Delhi District Court
Netrapal Singh vs Anil Kumar on 27 January, 2021
IN THE COURT OF SHRI SANJEEV KUMAR-II, ADDITIONAL
DISTRICT JUDGE-04, SOUTH DISTRICT, SAKET COURTS,
NEW DELHI.
CS DJ/ 208814/2016
Netrapal Singh,
S/o Shri Om Prakash Singh,
R/o M-1, House No. 33/6,
Sangam Vihar, New Delhi-110080 ...... Counter-claimant
versus
Anil Kumar,
S/o Late Shri Mathura Prasad,
R/o 12, Swargpuri Road,
Teli Tola Road,
Opp. Mahavir School, Gaya
Bihar-823001 ......Respondent
Counter-claim instituted on : 05.07.2016 Reserved on : 13.01.2021 Pronounced on : 27.01.2021 EX-PARTE JUDGMENT This is a counter-claim for recovery of rupees 3,87,388/- alongwith pendentelite and future interest filed by the counter claimant herein against the defendant/respondent herein.
CS DJ/208814/2016 Netrapal Singh v. Anil Kumar 1
2. The brief factual matrix of the case as stated in the counter-claim is that the Suit bearing CS No. 312/2016 has been filed by the defendant herein against the counter-claimant pending before this Court. The counter-claimant herein has already filed his detailed written statement to the aforesaid suit filed by the defendant herein. The counter-claimant is running the business of the civil work and interior work in the name and style of M/s NCR Construction. The counter-claimant is being engaged in the civil work and interior work on proposal/contract with the defendant for four flats in the year 2013-2015 and as per their requirements the counter-claimant has completed the said civil work and interior work at the defendant's site that is 168, Maidangarhi, New Delhi-110068 and the counter-claimant raised the total bills to the defendant and the defendant paid some of the amount to the counter-claimant.
3. The defendant signed four bills of A5, A6, A7 & A8 all dated 16.02.2015 for a total sum of rupees 97,76,939/- and the defendant paid a sum of rupees 88,49,551/-and a sum of rupees 9,27,338/- is still outstanding and unpaid. The defendant has failed to outstanding/remaining payment of rupees 9,27,388/- to the counter- claimant till today. As the counter-claimant has approached the defendant CS DJ/208814/2016 Netrapal Singh v. Anil Kumar 2 several times for receiving the same but the defendant assured the counter-claimant to pay the same in very short period. The counter- claimant approached the defendant several times and demanded the outstanding amount of Rs.9,27,388/- and lastly the defendant in discharge of his part enforceable liability, issued a cheque bearing No. 597685 dated 02.02.2016 of Rs.5,40,000/- drawn on Dena Bank having its branch at Tekari Road, Gaya, Bihar to the counter-claimant and assured him to encash the same at the time of presentation. However, the defendant also assured the counter-claimant that he will pay the outstanding amount of Rs.3,87,388/- to the counter-claimant within short period.
4. As per the assurance of the defendant, the above said cheque was presented for encasement by the counter-claimant through his banker i.e. Dena Bank, having its branch at Maidangarhi, New Delhi, for encashment but the said cheque was returned unpaid by the banker of defendant with remarks "Stop Payment by Drawer " vide returning memo dated 06.02.2016 and after the dishonour of the above said cheque, the counter-claimant contacted the defendant but he had not given proper reply to the counter-claimant. Thereafter, the counter-claimant sent a legal notice-dated 02.05.2016 to the defendant calling upon him to make the CS DJ/208814/2016 Netrapal Singh v. Anil Kumar 3 payment of cheque with interest @ 18% per annum, however despite notice, the defendant has not made the payment of cheque.
5. The defendant is liable to pay the balance outstanding amount of Rs.3,87,388/- alongwith interest @ 18% per annum to the counter- claimant . However despite repeated demands and requests, the defendant deliberately and intentionally avoided to make the balance outstanding amount of Rs,3,87,388/- to the counter-claimant on one pretext or other. Hence, this counter-claim.
6. Written statement was filed on behalf of defendant herein wherein the defendant disputed and denied the contents of counter-claim. It is stated in the written statement that the bills, signatures of the defendant are false and the defendant never signed these bills nor even seen ever and he had no connection with all these materials and works. He has not given any proposal or contact to the claimant in the year 2013-2015 relating to the civil and interior works or any other work. He never signed any bills of the claimant herein except the building maintenance and utility bills never paid any amount in lieu of interior and civil works to the counter-claimant but the defendant paid the huge amount to the CS DJ/208814/2016 Netrapal Singh v. Anil Kumar 4 counter-claimant for the purchase of four flats which are already stated in the civil recovery suit No. 312/2016. The cheque in question which counter-claimant is talking about is also an example malpractice of counter-claimant as the counter-claimant while in order to receive the payment of flats got the cheque bearing No. 597685 of rupees 5,40,000/- that too was undated and the name of receiver was blank and later on the counter-claimant informed the defendant that the said cheque was spoiled due to water and got defaced hence the defendant made the payments of rupees 5,40,000/- to the counter-claimant by two separate cheques and rupees 40,000/- payment deposited in the account of counter-claimant.
