Delhi District Court
Through vs Brahmani Computers Technic Pvt. Ltd on 18 February, 2009
IN THE COURT OF Dr. KAMINI LAU: ADDL
DISTRICT JUDGE: DELHI
Suit No. 115/2006
Tarun Enterprises
WZ135D, Tikonia Park,
Ring Road, Naraina,
New Delhi
Through
Shri Tarun Kumar Shukla
Presently at
1802, Gyani Bazar
Prasada Gali, Kotla Mubarakpur
Delhi110003.
....Plaintiff
Versus
1. Brahmani Computers Technic Pvt. Ltd.
2188/5, (32A) Main Road
Shadikhampur,
West Patel Nagar.
New Delhi110008
2. Mr. NK Sharma, Director
2188/5, (32A) Main Road
Shadikhampur,
West Patel Nagar,
New Delhi110008.
Also at
3274, Ranjit Nagar
New Delhi110008
.......Defendants
Date of Institution : 19.2.2001
Arguments Heard on : 12.2.2009
Date of Decision : 18.2.2009
1
: J U D G M E N T :
This suit for recovery of Rs.4,60,000/ along
with pendente lite & future interest @ 18% per annum under
order XXXVII of Code of Civil procedure has been filed by
the plaintiff M/s Tarun Enterprises against the defendant
BSES RPL. Briefly the facts relevant to the disposal of the
same are as under:
BRIEF FACTS:
Plaintiff's Case:
The case of the plaintiff is that it is a sole proprietorship concern carrying on the business of dealing in Minioffset printing and also carrying on work of repairing of the Minioffset machines providing graphic services. It is stated that in the year 1997, defendant no. 2 approached the plaintiff and represented himself as Director of defendant no.1 and the defendant no.1 is a Pvt. Ltd. Company carrying on its business relating to printing through Minioffset printing machines, graphic etc. He further informed the plaintiff that during the course of his 2 business, he needed Minioffset printing consumables and therefore requested for dealing in business with the defendants.
According to the plaintiff, during the course of its business the defendant no. 2 have availed his services for handling documentation work, graphic services, repairing of Minioffset printing machines etc. and on account of the said work and supply of masters, plaintiff has raised various bills duly acknowledged by defendant no.1 as well as by defendant no.2. In order to discharge the part of liabilities, the defendant no.2 for and on behalf of the defendant No.1 have issued the following cheques drawn of Punjab National Bank, Patel Nagar, New Delhi.: Sl. No. Cheque No. Dated Amount (Rs.) A. 631942 15.2.98 1,00,000/ B. 885508 20.2.98 1,80,000/ C. 885509 31.3.98 1,80,000/ Thereafter the plaintiff is stated to have presented the aforesaid two cheques no. 631942 for Rs.1,00,000/ and 885508 for Rs.1,80,000/ in his bank i.e. 3 UCO Bank, Naraina Branch, New Delhi, for its encashment and on 19.8.1998 the plaintiff was handed over a memo issued by his banker i.e. UCO Bank, Naraina Branch, New Delhi, informing him that the said cheques bearing no. 631942 and 885508 have been dishonoured on the basis of information provided by Punjab National Bank that
(i) Cheque No.631942 for a sum of Rs.1,00,000/ is returned for reason "INSUFF ICIENT FUNDS"
(ii) Cheque No.885508 for a sum of Rs.1,80,000/ is returned for reason "INSUFF ICIENT FUNDS"
Thereafter the plaintiff through its counsel issued a legal notice dated Ist September, 1998 and 27 Jan 2001 under section 138 of the Negotiable Instruments Act demanding the payment of amount covered under the aforesaid cheques within 15 days from the receipt of the aforesaid notice dated 1st September, 1998, but the defendants have failed and deliberately neglected to pay the said amount till date despite being the fact that the notices were duly served on the defendants. However, the defendants in their reply dated 12th September, 1998 4 admitted that the notice dated 1st September, 1998 was served on them on 7.9.1998.
According to the plaintiff, in their reply to the notice dated 1st September, 1998, the defendants have taken a false plea and denied the liability by saying that aforesaid cheques were not issued against the discharge of their liabilities arising out of the course of business during which the defendants have availed the services of the complainant for handing documentation work, graphic services, repairing of Minioffset printing machines etc. It is stated that at the same time the defendants have falsely pleaded that the aforsaid cheques were given as Post dated cheques in beginning to show to the plaintiff that they were the genuine buyer.
