Delhi District Court
Mohd. Azad S/O Mohd. Samsuddin vs Amit Singh S/O Sh. Jagdish Roshan on 12 March, 2014
IN THE COURT OF Ms. TANVI KHURANA, CIVIL JUDGE01 (South)
SAKET COURTS NEW DELHI
In the Matter of:
Civil Suit No.476/14
Case ID No.:02403C0147822009
Mohd. Azad S/o Mohd. Samsuddin
R. A2/66, New Kondly, Delhi 96 .....Plaintiff
Versus
1.Amit Singh S/o Sh. Jagdish Roshan
Proprietor of; Sai Exports INC
D65, Dudh Vihar, Delhi.
Res. Add.
C35, SectorII, Vaisali, Gaziabad, U.P.
2. Pawan Kumar
Partner /Proprietor of; Sai Export
D65, Budh Vihar, Delhi.
Res. Add.
K408/10, Mahilpur Extn. New Delhi. .....Defendants
Date of institution :30.05.2009/16.01.2014
Date of reserving the judgment :28.02.2014
Date of pronouncement :12.03.2014
Decision :Partly Decreed
Suit for recovery of Rs.2,70,000/ (Rupees Two Lacs Seventy
Thousand only)
Present: Plaintiff in person
JUDGMENT:
The plaintiff has filed the present suit seeking recovery of Rs. 2,70,000/(Rupees Two Lacs Seventy Thousand only) along with 24% interest per annum in favour of the plaintiff and against the defendant along with costs and interest of Suit No.476/14 Mohd. Azad Vs. Amit Singh etc. Page 1 of 25 24% per annum with quarterly rest from the date of filing of the suit till actual final realization.
Plaintiff's Version:
2. Succinctly, the facts as stated in the plaint are that the plaintiff was working with the defendants as they were running fabrication unit of ready made garments. For the purpose of their business, the defendants used to entrust the work on making different types of garments. It is averred that the rates were fixed by the defendants as per the quality and design of the garments. It is submitted that plaintiff used to engage expert tailors for stitching the clothes. It is submitted that the ready made garments were handed over to the defendants through challans prepared by the plaintiff. It is averred that thereafter bills were raised and defendants used to make the payment. It is also submitted that it was agreed among the parties that the plaintiff would get 10% of the amount as commission excluding the bill raised by the plaintiff, although the commission amount was mentioned in the bills which were accepted by the defendants.
3. It is submitted that defendants placed order on serveral occasions in the month of February 2006. It is stated that experts were engaged by the plaintiff during February 2006 to May 2006 and the order was got ready. The ordered goods were handed over to the defendants and challan was issued which was duly received by the defendants. The challan No. 025,028 to 044, 051 to 062 were Suit No.476/14 Mohd. Azad Vs. Amit Singh etc. Page 2 of 25 handed over to either of the defendant or officials of the defendants.
4. It is further submitted that total work done during that period was worth of Rs.6,61,000/ (Rupees Six Lacs Sixty One Thousand only) including the commission of the plaintiff against which bills such as bill no. 013 (revised bill no. 012 for Rs. 1,32,914/ dated 06.03.2006 for a sum of Rs.
1,26,225.50/), bill no. 014 dated 31.03.2006 for sum of Rs. 1,24,692/, bill no. 016 dated 30.04.2006 for the sum of Rs. 2,30,318/, bill no. 017 dated 25.05.2006 for the sum of Rs. 1,73,115/ were given to the defendant but payment of Rs. 3,91,000/ was received and the rest i.e. Rs. 2,70,000/ is still pending.
5. It is further submitted that bill no. 12 dated 06.03.2006 was raised for Rs.1,26,225.50/ and commission of Rs. 12,622.55/ which was revised by the defendant and for this reason bill no. 13 for a total amount of Rs. 1,32,914/ was raised.
6. It is further submitted that Mr. Amit Singh/ defendant no. 1 had issued a cheque bearing no. 211345 dated 01.05.2006 drawn on IDBI Bank for a sum of Rs. 50,000/ in favour of the plaintiff which was presented thrice but returned with remarks of "insufficient funds". It is submitted that the plaintiff approached defendant no.1 for the payment who refused to make the payment. Having no option, the plaintiff issued legal notice dated 16.09.2006 but in vain. Hence the present suit was filed.
