Delhi District Court
Svl Multiventures Pvt. Ltd vs Sh. Sumit Kumar on 1 February, 2023
DLCT010013072021
IN THE COURT OF SH. SANJEEV KUMAR AGGARWAL : DISTRICT
JUDGE (COMMERCIAL) 01 : CENTRAL, TIS HAZARI COURTS,
DELHI
CS (Com.) No. 354/2021
SVL Multiventures Pvt. Ltd.,
Through Director, Sh. Santosh Kumar,
Office at : 5G, PocketA1,
Mayur Vihar PhaseIII,
New Delhi - 110092. ..... Plaintiff.
Versus
Sh. Sumit Kumar,
S/o Sh. Kailash,
R/o F40, Swami Shradhanand Colony,
Delhi - 110033. .... Defendant
Date of institution : 28.01.2021
Date of reserving Judgment : 13.01.2023
Date of decision : 01.02.2023
Suit (Com.) No. 354/2021 Page No. 1 of 28
SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar
SUIT FOR RECOVERY OF RS. 4,22,500/.
JUDGMENT
1. Vide this Judgment, I shall decide the present suit filed by the plaintiff against the defendant for recovery of amount of Rs. 4,22,500/ alongwith pendentelite and future interest.
2. Brief facts as stated in the plaint are that the plaintiff is a private limited company and the present suit has been filed by its Director Sh. Santosh Kumar who has been duly authorized to pursue the present case vide resolution dated 8.1.2020 passed by the Board of Directors. It is further stated that the plaintiff is engaged in the business of taxi services and used to provide commercial number car on hire basis to individual / companies since April 2016. However, the business of the plaintiff slumped on account of completion and other factors due to which started to dispose off / sell vehicles owned by it.
3. It is further stated that the defendant No. 2 was employed as a driver with the plaintiff since long and defendant No. 1 had approached the plaintiff in November 2017 through defendant No. 2 with an offer to purchase Hyundai Accent car bearing registration No. DL1ZA 1056 owned by the plaintiff for a sum of Rs. 3,55,000/ and the defendant No. 1 offered to pay Rs. 30,000/ upfront and make the balance payment of Rs. 3,25,000/ in installments of Rs. 15,000/ per month to the plaintiff. Plaintiff duly accepted the said offer and the Director of the plaintiff Sh. Santosh Kumar handed over the possession of the vehicle to the Suit (Com.) No. 354/2021 Page No. 2 of 28 SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar defendant No. 1 on 19.11.2017 in the presence of Sh. Jugnu Sharma.
4. It is further stated that despite the assurance, defendant No. 1 failed to make payment of installments due for the month of December 2017 and January 2018 and upon insistence of plaintiff, defendant No. 1 acknowledged his liability to make payment of outstanding dues and the terms and conditions of the said transaction were reduced in writing and signed by Sh. Santosh Kumar, Director of the plaintiff and defendant No. 1 as token of its acceptance.
5. It is further stated that despite assurance, defendant No. 1 has not paid a single penny to the plaintiff in lieu of outstanding dues hence, the plaintiff filed complaint in the PS New Ashok Nagar which was registered vide C. No. 802280/18 dated 11.12.2018 and the plaintiff also sent legal demand notice dated 22.7.2019 upon the defendants but the defendants despite service of notice neither made payment nor replied to the notice and in the month of August 2019, defendants flatly refused to make the payment and threatened to sell the vehicle to some third party in gray market so as to cause loss and damage to the plaintiff.
6. It is further stated that in the books of account of plaintiff, a sum of Rs. 3,25,000/ is shown as balance which the defendant is liable to pay with interest of 10% per annum w.e.f. 24.11.2018 till its realization which comes to Rs. 97,500/ which defendants have failed to pay, hence, the present suit has been filed.
7. Summons of the suit were sent to both the defendants. Only the defendant No. 1 has contested the case and filed written statement Suit (Com.) No. 354/2021 Page No. 3 of 28 SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar whereas the defendant No. 2 was dropped from the array of parties by the Ld. Predecessor on prayer of the plaintiff vide order dated 17.11.2021. Hence, now there is only one defendant.
8. In his written statement, the defendant No.1 has taken preliminary objection that the suit of the plaintiff is without cause of action, suit is bad for mis joinder of necessary parties and this court has no territorial jurisdiction as office of the plaintiff is situated in East Delhi and defendant No. 1 is residing within the jurisdiction of North Delhi, Rohini, the plaintiff has filed police complaint in PS New Ashok Nagar and the plaintiff has also filed false and fabricated self generated affidvit which is made and executed and attested by the Notary Public at Noida, UP and the present suit is barred by law of limitation.
