Delhi District Court
Digvijay Gupta vs Lilly Narula on 25 July, 2024
DLST010004562011
In the Court of Sh. Munish Bansal,
District Judge-03, South District,
Saket Courts Complex, New Delhi.
CS No.: 7459/2016
In the matter of :-
Mr. Digvijay Gupta,
Proprietor of R.K. Agencies,
D-I/1226,Vasant Kunj,
New Delhi- 110070. .......Plaintiff
Versus
Ms. Lilly Narula,
W/o Mr. M.S. Narula,
F-2/1, Khanpur Extension,
New Delhi- 110062. ......Defendant
Date of institution : 14.11.2011
Arguments heard on : 24.04.2024
Date of decision : 25.07.2024
SUIT FOR RECOVERY
CS/7459/2016 Page 1 of 21
JUDGMENT
1. The present suit has been filed on behalf of the Plaintiff seeking recovery of Rs.19,32,648/- (Rupees Nineteen Lacs Thirty Two Thousand Six Hundred Forty Eight only) alongwith pendente lite and future interest against the defendants.
1.1. Facts as epitomized in the plaint are that the Plaintiff is engaged in the business of providing services in the field of civil contracts, engineering and interior decoration under the name and style of 'R.K. Agencies' being sole proprietor of the same. The Defendant is the wife of Mr. M.S. Narula, Managing Director of M/s D.S. Construction Ltd. The Plaintiff was known to Mr. M.S. Narula, as he was having long business relations with him and his company. In the month of April, 2008, Defendant contacted the Plaintiff for civil interior, electrical and sanitary renovation work for NetVision building at F-2/1, Khanpur Extension, New Delhi, who informed that their family was shifting their residence to the said place and therefore, the same was required to be renovated. After several deliberations, negotiations, exchange of emails between the Plaintiff, Defendant and her husband and her representatives Mr. Sudhir Nehra, Mr. H.K. Gupta, Mr. Amit Singhal and Mr. Partho Ghosh, the Plaintiff submitted his quotation dated 25.04.2008 to the Defendant for the desired work. After subsequent meetings, the said offer of Plaintiff was accepted and formal work order bearing no. D-4/RKA-02 dated 14.05.2008 was issued. The Plaintiff started execution of work in co-ordination with the Defendant and her husband Mr. M.S. Narula and Mr. Sudhir CS/7459/2016 Page 2 of 21 Nehra, who was appointed as project engineer/ co-ordinator and Mr. Partho Ghosh, who was appointed as site engineer by the Defendant. During the course of execution, the Plaintiff from time to time, raised running bills for the works executed by him including running bills no. RA bill no. I/2774, RA bill no. II/2775 and RA bill no. III/2776. Mr. Partho Ghosh, the site engineer of Defendant, from time to time certified the said bills for payment and Defendant from time to time released payments in cash to the Plaintiff against said bills. The Plaintiff completed job in all respects in February, 2009 and submitted its final bill bearing RA bill no. III/2776 dated 15.11.2008 for Rs.46,71,562.33. Since the said bill was prepared on the basis of last running bill i.e. RA bill no. II, the number and date of the final bill remained the same. On 17.02.2009, Mr. Partho Ghosh, the site engineer of the Defendant, prepared an abstract of the said final bill alongwith measurement of quantities and certified the said final bill for Rs.42,80,815/- only as against Rs.46,71,562.33 by alleging rate difference. He also approved additional payment of Rs.48,000/- towards lifting of malba from the site and Rs.60,000/- towards repainting work which was got done on the instructions of Defendant and no formal/ separate bill for the same was raised. Mr. Partho Ghosh recommended deduction of Rs.70,000/- against conduit pipe which was already laid in the premises and deduction of Rs.70,000/- towards material supplied by Defendant at site. He also recommended withholding of Rs.2,14,000/- towards retention money, Rs.82,000/- towards electrical work and Rs.37,500/- towards plumbing work. By that time, the Defendant had already paid Rs.34,00,000/- in cash to the Defendant and recommended to release further payment of CS/7459/2016 Page 3 of 21 Rs.5,15,315/- to Plaintiff. However, the Plaintiff objected to the deduction in