Delhi District Court
Sh. Narendra Kumar vs The Managing Director/ Manager on 29 May, 2019
IN THE COURT OF SUSHANT CHANGOTRA
ADDITIONAL SENIOR CIVIL JUDGE (SHAHDARA)
KARKARDOOMA COURTS, DELHI
CS no. 9258/16
Sh. Narendra Kumar
S/o Sh. Ram Kishan
R/o C582, LIG DDA Flats,
East Loni Road, Shahdara, Delhi
...........Plaintiff
Versus
The Managing Director/ Manager
Family Credit Ltd.
Technopolis, 7th Floor, Wing 'A'
Plot no. 4, Block BP, Sector5,
Salt Lake, Kolkata700091
......Defendant
SUIT FOR RECOVERY OF RS. 2,00,000/
Date of Institution of the case : 03.06.2014
Date of pronouncement of judgment : 29.05.2019
JUDGMENT
1. The brief facts of the case of plaintiff as stated in the plaint are that in the year 2008, plaintiff approached M/s Rajiv Raj Bajaj Automobiles at A6, 100 Foota Road, North Chhajjupur, Shahdara, Delhi for purchasing a two wheeler vehicle. He was assured that the vehicle will be financed. He was introduced to CS no. 9258/16 Narender Kumar Vs. Managing Director/ Manager page no. 1 of 9 defendant's representatives working there and they got the application form signed from him. However, plaintiff did not purchase the vehicle and also did not visit the office of M/s Rajiv Raj Bajaj Automobiles or the officials of defendant.
2. The aforementioned officials misused the documents and form of plaintiff and committed forgery with defendant as well as plaintiff in collusion with one person namely Narender. Plaintiff received loan repayment schedule of Rs. 30,000/ against a two wheeler vehicle @ Rs. 1,666/ per month. Plaintiff contacted to the officials of defendant, but they made illegal demand.
3. The plaintiff filed complaint in the consumer forum stating that he had not purchased any vehicle nor got any vehicle financed from the officials of defendant. The ld. District Consumer Disputes Redressal Forum vide order dated 28.01.10 allowed the complaint and directed the defendant to cancel the loan of Rs. 30,000/ which was not taken by him and also directed the defendant to pay Rs. 3500/ as compensation for harassment and mental agony. Thereafter, defendant paid sum of Rs. 3500/ vide cheque no. 075459 dated 20.10.2010.
4. Subsequently, defendant in collusion with concerned officials deliberately and intentionally sent a letter/ notice of payment schedule dated 02.11.2009 regarding agreement no. 204225 dated 14.10.2008. Plaintiff replied to said notice and requested the defendant to lodge FIR against the actual culprits who had cheated him. Defendant did not verify the facts and despite order of Ld. District Consumer Disputes Redressal Forum filed a false complaint u/s 138 NI Act vide case no. 1261/10 against plaintiff on the basis of cheque bearing no. 32399 dated 29.01.2010 drawn on SBI for Rs. 15003/ alleging that it was issued CS no. 9258/16 Narender Kumar Vs. Managing Director/ Manager page no. 2 of 9 by plaintiff. The notice was issued by Ld. Metropolitan Magistrate, Kolkata. Whereas, no such cheque had been issued by plaintiff nor he had such account as stated therein.
5. Plaintiff has been defamed by defendant in the estimation of his family friends, neighbors and relatives by sending false complaint by filing the same in the court and by sending the notice/summon dated 19.03.2014 by concealing material facts. Plaintiff has suffered mental torture/ pain and agony due to illegal demand of defendant. Plaintiff served legal notice dated 15.05.2014 upon defendant and called upon defendant to withdraw the suit, otherwise the plaintiff reserved his right to recover Rs. 2 Lakh as compensation for defamation and torture. Hence, plaintiff has filed present suit for recovery of Rs. 2 Lakhs as damages.
6. Summons of the suit were served upon the defendant. Memo of appearance was also filed, but defendant did not file written statement and their right to file WS was closed on 26.09.2014. The defendant filed application for seeking permission to file WS. The said application was allowed subject to cost of Rs. 2000/ vide order dated 08.08.2016.