9. On merits, the defendant No. 1 has denied the contents of plaint as incorrect. It is denied by the defendant No. 1 that he approached the plaintiff with an offer to purchase the Hyundai Accent car bearing registration No. DL1ZA 1056 owned by the plaintiff for a sum of Rs. 3,55,000/ and he offered to pay Rs. 30,000/ upfront and make the balance payment of Rs. 3,25,000/ in installments of Rs. 15,000/ per month. He stated that the defendant No. 1 has no concern with the alleged loan or finance of the alleged vehicle. He never applied for a loan or taken the vehicle as alleged. It is stated that the plaintiff under the garb of present suit, wants to blackmail the defendant No. 1 in connivance with the defendant No. 2. Defendant No. 1 has also stated that a false story has been created by the plaintiff to extort money from the defendant No. 1 in connivance with defendant No. 2. It is further Suit (Com.) No. 354/2021 Page No. 4 of 28 SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar stated that as per the complaint No. 802280/18 dated 11.12.2018, the plaintiff has stated that the plaintiff has given its two vehicles to defendant No. 2 and as such the defendant No. 1 has no concern with the alleged dispute between the plaintiff and defendant No. 2. Thus, the defendant No. 1 has prayed for dismissal of the present suit.
10. Plaintiff has filed the replication to the written statement filed by the defendant No. 1 in which the plaintiff has again reiterated the contents of the plaint as correct and denied the contents of written statement as incorrect.
11. Admission / denial of documents were also done by both the parties.
12. On the basis of the pleadings of the parties, following issues were framed vide order dated 11.7.2022 for consideration :
1. Whether this court has no territorial jurisdiction to entertain the present suit? OPD.
2. Whether the suit is barred by limitation? OPD.
3. Whether the suit is entitled to be decreed for recovery of sum of Rs. 4,22,500/? OPP.
4. Whether the plaintiff is entitled to interest? If so, at what rate and for which period? OPP.
5. Relief.
13. In order to prove its case, the plaintiff has examined four witnesses i.e. Director of plaintiff Sh. Santosh Kumar as PW1;
Suit (Com.) No. 354/2021 Page No. 5 of 28SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar Accountant of plaintiff Sh. Jugnu Sharma as PW2; Sh. Shokat Khan as PW3 and Sh. Pritam Yadav as PW4.
14. On the other hand, in order to deny the claim of plaintiff, defendant has examined himself as DW1.
15. Arguments heard from Sh. Puneet Kumar, Ld. Counsel for the plaintiff and from Vishal Kumar and Sh. Pawan Kapoor, Ld. Counsels for the defendant.
16. I have considered the arguments and have gone through the record. My issuewise findings are as follows : ISSUE NO. 1.
Whether this court has no territorial jurisdiction to entertain the present suit? OPD.
17. Defendant in the written statement has taken the objection that this court has no jurisdiction as office of the plaintiff is situated in East Delhi and defendant No. 1 is residing within the jurisdiction of North Delhi, Rohini, the plaintiff has filed police complaint in PS New Ashok Nagar and the plaintiff has also filed false and fabricated self generated affidavit which is made and executed and attested by the Notary Public at Noida, UP.
18. Ld. Counsel for plaintiff has argued Plaintiff in the para 16 of the plaint it has been categorically mentioned that the defendant No. 2 is residing at Burari, District Center, Delhi hence, this court has the territorial jurisdiction to entertain the present suit.
Suit (Com.) No. 354/2021 Page No. 6 of 28SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar
19. Section 20 of the Code of Civil Procedure provides as under :
"Other suits to be instituted where defendants reside or cause of action arises.
Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such institution; or
(c)The cause of action, wholly or in part, arises".
20. On perusal of address of defendant No. 2, it is evident that the defendant No. 2 was residing at Burari, hence when the suit was filed I this Court has territorial jurisdiction if address of defendant no.2 was correct, Undoubtedly defendant no.2 has been deleted from array of parties but in my view same does not oust jurisdiction of this Court. Defendant in his evidence no where has stated that address of defendant No. 2 Rohit as mentioned in the memo of parties is not correct. therefore defendant has failed to discharge its onus that this court has no territorial jurisdiction to try the present suit. Therefore, issue Suit (Com.) No. 354/2021 Page No. 7 of 28 SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar No. 1 is decided in favour of the plaintiff and against the defendant.
21. ISSUES NO. 2 & 3.
Whether the suit is barred by limitation? OPD.
AND Whether the suit is entitled to be decreed for recovery of sum of Rs. 4,22,500/? OPP.
22. Since issue of limitation is both missed question of fact and law i.e. whether plaintiff has sold the vehicle in question to defendant if so when therefore in my view same is interlinked with issue no.2 hence I shall decide both the issue together.
