Delhi District Court
Vishal Gupta vs Akanksha Jain on 20 August, 2022
-1-
IN THE COURT OF SH. GURDEEP SINGH
DISTRICT JUDGE (COMMERCIAL COURT)
NORTH WEST DISTRICT, ROHINI COURTS, DELHI.
In the matter of:-
CNR No. : DLNW01-010383-2018
CS(Comm.) No. : 373/2022
1. Vishal Gupta
Sole Proprietor of M/s AVA Enterprises
R/o : KP-126, Maurya Enclave
Pitampura
Delhi-110034
...............Plaintiff
VERSUS
1. Akanksha Jain
D/o : Sh. Ashok Jain
Sole Proprietor of Aksh Design Studio
R/o : 1, Madhuban, Near Preet Vihar
Delhi - 110 092
..................Defendant
Date of Institution : 24-09-2018
Date of transfer to this court : 27-01-2020
Date of reserving order : 26-07-2022
Date of pronounced of order : 20-08-2022
JUDGMENT
1. Vide this judgment, I shall decide the present suit for recovery of Rs.12,37,500/- alongwith pendente lite and future interest @ 15% per annum filed by plaintiff who is sole proprietor of M/s AVA Enterprises against the defendant, who is sister-in-law of the plaintiff being wife of his brother-in-law. It is worthwhile to mention that there is matrimonial dispute going on between defendant and in- laws of plaintiff and plaintiff's wife.
CS (Comm.) No.: 373/2022 Page 1 of 23 -2-2. The facts as averred in the plaint are that plaintiff is running his business and defendant represented herself as sole proprietor of M/s Aksh Design Studio and that she has been dealing in silver ware items and lured the plaintiff to sell his old silver jewelery to her and assured to make the payment for same at the earliest. The defendant also represented that price of silver is decreasing day by day and it is advisable to sell the same immediately. In view of relationship and in good faith the plaintiff sold his silver jewellery to the defendant on 29-04-2015 who acknowledged and confirmed her aforesaid liability and issued a post dated cheque bearing no.000024 dated 29-09-2015 for Rs.9 lakhs drawn on HDFC Bank Ashok Vihar Phase-I, Delhi towards discharge of her liability in favour of proprietorship firm of the plaintiff. On being presented, the said cheque got dishonoured with remarks 'payment stopped by drawer'. On enquiry, it was revealed that defendant has not maintained sufficient amount in her said bank account to honour the cheque. Thereafter plaintiff issued legal notice dated 13-10-2015 and on failure to pay amount, the suit was filed.
3. The interest was claimed @ 15% per annum which was calculated to be Rs.3,37,500/-. Hence suit was filed for recovery of total sum of Rs.12,37,500/- (Rs.9 lakhs towards principal + Rs.3,37,500/- towards interest @ 15% per annum) alongwith pendente lite and future interest.
4. It is also averred that a separate complaint under S. 138 N. I. Act was also filed against the defendant which is still CS (Comm.) No.: 373/2022 Page 2 of 23 -3- pending adjudication in the court of Ld. MM, North-West District, Rohini Courts, Delhi.