It is pleaded that the defendants have taken a false plea in order to make out an excuse in reply since they have insufficient funds at the time of issuing the cheques and at the time of presentation and in fact the aforesaid two cheques no.631942 for Rs.1,00,000/ and 885508 for Rs.1,80,000/ were issued on 15th February, 1998 and 20th 5 February, 1998 against the acknowledged liabilities and defendants clearly showed their malafide intentions and ulterior motives and have concocted the plea. According to the plaintiff, the allegations of disputing the liabilities in reply dated 12th September, 1998 and 7.2.2001 are baseless and the plea raised and averments made by the defendants in para No. 2 of reply dated 12th September, 1998 and 7.2.2001 are vehemently denied. It is submitted that there is no connection of business transactions, if any, of defendants with C.M. Enterprises, Print Art Service and any other party in respect of the cheques issued by the defendants against the acknowledged liabilities. According to the plaintiff, the defendants are liable to pay Rs.4,60,000/ alongwith pendente lite and future interest @ 18% per annum, due to which reason he has filed the present suit.
Defendant's Case:
In their written statement the defendants have raised a preliminary objection that there is no previty of contract between the defendants and the plaintiff at any 6 point of time since there was no dealing whatsoever with the plaintiff for which reason the suit filed by the plaintiff is bad in the eyes of law. It is further pleaded that the suit filed by the plaintiff does not discloses any cause of action against the defendants, therefore, the suit of the plaintiff is without any cause of action is liable to be dismissed under Order 7 Rule 11 of the Code of Civil Procedure. According to the defendants, the suit of the plaintiff is barred by limitation deserves to be dismissed and is not maintainable in the eyes of law, as there has been a dispute on the identity of the plaintiff since beginning and the plaintiff with the malafide intention conspire with S/Sh. Pawan Mishra and J.P. Mishra and V.C. Dubey had caused wrongful gain to themselves and wrongful loss to the defendants and the defendants had been the victim of the hands of the plaintiff and other aforesaid persons.
On merits, the defendants have denied all the allegations made by the plaintiffs against them and it is stated that the defendant no.2 is the Director of defendant no.1 and is well versed with the facts of the case. It is 7 pleaded that the defendants had never approached the plaintiff for carrying out out of any sort of business with him as the defendants does not know the plaintiff at all and in fact they only had dealings with S/Sh. Pawan Mishra and J.P. Mishra, who introduced themselves as a dealer dealing in sale and services of mini offset machines and the defendants, who wanted to purchase mini offset machines, had purchased the same from them. It is further stated that the said S/Sh. Pawan Mishra and J.P. Mishra also made the defendants to believe that they are running their business and have several firms in their name to this effect and the defendant made the payments to them but to the utter surprise to the defendant the machines supplied the them were obsolete and were not working pursuant to which several reminders were sent to them but of no avail.
It is also pleaded that the aforesaid persons have taken money from the defendant in favour of C.M. Enterprises, Print Art services as well as in favour of M/s Tarun Enterprises, whereas the defendants have never dealt with the present plaintiff namely Tarun Shukla who has filed 8 this false suit in connivance with the aforesaid Pawan Mishra. It is stated that the present plaintiff who appears to be in relation with the aforesaid Pawan Mishra and J.P. Mishra has filed this false and frivolous suit against the defendant only to harass them and to get away the criminal proceedings which are likely to be initiated against them. It is further stated that the defendants have filed a criminal complaint under Section 420/120B/34 IPC against Pawan Mishra J.P. Mishra ,V.C.Dubey and Tarun Shukla for cheating them and for supplying the obsolete machines and for causing wrongful gain to themselves for which proceedings have already been initiated against them, and necessary directions to this effect had already been given. It has been denied that the defendant no.2 had ever availed the services of the plaintiff for handling documentation work, graphic services, repairing of mini off set printing machines etc. and that the defendant had ever acknowledged any bills allegedly raised by the present plaintiff. It has been reaffirmed that the identity of the plaintiff was kept a secret by themselves as the notice dated 01 September 1998 as 9 well as 27 January 2001 never disclosed as to who is the proprietor of M/S Tarun Enterprises and the notice issued by the proprietorship concern having it sole proprietor without mentioning the name of sole proprietor is totally illegal and not maintainable in the eyes of law.
