Delhi District Court
Alok Gupta vs M/S Satya Constructions on 20 May, 2026
IN THE COURT OF SH. DEVENDER KUMAR JANGALA,
DISTRICT JUDGE (COMMERCIAL COURT)-01,
NORTH WEST, ROHINI, NEW DELHI
CS (COMM) No.261/20
CNR NO.DLNW010086862020
M/S SATYA CONSTRUCTION
THROUGH SH. RAHUL GUPTA
Office at: 1A, GROUND FLOOR,
NEAR FORTIS HOSPITAL,
BB BLOCK, EAST SHALIMAR BAGH,
DELHI-110088
.......Plaintiff
VERSUS
SH. ALOK GUPTA
S/O SH. BHARAT BHUSHAN
R/O R-54, FOURTH FLOOR,
MODEL TOWN-3, DELHI-110009
........Defendant
WITH
COUNTER CLAIM
CS (COMM) No.259/21
CNR NO.DLNW010028052021
SH. ALOK GUPTA
S/O SH. BHARAT BHUSHAN
R/O R-54, FOURTH FLOOR,
MODEL TOWN-3, DELHI-110009
.......Counter - Claimant
VERSUS
Digitally signed CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta
by DEVENDER WITH
DEVENDER KUMAR CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction
KUMAR JANGALA 1/44
JANGALA Date:
2026.05.20
16:31:24 +0530
M/S SATYA CONSTRUCTION
THROUGH SH. RAHUL GUPTA
Office at: 1A, GROUND FLOOR,
NEAR FORTIS HOSPITAL,
BB BLOCK, EAST SHALIMAR BAGH,
DELHI-110088
........Non - Counter Claimant
Date of institution of main Suit : 17.12.2020
Date of filing of counter claim : 30.03.2021
Date of final argument : 18.04.2026
Date of Judgment : 20.05.2026
JUDGMENT
1. By way of this judgment I shall adjudicate upon two cases i.e. the case bearing no.261/20 titled as Satya Construction versus Sh. Alok Gupta filed by the plaintiff seeking recovery of Rs.8,14,825/- against the defendant Sh. Alok Gupta and the counter claim bearing no.259/21 titled as Sh. Alok Gupta versus M/s Satya Constructions filed by the counter claimant Sh. Alok Gupta seeking recovery of Rs.16,22,000/- against the non claimant.
FACTS OF THE CASE NO.261/202.1 The present suit has been filed by the plaintiff, a sole proprietorship concern of Rahul Gupta, engaged in the business of construction, architectural and interior works in Delhi-NCR and Haryana for the past several years. It is stated that the plaintiff came into contact with the defendant's daughter, Smt. Surbhi Gupta, in the year 2017 during the course of his professional work. That subsequently, both of them developed a business association and, in CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 2/44 February 2018, entered into an oral partnership for undertaking construction/interior projects. That flat at BB(East) 1A, Shalimar Bagh was taken on rent for this purpose.
2.2 It is further stated that after the marriage of Smt. Surbhi Gupta in 2018, she shifted to her matrimonial home and the said partnership came to an end by mutual understanding. That in April 2019, Smt. Surbhi Gupta again approached the plaintiff for undertaking construction work at the defendant's property i.e., plot at C-33E, Wazirpur Industrial Area, Delhi (hereinafter referred to as the "suit property"). That a meeting was held on 29.04.2019 at the defendant's office, wherein the plaintiff was introduced to the project and thereafter inspected the site. It is further stated that the plaintiff made a work order/quotation on 30.04.2019, which was subsequently modified by the defendant. That on 02.06.2019, at the residence of the defendant, the parties entered into an oral agreement for construction, demolition and excavation work at the suit property. That the said work order was signed by both parties with certain handwritten modifications by the defendant.
2.3 It is stated that as per the oral agreement dated 02.06.2019, the approximate project cost was agreed at Rs. 1,03,95,000/-, payable in installments. It was also agreed that final costing would depend upon drawings to be supplied by the defendant's architect. That as per schedule the plaintiff received small payments in installments.
2.4 It is stated that the drawing of the project was to be CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 3/44 prepared by the defendant's architect and the plaintiff had to work in accordance with the said drawing supplied by the defendant. That it was also agreed by the plaintiff and defendant that the total costing of the project will be fixed on the basis of the drawing prepared by the defendant's architect. That the plaintiff's larger work was also to commence on the basis of drawing to be submitted by defendant. That the work order which was settled between the plaintiff and defendant included construction of the whole building which also involves excavation work to be undertaken by the plaintiff.
2.5 It is stated that on 20th June 2019, the plaintiff started the work of demolition of the suit property after waiting for few days for the submission of final drawing by Spline Engineers and Consultants Pvt. Ltd (Through Mr. Rajesh Sharma). That the plaintiff hoped that the drawing will be submitted soon, so in order to avoid delay in project, plaintiff began his work. That the said drawing was mailed to the plaintiff on 26.06.2019 from Ms. Surbhi Gupta, daughter of the defendant.
2.6 It is stated that during excavation, the plaintiff discovered that pillars of the adjoining building extended into the suit property. That the said fact had been concealed by the defendant and excavation of such pillars was not part of the original oral agreement. It is stated that despite raising objections and highlighting the risks involved, including the danger to a five-storey adjoining building, the defendant insisted on removal of the said pillars. That even the defendant's architect initially advised against such demolition.
CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 4/44 2.7 It is stated that the defendant's architect also warned him not to demolish the adjoining building pillar so the defendant decided to change the architect and asked the plaintiff to appoint a new architect by himself. That the plaintiff on the request of the defendant introduced Mr. Vinod & Rajkumar who were the second architect hired by the defendant. That Mr. Vinod was also not inclined to demolish the pillars of the adjoining property as it was risky and dangerous for the adjoining building. That the defendant insisted and pressurized the architect Mr. Vinod and the plaintiff to demolish the pillars of the adjoining building. That Mr. Vinod asked the plaintiff to demolish the pillars slowly. Thereafter, the plaintiff followed what the architect had asked and undertook the work of cutting those pillars. The plaintiff asked the Defendant to submit a fresh Drawing as per new terms so that plaintiff would not incurr loss for extra work. That in last week of November, 2019, Plaintiff and defendant agreed that second drawing would include excavation of pillars in the adjoining property and no more surprises will be presented. That in December 2019, a second drawing was prepared incorporating significant changes, including increased beam sizes and higher steel specifications. That these changes substantially increased the cost of construction, requiring additional material and labour. That despite formation of second drawing, the Defendant and his architect deliberately omitted to mention the additional work of excavation of pillars from adjoining area. That despite repeated requests, the defendant failed to execute a formal written agreement incorporating the revised scope of work and additional costs.
2.8 It is stated that the plaintiff continued with his work on CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 5/44 the hope that costing of the extra work beared by the plaintiff will be mentioned in the contract as and when executed. That the plaintiff completed almost 70% of the total work allotted by the Defendant, which also includes the excavation of the adjoining pillars. That the plaintiff incurred Rs 8,14,825 (Eight lacs fourteen thousand eight hundred twenty five rupees), from his own pocket by paying additional labour charges and by having purchased the extra material, steel etc for the work which was not agreed. That the machines of the plaintiff were also active on the site which also added the expense incurred by the plaintiff.
2.9 It is stated that the plaintiff again asked the defendant to pay his expenses incurred by him and also to comply with the oral agreement dated 02.06.2019, but the defendant started ignoring the plaintiff requests. That on 03.06.2020, the defendant forcibly locked the suit property following which the plaintiff was unable to enter the suit property and neither he was able to get all his belongings lying there. That this act of locking the site forced the plaintiff to stop the work.
