Delhi District Court
Sh. Ranbir Singh vs Sh. Kamlesh Mandal on 1 October, 2018
IN THE COURT OF JSCCASCJGJ, EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
Presided By : Sh. Jay Thareja, DJS
Civil Suit No: 9769/2016
Sh. Ranbir Singh
S/o Sh. Ratan Singh,
R/o H.No. D138, West Vinod Nagar,
Delhi110092. ... Plaintiff
Versus
Sh. Kamlesh Mandal
S/o Sh. Tanuk Mandal,
R/o H.No. D438, West Vinod Nagar,
Delhi110092. ... Defendant
SUIT FOR RECOVERY OF AMOUNT OF
RS.1,79,200/ ALONG WITH COST AND
INTEREST AT THE RATE OF 24% PER ANNUM
DATE OF INSTITUTION : 31.08.2016
DATE OF FINAL ARGUMENTS : 27.08.2018
DATE OF DECISION : 01.10.2018
JUDGMENT
1. The plaintiff has filed this suit against the defendant, seeking recovery of (a) Rs.1,79,200/, (b) interest thereon at the rate of 24% per annum and (c) costs.
2. In order to justify the recovery of aforesaid money from the defendant, the plaintiff has interalia pleaded in the plaint of this suit that the plaintiff is in the business of constructing houses on contract basis; that the plaintiff had entered into a written agreement dated 24.05.2016 Civil Suit No.9769/2016 Ranbir Singh v Kamlesh Mandal Page No.1 of 10 with the defendant qua construction of the house of the defendant at property no. D438, West Vinod Nagar, Delhi110092 (henceforth 'suit property'); that in pursuance of the said contract, the plaintiff had commenced the construction work at the suit property, on 27.05.2016; that the plaintiff had continued to do construction work at the suit property till 08.07.2016; that the plaintiff had stopped the construction work at the suit property, on 08.07.2016, due to nonpayment of dues by the defendant; that the construction work done by the plaintiff at the suit property during 27.05.2016 to 08.07.2016 was done as per the satisfaction of the defendant; that the total value of the construction work done by the plaintiff at the suit property during 27.05.2016 to 08.07.2016 was Rs.1,91,700/; that out of the said amount, the defendant had only paid Rs.65,000/ to the plaintiff, on various dates, since May 2016; that in July 2016, the plaintiff had sent a bill dated 14.07.2016 to the defendant, by way of speed post, justifying his claim of the balance amount of Rs.1,26,700/; that thereafter, when the plaintiff had asked the defendant to pay the balance amount of Rs.1,26,700/, the defendant had taken the excuse of financial hardship and assured to pay the dues of the plaintiff; that later, the defendant had flatly refused to pay the dues of the plaintiff; that finding no alternative, the plaintiff had served a legal notice dated 21.07.2016 upon the defendant, interalia calling upon the defendant to pay the amount of Rs.1,26,700/; that the defendant had replied to the said legal notice by way of a false reply dated 12.08.2016; that the suit property is covered by the shuttering provided by the plaintiff; that in respect of the said shuttering, the plaintiff is continuing to pay rent of Rs.1500/ per day to the owner of shuttering and that in these circumstances, the plaintiff is entitled to recover from the defendant, (a) Civil Suit No.9769/2016 Ranbir Singh v Kamlesh Mandal Page No.2 of 10 balance amount of Rs.1,26,700/, (b) rent qua shuttering, for the period, 15.07.2016 to 19.08.2016, amounting to Rs.52,500/ and (c) interest thereon at the rate of 24% per annum.
3. Upon service of summons for settlement of issues of this suit, the defendant has contested this suit by filing his written statement. In order to contest this suit, the defendant has interalia pleaded in his written statement that no written contract was executed between the parties qua the construction of the suit property; that the oral agreement between the parties was that the plaintiff will construct the suit property till the second floor; that while doing construction work at the suit property, the plaintiff had never worked as per the satisfaction of the defendant; that the plaintiff had voluntarily left the construction work at the suit property after partly constructing the suit property till the first floor, causing financial loss of Rs.5,00,000/ to the defendant; that before the plaintiff had voluntarily left the construction work at the suit property, the defendant had paid a total sum of Rs.1,10,000/ to the plaintiff; that the bill dated 14.07.2016 was never received by the defendant; that there is no shuttering at the suit property as the plaintiff had left the construction work at the suit property, after taking all his belongings and that with the help of another contractor, the defendant had ultimately completed the construction work at the suit property.
4. In the replication, the plaintiff has traversed the contents of the written statement of the defendant, made the necessary denials and reaffirmed the contents of the plaint.
Civil Suit No.9769/2016Ranbir Singh v Kamlesh Mandal Page No.3 of 10
5. On the basis of the aforesaid pleadings of the parties, the following issues were framed by a Ld. Predecessor Judge, on 15.11.2016: "1. Whether the plaintiff is entitled for the recovery of Rs.1,79,200/ as prayed for ? OPP
2. Whether the plaintiff is entitled for interest ? If yes, at what rate and for what period ? OPP
3. Whether the plaintiff is entitled for future rent as claimed in prayer clause (a) ? If yes, at what rate and for what period ? OPD
4. Relief, if any."
6. During the trial of this suit, one witness viz. PW1 Sh. Ranbir Singh was examined in support of the case of the plaintiff and one witness viz. DW1 Sh. Kamlesh Mandal was examined in support of the case of the defendant. The testimonies of the aforesaid witnesses are not being discussed, at this stage of this judgment, for the sake of brevity.
