Delhi District Court
Smt. Usha Yadav vs M/S. Investment Centre on 10 June, 2011
IN THE COURT OF MS. MANISHA KHURANA, CIVIL JUDGE, DELHI.
Suit No. 724/02
Case ID No. C1290812007.
Smt. Usha Yadav,
W/o Sh. Narender Singh Yadav,
R/o 68/94C, Jawala Heri,
Paschim Vihar,
New Delhi - 110063. .... Plaintiff
Versus
1. M/s. Investment Centre,
B3/401, Paschim Vihar,
New Delhi.
2. Sh. Rajeev Vasudev,
S/o Sh. Darshan Lal,
R/o B3/188, Paschim Vihar,
New Delhi.
3. Sh. Yash Pal Verma,
S/o Sh. Thakur Dass,
R/o B3/401, Paschim Vihar,
New Delhi. .... Defendants
SUIT FOR RECOVERY OF RS. 90,030.50 ALONG WITH COST AND
INTERST.
Date of institution : 13.03.1995.
Date of conclusion of final arguments : 18.05.2011.
Date of decision : 10.06.2011.
Suit No. 724/02 Page 1 of 11
JUDGMENT
This Judgment shall dispose off this suit for recovery of Rs. 90,030.50 filed by the plaintiff against the defendants.
2. The brief facts of the case are as follows : It is the case of the plaintiff that the defendant No. 1 had been carrying on business of share brokers in the name and style of M/s. Investment Centres where defendant Nos. 2 and 3 were partners. It is stated that defendant Nos. 1 and 2 induced the plaintiff and her husband to invest in stock market to earn profits and also offered shares of reputed companies for which the defendant charged commission @ 2% of the amount.
3. It is further stated that the plaintiff in pursuance thereof issued following 6 (six) cheques in the name of the defendant No. 1 from her saving Bank Account No. 3255 of State Bank of Patiala, Branch Office, Jawala Heri, Paschim Puri and also paid cash of Rs. 3760/ to defendant No. 2 for the purchase of shares. Suit No. 724/02 Page 2 of 11
S.No. Cheque Date Amount For At the rate
No. (Rs.) of (Rs.)
1. 25214 12.3.1992 12,852/ 200 share of UTI 63/
Master
2. 25218 26.3.1992 10,000/ 200 shares of 141/
3. 25219 9.4.1992 18,764/ GNPC
4. 25220 11.4.1992 5,000/ 300 shares of 60/
5. 136142 1.5.1992 7,000/ UTI Master Plus
6. 136145 11.5.1992 2,600/
4. It is further stated that the defendants got signed some transfer forms from the plaintiff to get the shares transferred in the name of the plaintiff, however, it is stated that the defendants failed to get the shares transferred. Thereafter, on the request of the plaintiff, defendant No. 2 agreed to refund the amount paid to him in cash on 11.5.1992 in two installments and issued a cheque of Rs. 2000/ bearing No. 599080 dated 17.5.1994 drawn on Punjab National Bank, Patel Nagar Branch. However, the same was returned back for insufficiency of funds on its presentation on 21.7.1994.
5. Thereafter, the plaintiff served legal notice dated 1.8.1994 and 23.8.1994 to defendant No. 2 to handed over the shares along with transfer deeds or to make the payment of the same along with interest. Suit No. 724/02 Page 3 of 11 However, the defendant failed to make the payment or to return the transfer deeds and share certificates. Hence, the present suit.
6. In the written statement filed by the defendants, it is admitted that the six cheques as stated in the plaint were issued by the plaintiff to the defendant for the purchase of shares. However, it is denied that an amount of Rs. 3760/ was paid by the plaintiff to the defendant in cash. It is further stated that the defendants purchased the shares from the market and handed over the same to the plaintiff, however, it is stated that when the defendants demanded the payment of commission @ 2% on the cost of the shares i.e. Rs. 3760/, the plaintiff did not pay the same. It is denied that the defendants had promised to get the shares transferred in plaintiff's name and it is stated that in fact, the business of the defendants pertains only to purchasing of the shares from the market and not to get the shares transferred.
