Delhi High Court
Tilak Sondhi vs Dev Chandra Jha on 10 April, 2019
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 7th February, 2019.
Date of decision: 10th April, 2019
+ RFA 495/2017
TILAK SONDHI ..... Appellant
Through: Mr. Vikas Arora and Ms. Radhika
Arora, Advocates. (M: 9811414440).
versus
DEV CHANDRA JHA ..... Respondent
Through: Mr. Satender Sharma, Mr. Nityanand
and Mr. Sachin Tyagi, Advocates.
(M: 9810254366).
CORAM:
JUSTICE PRATHIBA M. SINGH
JUDGMENT
Prathiba M. Singh, J.
1. The present appeal has been filed challenging the decree and
judgment passed in a suit filed under Order XXXVII CPC. The
Respondent/Plaintiff (hereinafter, „Plaintiff‟) is a supplier of fruits and
vegetables to the Appellant/Defendant (hereinafter, „Defendant‟), which
runs a hotel, namely, Hotel Cross Roads, Sector 15, Part-II, Chandan Nagar,
Near IIT College, Gurgaon- 122001. The case of the Plaintiff is that it made
continuous supplies of fruits and vegetables to the Defendant for its hotel,
upto 31st December, 2015 and payment of a sum of Rs.7,64,171/- remained
outstanding. The Plaintiff relies on copies of the bills, vouchers, ledger
accounts, etc, which, according to the Plaintiff, bear the acknowledgement
of the Defendant.
2. The reliefs prayed for in the suit are as under:
(a) To pass a decree of Rs. 7,64,171/- (RUPEES
SEVEN LAC SIXTY FOUR THOUSAND ONE
HUNDRED SEVENTY ONE ONLY) in favour of
the plaintiff and against the Defendant;
(b) Award pendentelite and future interest @ 18%
per annum from the date of institution of the
present suit till the realization of the decretal
amount in favour of the plaintiff and against the
defendant.
(c) Cost of the suit and litigation charges also may
be awarded in favour of the plaintiff and against
the defendant."
3. The Trial Court issued summons in the suit. The Defendant filed its
leave to defend application. After hearing the parties, vide judgement dated
10th April, 2017, the suit was decreed in the following terms:
"7............Plaintiff has prima-facie proved on
record that he is entitled to the amount as he has
supplied the goods for which payment has not been
made. No case of leave to defend is made out. The
defendant is not entitled to any leave to defend.
Accordingly, the leave to defend application of the
defendant is hereby dismissed. The suit of the
plaintiff is hereby decreed for an amount of
Rs.7,64,171/- (Rs. Seven lacs sixty four thousand
one hundred and seventy one only) alongwith cost
and interest @ 10% pa from the filing of the suit
i.e. 16.12.2015 till the realisation of the decreetal
amount."
Case of the Plaintiff
4. The Plaintiff's position is that the Defendant had contacted the
Plaintiff and had sought a quotation for supply of fruits and vegetables and a
price list was called for. The quotation sent by the Plaintiff was then
accepted by the Defendant. The Plaintiff started making supplies from
March, 2014. The last supply contract was entered into for a period till June,
2016. The payment for the supplies was to be made within every 45 days,
however, the Defendant was irregular in its payments. After giving credit to
the payments which were received by the Plaintiff, the outstanding balance
was a sum of Rs. 7,64,171/-. Some part-payment was made by cheques but
only cheques of Rs. 82,000/- were honoured and the remaining cheques
were dishonoured. Along with the suit, the Plaintiff placed on record copies
of the quotations/price list issued by it to the Defendant. The contracts for
the periods from 1st July, 2014 to 30th June, 2015, and from 1st July, 2015 to
30th June, 2016, various copies of the invoices and copies of the cheques, as
also the ledger account, have been placed on record. The Plaintiff also
placed on record copy of the legal notice dated 2nd November, 2015.
Case of the Defendant
5. The Defendant, in the leave to defend application claimed that the suit
was bad for misjoinder/non-joinder of parties and on the ground of territorial
jurisdiction. According to the Defendant, the outstanding amount was
Rs.29,537/-. It also took the stand that a settlement was arrived at between
the parties, whereby a total sum of Rs. 96,000/- was paid to the Plaintiff.
