Raj Kumar Maheshwari vs Jyoti Gupta
2008 Latest Caselaw 1144 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+
                  CS(OS) 1238/2007


%                              Date of decision :        25.07.2008


 RAJ KUMAR MAHESHWARI                               ......Plaintiff
                                      Through : Mr. Subrat Birla, Advocate




                                 Versus


JYOTI GUPTA
     ......Defendant

                                                   ex parte



CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
     1. Whether reporters of Local papers may             YES
        be allowed to see the judgment?

     2. To be referred to the reporter or not?            NO

     3. Whether the judgment should be reported           NO
        in the Digest?


RAJIV SAHAI ENDLAW, J (ORAL)


1.     The plaintiff has instituted the present suit for recovery of Rs

1,20,69,545/- along with interest at 12% per annum from the date of

institution of the suit till realization.   The suit was originally filed

against three defendants. However, the plaintiff, as recorded in the

order dated 27th March, 2008, did not press the claim against the

defendant Nos 2 and 3 and they were deleted from the array of

parties. The plaintiff claims that jewellery worth Rs 90,50,145/- was




cs(os)1238/2007                                               page no.1 of 4
 handed over by the plaintiff to the defendant No.1.           The plaintiff

besides the said amount has claimed Rs 30,19,400/- as interest

accrued till the date of institution of the suit.




2.     The plaintiff in the plaint itself stated that upon the plaintiff

discovering that the defendant No.1 had cheated the plaintiff, the

plaintiff filed a complaint against the defendants and which

complaint was converted into FIR 755 of 30th December, 2004; all

the defendants were arrested in the said case and while the

defendant Nos 2 and 3 were granted bail, the defendant No.1 at the

time of institution of the suit was in Jail in connection with the said

case. The defendant No.1 was served with the summons of the suit

in jail and while still in custody appeared before this court on 11th

January, 2008 and sought time to file the written statement.

However, the defendant, thereafter, neither appeared nor filed the

written statement and was vide order dated 27th March, 2008

proceeded against ex parte.        The plaintiff, as aforesaid, on 27th

March, 2007 withdrew the case against the defendant Nos 2 and 3

without prejudice to his rights in the criminal case against the said

defendants also.     At this stage, I must record that though the

defendant No.1 was proceeded ex parte, as aforesaid, but there is

on the file of this court a handwritten letter dated 7th May, 2008 of

the    defendant     No.1,    forwarded     to      this   court    through

Superintendent, Central Jail, Tihar in which the defendant No.1 has

requested for a date after 29th August, 2008 by which time she is

expecting to be released from custody.




cs(os)1238/2007                                             page no.2 of 4
 3.     Upon the only defendant being proceeded ex parte, the

plaintiff led his ex parte evidence and examined himself as PW1 and

his father Shri Hari Prasad Maheshwari as PW2.




4.     The plaintiff has deposed that he is a gemologist and jewellery

designer by       profession and is carrying on the business of

manufacture, export and import of gems, diamond and kundan

jewellery in the name and style of M/s Rainbow Gempex; that the

defendant was the neighbor of the plaintiff at Model Town, Delhi for

the last 25 years; that in middle of 2004 the defendant Ms Jyoti

Gupta had represented to the plaintiff that she was active in

diamond jewellery trade and had a large kitty circle of wealthy

ladies to whom she regularly supplied jewellery;          she further

represented that she gets jewellery from well established jewellers

in Delhi and Mumbai and asked the plaintiff also to trust her. The

plaintiff has further deposed that so trusting the defendant Ms Jyoti

Gupta, the plaintiff from time to time started giving diamond

jewellery to the defendant on approval and credit basis as per the

normal market practice. The plaintiff has proved as Exhibits P1 to

P8 the documents vide which the jewellery worth of Rs 90,50,145/-

was handed over by the plaintiff to the defendant. The plaintiff has

proved as Exhibit P9, a statement of account as on 21st September,

2004 bearing the approval of the defendant Ms Jyoti Gupta. Exhibit

P10 is the charge sheet filed by the police against the defendant Ms

Jyoti Gupta on the complaint of the plaintiff and Exhibit P11 is the

copy of the order of the Apex Court cancelling the bail granted to

the defendant Ms       Jyoti Gupta.   The plaintiff has deposed that




cs(os)1238/2007                                        page no.3 of 4
 defendant took jewellery worth Rs 90,50,145/- from the plaintiff.

The plaintiff has claimed interest on the aforesaid amount at 12%

per annum and claimed interest in the sum of Rs 30,19,400/- till the

date of institution of the suit.




5.     The father of the plaintiff has, in his affidavit, also supported

the case of the plaintiff.




6.     The aforesaid evidence remains unrebutted. The plaintiff has

made out a case for recovery of Rs 90,50,145/- from the defendant

Jyoti Gupta. The plaintiff has also made out a case for recovery of

interest at 12% per annum till the date of institution of the suit, the

transaction between the parties being a commercial transaction.

However, since the defendant has not contested the suit, the

plaintiff is entitled to interest at 6% per annum only from the date of

institution of the suit till realization and on the principal sum of Rs

90,50,145/- only. The plaintiff is also held entitled to costs limited to

the court fee paid by the plaintiff.      The suit of the plaintiff is

accordingly decreed.




                                           RAJIV SAHAI ENDLAW, J.

July 25, 2008. M

cs(os)1238/2007 page no.4 of 4