Suit No.476/14 Mohd. Azad Vs. Amit Singh etc. Page 3 of 25Defendant's Version:
7. On notice, the defendants filed joint written statement. In the written statement, defendants raised objections that the suit is not maintainable as the plaintiff has not approached the court with clean hands and has suppressed the material facts from the court. Nonjoinder and misjoinder of necessary parties, absence of cause of action and the case being based upon forged documents were also raised as objections. It was submitted that the defendants were working in partnership firm under the name and style of "Sai Exports Inc" and were dealing in manufacturing and supply of garments to the exporters. It is submitted that apart from answering defendants,Sh.
Laleshwar was also an active partner of the firm. It was submitted that the partnership firm is duly registered. It was also submitted that the plaintiff approached the defendants and had assured them of better quality of work and timely delivery. It is alleged that the quality of work of the plaintiff was not up to the mark and delivery of goods were not in time and defendants suffered huge losses and had to wind up the business. It is submitted that the plaintiff used to raise bills time to time which were duly paid. As per the defendant following bills were raised:
S. No. Date Amount in INR
1. 06.03.2006 120831.05
2. 31.03.2006 11357.65
3. 30.04.2006 209380
Suit No.476/14
Mohd. Azad Vs. Amit Singh etc. Page 4 of 25
The total amount is Rs. 4,43,568.80/, including the commission of the plaintiff the total payable amount comes to Rs. 4,87,924/ only. It is further submitted that the plaintiff has received the payments as advance and against the bills vide different vouchers which are duly signed and acknowledged by the plaintiff are as under:
S. No. Date Amount in INR
1. 15.02.2006 7000
2. 25.02.2006 5000
3. 10.03.2006 27800
4. 13.03.2006 65000
5. 24.03.2006 7100
6. 29.03.2006 1600
7. 29.03.2006 5000
8. 03.04.2006 3500
9. 10.04.2006 80000
10. 11.05.2006 100000
11. 11.05.2006 10000
12. 19.05.2006 30000
13. 19.05.2006 6600
14. 24.05.2006 70000
15. 24.05.2006 2000
16. 31.07.2006 130000
It totals to Rs.5,50,600/. It is also submitted that apart from above cash amount, the plaintiff has also taken a newly purchased boiler worth Rs. 69,000/ from the Defendant for the purpose of sale and agreed to pay back the same to the defendants. Thus amount paid in excess to the tune of Rs.
Suit No.476/14 Mohd. Azad Vs. Amit Singh etc. Page 5 of 251,30,000/ is to be paid to the defendants by the plaintiff.
8. On merits, it was stated that as the plaintiff had failed in performing his duties, the business of the defendant could last for six months. It is also submitted that challans were not meant for the purpose of payment as the bills were separately raised. It was also stated that the plaintiff has raised fabricated bills especially bill dated 25.05.2006. It is also submitted that the challans are also fabricated as some of them do not bear the signatures of the defendant and have been produced by the plaintiff with signatures of the unknown persons. It was stated that the defendants have paid extra amount to the tune of Rs.62,676/ even after deducting commission of the plaintiff though it was not agreed. It was further stated that the plaintiff had also taken the boiler machine worth of Rs.69,000/with the undertaking that he will pay the extra amount. Therefore, it is stated that the plaintiff is liable to pay a sum of Rs. 1,30,000/. It is also submitted in the written statement that the cheque amount was paid to the plaintiff way back in May 2006 itself and the plaintiff presented the cheque only in order to extort money from the defendant. The receipt of any notice was denied. Rest of the averments of the plaint were denied. It was prayed that the suit be dismissed and the plaintiff be directed to pay the sum of Rs. 1,30,000/ to the defendants.
Replication:
9. The plaintiffs had filed replication denying the Suit No.476/14 Mohd. Azad Vs. Amit Singh etc. Page 6 of 25 contentions raised in the written statement and stated that the suit is maintainable and stated that the plaintiff did not receive the payments as advances. It was submitted that the vouchers are forged and fabricated. All the contentions raised in the written statement were denied. The claim in the plaint was reiterated.
