Delhi District Court
Amit Gupta vs Sahil Chopra (Prop. M/S Magnum) on 6 April, 2024
IN THE COURT OF SH. SACHIN MITTAL
ADDITIONAL DISTRICT JUDGE-03, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CS DJ No. 907/18
In the matter of :
Mr. Amit Gupta,
S/o Sh. Ashok Kumar Gupta,
R/o A-2/9, W.H.S, DDA Marble Market,
Kirti Nagar, New Delhi-110015. ...... Plaintiff
Vs.
Mr. Sahil Chopra,
Proprietor of M/s Magnum,
R/o 904, Siddhartha Building,
96, Nehru Place, New Delhi.
...... Defendant
Date of Institution : 06.06.2018
Date on which arguments concluded : 14.03.2024
Date of Judgment : 06.04.2024
Result : Partly decreed
SUIT FOR RECOVERY OF RS. 15,26,705/- ALONGWITH
PENDENTE-LITE AND FUTURE INTEREST AT THE RATE OF
18% PER ANNUM AND COST OF THE SUIT AGAINST THE
DEFENDANT.
JUDGMENT
1. Vide this judgment, I shall decide the suit filed on behalf of plaintiff, praying therein for the passing of decree for the recovery of an amount of Rs. 15,26,705/- alongwith pendente-lite and future interest at the rate of 18% per annum and cost of the suit against the defendant.
CS DJ No. 907/18 Amit Gupta Vs. Sahil Chopra (Proprietor of M/s Magnum) page 1 of 19 PLAINT:
2. The pleadings in the plaint, in so far as the same are necessary and relevant for the purpose of deciding this suit, can be summarized as under:
(a) The defendant is the sole proprietor of M/s Magnum, a proprietorship firm engaged in the business of outdoor publicity;
(b) Plaintiff entered into an agreement dated 02.04.2010 with the defendant whereby the defendant was allowed to use the side wall of plaintiff's property bearing no. A-2/9, WHS, DDA Marble market, Kirti Nagar, New Delhi-110015 for display of advertisements through four wall wraps at the monthly rent of Rs.
1,10,000/-, subject to the increase at the rate of 10% after every year. The service tax and electricity charges were agreed to be paid by the defendant in addition to the rent amount. The said agreement was entered into for a period of five years;
(c) The Advertisement Department of MCD, vide letter dated 13.05.2010, granted permission to the defendant for display of advertisements through three wall wraps of the size 20'' x 10'' each (with total display area as 600 sq.ft.);
(d) That the rent was altered from time to time as per the mutual agreement between the plaintiff and defendant;
(e) Defendant, without permission from the MCD, increased the area for display of advertisements, which resulted into registration of an FIR No. 402/2015 dated 17.07.2015 at Kirti Nagar Police Station, upon the complaint lodged by the MCD against the plaintiff for the offence under Section 3 of the Delhi Prevention of Defacement of Public Property Act, 2007;
(f) A fine of Rs. 10,000/- was imposed upon the plaintiff, vide order CS DJ No. 907/18 Amit Gupta Vs. Sahil Chopra (Proprietor of M/s Magnum) page 2 of 19 dated 06.09.2016, passed by Ld. ACMM. Plaintiff had to suffer injury to his reputation and had to face harassment and embarrassment on account of the criminal litigation against him;
(g) Plaintiff used to regularly raise the bills for the rent, service tax and electricity charges. However, defendant was not regular in making the payments of the said bills;
(h) The agreement with the defendant was terminated on 31.03.2016 and as on that day an amount of Rs. 4,40,758/- towards rent, service tax and electricity charges was outstanding against the defendant. Plaintiff forfeited the security deposit amount of defendant;
(i) Defendant, vide email dated 16.05.2016, forwarded a ledger to the plaintiff whereby the defendant acknowledged the liability for an amount of Rs. 3,54,118/- as on 31.03.2016.
