Mukul Agarwal vs Brijesh Bahadur Singh
2016 Latest Caselaw 2045 Del

$~15
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+                                   RSA 73/2016
                                           Date of Decision: 15.03.2016
       MUKUL AGARWAL                                 ..... Appellant
                  Through:               Mr. Nishant Kishore, Adv.

                           versus

       BRIJESH BAHADUR SINGH                           ..... Respondent
                    Through:

CORAM:
HON'BLE MR. JUSTICE ASHUTOSH KUMAR

ASHUTOSH KUMAR, J. (ORAL)

CM Appl.9548/2016

1. The application is for early hearing of the second appeal.

2. The date fixed in this case is 25.04.2016.

3. Since this case is coming for the first time and the notice has not been issued to respondent, this Court is inclined to cancel the earlier date of 25.04.2016 and is inclined to hear it today.

4. The application stands allowed.

RSA 73/2016 & CM Appl.9015-16/2016

1. Mukul Aggarwal (appellant) has challenged the concurrent judgments of the Courts below namely the judgment and order dated 03.07.2013 passed by the Learned Civil Judge, South-East District,

Saket Courts, Delhi in suit no.550/2013 whereby the suit preferred by the respondent/plaintiff was decreed and the respondent/plaintiff was held to be entitled for recovering Rs.1,98,020/- from the appellant/defendant along with interest @ 6% per annum from the date of dishonour of cheque (01.10.2010) issued by the appellant/defendant on 28.09.2010, till the date of filing of the suit and interest @ 12% per annum from the date of filing of the suit till realisation of the amount as well as the cost of the suit as well as the judgment and order dated 10.12.2015 passed by the Learned Additional District Judge-02, South District, Saket Courts, Delhi, in RCA No.5/2014 whereby the judgment and order of the Trial Court has been affirmed and upheld.

2. Suit no.550/2013 was filed by the respondent/plaintiff for recovery of Rs.2,48,515.10/- along with interest as against the appellant/defendant, who is the proprietor of "Matrix Work Solutions" and had issued a cheque of Rs.1,98,020/- (Ex.PW.1/3) as part payment, out of the recoverable amount of Rs.7 lacs outstanding against him. The respondent/ plaintiff worked for the appellant/defendant as a contractor for execution of painting works which were allotted by the appellant/defendant.

3. As stated above, the appellant/defendant had issued a cheque of Rs.1,98,020/- on 01.10.2010 as part payment of the dues. When the aforesaid cheque was presented by the respondent/ plaintiff, it was returned because of "insufficient funds" in the account of the drawer (Return memo: Ex.PW.1/4).

4. A legal notice was issued to which the appellant/defendant replied but no payment was made.

5. Hence, the suit.

6. The appellant/defendant contested the suit by taking the plea in his written statement that there was no outstanding dues and that the respondent/plaintiff had been given the payments after the cheque bounced. It was averred by the appellant/defendant that on 14 occasions, payments were made between 15.12.2010 to 21.07.2011 and out of the aforesaid payments, only on two occasions, payments were made by cheque and for the other two, by demand drafts. For the 10 remaining instances of payment, the mode of payment was cash.

7. Though, it was admitted by the appellant/defendant that the cheque of Rs.1,98,020/- (Ex.PW.1/3) was issued by him but after the same was dishonoured, the dues of the respondent/plaintiff was paid in cash on different occasions and at different times as there was business relation between the two. The appellant/defendant took the plea that the respondent/plaintiff had promised to return the cheque (Ex.PW.1/3) which stood dishonoured but fraudulently, he on the pretext of having lost/misplaced it, did not return and misused it to his advantage and to the disadvantage of the appellant/defendant. It was submitted that since the issue with regard to payment of the amount of cheque was never raised between 2010 to 2011, the period during which payments were made, the suit was surely a malafide move, designed for the purposes of extorting money from the

appellant/defendant.

8. Additionally, the appellant/defendant took the plea that the respondent/plaintiff was asked for executing the painting work at two sites namely Parsvanath Exortica and Exortica Elegence but the work was not completed leading to financial losses to the appellant/defendant.

9. Based on the pleadings of the parties, the Trial Court framed the following issues on 16.10.2012:

i. Whether the plaintiff is entitled for decree for recovery of money as prayed for in the prayer clause (A) of the plaint? OPP ii. Whether the plaintiff is entitled to interest? If so, at what rate and for what period? OPP iii. Relief.

10. The case of the respondent/plaintiff before the Court below was that because of the acquaintance between the parties, the appellant/defendant gave painting work to him for which payments generally were made by cheques. When the dues swelled up to Rs.8 lacs, the appellant/defendant stopped giving work to the respondent/plaintiff and dilly dallied in making any payments. After a lot of persuasion, a cheque bearing no.062376 dated 28.09.2010 was drawn on Bank of Rajasthan Limited for a sum of Rs.1,98,020/- which cheque on presentation was dishonoured because of "insufficient funds". The appellant/defendant, on the legal notice, made payment of Rs.1 lac towards the entire dues of Rs.8 lacs, to the respondent/plaintiff but Rs.7 lacs still remained outstanding and the cheque in question was issued towards the aforesaid liability. The

cash payment of Rs.1 lac, referred to above, was not in terms of the cheque in question.