aforesaid bill towards rate difference and withholding of amount of Rs.3,33,500/- as the work has been completed. The Defendant kept delaying the payment on one ground or other. In the meantime, the Defendant got additional works worth Rs.70,156/- done at the same site. In the month of November, 2009, the Defendant alongwith Mr. Partho Ghosh settled the bill of Defendant and certified total value of work done by the Plaintiff as Rs.48,22,218/- including the value of additional work, malba lifting, repainting etc. After deducting Rs.70,000/- towards conduit pipe, Rs.70,000/- towards building material and Rs.34,00,000/- already paid to the plaintiff, an amount of Rs.12,82,218/- became due and payable to the Plaintiff. Besides the aforesaid amount, the Defendant also agreed to pay separate bill of Rs.18,480/- towards extra electrical jobs which the Defendant had got done and the Plaintiff had executed the same through S.M. Enterprises. However, despite assurance, no further payment was made to the Plaintiff.
On these grounds, the Plaintiff is claiming a sum of Rs.13,00,698/- (Rs.12,82,218/- + Rs.18,480/-) alongwith interest of Rs.6,31,950/- (interest @ 18% p.a. w.e.f. 17.02.2009). The Plaintiff is also claiming pendente lite and future interest @ 18% p.a. on the said amount. Hence, this suit.
2. Summons for settlement of issues were issued to the Defendant. Upon service, the Defendant filed Written Statement wherein it is stated that the Plaintiff has not come before this Court with clean hands and has concealed material facts. It is stated that Defendant has never entered into any work contract CS/7459/2016 Page 4 of 21 with the Defendant and has nothing to do with the present suit or claim. It is further stated that no documentary proof has been filed on behalf of the Plaintiff in support of his alleged claim.
2.1. On merits, it is stated that merely because defendant is wife of Mr. M.S. Narula, Managing Director of D.S. Construction Ltd., is not a sufficient ground to file this suit against her as the Defendant is a house-wife and has nothing to do with the alleged claim. The Defendant has denied making any payment to Plaintiff either in cash or by cheque. All other the averments made in the plaint are denied on behalf of Defendant and it is prayed that present suit be dismissed.
3. Replication to Written Statement was filed on behalf of the Plaintiff whereby it is stated that the Plaintiff has filed sufficient documentary evidence to prove the amount claimed. The Plaintiff has denied all the contents of the Written Statement and reiterated and reaffirmed the averments made in the plaint.
4. On completion of pleadings, following issues were framed on 17.01.2014:-
1. Whether the plaintiff has no cause of action as defendant never entered into any work contract with plaintiff? OPD
2. Whether plaintiff is entitled to a decree of Rs.19,32,648/-
with pendente lite and future interest @18% per annum? OPP
3. Relief.
Thereafter, matter was fixed for Plaintiff's evidence.
CS/7459/2016 Page 5 of 215. To prove his case, the Plaintiff himself stepped in witness box and tendered his evidence by way of affidavit Ex. PW1/A, wherein he has made deposition similar to his averments made in the plaint. He has placed reliance on certain documents viz:-
1. Office copy of offer letter dated 25.04.2008 submitted by plaintiff to defendant as Ex. PW1/1.
2. Acceptance Letter dated 14.05.2008 given by defendant to the Plaintiff as Ex. PW1/2.
3. Running bill bearing RA bill no. I/2774 dated 14.07.2008 Ex. PW1/3.
4. Running bill bearing RA bill no. II/2775 dated 25.09.2008 Ex. PW1/4.
5. Running bill bearing no. RA Bill no. III/2776 dated 15.11.2008 Ex. PW1/5.
6. Abstract/ certificate certified by Mr. Partho Ghosh in respect of RA bill no. III/2776 is Ex. PW1/6.
7. Final bill bearing no. RA bill no. III/2776 dated 15.11.2008 for Rs.46,71,562.33 as Ex. PW1/7.
8. Copy of abstract alongwith supporting sheets as Ex. PW1/8.
9. Copy of certificate with respect to payable amount of Rs.12,82,218/- algongwith supporting sheets Ex.PW1/9.
10.Bill of Rs.18,480/- towards electrical jobs Ex.PW1/10.
