Delhi District Court
Mrs. Sonali Rastogi vs Saiya Holidays Pvt. Ltd on 5 July, 2016
IN THE COURT OF CIVIL JUDGE, SOUTH EAST DISTRICT,
SAKET COURTS COMPLEX, SAKET, NEW DELHI
Presiding Officer: Ms. Prabh Deep Kaur, DJS
Suit No.411/2015
Unique ID no.02406C0335062015
In the matter of :
Mrs. Sonali Rastogi, W/o Sh. Sumit Rastogi
R/o H. No.127, First Floor
Village Ghitorni, New Delhi30 .........Plaintiff.
vs
Saiya Holidays Pvt. Ltd.
Through It's Directors
Sandeep @ Siddharth Malkhania & Vipin Malkhania
at:A59, Gali no.2, Ganga Vihar, Delhi94
ALSO AT:
801, Meghdoot Bhawan
Nehru Place, New Delhi19 ......Defendant.
Date of institution of Suit : 16.10.2015
Date on which order was reserved : 02.06.2016
Date of pronouncement of the order : 05.07.2016
ORDER
1. Vide this Order, an application filed by defendant under Order 37 Rule 3 (5) CPC, seeking leave to defend the suit has been disposed of.
2. The plaintiff has filed the suit under Order 37 CPC for recovery of money with the following relief.
"to pass a decree for a sum of Rs.1,68,720/ along CS No.411/2015 Mrs. Sonali Rastogi vs Saiya Holidays Pvt. ltd. Page 1 of 7 with interest @ 18% per annum from the date of filing of the suit till its realization in favour of plaintiff and against the defendant;
"cost of the suit may also be allowed in favour of plaintiff and against the defendant."
3. Averments in plaint:
3.1. The defendant is a company duly registered under Companies Act and dealing in the business of tours and travelling through its directors. The plaintiff was appointed in the defendant company as senior tour manager vide offer letter dated 02.07.2012 and worked with defendant company till November 2012. The plaintiff was appointed in the defendant company for Rs.4,56,000/ per annum and such she was getting Rs.38,000/ per month for her employment from the defendant company. The defendant company did not pay the salary of the plaintiff for consecutive three months i.e. from September 2012 to November 2012.
3.2. Thereafter, on repeated requests of the plaintiff, defendant company through its director handed over three post dated cheques bearing no.000005, 000006 and 000007 all drawn on Kotak Mahindra Bank, Nehru Place, New Delhi for a sum of Rs.38,000/ each in respect of the salary pending of the plaintiff.
3.3. The plaintiff on assurances of director of the defendant company, has presented them for their encashment. However, despite thrice presentation of the cheques, the cheques returned unpaid with CS No.411/2015 Mrs. Sonali Rastogi vs Saiya Holidays Pvt. ltd. Page 2 of 7 the remarks "Payment stopped by drawer" vide returning memo dated 18.03.2013 and 30.03.2013 and 04.05.2013. The plaintiff conveyed the same facts to the defendant company. Then, the plaintiff issued a legal notice dated 27.05.2013 calling the defendant company to pay the outstanding amount within 15 days of receipt of notice. Despite service of legal notice, defendant company failed to pay the same.
Hence, the present suit.
4. Summons for judgment were served upon the defendant and defendant has filed application for leave to defend the suit on the ground that plaintiff was employee in the year 2011 and she had been released due to her unprofessional attitude and her late arrival in the office, in this regard, she was served with the official memo for which she was show caused to give her reply in writing regarding the same, which has not been replied by her till date. The complaint was also made with the police station against Mr. Satish Bhuyan and Gopal Singh Tomar, R/o WZ157, second floor, Shadipur, oppWest Patel Nagar, New Delhi for committing cheating, copyright violation, data theft, inducement, fraud, criminal breach of trust, and criminal conspiracy, punishable under Section 406, 418, 420, 120B IPC, and under Section 66 Information Technology Act and violation of Copyright Act. three cheques were issued against her settlement of salary for the month of September and October 2012 but by mutual understanding all the transaction had been taken place in cash as full CS No.411/2015 Mrs. Sonali Rastogi vs Saiya Holidays Pvt. ltd. Page 3 of 7 and final and cheques were never returned back but as she also hatched up a conspiracy with Mr. Satish Bhuyan and Gopal Singh Tomar who had stolen other documents along with these cheques.
