Delhi District Court
Syed Ahmer vs Mahmood Malik on 18 August, 2023
IN THE COURT OF SH. NAVJEET BUDHIRAJA,
ADDITIONAL DISTRICT JUDGE, SOUTH-EAST
DISTRICT, SAKET COURTS, NEW DELHI
CS DJ NO.226/2022
In the matter of:-
Syed Ahmer
S/o Sh. Syed Abdullah
R/o H. No. 180, Gali No.22, Zakir Nagar
Okhla, New Delhi-110025
.........Plaintiff
Versus
Mahmood Malik
S/o Sh. Akhlaq Malik
R/o 14A Bharat Nagar
New Friends Colony, New Delhi-110065
...........Defendant
Date of Institution : 29.03.2022
Date of arguments concluded : 21.07.2023
Date of pronouncement : 18.08.2023
Decision : Partly decreed
SUIT FOR RECOVERY OF RS.90,00,000/-
J U D G M E N T UNDER ORDER 37 RULE 3(6)(b), CODE
OF CIVIL PROCEDURE, 1908 (IN SHORT 'CPC')
The plaintiff has filed the present suit for recovery of
Rs. 90,00,000/- along with pendente-lite and future interest
@18% per annum from date of filing of the suit till its realization
against defendant Mahmood Malik.
2. Brief facts of the case are that defendant along with
his brother Mr. Mansoor Malik contacted the plaintiff at his
address i.e. R/o H. No.180, Gali No.22, Zakir Nagar, Okhla, New
Delhi-110025 around May/June 2017 and informed him that he is
doing business of Meat Export to Middle East countries and
CS DJ No.226/2022 Syed Ahmer Vs. Mahmood Malik 1
lured the plaintiff that in case, he invests in the said business, he
will get a huge returns of 7-8% per month and further allured the
plaintiff that if he invests about Rs.50 lacs in the meat export
business with defendant, he will start getting Rs.3.5 to 4 lacs per
month. However, the plaintiff informed the defendant about his
inability to invest such a huge amount at once.
3. Based upon the aforesaid allurement, assurances,
promises and representation made by the defendant and his
brother Mr Mansoor Malik, the plaintiff agreed to invest a sum of
Rs.25,00,000/- and met them at their residence in Bharat Nagar,
New Delhi and paid a sum of Rs.5 Lakh in cash to the defendant
on 10.6.2017 in the presence of his brother Mr Mansoor Malik
and subsequently on 13.6.2017 the plaintiff transferred an
amount of Rs.20,00,000/- (Rs.10,00,000/- + Rs.10,00,000/-) in
the bank account of the defendant on 12th & 13th June 2017.
4. Thereafter, once again, the plaintiff was got allured
by representation, promise and assurances of defendant and
accordingly, the plaintiff shared the same with his brother in law
Mr Aslam Khan S/o. Mr Khalique R/o. H No.344/213A, Gaffar
Manzil, Okhla, New Delhi-110025, who also met the defendant
and Mr. Mansoor Malik in the end of June 2017 alongwith the
plaintiff at his residence in Bharat Nagar, New Delhi and talked
with both of them and upon their assurances, he also agreed to
invest in the said Meat export business. Subsequently, the
plaintiff further collected money from his relatives and friends
and thereafter the plaintiff further paid Rs.25,00,000/- and Mr
Aslam Khan also paid Rs.30,00,000/- to the defendant at regular
CS DJ No.226/2022 Syed Ahmer Vs. Mahmood Malik 2
intervals within a span of about 9 months. The list of
relatives/friends and the details of the amounts collected and
maintained by the plaintiff from the said relatives/friends and
which was handed over to the defendant/his brother Mr. Mansoor
Malik/wife on various occasions are given herein under:
S No. Name of Amount received in
relatives/friends Rs.
1 Arshad 11,45,000/-
2 Suhail 1,80,000/-
3 Rehana 1,75,000/-
4 Rukhsana 2,00,000/-
5 Aisha Begum 3,00,000/-
6 Kishwar 3,00,000/-
7 Mohd Khaliq 2,00,000/-
Total 25,00,000/-
5. After the aforesaid payments, the plaintiff met the
defendant and asked the defendant to execute document in
writing in respect of the total amount received and the profit
payable per month on the said investment as it was initially
agreed between the parties that documents will be executed on
completion of payment of Rs.50,00,000/- by the plaintiff and
accordingly on 14.2.2018, a written agreement was executed by
the defendant and the plaintiff wherein the investment of
Rs.50,00,000/- made by the plaintiff, was specifically admitted
and a monthly profit @ Rs.3.5 to 4 Lakh payable every month
was also agreed. Similarly, another document was also executed
by the defendant and Mr Aslam on 14.2.2018 wherein the receipt
of Rs.30,00,000/- from Mr. Aslam was acknowledged and it was
also specifically mentioned that monthly return of Rs.2,25,000/-
CS DJ No.226/2022 Syed Ahmer Vs. Mahmood Malik 3
to Rs.2,50,000/- will be payable every month.