It is in the background of aforesaid facts as pleaded that the plaintiff is claiming the recovery of an amount of Rs. 15,26,705/- under the following heads: (i) Rs. 4,40,758/- towards arrears of rent, service tax and electricity charges; (ii) Rs. 85,947/- towards interest at the rate of 18% per annum upon aforesaid amount for the period from 31.03.2016 till the filing of the suit; and (iii) Rs. 10 Lakhs towards harassment, harm to the reputation, mental agony and humiliation. Plaintiff is also praying for award of pendente-lite and future interest at the rate of 18% per annum and costs of the suit.
WRITTEN STATEMENT:
3. The defence of defendant as pleaded in the written statement can be summarized as follows:
(a) The plaintiff and defendant were not maintaining any running account and the suit is barred by limitation;
CS DJ No. 907/18 Amit Gupta Vs. Sahil Chopra (Proprietor of M/s Magnum) page 3 of 19
(b) Though plaintiff and defendant had entered into an agreement dated 02.04.2010 for display of advertisements through four wall wraps, the MCD granted permission for three wall wraps only and, therefore, instead of rent of Rs. 1,10,000/- per month, as was agreed in the said agreement, a rent of Rs. 67,187/- per month was agreed between the plaintiff and defendant;
(c) Plaintiff never ever raised any dispute regarding the lesser rent allegedly being paid by the defendant;
(d) It is denied that the defendant increased the area of advertisement;
(e) The defendant was granted permission for display of advertisements by the MCD, which was valid for five years till 11.05.2015. As per the FIR, the MCD, inspected the property on 15.04.2015 and lodged a false FIR for displaying the advertisement without permission from the MCD;
(f) Plaintiff never informed the defendant about the registration of the aforesaid FIR;
(g) No amount towards arrears of rent, service tax, electricity charges etc., is due from defendant. It is denied that defendant was not making the payment regularly. Defendant is not liable to pay an amount of Rs. 4,40,758/- as on 31.03.2016 as per the alleged ledger of plaintiff;
(h) The email dated 16.05.2016, as alleged to have been sent by defendant to the plaintiff, is a forged document. It is wrong to state that as per the books of accounts of defendant, an amount of Rs. 3,54,118/- as on 31.03.2016, is due from defendant to plaintiff.
CS DJ No. 907/18 Amit Gupta Vs. Sahil Chopra (Proprietor of M/s Magnum) page 4 of 19 REPLICATION:
4. Plaintiff filed a replication therein denying the allegations/ averments made in defendant's written statement and reaffirming the submissions made in the plaint. Therefore, the contents of the replication are not being dealt with herein.
ISSUES:
5. Ld. Predecessor of this Court, vide order dated 04.04.2019, framed following issues:
Issue no.1: Whether the plaintiff is entitled for recovery of the suit amount as claimed? OPP Issue no.2: Whether the plaintiff is entitled for interest as claimed?
OPP PLAINTIFF'S EVIDENCE:
6. Plaintiff, in order to prove his case, examined three witnesses: (i) ASI Baldev Singh from Kirti Nagar Police Station as PW-
1, (ii) Shrikant Meena from Income Tax Department as PW-2, and (iii) plaintiff himself as PW-3.
6.1. ASI Baldev Singh, PW-1 was examined-in-chief, upon summoning from the Court. ASI Baldev, PW-1 brought the original FIR register which included FIR No. 0402/15 dated 17.07.2015, under Section 3 of Delhi Prevention of Defacement of Public Property Act, 2007 and tendered the same in evidence as Ex. PW1/1. PW-1 in his cross-examination stated that he did not have the personal knowledge of the case and that he had only brought the record. In view of this, PW-1 was discharged on 26.07.2019.
6.2. Shrikant Meena, PW-2 was examined-in-chief, upon summoning from the Court. PW-2 brought the summoned record i.e. CS DJ No. 907/18 Amit Gupta Vs. Sahil Chopra (Proprietor of M/s Magnum) page 5 of 19 certified copy of Form 26 A.S. for the financial year 2015-16 and assessment year 2016-17 of Sh. Amit Gupta bearing PAN No. AAOPG7642Q and tendered the same in evidence as Ex. PW2/1. PW-2 was not cross-examined on behalf of the defendant and was, therefore, discharged on 08.03.2021.