7. It is further stated that defendant No. 2 had obtained insurance policy for the plaintiff on commission basis, for which an amount of Rs. 3760/ was to be paid by the plaintiff to the defendant, therefore, the defendant No. 2 got the cheque dishonoured. It is further denied that no share certificate had been received by the defendants from the plaintiff for getting the same transferred in the name of the Suit No. 724/02 Page 4 of 11 plaintiff. It is further denied that any amount is due against the defendants. It is therefore, prayed that suit of the plaintiff be dismissed.
8. In the replication filed by the plaintiff against the defendants, the plaintiff has denied the averments made in the written statement and reiterated the averments made in the plaint. It is further denied that the plaintiff had handed over any shares to the defendant for the purpose of transfer of shares. It is further averred that no shares were received by the plaintiff from the defendant.
9. On the basis of the pleadings of the parties, following issues were framed :
1. Whether any cause of action has accrued to the plaintiff to file the present suit? OPP
2. Whether plaintiff is entitled to the relief as prayed for in the present suit? OPP
3. Relief.
Thereafter, the matter was fixed for plaintiff evidence.
10. In plaintiff evidence, PW1, Sh. Ram Lal Giri, Employee of the State Bank of India, Paschim Vihar Branch was examined. Thereafter, PW2, Sh. Narender Yadav, Special Power of Attorney holder Suit No. 724/02 Page 5 of 11 of the plaintiff was examined. PW2 placed on record following documents :
1. Special Power of Attorney dated 20.1.1995 as Ex. PW2/1.
2. Letter of intimation under Section 143(1)(a) of Income Tax Act for assessment year 199293 as Ex. PW2/2.
3. Original cheque dated 13.5.1994 for Rs. 2000/ as Ex. PW2/3.
4. Cheque returning memo dated 23.7.1994 as Ex. PW2/4.
5. Copy of legal notice sent by the plaintiff to the defendant No. 2 dated 1.8.1994 as Ex. PW2/5.
6. Legal notice sent by the plaintiff to the defendant No. 2 dated 23.8.1994 as Ex. PW2/6.
7. Postal receipt as Ex. PW2/7.
8. AD card as Ex. PW2/8.
Thereafter, PW2 was cross examined by the counsel for the defendant. Thereafter, plaintiff evidence was closed and the matter was listed for defendant evidence. However, despite availing various opportunities, defendant failed to lead any evidence and the defendant evidence was closed vide order of the Ld. Predecessor dated 24.9.2005. Thereafter, the matter was listed for final arguments.
11. However, no one has appeared on behalf of the defendant to address the same and therefore, defendant was proceeded exparte Suit No. 724/02 Page 6 of 11 vide order dated 21.7.2008 passed by the Ld. Predecessor.
12. Thereafter, the plaintiff moved an application for producing herself as a witness which was allowed by the Ld. Predecessor vide Order dated 2.3.2010. Thereafter, PW3, Smt. Usha Yadav was examined. PW3 in her examination in chief stated that she ratifies the evidence given by her husband in the present matter. PW3 was thereafter discharged. Thereafter, the matter was listed for final arguments.
