Delhi District Court
M/S Madura Coats Pvt. Ltd. vs . Shri Ashok Sareen on 27 February, 2023
IN THE COURT OF MS. CHITRANSHI ARORA , CIVIL
JUDGE-02, SOUTH-EAST DISTRICT, SAKET COURTS,
NEW DELHI.
CS SCJ 79/2016 52094/16
M/s Madura Coats Pvt. Ltd. Vs. Shri Ashok Sareen
In the matter of: -
M/s Madura Coats Pvt. Ltd.
B-II/35, Mohan Co-op. Ind. Estate,
Mathura Road, Badarpur,
New Delhi-110044
Through its Authorized Representative
Shri Arvind Kumar ................Plaintiff
Vs.
Shri Ashok Sareen
Proprietor of M/s Satkartar Trading Co.,
1635-A/14, First Floor,
Shop No. 2, Govind Puri,
Kalkaji, New Delhi-110019 .............Defendant
SUIT FOR RECOVERY
Date of institution of the suit :26.02.2016
Judgment reserved on :27.01.2023
Date of judgment :27.02.2023
JUDGMENT
1. Vide this judgment, I shall decide the present suit for recovery of Rs. 2,38,771/- along with interest, filed by the plaintiff against the defendant.
CS SCJ 79/2016 52094/16 M/s Madura Coats Pvt. Ltd. Vs. Shri Ashok Sareen page no. 1 of 24 CHITRANSHI Digitally signed by CHITRANSHI ARORA ARORA Date: 2023.02.27 17:11:37 +05'30' BRIEF FACTS AS PER THE PLAINT:-
2. The Plaintiff is a Company incorporated under the Companies Act, 1956 and is renowned as a manufacturer of export quality threads of all kinds, having an unimpeachable distribution network all across the country.
3. Defendant has been dealing with the plaintiff on credit basis for the purchase of threads manufactured by the plaintiff and the plaintiff maintains a running account in the name of the proprietorship concern of the defendant namely M/s. Satkartar Trading Co. in their books of accounts. On 26.12.2013, there remains a debit balance of Rs. 1,52,964.90/- in the books of accounts of the plaintiff, due to be paid by the defendant.
4. In discharge of his liability against various bills, the defendant issued a cheque number 000246 dated 26.12.2013 for Rs.1,52,964.90, duly filled-in in all respects and signed by him and drawn on Bank of Baroda, Shakarpur, Delhi-110092 and handed over the same to the plaintiff at their office at Delhi. Accordingly, the account of the defendant maintained with the plaintiff was credited with an amount of Rs.1,52,964.90/-. However, upon presentation on 27.12.2013, the cheque was returned dishonored on 28.12.2013 with the remarks "Exceeds Arrangements" as per the cheque return memo and statement for the period-liquidation date 30.12.2013 issued CS SCJ 79/2016 52094/16 M/s Madura Coats Pvt. Ltd. Vs. Shri Ashok Sareen page no. 2 of 24 CHITRANSHI Digitally signed by CHITRANSHI ARORA ARORA Date: 2023.02.27 17:12:00 +05'30' by Standard Chartered Bank, Delhi.
5. Upon the dishonour of the said cheque, the defendant was duly served with a legal notice dated 30.12.2013 which has duly been delivered to the defendant. Defendant sent a vague, bogus, frivolous and evasive reply dated 10.01.2014, wherein the entire transactions through bills against which goods have duly been duly received by the defendant and the accruing liability has not been denied.
6. Upon the dishonour of the said cheque, a debit note no. 9180010184 dated 30.12.2013 was issued and sent to the defendant towards the return of the said cheque as the account of the defendant maintained with the plaintiff was already credited with the amount of Rs.1,52,964.90/- i.e. the cheque amount, hence the account of the defendant was debited by way of a debit note towards the amount of the cheque returned.
7. The plaintiff is liable to make the payment of the principal amount of Rs.1,52,964.90/-, interest at the rate of 18 percent per annum from 15.04.2013 to 15.02.2016 amounting to Rs. 80,306/- and cost of legal notice amounting to Rs. 5,500/-.
