Delhi District Court
Sudhir Chander Anand vs Bakshish Singh on 1 October, 2024
IN THE COURT OF GORAKH NATH PANDEY
DISTRICT JUDGE (COMMERCIAL COURT),
NORTH DISTRICT, ROHINI COURTS: DELHI.
CS (COMM.) 111/2019
CNR NO.DLNT010044102019
BAKSHISH SINGH
S/O LATE HARI SINGH,
R/O C-2, FLAT NO.2197, POCKET C-2,
VASANT KUNJ, DELHI - 110070.
.....PLAINTIFF
VS.
SH. SUDHIR ANAND
A-7/68, SECTOR - 16,
ROHINI, NEW DELHI. .....DEFENDANT
Date of Institution : 14.05.2019
Date of decision : 01.10.2024
Decision : Dismissed
AND
CS (COMM.) 428/19
CNR NO.DLNT010078312009
SUDHIR CHANDER ANAND
S/O LATE SH. BALWANT RAI ANAND
R/O A-7/68, SECTOR - 16, ROHINI,
DELHI - 110085.
.....COUNTER CLAIMANT
Vs.
BAKSHISH SINGH
S/O LATE SH. HARI SINGH
R/O C-2, FLAT NO.2197, POCKET-C-2,
VASANT KUNG, DELHI - 110070.
.....DEFENDANT
CS (Comm) 111/2019 Page No. 1 of 42
BAKSHISH SINGH VS. SH. SUDHIR ANAND
AND
CS (Comm) 428/2019
SUDHIR CHANDER ANAND VS. BAKSHISH SINGH
Date of Institution : 16.08.2019
Date of decision : 01.10.2024
Decision : Dismissed.
JUDGMENT:-
1. Vide this common judgment, I shall decide the suit filed by the plaintiff vide CS (Comm) 111/2019 for recovery of Rs.16,14,126/- alongwith pendente-lite and future interest @ 12% per annum against the defendant as well as the counter claim filed by the counter claimant/defendant vide CS (Comm) 428/2019 for passing a decree of Rs.8,29,760/- against the plaintiff alongwith pendente-lite and future interest @ 18% per annum.
Case of the Plaintiff
2. As contended, the plaintiff is engaged in construction work on contract basis. The defendant awarded work for renovation of ground floor, first floor, second floor and third floor of his Plot No.A-7/68, Sector - 16, Rohini, New Delhi to the plaintiff with material and labour including the structural work, flooring finishing, wood work, water supply, sanitary work fitting and fixtures, electrical work and external work @ Rs.1800 sq. ft. The work was to be completed within six months w.e..f 10.08.2018. The plaintiff got prepared structural drawing from J.B. Design Consultant, B-3/55, First Floor, Sector - 11, Rohini, Delhi and started the demolition work at the site. The plaintiff incurred expenses for purchase of the materials as well as CS (Comm) 111/2019 Page No. 2 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH payment of mason, labour, electrical items etc. as detailed in para no.6 of the plaint for Rs.12,84,440/-. Further, the plaintiff deployed petty contractor Sh. Ravinder Sen for labour and blinding work and paid him Rs.6,43,712/-. Sh. Name Chand was hired for electrical work and Rs.61,774/- was paid. Sh. Sunil Kumar, Carpenter was also engaged and Rs.12,124/- was paid to him. The plaintiff also incurred expenses for purchase of material, fitting of sanitary items etc. as detailed in para no.9 of the plaint amounting to Rs.3,48,580/-.
The plaintiff started the work on 10.08.2018 as per agreement and 60% of the work was completed and plaintiff incurred Rs.23,50,630/- as detailed in the plaint. After the commencement of the work, the defendant paid Rs.12,50,000/- to the plaintiff as a part payment against the final amount of Rs.28,17,114/-.
On 09.01.2019, the defendant did not allow the plaintiff for the construction at the site without any reason. The plaintiff thereafter sent the final bill for a sum of Rs.28,17,114/- to the plaintiff on 16.01.19 through speed post but the defendant did not pay any amount. As per the final bill, a sum of Rs.15,67,114/- remained due and payable by the defendant. The plaintiff issued legal demand notice dated 30.01.19 to the defendant which was not replied nor the due amount was paid. The plaintiff though initiated the pre-mediation institution but the defendant failed to appear before the Mediation Cell and hence CS (Comm) 111/2019 Page No. 3 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH non starter report dated 27.03.19 was issued. The present suit is accordingly filed by the plaintiff against the defendant for the recovery of Rs.16,14,126/- (Rs.15,67,114/- towards principal amount + Rs.47,012/- towards interest from 16.01.19 till filing of the suit) alongwith pendentelite and future interest @ 12% per annum.
