Delhi District Court
Shahid Hussain vs M/S Smart India Digital Services on 30 November, 2024
THE COURT OF SH. ANKIT MITTAL: CIVIL JUDGE-01:
SOUTH WEST DISTRICT: DWARKA COURT: NEW DELHI
Unique case ID No: 504/23
CNR NO. DLSW030012522023
IN THE MATTER OF :
Sh. Shahid Hussain
S/o. Sh. Kamruddin Master
R/o. H.No. B-605, 4th Floor,
J.J. Colony Hastsal, Uttam Nagar,
New Delhi-110059 ............... Plaintiff
Versus
M/s. Smart India Digital Services
Through its Director/Auth. Representative
Sh. Intizaar Malik
At: C-194, 4th Floor, Flat No. D-2,
Main Road Brahampuri,
Chauhan Banger, Delhi-110053. ................ Defendants
Date of filing : 25.04.2023
Date of Institution : 26.04.2023
Date of pronouncing judgment : 30.11.2024
SUIT FOR RECOVERY OF RS. 2,32,000/- ALONGWITH
PENDENTELITE AND FUTURE INTEREST @ 12% PER
ANNUM FROM THE DATE OF FILING OF THE SUIT TILL
REALIZATION.
JUDGMENT.
By this judgment this Court shall dispose of a suit for
recovery of money filed by the plaintiff against the
defendant. 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 plaintiff is engaged in the
Digitally
signed by
ANKIT ANKIT
Date:
MITTAL
MITTAL 2024.11.30
16:23:00
Civil Suit No. 504/23 Judgment dt 30.11.2024 Page no. 1 of 21
+0530
business of off new and refurbished Set-Top Boxes (Cable-
TV) under the name and style Self name /sole
proprietorship business at his afore said residence and also
doing a other works and earning handsomely.
2. It is averred that the defendant through it's
Director/M.D./A.R. Shri Intizaar Malik who are looking
after managing the day to day affairs of the said
Company/defendant. It is further averred that in the month
of October 2021, the defendant through its
Director/M.D./A.R. Shri Intizaar Malik offered plaintiff to
send him Set-Top Boxes (Cable-TV) against advance
payment. Plaintiff was agreed and placed an order to the
defendant for supply the Set-Top Boxes against the
advance payment of Rs. 2 Lakh from his residence. The
defendant demanded advance amount in Cash as his urgent
need and trade practices prevailing in the market from the
plaintiff and directed to arrange so that he can collect said
amount of Rs. 2 Lakh towards the delivery of Set-Top
Boxes from the plaintiff's residence and the defendant
further promised to deliver the Set-Top Boxes at plaintiff's
residence at Uttam Nagar.
3. It is also averred that on 03.10.2021, at about 8.30 PM
defendant's employee namely "Ajay" visited the plaintiff's
aforesaid premises at B-605, 4th Floor, J.J. Colony, Hastsal
Road, Uttam Nagar, New Delhi-110059, and received
advance amount of Rs.2 Lakh in the presence of Shri
Ranjeet Singh. The defendant assured my client that Set-
Top Box (Cable-TV) would be sent within fifteen days.
According to plaintiff's order, requirement and satisfaction
Digitally
signed by
ANKIT ANKIT
Date:
MITTAL
MITTAL 2024.11.30
Civil Suit No. 504/23 Judgment dt 30.11.2024
16:23:11
+0530 Page no. 2 of 21
at his destination, otherwise all aforesaid advance amount
will be returned with Interest @ 1% per month.
4. It is submitted that after expiry month of October 2021,
when the defendant failed to deliver/supply the Set-Top
Boxes (Cable-TV) as per aforesaid order, the plaintiff
regularly followed up the defendant to supply the said
material/order and lastly on 15.11.2021 the plaintiff has
cancelled the said Order and demanded return back the
said advance amount of Rs.2 Lakh with interest 1 % per
month regularly. On 08.12.2021 the defendant (Shri
Intizaar Malik MD/AR) also promised to pay the said
amount on 11.01.2022, but the defendant failed due to his
repeated false assurance.
5. Then, lastly on 07.04.2022 and 08.04.2022, defendant/Shri
Intizaar Malik sent to the plaintiff What's-app messages
from his own Mobile No. 93110 62860. As per the said
What's-app message by the plaintiff to the defendant, the
defendant has become adamant by not picking up Mobile
Phone as well as neither replied the plaintiff through
What's- app message, hence it is crystal clear that the
defendant lastly refused to pay the aforesaid advance
payment of Rs.2 Lakh to the plaintiff with intent to grab
the same.
