Delhi High Court
Punjab And Sindh Bank vs Satwant Singh Kochhar And Anr. on 3 February, 2012
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 887/2003
% 3rd February, 2012
PUNJAB AND SINDH BANK ..... Appellant
Through : Mr. Puneet Verma and Mr.Gyanender
Gangwar, Advocates.
versus
SATWANT SINGH KOCHHAR AND ANR. ..... Respondents
Through : Mr. P.S. Bindra, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this Regular First Appeal (RFA) filed
under Section 96 Code of Civil Procedure, 1908 (CPC) is to the impugned
judgment of the trial Court dated 28.8.2003 decreeing the suit for recovery
of money filed by respondent No.1/plaintiff. The suit was filed for recovery
of Rs.3,30,000/- however, the same was decreed for Rs.1,54,000/- with
pendente lite and future interest @ 12% per annum simple. Out of the
amount decreed of Rs.1,54,000/-, an amount of Rs.1,29,050/- is towards the
RFA No.887/2003 Page 1 of 10
value of missing articles which were given to the appellant/defendant No.1
at the time when the premises were let out by respondent No.1/plaintiff.
2. There are two issues which are argued on behalf of the
appellant/defendant No.1 before this Court. The first aspect is that the
missing items were handed over back to the receiver and, therefore, the
appellant/plaintiff is not liable. The second aspect is with respect to the
value which is fixed by the trial court at Rs.50,000/- of the missing articles
of furniture.
3. Before considering the issues, let me mention herein the articles
which were missing when the possession of the premises were taken back by
the plaintiff/landlord/respondent No.1. These missing articles are as under:-
MISSING ITEMS AT 124, GROUND FLOOR, SUNDER NAGAR, NEW DELHI.
S. No. Name of the item/quantity Rate Approximate
(Rs.) value (Rs.)
Drawing /Dining
1. wall bracket One 300.00 300.00
2. Ceiling Fans (GEC) Two 550.00 1100.00
GALLERY
1. Glass hangings Two 300.00 600.00
Bed Room No. 2
1. Hanging globe lights Two 300.00 600.00
2. Wall Brackets One 300.00 300.00
Bed Room No. 1
1. 15" Diameter Glass plates Shades Two 500.00 1000.00
RFA No.887/2003 Page 2 of 10
2. Wall Globe bracket One 300.00 300.00
Outer Varandha
1. Hanging Globe lights Two 300.00 600.00
Bed Room No. 3
1. 15" Dia. Shades Two 500.00 1000.00
2. Globe Wall bracket One 300.00 300.00
Bed Room No. 4
1. Globe hanging lights Two 300.00 600.00
2. Globe Wall bracket One 300.00 300.00
Bath Room No. 4
1. Globe light of ceiling verandha. One 300.00 300.00
2. One complete ceiling light One 300.00 300.00
3. One light without shade ceiling One 150.00 150.00
Mezzanine Floor
1. Locked trunk with 25 curtains: One 100.00 100.00
Trunk 25 200.00 5000.00
Curtains
2. Dressing table without mirror One 1500.00 1500.00
3. Bed side tables 13 1200.00 26000.00
4. Dressing table One 3000.00 3000.00
5. Safa Chair round One 2000.00 2000.00
6. Packed Sofa Chair One 2500.00 2500.00
7. Cushioned Chair One 1000.00 1000.00
8. Corner tables Two 1500.00 3000.00
9. Arm Sofas Two 3000.00 6000.00
10. Bed with side table Two 12000.00 24000.00
11. Beds with cupboards Two 12000.00 24000.00
12. Sofas Two 2500.00 5000.00
13. Puffee packed One 1000.00 1000.00
14. Writing Table One 3500.00 3500.00
15. Shishas Four 300.00 1200.00
16. Dressing Table One 3000.00 3000.00
17. Round Chair One 1500.00 1500.00
18. Chairs without arms 20 400.00 8000.00
(broken & irreparable)
4. Learned counsel for the appellant argued that in terms of the orders
RFA No.887/2003 Page 3 of 10
dated 30.10.1991 and 22.4.1992, passed in the suit, it becomes clear that the
missing items were returned to the respondent No.1/landlord/plaintiff.