6. When the plaintiff failed to get the monthly returns
as promised to him, then the plaintiff started demanding the
same, however the defendant failed to pay in accordance with the
agreed terms and conditions and conduct of the defendant raised
suspicion in the plaintiff's mind and, therefore, the plaintiff
visited Dubai and met the defendant at Dubai and asked the
defendant to return the entire amount however, the defendant
while acknowledging the total amount received by the defendant
from the plaintiff and his brother in law Mr Aslam, sought some
time vide written document executed in his own hand on
30.4.2019at Dubai.
7. Vide aforesaid agreement dated 14.2.2018, defendant had handed over two cheques on 14.2.2018 bearing no. 768773 and 768774 for Rs.25 lakhs each drawn on YES Bank, New Friends Colony Branch, New Delhi as security with the assurance that the defendant will return the entire amount within a period of two months from the date the plaintiff called off himself from the said business for whatsoever reasons and the defendant will be responsible for the payments. Subsequently, a security cheque was also issued in favour of Mr. Aslam by defendant.
8. From the inception, the intention of defendant was to cheat the plaintiff and the same is evident from his conduct that the defendant did not pay agreed profit during these periods despite repeated requests and demands through whats app and CS DJ No.226/2022 Syed Ahmer Vs. Mahmood Malik 4 messages and merely paid a paltry sum on few occasions towards part profit.
9. Even after executing the written agreement dated 14.2.2018 and the plaintiff's repeated demand, the defendant failed to pay the entire amount (principal +profit @ Rs.3.5 to 4 Lakh per month) to the plaintiff and (principal + profit @ 2,25,000 + 2,50,000/-) to Mr Aslam in accordance with the agreed terms.
10. That as a result of unprofessional and dishonest conduct of defendant, the plaintiff withdrew his consent to continue with the business any further and asked for the return of his money but defendant failed despite the lapse of several months and thereafter, vide letter dated 24.12.2020 the plaintiff asked the defendant to return the entire amount due and informed the defendant that in the event of failure on his part, the plaintiff will present the security cheques mentioned above to realize part payment (principal amount) which was duly served upon the defendant.
11. Despite service of the letter dated 24.12.2020, the defendant did not bother to make the payment and accordingly the plaintiff presented the cheque no.768773 and 768774 for Rs.25,00,000/- each dated 28.12.2020 drawn on YES Bank, NFC Branch, New Delhi to his banker State Bank of India, Hzt Nizamuddin Branch, New Delhi for encashment, however both the cheques were returned unpaid and has been dishonoured vide memo dated 1.1.2021 with the remarks "Funds Insufficient" .
CS DJ No.226/2022 Syed Ahmer Vs. Mahmood Malik 5
12. Plaintiff has informed the defendant about the dishonoring of the said cheques issued by the defendant however, the defendant did not bother about the same and have not made any payment in lieu of the said cheques. Thereafter, legal notice was sent to the defendant which was duly served and in response to the notice dated 14.01.2021, the defendant sent a reply dated 29.01.2021 wherein the defendant had denied the liability and has raised false and fabricated plea. Hence, the present suit has been instituted for recovery of Rs.90 lacs.
13. Summons of the present suit was issued to the defendant and after service of the summons, on 03.06.2022, appearance by way of application on behalf of the defendant was filed and in respect of the same, application for issuance of summons of judgment was filed on behalf of the plaintiff. Thereafter, leave to defend application was filed on behalf of the defendant and vide order dated 17.12.2022, conditional leave to defend was granted in view of Order 37 Rule 3(2)(5) CPC in which defendant was directed to deposit an admitted amount of Rs.5 lacs within 04 weeks from the date of that order in the form of fixed deposit receipt in the name of Court of ADJ-03 with automatic renewal clause, failing which defendant was not permitted to contest the present suit. Defendant was also directed to file written statement within 30 days from the said order.
14. Vide order dated 27.02.2023, it was noted that defendant failed to comply the order dated 17.12.2022 whereby he was granted conditional leave to defend by depositing an CS DJ No.226/2022 Syed Ahmer Vs. Mahmood Malik 6 admitted amount of Rs.5 lacs within 04 weeks. It was also noted that neither the amount was deposited nor written statement was filed and therefore, right of the defendant to file written statement stood closed and his defence also stood struck of.