Case of Defendant/Counter Claimant:
3. The defendant filed written statement as well as separate counter claim contending that the plaintiff abandoned the work in between after amount from the defendant; the defendant got the work completed after hiring other labour and small contractors for different works; the plaintiff is liable to return the extra amount of Rs.3,27,000/- taken from the defendant alongwith damages of Rs.4,63,520/- to the defendant/counter claimant. As contended, the plaintiff had taken amount of Rs.12,85,000/- from the defendant but as per the report of engineer-cum-valuer Sh. H. L. Gupta dated 08.08.2019, he completed the work only for Rs.9,57,200/- and accordingly plaintiff is liable to return the amount of Rs.3,27,000/- to the defendant alongwith interest Rs.39,240/- and damages to Rs.4,63,520/- as claimed in the counter claim. The defendant claimed that the terms of the contract between the plaintiff and the defendant were settled orally and the total cost of the work assigned was Rs.16,00,000/-; work was to be completed from CS (Comm) 111/2019 Page No. 4 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH 15th July, 2018 to 15th November, 2018 and the plaintiff was to be handover the possession of the completed house to the defendant latest by 15th November, 2018 after obtaining the necessary completion certificate from North DMC. It is further contended that the defendant also paid a sum of Rs.10,000/- in cash to the plaintiff on 10.06.18 for preparation of the site plan for submission to North DMC and another sum of Rs.25000/- in cash for obtaining necessary approval/sanction plan from North DMC on 15.06.2018.
It is stated that the defendant/counter claimant shifted to rented accommodation G-17/33, Sector-15, Rohini, Delhi on 14.07.18 at a monthly rent of Rs.22,000/- excluding electricity and water charges. The plaintiff had to start work on 15.07.2018 after obtaining necessary sanction from North DMC. Upto 23.08.2018, the plaintiff had only constructed the extended verandah on the first floor by raising two pillars from the ground floor. On 23.08.18 the work was stopped by the officials of North DMC as there was no permission from North DMC for the work carried by the plaintiff. Thereafter, the defendant got the work restarted after getting the necessary approval from North DMC and also spent amount as detailed in para no.9 of the written statement/counter claim. The counter claimant restarted the work after 1st November, 2018 and done the work upto 09.01.2019. Prayer is made to dismiss the suit with heavy cost and pass a decree of Rs.8,29,760/- alongwith pendente-lite and future CS (Comm) 111/2019 Page No. 5 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH interest @ 18% per annum in favour of the counter claimant.
4. The plaintiff filed written statement to the counter claim of the defendant denying the allegations made in the counter claim. Prayer is made to dismiss the counter claim.
5. Upon completion of pleadings, the following issues were framed in recovery suit filed by the plaintiff on 17.03.2021:
Issues:
(1) Whether the plaintiff is entitled to a decree in the sum of Rs.16,14,126/- in his favour and against the defendant? OPP. (2) Whether the plaintiff is entitled to pendente lite and future interest @ 12% per annum from 16.01.19 till realization of the amount? ..OPP (3) Whether the plaintiff is liable to return an amount of Rs.3,27,000/- alongwith damages of Rs.4,63,520/- to the defendant alongwith Rs.39,240/- towards interest @ 18% per annum w.e.f. 01.12.2018 to 31.07.2019? OPD (4) Relief.
6. Vide order dated 17.03.2021, the following issues was framed in counter claim for disposal as per law:
(1) Whether the plaintiff is entitled to a decree in the sum of Rs.8,29,760/- in his favour and against the defendant? OPP (2) Whether the plaintiff is entitled to pendentelite and CS (Comm) 111/2019 Page No. 6 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH future interest @ 18% per annum on the amount of Rs.8,29,760/-? OPP (3) Whether the plaintiff is liable to pay a sum of Rs.16,14,126/- to the defendant regarding construction/renovation of property bearing no.A-7/68, Sector -
16, Rohini, Delhi? OPD (4) Relief. Plaintiff's Evidence:
7. The plaintiff examined himself as PW1 vide his affidavit Ex.PW1/A and deposed as per the averments in the plaint as well as written statement to the counter claim and also relied upon the following documents:
(1) Mark A: Copies of rough notes containing details of construction of the house of the defendant done by the plaintiff. (2) Mark B: Copy of layout plan of the construction of the house of the defendant carried out by the plaintiff. (3) Mark C: Original delivery challan dated 11.12.18. (4) Mark D: Handwritten bill issued by Saraswati Timber dated 'Nil'.