It is pleaded that the cheque no. 631942 dated 15.02.1998 for Rs.1,00,000/, cheque no. 885508 dated 20.2.1998 for Rs 1,80,000/ and cheque no. 885509 dated 31.3.1998 for Rs.1,80,000/were never given to the present plaintiff and in fact the defendant no. 2 had given these cheques to S/Sh Pawan Mishra and J.P.Mishra, who had cheated the defendant by taking the aforesaid cheques in the name of M/s Tarun Enterprises, which cheques were given to them in the month of NovemberDecember 1997 as post dated and further the aforesaid persons had also taken the amount from the defendant by way of draft and cash in lieu of the aforesaid cheques but did not return the aforesaid cheques on one pretext or the other and now with their ulterior malafide intention has got the present suit filed against the defendant by the present plaintiff. 10
Counter Claim:
According to the defendant no. 2 he had received a notice from the plaintiff dated 1.9.1998 and 27.1.2001 sent by the plaintiff M/s Tarun Enterprises wherein para no 4 of the notices, the plaintiff had categorically admitted to have received Rs.70,000/ as an advance payments and thereafter, a pay order for a sum of Rs.30,000/ was also admitted by him to have received from.
It is stated that the answering defendants have paid this amount to Pawan Mishra and J.P. Mishra who made him believe that they were owners of M/s Tarun Enterprises and now it has been admitted by Sh. Tarun Shukla that the amount of Rs.3,70,000/ has been received by him and the amount is with him which itself shows that Tarun Shukla is holding the amount of defendant without any basis and therefore the defendants have prayed that a decree for Rs 3,70,000/ with interest @ 24% per annum from the date of holding the amount till its realization be passed in favour of defendants and against the present plaintiff Tarun Shukla under order 12 rule 6 of CPC.
11 ISSUES:
On the basis of the pleadings of the parties, the following issues have been framed:
1. Whether the defendant is entitled to the counter claim of Rs.3,70,000/ as asked for? (OPD)
2. Whether the defendant had purchased seven Speedo graph Mini Offset Machines as claimed? (OPD)
3. Whether the plaintiff is entitled to the relief of recovery for a sum of Rs.4,60,000/ as asked for in the plaint? (OPP)
4. Relief.
EVIDENCE:
In order to prove his case the plaintiff Tarun Shukla has examined himself as PW1 and in his examination in chief by way of affidavit corroborated what has been earlier stated in the main suit. He has placed on record the the invoice no.3949 dated 6.11.1997 which is Ex.PW1/1; invoice no.1486 dated 6.11.1997 which is Ex.PW1/2; invoice no.1485 dated 6.11.1997 which is Ex.PW1/3; invoice no.1553 dated 28.11.1997 which is Ex.PW1/4; Challan no. 2417 dated 26.11.97 which is 12 Ex.PW1/5; bill no. 126 dated 8.12.97 which is Ex.PW1/6; bill no. 146 dated 18.12.97 which is Ex.PW1/7; bill no. 158 dated 25.12.97 which is Ex.PW1/8, bill no. 191 dated 27.1.98 is Ex.PW1/9; challan no. 134 dated 27.1.98 is Ex.PW1/10; debit note dated 25.3.98 is Ex.PW1/11; debit note dated 25.3.98 is Ex.PW1/12; bill no. 347 dated 21.4.98 is Ex.PW1/13; bill no. 367 dated 4.5.98 is Ex.PW1/14; Bill No. 002 dt. 6.11.1997 is Ex.PW1/15; Bill No. 19 dt. 2.1.98 is Ex.PW1/16; Bill No. 22 dt. 5.1.98 is Ex.PW1/17; Bill No. 24 dated 7.1.98 is Ex.PW1/18; Bill No. 25 dt. 21.1.98 is Ex.PW1/19; letter dated 19.9.97 is Ex.PW1/20; Bill no. 027 dt. 31.1.98 is Ex.PW1/21; Bill no. 031 dated 28.2.98 is Ex.PW1/22; acceptance letter in original from Sh.
Baleshwar Thakur proprietor of M/s Shubham Enterprises is Ex. PW1/23; Bill no. 028 dt. 31.1.98 is Ex.PW1/24; Bill No. 032 dt. 28.2.98 is Ex.PW1/25; Bill No. 035 dt. 31.3.98 is Ex.PW1/26; Cheque No. 631942 dt. 15.2.98 in the sum of Rs.1,00,000/ is Ex.PW1/27; Cheque No. 885508 dt. 13 20.2.98 in the sum of Rs.1,80,000/ is Ex.PW1/28; Cheque No. 885509 dt. 31.3.08 in the sumof Rs.1,80,000/ is Ex.PW1/29; bounced Cheque No. 631942 and 885508 dated 18.8.98 is Ex.PW1/30; bounced Cheque No. 885509 dt. 5.9.98 is Ex.PW1/31, Cheque No. 631942 dt. 14.8.98 is Ex.PW1/32; Cheque No. 885508 dated 17.8.98 is Ex.PW 1/33; Cheque No. 885509 dated 3.9.98 is Ex.PW1/34; Legal notice dated 1.9.98 is Ex.PW1/35; reply letter dated 12.9.98 is Ex.PW1/36; Legal Notice dated 27.1.01 is Ex.PW1/37; reply letter dated 7.2.2001 is Ex.PW1/38; three registered letter, postal receipts bearing nos 4602, 4603 & 4604 all dated 29.1.01 in respect of notice dated 27.1.01 are collectively Ex.PW1/39; same notice copy against sent by speed post receipts bearing nos' 9725, 9726, 9727 all dated 28.1.01 are collectively Ex.PW1/40; same notice dated 27.1.01 copy again sent by UPC receipts dated 29.1.01 are collectively Ex.PW1/41.