5. Summons of the suit was issued to defendant. Defendant has filed the written statement contesting the suit.
6. The suit was contested on the preliminary grounds that this court lacks territorial jurisdiction, however, said issue was decided by the court which attained finality that this court has jurisdiction. Further, the contents of the plaint were denied and controverted. In reply on merit, it is stated that defendant has never stated to the plaintiff that she is doing business or that she has been dealing in silver ware items as she had already closed the said business before her marriage in January, 2014. After the marriage, on the insistence of the husband of the defendant i.e. Mr. Amit Goel, who is brother-in-law of the plaintiff, he was running his garments business under the proprietorship firm of the defendant i.e. M/s Aksh Design Studio and not as alleged by the plaintiff. It is also denied that defendant has stated to plaintiff that price of silver is decreasing day by day which is a false and concocted story framed by the plaintiff in connivance with Amit Goel so as to pressurize the defendant to succumb to their illegal pressure for withdrawing all her cases against Mr. Amit Goel, the plaintiff, Mr. Anil Goel and other family members. It is also submitted that defendant has earlier filed a civil case against the wife of the plaintiff namely Ms. Alka Gupta, Mr. Amit Goel, Mr. Anil Goel and other family members and one criminal case for theft against the plaintiff, CS (Comm.) No.: 373/2022 Page 3 of 23 -4- Mr. Amit Goel and other family members pursuant to which the plaintiff has filed a false complaint u/s 138 N.I. Act by fraudulently and dishonestly misusing the blank signed and malafidely retrained cheque in question and present suit has been filed on the basis of the same. It is also denied that she stated to plaintiff that rates of silver were decreasing at around 29-4-2015 and rather rates of silver were increasing at the relevant time. It is also submitted that defendant did not even know about the business of the plaintiff or that he is sole proprietor of M/s AVA Enterprises and defendant has no dealing with the plaintiff in any respect and in any manner whatsoever. It is also denied that plaintiff has sold his silver jewellery to defendant on 29-4-2015 and it is submitted that same is false and concocted story framed by the plaintiff in connivance with Amit Goel and advocate Anil Goel in order to harass the defendant and that is why he has not filed any document to substantiate or support the said false and fabricated transaction.
7. It is also stated that defendant had already lodged a complaint before P. S. Ashok Vihar dated 20-5-2015 bearing DD No. 8A, and CAW Cell vide DD Entry No.PG 6509 dated 16-6-2015 and several other complaints to SHO PS Preet Vihar and Madhu Vihar regarding her signed/ unsigned cheques being in custody of her in-laws, and also mentioned her apprehension of them being misused by her husband and his family members including the plaintiff. It is further submitted that defendant has already mentioned in her domestic violence petition dated CS (Comm.) No.: 373/2022 Page 4 of 23 -5- 20-6-2015 that in the month of February, 2015, Amit Goel (brother-in-law of plaintiff and husband of defendant), with the connivance of his family members, forced the defendant to again ask her father to bring a further sum of Rs.50 lacs cash for fulfilling the alleged needs in his business and when the defendant showed her inability to fulfill the said illegal demand of Amit Goel, she was given merciless beatings, pursuant to which defendant had given bank mandate to Amit Goel in the month of March, 2015 and never signed any cheques thereafter on behalf of her firm M/s Aksh Design Studio and was finally ousted of her matrimonial home in the month of May 2015 as she was not having any money to satisfy the greed of Amit Goel and her in-laws. Further, the alleged misused cheque no. 000024 of the Proprietary firm of the defendant pertains to the cheque book which was issued in mid of year 2014 and got exhausted in 2014 itself. Further, the defendant has even filed an application dated 15-12-2015 u/s 23(2) in her domestic violence case V-97 proceedings seeking protection from any malafide act by plaintiff, advocate Anil Goel, Amit Goel and others, to misuse and abuse her signed/ unsigned blank cheques, which were in possession of her in-laws.
8. Further plaintiff in collusion with Amit Goel, Advocate Anil Goel and his associate i.e. advocate Dev Raj Sukhija have also sent another false notice u/s 138 N. I. Act dated 08-12-2015 for cheque dishonour bearing no. 000094-000095 (out of the forcibly retained cheques) which is having the same format and style of writing CS (Comm.) No.: 373/2022 Page 5 of 23 -6- which further show that both the notices including notice with respect to present cheque bearing 000024 are only to further intentionally harass the defendant so as to succeed in their nefarious designs and oblique motives and they came to know about the prior complaints of the defendant regarding her apprehension of misuse of the above cheques by them, then they refrained from filing the complaint case against the defendant with respect to the second notice dated 08-12-2015. Further it is stated that defendant has not filed any documentary proof, sale bill or receipt thereof, or any list of articles to substantiate and justify the alleged transaction in question against defendant.
9. Plaintiff has also filed replication to written statement denying the contents of the written statement and reiterating contents of plaint.
