Delhi District Court
Karima Malick vs . Harish Dua on 2 July, 2012
1
CS 962/11/96
KARIMA MALICK VS. HARISH DUA
IN THE COURT OF SH N.K. GOEL : ADDL. DISTRICT JUDGE (5) WEST
DELHI
CS 962/11/96
In re.
MRS. KARIMA MALLICK
E-1, SECTOR 7,
NOIDA, U.P.
..............PLAINTIFF
Vs.
MR. HARISH DUA (ARCHITECT)
A-2, NIRMAN VIHAR
DELHI.
.............DEFENDANT
Date of filing of plaint : 25-04-1996
Reserved for judgment : 21-05-2012
Decided on : 02-07-2012
JUDGMENT
1. In the present suit u/s 73 of the Indian Contract Act (in short, the Act) the case of the plaintiff is that she is owner of residential plot no. 499-B, Sector 19, Noida, Ghaziabad, U.P. (in short, the suit property) which was acquired by her through a registered lease deed on 11-06-81 ; that the defendant represented himself to be a professional Architect and the plaintiff engaged him to layout a plan for a residential house and get the 2 CS 962/11/96 KARIMA MALICK VS. HARISH DUA same sanctioned from the proper authority and to do the supervision work of the construction to be carried out in March, 1991 ; that the defendant demanded 2% of the cost of construction as professional fees for self ; that as per the mutual settlement between the parties the aforesaid work had to be completed within the stipulated period of one year from the date of assignment of work i.e. March, 1991; that initially the plaintiff paid an advance of Rs. 40,000/- by cash to the defendant towards clearance of his professional charges and also further amount of roughly amounting to Rs. 38,000/- through his messenger for which the defendant is not ready to account for and settle the account ; that the defendant due to his deliberate delaying tactics failed to get the construction work completed within the stipulated period i.e. by March, 1992 despite reminders and as such committed breach of contract arrived at between the parties; that the defendant did not attend the supervision work properly which finally resulted into an unnecessary delay in the construction work over the said plot at the earliest within the time allowed by the authority, firstly, because she was in a pressing need of a residential accommodation for herself and her family and, secondly, because to avoid the penalty likely to be imposed in case the construction work over the said plot was not 3 CS 962/11/96 KARIMA MALICK VS. HARISH DUA completed within the period allowed by the Development Authorities. It is stated that due to the negligence and failure of the defendant the construction over the said plot could not be completed within the allowed period and consequently the plaintiff was made liable for penalty amounting to Rs. 2500/- PM from the date of expiry of the specified period but for the breach of contract committed by the defendant and the construction work was kept carried on till June, 1994 whereafter the defendant totally ceased to supervise the construction work and thus the structure remained incomplete and unfinished. It is stated that the plaintiff has suffered loss on various counts as detailed hereinbelow:
i. Penalty to be paid to the development authority for non-completion of work within specified period: - Rs. 2500/- PM ii. Escalation in prices of building materials from the date of expiry of the stipulated period till the date of filing of the suit: - Rs. 1 Lac iii. Financial loss on account of delay in construction which the plaintiff had to pay: - Rs. 1 Lac iv. Wastage more than the requisite calculated cost on the construction:
- Rs. 2 Lac v. Mental and physical sufferance: - Rs. 1 Lac 4 CS 962/11/96 KARIMA MALICK VS. HARISH DUA
2. It is stated that the defendant also did not handover the sanctioned plan or the original lease deed and other relevant original documents which he had obtained from the plaintiff on the pretext that the same were required for supervision and to get the construction done in accordance with the exact approval plan. Hence, this suit for recovery of Rs. 5,05,000/- as compensation for breach of the contract and also for directions to the defendant to handover the approved building plan and the original title deeds to the plaintiff.
