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Delhi District Court

Nitin Kumar vs Taneja Handloom House Pvt. Ltd on 29 August, 2019

          IN THE COURT OF SH. SACHIN SANGWAN
 ACJ/CCJ/ARC (SOUTH): DISTRICT COURT SAKET: NEW DELHI.

CS SCJ No. 449/17

Nitin Kumar
s/o Sh. Bishan Swaroop,
Chamber No.184, Lawyers Block,
Saket Courts Complex,
New Delhi 110017                                                ......Plaintiff

                       Versus

1.

Taneja Handloom House Pvt. Ltd.

(Though its Director Mr. Mudit Taneja), G. T. Road, Pillar No.47, Panipat - 132103, Haryana.

Ph. Show Rooom 0180­4008424

2. Mr. Mudit Taneja s/o Sh. Harish Chandra, House No. 2, Surbhi Enclave, Haryana Urban Development Authority (HUDA), Sector­11, Panipat, Haryana.

M: 09671700700 Both Also at:

Taneja Handloom House Pvt. Ltd.

   Having its registered office at
   Pocket A­8/83,
   Kalkaji Extension,
   Delhi 110019                                                 .......... Defendants

SUIT FOR RECOVERY OF RS.1,04,000/­ (One lakh and four thousand only) Date of Institution : 21.04.2017 CS SCJ No.449/17 Nitin Kumar v. Taneja Handloom House Pvt. Ltd. And Anr.Pages 1/10 Date of reserving judgment : 19.08.2019 Date of Decision : 29.08.2019 EX­ PARTE JUDGMENT CASE OF PLAINTIFF

1. The plaintiff is a practicing Advocate at Delhi High Court and District Courts at Delhi.

2. As per plaintiff, defendant no.2 in the month of July, 2016 claiming himself to be one of the Directors of defendant no.1 i.e. M/s. Taneja Handloom House Pvt. Ltd. on behalf of both defendants approached him at his chamber no.184, Lawyer's Block, Saket Court Complex, New Delhi 17 for availing his services for disposal of their car challan (Drunken Driving and without pollution under control certificate) at Saket Court and a professional fee of Rs.5,500/­ per date/hearing was agreed between the parties.

2. Thereafter, as per plaintiff, the defendants availed his services in the traffic challan case no.C2053­00001/02­16, under sections 185, 115/190 (2) of Motor Vehicle Act in respect of car bearing registration no. HR06AC0666 which was finally disposed off with a fine of Rs.4,000/­ by the Hon'ble Court of Shri Rakesh Kumar Singh, Ld. MM (Traffic), South, Saket Court, New Delhi on 25.07.2016 and same was deposited by defendant no.2 in the said court. However, as per plaintiff, defendant no.2 paid only Rs.2,500/­ to him and requested the plaintiff to collect and mail the scanned copy of CS SCJ No.449/17 Nitin Kumar v. Taneja Handloom House Pvt. Ltd. And Anr.Pages 2/10 challan fine receipt of Rs.4,000/­ from the court and promised to pay the balance professional fees of Rs.3,000/­ which shall be deposited in plaintiff's bank account on or before 2.00 pm on 25.07.2016.

Thereafter, on 25.07.2016 the plaintiff messaged to defendant no.2 on his mobile number his bank account details and also informed that challan receipt has been collected by the plaintiff from the court. As per plaintiff, he even told the defendant no.2 in advance to bring all the relevant and original documents, viz. Board Resolution, Driving License, Challan, Residence and Identification Proof etc. on 22.07.2016 but due to failure on part of defendant no.2 to produce the said documents/board resolution, the matter was adjourned for 25.07.2016 and he did not raise another bill of professional fees of Rs.5,500/­ against both defendant for the said date of hearing as the said date was wasted only because of the fault of the defendants.

3. As per plaintiff, defendant no.2 did not deposit his balance professional fees of Rs.3,000/­ in his account on 25.07.2016 and when he inquired about the same, defendant no.2 requested him to first e­mail the scanned copy of challan along with fine receipt of Rs.4,000/­ dated 25.07.2016 and only then the balance professional fees of Rs.3,000/­ will be deposited after receiving the scanned copy of challan receipt. Accordingly, on 26.07.2016 the plaintiff sent the scanned copy of challan receipt to defendant on his e­mail address at "[email protected]" and informed defendant no.2 through message on his mobile no.967100700 regarding sending of mail and again requesting him to clear his balance of professional fees of CS SCJ No.449/17 Nitin Kumar v. Taneja Handloom House Pvt. Ltd. And Anr.Pages 3/10 Rs.3,000/­. Thereafter, defendant no.2 informed the plaintiff that he will make the payment on Wednesday morning i.e. 27.07.2019 personally at his chamber. Again as per plaintiff, when on 27.07.2016 the defendant no.2 did not come to his chamber, he again tried to contact defendant no.2 but defendant no.2 willfully, intentionally and deliberately did not pick up/disconnected his calls and as such defendants have cheated him for Rs.3,000/­ which caused wrongful loss to him and wrongful gain to the defendants. Thereafter, plaintiff tried to contact the defendants several times but has not received any response from the defendant.