6.3. Amit Gupta i.e. plaintiff himself, PW-3 was examined-in- chief by way of tendering of affidavit, Ex. PW3/A and he tendered following documents in evidence:
(i) Agreement dated 02.04.2010 as Ex.PW3/1 (OSR) (in the affidavit the same is mentioned as Ex.PW1/1, but since the witness is examined as PW3, the same would be read as Ex.PW3/1);
(ii) Letter dated 13.05.2010 issued by MCD as Ex.PW3/2 (in the affidavit the same is mentioned as Ex.PW1/2, but since the witness is examined as PW3, the same would be read as Ex.PW3/2);
(iii) Copy of order dated 06.09.2016 as Ex.PW3/4 (colly) (in the affidavit the same is mentioned as Ex.PW1/4, but since the witness is examined as PW3, the same would be read as Ex.PW3/4);
(iv) Copy of invoices for the financial year 2015-2016 as Ex.PW3/5 (colly) (OSR) (objected to as to mode of proof as section 65B of Indian Evidence Act certificate is not filed) (in the affidavit the same is mentioned as Ex.PW1/5, but since the witness is examined as PW3, the same would be read as Ex.PW3/5);
(v) Print out of ledger for the period 01.04.2010 to 09.05.2016 along with certificate under section 65B of Indian Evidence Act as Ex.PW3/7 (colly) (in the affidavit the same is mentioned as Ex.PW1/7, but since the witness is examined as PW3, the same CS DJ No. 907/18 Amit Gupta Vs. Sahil Chopra (Proprietor of M/s Magnum) page 6 of 19 would be read as Ex.PW3/7);
(vi) Print out of email dated 16.05.2016 with attachment along with certificate under section 65B of Indian Evidence Act as Ex.PW3/8 (colly) (in the affidavit the same is mentioned as Ex.PW1/8, but since the witness is examined as PW3, the same would be read as Ex.PW3/8).
Plaintiff, PW-3, in his evidence-affidavit, has deposed in line with the submissions made in the plaint as explained herein above and, therefore, the same are not being reiterated herein again for the sake of brevity. Plaintiff, PW-3 was cross-examined on behalf of defendant on 11.01.2023 and discharged.
DEFENDANT'S EVIDENCE:
7. Defendant, in his defence, examined himself as DW-1 by way of tendering of affidavit, Ex. DW1/A. DW-1 was cross-examined on behalf of plaintiff on 17.10.2023 and discharged. Defendant/DW-1 also deposed in line with the defence taken in the written statement.
ARGUMENTS:
8. I have heard Sh. Sidhant Bhatia, Ld. Counsel for plaintiff and Sh. Rohit Jain, Ld. Counsel for defendant and perused the record. On behalf of plaintiff, two written submissions were filed on 04.01.2024 and on 16.02.2024. Written submissions on behalf of defendant were filed on 04.01.2024.
FINDING ON ISSUES:
9. Issue no.1: Whether the plaintiff is entitled for recovery of the suit amount as claimed? OPP 9.1. The burden of proving this issue was upon the plaintiff.
9.2. Plaintiff is seeking the recovery of an amount of Rs.
CS DJ No. 907/18 Amit Gupta Vs. Sahil Chopra (Proprietor of M/s Magnum) page 7 of 19 15,26,705/- under the following heads: (i) Rs. 4,40,758/- towards arrears of rent, service tax and electricity charges; (ii) Rs. 85,947/- towards interest at the rate of 18% per annum upon aforesaid amount for the period from 31.03.2016 till the filing of the suit; and (iii) Rs. 10 Lakhs towards harassment, harm to the reputation, mental agony and humiliation.
9.3. Plaintiff is claiming Rs. 4,40,758/- under the first head on the basis that the said amount is reflected in the debit column at the foot of the ledger, Ex. PW-3/7(colly.) against the date 31.03.2016. Plaintiff's case is that the said outstanding amount has accrued as a result of failure of defendant to clear the arrears of rent, service tax and electricity charges over the period since the inception of agreement dated 02.04.2010, Ex. PW-3/1. Plaintiff, for the purpose of proving the claim for the said amount, has relied upon the ledger, Ex.PW-3/7(colly.) for the period from 05.04.2010 till 31.03.2016, which plaintiff claims that he was maintaining as a running account. Per contra, Ld. Counsel for defendant has argued that the alleged claim of plaintiff is barred by limitation. It has also been argued that defendant had been making the payment of rent, service tax and electricity charges on monthly basis, and not on the basis of any running account.