ø 3. In his written statement the defendant has pleaded that the suit is not maintainable as the same is without any cause of action as no cause of action arose to the plaintiff for filing the present suit against the defendant ; that the suit is bad for misjoinder and non-joinder of necessary parties as M/s. Designer's Nest as well as Sh Harish Rai (Architect) are necessary parties but they have not been impleaded in the suit ; that there is no privity of contract between the plaintiff and the defendant ; that the suit is hopelessly barred by the law of limitation. On merits, the defendant has, inter alia, stated that he never represented himself to be a professional Architect nor his services were ever engaged by the plaintiff either in March, 1991 or thereafter; that the defendant is a government employee 5 CS 962/11/96 KARIMA MALICK VS. HARISH DUA and as such he is not a professional Architect. According to the other averments made in the written statement the defendant does not recognize Mrs Karima Mallick (plaintiff) but he knows only one lady by the name of Smt Kanta Mallick, the sister of younger brother's wife of one Sh Vimal Malhotra who is known to the defendant. It is stated that the said Sh Vimal Malhotra came to the defendant alongwith Ms Kanta Mallick and on their request to suggest the name of some professional Architect the defendant had recommended the name of Sh Harish Rai, Architect of M/s. Designer's Nest to look after the job of the said Smt Kanta Mallick. It is stated that the defendant is not aware as to whether Smt Karima Mallick and Smt Kanta Mallick are the same persons or different ones. It is stated that the defendant was never assigned any work by the plaintiff. It is stated that M/s. Designer's Nest has a separate legal entity in which the said Sh Harish Rai is responsible for all architectural works and even the plans were also got sanctioned by Sh Harish Rai. The other averments made in the plaint have been denied. It is prayed that the suit be dismissed.
ø 4. In the replication it is, inter alia, pleaded that various handwritten slips / documents issued by the defendant are sufficient to corroborate the 6 CS 962/11/96 KARIMA MALICK VS. HARISH DUA existence of privity of contract between the plaintiff and the defendant. It is stated that the defendant has for the very first time revealed in the written statement that he is a government employee and it is just possible that he might have assumed a fictitious name for ulterior motives so that he could be able to take up the private job in the name of M/s. Designer's Nest under the name of Harish Rai and that to the knowledge of the plaintiff Harish Rai is none other than the defendant himself. ø 5. On the pleadings of the parties, following issues were framed vide order dated 17-09-1999:
i. Whether the suit is not maintainable for the reasons stated in para 1 of the Written Statement (Preliminary Objections)? ii. Whether the suit is bad for non-joinder and misjoinder of the parties as alleged in para 2 of the Written Statement (Preliminary Objections)? iii. Whether there is no privity of contract between the parties to the present suit as alleged in para 3 of the Written Statement (Preliminary Objections)?
iv. Whether the suit is barred by time as alleged in para 4 of the Written Statement (Preliminary Objections)?
v. Whether the defendant was engaged by the plaintiff in March, 1991 to 7 CS 962/11/96 KARIMA MALICK VS. HARISH DUA prepare a plan for a residential house as alleged in para 2 of the plaint? vi. Whether the plaintiff paid a sum of Rs. 78,000/- to the defendant as alleged in para 5 of the plaint?
vii. Whether the defendant did not attend the supervision work properly which resulted in unnecessary delay in the construction work as alleged in para 7 of the plaint? If so, its effect?
viii. Whether the plaintiff was made liable to penalty amounting to Rs. 2,500/- p.m. for the delay in construction of the house as alleged in para 9 of the plaint?
ix. Whether the defendant failed to hand over the sanctioned plan, original lease deed and other relevant original documents as alleged in para 12 of the plaint? If so, its effect?
x. To what amount of damages, if any, the plaintiff is entitled to recover from the defendant?
xi. Relief.
ø 6. The plaintiff has examined himself as PW-1 on 18-03-2004. From her statement it transpires that she has filed her affidavit in her examination-in- chief and has proposed to exhibit seventeen documents as Ex. PW-1/1 to Ex. PW-1/7. Ex. PW-1/1, Ex. PW-1/14, Ex. PW-1/16, Ex. PW-1/17 are 8 CS 962/11/96 KARIMA MALICK VS. HARISH DUA the photocopies and the same have been marked as Mark A to Mark D, Ex. PW-1/3 to Ex. PW-1/13 are allowed to be exhibited while Ex. PW-1/2 and Ex. PW-1/5 which are unsigned documents have been de-exhibited. She has been cross-examined at great length. PW-2 is Ms Veena Mallick who has filed her affidavit in examination-in-chief and has relied on documents Ex. PW-1/2, Ex. PW-1/3, Ex. PW-1/13, Ex. PW-1/14 to Ex. PW-1/16. She has also been cross-examined at great length. PW-3 is Sh Paras Pandit who has filed his evidence by way of affidavit Ex. PW-3/A. Again he has been cross-examined at great length. ø 7. On the other hand, the defendant has examined himself as DW-1 and has filed his affidavit Ex. DW-1/A. ø 8. The plaintiff has not led any evidence in rebuttal despite getting opportunities in this behalf.