The petition under Section 138 NI Act was initiated in 2013 which the Court had observed that two of those cheques were out of date and altered as mentioned by the bank in their return memo and claim for the same was rejected. The plaintiff while filing this petition did not attach those memos in which it was clearly mentioned that alteration has taken place and due to which these cheques were not honoured. The plaintiff after receiving her full and final settlement never returned back three respective cheques issued for the due payment and knowing the fact that she would not succeed and that this suit is barred by limitation period as the cheques were out of date she altered the date in those cheques. Defendant has a legible defences in this case so Court may allow leave to defend to the defendant.
5. Plaintiff has filed reply to the application of defendant on leave to defend the suit: The present application deserves dismissal solely on the ground that the defendant has miserably failed to put any documentary evidence on his part showing that the cheques was not issued by him rather it has been specifically admitted that the cheques were given by him only. The defendant while admitting that the cheque in question and the liability thereon has presented a CS No.411/2015 Mrs. Sonali Rastogi vs Saiya Holidays Pvt. ltd. Page 4 of 7 cooked and contradictory story in defence and plain reading of the same also shows that the defendant has admitted the liability over the cheques in question. The defendant has not refuted the relationship between the parties and rather admitted that he himself issued the cheques to the plaintiff towards her wages. The mails between the parties and it makes abundantly clear that the defendant's admits the mails, and on plain reading of the conversation of the mails it proves that the plaintiff is entitled for the amount in question. The defendant had duly received the legal notice but chose not to give any reply and now is making cooked and concocted story in the present application. The defendant has failed to place any receipt / vouchers etc. wherein he can show that the amount in question was ever tendered in cash contradictory to his stand taken in his affidavit.
6. Arguments heard. Record perused.
7. Admittedly, plaintiff was employee of defendant and and she left the job on 01.12.2012 and on 01.12.2012, in lieu of salary for three months i.e. from September 2012 to November 2012 @ Rs. 38,000/ per month, three post dated cheques were given to the plaintiff. Now, as per plaintiff, the cheques were dishonoured, hence the suit. On the other hand, as per defendant, the plaintiff was given the salary for month of September and October in cash but she has not returned the cheques and that is the reason two cheques were returned with the memo "out of date". Now, as per defendant, the salary for CS No.411/2015 Mrs. Sonali Rastogi vs Saiya Holidays Pvt. ltd. Page 5 of 7 month of September and October 2012 was given to the plaintiff in cash against the three cheques but defendant has neither mentioned the date nor the month when the said amount in cash was given to the plaintiff. Further, in para no.4 of the affidavit, the defendant is taking plea that "cheques were never returned back" (by the plaintiff) and in the next line defendant has taken plea "she (plaintiff) has hatched up a conspiracy with Mr. Satish Buyan and Gopal Singh Tomar, who had stolen other documents along with these cheques". Now the defendant has not clarified as to how the cheques given to the plaintiff may be stolen by Mr. Satish Buyan and Gopal Singh Tomar as alleged. Further, defendant has taken plea that plaintiff has settled the matter after taking salary for month of September and October 2012 but this plea seems improbable considering the facts and circumstances of the case as well as considering the email communication exchanged between parties. Further, as per defendant, the suit is barred by limitation as the cheques were out of date and therefore, plaintiff altered the date in cheques and thereby forged the cheques. Now, on one hand, the defendant has admitted that cheques were issued to the plaintiff and on the other hand, defendant is taking plea regarding alteration by the plaintiff. Clearly, the defendant has taken contradictory stand. Moreover, the defendant has not filed even a single document along with affidavit for leave to defend the suit to corroborate its plea.
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8. It is settled principle that under Section 118 (a) NI Act, there is presumption in favour of plaintiff that cheque has been issued in discharge of due liability and the initial burden lies upon the defendant to prove the nonexistence of consideration but in the present case defendant has even failed to show prima facie the absence of consideration.
9. In view of above discussion, it is clear that defendant has failed to raise even a single triable issue and the defence taken by the defendant is shame defence and merely on the basis of allegations without any supportive documents or specific averments as to time and place etc., defendant cannot be allowed to delay the matter or to resist the ascertain legal debt of plaintiff. Accordingly, the application of defendant for leave to defend is hereby dismissed as defendant has failed to raise any triable issue. Therefore, plaintiff is entitled to judgment forthwith under Order 37 Rule 3 (6) (a) CPC. The plaintiff is entitled to a decree of recovery of Rs.1,14,000/ along with cost. The plaintiff is also entitled to interest @ 8% per annum from 01.02.2013 till the realization of amount.
10. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
Pronounced in the open Court (Prabh Deep Kaur)
th
on this 05 day of July, 2016 Civil Judge, South East,
Saket Court, New Delhi.
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