9.4. Section 3 of the Limitation Act, 1963, enjoins a duty upon the Court to dismiss the suit, if the same is barred by limitation, even if the defence of limitation has not been taken by the defendant. In the present case, defendant has taken a defence of the present suit being barred by limitation. In view of this, it becomes necessary to examine whether the suit is within the limitation period, or not. For the recovery of arrears of rent, Article 52 of the Limitation Act, 1963, prescribes a period of three years from the date the arrears become due. In the present case, as per the agreement dated 02.04.2010, Ex. PW-3/1, rent CS DJ No. 907/18 Amit Gupta Vs. Sahil Chopra (Proprietor of M/s Magnum) page 8 of 19 was agreed to be paid monthly. Thus, in the present case, the rent became due at the end of every month. The present suit was filed on 06.06.2018. As the limitation period for the suit for the recovery of rent is three years from the date of rent becoming due, the claim for the recovery of arrears of rent etc. for the period prior to June, 2015, will be time barred. In the present matter, plaintiff's case is that the outstanding amount of Rs. 4,40,758/- has arisen as a result of failure of defendant to make the timely and regular payment of rent, service tax, electricity charges etc. since the date of agreement dated 02.04.2010, Ex. PW-3/1. In this regard, plaintiff has relied upon the ledger, Ex.PW-3/7 (colly.), which starts from the date of 05.04.2010 and lasts till the date of 31.03.2016. Plaintiff has not explained as to against the rent of which month(s), the said amount of Rs. 4,40,758/- has become due. Rather, the specific case of plaintiff, as pleaded in plaint, is that defendant had been irregular in making payment of rent, service tax, electricity charges etc. since the beginning, as a result of which the aforesaid amount has become outstanding. I am of the considered view that there is no provision in law, as per which, the plaintiff can claim the recovery of rent on the basis of a running account. The concept of open and running account and maintainability of suit of recovery within three years from the date of last entry, as per Article 113 of the Limitation Act, has been recognized only in case of suit for recovery in case of dispute arising out of sale/purchase of goods/services. The basis of the concept of open and running account is that when a buyer after receiving delivery of goods pursuant to his purchase order, places a subsequent order for supply of goods, in the such subsequent order there is an implied contract/promise to pay for the previous orders as well and thus, the previous contract merges into the subsequent contract, which arises out of subsequent purchase orders. This concept of open and running account and CS DJ No. 907/18 Amit Gupta Vs. Sahil Chopra (Proprietor of M/s Magnum) page 9 of 19 limitation period of three years to begin from the date of last entry at the foot of such an open and running account was explained by the Delhi High Court, vide its judgment dated 21.12.2011, in the case titled Bharath Skins Corporation v. Taneja Skins Co. Pvt. Ltd ., RFA (OS) 13/2002. The present suit being for the recovery of alleged arrears of rent, service tax, electricity charges etc., cannot be premised on an open and running account.
9.5. Though, the plaintiff in the plaint had no where claimed that his claim for the recovery of an amount of Rs. 4,40,758/- was for the arrears of rent for the period from June, 2015 onwards, the Ld. Counsel for the plaintiff in the written submissions filed on 16.02.2024 has submitted that the said amount is being claimed for the period from 01.10.2015 to 31.03.2016. It is a settled law that a party cannot be allowed to lead evidence, or to argue beyond the pleadings. In view of this, plaintiff cannot be allowed to be heard to argue that plaintiff's claim for the recovery of Rs. 4,40,758/- was for the arrears of rent, service tax and electricity charges becoming due during the period from 01.10.2015 to 31.03.2016. Not only this, plaintiff has not been able to prove that the said amount of Rs. 4,40,758/- has arisen on account of alleged arrears during the period from 01.10.2015 to 31.03.2016.
