Shri Sanjeev Verma vs Shri Umesh Gupta
2012 Latest Caselaw 6893 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              CS(OS)No. 2330/2000

%                                                       December 03, 2012

SHRI SANJEEV VERMA                                   ..... Plaintiff
                 Through:                 Mr. A.P. Aggarwal, Advocate.


                      versus


SHRI UMESH GUPTA                                         ..... Defendant
                               Through:

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)
1.

The subject suit has been filed by the plaintiff for recovery of

either Rs. 22.5 lacs with interest or in the alternative for 5 kgs of gold which

was delivered to the defendant for making of jewellery for the plaintiff.

2. The facts of the case are that the plaintiff on 18.9.1997 vide

challan Ex.P1/numbered 399 delivered 5 kgs of gold to the defendant for

making of jewellery items. The defendant was to get paid labour charges

and was to return the jewellery within one month. Since the defendant failed

to return the jewellery, the plaintiff served a legal notice dated

8.9.1998/Ex.P2 upon the defendant who replied to the same vide Ex.P3

dated 15.9.1998 admitting to the receipt of the gold of 5 kgs but stated that

gold was converted to jewellery which was returned to the plaintiff vide

voucher No.023 dated 30.9.1997. In reply, it was alleged that false

allegations were made against the defendant to avoid payment of the labour

charges of Rs. 79,875/-. Since the defendant failed to return the gold as

claimed by the plaintiff, the subject suit came to be filed.

3. Defendant initially appeared and filed his written statement. In

the written statement, the defence was that the gold which was received by

the defendant was returned back to the plaintiff in the form of jewellery vide

voucher No.023 dated 30.9.1997. The defendant also pleaded lack of locus

standi of the plaintiff to file the suit as M/s. J.V. Jewels was stated to be a

partnership firm and not a sole proprietorship of the plaintiff Sh. Sanjeev

Verma. The defendant also pleaded that he was not liable inasmuch as the

liability of the defendant was taken over by a company-M/s. Balaji Jewellers

Ltd. The written statement again reiterates the contents of the reply Ex.P3

that the plaintiff has filed a false claim to avoid the making of payment of

labour charges of Rs. 79,875/-.

4. The following issues were framed in this suit on 15.4.2005:-

"1. Whether the defendant manufactured and delivered back to the plaintiff jewellery out of 5000 grams of gold of 0.994 purity supplied to the former? OPP

2. In case, Issue No.1 is proved in the negative, whether the plaintiff is entitled to a decree either for the return of the gold or for a sum of Rs. 22,50,000/- representing the price of the gold supplied by him to the defendant?

3. Whether the plaintiff is also entitled to claim interest on the amount, if any, payable by the defendant? If so, at what rate and for what period? OPP

4. Relief."

An additional issue was also framed on 30.7.2010 and which

reads as under:-

"(a) Whether the suit is liable to be rejected on account of non- joinder of M/s Balaji Jewelers Ltd. as a necessary party? OPD"

5. Plaintiff has stepped into the witness box and proved his case

by filing his affidavit by way of evidence. Plaintiff has proved on record the

receipt of giving of gold of 5 kgs as Ex.P1, the legal notice as Ex.P2 and the

reply of the defendant as Ex.P3. Plaintiff was cross-examined on behalf of

the defendant by his Advocate on 2.1.2012 and in which cross-examination

the plaintiff has reiterated that M/s. J.V. Jewels is a sole proprietorship

concern of the plaintiff and that the defendant failed to deliver the jewellery

after having received gold of 5 kgs. It is further stated in the cross-

examination that the issue of payment of labour charges never arose

inasmuch as the plaintiff was not given back the jewellery which was to be

made from 5 kgs of gold which was supplied to the defendant.

6. The defendant has failed to lead any evidence. After failure to

lead evidence in spite of opportunities, ultimately the right of the defendant

to lead evidence was closed vide order dated 30.9.2010. It may be stated

that it was the defendant who was to lead evidence first because the onus of

proving the issues was on him inasmuch as the defendant admitted having

received the gold and therefore onus lay upon him to show that the jewellery

was made from the gold supplied and which jewellery was returned back to

the plaintiff. The defendant failed to discharge the onus upon him as he has

led no evidence. Defendant has also failed to appear during final arguments.

In view of the fact that the defendant has failed to lead any

evidence; that the onus of the main issues was upon him; also considering

the fact that the plaintiff has stepped into the witness box and proved his

case; I am of the opinion that the suit of the plaintiff will have to be decreed

inasmuch the defendant has failed to prove that from 5 kgs of gold jewellery

was made which was returned back to the plaintiff.

7. Plaintiff has prayed for the relief of return of gold or in the

alternative for a money decree of Rs. 22.5 lacs. Counsel for the plaintiff

today before me confines the relief for the return of the gold inasmuch as it

is argued that the relief of recovery of money will not compensate the

plaintiff because price of gold has phenomenally arisen from the year 1997

till date. Counsel for the plaintiff also relies upon Sections 7 and 8 of the

Specific Relief Act, 1963 to argue that where a specific moveable property is

given, Court can order return of the specific moveable property as per the

aforesaid Sections which provide that it should be presumed that the plaintiff

cannot be adequately compensated by money and moveable property has to

be returned to the plaintiff.

8. In view of the above, I answer the issues onus of which was on

the defendant against the defendant and in favour of the plaintiff, and the

issues of which onus was on the plaintiff are answered in favour of the

plaintiff. The suit of the plaintiff is decreed directing the defendant to return

the 5 kgs of gold to the plaintiff. Parties are left to bear their own costs.

Decree sheet be prepared.

VALMIKI J. MEHTA, J DECEMBER 03, 2012 Ne