Delhi District Court
Sh. Ramesh Prakash vs Sh. Bhagwan on 17 July, 2007
1
IN THE COURT OF SH. GIRISH KATHPALIA,
ADDITIONAL DISTRICT JUDGE, DELHI
SUIT NO. 265/04
SH. RAMESH PRAKASH
SON OF LATE SH. MANGE RAM
R/O POLE NO. 29,
VILLAGE & POST OFFICE MUNDKA,
NEW DELHI-110041. .....PLAINTIFF
versus
SH. BHAGWAN
SON OF SH. PT. LAKHI RAM
R/O PLOT NO. 507, GALI ACTION FACTORY,
NEAR HARIJAN BASTI,
VILLAGE & POST OFFICE MUNDKA,
NEW DELHI -110041 .....DEFENDANT
DATE OF INSTITUTION: 15/09/04
ARGUMENTS CONCLUDED ON: 09/07/07
DATE OF DECISION: 17/07/07
Counsel for plaintiff: Sh. Nagender, Advocate
Counsel for Defendant: Sh. L.D. Mohal, Advocate
JUDGMENT
1. This is a suit for recovery of Rs.14,52,185/- brought by the plaintiff against the defendant who had been engaged by the former to collect money on his behalf. As pleaded by plaintiff, he is registered owner of land bearing khasra no. 4/16/1 admeasuring 4840 sq yards situated in the revenue estate of village Mundka, abadi known as Prem Nagar, Delhi.
CS/265/04 Page 1 of 19 pages 2 Plaintiff divided the said land in various plots which were sold away to different persons on installment basis. Plaintiff needed an agent to collect installments from the plot purchasers. Defendant, belonging to the same village and acquainted with the plaintiff was unemployed. Plaintiff appointed the defendant as his agent to collect the installments from different plot holders on his behalf.
2. As per plaintiff, he handed over to the defendant five cash receipt books bearing 100 receipts each in the name of Jai Dada Bhairo Properties, village and post office Mundka, New Delhi. On behalf of plaintiff, the defendant would collect money from the plot purchasers after issuing them receipts and would hand over the collected money to the plaintiff. Defendant maintained a note book of accounts on which he used to take signatures of plaintiff or his wife Santosh at the time of handing over the collected money.
3. As per plaintiff, till March 2003 the defendant handed him over a sum of Rs.10,86,100/- and was paid appropriate commission. Defendant collected money from 25/05/99 till 02/03/03 and used only 460 receipts from the receipt books, CS/265/04 Page 2 of 19 pages 3 which he returned to the plaintiff.
4. Thereafter, plaintiff himself started collecting money from the plot purchasers. In the month of June 2004, plaintiff came to know that the defendant had collected installments from plot holders but did not hand over entire collection to the plaintiff. As per plaintiff, the defendant had embezzled a sum of Rs.14,52,185/-. On being contacted, the defendant, as per plaintiff promised to pay up the said amount within 15 days but even thereafter kept avoiding on one or the other pretext.
5. Finally the defendant assured to pay up the amount of Rs.14,52,185/- with interest at a rate of 2 per cent per month on 20/07/04. But on 20/07/04 defendant declined to make any payment. As such, plaintiff issued a demand noticed dated 27/07/04, to which the defendant sent reply dated 13/08/04, denying his liability to pay. Hence this suit.
6. In his written statement the defendant admitted having collected installments from the plot purchasers and having paid the collected amount to the plaintiff. But he denied having retained any amount of plaintiff and pleaded that rather it is the plaintiff who did not pay commission and CS/265/04 Page 3 of 19 pages 4 defendant raised counter claim. Defendant pleaded that all the receipts and register are in possession of plaintiff, who has deliberately concealed the same as the said record clearly reflects that all the money collected by defendant had been handed over to the plaintiff and no amount is due. Defendant denied having embezzled any money or having assured to pay the alleged amount to the plaintiff. Defendant also denied having fixed any meeting for 20/07/04 as alleged by plaintiff.
7. Defendant also raised a counter claim in the written statement itself pleading that the plaintiff availed his services for collecting money from different plot holders. Defendant pleaded in the counter claim that he used to hand over the collected money to plaintiff or his wife after making entry of payments in a register. After the assigned work was completed, he handed over the original receipts as well the register to the plaintiff. Since plaintiff failed to pay commission to the defendant, the counter claim has been brought. But interestingly, throughout the counter claim the amount claimed was left blank in the relevant paragraphs and even prayer clause of the counter claim. In fact even court fees has CS/265/04 Page 4 of 19 pages 5 not been paid on the counter claim.