11. During trial, the respondent/plaintiff examined himself as PW.1 and reiterated the facts of the plaint. After the examination of the respondent/plaintiff, he was discharged as nobody turned up to cross examine him.

12. The appellant/defendant was proceeded ex-parte.

13. The Trial Court, taking note of the averments made in the plaint, and on perusal of Ex.PW.1/3 (a cheque of Rs.1,98,020/-) which was in discharge of the partial liability as well as the written statement of the appellant/defendant wherein there was an admission of allotment of work to the respondent/plaintiff as also the admission of issuance of a cheque (Ex.PW.1/3) and its dishonour (return memo no.Ex.PW.1/4) came to the conclusion that the cheque was issued by the appellant/defendant and the same was not respected.

14. The contention of the appellant/defendant was that the cheque amount was paid in cash on the assurance by the respondent/plaintiff that the cheque shall be returned. Since such facts were not supported by any evidence, the aforesaid defence was discarded by the Trial Court.

15. The Trial Court took note of Ex.PW.1/1 and Ex.PW.1/2, the documents which reflected that the respondent/plaintiff had executed work for more than 10 lacs at one of the sites where painting work had

to be executed. Ex.PW.1/2 is a letter dated 18.05.2011 which was issued by the appellant/defendant to Col. K.P. Singh of Parsvanath Exotica Limited, reflecting the demand raised by the appellant/defendant for the painting work. Similarly, Ex.PW.1/1 is a copy of a bill which was issued by the respondent/ plaintiff to the appellant/defendant for having performed the allotted work at Parsvanath Exotica Projects and the bill reflected an amount of more than Rs.10 lacs as balance.

16. Though the respondent/plaintiff had filed a suit for recovery of Rs.2,48,515.10/- but the Trial Court did not accept the aforesaid amount for the paucity of any evidence/proof regarding the calculation of such amount and the basis for such calculation.

17. The Trial Court had no material to come to any conclusion regarding interest over the dues and therefore, it was of the view that the claim of the respondent/plaintiff for an interest @ 18% per annum pendent lite future interest was unreasonable. The suit was therefore decreed for Rs.1,98,020/- with an interest @ 6% per annum from the date of dishonour of cheque i.e. on 01.10.2010, till the date of filing of the present suit and interest @ 12% per annum from the date of filing of the suit till realisation of the amount.

18. Before the First Appellate Court, it was urged by the appellant/defendant that the legal notice (Ex.PW.1/5) itself reflected that the respondent/plaintiff had received a sum of Rs.1 lac and therefore, the suit was misplaced. The other grounds which were

raised before the Trial Court by the appellant/defendant, were raised before the First Appellate Court also.

19. The First Appellate Court also took note of the fact that an application for condonation of delay or setting aside ex-parte decree by the appellant/defendant was dismissed. The First Appellate Court, therefore, did not agree with the contention of the appellant/defendant that the matter be sent back to the Trial Court for providing an opportunity to him or for taking additional evidence for coming to a just conclusion. The First Appellate Court was of the view that there was no scope of remand as the avenues had been closed by dismissal of an application under Order IX Rue 13 of the CPC as also the dismissal of the miscellaneous appeal.

20. The First Appellate Court did not agree, and rightly so, with the submission of the appellant/defendant that the legal notice dated 26.12.2011 (Ex.PW.1/5) was in the nature of an admission of payment of Rs.1 lac. The reason for not accepting such contentions was that the notice clearly mentioned that the amount of Rs.1 lac was with respect to another cheque and that the reply to the aforesaid notice dated 16.01.2012 (Ex.PW.1/8) also did not contain any such statement. Thus, the First Appellate Court completely rejected the plea of the appellant/defendant that the payment of Rs.1 lac was against the cheque (Ex.PW.1/3) which was dishonoured.

21. The contention of the appellant/defendant that the letter dated 18.05.2011 (Ex.PW.1/2) which was written by him at the request of

the respondent/plaintiff to M/s. Parsvanath Exotica asking the respondent/plaintiff to have a direct dealing with the party namely M/s Parsvanath Exotica Limited, actually relieved the appellant of all his liabilities, was also rejected as there was no documentary evidence with regard to such plea.

22. From the materials available on record, what cannot be disputed is the subsistence of business relationship between the appellant/defendant and the respondent/plaintiff.

23. The respondent/plaintiff clearly established his case and the Trial Court, rightly decreed the suit for the cheque amount (Rs.1,98,020/-) and not the claimed amount (Rs.2,48,515.10/-) with reasonable rate of interest.

24. This Court finds no reason to interfere with the concurrent findings returned by both the Courts below.

25. No substantial question of law has been raised in the present second appeal and hence it is liable to be dismissed.

26. Dismissed but without costs.

ASHUTOSH KUMAR, J MARCH 15, 2016 ab