ø 9. Written arguments have been filed on behalf of both the parties. ø 10.I have also gone through the judicial file very carefully. My findings on the issues are as follows:
ø 11.Issue no. 1 The onus to prove this issue is on the defendant. However, in the written arguments the Ld. Counsel for the defendant has not made any 9 CS 962/11/96 KARIMA MALICK VS. HARISH DUA arguments on this issue. Even otherwise, there is no evidence on the record to prove that the suit is without any cause of action. Hence, I hold that the suit discloses a cause of action. Accordingly, I decide this issue in favour of the plaintiff and against the defendant.
Issue Nos. 2, 3 and 5 to 10.
All these issues are inter-connected and, hence, can conveniently be disposed off together. The submissions made on behalf of the plaintiff in her written arguments may be summarized as follows:-
(a) That she engaged the services of the defendant who had been working under the name and style of M/s Designer Next for getting the suit property constructed in the month of March, 1991.
(b) That the defendant prepared a site plan, estimate of costs of construction and got the plan sanctioned from the appropriate authority and also got the construction work done under his own supervision.
(c) That the defendant had to charge 2% of the costs of construction as his professional fee for the entire work from the plaintiff.
(d) That the construction had to be got completed within a specified 10 CS 962/11/96 KARIMA MALICK VS. HARISH DUA period of one year i.e latest by March, 1992.
(e) That the plaintiff initially paid Rs.40,000/- to the defendant through his messenger Raju and again further amount of Rs.38,000/-approximately (totalling Rs.78,000/-) at various stages through the same messenger.
(f) That the defendant did not complete the work within the stipulated period and kept on carrying on the same till June, 1994 and thereafter he stopped the construction work due to which the construction remained incomplete and unfinished.
(g) That the defendant did not hand over the sanctioned plan, the original lease deed and the other documents to the plaintiff which he had taken on the pretext that the same were required for construction and to get the construction work done in accordance with the exact approval plan.
(h) That due to negligence and failure of defendant the construction could not be completed within the stipulated period and, hence, the plaintiff was made to pay a penalty of Rs.2500/- p.m from the date of expiry of the specified period to Noida Authorities.
(i) That the plaintiff has suffered the loss under various heads as detailed in the plaint.11
CS 962/11/96 KARIMA MALICK VS. HARISH DUA Reliance has been placed on the decisions reported as Dadarao & Anr Vs Ramrao & Others 2000(1) Civil Court Cases 199(SC), Mohinder Singh & Others vs Guljit Singh 2000(3) Civil Court Cases 412 (P&H) and Arakhita Swain Vs Kandhuni Swain AIR 1983 ORISSA 199.
Hence, it is prayed that the suit be decreed.
On the other hand, the submissions made in the written arguments filed on behalf of the defendant may be summed up as under:-
(i) That the defendant at the relevant time was a Government employee and not a professional architect nor did he represent as such to the plaintiff at any point of time.
(ii) That M/s Designer Next and Harish Rai architect are necessary parties and there was infact no privity of contract between the plaintiff and the defendant. According to the admission made by the plaintiff in her cross-
examination as PW-1 the defendant whose name is Harish Dua and Harish Rai are two different persons.
(iii) That the plaintiff has failed to proved that there was any such agreement between her and the defendant that he was to charge 2% of the 12 CS 962/11/96 KARIMA MALICK VS. HARISH DUA cost of construction as his professional fee or that the defendant had ever got the building plan sanctioned from the concerned authority or that the defendant had ever been paid Rs,40,000/- or Rs.38,000/- at any point of time.