6. It is further averred that now the defendant is liable to pay
the following amount to the plaintiff:-
(a) Principal Advance Amount 2,00,000/-
ADD: Interest 1% per month x 16 Months (+) 32,000/-
Period from (01.11.21 to 01.03.2023)
Grand Total Rs. 2,32,000/- Digitally
signed by
ANKIT
ANKIT MITTAL
MITTAL Date:
2024.11.30
16:23:18
+0530
Civil Suit No. 504/23 Judgment dt 30.11.2024 Page no. 3 of 21
7. When the plaintiff having no other alternative, got issued a
legal notice dated 27.04.2022 through his advocate by his
what's up message on 27.04.2022, which has received and
read on the same day and said legal notice sent on
27.04.2022 through Speed Post/Courier which has duly
served upon the defendant on 28.04.2022. Despite service
of the same, the defendant has neither paid the aforesaid
amount nor replied the said notice till date.
8. Hence, the plaintiff filed the present suit with the
following reliefs:
a) Pass a decree for Rs.2,32,000/- in favour of the plaintiff
and against the defendant.
b) Award pendent-lite and future interest @ 12% per
annum in favour of plaintiff.
c) Award cost of the suit in favour of the plaintiff and
against the defendant.
9. Defendant has appeared and filed the Written statement. In
the Written Statement it is submitted that the present suit
of the plaintiff is not maintainable in the eyes of law. The
plaintiff has concealed the material facts of the case from
this Hon'ble Court. Hence the plaintiffs are not entitled to
get any relief from this Hon'ble court.
10.It is further submitted that the plaintiff works as scrap
worker. It is also submitted that the plaintiff had not file
any document which shows that the plaintiff is registered
with any department like GST/ VAT, Income Tax, Service
Tax or any other competent authority. It is further mention
here that the plaintiff has not filed any purchase order as
well as any agreement regarding the alleged transaction
Digitally signed
by ANKIT
ANKIT MITTAL
MITTAL Date:
2024.11.30
16:23:26 +0530
Civil Suit No. 504/23 Judgment dt 30.11.2024 Page no. 4 of 21
before this Hon'ble Court. It is further submitted that the
plaintiff did not disclose that from which source the
plaintiff arrange this huge amount in cash because it is
very clear by the Income Tax Rules that no one can use
more than Rs. 20,000/- in cash for any transaction of sale
and purchase. The present suit filed by the plaintiff is only
for the harassment of the defendant so the present suit of
the plaintiff is liable to be dismissed on the basis of above
mention grounds.
11.It is denied that the plaintiff is engaged in the business of
old, new and refurbished set-top boxes (Cable - TV) under
the name and style of self/ sole proprietorship business at
his afore said residence and also doing a other works and
earning handsomely. However, the plaintiff works as a
scrap worker.
12.Defendant has denied the contents of para no. 3,4,5,6 and 7
of the present suit. It is also submitted that the trail of
What's-app massages alleged in this para are forge and
manipulated by the use of any application available on the
mobile phone of the plaintiff/ some other.
13. Defendant has also denied the contents of para
no.8,9,10,11,12,13 and 14 of the present suit and submitted
that the defendant did not receive any notice from the
plaintiff as well as his advocate. It is further submitted that
no such transaction has been entered between the plaintiff
and the defendant. It is further submitted that the defendant
is residing in North East Delhi and also working in the
same area. Hence, defendant denied the contents of plaint
as well and prayed for dismissal of the present suit.
Digitally
signed by
ANKIT ANKIT
Date:
MITTAL
MITTAL 2024.11.30
16:23:35
+0530
Civil Suit No. 504/23 Judgment dt 30.11.2024 Page no. 5 of 21
14. Plaintiff has also filed the replication wherein he retrieved
the contents of the plaint.
15.Issues framed on 11.03.2024 as follows:
1) Whether the plaintiff is entitled to a sum of
Rs.2,32,000/- alongwith interest @ 12% per annum from
the defendant? OPP.
2) Relief.
16.The plaintiff has examined two witnesses. Plaintiff 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. Original Legal notice dt. 27.04.2022 Ex. PW-1/1 (Colly
3 pages).
2. Original speed post receipt 28.04.2022 Ex. PW-1/2.
3. Original mobile what's app message delivery reports Ex.
PW-1/3 (Colly 2 pages).