11. E-mails exchanged between the parties Ex.PW1/11.
12. Printout showing recovery of gmail account Ex.PW1/12.
13. Printout of email dt. 14.11.2008 Ex. PW1/13
14. Certificate u/s 65B of Evidence Act, Ex. PW1/14.
CS/7459/2016 Page 6 of 21PW1 was cross-examined by Ld. Counsel for Defendant.
5.1. PW2 Mr. Partho Ghosh had appeared as a summoned witness and deposed that he was working with M/s DSC Ltd as Sr. Engineer in the year 2008-2009 and that he knew the Defendant as she was wife of Mr. M.S. Narula, Managing Director of Ms/ DSC Ltd. He stated that the Plaintiff worked as contractor at F-2/1, Khanpur Extension, New Delhi and he was posted as billing engineer having responsibilities to check the bills submitted by the Plaintiff and to pass the same for payment. He stated that the Plaintiff carried out renovation work including plumbing and electrical work at the site as per the instructions of defendant herein. He further stated that the Defendant used to make payments to the Plaintiff as per bills passed by him and ad- hoc payments were also used to be made by Defendant to the Plaintiff. He stated that the the said work was awarded to the Plaintiff as Defendant wanted to shift her residence from Golf Link to the aforesaid premises and after completion of work by the Plaintiff, the Defendant shifted to F-2/1, Khanpur Extension. The Plaintiff completed the work as per the requirements of Defendant. He identified the bills Ex. PW1/3, Ex. PW1/4 and Ex. PW1/5 to be the bills submitted by the Plaintiff and stated that the hand written figures mentioned in Ex. PW1/5 have been made by him. He also deposed that Ex. PW1/6 is in his own handwriting and bears his signatures. He stated that Ex. PW1/7 is the fourth/ final bill submitted by the Plaintiff. He further identified Ex. PW1/8 and Ex. PW1/9 to be in his own handwriting. He further deposed that the Plaintiff had also CS/7459/2016 Page 7 of 21 disposed off malba from the site and a sum of Rs.19,250/- was allowed to the Plaintiff on said account. The Plaintiff also done repainting work for which Rs.60,000/- was allowed and sum of Rs.3,91,997/- was also allowed to be paid to the Plaintiff. Rs.70,156/- was also allowed towards additional work done by the Plaintiff. He further deposed that Rs.70,000/- was deducted towards conduit pipe and Rs.70,000/- was deducted towards material supplied by Defendant to the Plaintiff. He stated that total sum payable to Plaintiff came to be Rs.46,82,218/- against which Rs.34,00,000/- had been paid and thus, Rs.12,82,218/- was found to be payable to the plaintiff. He stated that all amounts allowed to Plaintiff and deductions made in Ex.PW1/9 were as per instructions given by the Defendant. He stated that he did not remember if the Plaintiff got extra electrical job done through S.M. Enterprises. He was cross-examined by Ld. Counsel for the Defendant wherein he stated that no written communication/ authority was given to him to get any work done and that Sh. H.K. Gupta (his boss) told him to get the work in question done. He denied the suggestion that he had not got any instructions from Defendant and voluntarily added that defendant gave him oral instructions. He also denied the suggestion that he alongwith Mr. Sudhir Nehra and Plaintiff conspired against the Defendant to extort money and defraud her.
