Delhi District Court
Smt. Sunil Kumari & Ors vs . M/S Rohan Promoters Pvt. Ltd. on 28 February, 2018
IN THE COURT OF ANIL ANTIL,
ADDITIONAL DISTRICT JUDGE 05 SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI.
CS No. 10401/16
Smt. Sunil Kumari & Ors Vs. M/s Rohan Promoters Pvt. Ltd.
1.Smt. Sunil Kumari Widow of Late Sh. Rajender Kumar, ..........Plaintiff no.1
2. Kumri Radha Parashar, D/o Late Sh. Rajender Kumar .......Plaintiff no. 2
3. Kumari Nidhi Parashar, D/o Late Sh. Rajender Kumar ..........Plaintiff no.3
4. Kumari Pridhi Parashar (Minor) D/o Late Sh. Rajender Kumar Through her mother/ Natural Guardian Smt. Sunil Kumari, .......Plaintiff no. 4 All Resident of 1/3288A, Gali No.2, Ram Nagar Extension, Mandoli Road, Shahdara, Delhi110032 Versus
1. M/s Rohan Promoters Pvt. Ltd.
Through its Managing / Director/ Principal Officer, Regd Office:31, Jangpura Road, Bhogal, New Delhi110014 ...........Defendants Date of Institution of suit : 18.05.2016 Date reserved for orders : 09.02.2018 CS No. 10401/16 Smt. Sunil Kumari & Ors Vs. M/s Rohan Promoters Pvt. Ltd. Page no. 1 of 17 Date of Judgment : 28.02.2018.
SUIT DECREED JUDGMENT
1. The present suit for recovery of a sum of Rs. 24,81,875/ (Rupees Twenty Four Lakh Eighty One Thousand Eight Hundred Seventy Five Only) has been filed by the plaintiff against the defendant, along with pendentelite and future Interest at the rate of 18% P.A.
2. Plaintiff's version as per averments in the plaint : 2.1 Succinctly stated: that the plaintiff are the LR's of Sh. Rajender Kumar, who expired on 23.01.2015. Defendant had taken a loan from late Sh. Rajender Kumar to the tune of Rs. 29,05,000/. Payment was made vide:
(i) cheque no. 286483 dated 29.08.2012 for Rs. 4,50,000/,
(ii) cheque no. 286485 dated 07.09.2012 for Rs. 10,00,000/ and,
(iii) Ch. No. 286484 dated 24.09.2012 for Rs. 14,55,000/ , all drawn on United Bank of India, Branch Cannaught Circus, New Delhi.
2.2 That defendant has repaid a sum of Rs. 11,00,000/ to Sh Rajinder Kumar, vide bank transfer of Rs. 3,00,000/ on 21.01.2013, and Rs. 70,0000/ on 08.03.2013, in united Bank of India, where defendant also had an account, and lastly Rs. 1,00,000/ on 06.02.2014 through NEFT in Coporation Bank Account of late Sh. Rajender Kumar. An outstanding Balance of Rs. 18,05,000/ is yet to be paid by the defendants.
2.3 That being legal heirs of Late Sh. Rajender Kumar, plaintiff are CS No. 10401/16 Smt. Sunil Kumari & Ors Vs. M/s Rohan Promoters Pvt. Ltd. Page no. 2 of 17 entitled to recover the said loan amount advanced to the defendant which has since accumulated to the tune of Rs. 24,81,875/, i.e. principal amount of Rs. 18,05,000/ with interest i.e. Rs. 6,67,875/ at the rate of 18% PA with effect of from 01.04.2014 to 30.04.2016.
2.4 That the plaintiffs have been repeatedly approaching defendant, personally as well as telephonically, for payment of balance amount, but, defendant on one pretext or the other kept promising and / or assuring to make the payment; the request of the plaintiffs went in vain and the same did not yield any fruitful result. Defendant has failed to make good the balance amount.
2.5 That thereafter plaintiffs sent a legal notice dated 28.11.2015 through its counsel to the defendants through speed post thereby demanding the due amount. The notice was duly served on the defendant.
