Delhi District Court
Interior Illusions vs Sdia Projects (Opc) Private Limited on 7 June, 2024
THE COURT OF SH. ANKIT MITTAL: CIVIL JUDGE-01: SOUTH
WEST DISTRICT: DWARKA COURT: NEW DELHI
Unique case ID No: 507/19
CNR NO. DLSW030008282019
IN THE MATTER OF :
Interior Illusions,
Through its Assistant Manager,
Mr. Trilochan Jha
Office at: C-338, Inder Enclave Phase-I,
Kirari, Nangloi, Delhi-110086
...........Plaintiff
VERSUS
1.SDIA Projects (OPC) Private Limited, Through its Director Mr. Sunil Kumar, B-361, Second Floor, Back Side Near Atul Property, Mohan Garden, Uttam Nagar, New Delhi-110059
2. Mr. Sunil Kumar, Director, Sdia Projects (OPC) Private Limited B-361, Second Floor, Back Side Near Atul Property, Mohan Garden, Uttam Nagar, New Delhi-110059 ....... Defendants Date of filing : 22.04.2019 Date of Institution : 23.04.2019 Date of pronouncing judgment : 07.06.2024 SUIT FOR RECOVERY OF MONEY JUDGMENT.
By this judgment this Court shall dispose of a suit for recovery of money filed by the plaintiff against the defendants. Before adjudicating upon the issues framed in the present suit, it necessary to dwell upon the plethora of pleadings in the present suit.
1. It is averred in the plaint that the present suit is filed by Mr. Digitally signed by ANKIT ANKIT MITTAL MITTAL Date:
2024.06.07 16:37:59 +0530 Civil Suit No. 507/19 Judgment dt. 07.06.2024 Page no. 1 of 21 Trilochan Jha, Assistant Manager, who is duly authorized by the Plaintiff. It is further averred in the plaint that the plaintiff is running a business of glass film, wall paper, wooden flooring, roller blinding etc. and Defendant No. 2 is running a company in the name of Sdia Projects (OPC) Private Limited i.e. Defendant No. 1, in which Defendant No. 2 is the director and responsible for day to day affair of the Defendant No. 1.
2. It is also averred that on 24.03.2018, Defendant No. 2 approached Plaintiff and placed an order to purchase goods. Against the said offer of Defendant, goods were delivered by Plaintiff and one invoice bearing no. 0028 dated 24.03.2018, for a sum of Rs.95,580/- ("Invoice-I") was raised by plaintiff against the order. The said Invoice-I bears all the details regarding the goods supplied to Defendants.
3. It is also averred that again on 28.03.2018, Defendants approached Plaintiff and placed an order to purchase goods. Against the said order of Defendant, goods were delivered by Plaintiff and one invoice bearing no. 0029 dated 28.03.2018, for a sum of Rs.40,308/- ("Invoice-II") was raised by Plaintiff against the order. The said Invoice-II bears all the details regarding the goods supplied to Defendants. Again on 15.04.2018, Defendants approached Plaintiff and placed an order to purchase goods. Against the said order of Defendants, goods were delivered by Plaintiff and one invoice bearing no. 0031 dated 15.04.2018, for a sum of Rs.3,62,116/- ("Invoice- III") was raised by Plaintiff against the order. The said Invoice- III bears all the details regarding the goods supplied to Defendants.
4. It is also averred that Defendants had received goods as per Invoice-I, II and III, for a sum of Rs.4,98,004/-. Plaintiff had received part payment Rs.3,91,907/- out of total amount of Digitally signed by ANKIT ANKIT MITTAL MITTAL Date:
2024.06.07 16:38:12 +0530 Civil Suit No. 507/19 Judgment dt. 07.06.2024 Page no. 2 of 21 Rs.4,98,004/- and balance amount i.e. Rs.1,06,097/- was to be paid within five days from last order i.e. 20.04.2018. Despite repeated requests and demands on 17.07.2018 Defendants in order to discharge of their liability and in order to repay the said amount of Rs.1,06,097/-, Defendant No. 2 issued a cheque bearing no. 000936 dated 17.07.2018 for Rs.1,06,097/- drawn on ICICI Bank, Subhash Nagar, New Delhi Branch, with the assurance that the said cheques as and when presented would be encashed. However, on presentation of the said cheques for encashment on 17.07.2018 to bank i.e. IDBI Bank Ltd., Nithari Branch, the said cheques were returned dishonored by Plaintiff's Banker vide cheques returning Memos with remarks "FUNDS INSUFFICIENT". On assurance of defendants, the Plaintiff again deposited the said cheque with Plaintiff bank for payment on 07.08.2018. However, it was once more bounced on 08.08.2018 with the remark "FUNDS INSUFFICIENT". The said cheque was again received back to Plaintiff with cheques returning Memos dated 08.08.2018 by courier on 09.08.2018. That Plaintiff approached Defendant and informed about the dishonour of the above said cheque but Defendants did not replied satisfactorily to Plaintiff despite repeated requests and demands. Then, the Plaintiff sent a legal notice dated 19.01.2019 through his counsel to the Defendants at the last available address and the same was delivered to the Defendants. Despite receiving the legal notice, Defendants neither made payment of the due amount nor replied to the notice till date. Hence, plaintiff filed the present suit with the following reliefs:
(a) a decree of Rs. 1,06,097/- in favor of the Plaintiff and against the Defendants along with future interest @24% annum w.e.f. 24.03.2018 till its realization in favor of the Plaintiff and Digitally signed ANKIT by ANKIT MITTAL MITTAL Date: 2024.06.07 16:38:23 +0530 Civil Suit No. 507/19 Judgment dt. 07.06.2024 Page no. 3 of 21 against the Defendant in the interest of justice.