9.6. Plaintiff's entire claim for recovery is based upon the argument that the plaintiff in the normal course of business was maintaining an open and running account, Ex. PW-3/7, which reflects an outstanding amount of Rs. 4,40,758/- in the debit column at the foot of the ledger against the date 31.03.2016. Defendant has alleged the said ledger to be a forged and fabricated document on the basis of manipulated and inflated figures therein. Plaintiff has also relied upon the invoices, Ex. PW3/5 (colly.). However, plaintiff has not led any evidence to prove that the said invoices were acknowledged by the CS DJ No. 907/18 Amit Gupta Vs. Sahil Chopra (Proprietor of M/s Magnum) page 10 of 19 defendant. It is a well settled position in law that a ledger has no evidentiary value unless the entries made therein are proved by independent evidence which, in other words, would mean that there must be corroboration of entries, which corroboration can be supplied by proving the transaction, or by proving the entries in the ledger on the basis of receipt/voucher/bill. Without corroboration, entries in the ledger cannot be brought within the purview of Section 34 of the Evidence Act. In the present case, the invoices, Ex. PW3/5(colly.), on the basis of which, the entries in the ledger, Ex. PW3/7(colly.) have been made, have not been proved to have been acknowledged by the defendant. In view of this, the ledger, Ex.PW3/7(colly.) cannot even be considered to be a relevant fact within the meaning of the Section 34 of the Evidence Act. I do not find any merit in the contention made on behalf of plaintiff that the Court should draw the presumption under Section 114(f) of the Evidence Act that the said ledger Ex. PW3/7 (colly.) depicts actual transaction between the parties. A ledger, relied upon by any party, can, by no stretch of imagination, be deemed to be correct by virtue of Section 114(f) of the Evidence Act. A ledger has not only to be properly tendered in evidence, but the same has to be proved also. Even Section 34 of Evidence Act only provides that the ledger may be relevant, but not sufficient evidence to fasten liability upon the opposite party. It is also a settled law that the case of plaintiff has to stand on its own legs.
9.7. There is yet another reason for not considering the claim of plaintiff for the recovery of Rs. 4,40,758/- to be for the recovery of arrears of rent, service tax and electricity charges etc. from 01.10.2015 to 31.03.2016. A perusal of the copies of invoices, Ex. PW-3/5(colly.) and ledger, Ex. PW-3/7, shows that from June, 2015 onwards and till 31.03.2016, plaintiff allegedly raised the following demands towards rent, service tax and electricity charges etc. CS DJ No. 907/18 Amit Gupta Vs. Sahil Chopra (Proprietor of M/s Magnum) page 11 of 19 Date Particulars Amount (Rs.) 01.06.2015 Towards rent and service tax 76,593/-
30.06.2015 Towards electricity charges 2236/-
01.07.2015 Towards rent and service tax 76,593/-
31.07.2015 Towards electricity charges 1618/-
01.08.2015 Towards rent and service tax 76,593/-
01.09.2015 Towards rent and service tax 76,593/-
30.09.2015 Towards electricity charges 5000/-
01.10.2015 Towards rent and service tax 76,593/-
01.11.2015 Towards rent and service tax 76,593/-
30.11.2015 Towards electricity charges 5000/-
01.12.2015 Towards rent and service tax 76,929/-
01.01.2016 Towards rent and service tax 76,929/-
31.01.2016 Towards electricity charges 5000/-
01.02.2016 Towards rent and service tax 76,929/-
01.03.2016 Towards rent and service tax 76,929/-
31.03.2016 Towards electricity charges 5000/-
Total 7,91,128 9.8. It is also relevant to note here the payments as per the ledger, Ex. PW-3/7, made by the defendant:
Date Particulars Amount (Rs.)
