Delhi District Court
Malti Aggarwal vs M/S ProActive Marketing on 20 November, 2018
IN THE COURT OF SH. SIDHARTH MATHUR,
ADJ2 (NORTHWEST), ROHINI COURTS, DELHI.
MALTI AGGARWAL ........... Plaintiff
Through
Ms. Renu Gupta,
Advocate.
VERSUS
1.M/s ProActive Marketing.
2. Sh. L. Prakash
3. Sh. P.V.M. Sarath Babu
4. Sh. Bhupender Kumar Aggarwal ........... Defendants Through NEMO JUDGMENT
1. New No. : 7809316
2. Under Section : Recovery suit
3. Date of Institution : 29.03.2014
4. Date of Final Order : 20.11.2018
5. Final Order : Decreed.
1. The plaintiff is the wife of defendant No. 4. The defendant No. 1 is a partnership firm. Defendants No. 2 to 4 are its partners. The share of defendant No. 2 is 46% ; that of defendant No. 3 is 46% and that of defendant No. 4 is 8%. The defendant No. 4 is a sleeping partner. The defendant No. 1 firm appointed the son of the plaintiff as its C & F Agent with regard to the distribution of the Pharmaceutical bulk products. It asked for a trade deposit of Rs.40 Lacs from the son of the plaintiff and agreed to pay an interest of 9% per annum thereupon. The son of the plaintiff did not have that much money and so (CS No.78093-16) (Page No. 1/4) he asked the plaintiff to make those deposits. The plaintiff accordingly paid Rs.30 Lacs vide cheque No. 424567 and 424570 between 14.02.2009 to 03.03.2009 with the defendant No. 1 firm as per defendant No.1's account statement PW1/1. The defendant No. 1 credited the interest from 2009 to 2011 in favour of the plaintiff and also deducted TDS for the same but the interest was not paid to her. The amount alongwith the interest accrued uptill 31.03.2011 became Rs.35,35,723/. The defendant No. 1 firm was dissolved on 31.03.2011 but the due amount was not paid to the plaintiff. Hence she issued the legal notice PW1/3 on 19.03.2014 vide postal receipts PW1/4 and PW1/5 demanding the entire amount became in due uptill 19.03.2014 including the interest accruing from 01.04.2011 till 19.03.2014. It was not complied and hence the present suit for the recovery of Rs.43,65,538/ was filed on 29.03.2014.
2. The defendants No. 1 and 2 after their service did not file the WS and hence their defence was struck off on 13.05.2015.
The suit against defendant No. 3 was dismissed for nonprosecution on 29.05.2017 after the plaintiff failed to take steps for his substituted service by publication.
The defendant No. 4 filed the WS and contended that he is not liable being a sleeping partner of defendant No. 1 firm which was solely managed by defendant No. 2 and 3. He admitted the receipt of Rs.30 Lacs by defendant No. 1 from the plaintiff.
3. The issues were framed on 03.08.2017.
Defendant No. 4 was proceeded exparte on 16.07.2018 and remained so thereafter.
In support of her case, the plaintiff examined herself as PW1 vide affidavit P1 (CS No.78093-16) (Page No. 2/4) wherein the plaint was reiterated. She was not crossexamined.
The PE was closed on 16.07.2018.
ISSUEWISE FINDINGS ISSUE NO. 1 "Whether the plaintiff is entitled for recovery of Rs.43,65,538/ from the defendants with interest, as prayed for in the plaint? OPP"
4. The testimony of the plaintiff and the documents relied by her have gone unrebutted. These circumstances proves that she had paid a sum of Rs.30 Lacs to the defendant No. 1 firm and interest agreed to be accrued on the said amount was 9% per annum. The record shows that due amount became Rs.35,35,723/ inclusive of the interest uptill 31.03.2011. The plaintiff has successfully proved her entitlement to this amount of Rs.35,35,723/. However, I am not inclined to concede her claim of interest raised from 01.04.2011 till 19.03.2014 on which date she sent the legal demand notice. She has not explained as to why prompt steps were not taken by her for recovery of the due amount immediately on the dissolution of the defendant No. 1 firm on 31.03.2011. She has not explained as to why the delayed demand was made in 2014 though the cause of action had already arisen on 31.03.2011. It appears that she let the interest accrue on the due amount and send the legal demand notice just a few days prior to the expiration of the limitation to seek recovery. Hence her claim of any amount beyond Rs.35,35,723/ deserves to be declined.
The suit is within Limitation.
(CS No.78093-16) (Page No. 3/4) ISSUE NO. 2 "Whether there is no cause of action in favour of the plaintiff for
filing of the present suit against the defendant No. 4, as mentioned in the WS filed on behalf of defendant No. 4? OP on defendant No.
4."
5. The onus was on defendant No. 4. He did not lead any evidence and hence this issue is decided against him.
RELIEF
6. For the reasons assigned herein above, the suit of the plaintiff is decreed whereby, a decree for the recovery of Rs.35,35,723/ alongwith pendente lite and future interest @ 9 % per annum is passed in favour of the plaintiff and against the defendants No. 1 and 2.
No decree is passed against defendant No. 3 as the suit against him was dismissed for nonprosecution.
The plaintiff has not claimed any recovery against defendant No. 4 by terming him as the sleeping partner.
The plaintiff shall not be entitled to the costs because of her failure to take steps against defendant No. 3, the suit was dismissed against the said defendant for non prosecution. She has not prosecuted her case diligently.
The defendants No. 1 and 2 shall be jointly and severally liable. Decreesheet be accordingly prepared.
File be consigned to record room after due compliance. Announced in the Open Court on 20.11.2018 (SIDHARTH MATHUR) ADJ02 (NorthWest), Rohini, Delhi.
(CS No.78093-16) (Page No. 4/4) (CS No.78093-16) (Page No. 5/4) (CS No.78093-16) (Page No. 6/4)