(b) cost of the suit in favour of the Plaintiff and against the Defendants.
5. Initially, plaintiff has filed the present suit under Order 37 CPC and defendants have appeared and filed the application for leave to defend. Vide order dt. 19.09.2019, application seeking leave to defend of the defendants is dismissed and suit was decreed. Then defendants preferred an appeal and vide order dt. 24.02.2020 of Ld. Addl. District Judge-01, SW, Dwarka Courts, the appeal of the defendants was partly allowed and defendant was granted conditional leave to defend the present suit subject to deposit Rs.75,000/- by way of auto renewal FDR. Thereafter, defendants filed their Written statement.
6. In the Written Statement it is submitted that the plaintiff has not come before this Court with Clean hands and has suppressed the true and material facts. It is submitted that on 24.02.2021, Appeal no. 14/2019 was set-aside decree and allowed leave to defendant by the court of Ld. ADJ-01/SW/ Dwarka Court.
7. It is further submitted that the plaintiff is business relation to defendant No.2 SUNIL KUMAR. The defendant no.2 Sunil Kumar use to run under the name & style of M/s SDIA PROJECT (OPC) PVT. LTD. The defendant No.2 had purchased some goods on credit from the plaintiff, therefore, he gave an undated cheque of Rs.1,06,097 but plaintiff misused cheque and deposited it without instruction the said cheque. When the defendant No.2 inquired the plaintiff for depositing cheque without his instruction then plaintiff told defendant no.2 that he was in urgent need of money and thereafter plaintiff agreed to return cheque and agreed to receive the balance payment in installments. In august 2018 defendant no.2 was transfer a sum of Rs. 20,000/- in firm account of plaintiff as Digitally signed by ANKIT ANKIT MITTAL MITTAL Date:
2024.06.07 16:38:30 +0530 Civil Suit No. 507/19 Judgment dt. 07.06.2024 Page no. 4 of 21 agreed between the plaintiff and the defendant no.2.
8. It is further submitted that thereafter the plaintiff requested the defendant to pay the remaining amount in cash and as per the request of plaintiff the defendant no.2 further paid of Rs. 20,000/- in cash in his office on 23rd October, 2018. Thereafter the plaintiff himself visited the house of defendant in December, 2018 and took another 20,000/-/- cash, the same was also discussed with plaintiff on whatsapp Chat.
9. It is also submitted that in march 2019 the plaintiff requested to the defendants to clear the balance amount on the pretext his daughter's marriage was fixed for 20th of April, 2019. As per request of the plaintiff the defendant paid the remaining Rs. 56,097/- to the plaintiff in the first week of April and requested to return his cheque.
At that time the plaintiff told defendant that he will return the cheque of the defendant after the marriage of his daughter and further assured to defendant, plaintiff will not misuse the said cheque against the defendant.
10. It is further submitted that the defendant no.2 has paid whole amount to the plaintiff and he has no liability left towards the plaintiff as alleged in the plaint. The defendants have no liability either joint or several to pay any recoverable and enforceable debt in any manner whatsoever. The instant suit filed by the plaintiff with malafide Intention and is ill-motive and has been instituted with a view to harass the answering defendant without any reason.
11. Replication on behalf of plaintiff is also filed. In the replication, plaintiff has reiterated the facts of the plaint.
12. Issue framed on 11.05.2022 as follows:
1) Whether the plaintiff has misused the cheque bearing no.
000936 dt. 17.7.2018 issued by Sh. Sunil Kumar in the name of Interior Illusions whereby the said cheque was undated security Digitally signed ANKIT by ANKIT MITTAL MITTAL Date: 2024.06.07 16:38:40 +0530 Civil Suit No. 507/19 Judgment dt. 07.06.2024 Page no. 5 of 21 cheque?........OPD.