These orders read as under:-
"30.10.91
Present: Mr. S.S. Bindra with Ms.Indermeet Kaur,
for the plaintiff.
Mr. Ajit Singh, for the defendant No.1
Defendant No.2/Receiver in person.
I.A. 1407/91 in S.No. 375/90
Learned counsel for defendant No.1 states that
certain items of furniture have been traced out. Learned
counsel for the plaintiff will inspect these items of
furniture. The defendant No.1-bank will give inspection
of the furniture to the plaintiff on 12th November, 1991 at
10:00 A.M. at 12-Rajindra Place, New Delhi. Learned
counsel for defendant No.1 says that some pieces of
furniture were handed-over to the Receiver on
23.11.1987. The Receiver will file his report on this
aspect of the matter. The Receiver will be paid a further
sum of Rs.1500/- to be borne by the parties in equal
proportionate.
Learned counsel for defendant No.1 has fairly
conceded that a sum of Rs.9000/- will be deposited for
the damage caused to the property during the occupancy
of the bank. He says that the said amount will be
deposited in the Court within two weeks. This will be
without prejudice to the rights and contentions of the
parties.
List the matter on 28th January, 1992.
RFA No.887/2003 Page 4 of 10
October 30, 1991. ANIL DEV SINGH, J."
"22.4.92
Present: Ms. Indermeet Kaur for the plaintiff.
Mr. Ajit Singh for defendant No.1.
Mr. S.S. Bindra, Receiver in person.
IA 974/92 & 1407/91
Mr. Bindra, learned receiver states that he has
already inspected the property which was lying in the
basement of the premises, namely, 21, Rajendra Place,
New Delhi. Learned counsel for the plaintiff states that
inspection was conducted in her absence and without
notice. This fact is disputed by the receiver. The
receiver will re-inspect the property in presence of the
plaintiff. Let the inspection be carried out by the receiver
on May 8, 1992 at 3:30 P.M. The receiver will submit his
report within four weeks. List the matter on August 10,
1992.
April 22, 1992 ANIL DEV SINGH, J.
dkb"
5. A reference to the order dated 30.10.1991 shows that it pertains to
missing articles in two parts. The first part is with respect to the articles
which were allegedly handed over to the receiver on 23.11.1987. The
second part is with respect to the articles which were lying with the
appellant/defendant No.1 and for which inspection was to be done. So far as
the first part of the order is concerned, admittedly, there is absolutely
nothing on record, much less any report of the receiver filed pursuant to the
order dated 30.10.1991, that the appellant/defendant No.1 had in fact handed
over the missing articles to the receiver on 23.11.1987. In the absence of
any proof, the trial Court, therefore held that it cannot be said that any
missing articles were handed over back to the receiver on 23.11.1987 as
alleged by the appellant/defendant No.1.
6. So far as the order dated 22.4.1992 is concerned, it is clear that
pursuant to the said order, there never took place any inspection of the
materials which were lying with the appellant/defendant No.1. There is no
proof challenging that the so called materials which were admittedly with
the appellant/defendant no.1 were ever handed over to the landlord/plaintiff.
Accordingly, the trial Court has rightly held that the appellant/defendant
No.1 failed to prove that the missing articles were handed over to the
respondent No.1/landlord. The relevant findings of the trial Court in this
regard, and with which I agree, are contained in para 8 of the impugned
judgment which reads as under:-
"ISSUE No. I
8. This is an admitted case of the parties that
defendant no.1 was the tenant under the plaintiff and at
the time of inception of the tenancy certain furniture and
other fittings and fixtures were received by the defendant
no.1 from the plaintiff through the receiver appointed by
the Hon'ble High Court of Delhi. Admittedly defendant
no. 1 vacated the said premises on 30.1.87 in pursuance
of the Court orders and that at the time of handing over
the possession a list of missing articles of furniture etc.
was prepared and the same is Ex.PW1/3.
