Delhi District Court
Raj Kumar Goyal Prp. Of M/S Balaji ... vs Bhartiya Loha Udyog Pvt Ltd Through Its ... on 20 October, 2023
IN THE COURT OF CIVIL JUDGE-01, WEST, TIS HAZARI COURTS,
DELHI
Presided over by- Sh. Vikas Madaan, DJS
CS SCJ No. 1029/2017
CNR DLWT030021962017
Date of institution of suit : 03.08.2017
Date of reservation of Judgment : 11.10.2023
Date of pronouncement of Judgment : 20.10.2023
Sh. Raj Kumar Goyal,
S/o Sh. Suresh Chand Gupta,
Prop. of M/s Balaji Industries
At RZ-220, Ravi Nagar Extn.,
Near Tilak Nagar, New Delhi.
..............Plaintiff
Vs.
M/s Bhartiya Loha Udyog Pvt. Ltd.,
Regd. & Sales Office at
Z-216/1, Loha Mandi
Naraina, New Delhi-110028
through its director /AR
Sh. Gopal Chand Aggarwal
.......... Defendant
Digitally signed by
__________________________________________________________
VIKAS VIKAS MADAAN
MADAAN Date: 2023.10.20
14:20:26 +0530
Pg. no. 1 of 10 Raj Kumar Goyal vs. M/s Bhartiya Loha Udyog Pvt. Ltd. CS SCJ No. 1029-2017
Argued by:
Sh. Akash Singh Rana: For plaintiff
Sh. Yashwant Singh and Ms. Reema Batra: For defendant.
________________________________________________________
SUIT FOR RECOVERY FOR RS.45,000/-
JUDGMENT
A. FACTUAL MATRIX
1. Brief facts of the present case as per plaint are that the plaintiff is the proprietor of M/s Balaji Industries. Defendant is a private limited company and Sh. Gopal Chand Aggarwal is the director of defendant company and Sh. Gopal Chand Aggarwal is having good business relations with the plaintiff so he approached to the plaintiff for business deal and many times visited the office of plaintiff and at that time the parties finalized the business deal. Thereafter the plaintiff placed an order for purchasing the goods and on the demand of the defendant, the plaintiff paid a sum of Rs. 45,000/- through NEFT/RTGS i.e. online banking payment and also the plaintiff handed over the defendant two cheques i.e. bearing no. 040748 and 040749, both drawn on Allahabad Bank, Guru Har Kishan Nagar, New Delhi as security in blank for commencement of the smooth business for security purpose and the defendant assured the plaintiff that they will deliver the goods in terms of the above said deal and defendant will not use the said cheques without the prior intimation/permission of the plaintiff. It is further stated that plaintiff was shocked when he received summons from the court of Ld. ACMM, North District, Rohini, Delhi then he came to Digitally signed by VIKAS VIKAS MADAAN MADAAN Date: 2023.10.20 14:20:49 +0530 Pg. no. 2 of 10 Raj Kumar Goyal vs. M/s Bhartiya Loha Udyog Pvt. Ltd. CS SCJ No. 1029-2017 know that defendant misused the said cheques without the permission of plaintiff, however plaintiff not filled any contents of the same and defendant filled the same by himself and defendant never delivered any goods in terms of abovesaid deal and no invoice bearing no. T-311, dated 05.11.2016 for Rs. 4,72,752/- ever been issued to the plaintiff and plaintiff has no concern with the above said invoice and plaintiff never received any invoice as well as the goods against the above said invoice. It is further stated that the abovesaid bill is forged and fabricated. It is further stated that defendant had breached the trust of plaintiff as well as the terms and conditions of the contract as the defendant received the advance payment for a sum of Rs. 45,000/- but not delivered any goods till date. It is further stated that a legal notice dated 09.06.2017 was sent to defendant and defendant sent a false and frivolous reply dated 14.06.2017 to the said legal notice. Thereafter the present suit has been filed by the plaintiff.
2. By virtue of present suit, the plaintiff has prayed for the following reliefs :
(a) Decree for the sum of Rs. 45,000/- in favour of plaintiff and against the defendant.
(b) Future and pendente lite interest @ 24 % per annum from the last payment made by the defendant, till the realization of the same may also awarded in favour of plaintiff and against defendant.
(c) Cost of the suit.
(d) Any other relief.
3. Written statement has been filed on behalf of defendant wherein it is stated that the suit is not maintainable in its present form as the present suit filed Digitally signed by VIKAS VIKAS MADAAN MADAAN Date: 2023.10.20 14:21:07 +0530 Pg. no. 3 of 10 Raj Kumar Goyal vs. M/s Bhartiya Loha Udyog Pvt. Ltd. CS SCJ No. 1029-2017 by the plaintiff is without any cause of action as the plaintiff has concealed the material facts before this court, hence the suit is liable to be dismissed. It is further stated that plaintiff has not come to the court with clean hands and filed the present suit with mala fide intention and to harass the defendant, since the averments made in the plaint are baseless and without any substance. It is stated that Sh. Gopal Chand Aggarwal, director of defendant company never visited the plaintiff's place and on the other hand, the plaintiff had approached the defendant and asked the director of defendant company to supply the goods i.e. different type of iron sheets etc and assured the defendant for the payment of goods to be remitted by him either in cash or through cheques and upon the aforesaid assurance, the defendant agreed to supply the goods to the plaintiff. It is denied that plaintiff had paid a sum of Rs. 45,000/- through RTGS and handed over two cheques bearing no. 040748 and 040749 as security in blank.