8. In his replication, plaintiff denied the pleadings of the defendant and reaffirmed the plaint contents. Plaintiff denied having received the entire amount of money collected by the defendant from plot holders and reiterated that the defendant has embezzled a sum of Rs.14,52,185/-. Plaintiff also denied that he is in possession of any register, as claimed by defendant and stated that the register had been maintained by defendant himself, on which plaintiff or his wife used to sign on receiving the collected installments. Plaintiff alleged that it is the defendant who is concealing the register from this court. Plaintiff also denied any liability to pay any commission to the defendant and pleaded that the counter claim deserves to be rejected as time barred.
9. Defendant neither filed any replication in the counter claim nor amended the same to mention the amount of money being claimed by him under the counter claim.
10. At the stage of admission/denial of documents, defendant admitted the five receipt books before my ld predecessor, which were marked as Ex.P1 to Ex.P5.
CS/265/04 Page 5 of 19 pages 6
11. On the basis of pleadings my ld predecessor framed the following issues:-
1. Whether plaintiff is entitled to the suit amount? OPP.
2. Whether the plaintiff is entitled to any interest? If so, at what rate? OPP.
3. Whether a sum of Rs.24,38,285/- was not collected by the defendant on behalf of the plaintiff? OPD.
4. Relief.
12. In support of his case plaintiff examined, including himself, five witnesses, out of whom three could not be cross examined on behalf of the defendant on account of the infamous lawyers' strike in Tis Hazari Courts. Even application to recall those three witnesses was dismissed and not challenged further. From other side, the defendant appeared as his solitary witness.
13. In his testimony as PW1, plaintiff deposed on oath the above mentioned contents of his pleadings and proved the relevant documents as Ex.PW1/A-C. PW1 specifically deposed that defendant, during the period between 25/05/99 to 02/03/03 collected a total sum of Rs.24,38,285/- from plot CS/265/04 Page 6 of 19 pages 7 holders on behalf of plaintiff and handed over a sum of Rs.10,86,100/- to the plaintiff and thereby the defendant embezzled a sum of Rs.14,52,185/-.
14. In his cross examination PW1 stated that he did not maintain any statement of accounts of the money given to him by the defendant. The receipts issued by the defendant on his behalf were of varying amounts. PW1 could not state as to amount pertaining to which particular receipts had been received by him. He also could not say as to how much money had been received by him from any particular plot holder and how much money was due. He also could not say as to which plot holder had paid how many installments. PW1 stated that he discovered the liability of defendant only when he was approached by the plot holders who contended that they had paid up the entire amount. But he did not take anything in writing from the plot holders as regards the amount which had been paid as per them. He did not maintain any list of persons to whom he had sold the plots. PW1 also did not maintain any account of the money received by his wife or the commission paid to the defendant. He even could not tell as to how much CS/265/04 Page 7 of 19 pages 8 amount of money had been received by his wife from the defendant. PW1 stated that the defendant used to hand over money after deducting the commission at a rate of 1 per cent on the collection but he did not remember the dates of payment of commission nor the exact amount of commission paid. He did not pay any tax on the land sold nor did he take any sanction from the government for selling the plots of agricultural land.
15. PW2 Ishwar Singh, who was not a summoned witness stated that he met the defendant for the first time at defendant's residence along with the plaintiff who was accompanied with 3-4 others and account registers. As per PW2, the parties tried to reconcile some accounts and during the exercise plaintiff acknowledged receipts of Rs.11,00,000/- and demanded Rs.16,00,000/- from the defendant who sought fifteen days time to pay Rs.14,00,000/- and on that day no payment had been made by the defendant. In his cross examination PW2 stated that he had been a colleague of the plaintiff in the army. As per PW2, the talks between the parties were not reduced into writing. He could not tell names of the CS/265/04 Page 8 of 19 pages 9 other persons present at that time. PW2 stated that both the parties had registers and receipts on the basis of which the figure of Rs.25,00,000/- was arrived at, though he did not see signatures of either party on the registers.
16. PW3, PW4 and PW5, who also were not the summoned witnesses, were examined during the period of infamous lawyers' strike in Tis Hazari Courts. All these witnesses deposed that in the month of June 2004, date they did not remember the parties settled their accounts to find that the defendant owed approximately Rs.14,00,000/- to the plaintiff. All these witnesses had been asked to be present in the meeting by the defendant only. On account of lawyers' strike, counsel for the defendant did not appear to cross examine these three witnesses.
