Delhi District Court
Ashok Sharma vs Mr. David George on 16 July, 2018
IN THE COURT OF DHEERAJ MOR: ACJcumCCJcumARC
(SOUTHWEST): DWARKA COURTS: NEW DELHI.
CS No. 113/13
CNR No. DLSW03 000235 2013
Ashok Sharma
Proprietor of
M/s Saatvik Interiors & Developers
36D, DDA Flats, pocket1, Sector7,
Dwarka, N. Delhi75
............... Plaintiff
Vs
1. Mr. David George,
R/o Flat No. 72, LIG DDA Flats,
Sector14, pocket3, Dwarka, N. Delhi78
2. Mr. M.M. George,
Flat No. 277, 4th floor,
Shaheed Bhagat Singh Apartment,
Pocket3, Phase 2, Sector14,
Dwarka, N. Delhi.
...............Defendants
Date of Institution: 04.06.2013
Date of reserving judgment: 08.06.2018
Date of Judgment: 16.07.2018
JUDGMENT:
1. This is a suit for recovery of Rs. 76,900/ alongwith pendentelite and future interest @ 24 % per annum.
2. In brief, case of the plaintiff is that he is interior decorator and developer, who is carrying out said business in the name and style of M/s Saatvik interiors & developers as its sole proprietor. The plaintiff has averred that in the month of October, 2012, both the defendants approached him for carrying some CS No. 113/13 Ashok Sharma vs. David George & Anr. 1 of 12 interior work in their flat No. 72, LIG DDA Flats, sector 14, pocket 3, Dwarka, New Delhi75 (hereinafter referred as suit flat). It is further averred that plaintiff consented for carrying out all the interior work in the suit flat. He has averred that in accordance with the work order placed by the defendants, he carried out interior work in the suit flat and after its completion, as per settled rate and after adjusting all the credits and debits, an amount of Rs. 76,900/ was due against the defendants. Plaintiff has further averred that defendants did not pay the abovesaid amount despite several requests and issuance of the legal demand notice dated 11.02.2013. Hence, present suit for the recovery of the aforementioned amount alongwith pendentelite and future interest.
3. Summons of the suit were issued to both the defendants and they filed a written statement. They have denied veracity of the plaint and its contents. They have contended that plaintiff has done interior work in the suit property in contravention of the agreement. They have further averred that the material used by him for the said work is of very poor quality and not as per the settled parameters. They have contended that defendant No. 1 is the owner of the suit property and plaintiff approached defendant No. 2 for its renovation. It is further contended that plaintiff obtained the said contract at higher rates. They have contended that the original work agreement consisted of only two pages. However, work agreement filed alongwith the suit runs into three pages. They have placed on record the copy of the work agreement (in two pages). They have asserted that they had given total advance payment of Rs. 2,20,000/ to the plaintiff as per the schedule detailed below: Date of payment Amount 28.10.2012 Rs. 50,000/ CS No. 113/13 Ashok Sharma vs. David George & Anr. 2 of 12 04.11.2012 Rs. 50,000/ 27.11.2012 Rs. 50,000/ 05.12.2012 Rs. 30,000/ 13.12.2012 Rs. 20,000/ 18.12.2012 Rs. 20,000/ Total Rs. 2,20,000/
4. In the written statement, they have contended that on 13.12.2012, plaintiff executed a receipt, wherein he acknowledged the receipt of Rs. 2,00,000/ from them and further mentioned a balance amount of Rs. 26,900/ in the same receipt. They have contended that there was variation in the last two payments in the receipt as he wrongly wrote them to be Rs. 35,000/ and Rs. 15,000/ instead of Rs. 30,000/ and Rs. 20,000/ respectively. They have contended that since the total paid amount was correctly mentioned in the receipt, they did not pay attention to the said variation. They have further contended that as per agreement the renovation work in the suit property was scheduled to be completed on 13.12.2012. However, on its inspection on 05.12.2012, the same was found to be incomplete. Plaintiff assured to complete the entire work on 15.12.2012. Defendants shifted to the suit property on 15.12.2012, though the renovation work was still incomplete on the said date. Defendants have asserted that on 18.12.2012, they made further payment of Rs. 20,000/ to the plaintiff. However, plaintiff did not issue a receipt despite their request. They have asserted that defendant No. 2 withdrew an amount of Rs. 10,000/ each on 12.12.2012 and 15.12.2012 from Axis Bank for making said payment to the plaintiff. The defendants have contended that there were numerous flaws and defects in the interior work carried out by the plaintiff in the suit property. The said defects were brought to the notice of the plaintiff and he assured to get the same repaired. However, he did not get them repaired. Plaintiff approached the CS No. 113/13 Ashok Sharma vs. David George & Anr. 3 of 12 defendants in the first week of January, 2013, for payment of Rs. 6,900/.The defendants agreed to make the said payment subject to repairing of the said defects by the plaintiff. However, plaintiff did not get the same repaired. The defendants had to incur expenses of Rs. 8,000/ for repairing of the flat. Still, defendants were prepared to pay the said amount of Rs. 6,900/ to the plaintiff. However, the plaintiff started threatening the defendants and issued a false legal notice dated 11.02.2013 to them. They have asserted that in the said legal notice, plaintiff has stated that he met defendant No. 2 on 14.01.2013. However, defendant No. 2 was not in Delhi from 09.01.2013 to 27.01.2013.The defendants have given the details of the defects in the interior work of the plaintiff in suit property and their photographs are annexed with the written statement. With these contentions, the defendants have sought dismissal of this suit.
