Sumit Juneja & Anr vs Ram Kanwar
2019 Latest Caselaw 790 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  RFA No. 866/2018 & CMs. 44128-29/2018

%                                                    7th February 2019

SUMIT JUNEJA & ANR.                                   ..... Appellants
                  Through:               Mr. Udaibir Singh Kochar,
                                         Advocate
                          versus

RAM KANWAR                                             ..... Respondent

                          Through:       Mr. Rohit     Kumar Modi,
                                         Advocate.

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 defendant nos. 2 and 3

in the suit, and who are the legal heirs of late defendant no. 1. Late

defendant no. 1 was the husband of defendant no. 3 and the father of

defendant no. 2. The defendant no. 2 is the appellant no.1 and

defendant no. 3 is the appellant no. 2 in this appeal. By the impugned

judgment, the trial court has decreed the suit for recovery of moneys

filed by the respondent/plaintiff for an amount of Rs. 7,11,187/- along

with interest at 9% per annum on account of such moneys being

invested by the respondent/plaintiff with the defendant no.1, and this

amount was agreed to be repaid back by all the defendants, but was

not repaid, and hence the suit.

2. The facts of the case are that the respondent/plaintiff filed

the subject suit pleading that he had been regularly investing in

various firms being run by defendant no.1/Late Sh. S.C. Juneja in the

form of Fixed Deposit Receipts, mutual funds, bonds etc. With respect

to such amounts invested in different firms of the defendant no.1/Late

Sh. S.C. Juneja, the respondent/plaintiff pleaded that he received the

maturity amounts from time to time. It was then pleaded by the

respondent/plaintiff that thereafter defendant no.1/Late Sh. S.C.

Juneja/father of the appellant no.1 and husband of the appellant no. 2,

approached the respondent/plaintiff to invest moneys in M/s Jaico

Securities of which defendant no.1/Late Sh. S.C. Juneja was the sole

proprietor. It was pleaded that the payments which were received by

defendant no.1/Late Sh. S.C. Juneja were received in the name of the

appellant no. 1/defendant no. 2. In the plaint, it is further pleaded that

all the defendants agreed to pay the amounts due as also the interest at

1% per month, and that the defendants paid Rs. 1,04,000/- as interest

till 31.10.2008. It was further pleaded in the plaint that the three

cheques for payment of part of the liability were issued by late

defendant no.1 being Cheque No. 272876 dated 04.12.2008 for Rs.

44,054.15, Cheque No. 272877 dated 09.12.2008 for Rs. 50,175/- and

Cheque No. 377555 dated 17.06.2009 for Rs. 41,958.84. These

cheques which were presented to the bank were returned dishonoured

on account of „insufficient funds‟ and „payment stopped by the

drawer‟. It was pleaded that the appellants/defendants visited the

respondent/plaintiff on 31.05.2010, and assured to repay the entire

amount very soon, but the appellants/defendants failed to pay

anything, and on the contrary started extending threats to the

respondent/plaintiff and his family members. Therefore, pleading that

a total sum of Rs. 8,55,424/- was due to the respondent/plaintiff with

Rs. 7,11,187/- as principal amount and Rs. 1,44,237/- towards interest

till 30.06.2010 with interest at 1% per month, the subject suit was

filed.

3. As already stated above, there were three defendants in

the suit. Defendant no.1/Late Sh. S.C. Juneja was the father of the

appellant no.1/defendant no. 2 and the husband of the appellant no.

2/defendant no. 3. All the defendants in the suit filed a joint written

statement. In the written statement there was general and complete

denial that there was ever any investment made by the

respondent/plaintiff of Rs. 7,11,187/- in M/s Jaico Securities of

defendant no. 1. It was also denied that the amounts totalling to Rs.

7,11,187/- were received in the personal name of the appellant

no.1/defendant no.2/son/Sh. Sumit Juneja. It was pleaded that in fact

the respondent/plaintiff was doing business in Forward Trades with

the appellant no.1/defendant no.2, and since losses were caused in this

business, the respondent/plaintiff issued two Cheques bearing no.

313371 and 313373 for the amounts of Rs. 50,000/- and Rs. 1,00,000/-

respectively, in favour of the appellant no. 1/defendant no. 2 and the

same were dishonored. It was pleaded that the respondent/plaintiff

became liable to pay a sum of Rs. 3,67,000/- to the appellant

no.1/defendant no.2 on account of losses in the Forward Trade

business. It was pleaded that the respondent/plaintiff had admitted his

liability in writing on 20.12.2008, and therefore no amount could be

claimed by the respondent/plaintiff from the defendants in the suit.