PW2 Baleshwar Thakur who is the proprietor of Shubham Enterprises has proved his signatures on the 14 document Ex.PW1/23 which according to him had been executed at the time when he was given a contract by Tarun Enterprises for printing purposes. He has deposed that the said job work was done at Delhi and the said printing work was done on 4 machines in a premises which was taken by Sh. N.K. Sharma of defendant no.1. He has further deposed that the said work was done by him from January 1998 to March 1998 and the payment was given to him by Tarun Enterprises.
The plaintiff has also examined one Kehri Singh as PW3 who has in his examination in chief deposed that he is the proprietor of Baghel Offset Printers and has identified his signatures on document Ex.PW1/20. He has testified that the said document was executed by him when he was given a contract by Tarun Enterprises for printing purposes so that at the time when the job work is done the employees/ persons to do said work was made available. According to him, the said job work was done at Mohali, Chandigarh and the printing work was done on 3 machines. He has further stated that the premises in which the job work was done was 15 taken by Sh. N.K. Sharma of defendant no.1 and the said work was done by him in December 1997 and January 1998 and the payment was given to him by Tarun Enterprises.
PW4 B.B. Shah from UCO Bank has in his examination in chief placed before this court the record pertaining to account of Tarun Enterprises bearing No. 1389 current account. He has testified that as per their record Cheque no. 631942 dated 15.2.98 for a sum of Rs. 1 lakh of PNB East Patel Nagar Branch issued by defendant no.1, Brahmani Computers which is Ex.PW1/27; Cheque no. 885508 dated 20.2.98 for a sum of Rs. 1,80,000/ of PNB East Patel Nagar Branch issued by defendant no.1, Brahmani Computers which is Ex.PW1/28 and Cheque no. 885509 dated 31.3.98 for a sum of Rs. 1,80,000/ of PNB East Patel Nagar Branch issued by defendant no.1, Brahmani Computers which is Ex.PW1/29 were bounced on presentation of account of insufficient funds which fact is evident from the memos Ex.PW1/30, Ex.PW1/31 and Ex.PW1/32. He has placed on record the cheque showing that the cheques were bounced for insufficient funds which 16 is Ex.PW4/1 and the account opening supported documents Ex.PW4/2.
In rebuttal the defendants have examined three witnesses. DW1 Sh. R.S. Yadav Assistant Manager from UCO Bank has placed on record the statement of account of Ms. Tarun Enterprises copy of which is Ex.DW1/A. DW2 Dev Raj Saini Record Keeprt from Punjab National Bank has placed on record the statement of account of M/s. Brahmani Computers Ltd. which is Ex.DW2/A. The defendant no. 2 N.K. Sharma has examined himself as DW3 and in his examination in chief by way of affidavit corroborated what has been earlier stated in the written statement.
FINDINGS:
I have heard the arguments advanced before me by the counsels for both the parties and have heard the arguments advanced before me. My findings on the various issues are as under:
17
Issue no. 1 Whether the defendant is entitled to the counter claim of Rs.3,70,000/ as asked for?
Issue no. 2 Whether the defendant had purchased sever Speedograph Mini - Offset Machines as claimed?