4. It is further stated that defendant had supplied the material to the plaintiff vide invoice no. T311 dated 05.11.2016 for Rs. 4,72,752/- delivery of which was duly obtained by the plaintiff, the plaintiff however paid Rs. 45,000/- on 15.12.2016 through RTGS as a part payment against the said invoice no. T311 dated 05.11.2016 and issued two cheques bearing no. 040748 dated 05.12.2016 for Rs. 1,00,000/- and another cheque bearing no. 040749 dated 22.12.2016 for Rs. 3,00,000/-, both drawn on Allahabad Bank payable in favour of defendant company with the assurance that the same would be honored on presentation. It is denied that defendant had misused the cheques without the permission of plaintiff and defendant filled the same by himself and the defendant never delivered any goods. It is further stated that the cheques as mentioned above could not be encashed due to insufficiency of funds therefore, the defendant was compelled to file VIKAS Digitally signed by VIKAS MADAAN MADAAN Date: 2023.10.20 14:21:23 +0530 Pg. no. 4 of 10 Raj Kumar Goyal vs. M/s Bhartiya Loha Udyog Pvt. Ltd. CS SCJ No. 1029-2017 a case U/s 138 of NI Act. In rest of the written statement the averments made in plaint are denied and prayer is made for dismissal of the present suit.
5. Replication to the W.S has been filed by plaintiff wherein the contentions raised in the written statement are denied and averments made in the plaint are reiterated.
B. ISSUES
6. Vide Order dated 03.05.2018 following issues were framed:
I. Whether the plaintiff is entitled to the decree of sum of Rs.
45,000/- as prayed for? OPP II. Whether the plaintiff is entitled to interest, if any, at what rate and for what period? OPP III. Relief.
C. PLAINTIFF'S EVIDENCE
7. In order to prove his case plaintiff has examined himself as PW-1 and has tendered in evidence his duly sworn in affidavit. Same is Ex. PW 1/A and has relied upon following documents:Digitally signed by
VIKAS VIKAS MADAAN MADAAN Date: 2023.10.20 14:21:37 +0530 Pg. no. 5 of 10 Raj Kumar Goyal vs. M/s Bhartiya Loha Udyog Pvt. Ltd. CS SCJ No. 1029-2017 Sr. No. Details of documents Exhibits 1 Copy of bank statement Mark A (the document Ex. PW 1/1 is hereby De exhibited being no supported with certificate U/s 65 B of Indian Evidence Act )
2. Copy of notice dated 09.06.2017 Ex. PW 1/ 2
3. Original postal receipt Ex. PW 1/3
4. Reply dated 14.06.2017 Ex. PW 1/4
8. Plaintiff was cross-examined by counsel for defendant Thereafter, vide separate statement made by plaintiff on 19.02.2019, PE was closed and the matter was listed for DE.
D. DEFENDANT'S EVIDENCE
9. In defendant evidence, defendant has examined himself as DW-1 who has tendered in evidence his duly sworn in affidavit. Same is Ex. DW 1/A and has relied upon following documents:
Sr. Details of documents Exhibits
No.
1 Invoice no. T-311 Mark A
(original not on record)
2 Two cheques bearing no. 040748 & Ex. DW 1/ 2
Digitally signed by
VIKAS VIKAS MADAAN
MADAAN Date: 2023.10.20
14:21:50 +0530
Pg. no. 6 of 10 Raj Kumar Goyal vs. M/s Bhartiya Loha Udyog Pvt. Ltd. CS SCJ No. 1029-2017
040749 & Ex. DW 1/3
3. Bank returning memos Ex. DW 1/4 & Ex. DW
1/5
4. Legal notice, postal receipts Ex. DW 1/6 (colly. )
along with delivery status report
10. Besides DW-1, defendant has examined Sh. Hemant Kumar Meena, Jr. Assistant from the office of Department of Trade and Taxes, ITO, Delhi who had brought the summoned record i.e. Certified copy of VAT Returns for the period of third quarter i.e. October to December, 2016 submitted by Bhartiya Loha Udyog Pvt. Ltd. showing the sale transaction with Balaji Industries at point A which is Ex. DW 2/1 ( 4 pages).
11. Sh. Jayshree has been examined as DW-3 who has tendered in evidence his duly sworn in affidavit. Same is Ex. DW 3/A and has relied upon following documents:
Sr. No. Details of documents Exhibits
1 Copy of electoral ID Ex. DW 3/A (OSR)
2 Copy of Driving license Ex. DW 3/B (OSR)
VIKAS Digitally signed by VIKAS
MADAAN
MADAAN Date: 2023.10.20 14:22:05
+0530
Pg. no. 7 of 10 Raj Kumar Goyal vs. M/s Bhartiya Loha Udyog Pvt. Ltd. CS SCJ No. 1029-2017
12. DWs have been cross-examined by counsel for plaintiff and thereafter vide separate statement made by counsel for defendant on 29.04.2023 DE was closed. Thereafter the matter was listed for final arguments.