2.10 It is stated that despite several requests and reminders, the defendant never came forward to formulate the contract as per oral agreement dated 02.06.2019. That the plaintiff left with no other option, issued legal notices dated 15.06.2020 and 25.08.2020 calling upon the defendant to honour the agreement dated 02.06.2019. however, the defendant, vide reply dated 20.07.2020 denied the claims and unilaterally terminated the oral agreement. That left with no alternative remedy, the plaintiff has filed the present suit seeking CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 6/44 recovery of Rs. 8,14,825/- as damages for additional work carried out, along with interest @ 18% per annum.
2.11 That the cause of action first arose on 7th September 2019, where the defendant concealed the fact/information of the pillars being present in the defendant's property which was not included in the work order or in the contract. That the cause of action again arose in the month of November 2019, when the defendant started ignoring the request of the plaintiff on one pretext or another. That it again arose on 03.06.2020 when the defendant broke the lock of the property and threatened the labour of the plaintiff and locked the said property with his own lock and took illegal possession of the material of the plaintiff. That the cause of action again arose when a legal notice dated 15.06.2020 was denied by the defendant through a reply dated 20.07.2020. That the cause of action again arose on 20.07.2020 when defendant unilaterally terminated the contract between the parties. That since the tools, machinery and raw material of the plaintiff is lying in un-protective state on the property of defendant therefore cause of action is still continuing.
2.12 That the suit property is situated within the jurisdiction of this court; the cause of action for filing the present suit arose at Delhi and the parties to the present suit reside and work for gain at Delhi hence, this court has territorial jurisdiction to try and entertain the present suit.
3. Vide order dated 17.12.2020 the summons of the suit were issued to the defendant. The defendant on being served put the CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 7/44 appearance and filed the written statement.
WRITTEN STATEMENT 4.1 The defendant filed written statement stating therein that the present suit has been filed by the plaintiff with malafide intention and ulterior motive to extract the money from the Defendant. That the plaintiff has filed the present suit on the basis of false, fabricated, misconceived, flimsy and concocted story and the defendant have no alleged liability against the plaintiff. That the defendant has also filed a counter Claim for recovery of the excess amount paid to the plaintiff as well as damages. That the present suit is not reflecting the actual and true facts. It is stated that the defendant is the owner of one plot bearing no. C-33E, Wazirpur Industrial Area, Delhi. That in the month of April 2019 answering defendant approached the plaintiff for construction of basement, four floors and servant room at roof at defendant's property bearing no. C-33E, Wazirpur Industrial Area, Delhi 'as on where basis'. That at that time the plaintiff presented himself as an experienced and well known building contractor however later on defendant came to know that the plaintiff is only a builder not an Interior or Architect. That the plaintiff does not possess any requisite professional qualification.
4.2 It is stated that after due inspection, investigation, calculation and negotiations the plaintiff agreed and submitted work order dated 2/6/2019 describing each and every aspects of the constructions for a total agreed amount of Rs. 1,03,95,000/- (Rupees One Crore Three Lakhs Ninety Five Thousand Only) inclusive of all i.e. material, machine, labour etc. and also agreed to complete all CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 8/44 construction work within 12 months. That the defendant started making payment to the plaintiff since 29/4/2019. That as agreed the defendant provided all requisite layout plan, drawings, design, approvals as well as also paid amount of Rs. 12,90,000/- to the plaintiff as per agreed schedule, however despite all, the plaintiff first of all delayed assigned contract and later on one pretext or other lingered the project and despite of number of meetings and reminders, used few labourers, thus work could not be done on agreed and expected speed even after lapse of about year and the plaintiff was able to done only little bit basement work (about 30%).
4.3 It is stated that before initiation of assignment, the plaintiff thoroughly inspected the project site and agreed to undertake turnkey project as on where basis, at that time the plaintiff assured to the defendant that all difficulties related to construction shall be handled by him as he is an expert one. However at the time of construction of pillars at basement, the plaintiff, with a sole intention to hide his own inexperience, stressed upon pillar of adjoining building though the plaintiff already have a knowledge of said fact at the time of taking project, even otherwise the removal of said pillar was a job of few days and the same was done. However the plaintiff with a sole intention to hide his own wrongs and to hike the project cost and to extract more money from the defendant crated a false and concocted story of new agreement.
4.4 It is stated that the work contract dated 2/6/2019 was a final one from both side and as per schedule, extra payment has been paid to the plaintiff by the defendant, however on the other side CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 9/44 despite all drawings and payment, the plaintiff has not yet completed the basement work and abandon the project site. That the plaintiff was not adhering to the terms and conditions of the work contract dated 2/6/2019 and schedule work. That the plaintiff did not adhered the norms and rules of building constructions and not constructed basement as per agreed Drawings, term and conditions. That the plaintiff did not apply proper agreed Iron and cement while constructing basement pillars/beams, not adhered working schedule, not worked as per agreed time schedule which caused huge loss to the defendant and at last abandon the project site with all his machines, material and labour, which caused great loss to the defendant.
4.5 It is stated that the defendant is not liable to pay any alleged damages to the plaintiff, as the plaintiff had neither suffered any loss of material and labour etc. nor suffered any alleged cost of suffering for material and labour cost. That the plaintiff is using pressure tactic to extract from the defendant. That the illegal demands of the plaintiff is beyond the scope of contract agreed between the plaintiff and the defendant. The defendant is not liable to pay any alleged damages to the plaintiff as the plaintiff has not suffered any alleged loss or damages rather the defendant had suffered a lot.
4.6 That the plaintiff is liable to pay damages to the defendant as firstly the site of the defendant was abandoned by the plaintiff and since then a basement of about 10 feet is laying vacant where during the rainy season lots of water were filled up and the CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 10/44 defendant has to pay huge amount to pump set and water equation agencies to draw the water to secure the neighbor's property. That the defendant is facing loss of the prospective earning from the building. The project site is nonfunctional/ no construction activities was done after March 2020. that due to nonfunctional site there was some iron bar (Sariya) had been theft by the robbers, anti-social elements. The averments on merits are denied. It is prayed that the suit may kindly be dismissed.
REPLICATION
5. The plaintiff filed detailed replication to the written statement of the defendant thereby reaffirming his claim and denying the averments of the defendant.
FACTS OF COUNTER CLAIM NO.259/21 6.1 The facts of the case in brief in the counter claim are that in the month of April 2019 defendant approached the plaintiff for construction of basement, four floors and servant room at roof at defendant's property bearing no. C-33E, Wazirpur Industrial Area, Delhi 'as on where basis'. It is stated that at that time the plaintiff presented himself as an experienced and well known building contractor however later on defendant came to know that the plaintiff is only a builder not an Interior or Architect. That the plaintiff does not possess any requisite professional qualification.
6.2 It is stated that after due inspection, investigation, calculation and negotiations the plaintiff agreed and submitted work CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 11/44 order dated 2/6/2019 describing each and every aspects of the constructions for a total agreed amount of Rs. 1,03,95,000/- (Rupees One Crore Three Lakhs Ninety Five Thousand Only) inclusive of all ie. material, machine, labour ete, as turnkey project and also agreed to complete all construction work within 12 months. That the defendant started making payment to the plaintiff since 29/4/2019.
6.3 It is stated that the defendant provided all requisite layout plan, drawings, design, approvals as well as also paid amount of Rs. 12,90,000/- to the plaintiff as per agreed schedule, however despite all, the plaintiff first of all late delayed contract and later on one pretext or other lingered the project and despite of number of meetings and reminders, used few labors, thus work could not be done on agreed and expected speed, even after lapsed of about year. That the plaintiff was able to done only little bit basement work (about 30%).