8. In the background of these facts, the plaintiff has filed the instant suit for recovery.
CS SCJ 79/2016 52094/16 M/s Madura Coats Pvt. Ltd. Vs. Shri Ashok Sareen page no. 3 of 24 CHITRANSHI Digitally signed by CHITRANSHI ARORA ARORA Date: 2023.02.27 17:12:13 +05'30' WRITTEN STATEMENT:-
9. The defendant raised the following preliminary objections:-
i. Present suit is gross misuse of the process of law and the same is filed with malafide intentions and ulterior motives to extort illegal money from the defendant, and to harass, annoy and to degrade the defendant;
ii. Present suit is bad for non-joinder of necessary parties. The plaintiff has failed to join M/s Satkartar Trading Company, which is a necessary and proper party to the suit for the just and proper adjudication of the case;
iii. Plaintiff has forged and manipulated the instrument i.e. the cheque no.000246 and thereafter filed false and forged cheque bearing no. 000246 amounting of Rs. 1,52,964.90 drawn on Bank of Baroda, Shakarpur Branch New Delhi as the basis of their claim;
iv. Present suit is bad for mis-joinder of parties as the defendant in person had no personal liability to pay the alleged amount to the plaintiff company, and the financial transactions were involved with M/s Satkartar Trading Co. which is the dealership firm of the defendant;
CS SCJ 79/2016 52094/16 M/s Madura Coats Pvt. Ltd. Vs. Shri Ashok Sareen page no. 4 of 24 CHITRANSHI Digitally signed by CHITRANSHI ARORA ARORA Date: 2023.02.27 17:12:28 +05'30' v. Present suit of the plaintiff is barred by time;
vi. Defendant never agreed to pay interest at the alleged rate of 18% p.a. , therefore the claim of the interest at the alleged rate is wrong and baseless;
vii. No legal notice has ever been served upon the firm M/s Satkartar Trading co. or even to the defendant, therefore the plaintiff is not entitled to any costs;
viii. Plaintiff has not enclosed any accounts. There is no mention of any statement of account or any confirmation of balance being enclosed, and the suit is based on sham, bogus and over inflated bills, whereas the defendant has already made payments as per the statement of account filed by the plaintiff with the police authorities showing payments upto 30.09.2013 and thus the defendant is entitled to counterclaim/ damages etc;
ix. Suit has not been instituted by any authorized person, and the any alleged person named as Arvind Kumar is not the duly authorized person.
10. In para-wise reply on merits, the defendant denied all the averments of the plaintiff and has asserted that the plaintiff has forged the cheque as it was issued as a security as per the plaintiff's policy pertaining to transactions as on 31.12.2012, in replacement of earlier CS SCJ 79/2016 52094/16 M/s Madura Coats Pvt. Ltd. Vs. Shri Ashok Sareen page no. 5 of 24 CHITRANSHI Digitally signed by CHITRANSHI ARORA ARORA Date: 2023.02.27 17:12:41 +05'30' cheque no. 021854.
ISSUES:-
11. After completion of pleadings, the following issues were framed by the Ld. Predecessor of this Court vide order dated 06.04.2018:-
(1) Whether the plaintiff is entitled to the decree of recovery of money of Rs. 2,38,711/- against the defendant ? OPP (2) Whether the plaintiff is entitled to interest at the rate of Rs. 18% per annum on 1,52,964/- from 16.02.2016 till realization ? OPP (3) Whether the suit of the plaintiff is bad for non-joinder of necessary party? OPD (4) Whether the defendant is entitled to set off of Rs. 13 lakhs for the unsold stock of Rs. 10 lakhs and interest thereof? OPD (5) Whether the cheque bearing no. 000246, drawn on Bank of Baroda, has been forged by the plaintiff and misused ? OPD (6) Relief.
12. However, out of these issues, issue no.4 does not CS SCJ 79/2016 52094/16 M/s Madura Coats Pvt. Ltd. Vs. Shri Ashok Sareen page no. 6 of 24 CHITRANSHI Digitally signed by CHITRANSHI ARORA ARORA Date: 2023.02.27 17:12:53 +05'30' survive for consideration, since issue no.4 was framed on the basis of the averments made in the counter-claim, which has been dismissed as withdrawn on 06.04.2018. Thus, only issues no. 1,2,3 and 5 will be considered and decided.
