Delhi District Court
Mukesh Kumarr vs . Sanjay Suneja on 17 September, 2018
IN THE COURT OF SH. FAHAD UDDIN: CIVIL JUDGE-04:
CENTRAL DISTRICT: TIS HAZARI COURT: NEW DELHI
Civil Suit No. 600865/2016
IN THE MATTER OF:-
Sh. Mukesh Kumar
S/o Sh. Puran Chand
Chamber No. 335,
Civil Wing, Tis Hazari Courts,
Delhi- 54 ... Plaintif
Versus
1. Sh. Sanjay Suneja
S/o Dr. K.L. Suneja
Resident of D-1, Kalkaji,
New Delhi- 19
2. Sh. J.K. Mehta
S/o Late Sh. B.D. Mehta
R/o B-47, Golf View Apartments,
Saket, New Delhi-17 ... Defendants
Date of filing : 27.02.2016
Date of Institution : 29.02.2016
Date of pronouncing judgment : 17.09.2018
SUIT FOR RECOVERY OF Rs.1,18,720/-
Case No. 600865/16
Mukesh Kumarr Vs. Sanjay Suneja
Judgment dated 17.09.2018. Page no. 1 of 23
JUDGMENT
Vide this judgment, I shall dispose of the present suit filed by the plaintiff for recovery of Rs. 1,18,720/-. The brief facts necessary for the disposal of the present case may be described as under:-
PLAINTIFF'S CASE AS PER THE PLAINT.
1. It is the case of the plaintiff that the plaintiff is a practicing lawyer at Delhi and is providing professional services to his clients before different courts in Delhi since the last more than 15 years. The defendants approached to the plaintiff for legal advice with regard to their property bearing No.34, Ground Floor, Krishna Market, Kalkaji, New Delhi-19 which was in use, occupation and possession of Punjab National Bank as tenant.
After due discussion and deliberations, the defendants engaged the plaintiff as their counsel for the purpose of eviction of their tenanted premises occupied by the Punjab National Bank and duly signed the Vakalatnama in favour of the plaintiff in the chamber of plaintiff on 01.12.2014 and agreed to pay the professional charges to the tune of Rs. 90,000/- including miscellaneous charges. The defendants agreed to pay the professional charges to the plaintiff by way of cheque only as the defendants pretended themselves as income tax assesses. The plaintiff submitted that the plaintiff was also engaged by the defendant No. 1 in respect of various other cases which Case No. 600865/16 Mukesh Kumarr Vs. Sanjay Suneja Judgment dated 17.09.2018. Page no. 2 of 23 were filed by the defendant No.1 in various other courts of law at Delhi and so far as the professional fees is concerned in respect of other cases, the same continued and running from time to time. The plaintiff after taking instructions and authority by way of Vakalatnama, had instituted a suit for possession, mesne profits, damages and for permanent injunction against the Punjab National Bank on 02.12.2014. The said suit was diligently pursued by the plaintiff and was ultimately decreed by the concerned court in favour of the defendants vide Civil Suit No. 507/2014 vide judgment and decree dated 10.07.2015, within a very short span of time i.e. 7 months only. After passing of the decree dated 10.07.2015 in favour of the defendants, the plaintiff raised the bill dated 11.07.2015 to the defendants to the tune of Rs.90,000/- which was duly received and accepted by the attorney of defendants on 11.07.2015.
2. The plaintiff submitted that after obtaining eviction decree in favour of the defendants, the defendants had instructed the plaintiff to file the execution petition on their behalf for obtaining warrants of possession against the Punjab National Bank. The plaintiff made clear to the defendants that for the purpose of filling the execution petition before the executing court, the plaintiff will separately charge his professional fees. It is the case of the Plaintiff that after raising the professional bill Case No. 600865/16 Mukesh Kumarr Vs. Sanjay Suneja Judgment dated 17.09.2018. Page no. 3 of 23 by plaintiff against the defendants, the defendants were deliberately avoiding the matter of payment on one pretext or the other. For this reason, the plaintiff sent a text message dated 27.11.2015 and reminded the defendant about his professional fees to which the defendants offered to pay professional fees by way of cheque at the chamber of the plaintiff. The plaintiff submitted that the defendants mischievously and unauthorizedly illegally, deliberately or without prior negotiations with the plaintiff voluntarily assessed and reduced the professional charges of the plaintiff from Rs.90,000/- to Rs. 15,000/- as the professional charges and Rs. 5000/- for visit for the reasons best known to the defendants.