2) Whether the defendant has made payment of all the amounts / claim of the plaintiff in the present cause of action? ......OPD.
3) Whether the plaintiff is entitled to a decree of Rs.1,06,097/- in favour of plaintiff and against the defendant alongwith interest @ 24% per annum from 24.03.2018 till its realization alongwith costs of the suit?
13. The plaintiff only examined one witness on his behalf i.e. Trilochan Jha who stepped into the witness box and examined himself as PW1. In his testimony, PW1 tendered his evidence by way of affidavit being Ex.PW1/A and he reiterated the contents of the plaint and also relied upon the following documents:
1) Authorization letter is Ex.PW1/1.
2) Carbon Copy of invoice no. 0028 dt. 24.3.2018 is Ex.PW1/2.
3) Carbon Copy of invoice no. 0029 dt. 28.03.2018 is Ex.PW1/3.
4) Carbon Copy of invoice no. 0031 dt. 15.4.2018 is Ex.PW1/4.
5) Cheque no. 000936 dt. 17.7.2018 is Ex.PW1/5 (already Ex.DW1/X1)
6) Returning memo is Ex.PW1/6.
7) Copy of whatsapp message alongwith affidavit under section 65 B Evidence Act is Ex.PW1/7(colly).
8) Office copy of legal notice is Ex.PW1/8
14. In the cross-examination, PW1 deposed as under:
"I am 12th class pass. Authorization letter Ex.PW1/1 is prepared by my son. I am the proprietor of the firm Interior Illusions. At this stage, the witness is shown authorization letter Ex.PW1/1 and evidence affidavit Ex.PW1/A after seeing the same, the witness states that I am not the Assistant Manager in the plaintiff firm. I met with the defendant through Sh. Hari Om Fasard @ Yashwant Pandey. I did not mention in the plaint as well as in evidence affidavit about the defendant was met through Sh Hari Om Fasard. I have not met with the defendant before the transaction in question. I do not remember the exact ANKIT Digitally signed by ANKIT MITTAL MITTAL Date: 2024.06.07 16:38:48 +0530 Civil Suit No. 507/19 Judgment dt. 07.06.2024 Page no. 6 of 21 worth of goods delivered to the defendant. (vol-defendant used to order goods in piecemeal manner and used to make payments through online mode). After the cheque was bounced though I went to the house / office of the defendant, however, I was turned away from his house. I do not remember exact date of defendant made payment of Rs.20,000/- to the plaintiff's account.
Q. The amount in question Rs.1,06,097/- for which you have filed the suit, does not include GST component also. What have you to say?
Ans. It includes GST also.
I do not say exact amount of GST component. I have not received any notice regarding pending GST by the Govt. authority.
At this stage, Ld. Counsel for defendant has relied upon the payment receipt of GST tax made by the plaintiff though placed in file, however, same was not exhibited. Now same is being exhibited as Ex.PW1/DX2. It is correct that plaintiff made the payment of Rs.20,454/- on 22.10.2018 as GST to GST department. I do not remember the exact date of payment received from the defendant of Rs.20,000/-. It is wrong to suggest that the plaintiff had visited the office of defendant and made request that remaining payment will be cleared in cash. I do not remember the exact date when I visited the office of defendant. (vol- I have only visited the office of the defendant on single occasion). It is wrong to suggest that I visited the office of the defendant for collecting the remaining balance in cash in different-different occasions. It is wrong to suggest that I have filed a false suit against the defendant after receiving whole payments. It is wrong to suggest that I am deposing falsely. It is wrong to suggest that I have visited the office of defendant on 02.12.2018.
At this stage, the witness is shown the whatsapp chat which is Ex.DW1/B and he asked the following questions:
Q. As per the whatsapp conversation with you on 02.12.2018, whatsapp location was shared with you wherein you replied that you will meet the defendant at 12.00 pm. What do you have to say?
Ans. It is correct that location was shared with me by the defendant and I have met him on that location. I do not remember the exact date of our meeting, however, I have met with the defendant only once that too, at location sent by the defendant himself.
It is correct that after the payment of Rs.20,000/- by the defendant, I had conversation with him regarding the payment of remaining amount. It is correct that I requested to Digitally signed by ANKIT ANKIT MITTAL MITTAL Date:
2024.06.07 16:38:55 +0530 Civil Suit No. 507/19 Judgment dt. 07.06.2024 Page no. 7 of 21 the defendant to clear the balance amount on pretext that my daughter's marriage was fixed on 20.4.2019. It is wrong to suggest that the remaining payment of Rs.56,097/- paid by the defendant to me. It is wrong to suggest that I am deposing falsely."