PLAINTIFF'S EVIDENCE:-
13. In plaintiff evidence, the Authorized Representative (AR) of plaintiff Sh. Arvind Kumar, deposed as PW-1 vide affidavit of evidence, exhibited as Ex.PW1/A, bearing his signature at Point A and Point B, wherein he reiterated the contents of the plaint.
14. For the sake of brevity and to avoid repetition, the contents are not being reproduced again. PW-1 relied upon the following documentary evidence i.e.:-
S. No. Documents Exhibits
1 Copy of certificate Ex. PW-1/1 same
of incorporation of is de-exhibited. the plaintiff 2 Copy of board Ex. PW-1/2 resolution dated 09.03.2015 3 Certified copy of Ex. PW-
statement of pending 1/3(colly) bills from (running into two 15.03.2013 to pages) 15.04.2013 4 Certified copy of Ex. PW-
Bills No. 1/4(OSR) to Ex.
CS SCJ 79/2016 52094/16 M/s Madura Coats Pvt. Ltd. Vs. Shri Ashok Sareen page no. 7 of 24 CHITRANSHI Digitally signed by CHITRANSHI ARORA ARORA Date: 2023.02.27 17:13:07 +05'30' 6007765122, PW-1/28 (OSR) 6007765146, 6007765159, 6007765235, 6007765254, 6007765262, 6007765538, 6007765887, 6007766070, 6007766201, 6007766229, 6007766269, 6007766323, 6007766381, 6007766426, 6007766508, 6007766714, 6007766724, 6007766755, 6007766820, 6007766827, 6007767107, 6007767341, 6007767716 and 6007767751 5 Certified copy of Ex. PW-1/29 account statement of the defendant from 01.01.2012 to 31.12.2012 in the books of account of the plaintiff 6 Certified copy of Ex. PW-1/30 account statement of the defendant from 01.01.2013 to 31.12.2013 in the books of account of the plaintiff CS SCJ 79/2016 52094/16 M/s Madura Coats Pvt. Ltd. Vs. Shri Ashok Sareen page no. 8 of 24 CHITRANSHI Digitally signed by CHITRANSHI ARORA ARORA Date: 2023.02.27 17:13:25 +05'30' 7 Certified copy of Ex. PW-1/31 cheque no. 000246 dated 26.12.2013 for Rs. 1,52,964.90 drawn on Bank of Baroda, Shakarpur, Delhi-110092 8 Certified copy of Ex. PW-1/32 cheque return memo (colly) and statement for the preiod-
liquidation dated 30.12.2013 issued by standard Chartered Bank, Delhi 9 Certified copy of Ex. PW-1/33 Bank's Statement of Plaintiff's Bank 'Standard Chartered Bank Ltd 10 Certified copy of Ex. PW-1/34 and Legal Notice dated PW-1/35 31.12.2013 with its respectively registered AD receipt 11 Certified copy of Ex. PW-1/36 and reply dated Ex. PW-1/37 10.01.2014 sent by respectively the defendant in response to the legal notice dated 31.12.2013 with photocopy of the envelope 12 Certified copy of Ex. PW-1/38 Debit note no.
9180010184 dated CS SCJ 79/2016 52094/16 M/s Madura Coats Pvt. Ltd. Vs. Shri Ashok Sareen page no. 9 of 24 Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date: 2023.02.27 17:13:38 +05'30' 31.12.2013 13 Certified copy of Ex. PW-1/39 Complaint case bearing CC no.
50196/201614 Certificate/ affidavit Ex. PW-1/40 under Section 65-B of the Indian Evidence Act
15. Thereafter, the PW-1 was cross examined by Ld. Counsel for the defendant. During cross examination the original blank cheque no. 021854, was exhibited as Ex. PW-1/D-1.
16. Thereafter, Sh. Vikram, the Judicial Assistant in the court of Ms. Vasundhara Chauankar, Ld. MM, PHC, was summoned as PW-2. He brought the summoned record i.e. judicial file case titled as 'Ms Madura Coats Pvt. Ltd. Vs. Ashok Sareen, CT no. 50196/16', exhibited as Ex. PW- 1/39 consisting from page no. 13 to 61, except page no. 45 which is missing. Thereafter, vide separate statement of counsel for plaintiff, plaintiff evidence was closed on 11.03.2022. Thereafter, the matter was listed for defendant evidence.