10. Vide order dated 02-05-2019, following issues were framed :-
(i.) Whether the plaintiff is entitled for a decree in the sum of Rs.12,37,500/- as prayed ? O.P.P. (ii.) Whether plaintiff is also entitled to recover interest, if so, then at what rate and for which period ? O.P.P. (iii.) Relief.
11. In order to prove his case, the plaintiff has examined himself as PW-1 and proved various documents including true copy of cheque, bank returning memo, legal notice and reply to legal notice.
CS (Comm.) No.: 373/2022 Page 6 of 23 -7-12. In defence, the defendant also examined herself as DW-1.
She proved various police complaints including copy of police complaint dated 20-5-2015 bearing DD entry No. 8A PS Ashok Vihar alongwith Fard Makboozgi and MLC and copy of police complaint dated 20-5-2015 with PS Sarai Rohilla bearing DD No. 54B which was later on converted into FIR No. 0551/15 dated 22-5-2015 as Ex.DW-1/1 (Colly.), copy of CAW Cell complaints dated 15-6-2015 and 03-8-2015 as Ex.DW-1/2 and Ex.DW-1/3 respectively, copy of bank statement of her firm as Ex.DW-1/9 (Colly.), Copy of DVAT returns as Ex.DW- 1/10 (Colly.), copy of silver price prevailing in April-May, 2015 as downloaded from MCX Webex as Ex.DW-1/11, copy of cancelled cheque dated 13-12-2014 issued by Mr. Amit Goel Mark-A, Copy of inspection document dated 10-11-2016 filed by Mr. Dev Raj Sukhija and his Court appearance dated 16-3-2017 and 12-10-2017 as counsel for plaintiff in case under S. 138 N.I.Act as Ex.DW-1/13 and court certified copy of cross-examination of plaintiff as Ex.DW-1/14 (Colly.).
13. I have heard Sh. Ashwani Goel, counsel for plaintiff and Sh. Ankur Jain, counsel for defendant. I have also gone through the record.
14. Ld. counsel for defendant had cited judgment of Hon'ble Supreme Court in case titled as Charu Kishor Mehta v. Prakash Patel & Ors decided on 22-6-2022 in SLP (C) No.:11030/2022 to contend that cost should be imposed on account of frivolous litigation instituted by the plaintiff. He CS (Comm.) No.: 373/2022 Page 7 of 23 -8- also filed important points of arguments. I have perused same.
15. My issue wise findings are as under:-
Issue No.1
16. The issue no.1 is whether the plaintiff is entitled for a decree in the sum of Rs.12,37,500/- as prayed ?
17. In order to succeed in his suit, plaintiff is required to prove that he had entered into transaction with the defendant whereby he had sold silver ware to the defendant and in lieu of same, the defendant had issued post dated cheque which could not be encashed for want of sufficient money.
18. It is worthwhile to mention that at the cross-examination of the plaintiff objection was taken by the counsel for plaintiff to the cross-examination as original written statement was not filed within statutory period, which was to be considered at the stage of final argument. It is not disputed that written statement was filed on 30-11-2018 that was within time, however, written statement was not signed on each page as required under Commercial Courts Act, 2015 and subsequently another written statement was filed having same contents which was signed on each and every page. Same is technical defect which can be cured. Learned counsels for both parties have not pressed and addressed arguments on this point. Even otherwise, same is technical defect which can be cured and is cured.
19. The PW-1 plaintiff has examined himself and filed his evidence by way of affidavit on the lines of plaint. He CS (Comm.) No.: 373/2022 Page 8 of 23 -9- proved cheque in question and returning memos and legal notices etc.
20. On the other hand, defendant has also examined herself and filed her evidence by way of affidavit on the lines of written statement.