4. As per plaintiff, out of total sum payable of Rs.5,500/­ the defendants paid only a sum of Rs.2,500/­ in the month of July, 2016 and for the balance amount, the defendants avoided the matter on one pretext or the other and as and when he demanded his money from the defendants, only false assurances were given to him. Even from time to time plaintiff insisted upon the defendants to make the payment of balance sum of Rs. 3,000/­ but defendants are not making the same. Thus, plaintiff has been constrained to serve a legal notice dated 07.11.2016 upon the defendants which were duly served upon the defendants, through his Counsel Sh. Narendra Gautam, Advocate but even after receiving the notice, the defendants failed to make any payment to him which was due upon them as his professional fees. Thus, as per plaintiff, the transaction between him and the defendants was commercial one and, therefore, the defendants are jointly and severally liable to pay interest on the CS SCJ No.449/17 Nitin Kumar v. Taneja Handloom House Pvt. Ltd. And Anr.Pages 4/10 defaulted payment at the rate of 24% per annum on the balance amount of Rs.3,000/­ amounting to Rs.500/­. Hence, the total legally recoverable amount from the defendants to the plaintiff is Rs.3,500/­ as on the date of filing of the present suit. Apart from that, as per plaintiff, the defendants are also liable to pay Rs. 95,000/­ along with pendente­lite and future interest @ 24% per annum for damages, mental agony, harassment, loss and interest to him.

Accordingly, the present suit has been filed for recovery of Rs.1,04,000/­ with entire costs and expenses of the suit along with pendente­lite and future interest @ 24% per annum.

WRITTEN STATEMENT

5. Written statements was filed on behalf of defendant no.1 and defendant no.2 but after delay of 108 days since the service of summons i.e. much beyond the period of 30 days or the extended period of 90 days as prescribed in the CPC. Hence, vide order dated 19.03.2018 Ld. Predecessor struck off the defence of the defendant.

PLAINTIFF's EVIDENCE

6. Plaintiff Nitin Kumar examined himself as PW1. He tendered his evidence by way of affidavit Ex.PW1/1 and relied upon the following documents:­ Ex.PW1/A (colly) are the two e­mails Ex.PW1/B is the original challan receipt CS SCJ No.449/17 Nitin Kumar v. Taneja Handloom House Pvt. Ltd. And Anr.Pages 5/10 Ex.PW1/C (colly) are the legal notice and postal receipts Ex.PW1/D is the certificate under section 65B of the Indian Evidence Act Ex.PW1/E (colly) are the copies of challan case and order of Ld. MM(Traffic), South, Saket Courts The plaintiff was duly cross examined by the Counsel for defendant and thereafter plaintiff evidence was closed.

FINDINGS:­

7. I have gone through the documents relied upon by the plaintiff and testimony of plaintiff. I have also considered the arguments of both the Counsels.