DEFENDANT'S EVIDENCE:-
17. The defendant examined himself as DW-1 and deposed vide affidavit of evidence, exhibited as Ex.DW-
CS SCJ 79/2016 52094/16 M/s Madura Coats Pvt. Ltd. Vs. Shri Ashok Sareen page no. 10 of 24 Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date: 2023.02.27 17:13:53 +05'30' 1/A, bearing his signature at Point A and Point B. He deposed vide affidavit of evidence, exhibited as Ex. DW1/A, and relied upon following documents: -
S. No. Document Exhibits
1 Cheque bearing no. Ex. PW-1/D-1
021854 dated nil
drawn on Bank of
Baroda
2 The Photocopy of Ex. DW-1/1 (OSR)
the counter foils of
the cheques book
pertaining to the
year 2008-09
3 The photocopy of Ex. DW-1/2(OSR)
the counter foil of
the cheque book
containing the
cheque no. 000246
4 The photocopy of Ex. DW-1/3(colly)
the counter foil of (OSR) (running into
the cheque book four pages)
containing the
cheque Sr. No.
000201 to 000250
5 Reply to the legal Ex. DW-1/4 same is
notice u/s 138 N. I de-exhibited and
Act marked as Mark X
6 Copies of postal Ex. DW-1/5 and Ex.
receipt/ courier DW-1/6 (OSR)
receipt
7 Complaint filed by Ex. DW-1/7(OSR)
the defendant (colly)(running into
against the plaintiff 2 Pages)
bearing DD No. 86B
dated 21.09.2015
CS SCJ 79/2016 52094/16
M/s Madura Coats Pvt. Ltd. Vs. Shri Ashok Sareen page no. 11 of 24 CHITRANSHI Digitally signed by CHITRANSHI ARORA ARORA Date: 2023.02.27 17:14:05 +05'30' 8 Complaint bearing Ex. DW-1/8 (colly) DD No. 86B dated (running into 2 21.09.2015 Pages) 9 Copy of complaint Ex. DW-1/9 (colly) to the DCP (running into 2 Pages) 10 Copy of complaint Ex. DW-1/10 (OSR) to Hon'ble (colly)(running into Commissioner of 2 Pages) Police 11 Legal notice dated Ex. DW-1/11 same 05.07.2016 issued to is de-exhibited and the plaintiff marked as Mark Y 12 Reply dated Ex. DW-1/12 18.07.2016 to the (colly)(running into legal notice dated 4 Pages) 05.07.2016 13 Balance Ex. DW-1/13 confirmation letter 24.02.2020 14 Photocopy of Mark A Security blank cheque no. 000246 15 Photocopy of Mark B balance confirmation letter dated 09.02.2013 16 Photocopy of Mark C summons qua the defendant 17 Photocopy of ATR Mark D report of the court 18 Photocopy of reply Mark E of plaintiff to the ATR report CS SCJ 79/2016 52094/16 M/s Madura Coats Pvt. Ltd. Vs. Shri Ashok Sareen page no. 12 of 24 CHITRANSHI ARORA Digitally signed by CHITRANSHI ARORA Date: 2023.02.27 17:14:19 +05'30'
18. DW-1 was duly cross examined by Ld. Counsel for the plaintiff. During cross examination, certified copy of the notice framed by court of Ms. Vidhi Gupta, Ld. MM, NI Act, (East) KKD was exhibited as Ex. DW-1/P-1, Certified copy of judgment dated 29.06.2019 and order on point of sentence was exhibited as Ex. DW-1/P-2 (13 page) and certified copy of statement of accused Ashok Sareen in Court of Ld. MM was exhibited as Ex. DW-1/P-3 (8 pages).
19. Thereafter, vide separate statement of defendant, , dated 08.07.2022 defendant evidence was closed. This is the entire evidence adduced in this matter.
FINAL ARGUMENTS:-
20. Final arguments were advanced at length by the Ld. Counsels for both the parties. I have heard the submissions advanced by both the counsels. I have also perused the entire case record meticulously.