The suit was therefore prayed to be dismissed.

4. The following issues were framed in the suit:-

"1. Whether the plaintiff is entitled for suit amount as alleged in the plaint? OPP

2. Whether the plaintiff had invested or deposited the amount in FDR with the defendant? OPP

3. Whether the plaintiff is entitled for pendentelite and future interest @ 12% per annum? OPP

4. Whether the suit is bad for misjoinder of parties and for misjoinder of cause of action? OPD

5. Whether the plaintiff is entitled for the decree of suit amount along with interest? OPP

6. Relief."

5. The trial court has decreed the suit by holding that the

appellant no.1/defendant no.2/son/Sh. Sumit Juneja who deposed as

DW-1 admitted in his cross-examination on 26.02.2018 that the

amount of Rs. 7,11,187/- was received and transferred in the bank

account of the appellant no.1/defendant no. 2 from the account of the

respondent/plaintiff. This was so admitted by admitting the document

which was proved as Ex.DW1/P2, and this document contains various

entries showing payments made by the respondent/plaintiff. The

relevant portion of the cross-examination of the appellant

no.1/defendant no.2 on 26.02.2018 admitting the receipt of the amount

of Rs. 7,11,187/- in his accounts reads as under:

"I have throughout resided in A-3/146, Janakpuri, Delhi. The said house belongs to my maternal grand mother (Nani). It is correct that an amount of Rs.7,11,187/- was transferred in my bank account from the account of Ram Kanwar as detailed in Ex.DW1/P2. This amount was transferred by the plaintiff to me as I and Sh. Ram Kanwar used to do a joint business by way of investment in commodities. The business of commodities was done by a person known to Sh. Ram Kanwar. I do not have any record pertaining to the commodities transaction. Vol. The entire record is in the possession of Sh. Ram Kanwar. It is wrong to suggest that I have deposed falsely that any record of commodities business is in the possession of Sh. Ram Kanwar. It is wrong to suggest that I did not do any business in commodities. There was no agreement in writing between me and Sh. Ram Kanwar for doing joint commodities business. By commodities, I mean crude oil, copper, lead, zinc, gold and silver. There is no requirement of any license for the purpose of making any investment in commodities. I do not know the name of the broker through whom the commodities dealings were conducted but his name was Mr. Aggarwal. It is wrong to suggest that I have deposed falsely about dealings in commodities through Mr. Aggarwal. I had invested the same amount equal to the amount invested by Sh. Ram Kanwar. The amount must be around Rs. 7.1 lacs. I made the investments in commodities between the years 2008 to 2010. I have not shown this amount of Rs. 7.1 lacs as investment in commodities in my ITR of the relevant years. I might be having one more saving account during the period from 2007 to 2015. I have the investments from the bank account No. 01441000058009 with HDFC Bank, Patel Nagar, New Delhi."

(Underlining Added)

6. The document Ex.DW1/P2, admitting the receipt of Rs.

7,11,187/- by the appellant no.1/defendant no.2 reads as under:

"DETAILS OF PAYMENT MADE BY THE PLAINTIFF.

        Chq No      Dated              Amount
       285852      26.11.07            34000        Mark A

       285853      14.12.07            30000        ADJ/Delhi

       285859      28.01.08            26000        17/3/2012

       295731      13.03.08            35000
       295733      25.03.08            15000
       295734      25.03.08            15000        Ex.DW1/P2

       295735      02.04.08            25000        PO,      MACT,
                                                    Delhi 26/2/18

       295738      27.05.08            20000
       295739      29.05.08            30000
       304074      07.07.08            20000
       304079      18.08.08           100000
       309388      11.10.08            80000
       309389      14.10.08            50000
       309390      15.10.08            40000
       313376      11.11.08            30000
       316233      27.12.08            25000
       Cheque return of payment against Cash FDRs
       272876      04.12.08            44054
       272877      09.12.08            50175
       37555       20.06.09            41958
                    Total             711187

7. In my opinion, from the document Ex.DW1/P2, and the

admission in the cross-examination made by the appellant no.

1/defendant no. 2 on 26.02.2018 of Ex.DW1/P2, it stands established

that a sum of Rs. 7,11,187/- was received in the bank account of the

appellant no. 1/defendant no. 2 from the respondent/plaintiff. It is also

to be noted that this amount of Rs. 7,11,187/- has to be taken as

towards investment made by the respondent/plaintiff in the firm of late

defendant no.1, and these amounts were to be repaid by all the

defendants in the suit, inasmuch as, the appellant no. 1/defendant no. 2

failed to prove that he ever did any business of commodities with the

respondent/plaintiff. In the cross-examination conducted on

26.02.2018, it is conceded by the appellant no. 1/defendant no. 2 that

he had no agreement in writing with the respondent/plaintiff for doing

a joint commodities business, and also that he does not have any

record pertaining to the commodities transaction. Therefore, there

was only a self-serving ipse dixit on behalf of the appellant no.