15. PE was closed on 14.02.2024 and the defendant has examined one witness i.e. Sh. Sunil Kumar Director, SDIA projects (OPC) who stepped into the witness box and examined himself as DW1. In his testimony, DW1 tendered his evidence by way of affidavit being Ex.DW1/1 and he reiterated the contents of the WS and also relied upon following documents:
1) Copy of the bank statement is de-exhibited and now marked as Mark A.
2) Copy of the whatsapp chat as Ex.DW1/A.
3) Certificate u/s 65 B IEA as Ex.DW1/B.
16. In the cross-examination, DW1 deposed as under:
"It is correct that I am the director of the defendant company. All the transactions are being done on the company's account. It is correct that I have received the goods of Rs.4,98,000/- from the plaintiff company. Defendant has paid Rs.1,06,097/- out of which the defendant paid Rs.20,000/- in account of the plaintiff in August 2018 by company's account, Rs.20,000/- in cash in October 2018 in office of the defendant, Rs.20,000/- in cash in December 2018 at my residence. The balance payment was paid to the plaintiff in first week of April 2019 in cash. (Vol. The plaintiff had approached that he is in the need of money because of his daughter's marriage). I handed over the undated cheque of Rs.1,06,097/- to the plaintiff as a security in April 2018. At this stage, the witness is shown the cheque bearing no.000936 drawn on ICICI Bank, of Rs.1,06,097/-. The same is now Ex.DW1/X1, to which witness states that the said cheque was handed over by him to the plaintiff, however, the said cheque was undated while handing over the same to the defendant. The witness further stated that the details on the cheque including the amount written in words and number and the name mentioned in the cheque has been ANKIT Digitally signed by ANKIT MITTAL MITTAL Date: 2024.06.07 16:39:03 +0530 Civil Suit No. 507/19 Judgment dt. 07.06.2024 Page no. 8 of 21 filled by him. The witness also admitted that it bears his signature. I have no receiving or any proof of the abovesaid amount which was given in cash to the plaintiff. It is wrong to suggest that I had given any amount in cash to plaintiff. It is wrong to suggest that I am deposing falsely."
17. DE was closed on 11.10.2023 and final arguments were heard.
18. Ld. counsel for plaintiff has filed the written submissions as follows:
"1. The present suit is being filed by Mr. Trilochan Jha who is duly authorized by the plaintiff (a proprietorship Firm) through authorization letter dated 23.03.2019, exhibited as Ex-PW-1/1.
2. That the plaintiff is running a business of glass film, wallpaper, wooden flooring etc. The defendant no.1 is a company of which the defendant no.2 is a director.
3. That defendant no.2 approached the plaintiff for purchasing some goods. Accepting the offer of the defendants, the plaintiff delivered the goods to the defendants as per the invoice bearing no. 0028 dated 24.03.2018 amounting to Rs 95,580/-, exhibited as Ex-PW-1/2. Further, plaintiff also supplied goods to the defendants under the invoice dated 28.03.2018 bearing no.0029 for a sum of Rs 40,308/-, exhibited as Ex-PW-1/3. The defendants further purchased certain goods from the plaintiff as per the invoice dated 15.04.2018 bearing no. 0031 for a sum of Rs.3,62,116/-, exhibited as Ex-PW-1/4.
4. That the defendants duly received goods as per the above invoices, and also made a part payment of Rs. 3,91,907/- out of total amount of Rs. 4,98,004/-. However, the defendants failed to discharge its remaining liability for the sum of Rs 1,06,097/-, even after repeated requests through call and WhatsApp, exhibited as Ex-PW-1/7 (along with Affidavit under section 65- B of Indian Evidence Act), defendant no.2 issued a cheque Digitally signed by ANKIT ANKIT MITTAL MITTAL Date:
2024.06.07 16:39:10 +0530 Civil Suit No. 507/19 Judgment dt. 07.06.2024 Page no. 9 of 21 bearing no. 000936 on behalf of defendant no.1 dated 17.07.2018 for Rs. 1,06,097/- and exhibited as Ex-PW-1/5 (cheque in question). The cheque in question was dishonored upon presentation vide return memo dated 17.07.2018, exhibited as Ex-PW-1/6.
5. That on account of assurance given by the defendant, plaintiff again presented the cheque in question, yet again, the cheque was dishonored upon presentation on 08.08.2019 constraining the plaintiff to send a legal demand notice dated
19.01.2019 to the defendants, exhibited as Ex-PW-1/8.