21. PW-1 plaintiff has stated that he had sold silver ware to defendant on 29-4-2015 and defendant had acknowledged and confirmed her liability and issued post dated cheque dated 29-9-2015 for Rs.9 lakhs. He was cross-examined on behalf of defendant. In his cross-examination, he stated that the transaction in question is a personal transaction and not a business transaction. He admitted that he has not filed any document to show that he is the sole proprietor of M/s AVA Enterprises. He also admitted that he has not seen the defendant ever doing any of her alleged silver business. He stated that defendant had visited his house 2-3 times, but he could not tell the exact date or year as to when she came, however, he denied that defendant had never visited his house. He stated that he had visited the defendant at her matrimonial home several times. He stated that initially he did not know that defendant is the sole proprietor of Aksh Design Studio, but later on defendant herself told him about the same at the time of issuance of cheque in question, but he could not tell the exact period or time. The defendant had given him the cheque in question on 29.04.2015. He admitted that husband of the defendant is his real brother-in-law (SALA). He denied the suggestions that there used to be disputes between the defendant and CS (Comm.) No.: 373/2022 Page 9 of 23 -10- her husband. He stated that he does not know about the matrimonial dispute occurred between defendant and her husband and other family members pursuant to their visit at IPC Grand Bharat, Gurgaon on 7/8th March, 2015. He stated that he had visited the defendant at her matrimonial home even after 7/8th March, 2015. Even then, he was not told about the said dispute.
22. He admitted that that Amil Goel (husband of defendant) was doing his Garments business during that period at Tri Nagar, Delhi. He did not know about any other factory address of Garment business of Amit Goel and also under which name and style Amit Goel was doing his business of Garments. Before marriage, Amit Goel was doing his Garments business under the name and style M/s Om Kishan International. He admitted that defendant is not residing in her matrimonial home since May, 2015. At present, Amit Goel is doing his Garments business under the name and style of M/s Star One India. But he did not know under which name and style Amit Goel was doing his business of Garments from May, 2015 till May, 2016.
23. He also admitted that he has not mentioned the details of the silver ware items in his plaint which he allegedly sold to the defendant on 29.04.2015. He stated that he had sold the said alleged silver ware items to the defendant at her matrimonial home at Ashok Vihar and at that time, Amit Goel was also present. He had weighed the said silver items at his house on 29.04.2015, where neither CS (Comm.) No.: 373/2022 Page 10 of 23 -11- defendant nor her husband was present. The defendant had issued the disputed cheque which was already filled-up, however, he did not not know who had filled the particulars of the said cheque. He stated that he had told the defendant about the weight of the said silver ware items at the time of the transaction in question i.e. on 29.04.2015. The silver items were approximately 24kg. At that time, the silver rate in the market was approximately Rs.34,000.00-Rs.35,000.00 per k.g. The said rate of silver was also told to him by the defendant. He denied that the defendant had never told him about any such rate as no such transaction had taken place.
24. He stated that he had not checked the purity or impurity of the said silver items nor he had asked about the same from the defendant. He stated that he had no knowledge about the criminal or civil case filed by the defendant against him, his wife Alka Gupta, Amit Goel and other family members at that time. The rate of silver at that time were stable as he had checked the same. He stated that he had no urgent need of money at the time of the said transaction or selling the alleged silver items to defendant. He had taken the PDC from the defendant as she assured him the interest @ 2% per month. Again said, the cheque amount included the interest amount also. He stated that he does not know if, he has specifically mentioned this fact in plaint or not. He denied the suggestion that no such transaction took place and thus, the cheque in question was filled up by him in connivance with his brother-in-law Amit Goel, Anil Goel and other family members in order to harass the CS (Comm.) No.: 373/2022 Page 11 of 23 -12- defendant and as a counter to the matrimonial disputes and cases filed by defendant against him and above family members. He also admitted that neither any bill nor any receipt was issued nor he demanded the same from the defendant, however, denied the suggestion that no such bill or receipt was issued because no such transaction took place.
25. In response to question that if the transaction was personal in nature then why did he accept the cheque in question in the name of M/s AVA Enterprises, he stated that since the defendant was dealing in her company, hence she issued the cheque in the name of his abovesaid firm. He had told the name of his firm i.e. M/s AVA Enterprises to the defendant on 29.04.2015.
