Raj Kumar Maheshwai vs Jyoti Gupta & Ors.
2012 Latest Caselaw 1285 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CS(OS) 1238/2007

%                                 Judgment Delivered on: 24.02.2012

       RAJ KUMAR MAHESHWAI                            ..... Plaintiff
               Through: Mr.Subrat Birla, Ms.Praggya and
                        Ms.Nandini, Advocates

                      versus

       JYOTI GUPTA & ORS.                                         ..... Defendant
                Through:

       CORAM:
       HON'BLE MR. JUSTICE G.S.SISTANI

                   ORDER

% 24.02.2012

1. Plaintiff has field the present suit for recovery of Rs.1,20,69,545/- along with the interest @ 12% per annum from the date of institution of the suit till realization. In this case by order dated 27.03.2008 suit qua defendants No.2 and 3 has already been dismissed for want of cause of action, without prejudice to the contentions taken by the plaintiff before the criminal court. The defendant no.1 was proceeded ex parte and thereafter an ex parte decree was passed on 25.07.2008.

2. Subsequently on an application (I.A. No.6328/2009 under Order 9 Rule 13 CPC) filed by the defendant, this court by an order dated 21.10.2011 set aside the ex parte decree and granted 30 days time to the defendant to file the written statement. Appeal filed against the aforesaid order by the plaintiff has been dismissed. Despite the time having been granted by this court, no written statement has been filed till date.

3. On 18.01.2012 right of the defendant to file the written statement was closed by the Joint Registrar in the presence of defendant no.1, who had appeared in person. None is present on behalf of defendant no.1 today, neither the written statement has been filed. Accordingly, defendant is proceeded ex parte.

4. In this case the ex parte evidence has already been placed on record on the basis of which judgment/ decree dated 25.07.2008 was passed on 25.07.2008.

5. As per the plaint, plaintiff handed over jewellery worth Rs 90,50,145/- to the defendant No.1. Besides the amount of Rs 90,50,145/-, plaintiff has claimed Rs.30,19,400/- as interest accrued on the amount, till the date of institution of the suit. As per the plaint the plaintiff filed a complaint against the defendants, on the basis of which FIR No.755/2004 was registered on 30.12.2004, and all the defendants were arrested. At the time of institution of the suit the defendants No.2 and 3 were granted bail, whereas the defendant No.1 was in Jail in connection with aforesaid case. Defendant No.1 was served with the summons of the suit in jail and she appeared in custody before the court on 11.01.2008 and sought time to file the written statement. Thereafter, neither the defendant no.1 appeared before Court in person or through counsel, nor filed the written statement and vide order dated 27.03.2008 was proceeded ex parte. It may be noticed that on the file of this court a handwritten letter dated 7.05.2008 of defendant No.1, forwarded to this court through Superintendent, Central Jail, Tihar by which defendant No.1 has requested for a date after 29.08.2008, as by that time she was expecting to be released. After passing the order dated 27.03.2008, by which defendant no.1 was proceeded ex parte, plaintiff led ex parte evidence and examined himself as PW-1 and his father (Sh.Hari Prasad Maheshwari) as PW-2.

6. After the ex parte decree was set aside, none has chosen to appear again on behalf of the defendant nor any written statement has been filed. Counsel for the plaintiff has relied upon the evidence of PW-1 and his father, PW-2.

7. Plaintiff has deposed on the line of the plaint and stated 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. It has also been deposed that the defendant (Ms.Jyoti Gupta) was the neighbor of the plaintiff at Model Town, Delhi for the last 25 years and in the middle of 2004 defendant (Ms.Jyoti Gupta) had represented herself 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. PW-1 further deposed that defendant (Ms.Jyoti Gupta) represented that she gets jewellery from well established jewellers in Mumbai and Delhi and asked the plaintiff also to trust her. PW-1 has also deposed that on the representation of the defendant (Ms.Jyoti Gupta), plaintiff started giving diamond jewellery to the defendant, from time to time, on approval and credit basis as per the normal market practice. Plaintiff has proved the documents vide which the jewellery worth of Rs.90,50,145/- was handed over by the plaintiff to the defendant, as Exhibits P-1 to P-8. Plaintiff has also proved a statement of account as on 21.09.2004 bearing the approval of the defendant Ms.Jyoti Gupta, as Exhibit P-9. Exhibit P-10 is the charge-sheet filed by the police against the defendant (Ms.Jyoti Gupta) on the complaint of the plaintiff and Exhibit P-11 is the copy of the order of the Apex Court cancelling the bail granted to the defendant (Ms.Jyoti Gupta). Father of the plaintiff (PW-2) has supported the case of the plaintiff and deposed on the same lines.

8. The evidence led by the plaintiff remains unrebutted. In view of the evidence led, the plaintiff has made out a case for recovery of Rs.90,50,145/- from the defendant (Ms.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.

G.S.SISTANI, J FEBRUARY 24, 2012 ssn [PDF]