23. Since the suit for recovery of money against the goods supplied and as per the Limitation Act 1963, period of filing a suit for recovery of money for goods supplied is three years and that will be counted from the date when vehicle in question was sold by defendant, if sold at all and further if sold on hire purchase basis then it will be counted from the day last payment of EMI become due.
24. Since the plaintiff has claimed that it has sold the vehicle in question to defendant on 19.11.2017 for a sum of Rs. 3,55,000/ and defendant pay only Rs. 30,000/ and thus a sum of Rs. 325,000/ is due as principal amount and Rs. 97,500/ as interest therefore the onus to prove this issue is upon the plaintiff. If plaintiff is able to prove the same then plaintiff suit will also be with in limitation as while counting period of Limitation the period from 15.03.2020 to 28.02.2022, plus 90 days is to Suit (Com.) No. 354/2021 Page No. 8 of 28 SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar be excluded in view of Judgment passed by the Hon'ble Supreme Court passed in Suo Motu writ petition (C) No. 3/2020 dated 10.01.2022 Relevant portion of the said Judgment is reproduced hereunder : "5.Taking into consideration the arguments advanced by learned counsel and the impact of the surge of the virus on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of the M.A. No. 21 of 2022 with the following directions:
I. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021and 23.09.2021, it is directed that the period from15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings.
II. Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022.
III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply.
IV. It is further clarified that the period from 15.03.2020 till28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Suit (Com.) No. 354/2021 Page No. 9 of 28 SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings".
25. In order to prove its case, plaintiff has examined Sh. Santosh Kumar, Director of plaintiff company as PW1 who led his evidence by way of affidavit Ex. PW1/A. In his examination in chief, PW1 has further relied upon the following documents :
1. Copy of certificate of incorporation of plaintiff as Mark D.
2. Extract of board resolution dated 8.1.2020 as Ex.
PW1/2.
3. Copy of his PAN card as Ex. PW1/3 (OSR).
4. Copy of PAN card of defendant as Mark A.
5. Copy of driving licence and PSV driver's badge of Sh.
Rohit as Mark B.
6. Copy of registration certificate of vehicle No. DL1ZA 1056 as Mark C.
7. Affidavit dated 24.1.2018 as Ex. PW1/4.
8. Copy of complaint bearing C. No. 802280/18 file in PS Ashok Vihar as Ex. PW1/5.
9. Office copy of legal demand notice dated 22.7.2019 Suit (Com.) No. 354/2021 Page No. 10 of 28 SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar as Ex. PW1/6 and its postal receipt as Ex. PW1/7.
26. In his cross examination he has deposed that he is one of the Director of the plaintiff company. The case is related to not paying the dues of the plaintiff and for keeping possession of the vehicle. He deposed that document Ex. PW1/4 is an agreement with respect to the sale of the vehicle No. DL1ZA 1056. He denied the suggestion that in this document there is no second party and voluntarily stated that there is signature of second party. He denied the suggestion that the document Ex. PW1/4 is forged document. He admitted that there is no signature of guarantor Sh. Rohit and of witnesses in document Ex. PW1/4. Document Ex. PW1/4 was prepared at Noida Transport Authority where PW1, Sh. Jagnu Sharma, defendant no. 1 himself and Sh. Rohit Kumar had gone. He admitted that there is no document filed in the case to show that Rohit was guarantor. He deposed that no document of guarantee in writing was prepared. He stated that possession of the vehicle was given to defendant Sumit but admitted the suggestion that in document Ex. PW1/5 which is complaint to police it is mentioned that the possession of the vehicle was given to driver on 19.11.2017. though he deposed Vol. Sh. Rohit was driver to whom the vehicle was given in the presence of Sumit. He denied the suggestion that defendant had not purchased the vehicle no. DL1ZA 1056 from the plaintiff.
27. Sh. Jugnu Sharma, is Accountant of plaintiff company was examined as PW2 who has led his evidence by way of affidavit Ex. PW2/A. In his examination, PW2 has relied upon the following documents : Suit (Com.) No. 354/2021 Page No. 11 of 28 SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar
