Delhi District Court
Shiv Kumar vs Radha Arya on 21 February, 2024
IN THE COURT OF CIVIL JUDGE-02, SHAHDARA
DISTRICT, KARKARDOOMA COURTS, DELHI
Presided by: Aman Kumar Sharma, DJS.
Civil Suit No: 1249/21
Sh. Shiv Kumar, Advocate
Ch. No. E-620, KKD Courts,
Delhi
... Plaintiff
Versus
Smt. Radha Arya
W/o Sh. Pankaj Arya
R/o D-34, Hans Apartments,
Delhi
... Defendant
SUIT FOR RECOVERY OF Rs.61,000/- (RUPEES SIXTY
ONE THOUSAND ONLY) ALONG WITH PENDENTE
LITE AND FUTUERE INTEREST @ 24% PER ANNUM.
DATE OF INSTITUTION: 15.12.2021
DATE OF FINAL ARGUMENTS: 21.02.2024
DATE OF DECISION: 21.02.2024
JUDGMENT
1. The plaintiff has filed this suit against the defendant, seeking recovery of Rs.61,000/-(Rupees Sixty One Thousand Only) along with pendente lite and future interest @ 24% per annum from the date of amount becoming due till it's realization and cost of the suit.
Civil Suit No.1249/21Shiv Kumar Vs Radha Arya Page No.1 of 16
2. The plaintiff has filed the present case against the defendant praying for the following reliefs which are reproduced as under: -
"It is, therefore, most humbly prayed that this Hon'ble Court may be pleased to:-
(a). Pass a money decree for a sum of Rs.61,000/- in favour of the plaintiff against the defendant alongwith interest 24% P.A. till the final payment or till its execution of the decree passed by this Hon'ble Court.
(b). Allow the cost of the suit.
(c). Any other relief which this Hon'ble Court deems fit and proper kindly be granted in favour of the plaintiff and against the defendant."
3. In order to justify the grant of the aforesaid reliefs/prayer, the plaintiff has inter-alia pleaded in the plaint of this suit that the defendant had approached him in the month of February, 2020 to engage him as an Advocate through her authorized representative, namely, Sh. Sanjeev Tomar to file a case against the Secretary of Hans Bhavan Friends Cooperative Group Housing Society Ltd; that acceding to the request of the defendant, the plaintiff along with his associates had consented to file a case in the name of the defendant against the aforesaid society; that the defendant had given her consent to engage the plaintiff as her counsel through her AR, namely, Sh. Sanjeev Tomar; that the professional fees of the plaintiff was agreed with the defendant at Rs.50,000/-; that the plaintiff had preferred a Civil Suit titled "Radha Arya & Ors., Vs Secretary of Hans Bhavan Friends Cooperative Group Housing Society Ltd which was registered as CS no. 274/2020; that it came as a shock to the Civil Suit No.1249/21 Shiv Kumar Vs Radha Arya Page No.2 of 16 plaintiff that the defendant without obtaining No Objection Certificate from the plaintiff, had engaged another counsel, namely, Sh. A. K. Srivastava through whom the defendant had preferred an application for withdrawal of the said suit; that the defendant had engaged another counsel with a malafide intention to withheld the professional fee agreed to be paid to the plaintiff; that the plaintiff had made several request to the defendant to pay his professional fees of Rs. 50,000/-, however, the same has not been paid by the defendant till date; that a legal demand notice dated 01.10.2021 was sent by the plaintiff to the defendant to recover the professional fees, however despite delivery of the aforesaid legal demand notice, no payment has been received by the plaintiff nor any reply to the legal notice has been furnished by the defendant; that aggrieved by the actions of the defendant, the plaintiff has filed the present suit for recovery of Rs.61,000/- against the defendant inclusive of the legal notice fee of Rs.11,000/-.