6.4 It is stated that before initiation of assignment, the plaintiff thoroughly inspected the project site and agreed to undertake project as on where basis. That at that time the plaintiff assured to the defendant that all difficulties related to construction shall be handled by him as he is an expert one. However at the time of construction of pillars at basement, the plaintiff, with a sole intention to hide his own inexperience, stressed upon pillar of adjoining building, though the plaintiff have already have a knowledge of said fact at the time of taking project. That the plaintiff with a sole intention to hide his own wrongs and to hike the project cost and to extract more money from the defendant crated a false and concocted story.
CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 12/44 6.5 It is stated that the work contract dated 2/6/2019 was a final one from both side and as per schedule, extra payment has been paid to the plaintiff by the defendant. However despite all drawings and payment, the plaintiff had not yet completed the basement work and abandon the project site though as per schedule the plaintiff have to complete full building by July 2020. That the plaintiff did not adhered the norms and rules of building constructions and not constricted basement as per agreed Drawings, term and conditions. That the plaintiff did not apply proper Iron and cement while constructing basement pillars/ beams, not adhered working schedule, not worked as per agreed time schedule which caused huge loss to the defendant/counter claimant and at last abandon the project site with all his machines, material and labour. which caused great loss to the defendant.
6.6 It is stated that the plaintiff is liable to pay damages to the defendants as firstly the site of the defendant was abandoned by the plaintiff and since then a basement of about 10 feet is laying vacant where during the rainy season lots of water were filled up and the defendant has to pay huge amount to pump set and water equation agencies to draw the water to secure the neighbor's property. That the defendant/counter claimant is also facing loss of the prospective earning from the building which he could earn if the building was constructed on time. That the project site is nonfunctional/ no construction activities was done after December 2019 and due to nonfunctional site, there was some iron bar and material had been stolen by the robbers, anti-social elements. That the CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 13/44 defendant/counter claimant had received legal notice dated 15/6/2020 from the plaintiff alleging false and frivolous allegations and with a new concocted story to get signed new agreement with higher cost of construction. That the said notice was duly replied by the defendant vide reply cum demand notice dated 20/7/2020 whereby denied all alleged liability and called upon the plaintiff to pay Rs. 16,22,000/- to the defendant. It is stated that the plaintiff is under liability to pay the following amount to the defendant:
S.NO. Particular Amount
1. Excess amount paid to the Rs.5,00,000/-
plaintiff in term of work contract
dated 2/6/2021
2. Electricity charges paid by the
defendant Rs.22,000/-
3. Cost of Iron, bricks, doors, etc,
of old building structure which
were taken away by the plaintiff Rs.1,00,000/-
4 Damages for delaying the project,
harassment, mental agony and pain Rs.10,00,000/-
Total Rs.16,22,000/-
6.7 It is stated that the defendant had failed to pay legitimate
dues in spite of repeated request, reminder and legal notice served by the defendant. Hence, the present counter claim has been filed. That cause of action arose in favor of the defendant against the plaintiff on 29/4/2019 when the first payment towards construction of building was paid to the plaintiff. That it arose again on 2/6/2019 when the CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 14/44 work contract was executed between the parties for total consideration of Rs. 1,03,95,000/-. That it further arose again time to time when the defendant make payments to the plaintiff and also arose again when the plaintiff abandon the site and completing only 30% of the basement. That the cause of action further arose on 20/7/2020 when the defendant called upon the plaintiff to pay Rs. 16,22,000/-. That the cause of action is still continuing.
6.8 It is prayed that the decree for a sum of Rs.16,22,000/- may kindly be passed in favour of the defendant and against the plaintiff. The counter claimant has also prayed for pendente lite interest @ 18% per annum from the date of filing the counter claim till the date of actual payment and the cost of suit with advocate fee.
7. Summons of the counter claim were issued to the plaintiff/non claimant. The plaintiff/non counter claimant on being served filed the detailed written statement. The perusal of the written statement filed by the plaintiff/non counter claimant shows that in the written statement the non counter claimant has repeated the claim as made in the main suit and has denied the averments of the counter claimant. The averments of the written statement are not reproduced just to avoid repetition.
8. After completion of pleadings of parties, following issues were framed vide order dated 04.08.2022:-
Issues in the main suit
1. Whether plaintiff is entitled to recover a sum of Rs.8,14,825/- from defendant? O.P.P. CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 15/44
2. Whether plaintiff is entitled to recover interest from defendant, if yes, at what rate and for which period? O.P.P.
3. Relief Issues in the Counter Claim
1. Whether counter claimant is entitled to recover a sum of Rs.16,22,000/- from non-claimant ? OPCC.
2. 2. Whether plaintiff is entitled to recover interest from defendant, if yes, at what rate and for which period? OPCC.
3. Relief
9. After framing of issues, the matter was fixed for evidence of the parties. In view of powers under order XV A Rule 6(o) and (p) CPC, the evidence of the parties was directed to be recorded on commission basis by Sh. Chandra Bose, Retired Adl. District & Sessions Judge. However, in view of appointment of Sh. Chandra Bose as Judicial Office to deal with the matters under NI Acts, the evidence was directed to be recorded on commission basis by Sh. P. C. Ranga, Ld. Retired ADJ.
PLAINTIFF EVIDENCE
10. Before the Ld. Local Commissioner, the plaintiff examined its Proprietor Sh. Rahul Gupta as PW-1. He tendered his evidence by way of affidavit Ex. PW1/A. In his affidavit Ex. PW1/A, the PW-1 has reiterated the averments made in the plaint and relied upon the following documents:-
1. Work order dated 02.06.2019 exhibit PW-1/1.
CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 16/44
2. The bank statement Mark-X (Colly.)
3. Certificate u/s 65B exhibited as PW-1/3. Copy of the email 26.06.2019 issued from Surbhi Gupta is not on file, hence it was de-exhibited.
4. The first drawing issued by Spline Engineer and consultant Pvt Ltd. is exhibited PW-1/4 (Colly)
5. The second drawing issued by Raj Engineer is exhibit PW-1/5 (Colly).
6. The receipts showing purchase of material i.e. steel and other raw material etc. by the plaintiff are exhibit PW-1/6 (Colly).
7. The photo showing the suit property/construction are exhibit PW-1/7 (Colly.)
8. The attendance register of the workers are exhibited as PW-1/8 (Colly).
9. Notice dated 15.06.2020 issued by the plaintiff is exhibit PW-1/9, reply issued by the defendant exhibit PW-1/10, rejoinder notice dated 25.08.2020 issued by the plaintiff exhibit PW-1/11.
11. PW-1 was cross-examined at length by Ld. Counsel for defendant/counter claimant on different dates. No other witness was examined on behalf of plaintiff and PE was closed vide statement/order dated 26.04.2024.
DEFENDANT EVIDENCE
12. The defendant/counter claimant in support of its case has examined himself as DW1. He tendered his evidence by way of CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 17/44 affidavit Ex. DW1/A. During his examination DW1 has relied upon the document exhibited by PW1 Ex. PW1/1 and the photographs of the site Ex. DW1/2 and reply cum demand notice dated 20.07.2020 as EX. DW1/3.
13. DW1 was cross-examined at length by Ld.counsel for plaintiff/non claimant on different dates. No other witness was examined on behalf of defendant. In view of submissions and statement dated 16.07.2024, DE was closed.