7. In order to adjudicate upon this suit, I had heard Sh. Laxmi Chandra, Ld. Advocate for the plaintiff and Sh. Praveen Chaudhary, Ld. Advocate for the defendant, on 27.08.2018. The issue wise findings, in this case are as follows:
ISSUE NO.1
8. In respect of this issue, the case of the plaintiff is that he is Civil Suit No.9769/2016 Ranbir Singh v Kamlesh Mandal Page No.4 of 10 entitled to recover Rs.1,79,200/ from the defendant (a) because he had done construction work worth Rs.1,91,700/ at the suit property during 27.05.2016 to 08.07.2016 and received only Rs.65,000/ from the defendant, in respect thereof and (b) because during the period, 15.07.2016 to 19.08.2016, the defendant had utilized the shuttering, obtained by the plaintiff, by paying a sum of Rs.52,500/ (Rs.1500/ per day) to the owner of the shuttering. Per contra, the case of the defendant is that he is not liable to pay any money to the plaintiff (a) because he has already paid Rs.1,10,000/ to the plaintiff in respect of the construction work done by the plaintiff; (b) because the plaintiff had left the construction work at the suit property, without completing it and (c) because there was no shuttering at the suit property, during the period, 15.07.2016 to 19.08.2016.
9. In order to prove his case qua this issue, the plaintiff has examined himself as PW1 Sh. Ranbir Singh. During examination in chief, the plaintiff viz. PW1 Sh. Ranbir Singh has deposed in line with the plaint and tendered in evidence agreement dated 03.05.2016, Ex.PW1/1, agreement dated 24.05.2016, Ex.PW1/2, voter ID card of the plaintiff, Ex.PW1/3 (OSR), bill dated 14.07.2016, Ex.PW1/4, postal receipt, Ex.PW1/5, legal notice dated 21.07.2016, Ex.PW1/6, receipt of speed post, Ex.PW1/7, reply to legal notice, Ex.PW1/8, diary Mark A and diary, Mark B. During cross examination, PW1 Sh. Ranbir Singh has interalia deposed that he does not file income tax returns; that the agreement dated 03.05.2016, Ex.PW1/1, bears the handwriting of the son of the defendant; that the agreement dated 24.05.2016, Ex.PW1/2, bears his handwriting; that he was supposed to complete the construction work Civil Suit No.9769/2016 Ranbir Singh v Kamlesh Mandal Page No.5 of 10 viz. construction of two floors, at the suit property by 08.07.2016; that the register, Ex.PW1/D1 (Colly) (OSR) was prepared in his presence and bears his signatures at point A on every page; that the owner of the shuttering provided by him, was Sh. Om Prakash of Chander Vihar Colony, Delhi; that he cannot disclose the exact details of the shop of Sh. Om Prakash and that he does not have any receipt of any money paid to Sh. Om Prakash.
10. In order to prove his case qua this issue, the defendant has examined himself as DW1 Sh. Kamlesh Mandal. During examination in chief, the defendant viz. DW1 Sh. Kamlesh Mandal has deposed in line with the written statement. During cross examination, DW1 Sh. Kamlesh Mandal has interalia deposed that the agreement dated 03.05.2016, Ex.PW1/1, bears his signatures at point X; that the agreement dated 24.05.2016, Ex.PW1/2, also bears his signatures at point X; that while doing construction work at the suit property, the plaintiff had put one set of columns and a linter and another set of columns and a linter, on top of the first set; that the plaintiff had not constructed any walls; that the shuttering done by the plaintiff was done by using wood; that the oral agreement between him and the plaintiff was that he will purchase the raw material and the plaintiff will supply the skilled labour and the material required for shuttering; that the plaintiff had done construction work at the suit property till 08.07.2016 and that he does not remember the date when the plaintiff had taken back the shuttering, provided by the plaintiff.
11. Upon examining the probative value of the competing Civil Suit No.9769/2016 Ranbir Singh v Kamlesh Mandal Page No.6 of 10 evidence lead by the parties qua this issue, I find that this issue is liable to be decided in favour of the defendant and against the plaintiff because of multiple reasons. Firstly, this issue is liable to be decided in favour of the defendant and against the plaintiff because the admitted entries of the register, Ex.PW1/D1 (Colly) (OSR), reflect that till 08.07.2016, the defendant had paid a total sum of Rs.1,05,000/ to the plaintiff and not a total sum of Rs.65,000/, as claimed by the plaintiff.