ISSUE-WISE FINDINGS:-
Issue no.1- Whether the plaintiff is entitled to the decree of recovery of money of Rs. 2,38,711/- against the defendant ? OPP And Issue no. 2- Whether the plaintiff is entitled to interest at the CS SCJ 79/2016 52094/16 M/s Madura Coats Pvt. Ltd. Vs. Shri Ashok Sareen page no. 13 of 24 CHITRANSHI ARORA Digitally signed by CHITRANSHI ARORA Date: 2023.02.27 17:14:35 +05'30' rate of Rs. 18% per annum on 1,52,964/- from 16.02.2016 till realization ? OPP
21. The burden to prove these issue lies on the plaintiff.
The plaintiff has claimed that the defendant is liable to make the payment of the principal amount of Rs. 1,52,964.90/- along with interest, for the goods supplied by the plaintiff to the defendant. The plaintiff has further asserted that the defendant had issued a cheque no. 000246 dated 26.12.2013, for the principal amount, however the same was dishonored with the remarks "Exceeds arrangements".
22. Per contra, though the defendant has not denied receiving goods from the plaintiff, he has asserted that the goods were supplied to the firm run by the defendant and hence he is not personally liable to pay the claimed amount. He has further asserted that he has already made the payment of the bills due to be paid up to 30.09.2013 and the plaintiff has filed sham and inflated bills. Further, the defendant has also asserted that the cheque was given to the plaintiff as a security pertaining to transactions as on 31.12.2012, as a replacement of earlier cheque no. 021854.
23. To prove his case, the plaintiff has placed on record the certified copy of Bill No. 6007765122 dated 15.03.2013 for an amount of Rs. 9844/- exhibited as Ex. PW1/4, bill no. 6007765146 dated 15.03.2013 for an CS SCJ 79/2016 52094/16 M/s Madura Coats Pvt. Ltd. Vs. Shri Ashok Sareen page no. 14 of 24 CHITRANSHI Digitally signed by CHITRANSHI ARORA ARORA Date: 2023.02.27 17:14:49 +05'30' amount of Rs. 23,755/- exhibited as Ex. PW1/5, bill no. 6007765159 dated 15.03.2013 for an amount of Rs. 3024/- exhibited as Ex. PW1/6, bill no. 6007765235 dated 16.03.2013 for an amount of Rs. 336/- exhibited as Ex. PW1/7, bill no. 6007765254 dated 16.03.2013 for an amount of Rs. 1670/- exhibited as Ex. PW1/8, bill no. 6007765262 dated 16.03.2013 for an amount of Rs. 336/- exhibited as Ex. PW1/9, bill no. 6007765338 dated 18.03.2013 for an amount of Rs. 672/- exhibited as Ex. PW-1/10, bill no. 6007765887 dated 22.03.2013 for an amount of Rs. 14396/- exhibited as Ex. PW-1/11, bill no.600766070 dated 25.03.2013 for an amount of Rs. 1313/- exhibited as Ex. PW-1/12, bill no.6007766201 dated 26.03.2013 for an amount of Rs.2783/- exhibited as Ex. PW-1/13, bill no.6007766229 dated 26.03.2013 for an amount of Rs. 3938/- exhibited as Ex. PW-1/14, bill no. 6007766269 dated 28.03.2013 for an amount of Rs.23540/- exhibited as Ex. PW-1/15, bill no.6007766323 dated 28.03.2013 for an amount of Rs. 5120/- exhibited as Ex. PW-1/16, bill no.6007766381 dated 29.03.2013 for an amount of Rs. 10240/- exhibited as Ex. PW-1/17, bill no.6007766426 dated 29.03.2013 for an amount of Rs.7875/- exhibited as Ex. PW-1/18, bill no. 6007766508 dated 30.03.2013 for an amount of Rs.13690/- exhibited as Ex. PW-1/19, bill no.6007766714 dated 02.04.2013 for an amount of Rs.6038/- exhibited as Ex. PW-1/20, bill no.6007766724 dated 02.04.2013 for an amount of CS SCJ 79/2016 52094/16 M/s Madura Coats Pvt. Ltd. Vs. Shri Ashok Sareen page no. 15 of 24 Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date: 2023.02.27 17:15:02 +05'30' Rs.3110/- exhibited as Ex. PW-1/21, bill no. 6007766755 dated 02.04.2013 for an amount of Rs. 111/- exhibited as Ex. PW-1/22, bill no.6007766820 dated 03.04.2013 for an amount of Rs.6448/-exhibited as Ex. PW-1/23, bill no.6007766827 dated 03.04.2013 for an amount of Rs.915/- exhibited as Ex. PW-1/24, bill no. 6007767107 dated 08.04.2013 for an amount of Rs. 10815/- exhibited as Ex. PW-1/25, bill no.6007767341 dated 10.04.2013 for an amount of Rs. 6686/- exhibited as Ex. PW-1/26, bill no.6007767716 dated 15.04.2013 for an amount of Rs.1313/- exhibited as Ex. PW-1/27 and bill no.6007767751 dated 15.04.2013 for an amount of Rs. 656/- exhibited as Ex. PW-1/28.