2.6 That despite receipt of legal notice, defendant has neither has made the payment, nor gave any reply to the same. Hence, the present suit has been filed thereafter by the plaintiffs to recover the outstanding loan amount together with interest thereon.
2.7 Summons of the suit was issued to the defendant. Defendant was duly served and WS was filed on dated 21.07.2016.
3. WRITTEN STATEMENT/ DEFENCE OF THE DEFENDANT 3.1 In reply to the present suit, WS was filed on behalf of defendants. It is stated that plaintiffs have no locusstandi to file the present suit since they have not obtained any Succession Certificate or Survivorship Certificate from the competent court/ authority, and are therefore, not CS No. 10401/16 Smt. Sunil Kumari & Ors Vs. M/s Rohan Promoters Pvt. Ltd. Page no. 3 of 17 competent to represent the estate of late Sh. Rajinder Kumar; the present suit is not maintainable.
3.2 That the plaintiffs cannot take benefit of the alleged payment of Rs. 1,00,000/ through NEFT in the bank account of Sh. Rajinder Kumar as there exists no record available with the defendant by which the said payment can be said to have been made to Sh. Rajinder Kumar against the alleged loan. Therefore, the suit of the plaintiff barred by limitation.
3.3 The plaintiff no. 4 Kumari Pridhi Parashar is a minor and plaintiff have not moved any application for appointment of Guardian Ad Litem for the that therefore the suit is not maintainable and liable to be dismissed.
3.4 That the suit is bad for nonjoinder of necessary parties. Sh. Sunil Gupta the Ex. Director of defendant is also a necessary and proper party in the present suit.
3.5 On merits defendant has categorically denied the contentions made in the plaint. It is stated that there is no basis or foundation for the plaintiffs to allege that a sum of Rs. 29.05 lakh was advanced by Sh. Rajinder Kumar to the defendant company. That as per knowledge of present director, there were certain mutual comfort dealing between the directors of the defendant, Sh. Sunil Gupta and sh. Rajinder Kumar, which did not create any legal obligations amongst them or with the defendant company; the mutual accounts were all settled during the lifetime of Sh. Rajinder Kumar by Sh. Sunil Gupta, and no amount, what so ever, was due to Sh. Rajinder Kumar from the defendant company. And for this very reason Sh. Rajinder Kumar CS No. 10401/16 Smt. Sunil Kumari & Ors Vs. M/s Rohan Promoters Pvt. Ltd. Page no. 4 of 17 neither demanded nor took any legal recourse for the alleged loan during his lifetime.
3.6 It is stated that the plaintiff have not obtained any letters of administration/succession certificate under the provisions of Indian Succession Act to represent the estate of Shri Rajinder Kumar and, in the absence of any such authorization, plaintiffs are not competent to file and maintain the present suit.
3.7 It is thus avered that there was neither any loan agreement nor any agreement to pay any interest, nor any alleged loan as such existed between Sh. Rajinder Kumar and defendant company. Therefore, the case of the plaintiff is totally misconceived and without any cause of action and being also barred by law and it may be dismissed with heavy costs.
4. REPLICATION 4.1 Plaintiff filed replication denying all the submissions made in the WS, reiterating the averments made in the plaint. In reply to WS plaintiffs further submitted that they have already applied for the survivor Member Certificate before the competent Authority and the plaintiffs are in process to obtain the said certificate.
4.2 To the contention of the defendant that the plaintiffs have not disclosed as to from what sources the said alleged loan Rs 29.05 lakhs was arranged by Sh. Rajinder Kumar, it is stated that the Sh. Rajinder Kumar had sold his property to Sh. Manish Prakash Aggarwal, vide sale deed dated 19.09.2012,for a consideration of Rs. 44,00,000/. Thus summing up, it is stated that the defence set up by the defendant is false and fabricated, devoid CS No. 10401/16 Smt. Sunil Kumari & Ors Vs. M/s Rohan Promoters Pvt. Ltd. Page no. 5 of 17 of any substance, and hence, the suit of the plaintiffs be decreed in terms thereof.