1/defendant no. 2 for doing commodities business with the

respondent/plaintiff, and therefore this defence of the appellant no.

1/defendant no. 2 has been rightly disbelieved and rejected by the trial

court.

8(i). At this stage, it is required to be considered as to whether

only the defendant no.1/Late Sh. S.C. Juneja/father of the appellant

no.1 and husband of the appellant no. 2, is to be held liable because

moneys were invested in the firm of defendant no.1/Late Sh. S.C.

Juneja, or that all the defendants being the defendant no. 1 as also

defendants no. 2 and 3 are jointly and severely liable as they had

agreed to repay the invested amount with interest.

8(ii). In this regard, it is noted that after stating in para 3 of the

plaint that the respondent/plaintiff had invested the amount of Rs.

7,11,187/- with the firm of M/s Jaico Securities of defendant no. 1, it

is then stated in para 4 of the plaint that all the defendants agreed to

repay the amount with interest at 1% per month. It is also pleaded in

para 4 of the plaint that the defendants paid Rs. 1,04,000/- as interest

till 31.10.2008. Para 5 of the plaint then states that the defendants

assured the plaintiff on 31.05.2010 to repay the respondent/plaintiff,

but the defendants have failed to do so. Para 6 of the plaint then refers

to the total liability against all the defendants of Rs. 8,55,424/-.

8(iii). In the written statement, it is seen that there is no plea

which is set up by the appellants/defendants no. 2 and 3 that they were

not jointly and severely liable with the defendant no.1/Late Sh. S.C.

Juneja. There is no case set up by the appellants/defendants no. 2 and

3 that they never agreed to repay the liability of the

respondent/plaintiff, and that it was only the defendant no.1/Late Sh.

S.C. Juneja who was solely liable. In fact, in the joint written

statement of all the defendants, the appellants/defendant nos. 2 and 3

took up the route of complete denial of any investment made by the

respondent/plaintiff of Rs. 7,11,187/-. Even in the affidavit by way of

evidence filed on behalf of the appellant no. 1/defendant no. 2 dated

14.12.2017 there is no averment by the appellant no. 1/defendant no.

2/DW-1 that appellants/defendants no. 2 and 3 never agreed to repay

the amount which was invested by the respondent/plaintiff with

defendant no. 1/Late Sh. S.C. Juneja. Therefore, in my opinion, all the

defendants are liable and the endeavour of the appellants/defendant

nos. 2 and 3 is to get over their liability and deny their liability as a

deliberately calculated move to achieve an illegal intention because

defendant no. 1/Late Sh. S.C. Juneja had died during the pendency of

the suit, and in case even if the respondent/plaintiff succeeds in

showing investment made with defendant no. 1/Late Sh. S.C. Juneja

and the liability of which was only of defendant no. 1/Late Sh. S.C.

Juneja, then the appellants/defendant nos. 2 and 3 would be able to

escape the liability on the ground that the liability was only of

defendant no. 1/Late Sh. S.C. Juneja, and that the appellants/defendant

nos. 2 and 3 have not inherited any assets from the defendant no.

1/Late Sh. S.C. Juneja. However, such a dishonest defence is

completely misconceived and rejected by this Court especially in view

of the aforesaid discussion on account of the pleadings contained in

paras 4 to 6 of the plaint, and the supporting statements made in the

affidavit by way of evidence of the respondent/plaintiff, and lack of

any averments in the affidavit by way of evidence filed by the

appellant no. 1/defendant no. 2 that appellants/defendants no. 2 and 3

never agreed to repay the liability of the defendant no. 1/Late Sh. S.C.

Juneja and that only the defendant no. 1/Late Sh. S.C. Juneja was

liable.

9. In view of the aforesaid discussion, there is no merit in

the appeal. This appeal is dismissed with costs. The

respondent/plaintiff will file certificate of costs of its Advocate with

respect to the costs of the present litigation, and costs as mentioned in

the certificate will be costs in favour of the respondent/plaintiff and

against the appellants/defendants.

10. The appeal is accordingly dismissed and disposed of. All

pending applications are also disposed of.

FEBRUARY 07, 2019/ib                         VALMIKI J. MEHTA, J