14. Vide order dated 24.03.2021, Ld. Predecessor of this Court appointed Sh. Kadam, Advocate as a Local Commissioner to visit the suit property Plot No. C-33E, Wazirpur Industrial Area, Delhi and submit his report. Ld. Local Commissioner had filed his report dated 24.03.2021 after visiting the property on 24.03.2021 itself in presence of parties and their respective counsels along with presence sheet, original inventory, and photographs.
FINAL ARGUMENTS:
15. I have already heard the arguments at length advanced by Sh.Vivek Kumar Chaudhary, ld.counsel for plaintiff/non counter claimant and Sh. Rajeev Chauhan, Ld.counsel for defendant/counter claimant. Written submissions on behalf of parties also filed.
16. It is argued on behalf of plaintiff/non claimant that the defendant/counter claimant has failed to make the payment despite the work performed by the plaintiff and has not allowed to enter the CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 18/44 plaintiff for completion of work. That in view of material produced on record, the claim of the plaintiff stands established and the claim of the plaintiff is also supported with the report of Ld. Local Commissioner appointed by this court. It is prayed that in view of material on record, the decree as prayed may kindly be passed.
17. On behalf of defendant/counter claimant it is argued that the plaintiff had failed to perform the work as agreed between the parties. That there was delay in construction work and the plaintiff was also not doing the construction as per plan approved by the parties. That the conduct of the plaintiff caused huge loss to the defendant and the defendant had made the payment in excess. It is prayed that the suit of the plaintiff may kindly be dismissed and the relief as sought in the counter claim may kindly be awarded.
ANALYSIS TO EVIDENCE AND ARGUMENTS:
18. I have considered the submissions made by Ld.counsel for plaintiffs and perused the entire material on record.
19. It may be relevant now to consider the law pertaining to discharge of burden of proof of the issues as relevant and applicable to the Civil Jurisdiction. In the binding authority of the Hon'ble Supreme Court of India, in M/s. Gian Chand & Brothers and Another v. Rattan Lal @ Rattan Singh: [2013] 3 S.C.R. 601; it has been laid down:-
1.3. It is well settled principle of law that a person who asserts a particular fact is required to affirmatively establish it. The burden of proving the facts rests on the party who substantially asserts the affirmative issues and CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 19/44 not the party who denies it but the said principle may not be universal in its application and there may be an exception thereto.
20. As the discussion on limitation of the present case is necessary at first, the Court shall take up the issue of limitation. The law of limitation is not a mere technicality but a substantive principle of law designed to ensure legal certainty. As the Hon'ble Supreme Court of India held in Popat and Kotecha Property v. State Bank of India Staff Association, decided on 29.08.2005,, reported as (2005) 7 SCC 510:
"Bar of limitation does not obstruct the execution. It bars the remedy. (See V. Subba Rao and Ors. v. Secretary to Govt. Panchayat Raj and Rural Development, Govt. of A.P. and Ors. (1996 (7) SCC 626.) Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So, a life-span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae ut sit finis litium (it is for the general welfare that a period be put to litigation). The idea is that every legal remedy must be kept alive for legislatively fixed period of time. (See N. Balakrishanan v. M. Krishna Murthy (1998 (7) SCC 123)."
(Emphasis supplied in bold)
21. Thus, the law of limitation does not extinguish the underlying right, it merely restricts the enforceability of the remedy through courts after the prescribed period. Its purpose is not to defeat CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 20/44 legitimate claims, but to ensure that parties act with reasonable diligence and do not indulge in unnecessary delay. The legal system provides remedies to redress injuries, but such remedies cannot be kept open indefinitely. Thus, limitation law is grounded in considerations of public policy, encapsulated in the maxim interest republicae ut sit finis litium, meaning that it is in the interest of the State that litigation must come to an end. The legislative intent is to ensure that every legal remedy is pursued within a fixed and reasonable time.
Limitation for Main Suit:
22. The cause of action for the main suit arises from oral agreement dated 02.06.2019, work order dated 02.06.2019, the locking out of the suit property by the defendant on 03.06.2020 and the defendant's reply-cum-notice dated 20.07.2020 unilaterally terminating the contract. The suit was filed on 17.12.2020, which is well within three years from any of these dates. Hence, the same is within limitation period as per the Limitation Act, 1963.
Limitation for Counter claim:
23. Since a counter claim under Order VIII Rule 6A CPC is treated as a plaint in a cross-suit, it must satisfy the Limitation Act, 1963 separately. As per the counterclaim of the defendant, first payment happened on 29.04.2019, work order was executed on 02.06.2019, and progressively each payment made and ultimately on 20.07.2020 when his reply-cum-demand notice was sent. The counter claim filed on 30.03.2021 is well within limitation period of three years from the last accrual of cause of action. Hence, the present Counter-claim is CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 21/44 also filed within the prescribed period of limitation as per the Limitation Act, 1963.
Territorial Jurisdiction:
24. The present suit property in which construction was carried out at C-33E, Wazirpur Industrial Area, Delhi falls within the territorial limits of the North-West District. The oral agreement dated 02.06.2019 was entered into at the defendant's residence in Model Town-3, Delhi. The plaintiff's office is at Shalimar Bagh, Delhi. Both parties reside and carry on business within Delhi. The legal notices were issued and received within Delhi. Thus, the present court has territorial jurisdiction to try and entertain the present case. Similarly, the territorial jurisdiction of the court over the counter claim is co-extensive with the main suit. The suit property, the parties, and the entire cause of action being identical, thus the present court has jurisdiction on the counter claim as well.
25. After careful perusal of the record and law of land, my issue wise findings are as under:
Issues in the main Suit ISSUE NO. 1
1. Whether plaintiff is entitled to recover a sum of Rs.8,14,825/- from defendant? O.P.P.
26. Firstly, the issues in the main suit are being taken up for consideration. The onus to prove the present issue lies upon the CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 22/44 Plaintiff. The plaintiff's claim of Rs. 8,14,825/- is not a claim for the contract price under the work order dated 02.06.2019. It is a claim for extra and additional work performed beyond the original agreed scope, specifically the excavation of adjoining building pillars and footings discovered during basement digging at Plot No. C-33E, Wazirpur Industrial Area, Delhi, procurement of additional steel and raw material necessitated by the second drawing's enhanced beam and steel specifications, and deployment of machinery and labour for work never contemplated in the original oral agreement dated 02.06.2019.
27. The work order dated 02.06.2019 Ex. PW-1/1 and signed by both Sh. Rahul Gupta on behalf of M/s Satya Construction and Sh. Alok Gupta as the defendant, bearing signatures at six places as admitted by PW-1 Sh. Rahul Gupta himself is the foundational document of the suit. The plaintiff himself admits in cross- examination that this was a turnkey project meaning material, labour, and machinery were all included in the agreed price of Rs. 1,03,95,000/- and that the time frame written in the work order was corrected from 12 to 8 months at point X of Ex. PW-1/1 and after his confirmation, following which he signed below the said correction. The plaintiff sought to dilute these admissions by saying that Ex. PW-1/1 had no relevancy and that the main contract was to be finalised only after basement digging and drawing finalisation, but this attempt to downgrade a signed and deliberately modified written document to a mere rough estimate is a self-serving position that deserves little weight. A document bearing the signatures of both parties at multiple places with deliberate handwritten corrections CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 23/44 carries significant evidentiary value and cannot be lightly reduced to an informal or preliminary understanding.