1. Ledger account of Sh. Sumit Kumar in the books of plaintiff company as Ex. PW2/1.
2. Affidavit under Section 65B of the Indian Evidence Act as Ex. PW2/2.
28. In his cross examination, he has deposed that he is accountant in the plaintiff company. He is a C.A. Plaintiff company engaged in taxi services since April, 2016. Sh. Rohit was working as a driver in the plaintiff company. It is correct that present matter related to installments of amount of Rs. 3,25,000/ against vehicle / car No. DL1ZA 1056. There is no payment of any installment against the aforesaid vehicle and voluntarily stated that lumpsum down payment of Rs. 30,000/ was paid by the defendant No. 1. The document Ex. PW1/4 was executed in respect of aforesaid vehicle. He admitted that there is no mention about the word agreement in the document Ex. PW1/4. He admitted that his signatures does not appear on Ex. PW1/4 as mentioned in his evidence affidavit Ex. PW2/A at point X to X1. He stated that Rohit is the introducer and guarantor in the abovenoted transaction. He admitted that there is no signatures of Sh. Rohit in document Ex. PW1/4. He denied the suggestion that Rohit not stood guarantor. He stated that he is not aware about the number of installments in the loan. He denied the suggestion that the delivery of above vehicle was not given to Sumit in my presence. He denied the suggestion to suggest that possession of vehicle was given to Sh. Rohit. He stated that Ex. PW2/1 does not bear my signatures.
Suit (Com.) No. 354/2021 Page No. 12 of 28SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar
29. Sh. Shokat Khan, Legal Executive from Ola Fleet Technologies Pvt. Ltd. was examined as PW3. He is a summoned witness and has deposed that been duly authorized to depose in the present matter on behalf of Ola Fleet Technologies Pvt. Ltd. vide authorization letter dated 13.11.2022 issued by Legal Manager (North), Ola Fleet Technologies Pvt. Ltd as Ex. PW3/1. Copy of his employee ID as Ex. PW3/2 (OSR). He has produced the copy of the affidavit filed by the SVL Multiventures Pvt. Ltd. in favour of Sh. Sumit Kumar, S/o Sh. Kailash dated 29.11.2017 as Ex. PW3/3. He deposed that original of the same is kept at our Bangalore office. He deposed that he has also brought attested scanned copy of contract for the sale of used cars executed between SVL Multiventures Pvt. Ltd. and Sumit Kumar (PAN No. EUSPK 8081H) in respect of vehicle No. DL1ZA 1056 which he exhibited as EXPW3/4. He deposed that original of the same is available at their Bangalore office. He has also brought attested scanned copy of registration certificate of vehicle No. DL1ZA 1056, Ex. PW3/5 and copy of passbook of Sh. Sumit Kumar, S/o Sh. Kailash pertaining to his savings account No. 520101065547604 at Corporation Bank, Jahangir Puri Banch, Delhi Ex. PW3/6 and statement of account maintained by my company regarding bank transfer made to beneficiary Sumit Kumar pertaining to vehicle No. DL1ZA 1056 Ex. PW3/7.
30. In his cross examination, he admitted the suggestion that the original of the documents Ex. PW3/3 to Ex. PW3/7 are not in my possession and voluntarily stated that original documents are with the plaintiff as we kept only the scanned copy of the documents. In Suit (Com.) No. 354/2021 Page No. 13 of 28 SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar documents Ex. PW3/3 to Ex. PW3/7, the sign at the place of deponent is of plaintiff official. The document was also got notarized by the plaintiff official Sh. Santosh Kumar. As per the RC, Ex. PW3/5 the name of owner of vehicle bearing No. DL1ZA 1056 is SVL Multiventure Pvt. Ltd. Ex. PW3/6 is the scanned copy of front page of pass book of Sumit Kumar. Ex. PW3/7 is the statement of the money transferred from Ola Money to beneficiary Sumit Kumar. It is wrong to suggest that I am deposing falsely.
31. Sh. Pritam Yadav, Single Window Operator, Union Bank of India (Esrtwhile Corporation Bank), Jahangir Puri Branch, Delhi has only proved statement of account of account with CIF No. 2011442039 bearing account No. 520101065547604 in the name of Sumit Kumar, S/o Kailash for the period financial year 201718 as Ex. PW4/2 and certificate under Section 65B of the Indian Evidence Act with respect to said statement is now Ex. PW4/3.
32. On the other hand, in order to deny the claim of plaintiff, defendant has examined himself as DW1 who led his evidence by way of affidavit Ex. DW1/A. In which he has also deposed the same facts as stated in the written statement. Therefore I will not repeat the same for the sake of brevity.
33. In his cross examination he deposed that He is a driver by profession. I used to take the vehicle on rent for driving purpose. He is also associated with Ola and Uber. He never met with Santosh, AR of the plaintiff. He admitted that Ex. PW3/6 i.e. the scanned copy page of Suit (Com.) No. 354/2021 Page No. 14 of 28 SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar bank passbook is of his bank account pass book. I can produce the complete statement of 201718 of my passbook if bank officials allow me to take the same. He denied that signature at point X on Ex. PW1/4 and on written statement at point A, B and C are of same person's signatures. He also denied his signatures at point X and Y on another affidavit Ex. PW3/3. He denied the suggestion that signature at point X and Y on Ex. PW3/3 and on written statement at point A, B and C are of same person's signatures. He denied his signatures at point X on Ex. PW3/4 and also denied that signature on written statement at point A, B and C and PW3/4 are of same person's signatures. He was shown Ex. PW3/7 i.e. statement of payments made by Ola to the witness and question as under:
"Q. I put it to you that payments shown in the abovesaid statement has been made to you. What you have to say?
