* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 369/2017
% 14th December, 2018
M/S DIAMOND TRADEX COMPANY LTD.
..... Appellant
Through: Mr. Gaurav Mahajan, Advocate
(9811688721)
versus
M/S RAVILO TRADE INDIA PVT. LTD.
..... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit impugning the Judgment of the trial court dated 26.12.2016 whereby the trial court has dismissed the suit filed by the appellant/plaintiff for recovery of Rs. 10,72,000/- along with interest although the respondent/defendant failed to appear in the suit, and was proceeded RFA No. 369/2017 Page 1 of 6 ex parte vide Order dated 13.10.2015 passed by the trial court, and thus, there is no evidence led on behalf of the respondent/defendant.
2. The facts of the case are that the appellant/plaintiff pleaded that it had a business relationship with the respondent/defendant inasmuch as the appellant/plaintiff used to purchase raw as well as finished diamond jewellery from the respondent/defendant. In June and July 2012, the appellant/plaintiff purchased jewellery worth Rs. 19,89,000/- from the respondent/defendant and made payment for which the respondent/defendant also issued the Tax Invoice No. 216 dated 07.07.2012 and same was acknowledged by the appellant/plaintiff. Since the respondent/defendant wanted to purchase raw gold, and the appellant/plaintiff was having business relations with respondent/defendant, appellant/plaintiff agreed to give advance amount of Rs. 10,24,000/- by means of six cheques to the respondent/defendant. Thereafter, six cheques given by the appellant/plaintiff to respondent/defendant were bearing numbers 006526-006529 and 006531 of Rs. 2,00,000/- each and including another cheque of Rs. 24,000/- bearing no. 006532 was given. The four cheques totaling to an amount of Rs. 8,00,000/- were encashed by RFA No. 369/2017 Page 2 of 6 the respondent/defendant but two cheques for Rs. 2,00,000/- and Rs. 24,000/- were not encashed. Since respondent/defendant failed to supply any jewellery against the amount received by the cheques, appellant/plaintiff asked for the jewellery and also asked for return of the two cheques which were not encashed. The respondent/defendant stated that the two cheques could not be returned because they were misplaced. The appellant/plaintiff pleaded that they were shocked to receive a notice from the court of Ld. M.M. regarding a complaint filed in the Court under Section 138 of the Negotiable Instrument Act, 1881 and which is being contested. The appellant/plaintiff after serving a Legal Notice dated 01.07.2015 filed the subject suit for recovery of Rs. 8,00,000/-.
3. As already stated above, the respondent/defendant despite service failed to appear in the suit and hence was proceeded ex parte. Even in this appeal the respondent/defendant has not appeared despite service. Service was endeavored to be made first in the ordinary method which could not take place and thereafter the respondent/defendant was served through publication in two RFA No. 369/2017 Page 3 of 6 newspapers the 'Statesman' (English) and the 'Veer Arjun' (Hindi) Edition of Delhi.
4. The appellant/plaintiff in ex parte evidence proved the encashment of the cheques for a sum of Rs. 8,00,000/-. The Bank Statement was proved as Ex. PW-1/7. The statement of account pertaining to the period from 15.05.2012 to 01.12.2012 was proved by PW-2. The encashment of the said cheques was also proved. The trial court, however, dismissed the suit by holding that the cheques are presumed to have been given for consideration and onus was upon the appellant/plaintiff, and that the appellant/plaintiff failed to discharge the onus that the said cheques were not given towards a legal liability. The trial court has also noted that the case under Section 138 of the Negotiable Instrument Act has been filed, and as per the counsel for the appellant/plaintiff this case before the Ld. MM pertains to the two cheques totaling to Rs. 2,24,000/-.
5. In my opinion, the trial court has erred in holding against the appellant/plaintiff inasmuch as the principal i.e. of cheques being given as or issued for consideration, and the concerned doctrine and principle which is applied when a cheque is dishonoured, that when a RFA No. 369/2017 Page 4 of 6 cheque is however encashed and the amount is credited in the account of the payee, then in such a case, clearing of the cheques only shows payment by the person to the payee of the cheques. Thus, in such a case, the onus is not on the drawer of the cheque but the drawee/payee of the cheque to explain as to how the amount received by the payee/drawee is not repayable to the drawer of the cheque. The drawee/payee of the cheque being the respondent/defendant therefore had to contest the case and depose to show how the amount received under the cheques for a sum of Rs. 8,00,000/- was an amount, which was due and payable to the appellant/plaintiff, but in this regard the respondent/defendant has failed as they have failed to contest the suit.
6. In view of the aforesaid facts, this appeal is allowed. The impugned Judgment of the trial court dated 26.12.2016 is set aside and the suit of the appellant/plaintiff is decreed for a sum of Rs. 8,00,000/- alongwith pendente lite and future interest at 9% per annum simple from 01.07.2015 (being the date of the legal notice) till the date of filing of the suit and thereafter at the same rate at 9% per annum alongwith pendente lite and future till realization. The RFA No. 369/2017 Page 5 of 6 appellant/plaintiff will also be entitled to costs of the suit and the appeal. Decree sheet be prepared.
DECEMBER 14 , 2018/ib VALMIKI J. MEHTA, J
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