4. Upon service of summons for settlement of issues of this suit, the defendant has contested this suit by filing her written statement. In order to contest this suit, the defendant has inter-alia pleaded in her written statement that the plaintiff was engaged as an Advocate by the AR, namely, Sh. Sanjeev Tomar in the case titled "Radha Arya & Ors., Vs Secretary of Hans Bhavan Friends Cooperative Group Housing Society Ltd., registered as CS no. 274/2020; that the cause of action leading to Civil Suit No.1249/21 Shiv Kumar Vs Radha Arya Page No.3 of 16 the filing of the aforesaid suit is that the defendant and certain other members of the society wanted to get a gate of the society near the D-Block opened and they themselves resolved to take appropriate steps in respect to the same; that a Special Power of Attorney dated 27.02.2020 was executed by the defendant along with six other members of the society in favour of Sh. Sanjeev Tomar to enable the SPA holder to take steps before the appropriate authority, namely, Registrar of Cooperative Society; that the plaintiff who was engaged by the AR had agreed to render his professional services at a consolidated fee of Rs.35,000/- out of which the defendant has paid her share of Rs.5,000/- to the AR, namely, Sh. Sanjeev Tomar; that apart from the aforesaid contribution paid in relation to the legal fees of the plaintiff, no other payment was to be made by the defendant as per the assurance rendered by the AR; that the defendant along with two other members of the society had come to know that the plaintiff instead of approaching the Registrar of Cooperative Society has preferred a Civil Suit thereby working against the interest of the society, consequently, the three members including the defendant had opposed the steps taken by the AR; that the plaintiff and the AR of the society had assured the defendant that appropriate relief can be obtained conveniently before the civil court; that the defendant along with the other two members of the society after having perused the provisions of the Delhi Cooperative Society Act, 2003 learnt that the civil suit filed by the plaintiff is clearly not maintainable in terms of the aforesaid act and accordingly, the defendant including the other two Civil Suit No.1249/21 Shiv Kumar Vs Radha Arya Page No.4 of 16 members of the society applied for withdrawal of their names from the aforesaid case; that the Hon'ble Court vide order dated 21.10.2021 had dismissed the applications filed on behalf of the defendant and had further rejected the Civil Suit bearing no. 274/2020 under Order VII Rule 11 (d) CPC for want of subject matter jurisdiction; that the plaintiff has misled the AR of the defendant into filing the aforesaid suit which was clearly not maintainable and has preferred the present suit for recovery with an intention to extort money from the defendant.
5. No replication has been filed by the plaintiff to the written statement filed on behalf of the defendant.
6. On the basis of the aforesaid pleadings of the parties, the following issues were framed by this court, on 14.10.2022 :-
"1. Whether the plaintiff has locus standi to file the present suit? OPD
2. Whether the plaintiff is entitled to a decree of recovery of Rs.61,000/- as prayed for? OPP
3. Whether the plaintiff had agreed to render his professional services on a consolidated fee of Rs.35,000/- including cost with Rs.5,000/- payable by each member? OPD
4. Whether the plaintiff is entitled to a decree of recovery of pendente lite and future interest @ 24% per annum till realization of the amount? OPP Civil Suit No.1249/21 Shiv Kumar Vs Radha Arya Page No.5 of 16
5. Relief."
7. During the trial of this suit, one witness viz. PW1, Sh. Shiv Kumar was examined in support of the case of the plaintiff and one witness viz. DW1, Smt. Radha Arya was examined in support of the case of the defendant. The testimonies of the aforesaid witnesses are not being discussed, at this stage of this judgment, for the sake of brevity.
8. In order to adjudicate upon this suit, I had heard the plaintiff on 21.02.2024. None had appeared on behalf of the defendant to address final arguments.
9. The issue wise findings, in this case are as follows:
ISSUE NO.1 Whether the plaintiff has locus standi to file the present suit? OPD
10. The burden of proving of this issue was placed upon the defendant. In respect of this issue, the case of the defendant is that the plaintiff has no locus standi to file the present suit for recovery against the defendant as she has not signed any vakalatnama and the amount of professional fee claimed by the plaintiff is not due against the defendant in relation to the services rendered by him as an Advocate on her behalf in Civil Suit bearing no. 274/2020. Per Contra, the case of the plaintiff in Civil Suit No.1249/21 Shiv Kumar Vs Radha Arya Page No.6 of 16 respect of this issue is that the defendant had given her consent to file a case against the Secretary of Hans Bhavan Friends Cooperative Group Housing Society Ltd., through it authorized representative, namely, Sh. Sanjeev Tomar vide SPA dated 27.02.2020.
11. In order to prove his case qua this issue, the plaintiff has examined himself as PW1, Sh. Shiv Kumar. During examination in chief, the plaintiff viz. PW1, Shiv Kumar has tendered in evidence his affidavit which is Ex.PW1/A and has deposed in line with the plaint. The plaintiff has further tendered in evidence, copy of Aadhaar Card, Ex.PW1/1(OSR); copy of identify card issued by the Bar Council of Delhi, Ex.PW1/2(OSR); copy of the Order dated 21.10.2021, Mark A; Photocopy of SPA, Mark B and legal notice with postal receipts, Ex.PW1/6(Colly). During his cross-examination, PW1, Shiv Kumar has deposed that he was engaged as an Advocate by the SPA holder of the defendant, namely, Sh. Sanjeev Tomar in Civil suit bearing no. 274/2020 and the Vakalatnama, Ex.PW1/D1 bears the signature of the AR of the defendant, namely, Sh. Sanjeev Tomar.