The Defendant categorically denied the account statement filed by the
Plaintiff.
Trial Court judgment
6. The Trial Court, after perusing the applications and hearing the
parties, arrived at the following conclusions:
The Defendant had issued a total of 6 cheques for the outstanding
amount, however, only 3 of them for the total sum of Rs.82,000/-
were honoured.
3 cheques, for a total sum of Rs.87,875/- were dishonoured, due to
insufficiency of funds.
On territorial jurisdiction, the Trial Court held that the Plaintiff has
supplied the goods from Delhi, payment was to be made in Delhi and
the contract concluded in Delhi. Thus, the jurisdiction vested in Delhi.
The transaction between the parties is duly admitted by the Defendant.
The plea of the Defendant is a sham.
The plea that Rishi Associates was a partnership firm and not a
proprietorship firm was also rejected on the ground that the cheques,
were signed by the authorised representative of the Defendant, as
"FOR RISHI ASSOCIATES". Thus, irrespective of whether it was a
partnership or a proprietorship concern, it has a duty of the Defendant
to honour the cheques and make the payments.
7. Thus, the Trial Court decreed the suit for a sum of Rs. 7,64,171/-
along with costs and interest at 10% per annum from date of filing of suit till
realisation.
8. The present RFA was then preferred by the Defendant, and vide order
dated 24th August, 2017, an interim order was passed in the following terms:
"In the meanwhile, the operation of the impugned
judgment and decree dated 10.04.2017 shall
remain stayed, subject to the appellant depositing
the entire decretal amount within a period of four
weeks from today, with the Registrar General of
this court. In case of deposit, the Registrar shall
invest the same in FDR initially for a period of one
year, subject to further orders passed by this court.
It is made clear that in case the appellant does not
deposit the amount as aforesaid, the decree holder
shall be at a liberty to execute the decree and the
stay of the impugned judgment and decree shall
cease to exist."
9. Thus, stay of the trial court judgement was granted to the Defendant
subject to deposit of the decretal amount.
10. The Defendant, thereafter, deposited the decretal amount in two
tranches i.e., Rs. 5,00,000/- vide demand draft dated 6th October, 2017 and
Rs. 4,08,327/-vide demand draft dated 7th November, 2017. Considering that
the entire decretal amount was deposited in the Court and there appeared to
be a possibility of settlement of the disputes, vide order dated 23rd January,
2018, the parties were sent to mediation. On 23 rd January, 2018, the Court
had also noticed that there was discrepancy in the bills filed by the Plaintiff.
It was claimed by the Plaintiff that inadvertently multiple copies of the same
bill had been filed in the trial court, instead of all the bills showing the
supplies. However, the original bills were available with the Plaintiff. The
same also bore the acknowledgment of receipt of Hotel Cross Roads i.e., the
Defendant.
11. It was the stand of the Plaintiff that the original bills were shown to
the Court at the time of arguments in the leave to defend application and
copies were supplied to the Defendant. In fact, this plea appears to be
correct because copies of these original bills have been annexed with the
appeal by the Defendant who could not have had copies of the bills if they
were not part of the trial court record. Mediation has however failed.
12. Submissions were heard and judgment was reserved on 7th February,
2019.
13. During the course of hearing in the appeal, the Plaintiff/Respondent
had filed a written synopsis to the following effect:-
"3. The appellant had admitted before this Hon‟ble
Court to give Rs.7,00,000/- for settlement though he
has deposited more than Rs.9,00,000/- before the
Registry of this Hon‟ble Court.
4. According to the appellant, he had to pay
Rs.29,537/- to the Respondent as mentioned in the
appeal at para J, page 14 last 4th line from bottom.
Had that been so, in actual, then appellant or any one
else from any remotest corner would not have been
serious enough to settle the case for Rs.7,00,000/-. As
per decree dated 10th April, 2017, the amount after
adjusting is Rs.6,76,298/- after deducting Rs.87,876/-
from Rs.7,64,171/-.