Plea of the plaintiff is that those missing items of
furniture etc. were never handed over by the defendant
no.1 to the plaintiff at a later date and so, the defendant
no.1 is liable to pay a sum equivalent to the value of
those goods which is estimated at Rs.1,29,050/-. The
plea of the defendant no. 1 is that the said articles/items
of the furniture were traced out later on and were handed
over to the Receiver Sh. Bhupinder Singh Performa
defendant no. 2. So, the onus is on the defendant to
prove that plea. DW.1 Sardar Mohan Singh has deposed
that some of the articles of furniture which were missing
at the time of vacating the premises on 30.1.87 were
traced out subsequently and were handed over to the
Receiver Bhupinder Singh on 23.11.87 as per the list
Ex.DW.1/1. It is noticed that Ex.DW.1/1 does not bear
signatures the said Receiver Sh. Bhupinder Singh. The
defendant should have examined the said Bhupinder
Singh Receiver to prove their plea. However, neither the
list bearing acknowledgment of receipt of articles traced
out subsequently is proved not Sh. Bhupinder Singh
Receiver is examined by defendant no.1. Perusal of the
order sheet dated 30.10.91 recorded by their Lordships
shows that on that day defendant no.1 had stated before
their Lordships that certain items of furniture etc. had
been traced out and had been handed over to the Receiver
Bhupinder Singh on 23.11.87. The Receiver was asked
to file his report on that aspect of the matter. However, it
is noticed that no such report is proved on the record.
DW.1/1 does not bear any date nor it is signed by
Receiver Bhupinder Singh, in token of having received
the missing items of furniture etc. So, Ex.DW.1/1 is not
a authentic document and does not help the defendant
no.1 in any manner.
On 30.10.91 defendant no. 1 had informed their
Lordships that certain items of furniture etc. had been
traced out. Their Lordships passed an order that the Ld.
counsel for the plaintiff shall inspect those items of
furniture etc. on 12.11.91 at 10:00AM at 12, Rajendra
Place, New Delhi and that Receiver Bhupinder Singh
shall submit his report in that regard as mentioned in
order dated 22.4.92 by their Lordships. The Receiver
Bhupinder Singh has done the inspection of the said
items of furniture etc. in the absence of plaintiff and
without notice to the plaintiff and so, their Lordships and
directed the Receiver to re-inspect the same in the
presence of the plaintiff on 3.5.92 at 3:30 PM and to
submit his report within four weeks. There is nothing on
record by the defendant that Receiver had done the
inspection of those items of furniture allegedly traced out
by defendant no.1 at a later date and that the any report
was filed by the Receiver. There is also no evidence that
any such items out of the missing items of furniture
mentioned in Ex.PW1/3 were handed over by the
defendant no. 1 to the plaintiff or to Sh.Bhupinder Singh
Receiver. So, it is proved that defendant no. 1 did not
returned the admitted missing items of furniture etc. as
mentioned in the list Ex.PW1/3 and as such defendant no.
1 is liable to pay money in lieu of missing items of
furnitures etc." (underlining added).
I, therefore, uphold and sustain the findings of the trial Court that the
missing articles were never returned by appellant/defendant No.1/tenant to
the respondent No.1/plaintiff/landlord.
7. On the second aspect of value of the missing articles, the
plaintiff/respondent No.1 had claimed the value of the missing items of
furniture at Rs.1,29,050/-. I have already reproduced the missing articles in
detail as above. The trail Court has made an honest guess work of the value
of the items at Rs.50,000/- instead of Rs.1,29,050/- as claimed by respondent
No.1/plaintiff/landlord. Considering that the missing articles, which have
been detailed as above, include various substantive items of wood such as
beds, reading table, chairs of different types, sofa sets, and so on, surely the
honest guess work of the trial Court by fixing the value of the missing
articles at Rs.50,000/- cannot be faulted with and with which I completely
agree.
8. A civil case is decided on balance of probabilities. The
preponderance of probabilities in the present case has established beyond
doubt that the missing articles were never returned back to the
respondent/landlord. The value has also been very fairly fixed of the
missing articles by the trial Court. There is therefore no ground for me to
interfere with the impugned judgment and decree.
9. In view of the aforesaid, the present appeal is dismissed, leaving the
parties to bear their own costs. Trial Court record be sent back. As the
present appeal is dismissed, the amount deposited in this Court by the
appellant be released to respondent No.1 in appropriate satisfaction of the
impugned judgment and decree. The cheque with respect to the amount
payable to the respondent No.1 be handed over to respondent No.1 through
counsel.
VALMIKI J. MEHTA, J.
FEBRUARY 03, 2012
AK