26. He admitted that that he has not shown this transaction in the name of M/s AVA Enterprises in his Sales Tax, but he has shown the same in his Income Tax Returns. He has not filed any such proof of his ITR on record. He stated that he had shown the alleged silver ware items to the defendant on 29.04.2015 for the very first time.
27. DW-1 the defendant was also cross-examined. She stated in his cross-examination that document Ex. PW1/A i.e. the cheque in question, it bears only her signatures and rest of the handwriting is not her. She denied that numerical figures in the cheque in question are in her handwriting, and voluntarily stated that further handwriting has been filled up by her husband Sh. Amit Goel without her authorization and to prove the same a copy of his own CS (Comm.) No.: 373/2022 Page 12 of 23 -13- cheque is also on record. She admitted that cheque in question has been issued from her bank account and cheque was dishonored by the bank with the remarks "Payments stopped by drawer". She denied the suggestion that she had falsely alleged that Rs.9 lakhs were withdrawn from her bank account and voluntarily stated that she had put an e-mail dated 30.09.2015 to her bank stating that the cheque in question has been misused by Mr. Vishal Gupta in connivance with Mr. Amit Goel (her husband) and Mr. Anil Goel in order to harass her to withdrawal all her matrimonial litigations against them and their family members and the same cheque has been forcibly retained by them during her stay at her matrimonial home and she had not issued any such cheque to Mr. Vishal Gupta ever.
28. She admitted that legal notice dated 13.10.2015 i.e. Ex.
PW1/C was received by her and she had duly replied to the same. She also admitted that bank account is in the name of Aksh Design Studio and she is the sole proprietor of the said firm. She denied the suggestion that the registered office with Aksh Design Studio is at my parental home i.e. H. No.1, Madhuban Chowk, Near Preet Vihar, Delhi and voluntarily stated that the registered office of this firm at that time was at the factory address i.e. 313/73N, Plot No. 143-A, Anand Nagar, Inderlok, Delhi. She admitted that before her marriage, the registered address of the firm was at her parental home i.e. Madhuban Chowk and voluntarily stated that Post marriage, her husband Amit Goel got the necessary DVAT amendments done in the month of March, 2014, wherein, he got the address CS (Comm.) No.: 373/2022 Page 13 of 23 -14- changed from her parental home to factory address. She admitted that her mobile phone No. 9811783588 was registered with HDFC Bank in respect of the said bank account, however, her e-mail ID [email protected] was not registered with HDFC bank for the said bank account. She denied the suggestion that said e-mail was registered with HDFC bank for the purpose of Net banking. She stated that the phone number and e-mail address of her husband was not registered with HDFC bank for the said bank account. She stated that she was using net banking and phone banking in respect of the said bank account and voluntarily stated that as per the directions of her husband, she used to carry out transactions as he used to tell her because he was the one looking after the entire Garment business on his own and she was only the legal entity of the firm. She denied that her husband was only an employee and was drawing a salary of Rs.10,000/- per month in the firm and she was carrying on the entire business.
29. She admitted that she was residing alongwith her husband at her matrimonial home i.e. at E-41, Ashok Vihar, Phase-I, Delhi-110052 on 29.04.2015, but she was not at home on the said date. She admitted that she has done 3 years diploma course in Accessory Design from NIFT, New Delhi and had worked as Designer and Merchandiser at Art Dinox, Ravissant and Frazer & Haws. She stated that before marriage she was only designing Silver Ware items etc. and the same got closed prior to her marriage in January, 2014. She denied that she did not close down her CS (Comm.) No.: 373/2022 Page 14 of 23 -15- profession of Designing Silver Ware after her marriage.
30. She also admitted that she and her husband, both were the authorized signatories of the said bank account on 29.04.2015 and voluntarily stated that she had given bank mandate to her husband in the month of March, 2015, after which she had stopped signing any cheques of this account. She denied that she used to sign cheques of the said bank account even after March, 2015. She stated that she has not filed any civil suit against the plaintiffs for the cancellation of the said cheque and voluntarily stated that she has filed various police complaints against the plaintiff regarding misuse of her cheque by him in connivance with her husband Amit Goel and Jeth Anil Goel and the same are on record already exhibited. She denied that the said complaints are false and only an after thought to create a false defence in the present suit and voluntarily, stated that she had filed his police complaint on 19.05.2015 at PS Ashok vihar after she was ousted from her matrimonial home.