3. On 27.11.2015, the Manager of the defendant No.1 had visited the chamber of the plaintiff and handed over two cheques for Rs.15000/- and Rs.5000/- alongwith hand written note under the signatures of defendant No.1, which clearly reflects that defendants became dishonest and did not make the payment asked for by the plaintiff vide bill dated 11.07.2015. However, the plaintiff again handed over bill dated 27.11.2015 to the Manager of the defendants on the very same day who had duly received the same under his signatures in addition to the bill already furnished. It is the case of the plaintiff that inspite of receipt of the bill dated 11.07.2015 and Case No. 600865/16 Mukesh Kumarr Vs. Sanjay Suneja Judgment dated 17.09.2018. Page no. 4 of 23 27.11.2015, the defendants failed to liquidate to pay the amount to the tune of Rs.70,000/- and for this reason, the defendant voluntarily breached the terms and conditions as fixed between the parties and the defendants are jointly and severally liable for breach of contract with the plaintiff. The plaintiff also sent a legal notice dated 04.12.2015 to the defendants thereby demanding the amount of Rs.70,000/- including another bill dated 03.12.2015 towards professional charges of Rs.31,000/- in respect of execution petition arising out of Civil Suit No.507/2014 and hence, the defendants are liable to pay the following amount to the plaintiff.
1. Professional charges and Mis. Rs. 90,000/-
Expenses for filling suit No.
507/2014 vide bill dated
11.07.2015
2. Professional charges for execution Rs.31,000/-
petition vide bill dated 03.12.2015
3. Notice charges Rs. 11,000/-
Total Rs.
1,32,000/-
Less received through cheque Rs.
20,000/-
Interest on the above amount Rs.
w.e.f. December, 2015 till date 06,720/-
Total
Case No. 600865/16
Mukesh Kumarr Vs. Sanjay Suneja
Judgment dated 17.09.2018. Page no. 5 of 23
Rs.1,18,720/-
4. The plaintiff submitted that despite the service of the notice of demand, the defendant failed to liquidate the said amount to the plaintiff and sent a false reply dated 11.12.2015. Hence, in this background, the plaintiff has filed the present suit against the defendants for recovery of Rs.1,18,720/-. In the prayer clause of the plaint, the plaintiff has prayed for award of the following reliefs:-
1. A decree be passed in favour of the plaintiff and against the defendants for a sum Rs.1,18,720/- jointly and severally alongwith interest @ 24% p.a. from the date of filling of the suit till realization of the deecretal amount.
2. Cost of the suit be also awarded in favour of the plaintiff and against the defendant.
Defendant's case as per the written statement.
5. The defendants filed a joint written statement to the suit of the plaintiff wherein they denied that the defendants are indebted to the plaintiff and liable to pay a sum of Rs. 1,18,720/- or any other amount towards remaining professional fees to the plaintiff with or without interest. The defendants submitted that the defendants have made payment of Rs. Case No. 600865/16 Mukesh Kumarr Vs. Sanjay Suneja Judgment dated 17.09.2018. Page no. 6 of 23 20,000/- vide cheque bearing No. 000787 for a sum of Rs. 5,000/- and cheque bearing No. 000788 for a sum of Rs. 15,000/- both dated 26.11.2015 towards the full and final payment of fees/ expenses to the plaintiff. The defendants have made payment of entire fees/ expenses, the present suit is not maintainable and liable to be dismissed. The defendants submitted that the defendants never agreed to pay the amount towards the fees/ expenses as claimed by the plaintiff in the present suit. The defendants had engaged the Plaintiff as their counsel for filling the suit for possession, recovery of arrears of rent, mesne profit/ damages and permanent injunction against Punjab National Bank in Saket District Court, New Delhi. However, the plaintiff, though in the head note of the said suit written "Suit for possession, mesne profit, damages and permanent injunction" but did not make any prayer for the arrears of rent, mesne profit and damages in the said suit. Thus, in the absence of any prayer for arrear of rent, mesne profit and damages for illegal use and occupation, after termination of the lease, the suit of the defendants was decreed for possession only. Due to said negligence and carelessness of the plaintiff, the defendants were deprived of relief of arrears of rent, mesne profits and damages. For these reasons, the defendants had to engage another advocate to file a separate suit for recovery of mesne profits and damages in which the Case No. 600865/16 Mukesh Kumarr Vs. Sanjay Suneja Judgment dated 17.09.2018. Page no. 7 of 23 defendants again incurred the expenses for filling the fresh suit and paid the advocate's fees and other expenses. Hence, due to this reason, the defendant suffered loss of money and the plaintiff is not entitled to the suit amount from the defendants.