7. The defendant filed written statement and pleaded that Family Credit Ltd. is engaged in business of lending and leasing of vehicles. On 11.10.2008, one Narender Kumar approached M/s Rajiv Raj Bajaj Automobiles for purchasing the vehicle. He also approached Family Credit Ltd. Company for finance of loan and submitted application no. 0809105552 and also submitted copy of PAN card, EPF Card and Ration Card. On the basis of said request, defendant extended loan CS no. 9258/16 Narender Kumar Vs. Managing Director/ Manager page no. 3 of 9 of Rs. 30,000/ towards vehicle bearing no. DL5SZ8806 vide loan agreement no. 204225. The borrower defaulted in making payments. Since the record of defendant was forwarded with the loan application, therefore defendant on account of default in the said loan initiated steps for recovery of loan amount in good faith. Thereafter, plaintiff stated that his documents were misused by actual borrower and loan had not been taken by him. Defendant is unaware of the circumstances in which document of plaintiff were furnished for availing loan.
8. The Family Credit Ltd. became aware of exparte order dated 28.01.2010, wherein it was held that plaintiff had not taken any loan. Since defendant was exparte, it could not be informed to the Ld. District Consumer Disputes Redressal Forum that loan of Rs. 30,000/ had been given to borrower Narender on the basis of documents furnished under loan agreement bearing no. 204225. Defendant paid compensation of Rs. 3500/ by way of cheque no. 075459 dated 20.10.2010.
9. In the meanwhile, there was restructuring of company because of which documentation and records were not in order and there was lack of adequate follow up regarding the accounts of defendant. Hence, loan agreement no. 204225 was not flagged in respect of order passed by Ld. District Consumer Forum. Accordingly, complaint u/s 138 NI Act was filed in the normal course of business of defendant. After realizing that particulars furnished were that of plaintiff, the defendant sought discharge of warrants and the case. In the meanwhile, in view of the law laid down in Dashrath Rupsingh Rathod Vs. State of Maharashtra, the plaint was returned. The directions were given to SHO for CS no. 9258/16 Narender Kumar Vs. Managing Director/ Manager page no. 4 of 9 not executing the warrants with direction to return of complaint. Specific directions was given by defendant to its concerned officials not to refile the said complaint. Hence, said proceedings are now closed. The defendant had taken the steps due to bonafide mistake. There was no intention to institute wrong proceeding against the plaintiff or cause any damage to reputation of plaintiff. No damages or loss has been caused to plaintiff. Thus, prayed that suit may be dismissed.
10. From the pleadings, following issues were framed:
(i) Whether the defendant has defamed the plaintiff by way of initiating false proceedings against him? OPP
(ii) Whether on account of defamation, the defendant is entitled to damages and if so, for what amount? OPP
(iii) Whether the plaintiff is entitled to recover any interest on the said damages, if so, at what rate? OPP
(vi) Whether the proceedings initiated by the defendant against the plaintiff were on account of bona fide mistake? OPD
(v) Relief.
11. In order to prove his case, plaintiff appeared as PW1. He tendered his affidavit Ex. PW1/A and relied upon documents Ex. PW1/1, PW1/6 and PW1/11, Mark A to D, Mark G, Mark O, Mark P, Mark M, Mark N and Mark X to Z. Opportunity to crossexamine the witness was given to defendant, but it was not availed. Then, plaintiff closed PE on 26.03.2019.
12. Opportunities for leading DE were given to defendant, but they did CS no. 9258/16 Narender Kumar Vs. Managing Director/ Manager page no. 5 of 9 not lead any evidence. Hence, DE was closed 02.05.2019.
13. I have heard the arguments of ld. Counsel for plaintiff. None had appeared for defendant for advancing final arguments. I have also gone through the evidence on record very carefully. The issue wise findings are as follows :
ISSUES NO. 1 & 214. Onus to prove issues no. 1 & 2 was on plaintiff. Both these issues are interconnected, therefore, the discussion of one issue will necessarily involve discussion of the other issue. Hence, I will take up the discussion of both these issues together.
15. First of all it is necessary to note that plaintiff has filed the present suit against Managing Director/ Manager of the company i.e. Family Credit Ltd. He has not instituted the suit against the company through Managing Director.
16. In Tristar Consultants Vs. M/s Vcostomer Services India Pvt. Ltd. CRP NO. 365/2006, it has been held that, "28. To interpret the law as is sought to be projected by the petitioner would mean negation of the concept of a company being limited by its liability as per the memorandum and articles of association of the company. Other than where directors have made themselves personally liable i.e. by way of guarantee, indemnity etc. liabilities of directors of a company, under common law, are confined to cases of malfiescence and misfiescence i.e. where they have been guilty of tort towards those to whom they owe a duty of care i.e. discharge fiduciary obligations. Additionally, qua third parties, where directors have committed tort. To the third party, they may be CS no. 9258/16 Narender Kumar Vs. Managing Director/ Manager page no. 6 of 9 personally liable.