Ans. The payments of vehicle No. HR55W 1808 and HR55Y 5497 as shown in the said statement has been made by the Ola to me. The payment of vehicle No. DL1ZA 1056 is not made to me" .
He was shown driving licence of Rohit, S/o Mahavir Singh Mark B and he stated he know said Rohit. Said Rohit met only once (chalte hue mila tha) around 67 years ago. He admitted that PAN card No. EUSPK 8081H. Mobile No. 8178227575 is his mobile number. He denied What's APP chat Mark DW1/P1 is between him and Santosh Kumar from his mobile No. 8178227575. He stated that he does not use any sir name along with his name Sumit Kumar and that vehicle No. DL1ZA 1056 was used to be drive by him. He denied that he put his Suit (Com.) No. 354/2021 Page No. 15 of 28 SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar mobile number on the windscreen of the said vehicle. He denied that he has mentioned the said number on the said windscreen. Said photograph is marked as Mark DW1/P2. He denied that in November 2017, he along with aforesaid Rohit had approached to the plaintiff company for purchase of vehicle No. DL1ZA 1056 for a sum of Rs. 3,55,000/ and paid Rs. 30,000/ in cash out of said amount and rest of the amount was to be paid in installments of Rs. 15,000/ per month and Rohit has given undertaking on his behalf that if he is unable to make the payment of aforesaid amount then, Rohit will make the same and that possession of the said vehicle was handed over to him on 19.11.2017 and he has done the transaction for purchase of aforesaid vehicle with Santosh Kumar, Director / AR of the plaintiff company in the presence of Jugnu Sharma or that he is liable to pay a sum of Rs. 3,25,000/ to the plaintiff.
34. It is argued by Ld. Counsel for the plaintiff that from the testimony of aforesaid witnesses, it is proved that the plaintiff has sold the vehicle to the defendant for a sum of Rs. 3,55,000/ out of which Rs. 30,000/ was paid by the defendant upfront and remaining was to be paid by the defendant in installments of Rs. 15,000/ each per month but the defendant has failed to make the payment hence, the plaintiff is entitled to the suit amount. He further argued that the testimony of PW1 is duly corroborated by the testimony of PW2 who is the Accountant of plaintiff and proves the ledger account of the plaintiff firm as Ex. PW2/1 in which an amount of Rs. 3,25,000/ is shown as due.
35. Ld. Counsel for plaintiff further argued that from the Suit (Com.) No. 354/2021 Page No. 16 of 28 SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar documents proved by the PW3, i.e. Ex. PW3/6, it is evident that the defendant has attached the vehicle in question with and Ola company has paid him money which Ola company received from passengers. He further argued that PW4 has proved the statement of account of plaintiff account and thus, the plaintiff has been able to prove its case beyond preponderance of probabilities.
36. On the other hand, Ld. Counsel for the defendant has argued that the plaintiff has failed to led any cogent evidence to prove that the vehicle in question was sold by the plaintiff to the defendant or even possession of the same was delivered to the defendant. He submits that except bald averments made by the plaintiff in the plaint and by PW1 and PW2 in their testimonies, there is no other evidence. He argued that from the document Ex. PW1/4 relied upon by the plaintiff to prove that the sale of vehicle No. DL1ZA 1056 to the defendant, it is evident that the same is not an agreement to sell but is merely a self generated affidavit of Director of plaintiff Sh. Santosh Kumar. He argued that though PW has alleged that it contains signature of defendant but the defendant has given the suggestion that the said affidavit is a forged document and does not have signatures of defendant. He argued that there was no requirement to execute any such affidavit under the Motor Vehicle Act as the sale of vehicle can be made as per the Motor Vehicle Act by furnishing appropriate Form 29 and Form 30 before the Transport Authority to transfer the same. No such form has been produced by the plaintiff hence, the document Ex. PW1/4 does not prove that the plaintiff has sold the vehicle to the defendant. He further argued that there is no Suit (Com.) No. 354/2021 Page No. 17 of 28 SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar other document produced by the plaintiff or its witnesses to prove that the defendant has ever agreed to purchase the vehicle bearing No. DL1ZA 1056 from the plaintiff for a sum of Rs. 3,55,000/ or that he was handed over the said vehicle. He further argued that as far as other document relied upon by the plaintiff i.e. copy of complaint dated 11.12.2018 bearing C. No. 802280 Ex. PW1/5, it becomes evident that the possession of the vehicle was handed over to defendant No. 2 Rohit whom, later on, the plaintiff has deleted from the array of parties. This clearly shows that both the plaintiff and defendant No. 2 were hand in glove. He further argued that the documents proved by the PW3 does not prove that the vehicle in question was sold by the plaintiff to the defendant. Hence, plaintiff has miserably failed to prove its case therefore, suit is liable to be dismissed. He further argued that documents Ex. PW3/3 to Ex. PW3/7 cannot be read in evidence these are scanned copy sent by the Banglore office of the Ola Company to Delhi office but no certificate u/s 65B Indian Evidence Act has been filed.