4. Original mobile what's app message conversation
between the plaintiff and defendant Ex. PW-1/4 (Colly 14
pages)
5. Certificate U/s 65-B, Indian Evidence Act Ex. PW-1/5.
17.In the cross-examination, he deposed that as under:
"I am doing the business in cable set up box for last 20
years. I have not registered my company before any
authority. My monthly turnover is around 5-6 lacs. I am
not paying any tax. I am aware the without paying tax is
illegal offence. I am not income tax assesee. I paid Rs. 2
lacs in cash as advance for the supplying of set up box
(cable T.V. box). Earlier also, I have dealt with the
defendant and advanced money to him. I received the offer
telephonically (verbally) by the defendant. He offered me
Digitally signed
by ANKIT
ANKIT MITTAL
MITTAL Date:
2024.11.30
16:23:43 +0530
Civil Suit No. 504/23 Judgment dt 30.11.2024 Page no. 6 of 21
about 10,000 set up boxes which he would have to deliver
me in number of 2000 (in installments) boxes. I used to
maintain the stock register wherein I write the out and in
stock details. I have not filed the stock register in the
Court as I did not receive any material from the defendant
against the advance payment of Rs. 2 lacs. I do not have
any written receipt of payment of Rs. 2 Lacs. Vol. I have
mobile chat / conversation with the defendant in which he
admitted the advance payment as well as promise to return
the same with interest. As per the demand by the
defendant, I paid him Rs. 2 lacs in cash as advance against
the aforesaid material. I am aware that the cash transaction
of high amount is prohibited by Law. We have past
transactions as well in only cash. After the present case, I
am doing the business through online transactions. I am
operating my business from my residence as well. It is
correct that I do not have MCD licence qua the same. It is
wrong to suggest that there was no transactions between
the parties. It is wrong to suggest that I am doing illegal
business therefore my present suit is not maintainable.
Apart from the cable business, I am running salon for past
15-16 years. It is wrong to suggest that I am doing scrap
business in general. Vol. I am dealing in old/ new,
refurbished set up boxes (Cable T.V.). It is wrong to
suggest that I am incapable of advancing the amount of
Rs. 2 lacs against the supply of goods. I have also other
suppliers of set up boxes. I have transacted worth of Rs. 2
lacs or more earlier as well with the other party. I can file
the proof that I have transacted the deal of more than Rs. 2
lacs with the other party. I run my business only on oral
understanding and faith. Vol. Whenever I need the
transactions in writing, I take the help from my other
registered buyers. It is wrong to suggest that the evidence
affidavit filed by me is false and fabricated since the
present case is a pre planned conspiracy against the
defendant. It is wrong to suggest that I am deposing
falsely."
18.PW2 Sh. Ranjit Singh has tendered his evidence by way of
affidavit being Ex.PW2/A and he reiterated the contents of
the plaint and also relied upon the following documents:
1. Copy of Aadhar card which is Ex.PW2/1 (OSR).
Civil Suit No. 504/23 Judgment dt 30.11.2024 Page no. 7 of 21
19.In the cross-examination, he deposed as under:
"I have submitted my evidence by way of affidavit voluntarily, I know
the contents of the same. I and plaintiff are friends for the last about
17 years. I have full knowledge about the business work of plaintiff.
Plaintiff deals in old and new cable set up boxes. I am employee with
the company Hathway and also have business terms with the
plaintiff. I used to work at Uttam Nagar, Delhi. I and plaintiff have
no warehouse but plaintiff used to keep the goods at top floor of
plaintiff's house at Uttam Nagar, New Delhi. We have no employee.
The plaintiff used to transaction with the other parties in cash, in my
presence. I know that govt. has issued the guidelines for doing the
business. It is wrong to suggest that if anyone does not follow the
govt. guidelines it is deemed to be an illegal business. Plaintiff is
having whatsapp conversations with the defendant regarding the
business dealings. The defendant has also confirmed on the said
chats regarding receiving of the advance amount of Rs.2 lacs against
the supplying of cable TV setup box. Plaintiff has placed entire chats
with the defendant on record i.e. Ex.PW1/4 (colly). It is incorrect to
suggest that the plaintiff has not given advance of Rs.2 lacs to the
defendant. Defendant has himself admitted that he would pay
interest @ 1% if he will not supply the material to the plaintiff and
he will also return the advance money and same fact was
communicated to us by the defendant at his office. It is wrong to
suggest that defendant never took any amount from the plaintiff
therefore there is no question of interest to be paid by the defendant.
