Delhi District Court
Sh. Ram Chander vs Rajubhai Babumal Kachela on 8 January, 2019
IN THE COURT OF Dr. PANKAJ SHARMA, CIVIL JUDGE-III (WEST) TIS HAZARI COURTS, DELHI SUIT NO. 610410/2016 Date of Institution : 23.04.2014 Date of reserved for order : 22.12.2018 Date of order : 08.01.2019 SH. RAM CHANDER PROP. MANISH FABRICATION AT 74, POCKET-3, PASCHIM VIHAR DELHI ...... PLAINTIFF Vs. RAJUBHAI BABUMAL KACHELA S/O NOT KNOWN R/O ROOM NO. 10, NEW SINDHU NAGAR OPPOSITE SWAMI LEELA SHAH DHARMSHAL SINDHU NAGAR, BHAV NAGAR, GURRAT SUIT FOR RECOVERY OF DAMAGES Suit No. 610410/16 Ram Chander Vs. Rajubhai Babumal Kachela 1/5 Judgment 1 The brief facts set out in the plaint that plaintiff is doing the business of handicraft items under the name & style of M/s Manish Fabrication and supplying furnished handmade curtains, cusion cover and table cloths etc. for export. In 2003, defendant approached the plaintiff and represented him that he is supplier of export quality surplus handicraft cloths and running the business under the name & style of M/s Jyoti Enterpriese from Bhav Nagar, Gujrat. Thereafter, plaintiff ordered the defendant for supply of export quality surplus cloths on several times and also made advance payment of the material as same was of less cost and giving goods returns to the plaintiff. In 2006, defendant sought some advance payment from the plaintiff and on his assurance, plaintiff advanced a sum of Rs. 2 lacs and also issued two blank cheques so as to help defendant to make payment to his suppliers. Thereafter, plaintiff ordered export quality surplus cloth, however, defendant did not supply the goods as ordered. The plaintiff was informed by the defendant that due to some difficulty, his order could not be fulfilled and defendant failed to return the money or supply the goods. Plaintiff stopped dealing with the defendant and asked him to return the money but the defendant neither paid the money nor replied to the plaintiff. In January, 2013, plaintiff received a legal notice from the defendant and plaintiff replied the same on 06.09.2013 and plaintiff came to know that defendant has filed a criminal complaint under section 138 N.I Act against him in Bhav Nagar, Gujrat. Plaintiff has averred that defendant approached several Suit No. 610410/16 Ram Chander Vs. Rajubhai Babumal Kachela 2/5 suppliers and export houses who are dealing with the plaintiff and informed them that plaintiff is a defaulter due to which plaintiff suffered financial loss to the tune of approximately Rs. 3 lacs. Hence, the present suit.
2 In WS, defendant has denied the allegations made by plaintiff in the plaint and stated that the present suit has been filed by plaintiff to harass him and to pressurize the defendant to withdraw the criminal complaint under section 138 N.I Act. It is also stated that present suit is barred by limiation and plaintiff has suppressed the material facts from the Court.
3 Replication filed by the plaintiff reiterating the facts of the plaint and reasserting the claim.
4 From the pleadings of the parties, following issue is framed vide order dt. 19.08.2014 which is as under:-
1 Whether the plaintiff is entitled to the relief of recovery of damages, as prayed?OPP 2 Relief.
In PE, plaintiff examined two witnesses. PW-1 is plaintiff himself and he relied upon certain documents i.e. his driving license Ex. PW-1/1, Legal notice Ex. PW-1/2 and reply of the legal notice and postal receipts Ex. PW-1/3. PW- 2 is Ram Shobha Prasad and who exhibited document Ex. PW-2/1 Suit No. 610410/16 Ram Chander Vs. Rajubhai Babumal Kachela 3/5 In DE defendant examined himself as DW-1. Arguments heard and record perused carefully., The issuewise finding is as under:-
Issue No. 11 Whether the plaintiff is entitled to the relief of recovery of damages, as prayed?OPP Although, in his affidavit PW-1 stated that he handed over Rs. 2 lacs and two blank cheques to the defendant, however, PW-1 admitted that there is no receipt of the payment of Rs. 2 lacs which he paid to defendant and also of two blank cheques. As per the plaint, he handed over amount and two cheques in the year 2006, and PW-1 admitted that he has not filed any suit or sent any notice to the defendant regarding payment of Rs. 2 lacs. PW-1 has failed to explain as to why he did not take any action against defendant till filing of the present suit. He also admitted that the account from which the cheque No. 271571 was issued was closed. PW-1 admitted that he filed the present suit after defendant filed the case under Section 138 N.I Act in Gujrat against him.
The suit of the plaintiff is premised on the fact that defendant spread in the business community where plaintiff used to deal, that plaintiff is defaulter and due to which he suffered losses, however, PW-1 admitted that defendant did not paste any pamphlet in his locality or got published any information regarding him in newspaper or television. Plaintiff has not been able to substantiate the fact as to how he suffered the loss of Rs. 3 lacs as no document has been filed by him to show that his business transaction were reduced due to information spread by the Suit No. 610410/16 Ram Chander Vs. Rajubhai Babumal Kachela 4/5 defendant. The witness PW-2 could not produce any document to show that he had any business transaction with the plaintiff and also stated that he has no personal knowledge regarding the case of the plaintiff as such the testimony of PW-2 could not substantiate that because of the defendant, plaintiff suffered losses in the business.
Plaintiff has not produced any witness who was transacting with him at the relevant time who could state before Court that he stopped doing business with the plaintiff after defendant has spread the information that plaintiff is defaulter. The suit of the plaintiff is based on the false notion and belief that he suffered losses due to defendant. Plaintiff was required to substantiate his claim by way of documentary evidence and he has failed to do so. Also, it appears that after plaintiff received notice from the defendant pertaining to case under Section 138 N.I Act, he filed the present suit as a counter blast on a foundation less premise of losses occurred to him due to defendant. In the considered view of this court, the plaintiff has failed to discharge burden of proving the issue. Accordingly, this issue is decided in favour of defendant and against the plaintiff.
Issue No. 2.
2 Relief.
In view of the above discussion, the suit of the plaintiff is dismissed. No orders as to cost. Decree Sheet be prepared accordingly. File be consigned to Record Room Digitally signed by after due compliance. PANKAJ PANKAJ SHARMA Announced in the Open Court SHARMA Date:
2018.12.26 today i.e. 08.01.2019. 16:13:43 +0530 (Dr. Pankaj Sharma) CJ (West)III THC/Delhi 08.01.2019 Suit No. 610410/16 Ram Chander Vs. Rajubhai Babumal Kachela 5/5