Though the defence of defendants have been struck off, nonetheless, the admissions of defendants, if any, in their W.S. can still be referred to for the benefit of the plaintiff. In para 5 of preliminary objections in the WS it is mentioned "that neither the length or the difficulty of the case undertaken by the plaintiff on behalf of the defendants before the concerned traffic court, Saket could in any circumstance deem the fee of Rs.5500/­ as just and proper. Nonetheless the same was paid". Accordingly, the fact of engaging the plaintiff as a Counsel in the case in question is admitted and even the fact that fees was of Rs.5500/­ is not disputed. However, the defence of defendant that the said amount was paid cannot be looked into from the WS. As the defence of defendant was struck off the only CS SCJ No.449/17 Nitin Kumar v. Taneja Handloom House Pvt. Ltd. And Anr.Pages 6/10 opportunity with the defendant to show that such payment was indeed made was through the cross examination of plaintiff. However, nothing substantial has come in his cross examination to conclude that the complete payment of Rs.5500/­ was in fact made to plaintiff. Neither any specific date nor the place nor mode of payment was put to PW1 in the cross examination so as to suggest that in fact such payment was made. It is also important to note that in the WS the defendants have admitted the receiving of legal notice also but have not averred that any written reply was sent. The only argument put forth on behalf of the Counsel for defendant is that in his cross examination the plaintiff admitted that he does not maintain any ledger for the payment received/due from his clients. He also admitted that he has not mentioned the amount due from defendants in his income tax returns. I have considered said arguments. However, the maintenance of any ledger is not a legal requirement for any lawyer qua the fees of his client. Moreover, non mentioning of any outstanding amount in income tax returns of a person does not lead to an automatic conclusion that such amount is not outstanding. Moreover, the plaintiff has clarified that it was only a small amount and hence was not shown in his ITR. Another contention raised by the defendant is that the plaintiff is not entitled to sue for recovery as he is bound by the condition in vakalatnama which states 'And I/We undersigned do hereby agree that in the event of the whole or part of the fee agreed by me/us to be paid to the advocate remaining unpaid he shall be entitled to withdraw from the CS SCJ No.449/17 Nitin Kumar v. Taneja Handloom House Pvt. Ltd. And Anr.Pages 7/10 prosecution of the said case until the same is paid up'. However, the said contention raised by the defendant is not tenable. The said condition does not take away the right of a lawyer (plaintiff herein) to recover the amount due to him on account of professional services rendered by him and only gives a unilateral option to an Advocate (plaintiff herein) to withdraw from the prosecution on non payment of his fees. However, if he continues to represent his client despite payment of complete fees, it cannot be said that he has waived off his right to claim the balance fees. Rather an Advocate works on a higher ethical ground when he proceeds to represent his client despite non payment of the complete fee instead of leaving the case of his client to the mercy of the court. Accordingly, on preponderance of probabilities it stands proved that defendants are liable to pay the balance professional fees of Rs. 3,000/­ to the plaintiff. The plaintiff has also claimed interest amount of Rs.500/­ from the defendants stating that transactions between the parties are commercial and hence the defendants are liable to pay interest @ 24% per annum on the balance payment. I have considered the said pleading and arguments thereon. Admittedly there is no term in the written contract between the parties i.e. the vakalatnana regarding any interest on delayed payment. As far as the interest on delayed payments in commercial transactions is concerned, in absence of any agreement to such effect between the parties, it is incumbent on the plaintiff to prove a trade/mercantile usage regarding the charging of any interest on late payments and also the extent thereof. However, CS SCJ No.449/17 Nitin Kumar v. Taneja Handloom House Pvt. Ltd. And Anr.Pages 8/10 no such evidence has been led by the plaintiff except bare assertion by way of affidavit. Nonetheless, it cannot be said that plaintiff is not entitled to any interest at all. Considering the interest rates of the nationalized bank, the plaintiff is entitled to interest @ 9% per annum on the amount of Rs.3,000/­.

The plaintiff has further claimed that amount of Rs.5500/­ as the charges borne by him towards the issuance of legal notice. The fact of issuance of legal notice is not disputed but the Counsel for defendant has argued that no documentary proof has been filed regarding such charges being borne by the plaintiff. However, the plaintiff has deposed on oath regarding the fact of said payment. It is not necessary that a Counsel would have issued any bill/receipt regarding the charges taken by him for issuance of a notice. Rather said charges are themselves mentioned in the notice which was admittedly received by the defendant. Accordingly, on preponderance of probabilities the plaintiff is entitled to claim said charges also from the defendants.

The plaintiff has further claimed Rs.95,000/­ from the defendants for damages, mental agony, harassment and losses. In regard to breach of a contract, the principle of compensation is governed by section 73 of the Indian Contract Act, 1872. However, same provides for the loss/damage which naturally arose in the usual course of the things from the breach or which the parties knew when they made the contract to be likely result from the breach. In the present case, no loss to the plaintiff has been proved except the loss CS SCJ No.449/17 Nitin Kumar v. Taneja Handloom House Pvt. Ltd. And Anr.Pages 9/10 of interest on balance payment and bearing of expenses for the issuance of notice. During the arguments, the Counsel for plaintiff has submitted that plaintiff has suffered the bad words/threats from the defendants when he demanded his balance fees and same resulted into mental agony/harassment of the plaintiff. However, there is no specific pleading or evidence to such effect. Accordingly, in the present case there is no such circumstance which calls for any compensation over and above the balance dues/interest/cost of the suit. Further, the plaintiff has also failed to show any rational basis on which the particular amount of Rs.95,000/­ has been claimed towards damages/mental agony/harassment etc. Accordingly, the relief regarding the same cannot be granted.

Relief In view of aforesaid discussion, the suit of plaintiff is decreed partly and he is entitled to recover amount of Rs.8,500/­ from the defendants jointly and severally along with interest @ 9% on the principal amount of Rs.3,000/­ since 25.07.2016 till realization thereof. The plaintiff is also entitled to the cost of the suit. Decree sheet be prepared accordingly.

File be consigned to record room after due compliance.

Pronounced in open court SACHIN SANGWAN SANGWAN Date: 2019.08.29 17:43:57 +0530 on 29th August, 2019 (Sachin Sangwan) ACJ/CCJ/ARC(South):

District Court Saket, N. Delhi CS SCJ No.449/17 Nitin Kumar v. Taneja Handloom House Pvt. Ltd. And Anr.Pages 10/10