6. The defendants submitted that at the time of payment of fees/ expenses of Rs. 20,000/-, the representative of the defendants duly communicated to the plaintiff about disengagement of the plaintiff from the pending court cases of the defendants and requested the plaintiff to return the case files. However, the plaintiff failed to return the case files to the defendant despite repeated requests made in this regard. The defendant reiterated that the defendant never agreed to pay sum of Rs. 90,000/- towards fees including expenses to the plaintiff in the concerned case filed against Punjab National Bank. The defendant submitted that the defendant has paid the entire professional fees of the cases to the plaintiff and nothing is due as on date. The defendants denied that the plaintiff raised the bill dated 11.07.2015 for Rs. 90,000/- which was received and accepted by the attorney of the defendant on 11.07.2015. The defendants denied that they had ever authorized any person to accept any such bills. The defendants submitted that the bill dated 11.07.2015 is a false and fake document. The defendants denied that the defendants are liable Case No. 600865/16 Mukesh Kumarr Vs. Sanjay Suneja Judgment dated 17.09.2018. Page no. 8 of 23 to pay the same to the plaintiff. The defendants denied that the said bill was ever received or accepted by the defendants. The defendants denied that the plaintiff had informed the defendants that for filling the execution petition, he will separately charge his professional fees. The defendant reiterated that they had made payment of entire fees/ expenses and therefore, the plaintiff is not entitled to claim any other amount from the defendants. The defendants denied that the plaintiff had sent text message on 27.11.2015 to defendant No.1 and on 27.11.2015, messages were exchanged between the plaintiff and defendant no.1 which demonstrates that the payment of plaintiff is due against the defendant. The claim of the plaintiff is false and fabricated. The defendants denied that they had ever received or agreed to pay bill dated 11.07.2015 and 27.11.2015 and on the basis of the same, the Plaintiff is entitled to any payment from the defendants. Thus, the defendants denied the case of the plaintiff and denied their liability to pay a sum of Rs. 1,18,720/- or any other amount to the plaintiff with or without interest. Hence, the defendants prayed for dismissal of the suit of the plaintiff with exemplary costs.
Replication.
7. Replication was also filed on behalf of the plaintiff to the Case No. 600865/16 Mukesh Kumarr Vs. Sanjay Suneja Judgment dated 17.09.2018. Page no. 9 of 23 written statement filed by the defendants wherein the plaintiff denied that the defendants have made full and final payment towards the professional charges of the plaintiff. The plaintiff denied that he was negligent or careless in discharge of his professional duties towards the defendants. Rest of the averments made in the replication are not being repeated herein for the sake of brevity and suffice is to say that the plaintiff has reiterated his case as stated in the plaint and prayed for decree of the suit as prayed for in the plaint. ISSUES
8. Vide order dated 09.06.2016, the following issues had been framed for adjudication by the court in the present case.
"1. Whether the suit is beyond the territorial jurisdiction of this court? OPD.
2. Whether the plaintiff is entitled to the decree for recovery of Rs. 1,18,720/- as prayed for? OPP.
3. Whether the plaintiff is entitled to interest, if any at what rate and for what period ? OPP.
4. Relief".
Plaintif's Evidence Case No. 600865/16 Mukesh Kumarr Vs. Sanjay Suneja Judgment dated 17.09.2018. Page no. 10 of 23
9. In order to prove the case of the plaintiff, the plaintiff got examined one witness namely Sh. Mukesh Kumar (Plaintiff himself) who tendered his evidence by way of affidavit which Ex PW-1/A. The said witness relied upon the documents exhibited as Ex PW-1/1 to Ex PW-1/9 as mentioned in the evidence by way of affidavit. The details of which are as under :-
1. Certified copy of Vakalatnama dated 01.12.2014 as Ex. PW1/1.
2. Certified copy of decree sheet dated 01.07.2015 as Ex.PW-1/2.
3. Certified copy of order dated 27.03.2015 as Ex. PW-
1/3.