24. Further, the plaintiff has placed on record the certified copy of the statement of pending bills for the period from 15.03.2013 to 15.04.2013 exhibited as Ex. PW-1/3 which mentions the details of all the bills exhibited as Ex. PW-1/4 to Ex. PW-1/28. As per the said statement, the total amount due to be paid by the defendant is Rs.1,52,964.90/-. The plaintiffs has also placed on record the certified copy of the account statement maintained in the name of the defendant for the period from 01.01.2013 to 25.12.2013 exhibited as Ex. PW-1/30 supported by certificate under Section 65 B of Indian Evidence Act exhibited as Ex. PW-1/40. Perusal of the same shows that the final balance as due to be paid by the defendant is also CS SCJ 79/2016 52094/16 M/s Madura Coats Pvt. Ltd. Vs. Shri Ashok Sareen page no. 16 of 24 Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date: 2023.02.27 17:15:15 +05'30' reflected to be Rs. 1,52,964.90/-.
25. The plaintiff has asserted that the defendant had issued a cheque no. 000246 dated 26.12.2013 in discharge of his liability. However, the said cheque was returned dishonored vide return memo dated 30.12.2013 with the remarks 'exceeds arrangement'. To prove the same, the plaintiff has placed on record the certified copy of the cheque exhibited as Ex.PW-1/31, the return memo exhibited as Ex. PW-1/32 and the bank statement of plaintiff's bank exhibited as Ex. PW-1/33. The plaintiff has asserted that after the dishonor of the cheque, it prepared a debit note qua the defendant for the amount of the dishonored cheque, the same is exhibited as Ex. PW-1/38.
26. On the other hand the defendant has asserted that the said cheque exhibited as Ex.PW-1/31 was handed over to the plaintiff as a security cheque and the plaintiff had misused and forged the said cheque. He has relied upon the complaints filed by him against the plaintiff exhibited as Ex. DW-1/7, Ex. DW-1/8, Ex. DW-1/9 and Ex. DW-1/10.
27. Perusal of these complaints shows that the defendant had alleged that the plaintiff had committed forgery by filling in the details of the cheque and presenting it which had been given by the defendant to the plaintiff only as security. However, it is pertinent to note that these allegations of forgery remain only bald assertions since CS SCJ 79/2016 52094/16 M/s Madura Coats Pvt. Ltd. Vs. Shri Ashok Sareen page no. 17 of 24 Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date: 2023.02.27 17:15:29 +05'30' neither has the defendant been able to prove the same in the complaints filed by him nor has he been able to prove the same during the course of the trial in this case. The defendant did not lead any evidence or seek the assistance of a handwriting expert or any other expert opinion for the purpose of proving the forgery on the cheque alleged by him. In fact, the ATR report relied upon by the defendant marked as Mark D also finds a mention that in the Section 138 NI Act proceedings, the defendant has admitted that the amount mentioned in the cheque is in fact due and payable by him. The defendant has also relied upon the photocopy of the counterfoil of cheque books pertaining to the year 2008, 2009 exhibited Ex. DW-1/1 and the photocopy of the counterfoil of the cheque book containing cheque bearing no. 000246 exhibited as Ex. DW-1/2, where it has been specified that the said cheque was given a security to the plaintiff. However, in the absence of any cogent evidence to substantiate and prove the averments of the defendant that the said cheque was given as security, a self serving document Ex. DW-1/2 cannot assist the case of the defendant. It could have been used as a corroboratory piece of evidence if there were something material to prove the same.