13. I have heard final arguments advanced by Ld. counsel for parties and perused the record.
E. FINDINGS
ISSUE NO.1 and 2
I. Whether the plaintiff is entitled to the decree of sum of
Rs. 45,000/- as prayed for?
II. Whether the plaintiff is entitled to interest, if any, at what rate and for what period Issue no. I and II are taken up together as the findings on these issues are based on common facts and evidences.
The onus to prove these issues was upon the plaintiff.
14. Plaintiff states that he had placed a purchase order with the defendant and as an advance, Rs. 45,000/- was transferred through NeFT/RTGs along with two cheques to the defendant. In his cross-examination, plaintiff deposed that he was not having regular business transaction rather only one transaction was done with the defendant. He further avers that despite paying the amount in advance, no goods were supplied by the defendant. On the other hand, defendant avers that he had supplied the goods worth VIKAS Digitally signed by VIKAS MADAAN MADAAN Date: 2023.10.20 14:22:21 +0530 Pg. no. 8 of 10 Raj Kumar Goyal vs. M/s Bhartiya Loha Udyog Pvt. Ltd. CS SCJ No. 1029-2017 of Rs. 4,72,752/- to the plaintiff and in discharge of this liability, Rs.45,000/- along with two cheques were given by the plaintiff. Here, it is also pertinent to note that a criminal complaint has been filed by the defendant against the plaintiff u/s 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as 'NI Act', for brevity) for dishonour of two cheques given by the plaintiff and it is an admitted fact that the said complaint was filed before the filing of the present case. So far as the sequence of the events are concerned, plaintiff sent his first legal notice to demand Rs. 45,000/- on 09.06.2017 vide Ex. PW-1/2 to the defendant and as per the statement of account vide Mark A, the amount of Rs. 45,000/- was transferred on 15.12.2016. Plaintiff has nowhere stated the reason for such a considerable delay in sending the legal demand notice in spite of receiving a legal demand notice from the defendant vide Ex. PW-1/D1 dated 20.01.2017, i.e. almost 5 months prior to his legal demand notice whereby the demand of Rs. 4,00,000/- was made by the defendant due to dishonour of the cheques. The said notice was not even replied by the plaintiff as no such reply was filed upon record. Similarly, no document was placed on record by the plaintiff to prove that he ever demanded the goods from the defendant for which the alleged advance payment of Rs. 45,000/- was paid. This conduct of the plaintiff cannot be equated with the conduct of a prudent person acting in similar circumstances. It appears that the present suit was just a counterblast to the complaint filed by the defendant u/s 138 of the NI Act vide Ex. PW1/D2 against the plaintiff.
15. Now, so far as the purchase of goods by the plaintiff is concerned, Ex. DW2/1 at point A shows that VAT was deposited by the defendant against the certain goods and the buyer of those goods was Balaji Industries. No endeavours were made by the plaintiff to disprove the said document as no witness was examined by him in his support. As such, the said document VIKAS Digitally signed by VIKAS MADAAN MADAAN Date: 2023.10.20 14:22:34 +0530 Pg. no. 9 of 10 Raj Kumar Goyal vs. M/s Bhartiya Loha Udyog Pvt. Ltd. CS SCJ No. 1029-2017 itself proves that goods worth of Rs. 4,50,240 was purchased by the plaintiff from the defendant. Further, DW-3 has categorically stated in his cross-examination that he had supplied the goods to the plaintiff on 05.11.2016 by his vehicle no. DL 1LP 9478 and those goods were iron sheets. It is pertinent to note that the testimony of DW-3 qua delivery of goods to the plaintiff has gone unchallenged as no suggestion to contrary was ever put to the said witness. The law is well settled that where the evidence of a witness is allowed to go unchallenged with regard to any particular point, it may safely be accepted as true. Resultantly, it is also proved that the goods were delivered to the plaintiff on 05.11.2016. Consequently, keeping in view the above discussion, this Court is of the opinion that plaintiff has failed to prove his case and plaintiff is not entitled to any reliefs prayed for.
16. In view of aforementioned findings and observations, suit of the plaintiff stands dismissed. No order as to costs.
17. Decree sheet be prepared accordingly.
18. File be consigned to Record Room after due compliance.
Digitally signed by
VIKAS VIKAS MADAAN
ANNOUNCED IN THE OPEN COURT
TODAY 20.10.2023 MADAAN Date: 2023.10.20
14:19:43 +0530
(VIKAS MADAAN)
Note: This judgment contains 10 pages and
CIVIL JUDGE-01, WEST, TIS HAZARI COURTS,
each page is signed by the under signed. DELHI
Pg. no. 10 of 10 Raj Kumar Goyal vs. M/s Bhartiya Loha Udyog Pvt. Ltd. CS SCJ No. 1029-2017