4. Copy of bill dated 11.07.2015 as Ex. PW1/4.
5. Hand written note as Ex. PW1/5.
6. Copy of bill dated 27.11.2015 as Ex. PW1/6.
7. Copy of notice dated 04.12.2015 as Ex. PW1/7.
8. Copy of bill dated 03.12.2018 as Ex. PW1/8.
9. Copy of reply dated 11.12.2015 as Ex. PW1/9.
Thereafter on conclusion of the cross examination of the plaintiff's witness vide order dated 22.02.2017, PE was closed. Defendant's Evidence
10. In order to disprove the case of the plaintiff, one witness was got examined by the defendant namely Sh. Sanjay Suneja (defendant no.1 herein), DW-1 who tendered his evidence by Case No. 600865/16 Mukesh Kumarr Vs. Sanjay Suneja Judgment dated 17.09.2018. Page no. 11 of 23 way of affidavit which is Ex DW-1/A. The said witness relied upon the documents exhibited as Ex DW-1/1 to Ex DW-1/2 as mentioned in the affidavit. The details of which are as under :-
1. Certified Copy of Initial suit titled as Sanjay Suneja Vs, Punjab National Bank for possession, mesne profit, damages and permanent injunction as Ex. DW1/1.
2. Certified Copy of fresh suit titled as Sanjay Suneja Vs, Punjab National Bank for recovery of Rs. 11,05,000/-
towards mesne profit and damages as Ex. DW1/2.
Thereafter on conclusion of the cross examination of the defendant's witness vide order dated 27.02.2017, DE was closed.
Findings:
11. I have heard the arguments addressed by the Ld. Counsel for the plaintiff and the defendant and have also perused the case record in detail. After hearing the submissions of the Ld. Counsel for the plaintiff as well as the defendant and perusal of material/evidence available on record, the issue wise findings of this court in the present matter are as under:
Issue no.1:-
Whether the suit is beyond the territorial jurisdiction of this court? OPD.
12. The onus to prove this issue is on the defendant. In the Case No. 600865/16 Mukesh Kumarr Vs. Sanjay Suneja Judgment dated 17.09.2018. Page no. 12 of 23 written statement in para no.9, the defendants submitted that the defendants reside and work for gain at South/South East District , New Delhi and further no cause of action has arisen to file the present suit in the territorial jurisdiction of this Court and as such the present suit is not maintainable and liable to be dismissed. In the replication, the Plaintiff has denied these facts.
In para no.11 of the evidence by way of affidavit DW-1 reiterated the same facts before the Court. It may be noted that section 15 to 20 of the Code of Civil Procedure regulate the forum for the institution of suits. Section 15 requires the Plaintiff to file a suit in the Court of the lowest grade competent to try it. Sections 16 to 18 deal with suits relating to immoveable property. Section 19 applies to suits for compensation for wrong to person or to moveable property. Section 20 is residuary section and covers all cases not dealt with by section 15 to 19. Section 20 of CPC may be reproduced as under:-
20. Other suits to be instituted where defendant reside or cause of action arises.- Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction-
(a) the defendant or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business or personally works for gain; or
(b) any of the defendants where there are more than one, at the Case No. 600865/16 Mukesh Kumarr Vs. Sanjay Suneja Judgment dated 17.09.2018. Page no. 13 of 23 time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given or the defendants who do not reside , or carry on business or personally work for gain as aforesaid, acquiesce in such institution ;or
(c) the cause of action wholly or partly arises.
