Delhi District Court
Sh. Rajbir Singh vs ) Corporate Transport India (P) Ltd on 18 January, 2008
IN THE COURT OF SH. M. P. SINGH, CIVIL JUDGE,
KARKARDOOMA COURTS, DELHI
Suit No. - 259/06
Sh. Rajbir Singh
Village Sadarpur Khandar
Gautam Budh Nagar,
NOIDA, Distt. Ghaziabad,
U. P. ........PLAINTIFF
Versus
1) Corporate Transport India (P) Ltd.
226-B, Mayur Vihar Phase -I, Delhi -91
2) Sh. Govind Singh Pawar,
Director,
Corporate Transport India (P) Ltd.
226-B, Mayur Vihar Phase - I, Delhi ..............DEFENDANTS
SUIT FOR RECOVERY OF MONEY
DATE OF INSTITUTION OF THE SUIT: 18/04/2001
DATE OF DECISION: 18/01/2008
JUDGMENT
1. This is a suit for recovery of sum of Rs. 35,520/- with pendente lite and future interest @ 24% per annum. The brief facts as per the version of the plaintiff are as follows: the plaintiff is owner of a number of trucks and is running the business of providing trucks on hire/rent basis. Defendant no. 1 is a private limited company, engaged in the business of transport and defendant no. 2 is one of its directors. The defendants approached the plaintiff for the purpose of hiring his trucks since they had taken a contract from NDMC at an agreed rate of Rs. 8 per KM. In lieu of the plaintiff providing the services of his trucks, the defendants issued a undated cheque in the month of April 1998 drawn on Punjab National Bank, Patpar Ganj Branch, Delhi for a sum of Rs. 95,770/- with the instructions that the plaintiff is at liberty to withdraw the amount within a day or two. The defendants also assured the plaintiff that there was sufficient enough balance to honour the cheque. When the plaintiff approached the defendants' bank, he was informed that in the bank account of the defendants, there was not enough balance to honour the cheque. The plaintiff then approached the defendants on 24.04.1998 and informed them about the same and impressed upon them to make up the payment. Thereupon the defendant no. 2 made part payment of Rs. 70,000/- in cash to the plaintiff and assured to pay up the balance amount of Rs. 25,770/- within a month and acknowledged the same on the cheque itself in his own handwriting. Despite several requests and reminders of the plaintiff, the defendants have avoided to pay up the balance amount on one pretext or the other. On the failure of the defendants to pay up the aforesaid amount, a legal notice was served upon the defendants on 08.09.2000 but the same was of no avail. Hence this suit.
2. Both the defendants contested the suit by filing a joint written statement dated 06.01.2005. At the very outset, it has been submitted that the plaintiff has set up false case and has suppressed material facts. It is further stated that the suit is bad for non-joinder of parties. It is stated that the defendant are engaged in the business of transport as well as of hiring of trucks for performing works which are taken from various Government departments and private contractors. It is stated that in the year 1997, the defendant no. 2 had taken a contract from NDMC. For performing his duties, the defendant no. 2 required some trucks and therefore, in that connection defendant no. 2 approached one Sh. V. K. Sharma and both of them entered into a contract with respect to the aforesaid purpose. As per the contract, Sh. V. K. Sharma provided 16 trucks to defendant no. 2 for performing his work with NDMC. It is stated that one truck was hired by Sh. V. K. Sharma from the plaintiff without informing the defendant no. 2. It is stated that Sh. V. K. Sharma had taken one blank cheque bearing no. 870777 drawn on Punjab National Bank as security in respect of the abovesaid contract. It is stated that the cheque did not contain the particulars of date, month, year and the amount but it was signed by the defendant no. 2. On 24.04.1998 Sh. V. K. Sharma telephonically informed the defendant no. 2 that he had sent a person accompanying the said blank cheque and also informed the defendant no. 2 to give Rs. 70,000/- to the said person and put his endorsement on the said blank cheque in respect of making payment and also instructed to cancel the said cheque after making the endorsement. It is stated that the Defendant no. 2 in good faith and considering the business relations with Sh. V. K. Sharma, made payment of Rs. 70,000/- and made an endorsement to that effect on the cheque and also cancelled the cheque. Therefore, it is stated that no amount is liable to be paid to the plaintiff. It has been alleged that the plaintiff has filed the present suit after forging the blank cheque. It has been denied that the defendant no. 2 ever approached the plaintiff for the purpose of hiring the trucks. It has also been denied that the plaintiff has provided any truck to the defendant no. 2. It is stated that the plaintiff never presented the aforesaid cheque for encashment. It has been specifically denied that the defendants had assured to pay to the plaintiff the balance amount. The defendants have therefore, prayed for dismissal of the suit on these grounds.