I alongwith plaintiff doing the entire business in cash. It is wrong to
suggest that we do business in cash in order to evade taxes. It is
correct that I and plaintiff have not paid any kind of tax to the govt.
in last 15 years. Approximately we do business of Rs.30,000/- to
50,000/- per month. I can not comment what plaintiff has deposed in
his testimony qua the business of Rs.5 lacs per month, he is doing. I
know the employee of the defendant namely Ajay who took the
advance amount of Rs. 2 lacs from the plaintiff. It is correct that I
know that the defendant is running a private limited company. The
defendant insisted upon the cash transaction though I was willing to
do the bank transaction with him. Defendant does not take online
transaction rather he insists upon cash transaction. Around 7-8
years earlier, we took the material for more than Rs. 2 lacs from the
defendant in one shot. The aforesaid amount of the deal was in the
range of Rs.7 to 8 lacs. The employee Ajay came to plaintiff's house
at Uttam Nagar to collect advance money of Rs. 2 lacs at about 8.30
pm. The advance money was given on 03.10.2021. Ajay was alone
when he came to collect the aforesaid advance money from the
plaintiff. I and plaintiff confirmed with the defendant on
telephonically before handing over the cash to Sh. Ajay on
03.10.2021 at about 8.30 pm. We did not insist upon any receipt
from Ajay since we had confirmation from the defendant. Generally
Civil Suit No. 504/23 Judgment dt 30.11.2024 Page no. 8 of 21
as a customer I buy goods without bill. Plaintiff had arranged the
amount from borrowing as well as withdrawal from the bank. We
cancelled the deal with the defendant through whatsapp message. It
is wrong to suggest that I am deposing falsely."
20.The defendant has examined one witness i.e. Sh. Intizaar
Malik S/o. Sh. Fahimuddin, partner of defendant who
tendered his evidence affidavit and exhibited the same vide
Ex.DW1/A and relied upon the following documents.
21.In the cross-examination, he deposed as under:
"I am 10th class pass. I can read and write English little bit but I am
not fluent. It is correct that the contents of my evidence affidavit
Ex.DW1/A is written in the English language. I am aware of the
contents of my evidence affidavit. I do not remember where I have
signed aforesaid evidence affidavit but as per memory it has been
signed in the premises of Hon'ble High Court of Delhi. I have
appeared before the Oath commissioner qua my evidence affidavit
and have signed the register of Oath commissioner as well. I do not
remember the exact date on which my evidence affidavit was attested
before the Oath commissioner. It is wrong to suggest that I signed
Ex.DW1/A without understanding/ knowing the contents of the same.
It is further wrong to suggest that I did not sign the register of Oath
commissioner and did not appear before the Oath Commissioner
when my Ex.DW1/A was attested that is why I cannot tell the date. I
am partner in the defendant partnership firm. Apart from me, there
are two other partners namely Sh. Mohsin and Reshma Ansari. Our
firm is Digital service provider of TV channels through Local
agents. (vol- commonly in our business trade we are know as MSO
i.e. Multi System Operator). It is wrong to suggest that we deal in
refurnished sale purchase of set top boxes (cable TV). I am working
as MSO since the year 2020 and earlier I was working as Local
cable operator w.e.f 2000 till 2020. It is wrong to suggest that I am
still working as Local cable operator (LCO). It is wrong to suggest
that my said firm also deals in sale and purchase of set top boxes
(cable TV) and for which I offered the plaintiff to purchase the set
top boxes (cable TV) in the month of October 2021. It is wrong to
suggest that I have business relations with the plaintiff. It is wrong to
suggest that I had business relation with the plaintiff and I have
transacted the business with him in cash. It is correct that I have not
file any document evidence for proving my defense with my WS or
evidence affidavit. It is wrong to suggest that I have not filed any
document which suggests business with the plaintiff as I wanted to
conceal the real facts from the court. It is correct that my mobile
number is 9311062860 and same is registered with Whatsapp and
Civil Suit No. 504/23 Judgment dt 30.11.2024 Page no. 9 of 21
also my calling number. I have not communicated with the plaintiff
through this number either through whatsapp or through call. (vol-
whatsapp chats filed by the plaintiff are false and fabricated). It is
wrong to suggest that I have communicated with the plaintiff through
aforesaid mobile number through whatsapp as well as through call. I
did not have any employee by the name of Ajay in the month of
October 2021. It is wrong to suggest that I had the employee by
name of Ajay in the month of October 2021 and his mobile number
8527858888. (vol- since I did not had any such employee therefore, I
did not know whether any such person had any such mobile number
or not). It is wrong to suggest that the above said Ajay employee
used to do the payment collections from our customers and field
work for my firm. It is wrong to say that on my instructions,my
employee Ajay took Rs.2 lacs cash from the plaintiff from his home
situated at Uttam Nagar, New Delhi on 03.10.2021 at around 8.30
pm, as advanced for sending the goods / set top boxes(cable TV).
(vol- we do not transact business in cash). It is wrong to suggest that
on 3.10.2021 at around 8.30 pm I had also a conversation on my
mobile number 9311062860 with the plaintiff, that my aforesaid
employee Ajay had received Rs. 2 lacs in cash, as advanced for
sending the goods / set top boxes(cable TV).