5.2. PW3 Sh. Sudhir Nehra is also a summoned witness who stated that he know the Defendant as she was one of the Directors of DSC Group of companies around 2008-2009. He identified LOI Ex. PW1/2 being given to Plaintiff under his signatures which was issued for civil, electrical and sanitary CS/7459/2016 Page 8 of 21 renovation work for net vision building at F-2/1, Khanpur Extension, New Delhi as the same was to be used as residence by Defendant and Mr. M.S. Narula. He identified Ex. PW1/1 to be offer letter submitted by the Plaintiff. He deposed that Plaintiff was also the contractor in several other projects of the company and lot of email correspondence used to be exchanged between him and the Plaintiff and that emails Ex.PW1/11 were marked to him as CC. He stated that award of work of other company projects were given to the plaintiff on letterheads, however, LOI Ex. PW1/2 was not given on any letterhead as the work was with regard to the personal residence. He stated that on instructions of the Defendant he issued Ex. PW1/2 and got the work in question done from the Plaintiff. He further deposed that Defendant was directly involved in the work and work was supervised by Mr. Partho Roy. He was cross-examined by Ld. Counsel for the Defendant and stated that Defendant had given him oral instructions to issue letter of intent to the Plaintiff for the work in question. He denied the suggestions put to him by Ld. Counsel for the Defendant.
Thereafter, PE was closed.
6. In defence, the Defendant herself appeared as DW1, who tendered her evidence by way of affidavit Ex. DW1/A, wherein she made similar depositions as made in the written statement. She was cross-examined at length by Ld. Counsel for the Plaintiff.
Thereafter, DE was closed.
CS/7459/2016 Page 9 of 217. I have heard arguments as advanced by Ld. Counsel for the Plaintiff as well as Ld. Counsel for Defendant and gone through the material available on record. I have also considered the written submissions filed on behalf of the Defendant. My issue-wise findings are as under:-
Issue no. 1 Whether the plaintiff has no cause of action as defendant never entered into any work contract with plaintiff? OPD Issue no. 2 Whether plaintiff is entitled to a decree of Rs.19,32,648/- with pendente lite and future interest @18% per annum? OPP
8. Both these issues are taken up together being interconnected. The burden of proving issue no.1 was upon the Defendant and burden of proving issue no.2 was upon the Plaintiff.
8.1. In nutshell, the case of the Plaintiff is that he has got the civil, electrical and sanitary renovation work done at F-2/1, Khanpur Extension, New Delhi (hereinafter referred to as the property) for the Defendant through her agents/ representatives Mr. Sudhir Nehra and Mr. Partho Ghosh. It is the case of the Plaintiff that after several rounds of negotiations between the Plaintiff and the Defendant and her husband and her representatives Mr. Sudhir Nehra, Mr. H.K. Gupta, Mr. Amit Singhal and Mr. Partho Ghosh, Plaintiff has submitted his CS/7459/2016 Page 10 of 21 quotation dated 25.04.2008 Ex. PW1/1 to the Defendant for the desired work and the said offer of the Plaintiff was accepted by the Defendant through her representative/ agent in the form of Letter of Intent dated 14.05.2008 Ex. PW1/2.