Identification of issues:
10. Admission and denial of the documents was conducted and from the pleadings of the parties, following issues were framed vide order 22.08.2012 by the Ld. Predecessor:
1. Whether the suit is bad for non joinder of necessary parties ? If so, its effect?OPD
2. Whether the defendants have already made the payment as averred in paragraph 7 of the written statement?OPD
3. Whether the plaintiff is entitled to recover the sum claimed for in the plaint?OPP
4. Whether the plaintiff is entitled to the interest claimed? If so, at what rate?OPP
5. Relief.
It is pertinent to mention here that along with the written statement, the defendants had filed counter claim which was registered as separate suit bearing no. 202/11. However the same was dismissed vide order dated 03.10.2012 by Ld. Predecessor.
Evidence:
11. The plaintiff in order to discharge the onus examined as many as three witnesses and thereafter closed his evidence vide a separate statement dated 11.01.2013.Suit No.476/14 Mohd. Azad Vs. Amit Singh etc. Page 7 of 25
12. The plaintiff, Mohd. Azad stepped into the witness box as PW1 to establish his case. He vide his affidavit Ex.
PW1/A, deposed that there has been long relationship among the plaintiff and defendants. It is stated that the defendants are running fabrication unit and he worked for the defendant by engaging number of experts as tailors for stitching cloths for the defendants. He deposed about the challans which according to him were handed over to the defendants. He further deposed about getting 10% as commission excluding the bill raised by him. He further deposed that about the nonpayment of bills for the work done from February 2006 to May 2006. He further deposed about the rates being fixed by the defendant and recorded in the register with their signatures and stamp. It was further stated by him that total work done in that period was worth Rs. 6,61,000/ including the commission. He deposed about raising various bills. He stated that out of which Rs. 3,91,000/ is paid and Rs. 2,70,000/ is due. He also deposed about issuance of cheque by defendant no. 1 which was presented thrice but was returned due to "insufficient funds". He further stated that the cheque was later on torn by the defendant. He also deposed about the serving legal notice upon the defendants. He further stated that he is entitled recovery amount as claimed in the plaint.
13. In his cross examination, he stated that he knew Mr. Amit Singh/defendant since 2000 and Mr. Pawan Kumar since 2006. The order was placed by Mr. Amit Singh. He Suit No.476/14 Mohd. Azad Vs. Amit Singh etc. Page 8 of 25 further stated that the orders used to be placed to him orally and after completing the order, he used to execute the challan. He denied to the suggestion that advance payment was paid by the defendants and that at times, the defendant used to give the salary to his employers. He also denied to the suggestion that he used to ask money from Mr. Amit for giving salary to his employees. He volunteered that he used to ask money only when he used to raise the challans. He stated that he had taken approximately Rs. 3,91,000/ from the defendants towards the payment. The witness was shown voucher dated 19.05.2006 (Ex.P3). He denied his signatures thereupon. He was also shown voucher dated 31.07.2006. He admitted his signatures and stated that he had taken only Rs.30,000/ and not Rs. 1,30,000/. He was also shown voucher dated 24.03.2006 and 19.08.2006. He admitted his signatures on both the vouchers. The vouchers were exhibited as Ex. PW1/D2 and Ex. PW1/D3. To the voucher dated 03.04.2006, he denied his signatures thereupon. He was also confronted with the letter dated 28.07.2007. He admitted signatures and that it was written by him. The document was exhibited as Ex. PW1/D1. He denied to the suggestion that bill dated 25.05.2006 was forged and fabricated. He also denied that bill was given to the defendant for payment. He volunteered the bill was given to Mr. Rajesh who was production Manager of the defendants. He stated that he used to give the bills to Mr. Amit most of the time. He denied to the Suit No.476/14 Mohd. Azad Vs. Amit Singh etc. Page 9 of 25 suggestion that the challans placed on record were forged and fabricated. He denied to the suggestion that he had filed false cases against other companies as well or that he had filed false case against M/s Eagle Fashion. He also stated that mainly the payments were made by way of cash. Only one payment was made by way of cheque which was for Rs. 50,000/. He stated that cheque was torn by the defendants 15 days prior to wedding of brother of the defendants. He stated that after the cheque was given on 01.05.2006, cash payment of Rs.30,000/ was made on 31.07.2006. He did not remember the exact date when the cheque was torn. He did not know when the factory of the defendants was shut. He stated that when the last bill dated 25.05.2006 was raised, he did not visit the factory of the defendant, he used to go to their residence to take the payment. He denied to the suggestion that he had written a letter to the defendants that he would give Dharna out side the factory / residence of the defendants. He denied to the suggestion that after the said letter was written, he deposited the cheque dated 01.05.2006 for encashment twice to harass the defendants. He stated that it was correct that Mr. Amit gave him a boiler on 28.07.2007. He denied to the suggestion that boiler was given for selling and paying the money to Mr. Amit. He volunteered that the boiler was given to him for selling and for utilizing the amount towards his payment due from the defendants. He stated that he had informed the defendants that boiler could be Suit No.476/14 Mohd. Azad Vs. Amit Singh etc. Page 10 of 25 sold for Rs. 25,000/ after rapair. He stated that he carried the repair which was for Rs. 5,000/ and he got Rs. 20,000/ from the selling the boiler. He further stated that he had added the payment of Rs. 20,000/ in the payment of Rs. 3,91,000/ made by the defendants. He denied to the rest of the suggestions put to him by Ld. Counsel for the defendant.