12. In order to prove her case qua this issue, the defendant has examined herself as DW1. During examination in chief, the defendant, DW1, Smt. Radha Arya has tendered her evidence by way of affidavit which is Ex.DW1/A. During her cross- examination, DW1, Smt. Radha Arya has inter-alia deposed that Civil Suit No.1249/21 Shiv Kumar Vs Radha Arya Page No.7 of 16 her signatures were obtained on blank papers by Sh. Sanjeev Tomar to facilitate filing of an application before the Registrar of Society in relation to opening of a gate installed adjacent to the D-Block which had been lying closed.
13. Upon examining the probative value of the aforesaid competing evidence lead by the parties qua this issue, I find that this issue is liable to be decided in favour of the plaintiff and against the defendant because the defendant in her written statement has admitted that she had executed a Special Power of Attorney dated 27.02.2020, Mark B in favour of Sh. Sanjeev Tomar authorizing him to take any of the steps as detailed in the aforesaid document. It is further admitted by the defendant in her written statement that the AR of the defendant had engaged the plaintiff as her counsel who had filed the Civil Suit titled "Radha Arya & Ors., Vs Secretary of Hans Bhavan Friends Cooperative Group Housing Society Ltd which was registered as CS no. 274/2020. Under the circumstances, relationship of Advocate and client existing between the plaintiff and the defendant, respectively in respect of Civil suit no. 274/2020 stands duly proved. Further, the plaintiff during his cross-examination as PW1 has deposed that the vakalatnama, Ex.PW1/D1 bears the signature of the AR of the defendant, namely, Sh. Sanjeev Tomar which has remained unrebutted during trial. Based on the aforesaid observations, this court finds that the plaintiff has the locus standi to file the present suit for recovery of the Civil Suit No.1249/21 Shiv Kumar Vs Radha Arya Page No.8 of 16 professional fees against the defendant allegedly lying unpaid in relation to the Civil suit bearing no. 274/2020.
ISSUE NO.2 & 3Whether the plaintiff is entitled to a decree of recovery of Rs.61,000/- as prayed for? OPP Whether the plaintiff had agreed to render his professional services on a consolidated fee of Rs.35,000/- including cost with Rs.5,000/- payable by each member? OPD
14. Since issue no. 2 and 3 involve consideration of common questions of fact and law, accordingly, both are being taken up for adjudication together. In respect of these issues, the case of the plaintiff is that he had agreed to file a suit in the name of the defendant and the consent in relation to the aforesaid filing was given by the defendant through her authorized representative, Sh. Sanjeev Tomar. It had been agreed between the plaintiff and the defendant that the professional fees in relation to the aforesaid suit will be Rs.50,000/-. The plaintiff acting upon the defendant's assurance had filed a case titled "Radha Arya & Ors., Vs Secretary of Hans Bhavan Friends Cooperative Group Housing Society Ltd which was registered as CS no. 274/2020. During pendency of the aforesaid suit, the defendant without having obtained a No Objection Certificate from the plaintiff had engaged another counsel, namely, Sh. A. K. Srivastav through whom, she had preferred an application for withdrawal of the suit with the malafide intention to avoid paying Civil Suit No.1249/21 Shiv Kumar Vs Radha Arya Page No.9 of 16 the professional fees of the plaintiff. The defendant, till date has not paid the professional fees of the plaintiff in respect of his legal services rendered by him in the Civil Suit bearing no. 274/2020 on behalf of the defendant. Per Contra, the case of the defendant qua these issues is that the plaintiff was engaged as an Advocate by the AR, namely, Sh. Sanjeev Tomar in the case titled "Radha Arya & Ors., Vs Secretary of Hans Bhavan Friends Cooperative Group Housing Society Ltd., registered as CS no. 274/2020. The defendant along with certain other members of the society wanted to get a gate of the society installed near the D- Block opened and they themselves resolved to take appropriate steps in respect to the same. A Special Power of Attorney dated 27.02.2020 was executed by the defendant along with six other members of the society in favour of Sh. Sanjeev Tomar to take