(iv) That the plaintiff has failed to prove that she had handed over the original lease deed, sanctioned plan and the other original documents to the defendant at any point of time.
(v) That the defendant knew Harish Rai who was the person with whom the plaintiff had entered into the agreement in question and the defendant even furnished the address of Harish Rai to the plaintiff and that the defendant also agreed to produce the said Harish Rai at the expenses of the plaintiff but the plaintiff did not take any step towards summoning the said Harish Rai
(vi) That the plaintiff has failed to prove that she has infact incurred/suffered various damages as claimed in para 11 of the plaint.
ø 12. It is therefore, prayed that the suit of the plaintiff be dismissed. 13
CS 962/11/96 KARIMA MALICK VS. HARISH DUA ø 13.PW-1 who is the plaintiff herself is the most material witness. In her cross-examination she has, inter alia, stated that she knows the defendant since 1987 as her sister had got married with the family relative of the defendant and that Sh Vimal Malhotra is the brother-in-law of her sister Ms Madhu Malhotra. According to her, she is aware that the defendant is a government employee. She has further stated that "I know Harish Rai also. Harish Rai or Harish Dua may be two different persons". In her own words "I cannot say whether Sh Harish Rai is present in the court and who I seen, is an architect or not. Vol.: he may be elder brother or may be anybody else. Prior to the receipt of the reply from Union Counsel for Architecture (mark C) I was not aware about the name of Sh Harish Rai for the first time, I came to know that the deft is infact Harish Rai and not Harish Dua or he may Harish Rai Dua. However, it is correct that Sh Harish Rai, who is present in court is not Harish Dua. Prior to the receipt of mark C, I never heard the name of Sh Harish Rai or Harish Roy." At another place she has stated that according to her Harish Roy, Harish Dua and Harish Roy Dua is the same person. She has denied that the defendant never represented himself to be a professional architect or that the defendant never accepted any job from her. 14
CS 962/11/96 KARIMA MALICK VS. HARISH DUA ø 14. PW-2 who is the sister of PW-1 has in her cross-examination stated that she only knew Harish Dua because he was a family friend and they had handed over all the documents to him because he was an Architect. She has admitted that Sh Harish Dua used to come and attend all their family functions and occasions. She has denied that the defendant was never engaged for the construction work of the suit property by the plaintiff. In her further cross-examination, she has stated that there was an agreement in writing which was executed between the plaintiff and the defendant wherein the time of construction was stipulated. However, in the next sentence she has stated that she does not have any knowledge about any such agreement. At one place she has stated that they do not know that Sh Harish Dua was a government employee till he had refused to handover their documents and she does not remember when the said documents were given or whether the same were given in her presence or not and who delivered the same and where and at another place she has stated that she always knew and even at the time of her previous deposition in the court she knew that Sh Harish Dua is a government servant and, therefore, she used to visit him at his residential office at Nirman Vihar in the evening hours. She has admitted that they knew the 15 CS 962/11/96 KARIMA MALICK VS. HARISH DUA defendant as he was a family relative.
ø 15.Thus, it is proved on the record that the defendant was a family relative of the plaintiff. As reproduced hereinabove, PW-1 has admitted that Harish Rai is not Harish Dua. According to PW-2, an agreement was executed between the plaintiff and the defendant in her presence wherein the time of construction was stipulated. However, the unambiguous version of PW-1 is that she cannot produce any paper or document to show that she had ever engaged the services of the defendant at any point of time and she cannot produce any signed paper or document of the defendant to show that he had told that he would charge 2% of the cost of construction as his professional fees from her. No such written agreement has ever been proved on the record.
