Sh. Jugal Kishore vs Haji Malik Ghulam Ahmed Shah & Anr.
2009 Latest Caselaw 4114 Del

         *             HIGH COURT OF DELHI : NEW DELHI

+                      C.S. [OS] No.1304 /2008

                                 Reserved on:     23rd September, 2009

%                                Decided on:      12th October, 2009

Sh. Jugal Kishore                                    ...Plaintiff
                       Through : Mr. J.C. Mahindru, Adv.

                       Versus

Haji Malik Ghulam Ahmed Shah & Anr.                    ....Defendants
                   Through : None
Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                  No

2. To be referred to Reporter or not?                               No

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

MANMOHAN SINGH, J.

1. The plaintiff has filed the present suit for recovery of

Rs.44,69,897.92 and pendente lite and future interest @18% p.a. from

the date of the suit till the realization of the amount against the

defendants.

2. The plaintiff alongwith Sh. Ramnik Singh, Sh. Rohit Jaggi

and Sh. Mohd. Yousuf Thokar had been dealing in sale of fruits etc.

under the name and style of M/s. Delhi Pulwama Shopian Fruit

Company at C-19, New Subzi Mandi, Azadpur, Delhi during the period

from 1.4.2000 to 31.3.2002.

3. The case of the plaintiff is that he along with Sh. Ramnik

Singh, Sh. Rohit Jaggi and Sh. Mohd. Yousuf Thokar entered into a

contract with the defendants for supplying apples to them for sale in

New Azadpur Mandi, Delhi and had paid substantial amounts to the

defendants for procuring apples from the farmers/apple growers.

4. Due to financial losses in the business, Sh. Ramnik Singh,

Sh. Rohit Jaggi and Sh. Mohd. Yousuf Thokar backed out of the said

dealing of the firm qua the defendants and thereafter the defendants

became answerable only to the plaintiff. It is averred that the

defendants failed to pay the amount due to the plaintiff but

acknowledged a debt of Rs.21,47,897.92 due to the plaintiff on 22nd

June, 2002 in the presence of one Sh. Mohd. Abdullah Naikoo and

promised to pay the amount to the plaintiff within a short span of time.

However, the plaintiff recovered an amount of Rs.3,000/- from the

defendants on 31st May, 2005 who again acknowledged the debt due to

the plaintiff by them under the signatures of defendant No.2 in the

presence of Major Vikas and promised to pay the amount shortly. The

plaintiff sent a representative namely Sh. Bhog Raj Sehgal to Dhanew

Kandimarg to collect the payment after calling the defendants to pay the

amount on 7th September, 2005 but he was thwarted and was not given

any payment by the defendants. The defendants again gave an assurance

to clear the aforesaid debt in October/November, 2005.

5. It is alleged that the defendant No.2 filed a false complaint

against the plaintiff under Section 420 of Indian Penal Code,

1860 which was dismissed on 3rd March, 2008. The defendants also

filed another complaint from Sh. Bashir Ahmed Malik who was their

Asami which was dismissed on 3rd March, 2008. The plaintiff thus filed

the present suit claiming an amount of Rs.21,47,897.92 as the principal

amount and interest on the above @18% p.a. which comes to

Rs.23,22,000/-.

6. Summons were issued in the suit on 16th July, 2008. The

defendants refused to accept service of summon sent by registered AD

post and were therefore proceeded ex parte vide order dated 6 th April,

2009.

7. The plaintiff has produced evidence by way of affidavit of

Mr. Bhog Raj Sehgal, PW-2. He also filed his evidence appearing as

PW-1. PW-2 supported the case of the plaintiff fully. The plaintiff

proved on record the letter dated 22nd June, 2002 wherein the defendant

No.1 acknowledged his liability to the tune of Rs.21,47,897.92 due

towards the plaintiff by proving his signatures at point 'A' and

defendants' signatures at point 'B'. He also proved the copy of the

original acknowledgement receipt signed by defendant No.2 at point 'C'

as Ex. PW-1/1 for an amount of Rs.3,000/- received by him from the

defendants on 31st May, 2005 towards expenses at Dhanew Kandimarg

when the defendants again acknowledged the outstanding amount due

to the plaintiff.

8. It is also proved that Sh. Bhog Raj Sehgal was sent for

collecting the payment on behalf of the plaintiff when the defendants

sent a letter duly signed by defendant No.1 exhibited as Ex.PW1/2 and

gave an assurance to pay the aforesaid debt in October or November,

2005. Telephonic communications by the plaintiff requesting the

defendants to pay the aforesaid debt were tape recorded on 3rd April,

2009 and 23rd April, 2009 and are exhibited as Ex. PW-1/6 and PW-1/7

in the form of CDs. Certain letters sent by the plaintiff to the defendants

requesting and demanding the aforesaid amount are also exhibited as

Ex. PW-1/3.

9. The case of the plaintiff has gone unrebutted. The

defendants refused to receive summons sent to them by registered AD

post. The plaintiff has proved on record the amount of Rs.21,47,897.92

due to him by the defendants. PW-2 Sh. Bhog Raj Sehgal also

supported the plaintiff's case. Thus, I pass a decree in favour of the

plaintiff and against the defendants for a sum of Rs.44,69,897.92

alongwith pendente lite and future interest @ 6 % from the date of suit

till the realization of the amount. The plaintiff is also entitled to the

costs. Decree be drawn accordingly.

MANMOHAN SINGH, J.

OCTOBER 12, 2009 SD