15. Thereafter, matter was listed for ex-parte plaintiff's evidence. PW-1 Sh. Syed Ahmer filed his affidavit in evidence wherein the averments of the plaint were reiterated. PW-1 also proved on record various material documents i.e. agreement between Syed Ahmer and Mehmood Malik as Ex.PW1/A, agreement between Mohd. Aslam and Mehmood Malik as Ex.PW1/A1, handwritten letter by defendant in his own handwriting on 30.04.2019 as Ex.PW1/B, copy of conversation, copy of screen shot of WhatsApp between Syed Ahmer and Mehmood Malik as Ex.PW1/C (colly), copy of pendrive and DVD containing voice message send by defendant to plaintiff with transcript with certificate u/s 65B of Indian Evidence Act as Ex.PW1/D (colly), copy of intimation letter dated 24.12.2020 as Ex.PW1/E, postal receipts and tracking report as Mark A (colly), certified copy of cheque No.768774 for a sum of Rs.25,00,000/- dated 28.12.2020 as Ex.PW1/F, certified copy of cheque No.768773 for a sum of Rs.25,00,000/- dated 28.12.2020 as Ex.PW1/G, certified copy of return memo dated 01.01.2021 as Ex.PW1/H, certified copy of return memo dated 01.01.2021 as Ex.PW1/I, legal notice sent by plaintiff to defendant dated 14.01.2021 along with postal receipts and tracking report as Ex.PW1/J (colly), copy of reply to legal notice sent by defendant to the plaintiff dated 29.01.2021 as Ex.PW1/K and certified copy of notice u/s 251 CrPC dated 27.10.2021 in case u/s 138 NI Act CS DJ No.226/2022 Syed Ahmer Vs. Mahmood Malik 7 CC No.2450/2021 as Ex.PW1/L.
16. Plaintiff in his evidence examined three other witnesses i.e. PW2 Sh. Sayda Kishwar, PW3 Sh. Mohd Khaliq, PW4 Ms. Rehana Suhail, PW5 Sh. Syed Suhail and PW6 Sh. Arshad Hussain in support of his claim. PW3 Sh. Mohd. Khaliq in his evidence proved the various documents i.e. copy of bank account statement as Ex.PW3/A and copy of pension card as Ex.PW3/B. PW6 Sh. Arshad Hussain in his evidence also proved the document i.e. copy of bank account statement as Ex.PW6/A. Vide separate statement of plaintiff, plaintiff's evidence stood closed and thereafter ex-parte final arguments concluded on 21.07.2023.
17. As per Order 37 Rule 3(6)(b) CPC, if the security amount directed to be deposited by the defendant, is not deposited, the plaintiff is entitled to the judgment forthwith. In the instant case, plaintiff examined himself in regard to his transaction with the defendant whereby on the asking of the defendant, plaintiff had transferred a sum of Rs.20 lacs in the bank account of the defendant (Rs.10 lacs each on 12.06.2017 and 13.06.2017) and further sum of Rs.30 lacs which the plaintiff has shown to have obtained from his relatives/friends namely PW2 Sh. Sayda Kishwar, PW3 Sh. Mohd Khaliq, PW4 Ms. Rehana Suhail, PW5 Sh. Syed Suhail and PW6 Sh. Arshad Hussain, who have also been examined in support of the case of the plaintiff vide affidavit Ex.PW2/A, Ex.PW3/C, Ex.PW4/A, Ex.PW5/A and Ex.PW6/A respectively. Further, the agreement Ex.PW1/A claimed to have signed by plaintiff and defendant also CS DJ No.226/2022 Syed Ahmer Vs. Mahmood Malik 8 demonstrates the investment of Rs.50 lacs by the plaintiff. Further, plaintiff has also proved a letter Ex.PW1/D stated to be an acknowledgment on behalf of the defendant to have received the invested amount and wherein he had agreed to pay the profits to the plaintiff.
18. It is further the deposition of the plaintiff/PW1 that towards the discharge of aforesaid liability, defendant issued two cheques Ex.PW1/F and Ex.PW1/G of Rs.25 lacs each, both of which got dishonored vide return memo dated 01.01.2021 Ex.PW1/H and Ex.PW1/I and despite the issuance of legal notice to the defendant dated 14.01.2021 Ex.PW1/J (colly), the amount has not been paid.
19. The entire verbal testimony as well as the documentary evidence adduced on record remained unchallenged and un-controverted as defendant failed to avail the opportunity to contest the suit and file the written statement. There is nothing on record to disbelieve the testimony of PW-1 and the documents produced therein.
20. In so far as the remaining amount of Rs.40 lacs is concerned, the same is not covered within the domain of the present summary suit as the agreement Ex.PW1/A is not in respect of the ascertained sum of money as envisaged in Order 37 Rule 1(2)(b) CPC.
21. In view of the aforesaid facts, the suit of the plaintiff is decreed for recovery of Rs.50,00,000/- against the defendant.
CS DJ No.226/2022 Syed Ahmer Vs. Mahmood Malik 9 Plaintiff has claimed interest @ 18% per annum but the same appears to be unreasonable in the absence of any stipulation in this regard. Accordingly, plaintiff is awarded an interest @ 9% per annum from date of the filing of the suit till the date of realization on the said amount. Cost of suit is also awarded to plaintiff as per rules. Decree sheet be drawn accordingly. File be consigned to record room after due compliance.
Announced & dictated in the open court on 18.08.2023 (Navjeet Budhiraja) Additional District Judge-03 South East District, Saket, New Delhi 18.08.2023 CS DJ No.226/2022 Syed Ahmer Vs. Mahmood Malik 10