steps before the appropriate authority, namely, the Registrar of the Cooperative Society. The plaintiff who was engaged by the AR had agreed to render his professional services at a consolidated fee of Rs.35,000/- out of which the defendant has paid her share of Rs.5,000/- to the AR, namely, Sh. Sanjeev Tomar and apart from the aforesaid contribution, no other payment was to be made by the defendant as per the assurance rendered by the AR. The defendant along with two other members of the society had come to know that the plaintiff instead of approaching the Registrar of the Cooperative Society has preferred a Civil Suit thereby working against the interest of the society, consequently, the three members including the defendant had opposed the steps taken by the AR. The plaintiff Civil Suit No.1249/21 Shiv Kumar Vs Radha Arya Page No.10 of 16 and the AR of the society had assured the defendant that appropriate relief can be obtained conveniently before the civil court. The defendant along with the other two members of the society after having perused the provisions of the Delhi Cooperative Society Act, 2003 learnt that the civil suit filed by the plaintiff is clearly not maintainable in terms of the aforesaid act and accordingly, the defendant applied for withdrawal of her name from the aforesaid case. The concerned Court vide order dated 21.10.2021 had dismissed the applications filed on behalf of the defendant and had further rejected the civil suit bearing no. 274/2020 under Order VII Rule 11 (d) CPC for want of subject matter jurisdiction. The plaintiff has misled the AR of the defendant into filing the aforesaid suit which was clearly not maintainable and has preferred the present suit for recovery with an intention to extort money from the defendant.
15. In order to prove his case qua these issues, the plaintiff has examined himself as PW1. During examination in chief, the plaintiff viz. PW1, Shiv Kumar has tendered in evidence his affidavit which is Ex.PW1/A and has deposed in line with the plaint. The plaintiff has further tendered in evidence, copy of Aadhaar Card, Ex.PW1/1(OSR); copy of identify card issued by the Bar Council of Delhi, Ex.PW1/2(OSR); copy of the Order dated 21.10.2021, Mark A; Photocopy of SPA, Mark B and legal notice with postal receipts, Ex.PW1/6(Colly). During his cross- examination, PW1, Shiv Kumar has deposed that he was engaged as an Advocate by the SPA holder of the defendant, namely, Sh.
Civil Suit No.1249/21Shiv Kumar Vs Radha Arya Page No.11 of 16 Sanjeev Tomar in Civil suit bearing no. 274/2020 and the Vakalatnama, Ex.PW1/D1 had been signed by the SPA holder of the defendant. He had not raised any demand in respect of the payment of his professional fees against the defendant during the pendency of the Civil Suit bearing no. 274/2020 nor he has raised any specific memo of fees incorporating the details of the professional fees agreed with the defendant. He has further deposed that he had communicated his fees structure to the SPA holder of the defendant and the agreed fees was to be paid in full upon the finalization of the suit. Prior to the filing of the suit, he had demanded his professional fees from the defendant through the SPA holder.
16. In order to prove her case qua these issues, the defendant has examined herself as DW1. During examination in chief, the defendant, DW1, Smt. Radha Arya has tendered her evidence by way of affidavit which is Ex.DW1/A. During her cross-examination, DW1, Smt. Radha Arya has inter-alia deposed that her signatures were obtained on blank papers by Sh. Sanjeev Tomar to facilitate filing of an application before the Registrar of Society in relation to re-opening of a gate installed adjacent to the D-Block which had been lying closed. She has further deposed that Sh. Sanjeev Tomar at the time of obtaining her signatures had assured her of taking appropriate steps qua the re-opening of the gate by way of filing an application before the Registrar of Society. She has recognized her signatures at point A on the document i.e. the SPA dated 27.02.2020, Mark B running Civil Suit No.1249/21 Shiv Kumar Vs Radha Arya Page No.12 of 16 page 18. She had given an amount of Rs.5,000/- in cash in lieu of her contribution towards filing of the Civil Suit bearing no. 274/2020 to Sh. Sanjeev Tomar in the year, 2021 at her house.