3. The plaintiff has refuted the counter allegations as contained in the written statement and has reiterated and re-affirmed his contentions as enshrined in the plaint by filing his replication dated 10.11.2005.
4. On the basis of pleadings of the parties, the following issues were framed on 05.02.2005:
1. Whether the suit of the plaintiff is bad for non-joinder of necessary parties?OPD
2. Whether the suit of the plaintiff is not maintainable?OPD
3. Whether the plaintiff is entitled to the decree of the suit amount?OPP
4. Whether the plaintiff is entitled for the interest pendente lite and future interest @ 24% per annum?OPP
5. Relief
5. The plaintiff in support of his case got himself examined as PW1. On behalf of the defendant, there were two witnesses. The defendant got himself examined as DW1. One Sh. Vinod Kumar Sharma was examined as DW2.
6. My findings on the aforesaid issues are asunder:
7. ISSUE NO. 1 : The onus to prove this issue was upon the defendants. From the perusal of the plaint, it appears that it is the stand of the defendants that Sh. V. K. Sharma was a necessary party to the present suit. By a large catena of judicial decisions it is well established that the test to determine whether or not one is a necessary party to the suit is to see whether an effective decree can be passed against the defendants in the absence of that party. That is, without whom no effective decree can be passed. In the case at hand, it is certainly not the case that an effective decree cannot be passed in the absence of Sh. V. K. Sharma. Effective decree can certainly be passed against the defendants even in the absence of Sh. V. K. Sharma. I, therefore, decide this issue against the defendants and in favour of the plaintiff.
8. ISSUE NO. 2 : The onus to prove this issue was upon the defendants. On this issue, it has not been specified as to under what provision of the law this suit of the plaintiff is not maintainable. It has nowhere been stated as to which provision of law hits the maintainability of the instant suit. It has not been pointed out as to which law of the land makes this simple suit for simple recovery not maintainable in this civil court. The defendants have also not led any evidence on this issue. I therefore, decide this issue against the defendants and in favour of the plaintiff.
9. ISSUES NO. 3 & 4 - The onus to prove these issues was upon the plaintiff. The defendants in their written statement have admitted that the cheque in question was issued by them. It has also been admitted that the amount of Rs. 70,000/- has been given in cash to the plaintiff and it was the defendant no. 2 who had put his endorsement to that effect on the cheque. During his cross-examination, the defendant no. 2 admitted that the cheque which is Ex. PW1/1 bears his signature. He has also admitted that the cheque bears his signature at point A and point B. That is, it was the defendant no. 2 who had issued the cheque under his signature and that endorsement on the top of the cheque was put by him. The defendant no. 2 admitted in his cross-examination that it was he who had written "paid Rs. 70,000/- to Rajbir Singh on 24.04.98". Thus, what is clear and undisputed that the cheque in question was issued by the defendant. It is also undisputed that the endorsement on the cheque "paid Rs. 70,000/- to Rajbir Singh 24.04.98" was made by the defendant no. 2. However, what is stated that the cheque was cancelled by him. From a bare perusal of the cheque in question it is apparent that the cheque does not bear at all any sign of cancellation. It is not pointed out as to how and in what manner and in whose presence the cheque was cancelled. There is no sign at all on the cheque which would go to show that the cheque was cancelled. It seems to only a bare and bald allegation that the cheque was cancelled. In the face of any evidence to this effect, this court cannot be swayed mere bare and bald allegations.