17. Defendant in his chief examination as DW1 deposed the above noted contents of his pleadings that he collected installments from plot holders and handed over the entire amount to the plaintiff. Rather, it is the plaintiff who did not pay him the commission and he has preferred a counter claim. DW1 specifically deposed that all the receipt books and CS/265/04 Page 9 of 19 pages 10 register are in possession of the plaintiff, who has deliberately not produced the same, since no amount is due and payable by the defendant. He admitted having received notice of the plaintiff and placed on record his reply thereto as Ex.DW1/A and stated that the suit deserves to be dismissed and counter claim deserves to be decreed.
18. In his cross examination, DW1 stated that he studied till 10th standard and is unemployed. During the period between 1999 to 2003 he was working with plaintiff only and none else. He used to collect money from plot holders while sitting in plaintiff's office only and did not visit houses of the plot holders. Accounts of the plot holders were separately maintained in the office of plaintiff as per DW1, in which he used to make entries as per plaintiff's directions. He did not maintain any separate list of the plot holders. There was no fixed installment amount and he used to handover the day's collection in the evening to the plaintiff with records. DW1 stated that he was not maintaining any separate register of acknowledgment of plaintiff as regards handing over the day's proceeds and such records were maintained and retained by CS/265/04 Page 10 of 19 pages 11 plaintiff himself. DW1 stated that he had been called to police post Prem Nagar once in connection with plaintiff's complaint. On being suggested the plaintiff's version, DW1 denied the same.
19. No other evidence was brought. I have heard both the ld counsel who took me through the entire record. My issue wise findings are as under:-
ISSUE NO.1 & 3
20. Ld counsel for plaintiff, after taking me through the entire record argued that the original register in which the defendant used to take signatures of plaintiff or his wife at the time of handing over the installments is in possession of defendant only and he has deliberately concealed the same. Although defendant pleaded in the counter claim that he had retained a photocopy of the register, even the photocopy was not filed by defendant. Ld counsel also took me through the certified copy of a status report dated 01/08/06 filed by the local police in magisterial court where a complaint case filed by the plaintiff is pending and contended that even as per that report the original register is in possession of the defendant CS/265/04 Page 11 of 19 pages 12 only. The said certified copy of status report had been obtained and filed in this suit by the plaintiff only.
21. Per contra, ld counsel for defendant placed reliance on the testimony of PW2, who stated in his chief examination itself that at the time of reconciling the accounts the register was in possession of the plaintiff only. It was further argued that the plaint is totally silent about the said register and the entire story of the register being in possession of the defendant is beyond pleadings of the plaintiff.
22. It would be pertinent to notice that along with his status report dated 01/08/06, a sub inspector of PS Sultanpuri had also annexed photocopies of ledger. Plaintiff filed certified copy of the report but for an unexplained reason did not place on record copies of the enclosures. Besides, admittedly the plaintiff never issued any notice in writing to the defendant calling him upon to produce the said register. In his cross examination, DW1 specifically deposed that he used to collect money while sitting in office of the plaintiff instead of visiting the plot holders personally; accounts of the plot holders were maintained in plaintiff's office in which DW1 used to make CS/265/04 Page 12 of 19 pages 13 entries as per plaintiff's directions; DW1 was not maintaining any separate register of acknowledgments as regards his having handed over the day's collection to the plaintiff or his wife. No further cross examination on these facts was conducted. Even the plaintiff in his cross examination stated that he discovered liability of the defendant when the plot holders contended that they had paid up the entire amount, which he checked from the receipt books Ex.P1-P5. PW1 does not make reference of any register at that stage. But the remaining witnesses of plaintiff do make a reference of registers two in number, in contrast with statement of plaintiff in chief affidavit, making a reference of only one note book.
23. Plaintiff has failed to bring any reliable evidence to show that any register/note book on which plaintiff or his wife used to sign at the time of receiving the day's collection is in possession of the defendant, which has been concealed. On the contrary, it appears that it is the plaintiff who is withholding the necessary documentary evidence. Testimony of plaintiff to the effect that he did not maintain any list of plot holders and accounts of the money received/receivable from CS/265/04 Page 13 of 19 pages 14 the plot holders fails to inspire confidence.
24. Ld counsel for defendant argued that the suit is also time barred since plaintiff has failed to prove as to which amount of the receipt books Ex.P1-P5 falls within the limitation period of three years. On this argument, as reflected from records counsel for plaintiff also took adjournments but could not meet the same.
25. As reflected from over all evidence discussed above, it appears that the defendant used to collect money on behalf of plaintiff while operating from plaintiff's office and in the evening, used to hand over the day's collection to the plaintiff or his wife against their signatures on some record, which has not been brought before this court. The receipt books Ex.P1 to Ex.P5 at the most show the amount of money collected by the defendant. It is nobody's case that the defendant did not hand over any amount to the plaintiff. It is also a common case of both the sides that a register was being maintained which reflects the amount actually handed over to the plaintiff. As discussed above, in the absence of the said register the alleged liability cannot be quantified.