Q. I put to you is it correct that you have not sent any goods to
plaintiff since 3.10.2021 till date?
Ans. I do not have any business transaction with the plaintiff
therefore, there is no question of sending any goods to him.
Plaintiff did not communicate to me through whatsapp on
15.11.2021 for the cancellation of order/ deal. (vol- again no
question of such communication since I have never interacted with
the plaintiff). At this stage, the witness is shown the documents i.e.
whatsapp chats Ex.PW1/4 (colly), the witness after seeing the same
states that the number which is being reflected upon the whatsapp
corresponds to his mobile number (vol- whatsapp chats are forged
and fabricated). Further, witness after seeing the whatsapp
conversations, states that these messages were not sent by him and
the aforesaid whatsapp chats are forged and fabricated. I do not
know the plaintiff and I have never interacted with him. My office
employees received the summons alongwith plaint and documents
which were sent by the plaintiff and forwarded to my counsel,
thereafter, when I met him and saw the documents then I came to
know about the forged and fabricated whatsapp chats i.e.
Ex.PW1/4(COLLY). It is correct that I have not filed any complaint
qua the aforesaid forged and fabricated chats. At this stage the
witness is shown legal notice Ex.PW1/1 and after seeing the same
witness states that the address mentioned on the notice is correct and
belongs to him. Further, he states that he has received the aforesaid
legal notice through post. However, I have not received the same on
my whatsapp number. At this stage, witness is shown
Ex.PW1/3( colly) and after seeing the same witness states that he
Civil Suit No. 504/23 Judgment dt 30.11.2024 Page no. 10 of 21
has not received the legal demand notice on his whatsapp number. It
is wrong to suggest that I have received the legal notice on my
whatsapp number. I have not filed any complaint to my mobile
company qua whatsapp chats i.e. Ex.PW1/4 (colly). It is wrong to
suggest that Ex.PW1/4 is true and correct and same are without any
alteration and modification and based upon my and plaintiff
conversation through whatsapp. It is further wrong to suggest that
since the aforesaid whatsapp chats are true therefore, I have not filed
any complaint qua the same. It is correct that I have not filed any
complaint qua the plaintiff for filing the false and frivolous litigation
with the intent to harass me. It is wrong to suggest that plaintiff has
filed the present case on his actual claim, therefore, I had not taken
any legal action against him. It is correct that I have not replied to
the legal notice served by the plaintiff. It is wrong to suggest that I
have not replied to the legal notice of the plaintiff as I know that I
have liability towards the plaintiff. It is wrong to suggest that I have
received Rs.2 lacs cash in advance for sending the goods to the
plaintiff but I neither supplied the goods nor returned the said
advance to the plaintiff till date. It is further wrong to suggest that I
am liable to pay Rs.2 lacs alongwith interest to the plaintiff against
the said advance. It is wrong to suggest that I am deposing falsely
and my evidence affidavit is false."
22.DE was closed on 04.09.2024 and final arguments were
heard.
Issue-wise findings as under:
23. ISSUE NO.1: Whether the plaintiff is entitled to a sum of
Rs.2,32,000/- alongwith interest @ 12% per annum from
the defendant? OPP.
24.The onus to prove the same was upon the plaintiff.
25.It is well settled principle of law of Evidence that the
burden of proof in civil trial is the obligation on the
plaintiff that he would adduce evidence that proves his
claims against the defendant and is based on
preponderance of the probabilities. Under Indian law, until
and unless an exception is created by law, the burden of
proof lies on the person making any claim or asserting any
fact. A person who asserts a particular fact is required to
Civil Suit No. 504/23 Judgment dt 30.11.2024 Page no. 11 of 21
affirmatively establish it. The Supreme Court in R.V.E.
Venkatachala Gounder V Arulmigu Viswesaraswami &
V.P. Temple & another, VI(2003)SLT307 observed that
whether a civil or a criminal case, the anvil for testing of
'proved', 'disproved' and 'not proved', as defined in Section
3 of the Indian Evidence Act, 1872 is one and the same. A
fact is said to be 'proved' when, if considering the matters
before it, the Court either believes it to exist, or considers
its existence so probable that a prudent man ought, under
the circumstances of a particular case, to act upon the
supposition that it exists. It was further observed by the
Hon'ble Supreme Court of India in A. Raghavamma &
another V Chenchamma & another, AIR 1964 SC 136 ,
there is an essential distinction between burden of proof
and onus of proof: burden of proof lies upon a person who
has to prove the fact and which never shifts. Onus of proof
shifts. Such a shifting of onus is a continuous process in
the evaluation of evidence. Further, the Hon'ble Apex
Court in the Rangammal V Kuppuswami and others, Civil
Appeal No 562 of 2003 observed that burden of proof lies
on the person who first asserts the fact and not on the one
who denies that fact to be true. Thus, it can be said that the
burden of proving the facts rests on the party who
substantially asserts the affirmative issues.