5. That the interest has been awarded at the rate of
10% from 16.12.2015 and penalty of Rs.10,000/- also
impose upon the appellant so the amount comes to
Rs.8,79,000/- and from date of decree including
interest the amount is Rs.7,43,000/- + 10,000/- cost the
amount comes the Rs.7,53,590/-.
6. That the respondent leaves to this Hon‟ble Court to
decide any amount in between Rs.7,53,590/- and
Rs.8,79,000/- so that it will be a win win situation to
the appellant."
14. The case of the Defendant in its written submissions is that none of
the original documents were filed by the Plaintiff before the Trial Court. The
account statement is self-serving and has not been admitted by the
Defendant. Insofar as the amounts covered by the cheques are concerned,
out of six cheques, three cheques were encashed and three were
dishonoured. Finally, in respect of the three cheques, which were
dishonoured, a settlement on 24th September, 2016 was arrived at between
the parties before the Rohini Court in Criminal Revision No.57562/16. The
said order reads as under:
"After due deliberations between the parties, they have
settled their disputes with regard to subject matter of
three cheques in respect of which complaint case
bearing CC No. 7/1/2016 titled as "Dev Chandra Jha
vs Tilak" is pending before the Ld. MM.
Statements of both the parties have been recorded
separately in this regard. The settled amount of
Rs.96,000/- has also been paid by petitioner to
respondent no.2 in the manner as disclosed in the
statements of both the parties.
In view of the settlement between the parties and the
statements made by them before the Court, the cost of
Rs.10,000/- imposed by Ld. Trial Court upon petitioner
stands waived off and shall not be insisted upon by the
trial Court. With these observations, the present
revision petition is disposed off as settled. The
respondent no.2/complainant shall withdraw the
aforesaid complaint case from the Court of Ld. MM on
or before the next date i.e., 31.10.2016. TCR be sent
back alongwith copy of this order. Copy of the
proceedings be also given dasti to both the sides today
itself against proper receipt. File of revision petition be
consigned to Record Room."
15. Thus, after adjusting the amounts received in the settlement of the
above dispute, the outstanding is only Rs. 6,76,298/-, as per the Defendant
himself, in his written synopsis, which reads as under:
"3. That the appellant submits the following points in
support of his appeal for the kind consideration of the
Hon‟ble Court:-
a).........e).........
f) That with respect to the three cheques, a settlement
was arrived at before the Ld. ASJ in revision. Wherein
it was ordered that the three cheques subject matter of
revision are also subject matter of the civil suit thus the
payment made in the revision petition would be
adjusted. This fact has been admitted by the respondent
in his reply to leave to defend application in para 6&7
and thus the balance required to be recovered by the
respondent comes down to Rs.6,76,298/- from
Rs.7,64,171/-. But the Ld. ADJ simply overlooked the
facts."
16. The Court has considered the competing stands of the parties. During
the proceedings before the High Court, copy of a criminal complaint, dated
19th September, 2018, filed by the Defendant alleging forgery by the
Plaintiff, has been placed on record. Cash vouchers have been filed on
record by the Plaintiff and the Plaintiff has also given inspection of the
original bills to the Defendant. The fact that the Defendant had annexed
copies of the various original invoices along with appeal, shows that the
Plaintiff had supplied these documents to the Defendant at some point
during the pendency of the suit before the Trial Court. The allegation of
forgery is also an afterthought as the complaint has been filed only on 19 th
September, 2018. The Plaintiff had originally, along with the plaint placed
on record invoices for the period, 1st April, 2015 to 15th April, 2015.
However, the appeal filed contains invoices till July, 2015. The original
documents were shown to the Court and to the Defendant. They clearly bear
the seal of Hotel Cross Roads, which shows that the supplies were actually
made. Moreover, in the leave to defend application, there is no allegation
that the invoices were forged, or that supplies were never made.
17. Even before the Revision Court a sum of Rs. 96,000/- was readily
paid by the Defendant, which shows that the Defendant, who had initially
issued cheques which were dishonoured, accepted his liability to the
Plaintiff. The Plaintiff has had to struggle for recovering the payments from
the Defendant. The allegations in the leave to defend are very general in
nature. The only pleas raised in the leave to defend application are in respect
of misjoinder, jurisdiction, non-signing of the plaint by a competent person.