28. Further, during the cross examination of the defendant, he has admitted to the fact that during notice framing in the court of Ld. NI Act, he had admitted his CS SCJ 79/2016 52094/16 M/s Madura Coats Pvt. Ltd. Vs. Shri Ashok Sareen page no. 18 of 24 CHITRANSHI Digitally signed by CHITRANSHI ARORA ARORA Date: 2023.02.27 17:16:14 +05'30' liability of the amount of cheque in question. The said admission is marked from Point A to A-1 in Ex. DW-1/P-1. Further, during cross examination, the defendant has also admitted that Ex. PW-1/4 to Ex. PW-1/28 which are the invoices bears his and his employees signatures. However, thereafter, the defendant submitted that the signature of his employee Pankaj had been forged in the invoices exhibited as Ex. PW-1/5, Ex. PW-1/6, Ex. PW-1/8 to Ex. PW-1/10, Ex. PW-1/12, Ex. PW-1/14, Ex. PW-1/15, Ex. PW-1/19, Ex. PW-1/25 and Ex. PW-1/27 as he had already left the services. However, this submission of forgery again remains unproved.
29. It is pertinent to note that at one point in the written statement the defendant has asserted that the bills are highly inflated and sham and on the other point he has admitted his signatures on the bills during cross examination. Also, in the written statement the defendant has asserted that he has already made the payment due to be paid to the plaintiff upto 30.09.2013. However, during cross examination, when he was asked to bring the statement of account pertaining to the year 2012-2013 and 2013-2014, or any statement relating to the transaction with the plaintiff, he simply stated that he cannot bring the statement relating to the transaction with the plaintiff company. The very fact that the defendants has failed and refused to bring the evidence which could have supported CS SCJ 79/2016 52094/16 M/s Madura Coats Pvt. Ltd. Vs. Shri Ashok Sareen page no. 19 of 24 CHITRANSHI Digitally signed by CHITRANSHI ARORA ARORA Date: 2023.02.27 17:16:35 +05'30' his version in the written statement, means that it can be presumed that the evience, if produced, would be unfavourable to the defendant as per Section 114 (g) of the Indian Evidence Act. This shows the inconsistencies in the case of the defendant and highlights that the defendant has pleaded a moonshine defence, since he has not been able to prove any of his assertions made in the written statement.
30. Further, Ld. Counsel for the plaintiff pointed out that in the evidence affidavit filed by the defendant he has made additional submissions in paragraph 4, 5, 7, 8, 9, 12 and 15 which do not find any mention in the written statement. Any evidence which is beyond the pleadings cannot be considered by the court. Therefore, the submissions made by the defendant which are not part of the written statement in the above mentioned paragraphs of the affidavit Ex. DW-1/A are not considered.
31. In view of the above discussion, it is clear that the defendant has failed to prove any of the assertions made in the written statement, has admitted to the invoices of the plaintiff being signed by him and admitted that he had admitted his liability for the cheque amount during notice framing by the Ld. MM NI Act.
32. Thus, on the basis of the documents filed by the plaintiff coupled with the fact that the defendant has failed to prove his assertions, there is no doubt left in my mind CS SCJ 79/2016 52094/16 M/s Madura Coats Pvt. Ltd. Vs. Shri Ashok Sareen page no. 20 of 24 CHITRANSHI Digitally signed by CHITRANSHI ARORA ARORA Date: 2023.02.27 17:16:50 +05'30' that the defendant is liable to make the payment of the cheque amount i.e. 1,52,964/- to the plaintiff.
33. The plaintiff has also claimed interest at the rate of 18% per annum from 15.04.2013 to 15.02.2016 amounting to Rs. 80306/- and pendente lite and future interest at the rate of 18% per annum. At this stage, I deem it fit to rely upon section 80 of the Negotiable Instruments. Section 80 of the Negotiable Instruments Act 1882 provides that:-
80. Interest when no rate specified.--
When no rate of interest is specified in the instrument, interest on the amount due thereon shall, 1[notwithstanding any agreement relating to interest between any parties to the instrument], be calculated at the rate of 2[eighteen per centum] per annum, from the date at which the same ought to have been paid by the party charged, until tender or realization of the amount due thereon, or until such date after the institution of a suit to recover such amount as the Court directs. Explanation.--When the party charged is the indorser of an instrument dishonoured by non-payment, he is liable to pay interest only from the time that he receives notice of the dishonour. CS SCJ 79/2016 52094/16 M/s Madura Coats Pvt. Ltd. Vs. Shri Ashok Sareen page no. 21 of 24 CHITRANSHI ARORA Digitally signed by CHITRANSHI ARORA Date: 2023.02.27 17:17:19 +05'30'
34. Therefore, as per Section 80 of the NI Act, it is clear that the plaintiff is entitled to interest at the rate of 18% per annum from the date of issue of cheque.