29. For example by making false representation about a company, a director induces a third party to advance a loan to the company. On proof of fraudulent misrepresentation, a director may be personally liable to the third party.
30. But this liability would not flow from a contract but would flow in an action at tort. The tort being of misrepresentation of inducement and causing injury to the third party having induced the third party with money."
17. There is no averment in the plaint that the claim is on the basis of tort or on the basis of personal guarantee of the Managing Director/Manager. There is also no averment in the plaint that plaintiff had met the Managing Director of Family Credit Ltd. or he had himself instituted the complaint against the present plaintiff. Thus, defendant/ Managing Director of a company cannot be held liable for the liability (if any) of the company.
18. Secondly, the plaintiff has sought damages on account of defamation caused due to filing of complaint u/s 138 NI Act against him by Family Credit Ltd. The filing of aforesaid complaint is admitted. However, the plaintiff has not produced the aforementioned complaint so instituted against him. Therefore, the plaintiff is merely relying upon the assertion that the complaint filed u/s 138 NI Act was per se defamatory on account of the fact that plaintiff had not taken any loan from the defendant and the cheque had also not been issued by him.
19. In order to establish his case for damages on account of defamation, the plaintiff was under obligation to prove not only the fact that the publication by CS no. 9258/16 Narender Kumar Vs. Managing Director/ Manager page no. 7 of 9 way of filing complaint u/s 138 NI Act was false and it had the capacity to injure his reputation etc, but he was also under obligation to establish that other persons around him believed the aforementioned publication due to which the reputation of plaintiff was lowered in their estimation. However, perusal of entire plaint as well as affidavit Ex. PW1/A shows that there is no averment to the effect that the aforementioned complaint/publication was given to any other person known to the plaintiff by Family Credit Ltd. or its officials. Similarly, there is no averment that any of the known persons, friends or relatives of the plaintiff had believed said publication to be true and thereby the reputation of plaintiff was lowered in their estimation. Plaintiff has also not examined any other witness besides himself to prove the aforementioned assertion.
20. Therefore, the pleadings and evidence on record do not show that the reputation of plaintiff had suffered any damage due to publication made by Family Credit Ltd by way of filing the complaint u/s 138 NI Act.
21. As far as the question of damages for mental harassment etc is concerned, the plaintiff himself has filed copy of order passed by Ld. District Consumer Disputes Redressal Forumdated 28.01.2010 i.e. Ex. PW1/6. In the said order Family Credit Ltd. was penalized with cost of Rs. 3000/ to be paid as compensation for harassment and mental agony suffered by present plaintiff due to wrong demand made by it from plaintiff. Hence, the plaintiff admittedly has already received the aforementioned compensation from Family Credit Ltd.
22. Thus, in view of the aforementioned discussion, it has to be concluded that plaintiff has failed to prove to the preponderance of probability CS no. 9258/16 Narender Kumar Vs. Managing Director/ Manager page no. 8 of 9 that he is entitled to receive compensation/ damages from defendant. Accordingly, all these issues are decided against the plaintiff.
ISSUE NO. 323. Onus to prove this issue was on plaintiff. In discussion of issues no. 1 & 2, it has already been concluded that plaintiff is not entitled to recover damages from defendant. Therefore, question of recovery of interest on such damages does not arise. Accordingly, this issue is decided against plaintiff.
ISSUE NO. 424. Onus to prove issue no. 4 was on defendant, but defendant has not led any evidence. Therefore, this issue is decided against the defendant. RELIEF
25. In view of the findings given on issues no. 1 to 3, suit of the plaintiff is dismissed with costs. Decree sheet be prepared. File be consigned to record Digitally signed by room after due compliance. SUSHANT SUSHANT CHANGOTRA CHANGOTRA Date: 2019.05.30 16:09:26 +0530 (Announced in the open court) (SUSHANT CHANGOTRA) 29th May, 2019 ASCJ (SHAHDARA)/KKD/29.05.2019 CS no. 9258/16 Narender Kumar Vs. Managing Director/ Manager page no. 9 of 9