CS/265/04 Page 14 of 19 pages 15
26. Burden was on plaintiff to prove the exact amount collected by the defendant and handed over to plaintiff or his wife. As held in the case of ANIL RISHI vs GURBAKSH SINGH, 2006 AIR SCW 2394 by the Hon'ble Supreme Court, burden of proof is distinct from onus of proof and the initial burden of proof would be on the plaintiff in view of the inflexible elementary rule in section 101, Evidence Act and if plaintiff discharges the burden and makes out a case which entitles him to a relief, the onus shifts on the defendant to prove those circumstances which disentitle the plaintiff of relief.
27. As reflected from his testimony, plaintiff is not even aware as to amount pertaining to which of the receipts has been received by him. He is not aware as to how much money has been received by him from any particular plot holder. He fails to name even a single plot holder what to say of having taken in writing from the plot holders that they had made the entire payment. What to say of statement of accounts, as per PW1 he did not maintain even a list of the plot holders.
28. None of the witnesses examined on behalf of plaintiff could give the exact date of the alleged reconciling of accounts.
CS/265/04 Page 15 of 19 pages 16 All the witnesses of plaintiff deposed in a parrot like manner and though not cross examined during lawyers' strike, fail to inspire confidence. All the witnesses of plaintiff state that reconciling of accounts was done in the month of June 2004. The last receipt, issued from Ex.P5 is dated 12/07/03. It is unbelievable that plaintiff would have kept sleeping over the settlement of accounts for one year. Above all, the entire version of reconciling the accounts as deposed by witnesses of the plaintiff is beyond plaintiff's pleadings. Besides, testimony of PW1 and other witnesses of plaintiff that the defendant on being contacted so easily confessed having embezzled the amount belies the natural human conduct and is unbelievable. As rightly argued by ld. Counsel for defendant, the suit is based on vague pleadings and hazy evidence.
29. So far as point of limitation is concerned, although no specific issue was framed nor any specific objection was raised in the written statement, in view of the evidence brought on record, the same has to be considered. As per the admitted case of both the sides, the defendant worked for the plaintiff during the period from 25/05/99 to 02/03/03 and the suit CS/265/04 Page 16 of 19 pages 17 was filed on 15/09/04. Plaintiff can claim money payable not before 15/09/01 in this suit and it is for the plaintiff only to show as to what amount of money was payable after 15/09/01. From receipt books Ex.P1 to Ex.P5 only dates of money collected by the defendant can be found but from the same it cannot be established as to whether the payments allegedly not handed over to the plaintiff were the payments received during the period of limitation. It is nobody's case that the installments collected till a particular date had been handed over and subsequent installments are being claimed. It is also an admitted case that the amount of installments varied from plot holder to plot holder. From evidence available on record, it cannot be said that the suit amount is the amount of those installments which were collected subsequent to 15/09/01. Hence, ld counsel for defendant is correct that the suit is even time barred.
30. In view of above discussion, issues no. 1&3 are decided against the plaintiff and I hold it not proved that the plaintiff is entitled to the suit amount. I also hold it not proved that the defendant collected Rs.24,38,285/- on behalf of the plaintiff.
CS/265/04 Page 17 of 19 pages 18 ISSUE NO. 2
31. In view of findings recorded above, issue no. 2 is decided against the plaintiff and it is held not proved that plaintiff is entitled to any interest.
COUNTER CLAIM
32. On the counter claim raised by the defendant, no specific issue was framed by my ld predecessor, understandably in view of totally vague counter claim. Although the defendant raised counter claim on the basis of allegedly unpaid commission, as mentioned above no specific amount has been mentioned throughout the counter claim and even in the prayer clause thereof. Defendant left the amount spaces in counter claim blank and never sought any amendment/rectification. During final arguments, ld counsel for defendant in all fairness conceded that the counter claim cannot be allowed in the absence of specific claim.
33. As such, the counter claim filed by the defendant deserves to be dismissed.
ISSUE NO. 4 (RELIEF)
34. In view of above findings, the suit as well as the counter CS/265/04 Page 18 of 19 pages 19 claim are dismissed with no orders as to cost.
35. Decree sheet be accordingly drawn up and file be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 17th July 2007 (GIRISH KATHPALIA) ADDL. DISTRICT & SESSIONS JUDGE DELHI CS/265/04 Page 19 of 19 pages