10.The defendants in their written statement took the stand that the cheque did not contain the particulars of date, month, year and the amount but it was signed by the defendant no. 2. It was further stated that on 24.04.1998 Sh. V. K. Sharma telephonically informed the defendant no. 2 that he had sent a person (purportedly the plaintiff) accompanying the said blank cheque and also informed the defendant no. 2 to give Rs. 70,000/- to the said person and put his endorsement on the said blank cheque in respect of making payment and also instructed to cancel the said cheque after making the endorsement. It is stated that the Defendant no. 2 in good faith and considering the business relations with Sh. V. K. Sharma, made payment of Rs. 70,000/- and made an endorsement to that effect on the cheque and also cancelled the cheque. That is, the blank cheque was given to the Sh. V. K. Sharma and Sh. V. K. Sharma asked the plaintiff to take the blank cheque to the defendant no. 2. The defendant no. 2 on the request of Sh. V. K. Sharma gave the plaintiff Rs. 70,000/- also cancelled the cheque. This stand of the defendants is hardly believable. If the amount was to be paid to Sh. V. K. Sharma then the defendant no. 2 ought to have mentioned his name on the cheque instead of the name of the plaintiff. Sh. V. K. Sharma stated in his cross-examination that he was informed by defendant no. 2 that Rajbeer has filed a case against him despite paying the amount. He further stated "defendant no. 2 was to pay to the plaintiff through me." Thus this clearly shows that the defendant no. 2 had a liability towards the plaintiff.
11.The stand of the defendants is that the trucks were hired form Sh. V.K. Sharma. It is stated by the defendants that the 16 trucks were obtained from Sh. V. K. Sharma pursuant to a contract. It is not disputed that there was never any written contract between the defendants and Sh. V. K. Sharma in this regard. This has indeed been admitted by Sh. V. K. Sharma in his cross-examination. The fact that there was no oral agreement between him and the defendants is also clear from the fact that neither the pleadings of the defendants nor the affidavits of DWs contain any mention of kind of oral contract with Sh. VK Sharma whatsoever. Sh. VK Sharma in his cross-examination has stated that except the defendants, he has not supplied trucks to anyone else. He does not have any trucks of his own but he hired from the market and then supplied the same to the defendants. It is stated by him that he does not have any office of his own. However, in his affidavit, Sh. VK Sharma has stated that he maintains his office. This completely contrary to his statement given during cross-examination. It is indeed very perplexing that the entire truck business is carried out without maintaining any office, merely on the basis of telephonic conversation; without maintaining any written records. In the written statement the defendants had stated that the Sh. V. K. Sharma had borrowed one truck from the plaintiff then supplied to them. This is completely contrary to the stand of the defendants in the written statement. Sh. V. K. Sharma mentioned in his affidavit that only one truck was hired from the plaintiff and not three trucks. Thus the deposition of Sh. VK Sharma is a shaky one and does not inspire confidence.
12.The defendant no. 2 in his cross-examination admitted that the Ex PW1/3 (registered slip) bears his address. He also admitted that PW1/4 (UPC) also bears his signature. He also admitted that PW1/2 (legal notice) bears his name and signature. Now, as per section 27 of the General Clauses Act, when a notice is sent by registered post, a presumption arises that the same has been served upon the addressee. In the case at hand the legal notice was sent on the address of the defendants as admitted by the defendant no. 2 in his cross- examination. Therefore, in terms of section 27 of the General Clauses Act a presumption arises in the case at hand. The defendants have failed to rebut this presumption that the notice was served upon them. Mere denial of legal notice is not a denial when the service of the notice stands proved. The defendants has not responded to the notice, therefore, an adverse presumption is liable to drawn against the defendants.
13.Thus on the basis of preponderance of probabilities the plaintiff has been successful in proving its case. I therefore, decide these issues in favour of the plaintiff. However, in my view, the decree in the instant case is liable to be passed against the defendant no. 1 only. The reason being that the contract was entered with the defendant no. 1. And the cheque that was issued was issued for and on behalf of the defendant no. 1. In law, a company is separate from the individuals that run the company. As per the principle of separate legal personality, subject to all just exceptions, for the acts of a company, an individual cannot be made liable.
14.Relief: In view of my findings given hereinabove, suit of the plaintiff stands decreed against the defendant no. 1 only. The defendant no. 1 is liable to pay to the plaintiff the suit amount of Rs. 35,520/- along with 8% per annum interest from the date of filing of the suit till its realisation. Cost of the suit is also awarded in favour of the plaintiff. Decree-sheet be prepared accordingly. File be consigned to the record room after due compliance.
ANNOUNCED IN THE OPEN COURT M.P. SINGH
ON 18th JANUARY, 2008 CIVIL JUDGE
KKD COURTS
DELHI