14. Thereafter, PW2, Mohd. Rozuddin, stepped into the witness box and vide his affidavit Ex. PW2/A deposed that he was one of the coworker along with the plaintiff. He stated that he worked with the plaintiff for preparation of export garments at piece rates for the order placed by the defendants. He deposed that the plaintiff used to take the cost of the preparation of the garments and 10% commission on every piece of garments from the defendants. He stated that he had worked with the plaintiff since February 2006 to May 2006 for the work order placed by the defendants. He further deposed that the defendants had last paid Rs. 30,000/ as part payment on 31.07.2006 and Mr. Amit Singh had torn the cheque in his presence with assurance to pay the amount. He further deposed that the same was not paid and Rs. 2,70,000/ is due towards the defendants.
15. In his cross examination, he stated that he undertakes the work of stitching and runs flat machine. He stated that he used to run machine at the factory of the defendants. He also stated that since he used to work in the office of Suit No.476/14 Mohd. Azad Vs. Amit Singh etc. Page 11 of 25 defendants, he was aware of the dealings with the plaintiff. He denied to the suggestion that he was deposing falsely that the plaintiff used to take 10% commission on every piece of garments from the defendants. He volunteered that he had gone the number of times to the residence of the defendants with the plaintiff to demand money. He stated that the cheque was torn around the seventh month of the year 2006. He denied to the suggestions put to him by Ld. Counsel for the defendants.
16. Thereafter Mohd. Mubarak Khan, PW3 deposed for the plaintiff vide his affidavit Ex. PW3/A. He stated that he is one of the coworker with the plaintiff and was working along with the plaintiff for the preparation of export garments at piece rate for order placed by the defendants. He stated that plaintiff used to take cost of preparation of garments along with 10% commission on every piece of garments from the defendants. He stated that he worked with the plaintiff since February 2006 to May 2006 for the work order placed by the defendants. He also deposed that about Rs. 2,70,000/ is due towards the defendants.
17. In his cross examination, he stated that he runs flat machine and does stitching work. He stated that it has been 14 years that he has running flat machine and doing stitching wrok. He stated that he knew Mohd. Azad since Mohd. Azad was 'Master Ji' and he was a 'karigar'. He stated that since the plaintiff required karigars, he has worked with him as a karigar. He stated that he had worked for four Suit No.476/14 Mohd. Azad Vs. Amit Singh etc. Page 12 of 25 months from February to May. He did not remember the exact year. Since he was not educated. He stated that he was aware that the defendants had to pay Rs. 2,70,000/ to the plaintiff. He further stated that the plaintiff has not able to make the payment to them since his payment has been released from the defendants. He stated that he got salary for one month from the plaintiff. He denied to the suggestion that He was deposing falsely.
