Delhi High Court
M/S Diamond Tradex Company Ltd. vs M/S Ravilo Trade India Pvt. Ltd. on 14 December, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 369/2017
% 14th December, 2018
M/S DIAMOND TRADEX COMPANY LTD.
..... Appellant
Through: Mr. Gaurav Mahajan, Advocate
(9811688721)
versus
M/S RAVILO TRADE INDIA PVT. LTD.
..... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This Regular First Appeal under Section 96 of the Code of Civil
Procedure, 1908 (CPC) is filed by the plaintiff in the suit impugning
the Judgment of the trial court dated 26.12.2016 whereby the trial
court has dismissed the suit filed by the appellant/plaintiff for recovery
of Rs. 10,72,000/- along with interest although the
respondent/defendant failed to appear in the suit, and was proceeded
ex parte vide Order dated 13.10.2015 passed by the trial court, and
thus, there is no evidence led on behalf of the respondent/defendant.
2. The facts of the case are that the appellant/plaintiff pleaded that
it had a business relationship with the respondent/defendant inasmuch
as the appellant/plaintiff used to purchase raw as well as finished
diamond jewellery from the respondent/defendant. In June and July
2012, the appellant/plaintiff purchased jewellery worth Rs.
19,89,000/- from the respondent/defendant and made payment for
which the respondent/defendant also issued the Tax Invoice No. 216
dated 07.07.2012 and same was acknowledged by the
appellant/plaintiff. Since the respondent/defendant wanted to
purchase raw gold, and the appellant/plaintiff was having business
relations with respondent/defendant, appellant/plaintiff agreed to give
advance amount of Rs. 10,24,000/- by means of six cheques to the
respondent/defendant. Thereafter, six cheques given by the
appellant/plaintiff to respondent/defendant were bearing numbers
006526-006529 and 006531 of Rs. 2,00,000/- each and including
another cheque of Rs. 24,000/- bearing no. 006532 was given. The
four cheques totaling to an amount of Rs. 8,00,000/- were encashed by
the respondent/defendant but two cheques for Rs. 2,00,000/- and Rs.
24,000/- were not encashed. Since respondent/defendant failed to
supply any jewellery against the amount received by the cheques,
appellant/plaintiff asked for the jewellery and also asked for return of
the two cheques which were not encashed. The respondent/defendant
stated that the two cheques could not be returned because they were
misplaced. The appellant/plaintiff pleaded that they were shocked to
receive a notice from the court of Ld. M.M. regarding a complaint
filed in the Court under Section 138 of the Negotiable Instrument Act,
1881 and which is being contested. The appellant/plaintiff after
serving a Legal Notice dated 01.07.2015 filed the subject suit for
recovery of Rs. 8,00,000/-.
3. As already stated above, the respondent/defendant despite
service failed to appear in the suit and hence was proceeded ex parte.
Even in this appeal the respondent/defendant has not appeared despite
service. Service was endeavored to be made first in the ordinary
method which could not take place and thereafter the
respondent/defendant was served through publication in two
newspapers the 'Statesman' (English) and the 'Veer Arjun' (Hindi)
Edition of Delhi.
4. The appellant/plaintiff in ex parte evidence proved the
encashment of the cheques for a sum of Rs. 8,00,000/-. The Bank
Statement was proved as Ex. PW-1/7. The statement of account
pertaining to the period from 15.05.2012 to 01.12.2012 was proved by
PW-2. The encashment of the said cheques was also proved. The trial
court, however, dismissed the suit by holding that the cheques are
presumed to have been given for consideration and onus was upon the
appellant/plaintiff, and that the appellant/plaintiff failed to discharge
the onus that the said cheques were not given towards a legal liability.
The trial court has also noted that the case under Section 138 of the
Negotiable Instrument Act has been filed, and as per the counsel for
the appellant/plaintiff this case before the Ld. MM pertains to the two
cheques totaling to Rs. 2,24,000/-.
5. In my opinion, the trial court has erred in holding against
the appellant/plaintiff inasmuch as the principal i.e. of cheques being
given as or issued for consideration, and the concerned doctrine and
principle which is applied when a cheque is dishonoured, that when a
cheque is however encashed and the amount is credited in the account
of the payee, then in such a case, clearing of the cheques only shows
payment by the person to the payee of the cheques. Thus, in such a
case, the onus is not on the drawer of the cheque but the drawee/payee
of the cheque to explain as to how the amount received by the
payee/drawee is not repayable to the drawer of the cheque. The
drawee/payee of the cheque being the respondent/defendant therefore
had to contest the case and depose to show how the amount received
under the cheques for a sum of Rs. 8,00,000/- was an amount, which
was due and payable to the appellant/plaintiff, but in this regard the
respondent/defendant has failed as they have failed to contest the suit.
6. In view of the aforesaid facts, this appeal is allowed. The
impugned Judgment of the trial court dated 26.12.2016 is set aside and
the suit of the appellant/plaintiff is decreed for a sum of Rs. 8,00,000/-
alongwith pendente lite and future interest at 9% per annum simple
from 01.07.2015 (being the date of the legal notice) till the date of
filing of the suit and thereafter at the same rate at 9% per annum
alongwith pendente lite and future till realization. The
appellant/plaintiff will also be entitled to costs of the suit and the
appeal. Decree sheet be prepared.
DECEMBER 14 , 2018/ib VALMIKI J. MEHTA, J