Both the issues are clubbed together for the sake of convenience involving common. Onus of proving these issues was upon the defendant. It is evident from the record that the defendant has filed their counter claim to the tune of Rs.3,70,000/ on 8.12.2006. According to the defendant he had received a notice of the plaintiff dated 1.9.1998 and 27.1.2001 sent by the plaintiff M/s. Tarun Enterprises where in paragraph no. 4 it had been categorically admitted that they had received a sum of Rs.70,000/ as an advance payment and pay order for a sum of Rs.30,000/. It is stated that the defendant had paid this amount to Pawan Mishra and J.P. Mishra who made him believe that they were the owners of M/s. Tarun Enterprises but it has now admitted by Sh. Tarun Shukla that the amount of Rs.3,70,000/ had been received by him which admission of Tarun Shukla shows 18 that he is holding the amount without any basis and therefore, under these circumstances, the defendant seeks the refund of Rs.3,70,000/ alongwith the interest @24% per annum from the date of holding the said amount till its realization. Further, in the written statement the defendant has denied having approached the plaintiff for carrying out any sort of business and states that he does not know the plaintiff at all. According to him, he was dealing with Pawan Mishra and J.P. Mishra who introduced themselves as dealers, dealing in sale and services of mini off set machines and since the defendant wants to purchase the aforesaid machines, he purchased the same from them.
According to the defendant, the said Pawan Mishra and J.P. Mishra made him believe that they are running their business and have several firms in their name to this effect and thereafter the defendant had made the payment to them but to his utter surprise the machines supplied to him were not in working condition and several reminders were sent to them but of no avail. He has pleaded that it was the said two persons namely Pawan Mishra and J.P. Mishra who had 19 taken money from him in favour of CM Enterprises, Print Art Services as well as in favour of M/s. Tarun Enterprises whereas he had never dealtwith the plaintiff Tarun Shukla who has filed the present case.
I have gone through the document Ex.PW1/36 which is the communication/ reply given by the defendant N.K. Sharma to the notice of the plaintiff which reply was given on 12.9.1998 wherein the defendant no. 2 N.K. Sharma has specifically stated that the deal was finalized for purchase of 7 Mini Offset machines @ Rs.2 lacs each and an advance payment was paid and Rs.1 lacs was given on 12.10.1998 and 6 post dated cheques had been given. At the very outset before going into the merits of the case it is necessary to point out that it is evident from the counter claim of the defendant that the deal, if any, regarding purchase of 7 Offset Machines had taken place in the year 1998 as evident from the communication of the defendant placed before this court which has been duly admitted by him particularly Ex.PW1/36. The cause of action, if any firstly arose in the year 1998. It is further evident from the 20 communication dated 1.9.1998 sent by the plaintiff which is Ex.PW1/35 that the defendant no. 2 had approached the proprietors of M/s. Tarun Enterprises for purchasing of Mini Offset Printing Consumables. It has been clearly mentioned in Ex.PW1/35 that the services of M/s. Tarun Enterprises, the Sole Proprietorship concern had been availed for handling documentation work, graphic services, repairs of Mini Offset Printing Machines etc. and it was on account of the said work and supply of masters that the various bills which have been acknowledged by the defendant had been raised. Therefore, as apparent from the intersee communications between the parties that the dispute, if any, admittedly arose in the year 1998 since the case of the plaintiff is that he had rendered job work services to the defendant for which he had given various payments by the defendant no. 2 whereas the case of the defendant was that the said payment had been made for purchase of the Mini Offset Machines. Further, it is evident from the communication of the plaintiff dated 27.1.2001 which is Ex.PW1/37 that the plaintiff had called upon the defendant 21 no. 2 to make the payments in lieu of the dishonoured cheques.
Therefore, firstly the cause of action if any having arisen in the year 1998, secondly the suit having been filed by the plaintiff in the year 2001 and lastly the defendant M/s. Brahmani Computers through its Director N.K. Sharma having raised the counter for the first time on 8.12.2006 i.e. almost after a period of 8 years in which counter claim there is no whisper of the dates when the alleged cause of action have arisen, I hereby hold that the counter claim raised by the defendant is highly time barred and cannot be entertained.