6. That Since the defendants failed to pay the outstanding amount despite the due receipt of legal notice, the plaintiff has filed the present suit for recovery of the said amount along with future interest @ 24% per annum.
7. The instant application seeking leave to defend has been filed by the defendant and on 19.09.2019 same has been dismissed on the ground that:
(a) The defendant has not denied the fact that the parties used to indulge in the business transaction with each other. The defendant has also not denied the invoices placed on record by the plaintiff.
(b) However, to rebut the claim of the plaintiff, the defendant has placed on record the account statement to prove the factum of payment of Rs 20,000/- to the plaintiff against the outstanding liability. It is further the case of the defendants that the remaining amount was paid by them in cash to the plaintiff.
The defense of the defendants does not inspire the confidence of this court. It seems improbable that the party indulging in business transaction chose to make the payment of the outstanding amount in cash, without obtaining a due receipt. No receipt or other proof(s) to show the payment(s) of the Digitally signed by ANKIT ANKIT MITTAL MITTAL Date:
2024.06.07 16:39:17 +0530 Civil Suit No. 507/19 Judgment dt. 07.06.2024 Page no. 10 of 21 outstanding amount has been placed on record;
(c) Further it is the case of the defendants that the plaintiff has misused the cheque in question. The defendants have not been able to explain satisfactorily as to why they did not seek the return of the cheque in question from the plaintiff, after claiming that they have cleared their entire liability towards the plaintiff. Further, the defendants have not denied the receipt of legal notice dated 19.01.2019 which has been placed on record by the plaintiff. The defendants have not explained as to why the said legal notice was not replied by them. It is a settled proposition of law that where legal notice is not replied to, its contents can be deemed to have been admitted by the recipient.
(d) Further, it is not the case of the defendants that they filed any police complaint, or at least served a legal notice upon the plaintiff seeking the return of the cheque in question, even after receiving the legal notice issued to them by the plaintiff. As regards the payment of Rs.20,000/-, the same has been explained by the plaintiff in reply to leave to defend, who has claimed that the payment of Rs 20,000/-was made by the defendant towards the payment of penalty under GST Act, and the plaintiff has adduced on record the receipts of payment of the penalty. Version of the plaintiff seems to be more probable for the reason that the cheque in question was dishonored for reason of insufficient funds in the account of the defendant no.1. Having made the payment of Rs. 20,000/- towards its outstanding liability on 24.08.2018, i.e. after the date of dishonor of the cheque in question, the defendant should have ordinarily sought the return of the cheque in question.
8. That after that defendants filed an appeal bearing No. Regular Civil Appeal No. 14/2019 against the order dated 19.09.2019 and same has been partly allowed and the defendant Digitally signed ANKIT by ANKIT MITTAL MITTAL Date: 2024.06.07 16:39:24 +0530 Civil Suit No. 507/19 Judgment dt. 07.06.2024 Page no. 11 of 21 is granted conditional leave to defend the present suit subject to deposit of Rs. 75,000/- by way of auto renewal FDR within three months from today in the name of Ld. District Judge, Southwest.
9. That aforementioned appeal has been allowed on ground that the defendants have put forth the defense that an amount of Rs. 20,000/- has been paid by RTGS and the said amount was claimed by plaintiff to be a GST penalty amount, however, the said fact has neither been pleaded by the plaintiff nor in the reply filed by the plaintiff to the application seeking leave to defend moved by the defendants. Therefore, as far as the amount of Rs. 20,000/- is concerned, defendants have raised the triable issue, however, for the remaining amount it is the contention of defendants that the said amount of Rs. 86,000/- was paid in cash but no documentary evidence has been placed in support of the same.
10. That the amount of Rs.20,000/- paid by Defendant to Plaintiff through RTGS was not related to the outstanding amount of Rs.1,06,097/- for that reason Plaintiff did not disclose the said amount in present suit. As regards the payment of Rs.20,000/-, the same has been explained by the plaintiff in reply to leave to defend, who has claimed that the payment of Rs 20,000/- was made by the defendant towards the payment of penalty under GST Act. After repeated requests through call and Whatsapp the Defendants never asked about return of cheque nor the payment of Rs.20,000/- in account.
11.That Plaintiff already submitted in his cross examination that after receiving of Rs. 20,000/- (GST penalty), Plaintiff continuously demanded for remaining amount i.e. Rs. 1,06,097/-.