ø 16.Ex. PW-1/3 to Ex. PW-1/13 are the receipts which have been filed on the record to prove that the payments shown therein had been made to the defendant. The receipts have been addressed to Mrs Mallick, Vikas, Kanta Ji. Vide these receipts these persons had been asked to pay the amounts mentioned therein. Who wrote these receipts has not been proved. Vide these receipts the amounts shown therein were requested to be paid to Mr Chaudhary or Mr Ishwar or Mr Raju or to Mr Ajay. However, 16 CS 962/11/96 KARIMA MALICK VS. HARISH DUA who had issued and sent the said receipts to the addressee is not proved. In her cross-examination PW-1 has admitted that the receipts Ex. PW-1/4 to Ex. PW-1/13 pertain to the period from March, 1993 to June, 1994 and she does not have any other receipt with her except the ones which have already been filed. According to the plaintiff the work was assigned to the defendant in the month of March, 1991 and the construction work had to be completed by March, 1992. Therefore, receipts Ex. PW-1/4 to Ex. PW-1/13 which pertain to the period from March, 1993 to June, 1994 do not pertain to the relevant period and, hence, do not support the case of the plaintiff.
ø 17.In her further cross-examination PW-1 has stated that vide receipts Ex. PW-1/4 to Ex. PW-1/13 payments were made by her sister Veena Mallick. Now, let us see what has PW-2 stated in this behalf. ø 18.In her affidavit PW-2 has made a reliance on documents Ex. PW-1/2, Ex. PW-1/3, Ex. PW-1/14, Ex. PW-1/15 and Ex. PW-1/16. Thus, she has said nothing about the receipts Ex. PW-1/4 to Ex. PW-1/13 in her affidavit. In her cross-examination, she has stated that no terms were discussed with regard to payment in her presence. In her further cross- examination, PW-2 has stated that she had made part payment of 17 CS 962/11/96 KARIMA MALICK VS. HARISH DUA Rs. 38000/- to one Raju who used to be sent to her by the defendant for receiving the amount but she does not remember the date, month and the year when part payments were made to said Raju. However, she has stated that she used to make payment on production of the receipt which used to be prepared by the defendant mentioning the amount. She has stated that she used to handover these receipts received from Raju after making the payment to the plaintiff. In her further cross-examination she has, inter alia, stated that she has nothing to do with respect to the suit property as she was only asked by the plaintiff to make payment to the labour. According to her, her main work was to make the payments and she also used to manage the affairs of the construction in emergency whenever required in the absence of her sister. In her further cross- examination she has stated that she had not made any payment to the defendant. Thus, PW-2 herself is not sure whether she had infact made any payment to the defendant through any such Raju or whether she had not paid any money to the defendant. Therefore, PW-2 has given self contradictory statements in her cross-examination. ø 19.In her cross-examination PW-1 has stated that in para 2 of the plaint it is stated that she had engaged the defendant in March, 1991. However, 18 CS 962/11/96 KARIMA MALICK VS. HARISH DUA she has volunteered to say that it was for the supervision of the work. However, according to her the contents of para 2 of the plaint and the said statement made by her in the court are both correct. She has again volunteered to say that first the defendant had got the plans sanctioned and then the construction commenced. She has admitted that throughout in the plaint there is no mention that the plans were got sanctioned by the defendant prior to March, 1991 though she has categorically admitted that the plans were got sanctioned prior to March, 1991. She has denied that she had got the plans sanctioned prior to her meeting with Harish Dua through Vimal Malhotra or that the defendant did not do any job for her and no work was assigned to him.
ø 20.In para 2 of the plaint the case of the plaintiff is that she had engaged the defendant in March, 1991 to lay out a plan for her residential house and to get the same sanctioned from the appropriate authority. Thus, as per the case of the plaintiff made out in para 2 of the plaint, plans for construction were not got sanctioned till March, 1991 and it was for the defendant to prepare the proposed plans and to get the same sanctioned from the appropriate authority. However, she in her statement as PW-2 has now stated that the plans were got sanctioned prior to March, 1991 19 CS 962/11/96 KARIMA MALICK VS. HARISH DUA and that the contents of para 2 of the plaint as well as her said statement are correct. How can these two self contradictory facts can be reconciled together and admitted to be correct is beyond my perception and imagination. If the plans had already been got sanctioned prior to March, 1991, there was no bar for the plaintiff to have mentioned this fact in the plaint but, however, as per the case made out in the plaint the plans were infact not got sanctioned till March, 1991. Therefore, the plaintiff has made an unsuccessful and futile attempt to change her case which weakens her case.