26.Now keeping the aforementioned legal principles of onus
of proof and burden of proof in the mind, let's advert to the
facts of the present case. During trial, the plaintiff entered
into witness box as PW 1 and deposed the contents of his
pleadings in his examination in chief. Further, he also
Civil Suit No. 504/23 Judgment dt 30.11.2024 Page no. 12 of 21
examined Sh. Ranjit Singh as PW-2, who also supported
the plaintiff's version. Further, in order to prove the
business transaction between the parties, plaintiff also
brought on record the whatsapp conversation between the
parties Ex.PW1/4 (colly 14 pages) alongwith the certificate
under Section 65-B, Indian Evidence Act Ex. PW1/5 and
legal notice dated 27.04.2022 Ex. PW1/1 (colly) alongwith
whatapp screenshot qua the delivery of aforesaid legal
notice ie Ex. PW1/3 ( colly 2 pages) and original speed
post receipt dated 28.04.2022 ie Ex PW1/2.
27.Primarily, the case of plaintiff was that the defendant
through its director/ AR Mr. Intizaar Malik approached the
plaintiff in the month of October, 2021 and offered to sell
him Set Top boxes against the advance payment of Rs. 2
lakhs, to which plaintiff agreed. Further, it was stated on
the behalf of the plaintiff that defendant demanded the
aforesaid advance payment of Rs. 2 lakhs in cash and, on
3.10.2021 about 8.30 PM, defendant's employee namely
Sh. Ajay visited the plaintiff's residence and received the
advance payment of Rs. 2 lakhs in the presence of PW-2
Mr. Ranjeet Singh. Furthermore, it was argued that the
defendant had assured the plaintiff that either Set Top
Boxes would be sent within 15 days/ lastly till 31.10.2021
as per order or advance amount will be returned with
interest @ 1 % per month. It was further submitted that
after the expiry of month October 2021, when defendant
failed to deliver the Set Top Boxes, then after regular
follow up, plaintiff finally cancelled the said order and
demanded his advance amount alongwith interest, however
Civil Suit No. 504/23 Judgment dt 30.11.2024 Page no. 13 of 21
despite several assurances by defendant and opportunities
given by the plaintiff, defendant failed to repay the
amount, hence plaintiff was constrained to file the present
suit.
28.Now, in order to prove the business transaction and
liability of the defendant, plaintiff has relied upon the
testimonies of himself as well as of Mr. Ranjeet
Singh/PW2. Further, upon the perusal of both testimonies,
it reveals that both witnesses have corroborated each other
in material aspects and reiterated the pleadings of the
plaint. It is further relevant to mention here that
defendant's side has failed to elicit any contradictory
answers from the plaintiff or from his witness or has
unable to impeach the credibility of the witnesses. Again,
in order to prove the transaction in question, plaintiff has
placed on record the whats app conversations between the
parties along with certificate under Section 65-B of Indian
Evidence Act. It is important to note that upon the perusal
of the aforesaid conversation, it becomes the evident that
there is demand of money throughout by the plaintiff in the
aforesaid conversation and there is repeated requests for
time by the defendant for making repayment. Further, it is
pertinent to mention here that not even a single question or
suggestion has been asked by the defendant side to the
plaintiff witnesses in their cross examination over the
genuineness/ contents of the whats app conversation
between the parties.
29.Further, the factum that testimony in respect of whats app
conversations between the parties has went unchallenged
Civil Suit No. 504/23 Judgment dt 30.11.2024 Page no. 14 of 21
and the same becomes more material especially when the
aforesaid whatsapp conversations have also been
specifically pleaded in the para no.7 of the plaint.
Furthermore, PW-2 Mr. Ranjit Singh has also specifically
stated in his cross examination that the defendant has
admitted the transaction and liability in the aforesaid whats
app chats, however, even then also no specific suggestion
or denial was put forward by the defendant's side in the
cross-examination of PW2. Hence, it can be said that by
virtue of aforesaid evidence plaintiff has fairly able to
establish the transaction in question between the parties
and liability of repayment of defendant.
30.Further, it is settled law that if the plaintiff, before filing
the suit, makes serious assertion in the notice to the
defendant, then the defendant must not remain silent by
ignoring to reply, if he does so, an adverse inference may
be raised against him.