12. That Defendants allegedly claimed that they have paid a Digitally signed ANKIT by ANKIT MITTAL MITTAL Date: 2024.06.07 16:39:33 +0530 Civil Suit No. 507/19 Judgment dt. 07.06.2024 Page no. 12 of 21 sum of total Rs.1,06,097/- but as per leave to defend, written statement and Evidence of Defendants, it is stated therein that they paid Rs.20,000/- in Plaintiff's Account, paid Rs. 20,000/- twice as cash and Rs. 56,097/- again in cash (3 X Rs.20,000 and Rs.56,097/-) without showing any payment receipt(s) or any evidence(s) to this Hon'ble Court, therefore, as per Defendants the total amount is to be Rs.1,16,097/- but the fact remains that the total amount for which the case has been filed is Rs.1,06,097/-, this fictitious stance of the Defendants weakens their false and fabricated story about the amount of Rs.1,16,097/- and strengths the righteous claim of Plaintiff for the payment of Rs.1.06,097/-. Defendant never paid a single penny against the outstanding amount of Rs. 1,06,097/- because the Defendant No. 2 has already admitted in his cross examination that the Defendants do not have any payment receipt(s) in respect of payment made in cash.
19. Ld. counsel for defendant has also filed the written submission as follows:
1. That the Plaintiff has filed a summary civil suit for recovery of amount Rs. 1,06,097.
2. That the defendant had filed leave to defend and against which plaintiff had filed reply on leave to defend.
3. That the defendant had made payment of Rs.20,000/- in the month of august as account transfer to the plaintiff.
4. That the defendant further made payment in different- 2 occasions as per mutual convenience i.e 23.10.2018, December, 2018, first week of April, amount of Rs. 20,000/- 20,000/- and Rs.56,097/- total amounting i.e 96,097/-
5. That the defendant had even paid the amount of Rs.10,000/-
as interest on the principal amount for the sake of the satisfaction of plaintiff dully to maintain the hygienic and Digitally signed ANKIT by ANKIT MITTAL MITTAL Date: 2024.06.07 16:40:01 +0530 Civil Suit No. 507/19 Judgment dt. 07.06.2024 Page no. 13 of 21 healthy relation amongst the plaintiff and defendant.
6. That the plaintiff has misused the cheque by breaching the trust of the defendant as the defendant had paid the principal amount with interest and left away the cheque with plaintiff as per his faithful commitment of returning the cheque within few days.
7. That the plaintiff is stating himself as an assistant manager of interior illusions in his evidence affidavit, whereas on the other hand he is stating himself as the proprietor of the firm interior illusion in his Cross- Examination being as an assistant manager of Interior illusions is stating himself.
8. That the plaintiff has revealed in his cross examination that he had made payment of Rs. 20,454/- on 22.10.2018 as GST to GST department, whereas plaintiff had charged the defendant for the same GST penalty in advance in the month august from the defendant without even receiving prior notice or any intimation from GST department.
9. That plaintiff had accepted in his cross examination that he met with the defendant whenever defendant share the location on the other he is not accepting the amount collected in cash because the defendant only contacted him for clearing his debts and even call him only for repaying the debt amount which he is not accepting and misleading the court for his personal profits and favours.
10. That the Defendant is well within his knowledge that the Plaintiff has filed the instant plaint on wrong, false and baseless grounds.
Issue-wise findings as under:
20. ISSUE NO.1: Whether the plaintiff has misused the cheque bearing no. 000936 dt. 17.7.2018 issued by Sh. Sunil Kumar in the name of Interior Illusions whereby the said cheque was ANKIT Digitally signed by ANKIT MITTAL MITTAL Date: 2024.06.07 16:40:11 +0530 Civil Suit No. 507/19 Judgment dt. 07.06.2024 Page no. 14 of 21 undated security cheque?........OPD.
& ISSUE NO. 2: Whether the defendant has made payment of all the amounts / claim of the plaintiff in the present cause of action?......OPD.
& ISSUE NO.3: Whether the plaintiff is entitled to a decree of Rs.1,06,097/- in favour of plaintiff and against the defendant alongwith interest @ 24% per annum from 24.03.2018 till its realization alongwith costs of the suit?
21. All issues are taken up together as they are interconnected with each other. In order to avoid repetition and confusion, all issues are decided together. The onus of proof to prove all the issues are upon defendant.
22. The case of plaintiff is that it provided the goods to defendant against invoices raised on different occasions. The total goods worth of Rs 4,98,004/-were supplied to the defendant against the aforesaid invoices. Further it was argued that though defendant made the payment of Rs 3,91,907 however he did not pay the outstanding amount of Rs 1,06,097. Furthermore, it was submitted that on repeated requests and demand, defendants in order to discharge their liability issued the cheque I.e Ex DW1/X1 in favour of plaintiff but same was dishonoured twice. Despite legal notice, defendant has failed to clear the outstanding amount.