13. In the case of 'ICICI Bank Ltd. v. K.P Murgesan'1, the Hon'ble Delhi High Court pleased to observed that:-Cause of action, as commonly understood, is a bundle of facts which the plaintiff must prove, if traversed, to entitle him to a judgment, in his favour, by the concerned court. Cause of action has no relation whatsoever with the defence set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. In ascertaining as to whether or not the concerned court has territorial jurisdiction, the court should take the facts pleaded in support of the cause of action into consideration without embarking upon an enquiry, at that stage, as to the correctness or otherwise of the facts so stated. In this context, the following observations of the Supreme Court made in Oil and Natural Gas Commission vs Utpal Kumar Basu & Ors. (1994) 4 SCC 711 at page 717, in paragraph 6 being apposite, are extracted hereinafter: "....6. It is well settled 1 FAO No.216/2015 decided on 06.11.2015. Case No. 600865/16 Mukesh Kumarr Vs. Sanjay Suneja Judgment dated 17.09.2018. Page no. 14 of 23 that the expression "cause of action" means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. In Chand Kour v. Partab Singh Lord Watson said: "... the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the ground set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour."
Under section 20(c) of the Code of Civil Procedure subject to the limitation stated theretofore, every suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action, wholly or in part arises. In a matter concerning a contract, there may arise various kinds of causes of action. Amongst others, the place where the contract is made, or where in the performance of the contract any money was expressly or impliedly payable, would form, a part of the cause of action.
14. In the present case in para no.15 of the Plaint, the Plaintiff has submitted that the defendants engaged the Plaintiff as their counsel in the Chamber of the Plaintiff at 335, Civil Wing, Tis Hazari Courts, Delhi. The cause of action has also arisen in Tis Hazari Courts, Delhi which falls within the jurisdiction of this Case No. 600865/16 Mukesh Kumarr Vs. Sanjay Suneja Judgment dated 17.09.2018. Page no. 15 of 23 Court. It may be noted that in their written statements in para no.10, the defendants have submitted that the representative of defendants visited the Chamber of Plaintiff and handed over two cheques amounting to Rs 20,000/- and the Plaintiff again handed over bill dated 27.11.2015 to the said representative on the same day. Thus, in view of these averments in the pleadings of the parties as well as in view of the facts and circumstances of the present case, this court is of the view that part cause of action arose within the jurisdiction of this court and consequently in terms of section 20 (c ) CPC this court has jurisdiction to entertain and adjudicate the present suit. No such evidence has been led on behalf of the defendants to show otherwise. Hence for these reasons, the issue at hand is decided against the defendants.
Issue no. 2:-
Whether the plaintif is entitled to the decree for recovery of Rs. 1,18,720/- as prayed for? OPP.
AND Issue no. 3:-
Whether the plaintif is entitled to interest, if any at what rate and for what period ? OPP.
15. For the sake of convenience both these issues are being taken up together as they are inter-connected and the onus to prove these issues is on the Plaintiff. In order to prove his case Case No. 600865/16 Mukesh Kumarr Vs. Sanjay Suneja Judgment dated 17.09.2018. Page no. 16 of 23 the Plaintiff has himself got examined as PW-1. PW-1 has tendered his evidence by way of affidavit which is Ex. PW-1/A. The statements made in the affidavit are more or less the same as stated in the Plaint. Hence the same are not being repeated herein for the sake of brevity. PW-1 has also relied upon documents Ex. PW-1/1 to Ex. PW-1/9. Ex. PW-1/1 is the certified copy of the Vakalatnama in favour of the Plaintiff executed by the defendants in case title 'Sanjay Juneja & Ors. V. Punjab National Bank & Ors.'. Ex. Pw-1/2 is the certified Copy of the decree sheet dated 10.07.2015 in the said suit for possession, Mesne profits, Damages and permanent injunction whereby the suit of the defendants was decreed only for possession and a decree for the same was drawn. It may be noted that in the said Ex. PW-1/2 i.e. certified Copy of the decree sheet dated 10.07.2015 the pleaders fees has been shown as 'Nil' which means that no pleaders fee was demanded by the Plaintiffs as well as the defendants towards cost of suit. Ex. PW-1/3 is the certified copy of the order dated 27.03.2015 which shows the presence of Sh. Sukhi Ram Tabetia as SPA of the defendants herein in the aforesaid suit. Ex. PW-1/4 is the Bill dated 11.07.2015 issued by the Plaintiff for Rs 90,000/- for advocate fees in the said suit. Ex. PW-1/5 is the hand written note of defendant no.1 regarding payment of advocate fees to the tune of Rs 20,000/- to the Plaintiff. Ex. PW-1/6 is another bill dated Case No. 600865/16 Mukesh Kumarr Vs. Sanjay Suneja Judgment dated 17.09.2018. Page no. 17 of 23 27.11.2015 issued by the Plaintiff for Rs 90,000/- and which shows payment of Rs 20,000/- by the manager of the defendants. Ex. PW-1/7 is the legal notice dated 04.12.2015 issued by the Plaintiff to the defendants for demand of remaining payment of Rs 70,000/- . Ex. PW-1/8 is another bill dated 03.12.2105 for Rs 31,000/- towards professional fee in the execution petition. Ex. PW-1/9 is the reply dated 11.12.2015, wherein the defendants denied their liability to pay Rs 70,000/- to the Plaintiff and requested the Plaintiff to return the court case files.