8.2. Counsel for the Defendant has argued that the alleged letter dated 25.04.2008 Ex. PW1/2 has not been issued by the Defendant herself. The question to be decided is whether an agent can enter into an agreement/ contract on behalf of his principal or not? The answer is in the affirmative (reference Section 182 of the Indian Contract Act) and the authority to the agent can be expressed or implied. In the present case, admittedly, there is no express authority given to the agent/ representatives namely Mr. Sudhir Nehra and Mr. Partho Ghosh, but however, if implied authority to the said agents has been given by the Defendant, the same has to be inferred from the circumstances of the case and/ or from the ordinary course of dealing. Mr. Sudhir Nehra has appeared as a summoned witness PW3 wherein he has stated that he knew the Defendant as she was one of the directors in DSC group of companies around 2008-2009 and Defendant is the wife of Mr. M.S. Narula, who is one of the Directors of the DSC group of companies. In his examination-in-chief, he has further stated that he admits his signatures at point 'A' in the Letter of Intent Ex. PW1/2 and also admits the same was issued by him in pursuance of the offer letter Ex. PW1/1 submitted by the Plaintiff. He further states that the said renovation work was required to be done as the said premises was to be occupied by the Defendant and her husband as their residence and that Defendant had asked him to get the CS/7459/2016 Page 11 of 21 said work done from the Plaintiff and to show the Plaintiff the site and on her instructions, he issued the Letter of Intent Ex. PW1/2 to the Plaintiff. He further stated that the Defendant was directly involved in the said works and the work was supervised by Mr. Partho Roy. Said witness PW3 was cross-examined by the counsel for the Defendant wherein he has stated that there was a contract between the Plaintiff and the Defendant for the work in question and also that there was no contract between the Plaintiff and Ebony Retail Pvt. Ltd. for the work in question. He has further stated that Defendant has given him the oral instructions to issue the Letter of Intent to the Plaintiff for the work in question. Though a suggestion regarding the giving of the oral instructions was put to the said witness, however, the said witness again voluntarily stated that oral instructions were given by the Defendant. There is nothing in the said cross-examination to demolish the version put forth by PW3 in his examination-in- chief. Counsel for the Defendant has submitted that PW3, in his examination-in-chief has stated that he was not involved in checking and verification of the alleged bills of the Plaintiff. A holistic look on the complete testimony of PW3 shall show that the said witness has categorically stated that he was involved in the said renovation as a Project Manager and that checking and verification was to be done by the Site Engineer namely Mr. Partho Ghosh PW2. Thus, from the above discussion, it can be fairly inferred that Mr. Sudhir Nehra was acting as an agent for the Defendant and it was on the oral instructions of the Defendant that Letter of Intent Ex. PW1/2 was issued to the Plaintiff on behalf of the Defendant.
CS/7459/2016 Page 12 of 218.3. Mr. Partho Ghosh has appeared as a summoned witness PW2 wherein he has stated that he knows the Defendant as she was the wife of Sh. M.S. Narula who was the Managing Director of M/s DSC Ltd. where PW2 was working as Sr. Engineer in year 2008-2009. In context of the present case, he has testified that he was posted as a billing engineer and his responsibility with regard to the renovation works executed by the Plaintiff was to check the bills submitted by the Plaintiff and to pass the same for the payment to the Plaintiff. He has further stated that he used to check the bills as per the instructions of the Defendant and thereafter, he used to submit the checked bills to the Defendant for payment to the Plaintiff and Defendant used to make payment to the Plaintiff as per the bills passed by him. He has further corroborated the factum that the work was awarded to the Plaintiff as Defendant wanted to shift her residence to the property and that after the completion of the work, the Defendant alongwith her family shifted to the property. He has admitted the Ex. PW1/3, Ex. PW1/4 and Ex. PW1/5 as the bills submitted by the Plaintiff and further admit the cuttings and the handwritten figures mentioned on pages 40 to 49 of Ex. PW1/5 have been made/ written by him. He further admits Ex. PW1/6 in his handwriting and bearing his signature at three places all marked as point 'A'. He further admits page 65, 66 to 73 to be in his handwriting and page 73 bearing his signature. He also admits Ex. PW1/9 to be in his handwriting. He further submits that all the amounts allowed to the Plaintiff and deductions made in Ex. PW1/9, were as per instructions of the Defendant and after the preparation of the said abstract Ex. PW1/9, the same was given to the Defendant for payment. The said witness was cross-examined CS/7459/2016 Page 13 of 21 by Counsel for the Defendant, however, nothing substantial could be culled out so as to demolish the testimony of PW2 given in his examination-in-chief. Though counsel for the Defendant has contended that PW2 in his cross-examination has stated that Defendant has never given any written authority to him to get the work done and there was no contract between the Plaintiff and the Defendant, the said witness in the cross-examination has also stated that he does not know about any contract between the Plaintiff and the Defendant. Moreover, he was just a site engineer for the inspection of the works to be executed by the Plaintiff and in the making of the contract/ acceptance of the offer of the Plaintiff, it was PW3, Mr. Sudhir Nehra, who was involved as it was he only who issued the Letter of Intent Ex. PW1/2 on the instructions of the Defendant. Thus, merely because PW2 is not aware of the contract between the Plaintiff and the Defendant does not make any difference to the advantage of the Defendant. In the light of the said discussion, it can be fairly inferred that Mr. Partho Ghosh was acting as an agent for the Defendant for the purpose of inspection of the work as well the inspection of the bills submitted by the Plaintiff.