28. The question then moves to whether PW-1 Sh. Rahul Gupta could prove that the work actually performed including the pillar excavation and the enhanced construction as per the second drawing translated into a quantifiable extra expenditure of Rs. 8,14,825/- from his own pocket. This is where the plaintiff's case encounters its most serious evidentiary difficulty. There is no delivery challan countersigned by Sh. Alok Gupta or any representative of the defendant, no contemporaneous written communication from PW-1 Sh. Rahul Gupta to Sh. Alok Gupta specifically attributing particular purchases in Ex. PW-1/6 (Colly.) to the extra work arising from the changed site conditions or the revised drawings, and critically no independent expert or engineer's report quantifying what additional material and labour was actually required on account of the changed scope as reflected in the transition from the first drawing of Spline Engineers and Consultants Pvt. Ltd. exhibited as Ex. PW-1/4 (Colly.) to the second drawing of Raj Engineer exhibited as Ex. PW-1/5 (Colly.). The receipts in Ex. PW-1/6 (Colly.), even if accepted as genuine, establish only that the plaintiff's firm spent money on material during the course of the project. They do not by themselves establish that this expenditure was over and above the contracted turnkey scope under Ex. PW-1/1 and was directly caused by specific instructions of Sh. Alok Gupta.
29. The second drawing exhibited as Ex. PW-1/5 (Colly.) which CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 24/44 PW-1 Sh. Rahul Gupta relies upon as the primary evidence of changed scope and enhanced specifications suffers from a fatal infirmity which the plaintiff himself admitted in cross-examination. In answer to Question No. 21, PW-1 Sh. Rahul Gupta admitted that Ex. PW-1/5 is neither signed nor stamped nor dated by any architect. When further pressed in Question No. 22, the plaintiff admitted that Mr. Vinod Kumar who was associated with this drawing did not sign or stamp Ex. PW-1/5, though the plaintiff maintained that Mr. Vinod Kumar is a civil engineer. Regardless of Mr. Vinod Kumar's professional designation, the document Ex. PW-1/5 remains unsigned, unstamped, and undated on its face, and there is no accompanying letter, email, or communication from Mr. Vinod Kumar or Mr. Rajkumar to Sh. Alok Gupta or Sh. Rahul Gupta formally approving or issuing this drawing as the revised structural plan. An unsigned and undated drawing cannot by itself establish that Sh. Alok Gupta formally approved a revised scope of work or authorised additional expenditure thereunder.
30. It is not out of place to mention that the plaintiff has failed to examine the author of document Ex PW 1/5, i.e., Mr. Vinod Kumar, civil engineer, who allegedly prepared the second drawing, as a witness in support of his case. It is necessary to advert to the principle of best evidence and the doctrine of adverse inference embodied under Section 114 of the Indian Evidence Act. Section 114 empowers the Court to presume certain facts on the basis of normal human conduct and business practices. Illustration (g) thereto provides that the Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 25/44 person who withholds it. The said provision recognizes that when a party, despite being in a position to lead the best and most direct evidence on a material issue, fails to do so without reasonable explanation, the Court is entitled to draw an adverse inference against such party. This principle has been reiterated and retained under the Bharatiya Sakshya Adhiniyam, 2023, where Section 119 illustration
(g) corresponds to the earlier Section 114 Illustration (g) and continues to allow courts to draw adverse inferences in similar circumstances. The relevant position of law has been explained by Hon'ble Supreme Court in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, the relevant portion of which is reproduced as under:
"24. Thus, in view of the above, the law on the issue can be summarised to the effect that the issue of drawing adverse inference is required to be decided by the court taking into consideration the pleadings of the parties and by deciding whether any document/evidence, withheld, has any relevance at all or omission of its production would directly establish the case of the other side. The court cannot lose sight of the fact that burden of proof is on the party which makes a factual averment. The court has to consider further as to whether the other side could file interrogatories or apply for inspection and production of the documents, etc. as is required under Order 11 CPC. Conduct and diligence of the other party is also of paramount importance. Presumption of adverse inference for non-production of evidence is always optional and a relevant factor to be considered in the background of facts involved in the case. Existence of some other circumstances may justify non-production of such documents on some reasonable grounds. In case one party has asked the court to direct the other side to produce the document and the other side failed to comply with the court's order, the court may be justified in drawing the adverse inference. All the pros and cons must be examined before the adverse inference is drawn. Such presumption is permissible, if other larger evidence is shown to the contrary."
CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 26/44
31. The Hon'ble High Court of Delhi in Koninklijke Philips N.V. v. MAJ (RETD) Sukesh Behl, decided on 20.02.2025, reported as 2025 SCC OnLine Del 1121 while restating the settled position of law has held that facts which lie within the special knowledge of a party must be proved by that party in terms of Section 106 of the Evidence Act. The Court further observed that under Section 114 of the Evidence Act, particularly Illustration (g), an adverse inference may be drawn where a party deliberately withholds material evidence which, if produced, would be unfavourable to its case. Relying upon the judgments of the Hon'ble Supreme Court in Ibrahim Uddin (supra) and National Insurance Co. Ltd. v. Jugal Kishore (1988) 1 SCC 626, the High Court emphasized that a party in possession of relevant documents cannot avoid its obligation to place the same before the Court under the guise of technical burden of proof. It was further held that deliberate suppression of material records and evasive conduct during cross-examination justify drawing an adverse inference against the defaulting party, and the law does not permit any litigant to derive benefit from its own failure to disclose relevant evidence. The relevant portion is reproduced as follows;
"VI.II.IV. Effect of the Defendants' wilful withholding of information
255. In Rajnesh v. Neha (2021) 2 SCC 324, the Supreme Court held that details regarding a party's income, assets, and liabilities fall within special knowledge. Consequently, under Section 106 of the Evidence Act, the burden of proving such facts shifts to the party possessing this special knowledge. This principle was also affirmed in by this Court in Kusum Sharma v. Kumar Mahinder Sharma, 2020 SCC OnLine Del 931. However, the question as to whether the burden to CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 27/44 prove a particular matter is on the Plaintiff or the Defendant would depend upon the nature of the dispute. Under Section 114 of the Evidence Act, the Court is empowered to presume the existence of facts based on the natural course of business conduct. Specifically, Section 114(g) allows the Court to draw an adverse inference when a party withholds evidence that, if produced, would likely be unfavourable to them. In Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, the Supreme Court affirmed that adverse inference may be drawn against a party that deliberately suppresses documents or evidence crucial to the opposing party's case. The Court further emphasized that when a party defies a court's order to produce relevant documents, the Court can draw an adverse inference against them. In National Insurance Co. Ltd., New Delhi v. Jugal Kishore, (1988) 1 SCC 626, the Supreme Court emphasized that it is the duty of the party which is in possession of a document that would be helpful in doing justice in the cause to produce the said document, and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof.
258. Thus, while the absence of precise sales data constrains the Court from quantifying damages strictly based on actual losses, the legal principles discussed above warrant a different approach. The Defendants' deliberate failure to disclose critical sales and revenue data, despite specific directions, constitutes a wilful attempt to suppress material evidence and obstruct the Plaintiff's claim. The Defendants' non-disclosure, compounded by evasive responses in cross-examination, leaves no doubt that an adverse inference must be drawn against them. The law does not permit an infringer to benefit from its own suppression of evidence. Since precise financial records have been withheld, this Court is entitled to proceed with an approximate, but fair damages calculation based on the best available evidence. The Defendants cannot now evade liability by asserting the absence of exact sales figures, when this omission is of their own making. Accordingly, the Court shall determine the damages through a combination of reasonable estimation, adverse inference, and extrapolation from the limited disclosed figures. In doing so, reliance shall also be placed on industry benchmarks, comparable licensing arrangements, and the Plaintiff's licensing history to ensure a CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 28/44 just, equitable, and rational assessment of the damages owed."