Further, in so far as the claim of the defendant of having purchased the 7 Mini Offset Printing Machines, it is evident that the defendant in his examination in chief by way of affidavit has admitted having issued the cheques bearing no. 631942 dated 15.5.1998 for Rs.1,00,000/, cheque no. 88508 dated 20.2.1998 for Rs.1,80,000/ and cheque no. 885509 dated 31.3.1998 for Rs.1,80,000/ but according to him the said cheques had never been issued to 22 Tarun Shukla rather he had given these cheques to Pawan Mishra and J.P. Mishra. It is evident from the record that Pawan Mishra and J.P. Mishra are not parties before this court. It is also evident from the examination in chief of Tarun Shukla by way of affidavit that he is the sole proprietor of the firm M/s. Tarun Enterprises and there is no effective rebuttal to the same. PW1 has specifically in his crossexamination denied that the cheques in question had been given to him in January - February 2001 or that they were given to Pawan Mishra and J.P. Mishra in November 1997 who were dealing with the defendants for supply of Mini Offset Printing Machines and represented himself to be the owner of C.M. Enterprises, D.K. Enterprises, Print Art Services and Tarun Enterprises but according to him, the said cheques had been given to him. It is also evident that the defendant no. 2 N.K. Sharma has in his cross examination admitted that he did not issue any notice to Pawan Mishra and J.P. Mishra nor has he filed any civil suit in any court. He has further admitted that there is no written communication between him and the said persons. He has 23 admitted that he has not made any purchase from Tarun Shukla and the plaintiff in the present case is Tarun Shukla who represents M/s. Tarun Enterprises. The relevant portion of his crossexamination is as under:
" ...... It is correct that I have not filed any civil suit or court case against J.P. Mishra and Pawan Mishra. It is also correct that I have not issued any notice to them. There has been no written communication between me and Sh. J.P. Mishra or Sh. Pawan Mishra. Vol. Only the receipt bears the signatures of Sh.
J.P. Mishra. It is correct that that I have not filed the receipt in this court.
Vol. The original is in the police complaint. I have not made any communication with Sh. J.P. Mishra or Sh. Pawan Mishra, asking them about the details of Sh. Tarun Shukla or about Tarun Enterprises. (Vol.) the question does not arise as they represent Tarun Enterprises. It is correct that I have not made any purchase of machines from Sh. Tarun Shukla. The plaintiff in the present case if Sh. Tarun Shukla. It is 24 correct that the plaintiff in the present case is Tarun Enterprises. (Vol.) Tarun Shukla represents Tarun Enterprises. It is correct that Tarun Enterprises is represented by Sh. Tarun Shukla. Vol. I came to know about it only after investigations from the bank......."
The defendant no. 2 in his crossexamination has further testified as under:
" ....... It is correct that prior to 1998, I had not made any written communication to Tarun Enterprises. Vol. I had only orally communicated to Sh. J.P. Mishra and Sh. Pawan Mishra.
It is wrong to suggest that I had never put forward my grievances to Tarun Enterprises. Vol. I had put them before Sh. J.P. Misha and Sh. Pawan Mishra.."
Therefore, under these circumstances, the allegations of purchase of Mini Offset machines if any are from Pawan Mishra and J.P. Mishra who are not parties to the disputes raised by the plaintiff before this court. The 25 defendant has also admitted that he has not issued any notice to them. Therefore, under these circumstances, I hereby hold that the defendants have not purchased 7 Mini Offset Printing Machine from the present plaintiffs and the purchase if any, might have been from Pawan Mishra and J.P. Mishra as claimed by the defendants who incidentally are not parties in the present suit. Issues are decided in favour of the plaintiff and against the defendants. Issue no. 3 Whether the plaintiff is entitled to the relief of recovery for the sum of Rs.4,60,000/ as asked for in the plaint?
Onus of proving this issue was upon the plaintiff. The case of the plaintiff is that it is a sole proprietorship concern carrying on its business of dealing in Mini Offset printing work, repairing of minioffset printing machines, providing graphic services, handling all printing work, providing machineoperators, labour/ staff etc. handling/ solving all problems in printing machines, providing consumable material related to running to printing machines etc. In this regard the plaintiff Tarun Shukla who 26 is the Proprietor of M/s. Tarun Enterprises has examined himself as his own witness. He has placed on record various documents of sale tax receipts and sales tax quarterly return belonging to plaintiff firm which is Ex.PW1/DX1. According to the plaintiff, the defendant no. 1 through its Director brought consumable materials related to minioffset printing machines and also availed graphic and documentation handling services by the plaintiff as testified by PW1 for which the plaintiff had raised 10 invoices which are Ex.PW1/15 to PW1/26 which were duly acknowledged by the defendant no. 1 in lieu of which the defendant no. 2 also handed over three cheques and two pay orders in favour of the plaintiff in discharge of their liabilities. The plaintiff has placed his reliance on the income tax return dated 30.9.1998 which shows that Tarun Shukla as the Proprietor of M/s. Tarun Enterprises and the nature of business has been shown as Trading in printing machinery spares and job work and specifically mentions the job work done for M/s. Brahmani Computers i.e. the defendants and the value of the said job work done to be Rs.6,30,000/ out of which the 27 estimated income was about 8% i.e. only Rs.50,400/. According to the plaintiff the defendant no. 2 has not paid the amount of Rs.4,60,000/ as a result of which he had suffered financial set back. He has also placed his reliance on the three cheques issued by the defendants towards the balance liability which cheques i.e. bearing no. 631942 dated 15.2.1998 for a sum of Rs.1,00,000/ Ex.PW1/27; cheque bearing no. 885508 dated 20.2.1998 for a sum of Rs.1,80,000/ Ex.PW1/28 and cheque bearing no. 885509 dated 31.3.1998 for a sum of Rs.1,80,000/ which is Ex.PW1/29 (total Rs.4,60,000/). According to the plaintiff, the defendant has been delaying the aforesaid payment on the pretext of financial difficulty which financial difficulty of the defendants stands corroborated from the statement of account for the year 19971998 which has been proved by the witness Devraj Saini Record Keeper, Punjab National Bank which shows that on 17.2.1998 the defendant company' s bank account had only a balance of Rs.18,167/ and on 27.3.1998 the actual balance amount was only 28 Rs.2,031/. It is pointed out that the defendant no. 2 had been approaching the plaintiff and requested him to grant more time and finally when the said cheques were deposited for encashment in the bank all of them got dishonoured on account of insufficient funds and despite the information of the plaintiff to the defendant no. 2 about the bouncing of the said cheques and despite repeated assurances to the plaintiff by the defendant no. 2 till date no payment has been made. It is argued that since the defendant no. 2 had been requesting the plaintiff not to proceed against him in the criminal case, therefore, no complaint under the NI Act had been filed till date. The plaintiff has also placed his reliance on the legal notice dated 1.9.1998 which is Ex.PW1/35 and 27.1.2001 which is Ex.PW1/37 in support of this contentions.
The case of the defendant is that there is no privity of contract between him and the plaintiff and the identity of the plaintiff has always been disputed since the inception of receiving the notice dated 1.9.1998. It is argued by the Ld. counsel appearing on behalf of the 29 defendants that the defendant no. 2 has been cheated by Pawan Mishra and J.P. Mishra and V.C. Dubey with whom he had dealing for the purchase of Mini Offset machines but the said persons had intentionally in connivance with each other had cheated by supplying obsolete machines to him and caused wrongful harm to him by getting the payments in the name of C.M. Enterprises, Print Art Services as well as in favour of M/s. Tarun Enterprises representing themselves to be the owners of the aforesaid firms. It is also pointed out that an FIR bearing no. 686/06 under Section 420/120B/ 34 IPC had been registered at PS Patel Nagar. Ld. counsel has pointed out that the Mishra brothers with malafide intentions had concocted this case as the plaintiff who is the soninlaw of V.C. Dubey and nephew of Mishra Brothers in connivance with each other with the malafide intentions to extort the amount in question from him. It is argued that the plaintiff has miserably failed to prove his case that he had been doing the business to carry out any work which he alleges has been given to him by the defendants. He has stated that there has been no written undertaking or contract 30 and that the evidence produced by the plaintiff is full of lacunas. Ld. counsel for the defendant has also advanced an alternative argument that even on merits the plaintiff has failed to prove his entitlement to the amount claimed since even if the testimony of the plaintiff is believed, the alleged bills raised by the plaintiff upto 20.2.1998 are calculated the total amount of bills which come out to Rs.5 lacs and the cheques on the basis of which the present case had been filed and the amount which the plaintiff has admitted to have received is Rs.6,50,000/. According to the Ld. counsel for the defendants no prudent person would issue the cheques for an amount more than the liability accruing against him and the cheques in question had been issued to Mishra Brothers for a different transaction and the plaintiff is not entitled to any relief.
I have considered the arguments advanced before me and also the details written synopsis of arguments placed before me. I have also gone through the testimony of various witnesses and the documents placed on record. It is not disputed that the plaintiff is the soninlaw of V.C. 31 Dubey having married his daughter in the year 1999. It is also an admitted case that Pawan Mishra is related to him being the husband of maternal aunt and J.P. Mishra is his earlier brother. The plaintiff before this court has not been able to prove that he had established sufficient goodwill but that would be irrelevant in view of the fact that it is not disputed by the defendant that the cheques had been issued in the name of the plaintiff no. 1 of which the plaintiff no. 2 is the sole proprietor. It is evident from the various communication between the parties which have been duly admitted by both the plaintiff and the defendant that the plaintiff was doing the job work of printing on contract basis. According to the plaintiff he had entered into an agreement with the defendant no. 2 for printing of electoral list for Delhi and Chandigarh which work had been given to him by N.K. Sharma. PW2 Baleshwar Thakur has corroborated the testimony of PW1 on this aspect and has duly proved that M/s. Tarun Enterprises had given him a contract of job work of printing which was done by him from January 1998 to March 1998 and he had done the said 32 work on urgent basis in a premises at Shadi, Khampur, Delhi by employing 10 persons though the said witness has not been able place before this court any documentary record regarding the employment of said persons and all the payments received. PW3 Kehri Singh who is the proprietor of Bhagel Offset Printers has also admitted that the premises in which the job work was done had been taken by N.K. Sharma of defendant no. 1 and he had done the work for him in December 1997 to February 1998. He has specifically corroborated the testimony of PW1 that the job work was with regard to the printing of electoral list of Haryana and Punjab which was supposed to be an urgent work and had been completed in time for which there was no complaint. The witness from the bank B.B. Shah who has been examined as PW4 has proved that the cheques issued by the defendant no. 1 which are Ex.PW1/27, PW1/28 and PW1/29 had bounced on presentation on account of insufficient funds. He has placed on record the memos of the bank alongwith the memos from PNB to which there is no rebuttal.