17. Upon examining the probative value of the aforesaid competing evidence led by the parties qua these issues, I find that the issue no.2 is liable to be decided against the plaintiff and in favour of the defendant because the plaintiff has not been able to establish that an amount of Rs.50,000/- was agreed between him and defendant as professional fees to be paid in respect of the services rendered by him as an Advocate on behalf of the defendant in Civil Suit bearing no. 274/2020. In the cross- examination of the plaintiff as PW1, he has deposed that the defendant was introduced to him through one Sh. Sanjeev Tomar, whom the plaintiff had known since college and he had communicated his professional fee to Sh. Sanjeev Tomar who is the SPA holder of the defendant, however, the plaintiff has not got the SPA holder of the plaintiff examined as witness in order to substantiate his case nor the aforesaid individual has been arrayed as a pro-forma party in the present suit. The plaintiff has further deposed in his cross-examination as PW1 that he had not raised any specific memo of fees incorporating the quantum of the professional fees agreed between the parties nor the same finds mention in the Vakalatnama, Ex. PW1/D1 filed on behalf of the plaintiff in respect of the Civil Suit 274/2020. Apart from the self-serving statement of the plaintiff to the effect that he had communicated his professional fees to the defendant through his Civil Suit No.1249/21 Shiv Kumar Vs Radha Arya Page No.13 of 16 SPA holder, namely, Sh. Sanjeev Tomar, no credible evidence has been led by plaintiff to support his claim. It is also pertinent to observe, that the SPA dated 27.02.2020, Mark B had been admittedly executed in favour of Sh. Sanjeev Tomar by seven members of the society including the defendant to enable the SPA holder to take steps on their behalf in respect of re-opening of one of the gates installed at the society, however, no other signatory to the aforesaid SPA has been examined as a witness by the plaintiff to prove the quantum of the professional fees agreed between the parties nor there is any averment in the plaint that the other executants of the SPA were not a party to the Civil Suit 274/2020 and if they were, then in that case, those of whom who have paid his professional fees may have been examined to support the case of the plaintiff. Under the circumstances, it can be safely concluded that the plaintiff has not been able to establish that an amount of Rs.50,000/- was agreed between him and defendant as professional fees in respect of the services rendered by him as an Advocate on behalf of the defendant in Civil Suit bearing no. 274/2020. Besides, it is well settled position of law that plaintiffs case must stand on its own legs and not on the defects of the defence case. Since the plaintiff has failed to prove the agreed professional fees, therefore, the prayer of the plaintiff in relation to the award of cost of legal notice dated 01.10.2021, Ex. PW1/3 to the tune of Rs.11,000/- is also declined.
18. In the present facts and circumstances of the case, the Civil Suit No.1249/21 Shiv Kumar Vs Radha Arya Page No.14 of 16 defendant has not been able to prove her defence by leading cogent evidence, accordingly issue no. 3 is decided in favour of the plaintiff and against the defendant.
19. Since the issue no. 2 has been decided against the plaintiff and in favour of the defendant wherein the plaintiff has not been able to establish that an amount of Rs.50,000/- was agreed between him and the defendant as professional fees in respect of the services rendered by him as an Advocate on behalf of the defendant in Civil Suit bearing no. 274/2020, therefore, it is held that the plaintiff is not entitled to a decree of recovery of Rs.61,000/- against the defendant.
ISSUE NO.4 Whether the plaintiff is entitled to a decree of recovery of pendente lite and future interest @ 24% per annum till realization of the amount? OPP
20. While deciding issue no. 2, this court has held that the plaintiff is not entitled to a decree of recovery of Rs.61,000/- against the defendant and consequently, the prayer of the plaintiff for recovery of interest from the defendant @24% per annum is accordingly declined.
21. In view of the aforesaid finding, this issue is decided against the plaintiff and in favour of the defendant.
Civil Suit No.1249/21Shiv Kumar Vs Radha Arya Page No.15 of 16 RELIEF
22. Thus, as a net result of the aforesaid discussion, the present suit filed on behalf of the plaintiff and against the defendant for recovery of Rs.61,000/- (Rupees Sixty One Thousand Only) is dismissed with no order as to cost.
23. After preparation of the decree sheet by the Reader, the file shall be consigned to the record room.
AMAN Digitally signed by AMAN KUMAR KUMAR SHARMA Date: 2024.02.21 SHARMA 16:28:41 +0530 Pronounced in open court (Aman Kumar Sharma) today on 21.02.2024 CJ-02/Shahdara District Karkardooma Courts/Delhi Note : This judgment contains 16 pages and all the pages have been checked and signed by me.
AMAN Digitally signed
by AMAN
KUMAR KUMAR SHARMA
Date: 2024.02.21
SHARMA 16:28:49 +0530
(Aman Kumar Sharma)
CJ-02/Shahdara District
Karkardooma Courts/Delhi
Civil Suit No.1249/21
Shiv Kumar Vs Radha Arya
Page No.16 of 16