37. I have considered the submissions and have gone through the record. Section 101 of the Evidence Act, 1872 defines "burden of proof" which is reproduced as below:
"101. Burden of proof whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."Suit (Com.) No. 354/2021 Page No. 18 of 28
SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar
38. Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been liable to discharge his burden. Until he arrives at such conclusion he cannot proceed on the basis of weakness of other party.
39. The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side. A civil case is decided on the basis of preponderance of probabilities. It is settled law that a suit has to be tried on the basis of the pleadings of the contesting parties which are filed in the suit in the form of plaint and written statement. In the cases of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729 and Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, it has been held that a civil case is to be decided on balance of probabilities.
40. The main witness of plaintiff is PW1. On analyzing the testimony of PW1, I found that PW1 is not consistent in his version. He deposed that document Ex. PW1/4 is an agreement with respect to the sale of the vehicle No. DL1ZA 1056 but on perusal of PW1/4, I found that same is not an agreement between two parties but same is an affidavit of the PW1 which only states that plaintiff has sold the vehicle in question to defendant Sumit on 19.11.2017 for Rs. 3,55,000/ out of which Rs. 30,000/ has been paid and remaining will be paid in EMI of Rs. 15,000/. Though PW1 has deposed that defendant Sumit has Suit (Com.) No. 354/2021 Page No. 19 of 28 SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar signed on the same at point X as purchaser but defendant has denied his signature on the same. No witness has been examined by the plaintiff to proves that it contain signature of defendant. Neither plaintiff has got examined the said documents from hand writing expert to proved that same is having signature of defendant. As far as contention of Ld. Counsel for defendant that court can compare the signature of defendant on written statement and PW1/4 is concerned in my view on seeing both the signature it is very difficult for this court to say whether signature on both this documents are of defendant or not. Hence in these circumstances plaintiff failed to proved that documents EXPW1/4 bears signature of defendant. Further on perusal of PW1/4, it is evident that if defendant failed to pay three consecutive EMI then plaintiff will repossess the vehicle whereas according to PW1 defendant did not pay any EMI, despite this plaintiff company did not take any step to repossess the vehicle. It is not the case of plaintiff that vehicle was not traceable due to which it could not be repossess. There is no explanation either in plaint or in testimony of PW1 why no steps were taken to repossess the vehicle. Hence the conduct of plaintiff itself contradict the document Ex. PW1/4.
41. Further PW1 has stated that possession of the vehicle was given to defendant Sumit but he admitted the suggestion that in complaint having receiving dated 11.12.2018, Ex. PW1/5 it is mentioned that the possession of the vehicle was given to driver on 19.11.2017 though he voluntarily deposed that Sh. Rohit was driver to whom the vehicle was given in the presence of Sumit, but no such fact was stated Suit (Com.) No. 354/2021 Page No. 20 of 28 SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar by him in evidence affidavit or plaint. Further PW1 has stated that in complaint 18 EMI is mentioned and further deposed that there is a document i.e. Ex. PW1/4 besides complaint in which about EMIs is mentioned but Vol. deposed that in Ex. PW1/4 EMIs of Rs. 15,000/ is mentioned but period of 18 months is not mentioned which he further tried to improve by saying that in oral discussion it was discussed if defendant can pay Rs. 10,000/ and accordingly orally it was agreed to 18 EMI but no such fact was stated in the plaint hence same is an improvement. In the plaint it was stated that Rohit was guarantor due to which he was made party but in the complaint Ex. PW1/5 he has not stated that Rohit was guarantor. In these circumstances, testimony of PW1 is full of contradictions and improvement therefore, I do not find testimony of PW1 much convincing that plaintiff sold the vehicle to defendant Sumit.