5 ISSUES Before proceedings further, I must state that in the present case issues were framed which read as under:
1. Whether plaintiff is entitled to recovery for a sum of Rs. 24,81,000/? OPP.
2. Whether plaintiff is entitled to interest, if any, at what rate and for what period? OPD
3. Whether the suit is barred by the limitation? OPD.
4. Relief.
5. Additional issue:Whether the plaintiffs have locusstandi to file the present suit ?OPD
6. Plaintiff evidence 6.1 In plaintiff evidence, plaintiff examined herself as Pw1 vide her affidavit of evidence Ex.as PW1/A. The documents relied upon by her are exhibited as Ex. PW1/1 to Ex. PW1/17.
7. Defendant Evidence 7.1 Sh. Rajesh Gupta AR of defendant company examined as DW1 vide his affidavit of evidence exhibited as Ex. DW1/A. He had relied upon the documents which are exhibited as Ex. DW1/1 and Ex. DW1/2. 7.2 Further defendant has also examined Sh. Kishan Lal Inspector Income Tax Department as DW2 in support of its case, vide his affidavit of CS No. 10401/16 Smt. Sunil Kumari & Ors Vs. M/s Rohan Promoters Pvt. Ltd. Page no. 6 of 17 evidence exhibited as Ex. DW2/A. He has produced documents ITRs of Sh. Rajinder Kumar which have exhibited as Ex. DW2/1 (colly).
This is the entire evidence adduced in this matter.
8. I have heard the submissions advanced by the both the parties. I have also perused the entire case record meticulously. I am of the considered opinion that the suit of the plaintiff be decreed against defendant for the reasons stated herein.
9. Issuewise findings: Additional Issue: Whether the plaintiffs has locus standi to file the present suit ?OPD 9.1 Onus to prove this issue is on the defendant. The objection of the defendant to the suit is that the plaintiffs while claiming the alleged amount as loan advanced by late sh Rajinder Kumar have not obtained any succession certificate, and hence, no court can pass a decree against the debtors of the deceased without proof of representative title and production of a Letter of administration or a succession certificate. Reliance has been placed on Sec 214 of the Indian Succession Act 1925 and on the judgment passed by the Hon,ble High Court in Vimla Nanda vs. Govt. NCT of Delhi 1998(73) DLT 599,to buttress the contentions.
9.2 Suffice would it be to state that embargo created under the provisions of Sec 214 does not extend to passing of the judgment, it operates simpliciter against passing of the decree. Once, and if at all, a judgment is given in favour of the plaintiff, the debt is established, the decree may be passed and become operative on/and subject to production of the succession CS No. 10401/16 Smt. Sunil Kumari & Ors Vs. M/s Rohan Promoters Pvt. Ltd. Page no. 7 of 17 certificate .
9.3 As rightly put forth by the ld counsel for the plaintiff that succession certificate is required to obtain a decree from the court and plaintiffs have a right to seek succession certificate once a judgment is passed by the court in their favour, whereby the factum of undisputed debt would stand established.
9.4 It is pertinent to mention that a succession petition was filed by the plaintiffs before the Ld.ACJCCJARC , Shahdara, Karkardooma Courts, Delhi and the ld court refused to entertain the petition with the remarks 'since the debt is disputed, at this stage, this court cannot grant the succession certificate to the petitioners'.
9.5 In light thereof, no fault can be attributed to the plaintiffs entailing dismissal of the suit. The said petition was withdrawn with liberty to move afresh once, and if at all, there is positive finding by the court in this regard.
9.6 Additionally, plaintiffs have also proved on record Survivor Certificate issued by office of District Magistrate, Shahdara Ex. as PW1/6, which indicates that plaintiffs i.e. (i)Kumari Nidhi Parashar, D/o Late Rajinder Kumar, (ii) Kumari Pridhi Parashar (minor) D/o Late Rajinder
(iii)Kumar Kumari Radha Parashar, D/o Late Rajinder Kumar and the plaintiff no. 1 are shown as surviving members in the family of the deceased Sh Rajinder Kumar. Thus the objection of the defendant to say the suit is not maintainable has no force.