7. In the replication, the counter-claimant denied the contents of the written statement and reiterated and reaffirmed the contents of the counter-claim.
8. At the stage of admission/denial of documents and framing of issues, respondent stopped appearing in the court and he was proceeded ex-parte vide order dated 03.05.2018 and again on 15.09.2018.
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9. In support of his evidence, the counter-claimant examined himself as PW-1 who tendered his evidence by way of affidavit (Ex.PW1/1) and reiterated and reaffirmed the contents of the counter-claim therein.
10. I have heard ex-parte final arguments advanced by learned counsel for the counter-claimant and perused the record.
11. Mr. Sanjeev Kumar, learned counsel appearing for the counter- claimant has submitted that the suit bearing No. 312/2016 filed by the defendant herein against the counter-claimant herein was dismissed in default by this Court vide order dated 03.05.2018. The counter-claimant has examined himself who has proved his case whereas the defendant was proceeded ex-parte. The counter-claimant filed a recovery suit under Order XXXVII of the CPC vide Civil Suit No.5436/2016 in respect of amount of rupees 5,40,000/-because cheque for said amount given by the defendant herein in respect of part payment was dishonoured and the Court had decreed the said case in favour of the counter-claimant herein but the defendant has failed to pay the said amount and thereafter, the counter-claimant has filed an execution petition before the Court of Ms. Vineeta Goyal, learned Additional District Judge, Saket Courts, New CS DJ/208814/2016 Netrapal Singh v. Anil Kumar 6 Delhi. The two civil suits are distinct and different as the defendant issued a cheque of rupees 5,40,000/- for the discharging of his part liability and the civil suit Under Order XXXVII of the CPC pertaining to cheque of the amount of rupees 5,40,000/- had been decreed in favour of the counter claimant.
12. Mr. Kumar has further submitted that the present counter claim has been filed by the counter claimant regarding the outstanding amount of rupees 3,87,388/-against the defendant, as the defendant assured that he will pay the rest said amount to the counter claimant at the time of issuing the cheque of rupees 5,40,000/-. The present counter claim is distinct with different cause of action as the counter claimant demanded his outstanding amount from the defendant and the earlier suit was based on only cheque amount, which came under the ambit of Order XXXVII of the CPC. The counter claimant has not intentionally relinquished his outstanding amount as only cheque was issued of Rs.5,40,000/- in favour of counter claimant. Judgment of the Hon'ble Supreme Court passed in the matter of Inbasegaran & Anr. v. S. Natarajan (Dead) thr. Lrs., 2015 (1) Civil Court Cases 039 (S.C.) has been relied upon.
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13. Testimony of PW-1 remained unrebutted, unassailed and uncontroverted. PW-1 has deposed about his firm doing the business of civil and interior work in the name of style M/s NCR Construction; about the proposal/contract of civil and interior work being given by the defendant in relation to the four flats in the year of 2013-2015; about four bills of total sum of rupees 97,76,939/-(Ex. PW-1/A to Ex. PW-1/D); about copy of bank statement of counter-claimant (Ex.PW-1/E), copy of Pass Book of Dena Bank of counter-claimant (Ex.PW-1/F) and copy of Pass Book of United Bank of India in the name of nephew of counter- claimant (Ex.PW-1/G) ; about copy of details of receipts of money (Mark A). He also deposed about some money paid by the defendant and the amount of rupees 3,87,388/- which is required to be paid by the defendant to the counter-claimant. The defendant has taken several defences in his written statement but he was proceeded ex-parte and he neither cross-examined the PW-1 nor examined any witness to prove his defences.
14. From the oral and documentary evidence of the counter-claimant, I am of the view that the case of the counter-claimant is duly proved. So, counter-claim is decreed with costs in favour of the counter-claimant and CS DJ/208814/2016 Netrapal Singh v. Anil Kumar 8 against the defendant for a sum of rupees 3,87,388/- along with pendente lite and future interest at the rate of six percent per annum from the date of institution of the counter-claim till payment.
Decree sheet be prepared accordingly. File be consigned to records. Announced in open court.
Dated: 27.01.2021
(SANJEEV KUMAR-II)
Additional District Judge-04,
South District, Saket Courts, New Delhi
Digitally signed
SANJEEV by SANJEEV
KUMAR
KUMAR Date: 2021.01.27
14:56:22 +0530
CS DJ/208814/2016 Netrapal Singh v. Anil Kumar 9