18.08.2015 Towards rent and service tax 1,51,842/-
18.08.2015 Towards TDS 672/-
18.08.2015 Towards TDS 672/-
15.09.2015 Towards rent and service tax 75,921/-
15.09.2015 Towards TDS 672/-
12.10.2015 Towards rent and service tax 75,921/-
12.10.2015 Towards TDS 672/-
04.12.2015 Towards rent and service tax 75,921/-
04.12.2015 Towards TDS 672/-
13.01.2016 Towards rent and service tax 75,921/-
CS DJ No. 907/18 Amit Gupta Vs. Sahil Chopra (Proprietor of M/s Magnum) page 12 of 19
13.01.2016 Towards electricity expense 3602/-
13.01.2016 Towards TDS 672/-
11.02.2016 Towards rent and service tax 76,257/-
11.02.2016 Towards TDS 672/-
Total 5,40,089/-
9.9. Thus, during the period between June, 2015 to 31.03.2016, while the plaintiff had raised a demand towards rent, service tax and electricity charges for a total amount of Rs. 7,91,128, defendant made a total payment of Rs. 5,40,089 towards the said demand. At the most, as per the ledger, Ex.PW-3/7 (colly.), an amount of Rs. 2,51,039/- only (7,91,128 - 5,40,089) can be said to be outstanding against the defendant. Out of the said outstanding amount of Rs. 2,51,039/- against the defendant, an amount of Rs. 1,10,000/- paid by the defendant to plaintiff as a security deposit at the of entering into agreement, Ex. PW- 3/1, is liable to be deducted, which results into Rs. 1,41,039/-. There is no legal justification for the plaintiff to forfeit the security deposit of Rs. 1,10,000/- as claimed in the plaint. It can, thus, be concluded that the amount of Rs. 4,40,758/- as reflected in the debit column at the foot of the ledger, Ex. PW/3/7 (colly.) against the date of 31.03.2016 has not arisen within three years prior to the date of filing the present suit i.e. 06.06.2018. Plaintiff's claim for the recovery of arrears of rent, service tax and electricity charges for the period prior to June, 2015, if any, is barred by limitation. Here, I also reject the arguments on behalf of defendant that the liability of defendant to pay the rent, service tax and electricity charges etc. for the display of advertisement had come to an end in the month of July, 2015, when the FIR was lodged and the display board etc. were allegedly impounded by the police/MCD. It is for the reason that if defendant's this claim had been true, defendant CS DJ No. 907/18 Amit Gupta Vs. Sahil Chopra (Proprietor of M/s Magnum) page 13 of 19 would not have made any monthly payment to the plaintiff till the month of February, 2016, as shown in the table in the para 9.8. herein above. Not only this, defendant would also not have deposited the TDS during the financial year, 2015-2016, as reflected in the Form 26 A.S., Ex.PW- 2/1.
9.10. Ld. Counsel for plaintiff has placed heavy reliance upon the email dated 16.05.2016 with the ledger account attached therewith, Ex. PW-3/8 (colly.) allegedly sent by defendant to plaintiff thereby acknowledging the liability for an amount of Rs. 3,54,118/- as on 31.03.2016. Defendant has denied the said email on the ground that the same is a forged document. A perusal of the said email shows that it merely contains the words 'Dear sir, pfa. Regards, Sanhita '. The acronym 'pfa' stands 'please find attached'' as is used in common parlance. For the purpose of Section 18 of the Limitation Act, 1963, an acknowledgement must be unambiguous and clear. I am of the considered view that the mere use of the word ' pfa' in the body of the email does not amount to an acknowledgement of any debt, or liability. Section 18 of the Limitation Act also requires that the acknowledgement should be in writing and signed by the party against whom such right is claimed. Now, coming to the present case, the accounts statement attached to the said email does not bear any signature, be it electronic signature, or digital signature. There is no law that the requirement of signature upon the acknowledgement is not applicable in case of the acknowledgement sent through email. Thus, I conclude that neither the body of the email, nor the attached statement of account, constitute a valid acknowledgement of debt, or liability in terms of Section 18 of the Limitation Act.