32. Coming back to the facts of the present case, the non-examination of Mr. Vinod Kumar is a significant lacuna in the plaintiff's evidence because Ex. PW-1/5 being admittedly unsigned, unstamped, and undated as conceded by PW-1 Sh. Rahul Gupta himself in answer to Question No. 21 of his cross-examination, the only manner in which this document could have been authenticated, attributed to a specific author, and connected to specific instructions of Sh. Alok Gupta was through the oral testimony of Mr. Vinod Kumar himself. In the absence of such examination, Ex. PW-1/5 remains an unattributed, unauthenticated, and unproved document that cannot be relied upon to establish either the changed scope of work or the additional expenditure claimed thereunder. Similarly the plaintiff has also failed to examine Mr. Rajkumar who was the second member of the architect team associated with the second drawing Ex. PW-1/5, and whose testimony would have been equally material to establishing the circumstances under which the revised structural plan was prepared, the specific instructions given by Sh. Alok Gupta for the enhanced specifications, and the additional cost implications thereof. The failure to examine both Mr. Vinod Kumar and Mr. Rajkumar, both of whom were available and known to the plaintiff as admitted in cross-examination in answer to Question No. 17, invites an adverse inference against the plaintiff under Section 114 Illustration
(g) of the Indian Evidence Act, 1872.
33. A particularly instructive and directly applicable authority is the judgment of the Hon'ble Gauhati High Court in Sports CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 29/44 Authority of Assam v. Larsen and Toubro, decided on 21.12.2022, reported as 2022 LiveLaw (Gau) 71, wherein the court was called upon to examine whether a contractor who had carried out additional earth-filling work beyond the scope of the contract agreement was entitled to payment for the same. The relevant observations of Sports Authority of Assam (supra) are provided as follows:
"3. The extra work purportedly done by the respondent no. 1 was not covered by the agreement dated 10.04.2004 containing arbitration clause:
i. The respondent no. 1 has not been able to successfully demonstrate that the extra earth-filling work was within the meaning of variation as envisaged in the scope of the present contract. In this regard, it has already been stated herein before that the respondent no. 1 has not proved any document by which the Engineer-in-Charge had given any direction to the respondent no.1 to do any extra earth-filling work. Moreover, there is no pleading or evidence to the effect that the consent of the Employer was taken either by the Engineer-in- Charge to do extra work and/or by the respondent no. 1 before carrying out such extra earth-filling work.
iv. Therefore, as the prior consent of the proforma respondent no. 2 was not taken to carry out any extra work, the appellant has been able to successfully demonstrate that the extra work purportedly done by the respondent no. 1 was not covered by the agreement dated 10.04.2004 containing arbitration clause. Therefore, such claim was definitely not an arbitrable dispute.
In this regard, the respondent no. 1 has not been able to demonstrate that under the Contract Agreement dated 10.04.2004 there was any clause by which money became payable to the respondent no.1 if they had done any work gratuitously, which was purportedly put to beneficial use by the proforma respondent no.2. Moreover, it could not be CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 30/44 shown that under the arbitration clause, the Arbitral Tribunal had been conferred with the power and jurisdiction to pass and/or make an award on the principle of Section 70 of the Contract Act, 1872. Therefore, if the respondent no. 1 had a claim which was within the meaning of Section 70 of the Contract Act, 1872, the remedy for the respondent no. 1 lied elsewhere and not by way of arbitration."
34. Thus, the Hon'ble Gauhati High Court held that the contractor had not been able to demonstrate that the extra earth-filling work was within the meaning of variation as envisaged in the scope of the contract, and crucially that the contractor had not proved any document by which the Engineer-in-Charge had given any direction to carry out the extra earth-filling work. The court further observed that there was no pleading or evidence to the effect that the consent of the employer was taken either by the Engineer-in-Charge or by the contractor before carrying out such extra work, and that as the prior consent of the employer was not taken to carry out any extra work, such claim was not an arbitrable dispute and fell entirely outside the ambit of the arbitration clause in the contract. The court went on to observe that the contractor had not been able to demonstrate that under the contract agreement there was any clause by which money became payable if work was done gratuitously, which was purportedly put to beneficial use by the employer, and that even a claim under Section 70 of the Indian Contract Act, 1872 on the principle of unjust enrichment would not be available through the arbitral mechanism in the absence of the employer's prior consent to the extra work.
CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 31/44
35. The ratio of Sports Authority of Assam (supra) is directly applicable to the facts of the present case, because just as in that case the contractor here namely PW-1 Sh. Rahul Gupta has not been able to produce any document by which Sh. Alok Gupta gave specific prior consent to carry out the additional work of excavating the adjoining building pillars or to incur additional expenditure on account of the enhanced specifications in the second drawing Ex. PW-1/5 (Colly.), and the oral instructions allegedly given by Sh. Alok Gupta, even if accepted at face value, fall far short of the specific prior written consent that the law demands before a contractor can be held entitled to payment for extra work.
36. It is further relevant to note that the copy of the email dated 26.06.2019 issued from Smt. Surbhi Gupta, daughter of the defendant and architect who was closely associated with the project, which the plaintiff sought to rely upon in support of his version of events, was de-exhibited as it was not found on the judicial file. The absence of this email is significant because it was through this very email that the plaintiff claims the first drawing from Spline Engineers was transmitted to him, and Smt. Surbhi Gupta being a connecting figure between the plaintiff and the defendant throughout the project, her communications would have been material to establishing the sequence of instructions and approvals. The de-exhibition of this document weakens the plaintiff's chain of evidence at a crucial link. The bank statement filed by the plaintiff as Mark-X (Colly.) showing payments received from the defendant, while relevant to establishing the payment history, does not independently prove that the amounts received were insufficient to cover the extra work or that a specific CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 32/44 balance of Rs. 8,14,825/- remains outstanding for work done beyond the contracted scope.
37. The WhatsApp communication sent by PW-1 Sh. Rahul Gupta on 29.05.2020 in the group named C-33 SITE DISCUSSION, of which the plaintiff was himself one of the administrators with mobile number 9582937188, titled "basement work time period" and marked as Mark PW-1/DX during cross-examination, is perhaps the single most damaging piece of evidence against the plaintiff's own claim. In this document, PW-1 Sh. Rahul Gupta proposed to complete remaining basement work within 47 days for an extra payment of Rs. 12 lakhs. The plaintiff admitted in answer to Question No. 26 that he prepared Mark PW-1/DX and sent it to the group, though he maintained in answer to Question No. 27 that it was an estimate for work being done thereafter and not for the basement itself. However, this explanation sits uncomfortably with the document's own title which specifically references basement work time period, and with the plaintiff's further admission in answer to Question No. 28 that as of that date the work of 5 pillar castings and 14x25 steel binding of the basement was still remaining and was likely to take 25 to 30 days for completion, and in answer to Question No. 30 that the lanter and allied work of the basement would take a further approximately 8 days. If indeed 70% of the total work including basement work was already done as PW-1 Sh. Rahul Gupta asserts in his affidavit Ex. PW-1/A, and if Rs. 8,14,825/- had already been spent from his own pocket by that date, it is wholly inconsistent for him to be proposing on 29.05.2020 to complete the remaining basement work for a fresh payment of Rs. 12 lakhs. This internal contradiction between the CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 33/44 affidavit Ex. PW-1/A and the admissions made during cross- examination regarding Mark PW-1/DX is a serious blow to the credibility and consistency of the plaintiff's evidence. It is well settled law that where a witness's cross-examination admissions are irreconcilably inconsistent with his examination-in-chief, the cross- examination admissions are to be preferred.