8.4. It is also to be noted that depositions of both PW2 and PW3 corroborate each other's version and it is also in consonance with the version put forth by the Plaintiff in his plaint as well as in his evidence.
8.5. On the other hand, DW1 in her cross-examination has simply denied knowing PW1 and PW2 by stating that she is not acquainted with Mr. Partho Roy and Mr. Sudhir Nehra.
CS/7459/2016 Page 14 of 21Initially, in her written statement filed on 18.09.2012, she has stated herself to be a housewife and the same was reiterated in her evidence affidavit Ex. DW1/A filed on 20.12.2016. In her cross-examination dated 12.02.2018, she has stated that she has no concern with DS Construction and has never been employed in DS Construction nor has held any honorary position in DS Construction. However, in cross-examination conducted on 16.02.2018, she states that she is not a homemaker any longer and that she was a housewife in year 2010. However, on being confronted with document Ex. DW1/P1, wherein she is mentioned to be the Director of Ebony Sergent Major Retail (India) Pvt. Ltd. with begin dated 16.09.2008, she stated that she is admitting all the contents of the said document and that she did not remember if she became the Director of the said company on 16.09.2008. On her attention being drawn from point 'B' to 'B1' on Ex. DW1/P1, she states that she could not read this document properly when it was earlier put to her because she was not wearing her glasses. Furthermore, in her cross-examination she has stated that she has no idea if her husband has any connection with DS Construction. On being confronted with para 2 of the written statement wherein it is stated that her husband is the Managing Director of DS Construction Ltd., DW1 very conveniently states that if she has so specified in her written statement, it must be correct. Even as regards the DSC Prize for South-Asian Literature, she states that it is a corporate social responsibility project of a company and she is not sure about the name of said company and that she is not personally associated with this project rather, she is only associated with DSC Prize Trust and she does not remember for how long she has been CS/7459/2016 Page 15 of 21 associated with the said Prize Trust. On being shown printout Ex. DW1/P2, she admits it to be her profile on the Website DSCPrize.com. Thus, in the light of the above discussion, it is apparent that the Defendant has been making contradictory statements and therefore, a serious cloud is raised on the credibility of the testimony of Defendant/ DW1. Even by putting suggestion to PW2 and PW3 that both PW2 and PW3 alongwith Plaintiff has conspired against the Defendant to extort money and defraud the Defendant with no material put forth by the Defendant in this regard, also puts a further dent into the credibility of the Defendant as a witness.
8.6. Counsel for the Defendant has argued that offer letter Ex. PW1/1 shows that the same was addressed to M/s DS Constructions Ltd. and that Plaintiff has raised the bills Ex.PW1/3 to Ex. PW1/5 on M/s DS Construction Ltd. Perusal of the said documents shows that the same has been addressed/ raised in Defendant's name and it is only the address that has been mentioned of DS Construction Ltd. There is nothing in the said document to show or to construe that the same was addressed/ issued to the Defendant in her capacity being the Director of the said company. Even the Defendant in her cross- examination has admitted that Ex.PW1/3 and Ex.PW1/4 bear her correct address. The said argument is without any basis. Counsel for the Defendant has argued that the Letter of Intent Ex. PW1/2 was not issued by the Defendant, rather the same shows to have been issued by a purported authorized signatory. As already discussed in the above paras, existence of agency between the Defendant and the purported signatory (Mr. Sudhir Nehra) of the CS/7459/2016 Page 16 of 21 said document has already been proved and thus, there exists a concluded agreement/ contract between the Plaintiff and the Defendant (through her agent).