35. Therefore, I find it to be in the interest of justice that the plaintiff is granted interest at the rate of 18 % per annum from the date of the issuance of cheque i.e. 26.12.2013 (instead of calculating it from 15.04.2013) uptill the date of institution of the suit i.e. 26.02.2016. The plaintiff has also claimed pendente lite and future interest at the rate of 18 percent per annum. However, that appears to be at a higher side and thus, I am not inclined to grant the same. I deem it fit that interest at the rate of 9 percent per annum is granted to the plaintiff from the date of institution of the suit till the date of decree and interest at the rate of 6 percent per annum is granted from the date of deceee till the date of realisation. The plaintiff has also claimed cost of legal notice of Rs. 5,500/-. However, I am not inclined to grant the same since there is no proof of the amount of the cost incurred by the plaintiff in issuance of legal notice.
36. Accordingly, the issues no 1 and 2 stand partly decided in favour of the plaintiff and against the defendant.
Issue no. 3: Whether the suit of the plaintiff is bad for non- joinder of necessary party? OPD
37. The burden to prove this issue lies upon the CS SCJ 79/2016 52094/16 M/s Madura Coats Pvt. Ltd. Vs. Shri Ashok Sareen page no. 22 of 24 CHITRANSHI Digitally signed by CHITRANSHI ARORA ARORA Date: 2023.02.27 17:17:33 +05'30' defendant. The defendant has asserted that the suit is bad for misjoinder of necessary party, as the plaintiff has not impleaded M/s Satkartar Trading Company which is the dealership firm of the defendant. The law is well settled that the proprietorship firm is not a separate legal entity and any suit against the proprietorship firm is essentially a suit against the proprietor. Admittedly, M/s Satkartar Trading Company is the firm of the defendant and hence there was no need for the plaintiff to implead the firm separately. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
Issue no. 5:-Whether the cheque bearing no. 000246, drawn on Bank of Baroda, has been forged by the plaintiff and misused ? OPD
38. The burden to prove this issue lies upon the defendsant. However, as discussed in issue no. 1, the defendant has failed to prove that the cheque bearing no. 000246, drawn on Bank of Baroda, has been forged by the plaintiff. Accordingly, this issue stands decided in favour of the plaintiff and against the defendant.
RELIEF:-
39. In view of the aforesaid discussion, the facts and circumstances of this case, the findings given on the issues, the documents placed on record and the evidence led, the plaintiff has partly proved its case on the scale of CS SCJ 79/2016 52094/16 M/s Madura Coats Pvt. Ltd. Vs. Shri Ashok Sareen page no. 23 of 24 CHITRANSHI Digitally signed by CHITRANSHI ARORA ARORA Date: 2023.02.27 17:17:47 +05'30' preponderance of probabilities. The plaintiff is entitled to recover Rs.1,52,964/- (Rupees One Lac Fifty Two Thousand Nine Hundred Sixty Four Only) along with interest at the rate of 18% per annum from the date of issuance of the cheque i.e. 26.12.2013 till the date of institution of the suit i.e. 26.02.2016, interest at the rate of 9 % per annum from the date of institution of the suit till the date of decree and interest at the rate of 6% per annum from the date of decree till the date of realization.
40. It is clarified that the total amount to be recovered by the plaintiff in this case as well as in CC no. 50196/16 titled as "Madura Coats (P) Ltd Vs. Ashok Sareen" U/s 138 NI Act, 1881, shall be adjusted against each other and plaintiff shall not be entitled to double recovery of the amount, since the instant suit and the complaint case no. 50196/16, pertain to the same liability.
41. Cost of the suit is awarded to plaintiff.
42. Decree sheet be prepared accordingly.
43. File be consigned to record room after due compliance. Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date: 2023.02.27 17:18:00 +05'30' Pronounced in the open court (Chitranshi Arora) Today on 27.02.2023 CJ-02, South-East, Saket Court, ND CS SCJ 79/2016 52094/16 M/s Madura Coats Pvt. Ltd. Vs. Shri Ashok Sareen page no. 24 of 24