18. The documentary evidence produced by the plaintiff is as follows:
Ex. PW1/1 to Ex. PW1/27 Challans (carbon copies) Ex. PW1/28 (colly) (OSR) Register reflecting the rate agreed Ex. PW1/29 Copy of cheque dated 01.05.2006 Ex. PW1/30 to Ex. Cheque return memo PW1/32 Ex. D1 (Ex. PW1/33) Bill no. 013 dated 06.03.2006 Ex. D2 (Ex. PW1/34) Bill no. 012 dated 06.03.2006 Ex. D3 (Ex. PW1/35) Bill no. 014 dated 31.03.2006 Ex. PW1/36 Bill no. 016 dated 30.04.2006 Ex. PW1/37 Bill no. 017 dated 25.05.2006 Ex. PW1/38 Copy of legal notice dated 16.09.2006 Ex. PW1/39 and Ex. Postal receipts PW1/40
19. The documents admitted by the plaintiff in the cross examination are:
Ex. PW1/D1 Letter dated 28.07.2007 Suit No.476/14 Mohd. Azad Vs. Amit Singh etc. Page 13 of 25 Ex. PW1/D2 Voucher dated 24.03.2006 Ex. PW1/D3 Voucher dated 19.08.2006
20. The defendants in order to support the contentions taken in their pleadings examined DW1/ defendant no. 1 and DW2/ defendant no. 2
21. DW1, Mr. Amit Singh, stepped into the witness box and deposed vide his affidavit Ex. DW1/A reiterating the contentions raised in the written statement. He stated that the defendants were working in a partnership firm under the name and style of "Sai Exports Inc." He further deposed that plaintiff had approached the defendants and assured better quality of work and timely delivery. He further stated that the quality of work was not up to the mark and delivery was not in time and they suffered huge losses and had to wind up the business. He stated that the plaintiff used to raise bills time to time which were duly paid to him. He further deposed about various vouchers duly signed and acknowledged by the plaintiff. He stated that apart from the cash amount, a sum of Rs. 12,000/ was also paid of which the receipt was not available. He also deposed about plaintiff taking a newly purchased boiler worth Rs. 69,000/ for the purpose of sell and agreed to pay the amount back to the defendants. It was also submitted that the amount has been paid excess to the tune of Rs. 1,30,000/. He further stated that there has been no long relationship between the defendants as the business of the defendants could hardly last for six months due to poor work of the Suit No.476/14 Mohd. Azad Vs. Amit Singh etc. Page 14 of 25 plaintiff and late delivery of goods. He further stated that the plaintiff had produced forged and fabricated challans and bills in the court. He stated that the plaintiff had filed a false case.
22. In his cross examination, he stated that he was a graduate and Sai Exports is a partnership firm having Mr. Pawan and himself as partners. He did not remember the date when his affidavit, Ex. DW1/A was prepared. He stated that his partner was also a graduate. He stated that it was correct that Mohd. Azad had work for them on commission basis. He stated that bill no. 13 dated 06.03.2006 was paid by them. He also stated that bill no. 17 dated 25.05.2006 was not paid since the bill was not correct. He was shown original of the Ex. PW1/28 (colly) page 48. He admitted his signatures at point A and stated that signatures at point B are not his. He stated that it was correct that no receipt for the purchase of boiler was placed on record. He admitted that a cheque of Rs. 50,000/ was given to the plaintiff. He also admitted that on payment of bill raised by the plaintiff, receiving of the plaintiff was taken on the voucher. He stated that the cheque was taken back from the plaintiff and the cash payment was made in lieu of cheque. He further stated that no receiving of the plaintiff was taken on the payment of Rs. 50,000/. He denied to the suggestion that when the plaintiff had approached the defendants again and again for payment of the cheque, the cheque was taken and was torn. He further denied the suggestion that when Suit No.476/14 Mohd. Azad Vs. Amit Singh etc. Page 15 of 25 cheque was torn the plaintiff was threatened. He admitted that no action was taken against the plaintiff for recovery of Rs. 1,30,000/ prior to the filing of the suit. He denied to the suggestion put to him by Ld. counsel for the plaintiff.
23. Thereafter DW2, Mr. Pawan Kumar stepped into the witness box and deposed vide his affidavit, Ex. DW2/A. He corroborated the testimony of DW1 in verbatim by reiterating the affidavit of DW1 word for word.
24. In his cross examination, he stated that he had studied till Class XII. He stated that he did not know what was written in his evidence by way of affidavit as Amit was the one dealing with the present case and he would be better position to depose. He denied to the suggestion that he was deposing falsely.