9.7 Besides, in entirety of the facts, I am of the view that CS No. 10401/16 Smt. Sunil Kumari & Ors Vs. M/s Rohan Promoters Pvt. Ltd. Page no. 8 of 17 technicalities of law can not defeat the substantial rights of the plaintiffs to stake a claim to the loan advanced by deceased Sh Rajinder kumar. Needless to say procedural law is intended to aid in the administration of justice. Oft quoted principle 'Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice' may be taken note of.
9.8 In light of the above discussion, the issue accordingly stands decided in favour of the plaintiffs and against the defendant.
10. Issue no. 3. Whether the suit is barred by the limitation? OPD.
10.1 Onus is on the defendant to demonstrate that the suit is time barred.. It is contended by the defendant that the plaintiffs have not shown that the amount of Rs 1,00,000/allegedly paid to Sh Rajinder Kumar on dated 06.02.2014 was towards of the said loan. That no positive evidence is led by the plaintiffs to demonstrate that the said payment was a partpayment in discharge of the liability of the alleged outstanding amount. Therefore, de hors such evidence on record, the payment made through NEFT on above said date would not, by itself, extended the period of limitation to file the present suit. And I must state that all the contention is without any legal basis.
10.2 The payment is made from the account of defendant company, it has been duly reflected in saving account of the Sh Rajinder Kumar, CS No. 10401/16 Smt. Sunil Kumari & Ors Vs. M/s Rohan Promoters Pvt. Ltd. Page no. 9 of 17 Corporation bank. The factum of payment is proved from the documents, then, to say, that it was not towards the repayment of the any loan is without substance. Under the provisions of Sec101103 Evidence Act, it was incumbent on the defendants to prove by leading some positive evidence to show the basis of the payment and not on the plaintiffs to prove conversely. Why and for what purpose the said amount was paid by the company, nothing is forthcoming from the testimony of the defendant's witnesses. In the facts narrated above, defendant has failed to prove that the payment was not made in discharge of the liability as claimed by the plaintiffs, but in respect to some other liability.
10.3 At this juncture, Provisions of Sec19 of the Limitation Act may also be taken note of. It states that where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt of legacy or by his agent duly authorized in this behalf, a fresh period of limitation shall be completed from the time when the payment was made.
10.4 Thus, Under sec19 all that is necessary is that an acknowledgement of payment should appear in the handwriting of or signed by the person making it.
10.5 Therefore, a payment by cheque or through NEFT, as in the present case, duly reflected in statement of account Ex PW1/8,satisfies the requirement of sec19 of the Limitation Act in as much as the acknowledgement of payment appears in the handwriting of or in a writing signed by the person making the payment in the form of cheque or through CS No. 10401/16 Smt. Sunil Kumari & Ors Vs. M/s Rohan Promoters Pvt. Ltd. Page no. 10 of 17 NEFT, the payment of Rs.1 lakh made by the company herein on dated 06.02.2014 saves limitation in terms of the section 19 of the said Act. The payment is also made within the limitation period. Thus, all the requirement of the section stands satisfied and plaintiff is accordingly entitled to the benefit of the extension of the limitation period. The limitation bar gets extended.
10.6 In absence of any evidence to contrary, it can safely be said that the payment was in discharge of the above said liability. And calculating the period of limitation of three years, I have no hesitation to say that the suit in within the time frame in terms of the provisions of the Limitation Act 1963.
The issue accordingly stands decided in favour the plaintiff and against the defendant.
11. Issue no. 1 and 2 Whether plaintiff is entitled to recovery for a sum of Rs. 24,81,000/? OPP Whether plaintiff is entitled to interest, if any, at what rate and for what period? OPD On Merits: 11.1 The case of the plaintiff is premised of the facts that Sh. Rajinder Kumar(since deceased), husband of Plaintiff & father of Plaintiff No.2 to 4, had advanced a loan of Rs 29,05,000/ to the defendant company. The payment made through cheques is duly proved on record. 11.2 Part payment of a sum of Rs 11,00,000/ made by the defendant CS No. 10401/16 Smt. Sunil Kumari & Ors Vs. M/s Rohan Promoters Pvt. Ltd. Page no. 11 of 17 to discharge its liability is also duly reflected in the original statement of account issued by the united bank of India and Corporation Bank. Outstanding amount of Rs 18,05,000/ is claimed by the plaintiffs in the present suit.