ø 21.In her cross-examination PW-1 has further stated that she cannot produce any paper or documents to show that she had ever engaged the services of the defendant at any point of time and she cannot produce any signed paper or document of the defendant to show that he had told her that he would be charging 2% of the cost of the construction as his professional fees. As I have discussed hereinabove, as per the statement made by PW-2 who is the sister of the plaintiff the services of the defendant were engaged in her presence and there was an agreement in writing which was executed between the plaintiff and the defendant wherein the time of construction had been stipulated. She has 20 CS 962/11/96 KARIMA MALICK VS. HARISH DUA categorically denied that no written agreement had been entered into because the defendant had never been engaged as an Architect. Thus, if we believe the statement of PW-2 that a written agreement had infact been executed between the plaintiff and the defendant, then the only inference which can be drawn is that the plaintiff has intentionally told a lie and if the version of PW-1 is believed then the statement of PW-2 is rendered meaningless.
ø 22.In his affidavit Ex. PW-3/A, PW-3 has, inter alia, stated that he is a contractor for masonry / construction work and he had been engaged by the plaintiff, the owner of the suit property for carrying out the supervision of masonry / construction work in the suit property in the year 1991 and all the construction work was given to him by one Sh Harish Dua (Architect) who had been engaged to do the supervision work over the construction to be carried out. According to him, he had continued the work under the directions of Harish Dua but all the payments were made by Ms Veena Mallick who was the caretaker of the suit property. In nutshell, the gist of the statement of PW-3 is that it was on account of non-supervision of the work properly on behalf of the defendant that the construction work could not be completed as a result of which the services of PW-3 were also 21 CS 962/11/96 KARIMA MALICK VS. HARISH DUA dispensed with. In his cross-examination PW-3 has stated that he had started his work in the suit property for the month of March, 1992 but he cannot tell the date. He has stated that he knew the plaintiff from March, 1992 when he was got introduced by somebody to the plaintiff. Thus, from the cross-examination of PW-3 it becomes crystal clear that the statement made by him in affidavit Ex PW-3/A that he had been engaged by the plaintiff for carrying on the supervision of masonry / construction work in the year 1991 stands falsified by the statement made by him in his cross-examination where he has in unambiguous words stated that he had known the plaintiff in March, 1992 when he was got introduced to her by someone and that he had started the work in the suit property in March, 1992.
ø 23.PW-3 is not a reliable witness. In his cross-examination he has stated that he was handed over the prepared affidavit by the plaintiff's counsel and thereafter he took it to his home; that he is aware as to what is written in Ex. PW-3/A as her children had explained him the contents of the same ; that he had signed the affidavit in the chamber of the plaintiff's counsel in the court. He has stated that he was not present on the day when the Muhurat of the construction work had been done because 22 CS 962/11/96 KARIMA MALICK VS. HARISH DUA Muhurat had been done by some other person ; that he did not dig the foundation on the Muhurat day ; that on the day when he had started the work in the suit property nothing had been constructed on the plot apart from a room and a wall which were demolished and he started the work in March, 1992. If his version is believed that no construction did exist in the suit property in March, 1992 and whatever construction (according to him one room and a wall) had been demolished, then he has introduced altogether a new story regarding the non-existence of any construction in the suit property till the month of March, 1992 or about the demolition of one room and wall in March 1992. In his cross-examination he has stated that the maps were made by Architect Mr Harish Dua ; that he does not know this person personally ; that he (PW-3) met him (Harish Dua) on the site and was introduced to him (Harish Dua) by the plaintiff ; that he (PW-3) used to call him (Harish Dua) at his residential house but he does not know his address which is in Nirman Vihar. Very interestingly enough, PW-3 has stated that he had visited Harish Dua at Nirman Vihar for about 17-18 months but he cannot tell his exact physical description "but he is of short height and balding from front on his head" ; that "he is neither dark. He is OK-OK". A person who continuously visits another person at the 23 CS 962/11/96 KARIMA MALICK VS. HARISH DUA latter's house or office or meets him anywhere regularly for about 17-18 months can certainly becomes able to tell about the stature and the description of that person but PW-3 is unable to tell the description of Harish Dua.