31.In Metropolis Travels and Resorts (I) Pvt. Ltd. Vs. Sumit
Kalra & Anr. 98 (2002) DLT 573 (DB), wherein, Hon‟ble
Division Bench of our Hon'ble High Court of Delhi
quoted with approval the authority Kalu Ram Vs. Sita
Ram, 1980 RLR (Note) 44, of our own Hon‟ble High
Court which is as follows:-
"Observations of Kalu Ram's case (supra) apply on all
force to the facts of this case. In the case in hand also
despite receipt of notice respondent did not care to reply
nor refuted the averments of demand of the amount on the basis of the invoices / bills in question. But the learned Trial Court failed to draw inference against the Civil Suit No. 504/23 Judgment dt 30.11.2024 Page no. 15 of 21 respondents."
32.In the light of above findings, it can said that from discussion above, it is apparent that when the legal notice was served upon defendant and if he chooses not to reply the same then the adverse inference can be drawn against the defendant. Adverting to facts of the present case, it is admitted by the defendant that he has received the legal demand notice in his cross examination dated 04.09.2023. Further, it is not a case of the defendant that he has replied to the aforesaid legal notice. Hence, an adverse inference can be drawn against the defendant that he deliberately avoided the reply to legal notice.
33.Therefore, it can be said from the above discussion in the afore going paras of this judgment that the plaintiff has been successful in establishing his case that he has to recover the amount in question from the defendant.
34.Per contra, the defendant side has vehemently denied all the submissions/ pleadings made on the plaintiff. Further, in order to prove its version, Mr Intizar Malik appeared on behalf of defendant entered into witness box as DW1 and deposed his evidence of affidavit ie Ex. DW1/A. Furthermore, Defendant has disputed the liability on the grounds on multiple grounds. Firstly, it was argued that defendant is not dealing with the sale - purchase of Set Top Boxes rather it is in business of Multi System operator and denied the suggestion as well in the cross examination of DW1 that defendant is in business of Set Top boxes, however no where in the written statement filed on the behalf of defendant, the aforesaid defence has been taken, Civil Suit No. 504/23 Judgment dt 30.11.2024 Page no. 16 of 21 so it can be said that the defendant is leading the evidence outside the scope of its pleadings. Further, it is relevant to mention that the sole purpose of pleading is to bind the parties to stand, therefore when the plaintiff makes certain allegations, the Defendant is supposed to disclose his defence to each and every allegations specifically and state true facts to the court and once facts are stated by both the parties, the court has to frame issue and ask the parties to lead evidence. It is well settled law that the parties can lead evidence limited to their pleadings and parties while leading evidence cannot travel beyond the pleadings. If parties are allowed to lead evidence beyond pleadings then, the sacrosancy of pleadings come to an end and the entire purpose of filing pleadings also stands defeated. Further, the other purpose behind this is that no party can be taken by surprise and new fact cannot be brought through evidence which has not been stated by the Defendants in their WS. The law provides a procedure for amendment of pleadings and if there are any new facts which parties wanted to bring on record, parties can amend pleadings, but without amendment of pleadings, parties cannot be allowed to lead evidence beyond pleadings. Thus, the aforesaid defence of defendant cannot be sustained in the eyes of law, hence same is dismissed.
35.Secondly, the defendant has relied upon the provisions of Income Tax Act, wherein no person has been allowed to transact in cash for more than Rs. 20,000/-. Thus it was argued on behalf of defendant, since it is case of plaintiff that he gave Rs. 2 Lakhs in cash to the defendant and same Civil Suit No. 504/23 Judgment dt 30.11.2024 Page no. 17 of 21 is prohibited by Law therefore the present suit should be dismissed as it is filed for recovery of amount which is not legally recoverable.
36.It is relevant to state that the Section 269 of Income Tax Act provides for mode of taking and accepting certain loans and deposits and stipulates that no loan or deposit of an amount more than Rs.20,000/- shall be made otherwise than an Account Payee Cheque or Account Payee Bank Draft. Further, Section 271(d) of the Income Tax Act provides that in case Section 269SS is not complied with, such person shall be liable to pay by way of penalty a sum equal to the amount of loan or deposit so taken or accepted. The bare perusal of these two Sections makes it evident that the loan transaction itself is not rendered illegal if made in cash. If such cash transactions only entails penalty; the transaction of loan per se does not become illegal.
