, grant of interest at the rate of 12% per annum seems equitable in the background of prevalent rates for commercial facilities in banks.
10. In view of above, plaintiff no. 1 is dropped from the array of the parties. The suit is decreed in favour of plaintiff no. 2 and against defendants jointly and severally in the sum of Rs. 2,73,400/ with interest at the rate of 12% per annum from 01.01.2011 till penultimate day of filing of the suit. She shall further be entitled to interest on the cumulative amount at the same rate from the date of filing of the suit till realization and costs.
Decree sheet be accordingly prepared. File be consigned to Record Room.
Announced in the open court (Sunil K. Aggarwal) on 1st August, 2014 Addl. District Judge (Central)10 Delhi.
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