38. The notice dated 15.06.2020 issued by PW-1 Sh. Rahul Gupta exhibited as Ex. PW-1/9, the reply issued by Sh. Alok Gupta exhibited as Ex. PW-1/10, and the rejoinder notice dated 25.08.2020 issued by the plaintiff exhibited as Ex. PW-1/11, collectively establish that the plaintiff did make a formal demand and that the defendant categorically denied the claim and unilaterally terminated the oral agreement vide Ex. PW-1/10. The legal notices while establishing the fact of demand do not by themselves prove the quantum of extra work done or the expenses incurred, and the defendant's denial in Ex. PW-1/10 cannot be used as an admission against him.
39. In view of the foregoing discussion on facts, evidence, and law, the plaintiff M/s Satya Construction through its proprietor PW-1 Sh. Rahul Gupta has failed to discharge the burden of proof cast upon him under Issue No. 1. While the existence of the contract Ex. PW-1/1 and some physical complications at the site stand established, the plaintiff has failed to prove the specific quantification of Rs. 8,14,825/- with cogent and independent evidence. The second drawing Ex. PW-1/5 (Colly.) being admittedly unsigned, unstamped, CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 34/44 and undated as conceded by PW-1 Sh. Rahul Gupta in answer to Question No. 21 of his cross-examination cannot constitute written authorisation for extra work. The material purchase receipts Ex. PW-1/6 (Colly.) and the attendance register Ex. PW-1/8 (Colly.) being self-generated and uncorroborated documents cannot by themselves establish expenditure beyond the contracted turnkey scope under Ex. PW-1/1. The de-exhibition of the email of Smt. Surbhi Gupta dated 26.06.2019 has weakened the plaintiff's chain of evidence at a crucial link. The WhatsApp communication Mark PW-1/DX dated 29.05.2020 sent by PW-1 Sh. Rahul Gupta himself from mobile number 9582937188 in the group C-33 SITE DISCUSSION titled "basement work time period" proposing to complete remaining basement work for a fresh payment of Rs. 12 lakhs creates an irreconcilable internal contradiction with his assertion in affidavit Ex. PW-1/A of having already completed 70% of the total work and incurred Rs. 8,14,825/- from his own pocket, and the cross-examination admissions in answer to Questions No. 26, 27, 28, and 30 must be preferred over the examination-in-chief. The legal notices Ex. PW-1/9 and Ex. PW-1/11 and the defendant's reply Ex. PW-1/10, while establishing the fact of demand and denial, do not prove the quantum of extra work done or the expenses incurred. As held in Sports Authority of Assam (supra), a contractor who carries out extra work without specific prior consent of the employer is not entitled to claim payment for the same, and PW-1 Sh. Rahul Gupta having failed to produce any document evidencing such prior written consent from Sh. Alok Gupta, the claim is not sustainable in law. Accordingly, Issue No. 1 is decided against the plaintiff and in favour of the defendant.
CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 35/44 ISSUE NO. 02
2. Whether plaintiff is entitled to recover interest from defendant, if yes, at what rate and for which period? O.P.P.
40. Since Issue No. 1 has already been decided against the plaintiff and it has been held that the plaintiff is not entitled to recover the principal sum of Rs. 8,14,825/- from the defendant Sh. Alok Gupta, the question of awarding interest on the said amount does not survive for independent consideration and must necessarily follow the fate of the principal claim.
Issue No. 2 is decided in favour of the defendant and against the plaintiff.
3. Relief
41. In view of the findings on Issue No. 1 and Issue No. 2, the suit of the plaintiff M/s Satya Construction through its proprietor Sh. Rahul Gupta bearing CS (Comm.) No. 261/20 is hereby dismissed. No order as to costs.
Issues in the Counter Claim ISSUE NO. 01
1. Whether counter claimant is entitled to recover a sum of Rs.16,22,000/- from non-claimant ? OPCC.
CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 36/44
42. Now, the Court shall discuss the issues of the counter-claim. The onus to prove the present issue lies upon the counter claimant Sh. Alok Gupta, being the party asserting the affirmative claim in the counter claim bearing CS (Comm.) No. 259/21. The counter claimant has sought recovery of Rs. 16,22,000/- from the non claimant M/s Satya Construction through its proprietor Sh. Rahul Gupta under four distinct heads, namely Rs. 5,00,000/- as excess amount paid over and above the work contract dated 02.06.2019, Rs. 22,000/- as electricity charges paid by the counter claimant, Rs. 1,00,000/- towards cost of iron, bricks, doors and other material of the old building structure allegedly taken away by the non claimant, and Rs. 10,00,000/- as damages for delay, harassment, mental agony and pain. The burden of proving each of these heads of claim independently and with cogent evidence rests upon the counter claimant Sh. Alok Gupta.
43. Taking up the first head of claim of Rs. 5,00,000/- as excess amount paid to PW-1 Sh. Rahul Gupta over and above the work contract Ex. PW-1/1, the counter claimant DW-1 Sh. Alok Gupta has himself admitted in cross-examination in answer to Question No. 29 that the total amount paid by him to Sh. Rahul Gupta was Rs. 12,90,000/- against the total agreed consideration of Rs. 1,03,95,000/- under Ex. PW-1/1 for the entire turnkey project including basement, four floors and servant room. The Payment Schedule forming part of Ex. PW-1/1 and signed by both parties breaks down the total contract value into stage-wise payments, wherein 2% was payable as advance before starting work, 3% after excavation work of basement completion, 3% after basement CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 37/44 foundation and raft slab completion, and 3% after basement RCC wall completion, total aggregating to 11% of the total contract value of Rs. 1,03,95,000/- which amounts to Rs. 11,43,450/-. The LC Report prepared by the Local Commissioner on 24.03.2021 after visiting the suit property at Plot No. C-33E, Wazirpur Industrial Area, Delhi on 24.03.2021 in the presence of both parties and their respective counsels. The LC Report thus independently and objectively establishes that about 80 to 90% work of the basement including raising of 12 pillars, completion of 6 cross beams, footing beams on both north and south sides, PCC work, and three brick walls with steel binding and RCC had been completed at the suit property, which is entirely inconsistent with the counter claimant's bald assertion that only 20% of the basement work was done and that the plaintiff worked with bare minimum labour and material. Comparing the work found completed by the Local Commissioner against the Payment Schedule forming part of Ex. PW-1/1, aggregating to 11% of Rs. 1,03,95,000/- amounting to approximately Rs. 11,43,450/- would have been payable as per the agreed schedule for the work found completed, against which the total payment admittedly made by the counter claimant is Rs. 12,90,000/- which is broadly consistent with the stage of work found by the Local Commissioner and does not in any manner establish that any excess payment of Rs. 5,00,000/- was made over and above the value of work done. The counter claimant has not placed on record any independent engineer's certificate, technical expert report, measurement book, or running account bill establishing that the value of work actually done by Sh. Rahul Gupta was less than the total payment of Rs. 12,90,000/- so as to make any part thereof an excess CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 38/44 payment, and in the absence of such evidence the claim of Rs. 5,00,000/- as excess payment is nothing more than a bald assertion unsupported by any documentary proof and is liable to be rejected.