31. She admitted that plaintiff is not a party in the domestic violence case filed by her against her husband and other family members, however, she voluntarily stated that plaintiff's wife Mrs. Alka Gupta is the party in the said DV Act complaint filed by her on 23.06.2015 and the above mentioned police complaints are part of that record. She denied that as a counter blast to the legal notice dated 13.10.2015 for dishonor of the cheque in question, she filed a false complaint dated 31.10.2015 and CS (Comm.) No.: 373/2022 Page 15 of 23 -16- got registered FIR No. 292/2018 u/s 379 IPC at PS Sarai Rohilla. She voluntarily stated that this civil case as well as case u/s 138 N.I. Act is a counter blast to the police complaint dated 08.09.2015 with PS Sarai Rohilla and the FIR No. 292/2018 was registered later on in the year 2018 with regard to theft of material goods done by plaintiff, her husband Amit Goel, Anil Goel and other family members.
32. She admitted that plaintiff is the sole proprietor of M/s AVA Enterprises, however, she voluntarily stated that this fact came to her knowledge after filing of the present suit and she did not know about it ever before. She stated that she knows that there is a shop of M/s Shri Shyam Bullion Pvt. Ltd. situated at 1157, Kucha Mahajani, Chandni Chowk, Delhi-110006 and admitted she had sold Silver weighing 5.818 kg. @ Rs. 37,400/- amounting to Rs. 2,17,593/- on 31.01.2015 to M/s Shri Shyam Bullion Pvt. Ltd. She voluntarily stated that she was forced to sell this silver by her husband Amit Goel, Jeth Anil Goel and rest of the family members in order to satisfy their greed and lust for money and further she referred to her bank account statement Ex. DW1/9 (page no. 58, 59 & 60) and tried to explain it and stated due to spend thrift nature of her husband he had dwindled the bank account balance to Rs.40,000/- on 27.01.2015 due to which on 30.01.2015 two cheques were bounced of more than Rs.1 lakh and then, he forced her to sell the Silver to M/s Shyam Bullion Traders on 31.01.2015 for Rs. 2,17,593/-. She denied that she had issued a Kachha Bill to M/s Shyam Bullion CS (Comm.) No.: 373/2022 Page 16 of 23 -17- Traders in respect of the said sale transaction of Silver and that she did not show the said sale transaction of Silver in her Sales Tax/VAT Returns.
33. She denied that on 29.04.2015 as per the MCX Chart filed by her Silver rate decreased from 37,400/- to Rs. 37,000/- and she voluntarily stated that From the said Chart it is apparent that the rate of Silver is increasing. She stated that she had only one bank account in January, 2014 and her account with ICICI Bank was closed before her marriage. She did not remember as to when that account was closed. She did not remember as to the deposit of Rs.78927/- on 18.10.2014 is a payment received by her is for Silver or Garments. She stated that approximately 15 cases are going on between her and her husband and his family members.
34. She denied that there is no mention of cheque in question in case FIR No. 551/2015 of PS Sarai Rohilla, FIR No. 612/2015 of PS Preet Vihar, Civil Suit No. 68/2017 and that in her reply she has not alleged that the present suit has been filed in collusion with Anil Goel and other family members.
35. Firstly coming to the transaction of sale of silver ware.
Ld. Counsel for plaintiff submitted that defendant was residing in her matrimonial home at the time of transaction and she had given frivolous complaint against misusing of said cheques. She admitted that she was proprietor for M/s Aksh Design Studio. He also submitted that she had taken over business of her husband who was only CS (Comm.) No.: 373/2022 Page 17 of 23 -18- caretaker. Defendant had taken contradictory stand in her cross-examination.