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The defendant no. 2 in his testimony has materially contradicted himself and has not been able to rebut the evidence adduced by the plaintiff. He has in his crossexamination admitted that he had received an order from the government to print voters' list though he has denied that he had entrusted the said work to Tarun Enterprises. According to him, he had done the work of his own and Pawan Mishra and J.P. Mishra helped him in arranging man power. On the one hand the witness has stated that the machines supplied to him by the said Pawan Mishra and J.P. Mishra were defective and nonoperative and there was frequent breakdown whereas on the other hand he has stated that he has employed his own labour to work on the said machines. This is despite the fact that in his crossexamination he has admitted that the output given by each machine on an average per day was very less since they were hardly functional due to frequent breakdowns. The said witness has further admitted that he has not maintained any record of the labourers. He has not placed before this court any statutory register as applicable to the 34 Workmen to show the employment of the said labourers and disbursement of salary to them. He has failed to examine any other independent witness to rebut the claim of the plaintiff and despite having received a communication from Tarun Shukla in the year 1998 which he has duly admitted, no legal action has been taken by the defendant no. 2 against the present plaintiff no. 2 Tarun Shukla. Further he has not initiated any civil proceedings in any court of law against J.P. Mishra and Pawan Mishra nor any notice has been issued against them. The witness DW1 and DW2 who are the officials of the bank have proved the accounts of the plaintiff no. 1 and the defendant no. 1. In the cross examination of PW1 a suggestion has been made by the defendant no. 2 to PW1 that the cheque which was given to him by the defendant dated 15.2.1998 was in respect of various bills issued by him for Rs.5 lacs till January 1998. PW1 has admitted having received Rs.6,50,000/ which includes the payment received on 20.2.1998. Therefore, in view of the aforesaid there is a serious contradiction in the stand taken by the defendant. On the one hand he states that 35 there is no previty of contract between him and the plaintiff no. 2 whereas on the other hand he has made a specific suggestion to the plaintiff that certain amount had been paid to him which the plaintiff admits having received. Therefore, under these circumstances in the absence of any independent corroboration no credibility can be attached to the oral testimony of DW1. On the other hand the plaintiff having proved the dishonour of various cheques which are Ex.PW1/27, Ex.PW1/28 and Ex.PW1/27 to Ex.PW1/31 against which the memos from the bank showing that the cheques were dishonoured on account of insufficient funds of the defendant no. 1 company and the statement of account which is Ex.DW1/A which has been proved by the witness Devraj who has been examined by the defendant, shows that the defendant was having sort of funds when the cheques were dishonoured.
In view of my aforesaid discussion, I hereby hold that the plaintiff is entitled to recover a sum of Rs.4,60,000/ from the defendants. Further, I hold that the ends of justice would be met if an interest @ 6% is granted 36 to the plaintiff from the date of filing of the suit till the realization of the decreetal amount. Issue is decided in favour of the plaintiff and against the defendants. Relief:
In view of my findings with regard to the various issues, I hereby hold that the plaintiff is entitled to recover a sum of Rs.4,60,000/ from the defendants. Further, I hold that the ends of justice would be met if an interest @ 6% is granted to the plaintiff from the date of filing of the suit till the realization of the decreetal amount.
Suit of the plaintiff is hereby decreed. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 18.2.2009 Addl. District Judge: Delhi 37 18.2.2009 Present: Sh. Anuj Rajput, counsel for the plaintiff.
Sh. V.K. Goswami, counsel for the defendant. Vide my separate detailed order dictated and announced in the open court but not yet typed, the suit of the plaintiff is hereby decreed. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
ADJ: DELHI 18.2.2009 38