¸ 24.In his further cross-examination PW-3 has stated that he (PW-3) was only a mistri at the site and he was doing the work item-wise. In his affidavit his case is that he was engaged by the plaintiff to do the supervision of masonry / construction work. However, in his cross- examination he has stated that he was only a mistri and doing the work item-wise. In his further cross-examination he has admitted that he does not know as to why the work had been stopped at the plaintiff's site though they had stopped the work in the year 1994. Thus, in his cross- examination he himself has demolished his case built up in his affidavit Ex. PW-3/A. In the affidavit his case is that it was because of the non- supervision of the work on behalf of the defendant properly that the work had to be stopped but now he has stated that he does not know the reason. Therefore, I hold him to be a non-trustworthy witness.
25.In his affidavit Ex. DW-1/A the defendant has reiterated the averments made in the written statement. Before discussing his cross-examination I 24 CS 962/11/96 KARIMA MALICK VS. HARISH DUA must make it clear that while finally disposing off the suit I do not intend to decide whether the defendant infact knew one Kanta Mallick and he did not and does not know Karima Mallick, the plaintiff. ¸ 26.In his cross-examination, he has stated that Ex. PW-1/3 to Ex. PW-1/13 pertain to the payment made to the labour and he had met the plaintiff at the site few times. These admissions made by DW-1 in his cross-examination do show that he knows about the case but, however, the position has not been further got clarified from him to make it clear whether the payments reflected in Ex. PW-1/3 to Ex. PW-1/13 were made at his instance and how does he know that these receipts pertain to the payment made to the labour or as to how he had an opportunity to meet the plaintiff at the site few times.
¸ 27.In his further cross-examination DW-1 has stated that the Architect was known to him and he knows the address of the Architect Harish Rai whose present address is C-2/6, Pragti Market, Ashok Vihar, Phase II, Delhi. He has stated that he can produce the Architect Harish Rai at the expenses of the plaintiff. However, thereafter neither the defendant nor the plaintiff ever took any steps in summoning the said Harish Rai. After closing of the evidence of the defendant the plaintiff had been given an opportunity to 25 CS 962/11/96 KARIMA MALICK VS. HARISH DUA lead evidence in rebuttal but, however, she did not lead any evidence in rebuttal despite number of opportunities given in this behalf. The plaintiff could have offered to bear the expenses of the said Harish Rai for his appearance before the court but, however, she did not do so. ¸ 28.When in her cross-examination PW-1, the plaintiff, has stated that she also knows Harish Rai and that Harish Rai and Harish Dua may be two different persons and it is correct that Harish Rai present in the court is not Harish Dua, the onus to prove that defendant Harish Dua and Harish Rai are the same persons and that the agreement in question had infact been executed by her with defendant Harish Dua and not with Harish Rai was on the plaintiff. Therefore, the non-production of the said Harish Rai by the defendant does not cause any dent in the case of the defendant. Had the plaintiff offered to bear the expenses of Harish Rai and in that situation the defendant had opted not to produce him in the court, then an adverse inference could have easily be drawn against the defendant. ¸ 29.In his cross-examination, DW-1 has denied that Harish Rai was not engaged to execute the work and he (DW-1) had done the same on his own or that he (DW-1) had taken the money from the plaintiff to execute the work or that he had executed the work and issued slips Ex. PW-1/3 to 26 CS 962/11/96 KARIMA MALICK VS. HARISH DUA Ex. PW-1/13.