23. Per contra, the version of defendant's case is that they had purchased some goods on credit from the plaintiff and gave an undated cheque of Rs.1,06,097/-, but plaintiff misused the cheque and deposited it without the instructions. It was further argued that when defendant enquired the plaintiff qua presentation of the cheque without instructions, then plaintiff Digitally signed ANKIT by ANKIT MITTAL MITTAL Date: 2024.06.07 16:40:18 +0530 Civil Suit No. 507/19 Judgment dt. 07.06.2024 Page no. 15 of 21 told the defendant that he is in urgent need of money, thereafter plaintiff agreed to return the cheque and receive the balance payment in installments. It was submitted that in the month of August 2018, defendant no.2 had transferred a sum of Rs. 20,000/- in the firm account of plaintiff as agreed between them. Then again it was argued plaintiff requested the defendant to repay the remaining amount in cash and on 23.10.2018, defendant again made payment of Rs 20,000/- in cash in his office. Further, it was contended that plaintiff visited the house of defendant no. 2 and took another Rs 20,000/- in the month of December, 2018 in cash. It was further stated on behalf of defendants that in March 2019, the plaintiff requested the defendants to clear the balance amount on the pretext of his daughter's marriage which was fixed for 20th April 2019. Further, as per the request of the plaintiff the defendant paid the remaining amount of ₹56,097 to the plaintiff in the first week of April and requested to return his cheque. However, at that time plaintiff told the defendant that he will return the cheque of the defendant after the marriage of his daughter and further assured that he will not misuse the cheque, hence it was concluded on the behalf of defendant that they have paid whole amount to the plaintiff and have no liability left towards it. Thus it was prayed on their behalf that present suit is false, therefore same be dismissed.
24. In the present case, from the pleadings and evidence of both the parties, it can be said that the defendant has admitted the fact that both parties had business transactions with each other. further, defendant has also admitted the invoices placed on the record by the plaintiff and has also admitted that the goods mentioned in above said invoices were supplied to him. Further more, the only defence raised by the defendant was that the Digitally signed ANKIT by ANKIT MITTAL MITTAL Date: 2024.06.07 16:40:31 +0530 Civil Suit No. 507/19 Judgment dt. 07.06.2024 Page no. 16 of 21 payment of whole amount was made to the plaintiff and undated cheque of Rs. 1,06,097/- lying with the plaintiff was misused by him and same was deposited without the instructions of defendants.
25. In the light of admissions made on the behalf of defendants, the Ld. Predecessor of this Court framed the issues and put the onus of proof upon defendants and asked them to lead the defence evidence first.
26. At this juncture, it is relevant to refer the landmark judgment of Hon'ble Supreme Court of India passed in the case titled as Dr N.G Dastane v Mrs S Dastane in AIR 1975 SCC 1534, wherein it discussed the concept of burden of proof in the Civil law and relevant paragraph is reproduced herein as under:
"...24.The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A. prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he links that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range Digitally signed by ANKIT ANKIT MITTAL MITTAL Date:
2024.06.07 16:40:38 +0530 Civil Suit No. 507/19 Judgment dt. 07.06.2024 Page no. 17 of 21 of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note : "the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue" Per Dixon, J. in Wright v. Wright (1948) 77 C.L.R. 191 at p. 210; or as said by Lord Denning, "the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear" Blyth v. Blyth [1966] 1 A.E.R. 534 at 536. But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged...."
27. Keeping the aforesaid said principles of law of evidence in mind, let's advert to facts of the present case in hand.
28. In the present case, the defendant in order to support his contentions, examined himself as DW1 and led the documentary evidence in form of, a Copy of bank statement which is marked as Mark A, copy of what's app chat which is Ex DW1/A and certificate u/s 65-B of Indian Evidence Act.
29. Further, the basic premise of defendant's defence was that he had paid the amount of Rs.1,06,097/- in cash to the plaintiff in installments and his cheque has been misused. It is relevant to mention here, as per defendant out of aforesaid amount, first installment of Rs. 20,000/- was paid through bank transfer in the account of plaintiff in the month of August, 2018.
30. Pertinently, though plaintiff admits that he has received the aforesaid amount however he contests it on the ground that the Digitally signed by ANKIT ANKIT MITTAL MITTAL Date:
2024.06.07 16:40:46 +0530 Civil Suit No. 507/19 Judgment dt. 07.06.2024 Page no. 18 of 21 same has been paid on the account of GST penalty. However, the aforesaid argument put-forward by the plaintiff is untenable as there is no co-relation between the duty of plaintiff to pay timely GST tax to the government and timely payment made by the defendant. No doubt, in the normal course of business, non regular or no payment can impede the one's liquidity, however same can't be held directly accountable for default made by other person. Moreover, plaintiff himself in his cross examination dated 14.02.2024, it is admitted by him that the amount of Rs.1,06,097/- also included GST component. Hence, whatever the case maybe of the plaintiff, it can be said that defendant has made the payment of Rs.20,000/- qua his liability.
