Raj Kumar Maheshwari vs Jyoti Gupta

Rajiv Sahai Endlaw, J.—The plaintiff has instituted the present suit for recovery of Rs. 1,20,69,545/- along with interest at 12% per annum from the date of institution of the suit till realization. The suit was originally filed against three defendants. However, the plaintiff, as recorded in the order dated 27th March, 2008, did not press the claim against the defendant Nos. 2 and 3 and they were deleted from the array of parties. The plaintiff claims that jewellery worth Rs. 90,50,145/- was handed over by the plaintiff to the defendant No. 1. The plaintiff besides the said amount has claimed Rs. 30,19,400/- as interest accrued till the date of institution of the suit.

The plaintiff in the plaint itself stated that upon the plaintiff discovering that the defendant No. 1 had cheated the plaintiff, the plaintiff filed a complaint against the defendants and which complaint was converted into FIR 755 of 30th December, 2004; all the defendants were arrested in the said case and while the defendant Nos. 2 and 3 were granted bail, the defendant No. 1 at the time of institution of the suit was in Jail in connection with the said case. The defendant No. 1 was served with the summons of the suit in jail and while still in custody appeared before this Court on 11th January, 2008 and sought time to file the written statement. However, the defendant, thereafter, neither appeared nor filed the written statement and was vide order dated 27th March, 2008 proceeded against ex parte. The plaintiff, as aforesaid, on 27th March, 2007 withdrew the case against the defendant Nos. 2 and 3 without prejudice to his rights in the criminal case against the said defendants also. At this stage, I must record that though the defendant No. 1 was proceeded ex parte, as aforesaid, but there is on the file of this Court a handwritten letter dated 7th May, 2008 of the defendant No. 1, forwarded to this Court through Superintendent, Central Jail, Tihar in which the defendant No. 1 has requested for a date after 29th August, 2008 by which time she is expecting to be released from custody.

Upon the only defendant being proceeded ex parte, the plaintiff led his ex parte evidence and examined himself as PW1 and his father Shri Hari Prasad Maheshwari as PW2.

The plaintiff has deposed that he is a gemologist and jewellery designer by profession and is carrying on the business of manufacture, export and import of gems, diamond and kundan jewellery in the name and style of M/s Rainbow Gempex; that the defendant was the neighbor of the plaintiff at Model Town, Delhi for the last 25 years; that in middle of 2004 the defendant Ms Jyoti Gupta had represented to the plaintiff that she was active in diamond jewellery trade and had a large kitty circle of wealthy ladies to whom she regularly supplied jewellery; she further represented that she gets jewellery from well established jewellers in Delhi and Mumbai and asked the plaintiff also to trust her. The plaintiff has further deposed that so trusting the defendant Ms Jyoti Gupta, the plaintiff from time to time started giving diamond jewellery to the defendant on approval and credit basis as per the normal market practice. The plaintiff has proved as Exhibits P1 to P8 the documents vide which the jewellery worth of Rs. 90,50,145/- was handed over by the plaintiff to the defendant. The plaintiff has proved as Exhibit P9, a statement of account as on 21st September, 2004 bearing the approval of the defendant Ms Jyoti Gupta. Exhibit P10 is the charge sheet filed by the police against the defendant Ms Jyoti Gupta on the complaint of the plaintiff and Exhibit P11 is the copy of the order of the Apex Court cancelling the bail granted to the defendant Ms Jyoti Gupta. The plaintiff has deposed that defendant took jewellery worth Rs. 90,50,145/- from the plaintiff. The plaintiff has claimed interest on the aforesaid amount at 12% per annum and claimed interest in the sum of Rs. 30,19,400/- till the date of institution of the suit.

The father of the plaintiff has, in his affidavit, also supported the case of the plaintiff.

The aforesaid evidence remains unrebutted. The plaintiff has made out a case for recovery of Rs. 90,50,145/- from the defendant Jyoti Gupta. The plaintiff has also made out a case for recovery of interest at 12% per annum till the date of institution of the suit, the transaction between the parties being a commercial transaction. However, since the defendant has not contested the suit, the plaintiff is entitled to interest at 6% per annum only from the date of institution of the suit till realization and on the principal sum of Rs. 90,50,145/- only. The plaintiff is also held entitled to costs limited to the court fee paid by the plaintiff. The suit of the plaintiff is accordingly decreed.