¸ 30.No suggestion has been put to him in his cross-examination that the plaintiff had entered into an agreement to do the construction work in the suit property, what were the terms and conditions of the agreement, he was paid Rs. 40,000/- on one occasion and Rs. 30,000/- on other occasions through a messenger Raju or any other person, the payment used to be made by PW-2 on behalf of the plaintiff, it was he who did not get the construction work completed within the stipulated period of one year i.e. till March, 1992, the plaintiff had to pay the penalty @ Rs. 2500/- PM to the concerned development authority, it was because of the defendant that the plaintiff has / had suffered various losses as detailed in the plaint. In other words, the case of the plaintiff has not been put to DW-1 in his cross-examination. Therefore, the defendant has proved that there was no privity of contract between him and the plaintiff nor he was engaged by the plaintiff in March, 1991 to prepare a plan for his residential house nor he was paid a sum of Rs. 78,000/- by the plaintiff and that the suit is bad for non-joinder of Harish Rai as one of the defendants. The plaintiff has failed to prove that the defendant was assigned the supervision work and it was because of his negligence that 27 CS 962/11/96 KARIMA MALICK VS. HARISH DUA unnecessary delay occurred in the construction work because of which she had to pay penalty of Rs. 2500/- PM to the development authority. d 31.The plaintiff has claimed Rs. 1 lac on account of financial loss towards rent which she had to pay. Nowhere in the affidavit she has claimed that she had to pay Rs. 1 Lac towards rent on account of non-completion of the suit property by the defendant within the stipulated period. In her cross- examination PW-2 has admitted that throughout this period they stayed at the residential quarter in their factory premises and never stayed in any rented accommodation. This clinches the whole issue regarding the payment of any rent by the plaintiff. Therefore, the plaintiff has failed to prove that she had to pay Rs. 1 Lac as rent to anybody. d 32.In her cross-examination PW-1 has stated that she cannot produce any paper or documents to show that she had ever "interested" (sic) and handed over the original lease deed, sanctioned plan and other original documents to the defendant" as stated by her in the affidavit. She has admitted that she cannot produce the same "as never interested and handed over the same to me or by any other person by the defendant" (sic). She has stated that she did not write any letter to the defendant asking him to return the original documents as stated by her in 28 CS 962/11/96 KARIMA MALICK VS. HARISH DUA her affidavit. However, she has volunteered to add that no agreement in writing had taken place between her and the defendant and therefore she could only ask him orally. Merely because according to PW-1 no written agreement had taken place between her and the defendant in writing there was no reason for her to ask the defendant to return the documents verbally.
d 33.In her cross-examination, PW-2 has stated that they did not know that Harish Dua is a government employee till he refused to handover these documents. However, she has stated that she does not know as to which document was entrusted to Harish Dua but all the documents required for construction of the property were handed over to him including the site plan". She has stated that the documents were handed over by her sister. She has stated as follows:
"I do not remember when the said document were given and further whether the same were given in my presence or not. I do not remember as to when, where and who all went to give the said documents to Mr. Harish Dua. It is correct to state that I can not tell when, where, and who delivered the documents to Mr. Harish 29 CS 962/11/96 KARIMA MALICK VS. HARISH DUA Dua because the same had never handed over to Mr Harish Dua."
d In her cross-examination PW-1 has stated as follows:
"I cannot say whether Sh Hariah Rai is present in the court and who I seen, is an architect or not. Vol: he may be elder brother or may be anybody else. Prior to the receipt of the reply from Union Counsel for Architecture (mark C) I was not aware about the name of Sh Harish Rai for the first time, I came to know that the deft is infact Harish Rai and not Harish Dua or he may be Harish Rai Dua. However, it is correct that Sh Harish Rai, who is present in court is not Harish Dua. Prior to the receipt of mark C, I never heard the name of Sh Harish Rai or Harish Roy."
Therefore, the plaintiff has failed to conclusively prove that she had entered into any such agreement with the defendant and not with any other person.
d 34.Thus, no conclusive evidence has been led to prove that the plaintiff had infact handed over any such original documents to the defendant. Accordingly, I decide these issues in favour of the defendant and against the plaintiff.
d 30 CS 962/11/96 KARIMA MALICK VS. HARISH DUA d 35. ISSUE NO. 4.
The issue has not been pressed on behalf of the defendant. Even otherwise there is no evidence on the record to prove that the suit is time barred. Accordingly, I decide this issue in favour of the plaintiff and against the defendant.
d 36. ISSUE NO. 11 In view of my findings to issue nos. 2, 3 and 5 to 10 I hold that the plaintiff is not entitled to any relief. Accordingly, I dismiss the suit with no orders as to costs. Decree sheet be prepared accordingly. File be consigned to record room.
(N K Goel) Addl. District Judge-05 (WEST) (Announced in the open court on Tis Hazari Courts, Delhi. 2nd July, 2012)