Anil Kumar v. Anuradha Singh

RAJIV SAHAI ENDLAW, J. JULY 22, 2016 "bs"..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 22nd July, 2016. + RFA 144/2016 & CM No.9284/2016 (for condonation of 838 days delay in filing the appeal) ANIL KUMAR ..... Appellant Through: Mr. Vijay K. Gupta & Mr. Mehul Gupta, Advs. Versus ANURADHA SINGH ..... Respondent Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This first appeal under Section 96 of the Code of Civil Procedure, 1908 impugns the judgment and decree dated 9th September, 2013 of the Court of Additional District Judge (ADJ)-1 (South), Saket Courts, New Delhi of dismissal of Suit No.232/2013 filed by the appellant/plaintiff on 23rd May, 2011 for recovery of Rs.18,28,957.70 paise from the respondent/defendant. 2. It is the case of the appellant/plaintiff (i) that he is the partner of the firm known under the name and style of M/s Home Concepts; (ii) that the said firm M/s Home Concepts has been doing the business of manufacturing and exporting the home furnishings and made ups; (iii) that a copy of the Partnership Deed is filed along with the plaint; (iv) that in the year 2003, the respondent/defendant approached the appellant/plaintiff at the business place with foreign buyers; (v) that the respondent/defendant is the commission agent between the appellant/plaintiff and his buyers; (vi) that it was decided between the appellant/plaintiff and the respondent/defendant that the respondent/defendant will provide buyers to the appellant/plaintiff and the respondent/defendant will charge commission @ 5% on total sale from the appellant/plaintiff; (vii) that the respondent/defendant started charging 5% commission on total sale and the appellant/plaintiff used to pay 5% commission on total sale to the respondent/defendant from time to time; (viii) that as such relationship grew, the appellant/plaintiff also issued cheques in advance; (ix) that during the business period of 2004-2008, as per the statement of account maintained by the appellant/plaintiff, the total business/sale of approximately Rs.12,02,89,642.97 paise was done with the buyers provided by the respondent/defendant and 5% commission of the respondent/defendant thereon amounts to Rs.60,14,482.13 paise including TDS which was to be paid by the appellant/plaintiff to the respondent/defendant; (x) that as per the said account, a sum of Rs.18,28,957.70 paise inclusive of interest upto 11th May, 2011 is due from the respondent/defendant to the appellant/plaintiff; (xi) that in the year 2007- 2008, the respondent/defendant"s buyers stopped business with the respondent/defendant and thereafter the respondent/defendant did not give any order to the appellant/plaintiff; (xii) that though the appellant/plaintiff asked the respondent/defendant several times to settle the money matters and to return the excess amount received but the respondent/defendant "did not return the said cheques" of advance payment and did not settle the account; (xiii) that on the contrary the respondent/defendant misused the cheques and filed false complaint under Section 138 of the Negotiable Instruments Act, 1881 to cause harassment to the appellant/plaintiff; (xiv) that during the cross-examination on 27th July,2009 in one of such cases bearing No.651- 652/2008, the authorised representative of the respondent/defendant admitted that Rs.55,09,846.50 paise had been received by the respondent/defendant from the appellant/plaintiff. 3. This appeal came up first before this Court on 14th March, 2016, when the following order was passed: "3. The appeal impugns a judgment and decree of dismissal of a suit for recovery of money filed by the appellant consequent to rejection of the plaint in view of Section 69 of the Indian Partnership Act, 1932. 4. Though the appellant/plaintiff has also appealed against the subsequent order of dismissal of an application for review filed by the appellant/plaintiff but as per Order XLVII Rule 7 of the Civil Procedure Code, 1908 (CPC), no appeal lies against an order rejecting an