13. I have heard the final arguments on behalf of the plaintiff and I have carefully perused the case file. Issue wise findings are as follows : 14. ISSUE NO. 1 The onus of proving the said issue has been placed on the plaintiff. It is the case of the plaintiff that the plaintiff had issued six cheques in favour of the defendant No. 1 and had also paid cash of Rs. 3760/ to defendant No. 2 for the purchase of shares of companies such as UTI, GNFC etc. It is further stated that for the purchase of the said shares, the defendants were to charge the commission @ 2% of the cost of the shares, however, despite the payment of share amount, the defendants failed to hand over the share certificates or to refund the money paid towards the purchase of the said shares and commission to Suit No. 724/02 Page 7 of 11 the plaintiff. To prove the same, the husband / special power of attorney holder of the plaintiff appeared as PW2. PW2 has placed on record the original cheque of Rs. 2000/ dated 23.7.1994, Ex. PW2/3 along with the cheque return memo, Ex. PW2/4 issued by defendant No. 2 in favour of the plaintiff towards the refund of a part of the commission amount along with copies of the legal notices sent to the defendant No. 1 by the plaintiff as Ex. PW2/5 and Ex. PW2/6. The plaintiff has also produced PW1 i.e. the employee of the State Bank of Patiala wherein the plaintiff as well as defendant No. 1 are maintaining their accounts. PW1 placed on record the statement of account of the plaintiff as Ex. PW1/A which shows the entries of the six cheques issued by the plaintiff from her savings bank account No. 3255. PW1 also placed on record statement of account of defendant No. 1 which also shows corresponding entries of the said six cheques in the account number 660 of the defendant No. 1 as Ex. PW1/B. Thus, the plaintiff has discharged her burden to show that the said amount had been paid to the defendant No. 1 for the purchase of the shares. Further, the fact that the said cheques were issued by the plaintiff to the defendant for the purchase of the said shares has also been admitted by the defendant in the written statement. However, the defendant has denied that the defendant failed to hand over the shares to the plaintiff after their purchase. Suit No. 724/02 Page 8 of 11
15. In Texem Engineering Vs. Texcomash Export, 179 (2011) Delhi Law Times 693 (DB), Hon'ble High Court of Delhi has held that, "a cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature". The plaintiff has thus stated all the material facts for obtaining the relief of the recovery of the suit amount, therefore, the suit of the plaintiff cannot be said to be devoid of cause of action. Thus, this issue is decided in favour of the plaintiff and against the defendant.
16. ISSUE NO. 2.
The onus of proof of this issue has been placed on the plaintiff. The plaintiff has averred that the defendant failed to hand over the share certificates purchased by the defendant on behalf of the plaintiff despite receiving the share amount as well as the commission amount. As already mentioned in the aforesaid issue, the plaintiff has already discharge her burden of proof by placing on record the statement of account to show that the said cheques had been issued and had been credited in the account of the defendant as well as the legal notices to show that the shares purchased by the defendant No. 1 Suit No. 724/02 Page 9 of 11 were never handed over to plaintiff by the defendants. The defendant has also admitted the factum of the purchase of shares on behalf of the plaintiff and also the factum of issuance of the cheques in favour of the defendant. However, the defendant has denied the cash payment of Rs. 3760/ to the defendant in written statement or that the shares were never handed over to the plaintiff. After the plaintiff has discharged her burden of proof, the onus shifted on the defendant to rebut the allegations of the plaintiff by leading evidence. However, despite availing numerous opportunities, the defendant had failed to lead even an iota of evidence which could give credence to the averments of the defendant as made in the written statement. In the absence of the same, it cannot be held that the plaintiff is not entitled to recover the suit amount from the defendants. Thus, the defendant failed to discharge her burden of proof. In view of the above fact, the plaintiff is entitled to recover the suit amount from the defendant. Therefore, this issue is decided in favour of the plaintiff and against the defendant.
17. RELIEF.
The plaintiff has proved her case against the defendant. Therefore, the suit of the plaintiff is decreed for Rs. 90,030.50 i.e. Rs. 59,976/ along with interest till the filing of the suit. The plaintiff has Suit No. 724/02 Page 10 of 11 claimed pendentilite and future interest @ 18% per annum. However, the same is unjust and exorbitant. In view of the fact that the transaction between the parties are commercial one, pendentilite and future interest @ 10% per annum is awarded along with the cost of the suit. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court (Manisha Khurana)
on 10.06.2011 Civil Judge, North (IV)
Tis Hazari Courts, Delhi
10.06.2011
This judgment consists of 11 pages and all the pages are duly signed by me.
Suit No. 724/02 Page 11 of 11 Suit No. 724/02 10.06.2011.
Present : None.
Vide separate order of even date, suit of the plaintiff is decreed along with the cost of the suit. Decree sheet be prepared accordingly. File be consigned to record room.
(MANISHA KHURANA) CJ/N/DELHI/10.06.2011 Suit No. 724/02 Page 12 of 11