44. The second head of claim of Rs. 22,000/- towards electricity charges allegedly paid by the counter claimant Sh. Alok Gupta is equally unsubstantiated. DW-1 Sh. Alok Gupta has not placed on record any electricity bill, any receipt of payment, any correspondence with the electricity department, or any document whatsoever establishing that electricity charges of Rs. 22,000/- were incurred at the suit property at Plot No. C-33E, Wazirpur Industrial Area, Delhi during the period of construction and that these charges were the liability of the non claimant M/s Satya Construction under the work contract Ex. PW-1/1. The work contract Ex. PW-1/1 being a turnkey contract inclusive of all material, labour, and machinery does not by itself make electricity charges separately payable by the contractor unless specifically agreed, and no such specific agreement has been proved. A bare assertion in the affidavit Ex. DW-1/A of having paid electricity charges without a single supporting document cannot be the basis of claim of Rs. 22,000/- is therefore liable to be rejected for want of proof.
45. The third head of claim of Rs. 1,00,000/- towards cost of iron, bricks, doors and other material of the old building structure allegedly taken away by PW-1 Sh. Rahul Gupta is a serious allegation of misappropriation of property that requires cogent and specific proof. DW-1 Sh. Alok Gupta has not placed on record any CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 39/44 inventory of the old building material that existed at the site before demolition, any valuation report of such material, any complaint or FIR lodged with the police regarding the alleged removal of material, or any witness who saw Sh. Rahul Gupta removing the said material. On the contrary, the LC Report prepared by the Local Commissioner on 24.03.2021 after thorough inspection of the suit property in the presence of both parties records in detail the material found at the site including 1 broken ladder, 4 MS sheets, entry gate made from metro sheets, 75 feet submersible PVC pipe, electric cable connected to transformer from MCB, and a broken electric switch, and the original inventory of material used and found at the said premises is annexed as Annexure R3 to the LC Report, which inventory was signed by both Sh. Rahul Gupta and Sh. Alok Gupta as recorded in paragraph 6 of the LC Report. The presence of substantial material at the suit property as independently recorded by the Local Commissioner as late as 24.03.2021 and acknowledged by Sh. Alok Gupta himself by signing the inventory directly contradicts the counter claimant's assertion that the plaintiff had taken away material from the site, and the claim of Rs. 1,00,000/- under this head is accordingly liable to be rejected for want of proof.
46. The LC report assumes further significance in light of the admission of DW-1 Sh. Alok Gupta in cross-examination in answer to Question No. 21 that it is correct that entire building material payments were made by Sh. Rahul Gupta during the course of construction, and in answer to Question No. 22 that all the photographs along with the inventory of material dated 24.03.2021 are of his constructed site, which are wholly inconsistent with the CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 40/44 counter claimant's assertion that the non claimant used substandard material, did not deploy sufficient labour, and did not work professionally, because if material was being purchased and paid for by the non claimant throughout the project as admitted by the counter claimant himself, the counter claimant cannot simultaneously contend that no genuine work was being done at the suit property.
47. It is also pertinent to note that DW-1 Sh. Alok Gupta admitted in cross-examination that he never got any site plan approved from MCD, meaning the entire construction at Plot No. C-33E, Wazirpur Industrial Area, Delhi was being carried out without any statutory sanction. This admission is significant in the context of the claim for loss of prospective earnings from the building, because a building being constructed without MCD approval is an unauthorised structure and the counter claimant cannot claim compensation for loss of earnings from a building that could not have been lawfully occupied or let out without regularisation.
48. It is a settled legal position that a party who himself commits a breach of contract or who himself prevents the other party from performing the contract cannot turn around and claim damages for non-performance against the very party whose performance he has disabled. In the present case, it is the defendant Sh. Alok Gupta who locked the suit property on 03.06.2020 as admitted by PW-1 Sh. Rahul Gupta in cross-examination, it is the defendant who sent the reply cum demand notice Ex. DW-1/3 dated 20.07.2020 unilaterally terminating the oral agreement dated 02.06.2019, and it is the CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 41/44 defendant who prevented the plaintiff from re-entering the site and completing the remaining work. Having himself brought the contract to an end by locking the site and terminating the agreement, the defendant cannot now claim damages for the non-completion of the very work whose completion he himself rendered impossible by his own unilateral act of termination. The claim of Rs. 10,00,000/- as damages for delay and non-completion is therefore not only unproved for want of documentary evidence as discussed earlier, but is also legally untenable on the aforesaid fundamental principle. The counter claimant having thus disabled the plaintiff from completing the work by his own act of locking the suit property on 03.06.2020 and terminating the agreement vide Ex. DW-1/3 dated 20.07.2020, the claim of Rs. 10,00,000/- as damages for delay, non-completion, harassment, mental agony and pain is not only unproved but is also legally unsustainable and is accordingly liable to be rejected in its entirety.
49. The counter claimant has also failed to examine any independent witness in support of his case. He examined only himself as DW-1 and relied upon documents already exhibited by PW-1 Sh. Rahul Gupta and the photographs Ex. DW-1/2 and the reply cum demand notice Ex. DW-1/3. No architect, no engineer, no neighbour, and no other independent person has been examined to corroborate the counter claimant's version of events.
50. In view of the foregoing discussion on facts, evidence, and law, the counter claimant Sh. Alok Gupta has failed to discharge the burden of proof cast upon him under Issue No. 1 of the counter CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 42/44 claim. The claim of Rs. 5,00,000/- as excess payment is arithmetically unsustainable on the counter claimant's own admissions in cross-examination. The claim of Rs. 22,000/- as electricity charges is unsupported by any bill or receipt. The claim of Rs. 1,00,000/- for material allegedly removed by the non claimant is unsupported by any inventory, valuation, FIR, or independent witness. The claim of Rs. 10,00,000/- for damages, delay, mental agony and pain is unsupported by any independent documentary or oral evidence and cannot be sustained in a commercial suit on the basis of mere assertions in the pleadings and affidavit. The admission of DW-1 Sh. Alok Gupta that the entire building material payments were made by PW-1 Sh. Rahul Gupta, the absence of MCD approval rendering the claim for loss of prospective earnings legally untenable, the failure to examine any independent witness, and the reliance solely upon self-serving assertions in Ex. DW-1/A and Ex. DW-1/3 collectively render the counter claim unproved and unsustainable.
Accordingly, Issue No. 1 of the counter claim is decided against the counter claimant Sh. Alok Gupta and in favour of the non claimant M/s Satya Construction.
ISSUE NO. 022. Whether plaintiff is entitled to recover interest from defendant, if yes, at what rate and for which period? OPCC.
51. Since Issue No. 1 of the counter claim has already been decided against the counter claimant Sh. Alok Gupta and it has been held that the counter claimant is not entitled to recover the principal sum of Rs. 16,22,000/- from the non claimant M/s Satya CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 43/44 Construction through its proprietor Sh. Rahul Gupta, the question of awarding interest on the said amount does not survive for independent consideration and must necessarily follow the fate of the principal claim.
Issue No. 2 of the counter claim is decided against the counter claimant Sh. Alok Gupta and in favour of the non claimant M/s Satya Construction.
ISSUE NO. 033.Relief
52. In view of the findings on Issue No. 1 and 2 of the counter claim, the counter claim filed by Sh. Alok Gupta bearing CS (Comm.) No. 259/21 is hereby dismissed.
Decree sheet be drawn accordingly.
File be consigned to record room, after due compliance.
Announced in the open Court today on this 20th day of May, 2026 (DEVENDER KUMAR JANGALA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi 20.05.2026 CS (Comm.) No.261/20 M/s Satya Construction v. Sh. Alok Gupta WITH CS (Comm.) No. 259/21 Sh. Alok Gupta v. M/s Satya Construction 44/44