37.Further, reliance can be placed upon the judgment passed by the Hon'ble Delhi High Court in the case of Bijender Sharma Vs. AnilCS DJ No. 1430/17 Neeraj Puri vs Sachin Tomar Page 5 of 10Sabharwal in Crl. Rev. P. 388/2017 decided on 14.09.2017 wherein it observed that an amount of Rs.50 lacs given in cash which is not reflected in Income Tax Return, may attract penalty, but it would not make such loan unrecoverable. Merely because the loan transaction was in cash, it cannot be presumed that there was no legally enforceable debt.
38. Also in the case of Mukesh Gupta Vs. P.K. Bajaj & Anr.
In CS(OSA) No.1615 of 2003 decided on 20.11.2006, the Civil Suit No. 504/23 Judgment dt 30.11.2024 Page no. 18 of 21 Hon'ble Delhi High Court again noted that any loan transaction which is made in contravention of Section 269 SS or which is not recorded in Income Tax Returns, would not make it void and the debt cannot be held to be not recoverable.
39.Similarly, in Shri Shyam Sunder Vs. Sohan Singh @ Shoban Singh RFA 189/2015 decided on 22.02.2018, Hon'ble High Court of Delhi observed that Section 269SS and Section 269Tdo make it compulsory for persons to accept loan or deposits of Rs.20,000/- or more only through proper banking channels. The consequence of not doing so is to fasten the parties with the penalty under the Income Tax Act, 1961 and either party could go to the Income Tax Authority for such violation and the Authority is free to take action against erring party. However, such cash transactions per se do not become illegal or non- recoverable. Thus, loan may have been taken in cash, but that per se would not make it illegal or not recoverable.
40.In the light of aforesaid legal authorities, it can be said that if there is any violation of provisions of Income Tax Act, the correct remedy will lie before concerned authorities, however by mere fact that provisions of Income Tax Act were violated, will not render the transaction in question void per se. Hence, aforesaid objection is also dismissed.
41.Thirdly, it was argued that the plaintiff has relied upon the whats app conversation for basing his claim, however upon perusal of same reveals that no where defendant has accepted the liability of Rs. 2,00,000/- or any type of business transaction. Further, it was submitted that whats Civil Suit No. 504/23 Judgment dt 30.11.2024 Page no. 19 of 21 app chatting is not primary evidence also. Thus, it was argued that plaintiff has failed to prove any business transaction between the parties or any liability of the defendant.
42.It is pertinent to mention here that, in the present case the fact that whats app chats are primary evidence or not is not bone in contention, since, it can be said from the submissions as well pleadings on behalf of defendant that they have been deemed to be admitted the whatsapp conversation between the parties. Again it is being observed that no question or suggestion whatsoever have been asked by the defendant's side in the cross- examination of the witnesses in relation to whatsapp conversation between the parties. Further, it is pertinent to mention here that the defendant has also admitted that the whatsapp mobile number of the chats in question also belongs to him, thus, it can be said that the onus to prove that the aforesaid whatsapp conversation was forged and fabricated was shifted upon the defendant and same cannot be discharged by merely denying that the aforesaid whatsapp conversation is not genuine. Again it is important to note that it is submitted on behalf of the defendant that there is no clear cut admission by the defendant that he has to pay Rs.2,00,000/- to the plaintiff in the aforesaid whatsapp conversation, therefore, same fails to prove the liability of the plaintiff. The aforesaid objection is also devoid of merit since there is repeated demand of money by the plaintiff to which defendant has repeatedly seeking time for making the payment. Therefore, the question Civil Suit No. 504/23 Judgment dt 30.11.2024 Page no. 20 of 21 arises that in absence of any business transaction or personal dealings between the parties, then why defendant was seeking the time for making the payment which has not been addressed by the defendant's side. Therefore, the aforesaid objection is also dismissed.
43.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 the plaintiff has been successful in order to establish that he has to recover the amount of Rs 2,32,000/- from the defendant.
44.Accordingly, aforesaid issue is decided against the defendant and in favour of plaintiff. In the light of above discussion, plaintiff is entitled to decree of Rs. 2,32,000/- with the interest @ 6 % p.a. from the date of filing of the suit till the date of actual realization of the decreetal amount.
45.Costs of the suit are also awarded in favour of the plaintiff.
46.Decree sheet be prepared accordingly, upon the payment of deficient court fees, if any.
47.File be consigned to Record Room after compliance with due formalities.
ANNOUNCED IN THE OPEN Digitally signed by COURT ON 30.11.2024 ANKIT ANKIT MITTAL MITTAL Date:
2024.11.30 16:23:56 +0530 (ANKIT MITTAL) CIVIL JUDGE-01(SW)/DWARKA COURTS NEW DELHI Civil Suit No. 504/23 Judgment dt 30.11.2024 Page no. 21 of 21