25. The documentary evidence adduced by the defendant is as below:
Ex. P1 Voucher dated 11.05.2006
Ex. P2 Voucher dated 11.05.2006
Ex. P3 Voucher dated 19.05.2006
Ex. PW1/D3 Voucher dated 19.08.2006
Ex. P4 Voucher dated 24.05.2006
Ex. P5 Voucher dated 24.05.2006
Ex. P6 Voucher dated 10.03.2006
Ex. P7 Voucher dated 13.03.2006
Ex. PW1D2 Voucher dated 24.03.2006
Ex. P8 Voucher dated 29.03.2006
Ex. P9 Voucher dated 29.03.2006
Ex. P10 Voucher dated 10.04.2006
Suit No.476/14
Mohd. Azad Vs. Amit Singh etc. Page 16 of 25
26. Thereafter, defendant closed the defendant's evidence vide a separate statement dated 01.07.2013.
27. This is the entire oral as well as documentary evidence adduced by both the parties in the present case. Arguments:
28. Ld. Counsel for the plaintiff argued that the plaintiff is entitled to the relief sought in the plaint on the basis of the oral and documentary evidence on record. He argued that the defendant did not pay the complete amount and has submitted forged documents. He also argued that the defendants are also liable to pay the interest at the rate of 24% per annum. He prayed that the suit be decreed.
29. Per contra, Ld. Counsel for the defendant argued that the plaintiff has filed a false case. He pointed that the notice sent by plaintiff in 2006 stated that the pending amount is Rs. 2,70,000/ subsequently, Rs. 20,000/ paid. The boiler was also appropriated by the plaintiff. He questioned that despite this, the plaintiff still claims an amount of Rs. 2,70,000/. He also stated that bill dated 25.05.2006 is false and fabricated. He prayed for dismissal of the suit.
30. I have heard the rival contentions raised by both the counsel and have also perused the case record meticulously with their kind assistance. My issue wise findings are as below:
Issue No. 1:
Whether the suit is bad for nonjoinder of necessary parties? If so, its effect?OPD Suit No.476/14 Mohd. Azad Vs. Amit Singh etc. Page 17 of 25
31. The onus to prove this issue was on the defendants. To discharge the onus, the defendants have just taken an objection in the written statement that the suit is not maintainable in its present form as the third partner has not been made a party to the suit. Whereas, DW1 himself stated in the cross examination that:
"The partners of the said firm are myself and Mr. Pawan."
32. This clearly indicates that the partnership was formed by Mr. Amit and Mr. Pawan. Further, there is no document on record to show that there were three partners in the firm. In addition to this, Section 25, Partnership Act, 1932 provides that every partner is liable, jointly with all the other partners and also severally, for all acts of the firm done while he is a partner. Therefore, all the partners are jointly and severally liable. Hence, even if one of the partner has not been made a party, there would be no repercussions on the case of the plaintiff.
33. Thus, this issue is decided against the defendant and in favour of the plaintiff.
Issue no. 2 Whether the defendants have already payment as averred in paragraph 7 of the written statement? OPD
34. The onus to prove this issue is upon the defendants. The defendants were to establish that the defendants have already paid the amount of Rs. 5,50,600/ to the plaintiff. It was submitted by the defendants that they have paid the Suit No.476/14 Mohd. Azad Vs. Amit Singh etc. Page 18 of 25 amount of Rs. 62,676/ as additional amount even after deducting the commission of the plaintiff which according to them is Rs. 44,356/. It was also submitted that the plaintiff took boiler machine worth Rs. 69,000/ which was purchased by the defendant for the purposes of running the business with the undertaking that he will pay back the extra amount.