36. On the other hand, learned counsel for defendant submitted that on 29-5-2015 the defendant finally left her matrimonial home as matrimonial dispute was going on for quite some time. She had given complaint regarding misusing of cheque. Further another legal notice was issued to her through counsel Sh. Dev Raj Sukhija for plaintiff with respect to dishonouring of cheques bearing no. 000094 dated 15-10-2015 for Rs.3,35,470 and no. 000095 dated 19-10-2015 for Rs.1,75,737 but till date no case has been filed which show that all signed cheques were in custody of husband of the defendant and he misused present cheque in question after matrimonial dispute has arisen in order to pressurize her. It is further submitted that in April, 2015 rate of silver was actually increasing contrary to contention of plaintiff that silver ware was sold as rate was decreasing. As per Form DVAT 16, Ex.DW-1/10, there was no silver business of defendant. Further the series of cheque in question was already exhausted.
37. As regards transaction of silver ware of having sold by the plaintiff to the defendant, the plaintiff nowhere in the plaint had stated that what were silver ware which he had sold. In his cross-examination, he admitted that transaction was personal in nature, despite the fact that suit has been filed on behalf of the plaintiff's firm against the firm of the defendant. Further the cheque was also in the name of firm CS (Comm.) No.: 373/2022 Page 18 of 23 -19- of the defendant to the firm of the plaintiff, which was given on 29-4-2015.
38. The plaintiff had admitted that he has not mentioned the details of the silver ware items in his plaint which he allegedly sold to the defendant on 29.04.2015. He stated that he had sold the said alleged silver ware items to the defendant at her matrimonial home at Ashok Vihar and at that time, Amit Goel was also present. He had weighed the said silver items at his house on 29.04.2015, where neither defendant nor her husband was present. He quoted the rate of the silver and stated that at that time, the silver rate in the market was approximately Rs.34,000.00 - Rs.35,000.00 per k.g., which was told to him by the defendant. He also stated that the rate of silver at that time were stable as he had checked the same and he had no urgent need of money at the time of the said transaction or selling the alleged silver items to defendant.
39. The defendant on the other hand completely denied the transaction. However, she admitted having sold silver ware M/s Shri Shyam Bullion Pvt. Ltd., Chandani Chowk on 31-01-2015. She on one hand claims that she had closed her business of silver ware before marriage on the other hand she admitting having sold silver weighing 5.818 kg @ Rs. 37,400/- amounting to Rs. 2,17,593/-, however, she tried to explain the same.
40. As per Ex.DW-1/6, which is complaint made to SHO PS Preet Vihar, Delhi by defendant on 30-9-2015 wherein she had shown apprehension of misuse of her CS (Comm.) No.: 373/2022 Page 19 of 23 -20- signed blank cheque, forcibly taken from her and retained by her husband. Ex.DW-1/7 is legal notice dated 24-11-2015 issued to defendant with respect to series of cheque 000094 dated 15-10-2015 and 000095 dated 19-10-2015 by Sh. Dev Raj Sukhija, Advocate who had appeared as advocate in case under S. 138 N.I.Act for plaintiff but admittedly no case has been filed with respect to dishonouring of said cheques against said legal notice. The present cheque in question i.e. cheque bearing no. 000024 is also dated 29-9-2015 which is stated to be post dated cheque. Matrimonial dispute was admittedly going on which acquire enormity to the extent of having been filed complaint against in-laws of defendant and it cannot be coincident that there was 3 post dated cheques altogether dishonoured and all were subsequent to the date for encashment to date of defendant leaving matrimonial home. Transaction of sale of silver ware of defendant is also shrouded in suspicion as once matrimonial dispute was going on, no person would make sale transaction with defendant and that too not getting cash at the same time while disposing off silver ware having receipt post dated cheques which is inclusive of interest. It is highly unbelievable that plaintiff who is real brother-in-law i.e. husband of sister-in-law of defendant, would not come to know regarding matrimonial dispute having acquired seriousness of having gone to the police and also defendant leaving matrimonial home. Merely because there was some transaction of silver done by her at M/s Shri Shyam Bullion Pvt. Ltd., Chandani Chowk would not be CS (Comm.) No.: 373/2022 Page 20 of 23 -21- conclusive to prove that defendant was dealing in silver ware and transaction is one of the series of business transaction of the defendant.