11.3 On the other hand, the defence set up by the defendant is that Sh. Rajinder Kumar was a close associate of the erstwhile Director of the defendant company, Sh Sunil Gupta; that there were certain dummy mutual dealings between them and no monies was ever advanced by Sh. Sunil Kumar; that there was, in fact, no actual transfer of monies as is reflected in the accounts of the parties.
11.4 That the present share holders & directors of Defendant company acquired the complete control of the company from Sh. Sunil Gupta and the family only in the year in 2015, and at the time of handing over, it was stated that there were no creditors of the company, except one debtor M/s SNR impex Pvt Ltd; that there were no other credits or legal obligations and liabilities.
11.5 It is important to note that in such circumstances, when the defence of the bogus transaction is taken by the defendant, the onus, in fact had shifted to the defendant to establish that though the payment is reflected in the accounts of the company, allegedly received from deceased Sh Rajinder Kumar, but the loan was merely a fictitious transaction, and no such money was ever advanced. And in my considered opinion, the defendant has failed to discharge the said onus by leading any cogent evidence. The story put forth by the defendant is highly unbelievable, to lead to any sort of CS No. 10401/16 Smt. Sunil Kumari & Ors Vs. M/s Rohan Promoters Pvt. Ltd. Page no. 12 of 17 inference, to say that loan was never advanced.
11.6 All the so called mutual comfort dealings, and the contention that dealings were all squared off and settled during the life time of Sh. Rajinder Kumar, is without any substance. The said fact is not supported by any piece of evidence, of what so ever nature. No records of the company from which the alleged information has been derived by DW1 were produced before the court for the reasons not forthcoming. 11.7 DW1, in the crossexamination, was specifically asked to produce (a) Books of account, (b) ITRs, (c)Audit reports for the year 2013 2016, and no such documents of the relevant years were produced by the witness, despite availing the opportunity. The Ledger account of Sh Rajinder Kumar maintained by the defendant was also not produced. These documents are vital documents which a company under the provisions of law is mandatorily required to maintain. And an adverse inference can safely be drawn against the defendant that if the documents were produced it certainly would have been against their interest. In fact no plausible reason was assigned for their nonproduction except to state that 'they are not readily available'.
11.8 No doubt, PW1 in crossexamination has stated to be unaware of certain facts regarding the status of the parties and the transaction, but her ignorance of such facts, in fact, lead credence to the case of the plaintiff rather than to raise suspicion. It is but natural to be oblivious to such facts since she was not involved in the transactions. Her testimony cannot be discarded simply on the said grounds.
CS No. 10401/16 Smt. Sunil Kumari & Ors Vs. M/s Rohan Promoters Pvt. Ltd. Page no. 13 of 17 11.9 An unsuccessful attempt was made by the defendant to highlight that the deceased Sh Rajinder Kumar had no sufficient funds at the relevant point of time to make the said payment.
(i)Significantly, a sale deed of a property owned by the deceased which was sold by him at or about the same time was produced on record by PW1 during crossexamination. The document was objected by the defendant to be beyond pleadings, but the objection is unfounded.
(ii)Firstly, it was pursuant to a specific question put by the Ld counsel for the defendant and to substantiate her deposition in that regard the said document was produced.
(iii)Secondly, in reply to the WS, plaintiffs have specifically avered the fact of sale of the property to advance loan to the defendants.
Thus, in facts noted above, it cannot be said that the document is inadmissible and beyond pleadings.
11.10 Besides, the provisions of the Sec139 read with sec118 of Negotiable Instrument Act cannot be ignored, which envisages presumption in favor of the negotiable instrument unless contrary is proved, and which the defendant has failed to do so.