9.11. Moreover, even if the said email dated 16.05.2016 with the ledger account attached therewith, Ex. PW-3/8 (colly.) were to be CS DJ No. 907/18 Amit Gupta Vs. Sahil Chopra (Proprietor of M/s Magnum) page 14 of 19 assumed to be a valid acknowledgement in terms of Section 18 of the Limitation Act, the said provision does neither amounts to proof of the debt/liability, nor does the same furnish any cause of action for claiming the recovery of such debt/liability. Section 18 of the Limitation Act, merely provides that a fresh period of limitation shall be computed from the time when the acknowledgement was signed. Section 18 further requires that the acknowledgement must be made before the expiration of the prescribed period for a suit in respect of the debt/liability. Section 18 does not absolve the plaintiff from the burden of proving the factum of debt/liability, which plaintiff has failed to prove that the said amount of Rs. 3,54,118/- as per the ledger attached with aforesaid email, or the amount of Rs. 4,40,758/- as claimed, has become outstanding as a result of non-payment of rent/service tax and electricity charges within three years prior to filing the present suit.
9.12. It is also not the case of the plaintiff that the email dated 16.05.2016 with the ledger account attached therewith, Ex. PW-3/8 (colly.) amounts to a promise to pay time barred debt in terms of Section 25 of the Contract Act, 1872, and furnishes a fresh cause of action for the recovery of the same. Rather, the case of plaintiff is that claim for the recovery of an amount of Rs. 4,40,758/- as reflected in the debit column at the foot of the ledger, Ex. PW/3/7 (colly.) against the date of 31.03.2016 is very much within the limitation period.
9.13. In view of the above discussion, plaintiff is held to be not entitled to his claim for the recovery under the first head i.e. an amount of Rs. 4,40,758/-. Plaintiff is, however, held entitled to the recovery of an amount of Rs. 1,41,039/- as per the discussion in para no.9.9 herein above.
9.14. Plaintiff, under the second head of the claim amount, is claiming the recovery of an amount of Rs. 85,947/- towards interest at CS DJ No. 907/18 Amit Gupta Vs. Sahil Chopra (Proprietor of M/s Magnum) page 15 of 19 the rate of 18% per annum upon the amount of Rs. 4,40,758/- as claimed under the first head for the period from 31.03.2016 till the filing of the suit. Plaintiff basically is seeking award of pre-suit interest. It is a settled law that the pre-suit interest is governed by the terms of agreement between the parties. In the case at hand, there being no term regarding the interest in the agreement dated 02.04.2010, Ex. PW-3/1, plaintiff is not entitled to the said pre-suit interest.
9.15. Plaintiff under the third head of the claim amount is claiming the recovery of an amount of Rs. 10 Lakhs as damages/ compensation for the mental agony, harassment, humiliation and injury to reputation on account of criminal litigation/FIR lodged against him. Plaintiff claims that the defendant, without permission from the MCD, increased the area for display of advertisements, which resulted into registration of an FIR No. 402/2015 dated 17.07.2015 at Kirti Nagar Police Station, upon the complaint lodged by the MCD against the plaintiff for the offence under Section 3 of the Delhi Prevention of Defacement of Public Property Act, 2007. It has also been argued on behalf of plaintiff that he for the sake of peace had to compound the offence by pleading guilty as a result of which a fine of Rs. 10,000/- was imposed upon him, vide order dated 06.09.2016, Ex. PW-3/4 (colly.), passed by Ld. ACMM. Defendant, on the other hand, denies that he increased the area of advertisement. Ld. Counsel for defendant has argued that the said FIR was not lodged on account of any alleged increase in the advertisement area, rather, the same was lodged on the basis of MCD complaint alleging the display of advertisement without prior permission of MCD. Ld. Counsel for defendant, therefore, argues that the said FIR was frivolous as defendant, in fact, had the sanction/permission of the MCD, vide letter dated 13.05.2010, Ex. PW3/2, for the display of advertisement. It is also the case of the CS DJ No. 907/18 Amit Gupta Vs. Sahil Chopra (Proprietor of M/s Magnum) page 16 of 19 defendant that the plaintiff without informing the defendant about the lodging of the said FIR, compounded the alleged offence on his own.