5. Replication to the written statement was filed by the plaintiff in which he has denied the averments made in the WS and reaffirmed his assertions made in the plaint.
6. On the basis of pleadings of parties, following issues were framed on 30.08.2016:
(a). Whether the plaintiff is entitled to recover a sum of Rs. 76,900/ from the defendants, as prayed for? OPP
(b). Whether the plaintiff is entitled to interest @ 24 % p.a from 01.03.13 till realization of amount, as prayed for? OPP
(c). Whether the plaintiff has suppressed material facts in the plaint? OPD
(d). Whether there was any deficiency in the renovation work done by the plaintiff? OPD
(e) relief.
7. In plaintiff evidence, plaintiff examined two witness.
CS No. 113/13 Ashok Sharma vs. David George & Anr. 4 of 12 Plaintiff Sh. Ashok Sharma is examined as PW1. He has reiterated the contents of the plaint on oath. Therefore, they are not reproduced herein for the sake of brevity and to avoid repetition. He has exhibited following documents:
(a).Ex.PW1/x is the plaint;
(b). Ex.PW1/1 is the copy of work agreement;
(c).ExPW1/2 is the copy of ledger account;
(d).ExPW1/3 is the copy of notice dated 11.02.2013; and
(e).Ex.PW1/4 is the reply dated 18.02.2013.
7.1. In his cross examination, he admitted that handwritten portion of page No. 2 of Ex.PW1/1 is in his handwriting. He further admitted that documents Ex.DWA and Ex.DWB are also in his handwriting and document Ex.DWB finds mention that balance is Rs. 26,900/. He has testified that a total amount of Rs. 1,50,000/ was paid to him by the defendants in three equal installments of Rs. 50,000/ each and he had issued separate receipts in that regard to the defendants. He has explained Ex.DWB stating that it is an estimate of total work and payment schedule, wherein defendants had agreed to pay Rs. 26,900/ after the completion of work. He has testified that he had handed over the suit flat to the defendants after their full satisfaction within the stipulated time as per the work agreement. In respect of the photographs depicting the defects in the renovation work of the suit flat, placed on record by the defendants, PW1 has deposed that the said photographs are post dated and not of the date when he concluded the renovation work in the suit flat. He has explained the said defects stating that they occurred subsequently due to the wear & tear and on account of act of the defendants.
8. PW2 Sh. C.V.S. Somayajulu has tendered his affidavit Ex.PW2/A in his examination in chief. He has a flat in the same housing society in which the suit flat is situated. He has deposed CS No. 113/13 Ashok Sharma vs. David George & Anr. 5 of 12 that in the year 2012, he hired plaintiff as a contractor for interior designing and decoration of his flat after he discovered that he had satisfactorily redesigned the flat of his friend in the same society. He has testified that he was completely satisfied with the services rendered by the plaintiff in respect of interior designing of his flat. He has deposed that defendant No. 2 is his neighbour, who often used to visit his flat at the time when it was being renovated by the plaintiff. Accordingly, being impressed by his work, defendant No. 2 hired plaintiff for interior designing and decoration of the suit flat belonging to his son / defendant No. 1. He has deposed that during the process of interior designing of the suit flat, the defendants used to express their complete satisfaction of the plaintiff's work. He has testified that he does not know why defendants have not made payment to the plaintiff. In his cross examination, he admitted that he does not know about the financial dealings between plaintiff and the defendants. Seven photographs Ex.PW1/D1 to Ex.PW2/D7 of the suit flat were shown to the witness to elicit defects in the work of the plaintiff. However, he has testified that the defects, if any, depicted in the said photographs are due to wear & tear and usage.