11.12 The other contention that no said loan is reflected in the ITRs of Sh. Rajinder Kumar for the relevant years therefore adverence inference be drawn against the plaintiff is also without legal basis. 11.13 DW2 was examined to substantiate the contentions. He had CS No. 10401/16 Smt. Sunil Kumari & Ors Vs. M/s Rohan Promoters Pvt. Ltd. Page no. 14 of 17 produced ITRs of the deceased of the said period, which admittedly does not reflect the transaction of loan. But not much emphasis can be put on the said documents to disprove the factum of loan transaction. Simply because the amount is not shown in ITRs cannot by itself mean that the loan was not advanced. There may be various reasons not to reflect the same in the ITRs. 11.14 Next, it was contended that Sh. Sunil Gupta was one of the directors of M/S SNR impex, and defendant M/s Rohan Promoters Pvt. ltd had advanced a loan of Rs.3,39,65,000/ to SNR Impex in the year 2013, for the benefit of Sh Sunil Gupta and Sh. Rajinder Kumar and certain others. The Arbitration proceedings pertaining to the said loan are pending adjudications and thus there is no liability of the defendant towards the alleged loan herein. But what is to be seen is that the said transaction, if at all had taken place, is all together a separate transaction, between two separate legal entities. And admittedly not between Sh. Rajander Kumar in his individual capacity on one hand and the defendant company on other. Defendant can not intermix the two to subvert the claim of the plaintiff.
11.15 Further except the bald assertions, no positive evidence has been led by the defendant in this regard. The proceedings before the arbitrator are separate and distinct and no opinion can be expressed herein on the said claim which is Subjudice.
11.16 In the case at hand the company was taken over by the present directors with all assets and liabilities on dated 18.11.2013, as per Form No.20B, Ex PW1/14 & PW1/15.
11.17 Form 23AC for financial year 201314 reflects shortterm CS No. 10401/16 Smt. Sunil Kumari & Ors Vs. M/s Rohan Promoters Pvt. Ltd. Page no. 15 of 17 borrowings, subclause (a) clause (4) PartB, to the tune of rs. 1,80,000.00/, though Admittedly name of the deceased is not reflected but since the figure correspondences to the claim made by the plaintiff herein, it by all probabilities, further strengths the case of the plaintiff that the amount was advanced by the plaintiff which is reflected as outstanding liability of the company. These documents are admitted by the defendant in his cross examination.
11.18 In entirety of the facts highlight above no credibility can be attached to the defence of the defendant. Plaintiffs have been successful to establish their claim towards the defendant and the defence set up by the defendant is predicated on conjectures and surmises, devoid of any substance.
12. Interest: Plaintiff has claimed interest @ 18% p.a. on the outstanding amount, but no document or any sort of agreement to substantiate the claim at the said rate is placed on record. Therefore, taking note of the nature of transaction, between the parties, prevalent rate of interest in my considered opinion, the interest @ 18% p.a. is exorbitant and on a higher side. And an interest @ 9% p.a would be reasonable and justified in facts and circumstances of the case.
13. Relief Thus, In view thereof, considering the above discussed facts and circumstances, taking note of the nature of the suit and the relief sought herein I am of the considered opinion that plaintiff has proved its case and is entitled to decree for a sum of Rs 18,05,000/ against the defendant along with interest @ 9% from dated 28.11.2015(legal demand notice) till the realization of the decreed amount.
CS No. 10401/16 Smt. Sunil Kumari & Ors Vs. M/s Rohan Promoters Pvt. Ltd. Page no. 16 of 17 Cost of the suit is awarded to plaintiff.
Suit stands disposed off accordingly as decreed. Decree sheet be drawn after furnishing of Succession Certificate.
File be consigned to record room.
Announced in the open Court (Anil Antil) Today on 28.02.2018 ADJ05, South East, District(SE) Saket Court, New Delhi CS No. 10401/16 Smt. Sunil Kumari & Ors Vs. M/s Rohan Promoters Pvt. Ltd. Page no. 17 of 17