9.16. Plaintiff in support of his claim for the award of compensation/damages has relied upon the judgment dated 13.12.2022 in the case titled Tejpal Singh v. Surinder Kumar Dewan, 2022 SCC OnLine Del 4667. Defendant has relied upon judgment dated 24.08.2012 in the case titled Tower Vision India Pvt. Ltd v. Procall Pvt. Ltd, CO.PET. 458/2010 and CA No.2179/2010 for the purpose of contending that the claim for compensation/damages cannot be allowed without proof. Upon careful consideration, I am of the view that the facts of the case in Tejpal Singh (Supra) are distinguishable from those of the present case. In Tejpal Singh (Supra), the claimant had entered into a collaboration agreement for the development of his property with a builder, who carried out unauthorized construction, which resulted into sealing by the MCD of the property of claimant. The construction was then demolished by the MCD. The property was then de-sealed. The builder, however, again started raising the unauthorized construction, which resulted into lodging of an FIR against the claimant. The claimant had to apply for anticipatory bail, which was rejected by the Court of Sessions. The anticipatory bail was, however, granted by the Delhi High Court. The claimant was the senior citizen of the age of 72 years and he was deprived of his property for some time. It was in such circumstances that the Delhi High Court had upheld the damages on account of mental agony and harassment awarded by the Arbitrator in favour of the claimant and against the builder. In the present case, plaintiff, though, has alleged that the FIR was lodged on account of defendant increasing the advertisement area, no evidence in this regard has been led on behalf of the plaintiff. Per contra, the perusal of the FIR shows that the same was lodged upon the complaint of MCD, which was CS DJ No. 907/18 Amit Gupta Vs. Sahil Chopra (Proprietor of M/s Magnum) page 17 of 19 to the effect that upon the inspection on 15.04.2015, the advertisement hording was found upon the wall of property of the plaintiff and upon examination of the official record, it was found that the display of advertisement hording was without any prior permission of MCD. Thus, there was no allegation of defendant increasing the advertisement area. Defendant has also been able to prima-facie satisfy the Court that he had permission/sanction for the display of the advertisement, vide letter dated 13.05.2010, Ex. PW3/2, issued by the MCD. Be that as it may, when the case of the plaintiff is that it was as a result of illegal act/omission of defendant that the said FIR was lodged, it was the duty of plaintiff to inform the police, or the Court that any criminal litigation/FIR is to be initiated against the defendant and not against the plaintiff. Plaintiff, however, in his own wisdom, chose to plead guilty and pay the fine imposed by the Court. In such circumstances, I do not find the plaintiff to be entitled to the claim of damages/compensation on account of any alleged mental agony/harassment/humiliation/injury to reputation, which plaintiff has failed to prove.
9.17. In view of the above discussion, plaintiff is held to be entitled for the recovery of an amount of Rs. 1,41,039/- as explained in para 9.9 herein above. The issue no. 1 is, thus, partly decreed in favour of the plaintiff.
10. Issue no.2: Whether the plaintiff is entitled for interest as claimed? OPP 10.1. The burden of proving this issue was upon the plaintiff.
10.2. Plaintiff has claimed pendente-lite and future interest at the rate of 18% per annum. However, I find the same to be on disproportionately higher side. I am of the view that pendente-lite and future interest at the rate of 9% per annum would meet the end of CS DJ No. 907/18 Amit Gupta Vs. Sahil Chopra (Proprietor of M/s Magnum) page 18 of 19 justice.
11. Relief 11.1. In view of the above discussion, the suit of plaintiff is partly decreed and a decree for the recovery of an amount of Rs. 1,41,039/- along with pendente-lite and future interest at the rate of 9% per annum till the realization of the same is passed in favour of plaintiff and against the defendant. No order as to costs of the suit. The decree sheet be prepared accordingly.
12. File be consigned to Record Room thereafter.
Digitally signedSACHIN by SACHIN MITTAL Announced & dictated in MITTAL Date: 2024.04.06 17:19:20 +0530 the open court on 06.04.2024 (Sachin Mittal) ADJ-03/South-East District Saket Courts, New Delhi/06.04.2024 Certified that this judgment contains 19 pages and each page bears my signatures. Digitally signed by SACHIN SACHIN MITTAL MITTAL Date: 2024.04.06 17:19:25 +0530 (Sachin Mittal) ADJ-03/South-East District Saket Courts, New Delhi/06.04.2024 CS DJ No. 907/18 Amit Gupta Vs. Sahil Chopra (Proprietor of M/s Magnum) page 19 of 19