35. In the evidence, DW1 reiterated the fact of making payment and also getting the vouchers signed by the plaintiff. In the pleadings the defendants had stated that following payments were made:
S. No. Date Amount in INR
1. 15.02.2006 7000
2. 25.02.2006 5000
3. 10.03.2006 27800
4. 13.03.2006 65000
5. 24.03.2006 7100
6. 29.03.2006 1600
7. 29.03.2006 5000
8. 03.04.2006 3500
9. 10.04.2006 80000
10. 11.05.2006 100000
11. 11.05.2006 10000
12. 19.05.2006 30000
13. 19.05.2006 6600
14. 24.05.2006 70000
15. 24.05.2006 2000
16. 31.07.2006 130000
Suit No.476/14
Mohd. Azad Vs. Amit Singh etc. Page 19 of 25
36. Whereas in the evidence, DW1 stated that following payments were made:
S. Date Amount in Exhibits Admitted/
No. INR Denied
1. 10.03.2006 27,800 Ex.P6 Admitted
2. 13.03.2006 65,000 Ex.P7 Admitted
3. 24.03.2006 7,100 Ex.PW1/D2 Denied but
admitted in
the cross
examination
4. 29.03.2006 1,600 Ex.P8 Admitted
5. 29.03.2006 5,000 Ex. P9 Admitted
6. 03.04.2006 3,500 NOT Denied
TENDERE
D
7. 10.04.2006 80,000 Ex. P10 Admitted
8. 11.05.2006 1,00,000 Ex.P2 Admitted
9. 11.05.2006 10,000 Ex.P1 Admitted
10. 19.05.2006 30,000 Ex.P3 Admitted
11. 19.05.2006 6,600 Ex.PW1/D3 Denied but
admitted in
the cross
examination
12. 24.05.2006 70,000 Ex. P4 Admitted
13. 24.05.2006 2,000 Ex.P5 Admitted
14. 31.07.2006 1,30,000 NOT Denied
TENDERE
D
37. The admitted vouchers are therefore of Rs. 3,91,400/ then again the vouchers of amount of Rs.7,100 and Rs. 6,600/ (Ex. PW1/D2 and Ex. PW1/D3, respectively) had been denied but in the cross examination the plaintiff admitted his signatures. No evidence was led by the plaintiff to show that his signatures were taken under Suit No.476/14 Mohd. Azad Vs. Amit Singh etc. Page 20 of 25 misrepresentation, coercion, undue influence, mistake or so on. Therefore, it can be inferred that the defendant had paid this amount. Thus, the total admitted amount now becomes as Rs.4,05,100/. This amount is proved to be duly paid.
38. Adverting to voucher dated 31.07.2006, the plaintiff had initially denied the document, but in this cross examination, the plaintiff admitted his signatures on the voucher, however, he maintained that he had received an amount of Rs. 30,000/ only and not Rs. 1,30,000/. Though, the defendants have maintained that they had paid Rs. 1,30,000/ to the plaintiff by this voucher, but strangely, this voucher has not been tendered in evidence. The defendant has though mentioned about this voucher in his affidavit as Ex. DW1/14, nonetheless, same has not been tendered in his evidence on oath. This document can not be relied upon. Be that as it may, the plaintiff has admitted the payment of Rs. 30,000/. This is a relevant admission in light of Section 18, Indian Evidence Act, 1872. Hence, it can be concluded that payment of Rs. 30,000/ was also made.
39. However, voucher dated 03.04.2006 was denied by the plaintiff and was not tendered in evidence by the defendants hence, it can not be relied upon.
40. Resultantly, it is proved that the defendants had made a total payment of Rs. 4,35,100/. Then again, both the parties have failed to show by way of documentary evidence that the boiler was sold for Rs. 25,000/ or Rs. 69,000/. The Suit No.476/14 Mohd. Azad Vs. Amit Singh etc. Page 21 of 25 plaintiff has maintained that the boiler was sold for Rs. 25,000/ after repair worth Rs 5,000/. He had also stated that the proceeds after selling the boiler were included in the amount. However, apparently, the amount was not included. Therefore, it is warranted that amount of Rs. 20,000/ be also added. The total amount paid now becomes Rs. 4,55,100/.
41. The dispute raised regarding the cheque, Ex. PW1/29 does not lead us to any fruitful conclusion. It is admitted case that the cheque was taken back by the defendants and cash payment was made. Therefore, it would be futile for the present matter to delve into the controversy of the cheque being torn or not.
42. To conclude, it is proved that the defendants had made the payment of Rs. 4,55,100/ unlike as pleaded that the payment of Rs. 5,50,600/ was made. Hence, this issue is decided partly in favour of the defendants and partly against them.
Issue No. 3:
Whether the plaintiff is entitled to recover the sum claimed for in the plaint? OPP
43. The onus to prove this issue was on the plaintiff. It was for the plaintiff to prove that he is entitled to the amount of Rs.2,70,000/ as pleaded in the plaint.