9. Thereafter, plaintiff evidence was closed and case was fixed for defendant evidence.
10. In defendant evidence, defendants examined only one witness DW1 Sh. M.M. George. He tendered his evidence by way of affidavit Ex.DW1/A. He has reiterated the contents of his written statement on oath. Hence, they are not reproduced herein to avoid verbosity. In his cross examination, he has deposed that his wife and his son / defendant No. 1 are the joint owners of the suit flat. He has testified that defendant No. 1 entered into the said agreement with the plaintiff. He has testified that he paid the entire money to the plaintiff. He admitted that they did not make any complaint in writing CS No. 113/13 Ashok Sharma vs. David George & Anr. 6 of 12 for the deficiency of the interior work of the plaintiff. He has testified that he was making payment to the plaintiff as and when he was demanding during the progress of the work. He has denied that he used to take receipt of payment from the plaintiff. He has deposed that he has placed on record receipt of payment of Rs. 2,00,000/ and subsequent amount of Rs. 20,000/. He has deposed that an amount of Rs. 6,900/ was due and payable by the defendants without adjusting the extra amount that was paid by them for rectification of the defect in the work of the plaintiff in the suit flat. Thereafter, defendant evidence was closed.
11. Final arguments are heard. The file and the written submissions filed on behalf of the defendants are perused.
12. My Issue wise findings are as under:
13. Issue No. 1:
(a). Whether the plaintiff is entitled to recover a sum of Rs. 76,900/ from the defendants, as prayed for? OPP.
The onus of proving the said issue lies upon the plaintiff. 13.1. Before adverting to the contentious issues, I deem it appropriate that the relevant admitted facts be jotted down. It is an admitted fact that the defendants had engaged plaintiff for renovation and interior decoration of their suit flat. The defendants have admitted that the total amount payable to the plaintiff for the said work was Rs. 2,26,900/. The contentious issue is that the plaintiff has asserted that he has only received Rs. 1,50,000/ out of the said amount and therefore, an amount of Rs. 76,900/ is still outstanding. Whereas, defendants have contended that they have paid Rs. 2,20,000/ to the plaintiff out of the said amount and only Rs. 6,900/ is due. They have further contended that the said amount is also not payable to the plaintiff as there are numerous deficiencies in the work rendered by the plaintiff.
CS No. 113/13 Ashok Sharma vs. David George & Anr. 7 of 12 13.2. PW1 has testified that he has only received Rs. 1,50,000/ by way of three installments of Rs. 50,000/ each in cash from the defendants and he had issued receipts in that regard to the defendants. The defendants have admitted that they have paid the said amount in cash by way of three installments, however, they have denied the issuance of the receipts. The defendants confronted an undated document Ex.DWB to PW1. PW1 has admitted that the same is in his handwriting. The said document finds mention that after deducting Rs. 2,00,000 from Rs. 2,26,900/ an amount of Rs.26,900/ is 'balance'. Further, the said document is admittedly, pertains to the present transaction between the parties. 13.3. Ld. Counsel for the plaintiff has contended that the said document Ex.DWB is the estimate of the work and schedule of the payment and not the statement of account of the defendants. She has, therefore, contended that the said document does not reflect the total amount due against the defendants. The aforesaid contentions of the plaintiff are not tenable. The plaintiff is admittedly an educated and qualified interior designer. He has made all his documents including Ex.PW1/A, Ex.DWA and Ex.DWB in English language. Therefore, it can be safely inferred that he is conversant and comfortable in the said language. In Ex.DWB, PW1/ plaintiff has mentioned that an amount of Rs. 26,900/ is 'balance'. He has explained by said word he meant that the said amount was payable by the defendants after completion of renovation in the suit flat. Had that been his intention, he would not have used the word balance against Rs. 26,900/. Rather, he would have written that the said amount is payable later after completion of renovation. The unequivocal mention of word balance against Rs. 26,900/reflects that he intended that except for the said amount, he has received the remaining payments from the defendants. By no stretch of CS No. 113/13 Ashok Sharma vs. David George & Anr. 8 of 12 reasonable imagination, the word 'balance' can be attributed the meaning which the plaintiff intends to assign. Even in the common parlance, the word 'balance', in the given situation, can not be construed anything other than remaining amount payable. In these circumstances, vide said document Ex.DWB, the plaintiff has admitted that only an amount of Rs. 26,900/ is balance/ due out of the total amount of Rs. 2,26,900/.