8.7. Defendant in her written statement has submitted and reiterated in her evidence affidavit Ex. DW1/A that she neither knows the Plaintiff's firm namely R.K. Agency nor its alleged proprietor Mr. Digvijay Gupta. Even in her cross- examination, she has stated that she is not acquainted with the Plaintiff. Relevant to point out herein is the above discussion as regards the contradictory stand taken by the Defendant in her pleadings viz-a-viz statements made in the cross-examination. Pertinent to mention herein also are the emails exchanged between the parties Ex. PW1/11 which on perusal show that the same were addressed to email "[email protected]". In her cross-examination dt. 12.02.2018, Defendant has admitted that her email ID is [email protected] and that she has no email ID [email protected]. Plaintiff, by way of Ex.PW1/12 read with Ex. PW1/14 has shown that [email protected] is the recovery email ID for the admitted email ID of the defendant i.e. [email protected]. Defendant in her cross-examination dated 16.02.2018 has simply stated that she does not admit the genuinity of the document Ex. PW1/12. Apart from this bald denial, Defendant has not been able to displace the genuinity of the electronic evidence Ex. PW1/12, by means of concrete and substantial evidence. Even no explanation has come forward as to how the yahoo email is not the recovery email to the admitted mail ID [email protected] or that some other email is the recovery email of the admitted email. Thus, this Court can fairly CS/7459/2016 Page 17 of 21 conclude that the email ID [email protected] is of the Defendant. Resultantly, it can be fairly presumed that emails sent on [email protected], which as discussed above has been proved to be of the Defendant's, were in the knowledge of the Defendant. If mails sent on the said email ID and it has been proved that the yahoo email is of Defendant, then the Defendant stating that she did not respond to the said emails as the email does not pertain to her, does not inspire confidence. This Court is also of the view that if the Plaintiff is in knowledge of the email [email protected] which is proven to be the recovery email for the admitted email [email protected], there is every likelihood that the same was given/shared to/with the Plaintiff by the Defendant. This Court has also gone through the testimony of the Defendant wherein she has made bald assertions regarding not knowing Mr. Partho Ghosh (PW2) and Mr. Sudhir Nehra (PW3), which as already discussed above, this Court has already come to the conclusion that the said persons were the agents of the Defendant, who have been acting and dealing on behalf of the Defendant with the Plaintiff. Thus, the statement of the Defendant that she is not acquainted with the Plaintiff is nothing but a bald and vague statement without any basis.