There are only 2 paragraphs on merits in the leave to defend application
which are set out below:
"6. That as per the account statement maintained
by the defendant in its due course of business the
total amount due and payable by the defendant to
the plaintiff comes to Rs.29,537/- after making the
payment of Rs.87,876/-. This payment had been
made to the plaintiff by the defendant on 24.9.2016
pursuant to a settlement that was arrived at
between the parties whereby the defendant had
paid a sum total sum of- Rs.96,000/- i.e. Rs.87,876
through demand draft and another sum of
Rs.8,124/- through cash towards interest on the
principal amount. It has been agreed that payment
so made would be adjusted towards the liability if
any that may arise in the present civil suit provided
the cheques in question are subject matter of suit as
well. The cheques are in fact subject matter of the
suit. In para 8 of the plaint the description of the
cheques is mentioned and even the copies of the
cheques are also annexed. Thus the cheques which
were subject matter of proceedings Us 138 NIA are
also subject matter of present civil suit.
7. That the present suit has been filed on the basis
of the account statement which is categorically
denied by the defendant. The cheques bearing No.
445362, 445364 and 445365 placed alongwith the
suit plaint are only worth Rs.28,074/-, Rs.29000/-
and Rs. 30,802/-/- totaling to Rs.87,876/. As such
the present suit for recovery of the amount of
Rs.7,64,171/- is absolutely not maintainable. Even
further the payment towards these cheques along
with interest thereon have already been paid to the
plaintiff vide order dated 24.9.2016."
18. In the leave to defend application, there is no explanation whatsoever
as to how six cheques were issued by the Defendant and how three of them
were dishonoured. It is a vague application for leave to defend. Moreover,
the inspection of the original invoices which bear the acknowledgement of
the Defendant having been given by the Plaintiff, and the same having been
placed on record, there is no reason to disbelieve them. The grounds on
which leave to defend is sought is nebulous to say the least. The Defendant
has continuously defaulted in payments. The cheques given were
dishonoured for which action under Section 138 of the NI Act was taken.
Even after original invoices were shown, the Defendant has failed to agree
to make payment. Further, to compound the circumstances, a criminal
complaint has been filed alleging forgery. These facts indicate lack of
bonafides on behalf of the Defendant. Under these circumstances, the Trial
Court rightly arrived at the conclusion that the Defendant had not been able
to make out a case for grant of leave to defend.
19. However, there has been one lapse by the Plaintiff that along with its
plaint, the Plaintiff failed to file the original invoices and one invoice was
copied multiple times and placed on record. It is not clear as to at what
stage the original invoices were produced before the Trial Court, however,
copies of the same were available with the Defendant as they were annexed
in the appeal. Thus, this court is of the opinion that the period for which
Plaintiff is entitled to interest can be reduced. The contract entered into
between the parties, did not specify any rate of interest for delayed payment.
20. The amount which was deposited by the Defendant with the Registrar
General has now matured to a total sum of Rs.9,87,337/-, as on 9th April,
2019.
21. Keeping in mind the conduct of both parties and there being no triable
issue in the case, the decree of the Trial Court is modified as under:
The suit is decreed in favour of the Plaintiff for a sum of Rs.
6,76,298/- along with interest at 6% from date of judgement of the
Trial Court i.e., 10th April, 2017 to 10th April, 2019.
From the amount deposited with the Registrar General, a sum of Rs.
6,76,298/- be released to the Plaintiff as principal along with interest
calculated at 6% for a period of two years thereon, be released to the
Plaintiff/Respondent (subject to deduction of TDS).
The remaining sum lying deposited with the Registrar General, shall
be released to the Defendant/Appellant after deductions on the
interest component, if any.
22. The present appeal is disposed of in the above terms. Decree sheet be
drawn. All pending applications also stand disposed of.
PRATHIBA M. SINGH
JUDGE
APRIL 10, 2019
MR