16. In his cross examination PW-1 stated that he had no claim against the defendants in three other complaint cases U/s 138 NI Act. The said cases were handed over to the Plaintiff prior to the case in question. In his cross examination PW-1 stated that defendant no.1 had paid a total sum of Rs 5,000/- in cash in all three cases and he had undertaken to pay the balance later on. He admitted that the defendants had instructed him to file suit for possession, mesne profits, damages and permanent injunction against the PNB. However, Ex. DW-1/2 which is the certified copy of the Plaint in the case title 'Sanjay Juneja v. PNB', suit for possession, mesne profits, damages and permanent injunction , shows that no prayer for award of mesne profits/damages was made by the Plaintiff in that case. Further Case No. 600865/16 Mukesh Kumarr Vs. Sanjay Suneja Judgment dated 17.09.2018. Page no. 18 of 23 Ex. DW-1/1 which is the certified copy of suit for recovery of Rs 11,05,000/- shows that another suit was filed by the defendants against PNB through other advocate for mesne profit/damages. In cross examination of PW-1 a specific question was asked to the said witness as to whether any written agreement in respect of professional fees was executed between the Plaintiff and the defendants in respect of the suit in question. To which PW-1 replied that only Vakalatnama was executed. He further admitted in his cross examination that there was no agreement with regard to interest on the professional charges. It may be noted that Ex. PW-1/4 is the concerned bill dated 11.07.2015 for Rs 90,000/- towards professional fee of the Plaintiff and alleged to have been received and accepted by the attorney of the defendants namely Sh. Sukhi Ram Taotia. However, the signatures of Sh. Sukhi Ram Teotia appearing on SPA dated 09.04.2012 (Ex.PW1/D1) and affixed on Ex. PW-1/4 seems to be different on comparison. Thus it cannot be said that the said Sukhi Ram Teotia accepted the said bill on behalf of the defendants. Further no other evidence has been placed on record and any other witness has been got examined which may show that the said signatures are of Sh. Sukhi Ram Teotia as alleged by the Plaintiff. All the Bills i.e. Ex. PW-1/4, Ex. PW-1/6 and Ex. PW-1/8 have been issued by the plaintiff after passing of the decree dated 10.07.2015 and no evidence has been placed Case No. 600865/16 Mukesh Kumarr Vs. Sanjay Suneja Judgment dated 17.09.2018. Page no. 19 of 23 on record by the Plaintiff which may show that at the time of execution of Vakalatnama in favour of the Plaintiff (Ex. PW-1/1) or at the time of engagement of the Plaintiff an agreement whether written or oral had been entered into between the Plaintiff and the defendants for professional charges to the tune of Rs 90,000/-. Ex. PW-1/6 bill for Rs 90,000/- signed by manager of the defendants also show the payment of Rs 20,000/- by the Manager of the defendants as stated by the defendant in Ex. PW-1/5 and PW-1/6 clearly show that the manager of the defendants had signed for cheques given for Rs 20,000/- and not for acknowledgment of liability for Rs 90,000/- as stated on the bill Ex. PW-1/6. Thus all the bills Ex. PW-1/4, Ex. PW-1/6 and Ex. PW-1/8 all seem to be self drawn by the Plaintiff. There is no evidence on record which may show that the defendants had promised to pay the professional charges to the Plaintiff to the tune of Rs 90,000/- at the time of his engagement as counsel in the suit in question. At this stage , it is worthy to note that in the Plaint the Plaintiff has stated regarding exchange of messages on 27.11.2015 between the Plaintiff and defendants regarding payment of professional fees, however, the said messages have not been shown or placed before the Court.