44. In order to discharge the onus, the plaintiff examined himself as PW1 and deposed reiterating his claim. He maintained that:
Suit No.476/14 Mohd. Azad Vs. Amit Singh etc. Page 22 of 25"[I] say that the total job work during that period was of Rs. 6,61,000/ including commission of the deponent against which bills for the same were raised by the deponent...the defendants made payment of Rs. 3,91,000/ only and rest amount of Rs. 2,70,000/ is still due with the defendants which are legally recoverable..."
45. In the cross examination, he stated that:
"I have taken approximately Rs. 3,91,000/ from the defendants towards the payment."
46. The plaintiff has adduced certain challans, Ex. PW1/1 to Ex. PW1/27. These challans depict the delivery of the goods. The plaintiff has also tendered the bills:
S. Bill no. Dated Amount Exhibit Admitted/d No (INR) enied
1. 013 06.03.06 1,20,831.15 Ex.D1 Admitted (012 (revised (revised was from from revised) 1,26,225.50 Ex.D2 )
2. 014 31.03.06 1,13,357.85 Ex. D3 Admitted
3. 016 30.04.06 2,09,380.00 Ex. Denied PW1/3 6
4. 017 25.05.06 1,57,376.50 Ex. Denied PW1/3 7
47. The commission has been alleged as 10% by the plaintiff. The defendants have denied the rate of commission. However, it can be observed that Ex. D1 and Ex. D3 have been admitted by the defendant no. 1 and the amount of commission calculated on these bills is as per 10% only, hence, it can be concluded that rate of Suit No.476/14 Mohd. Azad Vs. Amit Singh etc. Page 23 of 25 commission was agreed as 10%. The rate of commission has been corroborated by the testimonies of PW2 and PW3.
48. The defendants have denied Ex. PW1/36 and Ex. PW1/37. It is maintained by the defendants that the bills are forged and fabricated. The onus shifted upon defendants to prove that the bills were forged and fabricated. However, no evidence was led to substantiate the same. It was only put as suggestion to PW1, however the contention remained bald, unsupported by any cogent evidence. There is nothing on the file except contention raised in pleading, that the impugned bills are forged. In dearth of evidence to cogently show that the bills are forged not much heed can be given to the defendant's plea. Therefore, the bills are assumed to be correct.
49. The amounts raised in the bills add up to Rs. 6,00,945.50/ and the amount of commission is Rs. 60,093.87/. It totals as Rs.6,61,039.37/. However, the plaintiff has claimed only Rs. 6,61,000/ Therefore, the total amount payable was Rs.6,61,000/ , out of which amount of Rs. 4,55,100/ has been already paid by the defendant. The balance comes out to be Rs. 2,15,900/.
50. In light of the above discussion, the plaintiff is entitled to a sum of Rs. 2,15,900/. This issue is accordingly decided partly in favour of plaintiff.
Issue no. 4 Whether the plaintiff is entitled to the interest claimed? If so, at what rate?OPP Suit No.476/14 Mohd. Azad Vs. Amit Singh etc. Page 24 of 25
51. The onus to prove this issue is upon the plaintiff. However, no evidence has been led to establish that the agreed rate of interest is 24% per annum. There is no stipulation between the parties that the rate of interest was agreed at 24% per annum on default. I find the rate of interest sought as exorbitant. It is not reasonable hence, it is in considered opinion of this Court that the rate of interest be adjudicated as 8% per annum.
52. Consequently, this issue is decided in partly in favour of the plaintiff.
Relief
53. In light of the above discussion, this Court is of the considered opinion that there is some merit in the case of the plaintiff. The plaintiff is entitled to an amount of Rs. 2,15,900/ (Rupees Two Lacs Fifteen Thousand and Nine Hundred only) along with interest at the rate of 8% per annum from the institution of the suit till the realization of the decreetal amount. The suit is accordingly decreed. Parties to bear their own costs. Decree sheet be drawn accordingly. File be consigned to record room after due indexing, paging and completion.
Announced in the open court on 12th March 2014. (TANVI KHURANA) The judgment contains 25 pages, Civil Judge01 (South) all checked and signed by me. Saket Courts/New Delhi 12.03.2014 Suit No.476/14 Mohd. Azad Vs. Amit Singh etc. Page 25 of 25