31. Further, it is relevant to mention here that admittedly, defendant has no documentary proof qua payment made by him towards remaining amount i.e Rs.86,097/- which allegedly given by way of installments i.e Rs.20,000/- in cash on 23.10.2018, another Rs.20,000/- in cash in the month of December, 2018 and finally Rs.56,097/- in the first week of April, 2019. It is highly improbable that if there is a already trust deficit between the parties which can be evinced from the fact the cheque handed over by the defendant was already bounced, therefore considering relations between the parties in that context, it is unlikely that any reasonable man will make payments on regular intervals without any acknowledgment or receipt. Interestingly, the defendant has admitted the What's app chat conversation i.e Ex. PW1/7 (colly) in his affidavit of admission and denial qua documents filed on behalf of plaintiff. Now, from mere bare perusal of same reveals that defendant didn't have requisite funds rather he was seeking opportunities again and again for making the payment. Further, though in Digitally signed ANKIT by ANKIT MITTAL MITTAL 16:40:53 Date: 2024.06.07 +0530 Civil Suit No. 507/19 Judgment dt. 07.06.2024 Page no. 19 of 21 defendant contends that he has made payment of Rs. 40,000/- cumulatively in the month of October and December, 2018 however it is apparent from above said what app conversation between the parties that defendant was asking more time for making the payment in those relevant months from the plaintiff and there is not whisper of payments by him qua that outstanding amount.
32. Thus it can be said that after considering the entire facts as averred in the pleadings, the facts regarding which the depositions were made by the witnesses of the plaintiff as well as defendant, the Court is of the opinion that even on the balance of probability the defendant has failed to prove that he had made payment of entire outstanding amount of Rs.1,06,097/- though he was able to discharge the onus of proof partially qua the amount of Rs.20,000/- therefore the same is liable to be adjusted from the total amount.
33. Another objection which was raised by the defendant in his course of arguments that there is contradiction in the case of plaintiff as PW1 Trilochan Jha has himself stated that he is the proprietor of the plaintiff firm whereas he has placed on record authorization letter i.e. Ex.PW1/1 wherein his capacity is mentioned as Assistant Manager of the plaintiff firm. The aforesaid objection is hyper technical in nature and does not goes to the root of the plaintiff case in the given factual matrix. No doubt, there is a variation in the stand taken by the PW1 in his testimony and in his evidence affidavit which is Ex.PW1/A qua his capacity, however, same is not material in the present case especially when the defendant himself stated that all the payments have been made to the PW1 Trilochan Jha. Further, no suggestion or question has been put forward by the defendant in the cross-examination of the plaintiff that the Digitally signed by ANKIT ANKIT MITTAL Date:
MITTAL 2024.06.07 16:41:00 Civil Suit No. 507/19 Judgment dt. 07.06.2024 +0530 Page no. 20 of 21 witness is not the authorized person on behalf of the plaintiff firm, hence, the aforesaid objection is dismissed as devoid of merit.
34. Accordingly, issue 1 and 2 are decided against the defendant and in favour of plaintiff and issue no.3 is also decided in favour of plaintiff.
35. It is relevant to mention here that the present suit is a summary suit and the defendant was given conditional leave to defend subject to the deposit of auto renewal FDR of Rs.75,000/- vide order dt. 24.02.2020 passed by Ld. Addl. Judge-01, SW District, Dwarka Court, New Delhi. Accordingly, the aforesaid FDR be released to the plaintiff on the expiry of 30 days from the date of judgment. It is clarified that the amount of FDR will adjusted in the decreetal amount.
RELIEF.
36. The suit of the plaintiff is therefore decreed in the favour of the plaintiff and against the defendants, the Defendants are directed to pay jointly and severally a sum of Rs. 86,097/- to the plaintiff with the interest @ 9 % p.a. from the date of filing of the suit till the date of actual realization of the decreetal amount.
37. Costs of the suit are also awarded in favour of the plaintiff.
38. Decree sheet be prepared accordingly.
39. File be consigned to Record Room after compliance with due formalities.
ANNOUNCED IN THE OPEN
COURT ON 07.06.2024 ANKIT by ANKIT
Digitally signed
MITTAL
MITTAL Date: 2024.06.07
16:41:08 +0530
(ANKIT MITTAL)
CIVIL JUDGE-01(SW)/DWARKA COURTS
NEW DELHI
Civil Suit No. 507/19 Judgment dt. 07.06.2024 Page no. 21 of 21