13.4. In respect of the said balance amount, DW1 has testified that he has paid Rs.20,000/ out of Rs. 26,900/ on 18.12.2012. He has deposed that he had withdrawn Rs. 10,000/ each from his bank account on 12.12.2012 and 15.12.2012. He has placed on record the withdrawal receipts of the said amount and the same is Ex.DW1/3. However, he has failed to place on record any receipt purportedly executed by the plaintiff in respect of the said amount. Further, the receipts Ex.DW1/3 merely shows that the said amount was withdrawn by DW1 from his bank account, but that is not sufficient to establish that the withdrawn amount was subsequently handed over to the plaintiff. Besides, on the alleged date of the said payment, a dispute had already arisen between the parties. In these circumstances, it was not expected from defendant no.2 to have handed over the said amount to the plaintiff without obtaining a receipt from him. Hence, his testimony does not inspire sufficient confidence. Further, he has admitted that an amount of Rs. 6,900/ was due in favour of the plaintiff towards the work done by him. Hence, in view of above discussion, a total amount of Rs. 26,900/ is due and payable to the plaintiff by the defendants. Issue no.1 is accordingly, decided.
14. Issue No. 2 :
(b).Whether the plaintiff is entitled to interest @ 24 % p.a from 01.03.13 till realization of amount, as prayed for? OPP CS No. 113/13 Ashok Sharma vs. David George & Anr. 9 of 12 14.1. The onus of proving this issue lies upon the plaintiff. However, no evidence has been led by the plaintiff to establish that he is entitled to the said high rate of interest. The claim for the said rate of interest is a bare assertion without support of any reasonable and logical basis. The plaintiff has claimed interest @ 24 % per annum. However, I am of the considered opinion that the said rate of interest is unreasonable, penal and exorbitant. In the facts and circumstances of this case, pendentelite and future interest @ 9% per annum would serve the ends of justice. The said issue is accordingly decided.
15. Issue No. 3:
(c).Whether the plaintiff has suppressed material facts in the plaint? OPD 15.1. The onus of proving the said issue lies upon the defendants. However, no evidence is led by the defendants to show that the plaintiff concealed any material fact or document, which was in his possession. Therefore, the said issue is decided in favour of the plaintiff and against the defendants.
16. Issue No. 4 :
(d). Whether there was any deficiency in the renovation work done by the plaintiff? OPD 16.1. The onus of proving the said issue lies upon the defendants. The defendants have claimed that there was a deficiency in the renovation work done by the plaintiff. DW1 has testified that he had to incur the expenses of Rs. 8,000/ for repairing the defects in the suit flat left over by the plaintiff after completion of the renovation. Further, in order to substantiate the said assertions regarding deficiencies in the work of the plaintiff, DW1 has placed on record 14 photographs of the suit flat, which are exhibited as Ex.DW1/5 to Ex. DW1/18. The renovation work in CS No. 113/13 Ashok Sharma vs. David George & Anr. 10 of 12 the suit flat was admittedly completed by the plaintiff on or around 15.12.2012. However, there is no evidence on record to show that the said photographs are of the said date. Thus, it can not be conclusively held that the defects in the suit flat depicted in the said photographs are on account of deficiency in the work of the plaintiff or they are due to subsequent wear and tear in the said flat. Further, neither the defendants have specified as to whom they paid said Rs. 8,000/ for repairing of defects in the suit flat left over by the plaintiff nor they examined the said person. Hence, their said assertion is not corroborated by an independent witness. Moreover, defendants had neither issued any notice to the plaintiff for demand of damages nor filed any complaint nor they filed counter claim against the plaintiff for recovery of the expenses if any, incurred by them in respect of the said alleged deficiencies. Therefore, in these circumstances, their claim of deficiencies in services of the plaintiff is a sham and a moonshine, which is apparently made to avoid the legitimate payment of the plaintiff. In view of the above discussion, this issue is decided in favour of the plaintiff and against the defendants.
17. Relief: In view of findings of aforementioned issues, the suit of the plaintiff is decreed in favour of the plaintiff and against both the defendants for a sum of Rs.26,900/(Rupees Twenty Six Thousand and Nine Hundred only) alongwith pendentelite and future interest @ 9% per annum from the date of filing of suit till its realization. Both the defendants are jointly and severally liable to pay the said decreetal amount.
18. Cost of the suit is assessed as Rs. 11,000/ and it is also awarded in favour of the plaintiff and against both the defendants.
CS No. 113/13 Ashok Sharma vs. David George & Anr. 11 of 12
19. Decree sheet be drawn accordingly.
File be consigned to record room, after due compliance.
Announced in open Court
on 16.07.2018 (Dheeraj Mor)
ACJ/CCJ/ARC (SW)
Dwarka Courts, New Delhi
Digitally signed
by DHEERAJ
DHEERAJ MOR
MOR Date:
2018.07.21
15:35:24 +0530
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