42. As far as testimony of PW2 is concerned, I found that though he has deposed that defendant in November approach to purchase the vehicle in question through Rohit but PW1 has not deposed in his testimony that when plaintiff approached to purchase the vehicle PW2 was also present. Further PW2 deposed that possession of vehicle in question was given to defendant Sumit but PW1 has deposed that possession was given to Rohit. PW1 does not deposed in his testimony that PW2 was present when possession of vehicle in question was handed over. Further though PW1 has deposed in the cross examination that PW2 was present when document PW1/4 was executed but PW2 has not deposed that he has gone to NOIDA with Suit (Com.) No. 354/2021 Page No. 21 of 28 SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar PW1 where document PW1/4 was executed. PW1/4 is not having any signature of PW2, which also doubt his presence at the time of execution of Ex. PW1/4. As far as ledger account Ex. PW2/1 proved by him is concerned, he has not deposed that ledger account was prepared by him or that entries in the computer regarding ledger account was made by him hence in my view he has not proved the document Ex. PW2/1 as per evidence act and cannot be relied upon. According to him he is CA but maintain account of plaintiff on honorary basis but why he has not explain. He appeared to be introduced witness to strengthen the case of plaintiff. Hence in my view, testimony of PW2 is also not reliable.
43. As far as PW4 is concerned he is a formal witness only as he only proved the bank account statement of defendant bank account which is not even disputed by defendant.
44. PW3 is an employee of Ola company where the vehicle in question was attached for running as taxi. He is also a formal witness as he only produced the documents PW3/2 to PW3/7 summoned by the plaintiff. He has produced the scanned copy of the the affidavit dated 16.11.2017 and 29.11.2017 which he exhibited as Ex. PW3/4 and PW3/3 respectively. As far as document dated 16.11.2017 Ex. PW3/4 same is a contract for sale of used car executed by SVL Multiventures Pvt. Ltd. This document only proves that they had agreed to sale the vehicle to the defendant for a sum of Rs. 3,55,000/ hence, this document only proves that the plaintiff has agreed to sale the vehicle to the defendant but does not proved that the plaintiff has actually sold the vehicle. On perusal of Ex. PW3/3, I found that Sh. Santosh Kumar, Suit (Com.) No. 354/2021 Page No. 22 of 28 SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar Director of SVL Multiventures Pvt. Ltd. has stated that the plaintiff is a true and absolute owner of vehicle No. DL1ZA 1056 which he has handed over to Sh. Sumit Kumar and he has no objection if said Sumit Kumar ply the said vehicle as supervisor and attach the same with Ola. In my view, this affidavit of Sh. Santosh Kumar, prepared by PW3, clearly demolish the plaintiff's case that the vehicle in question was sold to the defendant on 19.11.2017 because if the same was sold to the defendant on 19.11.2017 to the defendant, why the plaintiff would declare itself as owner of the same on 29.11.2017. Further producing of these documents by the PW3 does not proved the making of these two documents by the plaintiff and signing of same by defendant as PW1 in his testimony has not deposed about making of documents Ex. PW3/3 and Ex. PW3/4 in his presence or filing of these documents by defendant in the Ola company.
As far as document Ex. PW3/5 is concerned, same is only the RC certificate in the name of plaintiff of the aforesaid vehicle and thus, it shows that it is the plaintiff was the registered owner of the vehicle and not the defendant. No documents has been filed by the plaintiff that later on registration of vehicle in question was transferred in the name of defendant. As far as Ex. PW3/6 is concerned, same is first page of defendant's account. As far as document Ex. PW3/7 is concerned, same is a statement of Ola regarding transfer of amount to the plaintiff's bank account. Undoubtedly, it contains details of payment pertaining to the vehicle DL1ZA 1056 transferred in the bank account of plaintiff by the defendant on various dates from 3.1.2018 to 18.4.2018. It Suit (Com.) No. 354/2021 Page No. 23 of 28 SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar is known fact that ola is a taxi aggregator who is online platform and customer can book taxi on their platform. They attach taxi from various taxi owners and pay them the money which they earn from customers after keeping some commission. In my view document Ex. PW3/2 to Ex. PW3/7 only proves that this vehicle was plied in the Ola company by defendant but the same does not prove that the vehicle in question was sold by the plaintiff to the defendant. Though defendant has not taken any such defence that the defendant was plying the vehicle in question at the behest of plaintiff being his driver, in my view even if no such defence is taken, no benefit can be given to the plaintiff for the same to make any presumption that the vehicle in question was sold by the plaintiff to the defendant though receiving of payment of vehicle in question by defendant certainly proved that defendant has attached the said vehicle with Ola company.