12. Secondly, this issue is liable to be decided in favour of the defendant and against the plaintiff because the plaintiff has not lead any credible evidence to prove the individual entries of the bill dated 14.07.2016, Ex.PW1/4. In this regard, it is noteworthy (a) that in his evidence affidavit, the plaintiff has not made any deposition regarding any oral agreement between the parties regarding the various rates viz. rate of linter (Rs.525/ per ft.), rate of column (Rs.3000/ per column) etc. mentioned in the bill dated 14.07.2016, Ex.PW1/4 and (b) that the rates mentioned in the bill dated 14.07.2016, Ex.PW1/4, do not even tally with the rates mentioned in the agreement dated 03.05.2016, Ex.PW1/1 and agreement dated 24.05.2016, Ex.PW1/2.
13. Thirdly, this issue is liable to be decided in favour of the defendant and against the plaintiff because apart from his self serving testimony, the plaintiff has not lead any evidence to prove that he had done all the construction work mentioned in the bill dated 14.07.2016, Ex.PW1/4. In this regard, it is noteworthy (a) that the plaintiff has not examined Sh. Surender Singh and Sh. Om Prakash, referred in his list of witnesses; (b) that the plaintiff has not examined any of the labourers, Civil Suit No.9769/2016 Ranbir Singh v Kamlesh Mandal Page No.7 of 10 who had done the construction work with him, at the suit property and (c) that the plaintiff has not filed any photographs, for this Court to examine the actual construction work done by the plaintiff at the suit property.
14. Fourthly, this issue is liable to be decided in favour of the defendant and against the plaintiff because the claim made by the plaintiff in the bill dated 14.07.2016, Ex.PW1/4 that he is entitled to recover Rs.12,000/ from the defendant as his mistry and the labour were sitting idle during 09.07.2016 to 14.07.2016 is completely baseless. In this regard, it is noteworthy that neither in the plaint of this suit nor during his evidence, the plaintiff has disclosed any details viz. the names of the people who were sitting idle, the number of people who were sitting idle and whether the plaintiff had paid them for sitting idle, during 09.07.2016 to 14.07.2016.
15. Lastly, this issue is liable to be decided in favour of the defendant and against the plaintiff because the plaintiff has not lead any credible evidence to prove (a) that during the period, 15.07.2016 to 19.08.2016, the defendant was utilizing the shuttering provided by the plaintiff and (b) that the plaintiff had obtained the said shuttering by paying Rs.1500/ per day to Sh. Om Prakash. In this regard, it is noteworthy (a) that the plaintiff has not examined any of his labourers, who, as per the plaintiff, were sitting idle during 09.07.2016 to 14.07.2016, to prove that the defendant had continued to use the shuttering provided by the plaintiff; (b) that during his cross examination, the plaintiff viz. PW1 Sh. Ranbir Singh has admitted that he does not have any receipt reflecting any payment of money to Sh. Om Prakash Civil Suit No.9769/2016 Ranbir Singh v Kamlesh Mandal Page No.8 of 10 and (c) that despite mentioning Sh. Om Prakash, in his list of witnesses, the plaintiff has ultimately not examined Sh. Om Prakash, in order to prove his case.
16. In view of the aforesaid five reasons, this issue is decided in favour of the defendant and against the plaintiff. It is held that the defendant is not liable to pay the sum of Rs.1,79,200/ to the plaintiff.
ISSUE NO.2
17. Since, while deciding issue no.1, it has been held that the plaintiff is not entitled to recover the principal amount of Rs.1,79,200/ from the defendant, this issue is decided in favour of the defendant and against the plaintiff. It is held that the plaintiff is not entitled to recovery any interest from the defendant.
ISSUE NO.3
18. Since, while deciding issue no.1, it has been held that the plaintiff has failed to prove (a) that after 08.07.2016, the defendant had used the shuttering provided by the plaintiff and (b) that the plaintiff has ever paid any money to Sh. Om Prakash qua the shuttering taken by the plaintiff from Sh. Om Prakash, this issue is decided in favour of the defendant and against the plaintiff. It is held that the plaintiff is not entitled to recover any rent, as mentioned in the prayer clause of the plaint of this suit.
Civil Suit No.9769/2016Ranbir Singh v Kamlesh Mandal Page No.9 of 10 RELIEF
19. In view of the aforesaid findings, this suit is dismissed, leaving the parties to bear their own costs.
20. Before parting with this judgment, it is clarified that this judgment has been passed, after taking note of the judgment of the Hon'ble Supreme Court in Sayed Muhammed Mashur Kunhi Koya Thangal v Badagara Jumayath Palli Dhara Committee and Others, 2004 (7) SCC 708, wherein it has been held that a plaintiff can only succeed on the strength of his case and not the weakness found in the case of the defendant.
21. After preparation of the decree sheet by the Reader, the file shall be consigned to the record room.
Announced in the Open Court (Jay Thareja)
On 01.10.2018 JSCC/ASCJ/GJ/EAST DISTRICT
Karkardooma Courts/Delhi
JAY
THAREJA
Digitally signed by JAY
THAREJA
Location: East District
Civil Suit No.9769/2016
Karkardooma Courts, Delhi
Ranbir Singh v Kamlesh Mandal Date: 2018.10.01 16:50:20
Page No.10 of 10 +0530