41. Coming to the argument of counsel for plaintiff that there was presumption of consideration after issuance of cheque, that merely because cheque has not been filled up but admittedly signed, the liability can be fastened upon the defendant. There is no quarrel to the legal proposition that S. 118 of Negotiable Instrument Act (N. I. Act in short) raises presumption of consideration but said presumption is rebuttable presumption. The defendant having raised probable defence that signed cheques were in the custody of her husband with whom she was having matrimonial dispute and those chques were subsequently filled up by her husband and misused by him. The consideration alleged by the plaintiff that same was on account of sale of silver ware is improbable in the given facts and circumstances.
42. As per plaintiff the cheque amount includes some interest on account of delayed payment. Plaintiff has made his case that as per prevailing rate of silver, 24 kg of silver ware was sold for Rs.9 lakhs and as already discussed the cost of 24 kg @ Rs.34000/- per kg would be Rs.8,40,000/-. The plaintiff has claimed that said amount includes interest @ 2% per annum. In his cross-examination he stated that the cheque amount included the interest amount also. He stated that he does not know if, he has specifically mentioned this fact in plaint or not. The plaintiff has CS (Comm.) No.: 373/2022 Page 21 of 23 -22- nowhere in his plaint stated that the cheque amount includes interest @ 2 % per month and therefore same is beyond pleadings and cannot be considered and hence failed to prove the cheque amount as consideration.
43. The defendant has also filed MCX India Ex. DW-1/11 giving rate of silver jewelery at the relevant time. On 01-04-2015 the rate was Rs. 36988 and on 29-4-2015 the rate was Rs.37218 which shows that rate of silver was in increasing trend, the same is unrebutted and hence proved and therefore the contention that since rate of silver was decreasing and defendant lured plaintiff is not proved.
44. DW-1/9 is statement issued by the bank in respect of series of cheque book, which show that series of cheque from 11 to 60 was issued on 20-5-2014 and series from 61 to 110 was issued on 17-7-2014 and from 111 to 160 was issued on 24-11-2014. It to support version of the defendant that cheques in question belongs to series from 11 to 60 which was issued on 20-5-2014 and in the ordinary course of business cheque has been exhausted and thereafter new series from 61 to 110 and thereafter from 111 to 160 was to be exhausted. This document also proved and there is no challenge to the same. Therefore, the contention of defendant of misused of old series of cheque appears to be plausible as two more cheques books were issued after the cheque book containing cheque in question.
45. Accordingly, I am of the opinion that plaintiff has failed to prove that cheque in question was issued by the defendant against sale of silver ware as consideration and defendant CS (Comm.) No.: 373/2022 Page 22 of 23 -23- has been able to rebut presumption. Therefore issue no.1 is decided against plaintiff and in favour of defendant.
Issue no.2
46. Whether plaintiff is also entitled to recover interest, if so, then at what rate and for which period ? In view of my findings in respect of issues nos.1, I am of the opinion that plaintiff is not entitled to pendente lite and future interest and accordingly issue no2 is also decided against the plaintiff and in favour of plaintiff.
RELIEF
47. In view of my findings in respect of issue no.1 and 2, I am of the opinion no relief can be granted to the plaintiff.
48. As per discussion above, suit is dismissed. Both parties to bear their own cost. Decree sheet be drawn accordingly.
49. File be consigned to record room.
Digitally signedAnnounced in open Court by GURDEEP
today i.e. 20-08-2022
GURDEEP SINGH
SINGH Date:
2022.08.20
16:43:13 +0530
(GURDEEP SINGH)
DISTRICT JUDGE (COMMERCIAL COURT)
NORTH WEST/ROHINI/DELHI
CS (Comm.) No.: 373/2022 Page 23 of 23