46. As far as defendant testimony is concerned in his evidence affidavit he has categorically denied of purchasing the vehicle or being handing over of possession of vehicle. In his cross examination he deposed that he used to take the vehicle on rent for driving purpose. He denied that in November 2017, he along with aforesaid Rohit had approached to the plaintiff company for purchase of vehicle No. DL1ZA 1056 for a sum of Rs. 3,55,000/ and paid Rs. 30,000/ in cash out of said amount and rest of the amount was to be paid in installments of Rs. 15,000/ per month and Rohit has given undertaking on his behalf that if he is unable to make the payment of aforesaid amount then, Rohit will make the same and that possession of the said vehicle was handed over Suit (Com.) No. 354/2021 Page No. 24 of 28 SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar to me on 19.11.2017 and he has done the transaction for purchase of aforesaid vehicle with Santosh Kumar, Director / AR of the plaintiff company in the presence of Jugnu Sharma, but he admitted that he is also associated with Ola and Uber. As stated above he has denied his signature at point X on Ex. PW1/4 and EXPW3/3 and PW3/4. Once he denied his signature on shifted upon the plaintiff to proved that same were his signature but since plaintiff did not examined any witness on whose presence said documents were signed nor examined any hand writing expert to proved that signature on aforesaid documents were of defendant hence plaintiff failed to proved the same. As far receiving of the payment of vehicle in question from OLA as shown in Ex. PW3/7 though defendant has admitted receiving payments of vehicle No. HR55W 1808 and HR55Y 5497 but has denied the payment of vehicle No. DL1ZA 1056. however in my view defendant statement in this regard appear to be false as I do not see any reason why Ola company will maintain false ledger account regarding making payment of fare received for vehicle in question crediting in defendant account. Further bank account statement Ex. PW1/4 confirmed that said payment was credited in defendant account. Hence it proves that vehicle in question was attached by him with Ola and he was getting payment from the Ola company which Ola was collecting from customer as fare. Further defendant has admitted that he know Rohit but stated that he with him only once (chalte hue mila tha) around 67 years ago. In my view, said deposition of defendant is also false as it is very unlikely that a person will recognize the photograph of a person with whom he met once that Suit (Com.) No. 354/2021 Page No. 25 of 28 SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar too while passing by. Hence definitely defendant has deposed many false facts to conceal that vehicle in question was in his possession but same does not prove that he was in possession of vehicle in question as he purchased the same from plaintiff. In my view, for these false deposition of defendant, it cannot be presumed that he also deposed falsely regarding not purchasing of vehicle in question from plaintiff as maxim "falsus in uno falsus in omnibus" is not applicable in India.
47. The plaintiff has not examined Rohit, his erstwhile driver whom he initially made defendant No. 2 but later on deleted from the array of parties, to proved that the defendant has approached the plaintiff for purchase of said vehicle through him, and purchased the said vehicle for a sum of Rs. 3,55,000/ and paid only Rs. 30,000/ and agreed to pay balance sum of Rs. 3,25,000/ in EMI.
48. Further, since the case of the plaintiff is that it sold the motor vehicle to defendant, and in a case of sale of motor vehicle, form 29 and 30 as provided under the Motor Vehicle rules 1989, is to be submitted before concerned Transport Authority for transfer of name of purchaser in registration certificate popularly called as "RC" but neither PW1 has deposed in his testimony nor any such document has been produced by the plaintiff to prove that vehicle in question has been transferred in the name of defendant. Further if vehicle is sold on hypothecation basis by a bank or finance company then name of the said financial institution is entered on RC. It is not the case of plaintiff that their hypothecation has Suit (Com.) No. 354/2021 Page No. 26 of 28 SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar been entered in RC of vehicle in question.
49. In view of the aforesaid facts and circumstances, in my view the plaintiff through the testimonies of witnesses examined by him has failed to prove beyond preponderance of probabilities that the vehicle in question was sold by the plaintiff to the defendant much less on hire purchase basis for a sum of Rs. 3,55,000/ or that the defendant was liable to pay a balance amount of Rs. 3,25,000/ or interest thereon i.e. Rs. 97,500/ calculated @ 10% per annum w.e.f. 24.1.2018 till filing of the suit. Therefore, I held that the plaintiff is not entitled to recover any amount from the defendant. Issue No. 3 is decided against the plaintiff. In view of my finding of issue no.3 in my view issue no.2 lost its relevancy therefore no purpose would be served to decide issue no.2.
50. ISSUES NO. 4.
Whether the plaintiff is entitled to any interest from the defendant, if so, at what rate and for which period? OPP.
As far as interest is concerned, in view of my findings in issue No. 3 when the plaintiff is not entitled to recover any amount from the defendant, no question of grant of interest arises. Issue No. 4 is decided accordingly.
51. RELIEF.
In view of my findings on aforesaid issues, I held that the plaintiff is not entitled to recover any amount from the defendant hence, Suit (Com.) No. 354/2021 Page No. 27 of 28 SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar the suit is hereby dismissed. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court (Sanjeev Kumar Aggarwal)
on 01.02.2023 DJ (Commercial)01, Central,
THC/Delhi / 01.02.2023
Suit (Com.) No. 354/2021 Page No. 28 of 28
SVL Multiventures Pvt. Ltd. Vs. Sumit Kumar