17. Further to disprove the case of the Plaintiff, the defendant Case No. 600865/16 Mukesh Kumarr Vs. Sanjay Suneja Judgment dated 17.09.2018. Page no. 20 of 23 no.1 got himself examined as DW-1 and tendered his evidence by way of affidavit which is Ex. DW-1/A. The statements made in the affidavit of DW-1 are not being repeated herein for the sake of brevity. Suffice is to say that the defendant has denied the case of the Plaintiff. However, in his cross examination DW-1 stated that he had duly appointed Sh. Sukhi Ram Teotia as his attorney to pursue the case in question and the SPA in his favour is Ex. PW-1/D1. He stated that he cannot identify the signatures of Sh. Sukhi Ram Teotia on Ex. PW-1/4 i.e. bill dated 11.07.2015 at point A. In his cross examination a specific question was asked to DW-1 that had he ever received the bill dated 11.07.2015 through his attorney Sh. Sukhi Ram Teotia. To this question DW-1 replied that he had received one bill through Mr. Malik when he came to the Plaintiff to make the final payment. He again stated that it is correct that he had received bill Ex. PW-1/6 only through his manager Mr. Malik on 27.11.2015 and he denied the suggestion that he had received the bill dated 11.07.2015 through his attorney Sh. Sukhi Ram Teotia. DW-1 further denied the suggestion that he is liable to pay the amount mentioned in bill Ex. PW-1/6. He stated that he first asked the Plaintiff to return his files in other cases and then he received the message for the fees from the Plaintiff.
18. Thus, on the basis of the aforesaid discussion , it may be Case No. 600865/16 Mukesh Kumarr Vs. Sanjay Suneja Judgment dated 17.09.2018. Page no. 21 of 23 said that since in terms of section 101 of the Indian Evidence Act, the initial burden to prove his case was on the Plaintiff , the Plaintiff has failed to discharge burden of proof in the present case. The said section may be reproduced as under:-
101. Burden of Proof:- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Further as per section 3 of the Evidence Act - A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers the existence so probable that a prudent man ought , under the circumstances of the particular case, to act upon the supposition that it exists.
19. Hence, this court is of the view that the Plaintiff has failed to prove his case even on the basis of preponderance of probabilities. The Plaintiff has failed to prove that any prior contract regarding payment of professional fee to the tune of Rs 90,000/- had been entered between the Plaintiff and the defendants. In Ex. PW-1/2 certified copy of decree dated 10.07.2015 no payment towards Pleaders fee was asked by the Plaintiff. All the bills Ex. PW-1/4, Ex. PW-1/6 and Ex. PW-1/8 seem to be self drawn by the plaintiff and after the conclusion of the case in question. There is no evidence which may show Case No. 600865/16 Mukesh Kumarr Vs. Sanjay Suneja Judgment dated 17.09.2018. Page no. 22 of 23 that the defendants had acknowledged their liability to the tune of Rs 70,000/- towards the Plaintiff either directly or indirectly through their agents or attorneys or agreed to pay the bills Ex.PW1/4, Ex.PW1/6 and Ex.PW1/8. Consequently, the suit of the plaintiff fails and is liable to be dismissed being without merits. Hence the issues at hand are decided against the Plaintiff.
Relief:
The suit of the Plaintiff is therefore dismissed for the reasons mentioned above.
No order as to cost. Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.Digitally signed
FAHAD by FAHAD
UDDIN
UDDIN Date: 2018.09.24
15:24:21 +0530
(Fahad Uddin)
CJ-04, Central,THC/Delhi
17.09.2018
Announced in the open Court on this the 17 th day of September, 2018 This judgment consists of 23 signed pages.Case No. 600865/16
Mukesh Kumarr Vs. Sanjay Suneja Judgment dated 17.09.2018. Page no. 23 of 23