8.8. Since in light of the above discussion, it has been proved that there existed a valid contact between the Plaintiff and the Defendant, it has to be seen whether there was the breach of the said contract and if yes, what are the damages resulting out of the said breach. PW2 Partho Roy in his examination-in-chief has stated that the Plaintiff carried out the awarded work as per the instructions and directions of the Defendant and that he used to CS/7459/2016 Page 18 of 21 check the bills as per instructions of the Defendant and submit the checked bills to the Defendant for the payment to the Plaintiff and that Defendant used to make payments to the Plaintiff as per the bills passed by him. He also stated that Plaintiff has completed the work as per the requirement and wishes of the Defendant. He has admitted Ex. PW1/3 to Ex. PW1/5 being the running bills submitted by the Plaintiff. He further admits Ex. PW1/7 to be the fourth/ final bill submitted by the Plaintiff. PW2 has also admitted Ex. PW1/9 to be in his handwriting, according to which the total value of the work done by the Plaintiff was Rs.42,80,815/- which figure has been taken from Ex. PW1/8 which is also admitted by PW2 to be in his handwriting. He further states that Rs.19,250/- was allowed to the Plaintiff for the disposal of malba from the site; Rs.60,000/- was allowed for the repainting work; Rs.3,91,997/- was allowed on the account of the amount retained in the previous running bill; Rs.70,156/- was allowed towards additional works done; and Rs.70,000/- was deducted towards conduit pipe as the Plaintiff has not laid the conduit pipe and further sum of Rs.70,000/- was also deducted towards the material supplied by the Defendant. He further states that the total sum payable to the Plaintiff came to be Rs.46,82,218/- against which a sum of Rs.34 Lakhs was paid to the Plaintiff and a sum of Rs.12,82,218/- was found to be payable to the Plaintiff. The cross-examination by the Defendant of PW2 has been limited to the aspect of the said PW2 not having any written communication / authority from the Defendant to get the work done. There is no further cross-examination by the Defendant on the subject of the works being got executed under the inspection of the PW2 and the amounts thereof. As already CS/7459/2016 Page 19 of 21 discussed above, it already stands proved that PW2 was acting as agent of the Defendant to get the work executed from the Plaintiff under her instructions. Thus, it stands proved that a sum of Rs.12,82,218/- is pending payment against the Defendant. It is noted that Plaintiff has claimed a sum of Rs.13,00,698/- being the aggregate of sum of Rs.12,82,218/- and another amount of Rs.18,480/- on the account of extra electrical jobs got done by the Plaintiff. However, the said amount of Rs.18,480/- is not allowed in favour of the Plaintiff since PW2 has stated that he does not remember whether the Plaintiff has got done extra electrical job. This Court is also of the view that if the said electrical job would have been done by the Plaintiff, then the same would have find mention in the extract Ex.PW1/9.
8.9. In the light of above discussion and applying the principles of preponderance of probabilities, plaintiff is entitled to recovery of sum of Rs.12,82,218/- from the defendant.
8.10. In the recovery amount mentioned in the plaint, plaintiff has also added interest on the unpaid amount @ 18 % from the date 17.02.2009 i.e. when PW2 Mr. Partho Gosh certified the final bill. However, it is noted that there is no date mentioned on the abstract Ex. PW1/9 prepared by PW2 since the said abstract is essentially the approval of the final payment to be made to the plaintiff after making and considering all the necessary additions and deductions. Moreover, nothing has been brought on record by the Plaintiff regarding the rate of interest being normal and prevalent in commercial transaction. Mere averment would not suffice to prove the rate of interest. In view CS/7459/2016 Page 20 of 21 of the same, no interest is allowed till the filing of the suit.
8.11. As discussed above, interest till the filing of the suit has been disallowed. However, this Court is conscious of the fact that the plaintiff has been deprived of the constructive use of his money and therefore, this court deems it fit to grant interest @ 6% on the decreed amount i.e. Rs.12,82,218/- from the date of the filing of the suit till its actual realization (which is inclusive of both pendente lite and future interest).
RELIEF
9. From the discussions, as adumbrated hereinabove, a decree of Rs.12,82,218/- (Rupees Twelve Lacs Eighty Two Thousand Two Hundred Eighteen) is passed in favour of the Plaintiff and against the Defendant. The plaintiff is also entitled to interest @ 6% on the decreed amount i.e. Rs.12,82,218/- from the date of the filing of the suit till its actual realization (which is inclusive of both pendente lite and future interest). The cost of the suit is also awarded in favour of the Plaintiff and against the Defendant.
Decree-sheet be prepared accordingly.
File be consigned to Record Room after due
Digitally signed
compliance. MUNISH by MUNISH
BANSAL
Announced in the Open Court BANSAL Date: 2024.07.26
16:54:58 +0530
on 25.07.2024 (Munish Bansal)
District Judge-03
South District, Saket Courts
New Delhi
CS/7459/2016 Page 21 of 21