(5) Mark E: Original bill dated 20.08.18 issued by Shri Radhey Trading.
(6) Mark F: Original bill dated 18.10.18 issued by Sh. Radhey Trading.
(7) Mark G: Original invoice no.R/17/18/001447 dated CS (Comm) 111/2019 Page No. 7 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH 26.10.2018 issued by Aggarsen Steels. (8) Marg H: Original invoice no.R/17/18/001448 dated 26.10.18 issued by Aggarsen Steels. (9) Mark I: Original invoice no.R/17/18/001449 dated 26.10.18 issued by Aggarsen Steels.
(10) Mark J: Original bill dated 31.10.18 issued by Santosh Trading.
(11) Mark K: Original bill dated 15.11.18 issued by Santosh Trading.
(12) Mark L: Original bill dated 30.11.18 issued by Santosh Trading.
(13) Mark M: Original bill dated 15.12.18 issued by Santosh Trading.
(14) Mark N: Original bill dated 31.12.18 issued by Santosh Trading.
(15) Mark O1: Original cash memo dated 30.08.18 issued by Anil.
(16) Mark O2: Original cash memo dated 06.10.18 issued by Kailash.
(17) Mark O3: Original cash memo dated 22.10.18 issued by Surender.
(18) Mark O4: Original cash memo dated 05.11.18 issued by Lallan.
(19) Mark O5: Original cash memo dated 15.11.18 issued by Radhey Lal.
CS (Comm) 111/2019 Page No. 8 of 42BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH (20) Mark O6: Original cash memo dated 25.11.18 issued by Ghanshyam.
(21) Mark O7: Original cash memo dated 05.12.18 issued by Mewa Ram.
(22) Mark O8: Original cash memo dated 28.07.18 issued by Ravinder.
(23) Mark O9: Original cash memo dated 24.08.18 issued by Jitender.
(24) Mark O10: Original cash memo dated 20.10.18 issued by Mewa Ram.
(25) Mark - O11: Original cash memo dated 25.12.18 issued by Sunil.
(26) Mark O12: Original cash memo dated 23.07.18 issued by Ravinder.
(27) Mark - 013: Original cash memo dated 25.07.18 issued by Ravinder.
(28) Mark O14: Original cash memo dated 31.07.18 issued by Krishna.
(29) Mark 015: Original cash memo dated 01.08.18. (30) Mark - O16: Original cash memo dated 02.08.18 issued by Krishna.
(31) Mark - O17: Original cash memo dated 04.02.18 issued by Pappu.
(32) Mark - O18: Original cash memo dated 16.08.18 issued by Sanju.
CS (Comm) 111/2019 Page No. 9 of 42BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH (33) Mark - O19: Original cash memo dated 19.08.18 issued by Anil.
(34) Mark - O20: Original cash memo dated 22.08.18 issued by Anil.
(35) Mark - O21: Original cash memo dated 26.09.18 issued by Ratish.
(36) Mark - O22: Original cash memo dated 01.10.18 issued by Kamal.
(37) Mark - O23: Original cash memo dated 09.12.18 issued by Kamal.
(38) Mark - O24: Original cash memo dated 13.12.18 issued by Santosh Kumar.
(39) Mark - O25: Original cash memo dated 20.12.18 issued by Suresh.
(40) Mark - O26: Original cash memo dated 29.12.18 issued by Sunder Lal.
(41) Mark - O27: Original cash memo dated 01.01.19 issued by Pappu.
(42) Mark - O28: Original cash memo dated 21.01.19 issued by Krishna.
(42) Mark - O29: Original cash memo dated 05.09.18 issued by Krishna.
(43) Mark - O30: Original cash memo dated 05.10.18 issued by Krishna.
(44) Mark - O31: Original cash memo dated 06.12.18 CS (Comm) 111/2019 Page No. 10 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH issued by Krishna.
(45) Mark - O32: Original cash memo dated 06.11.18 issued by Krishna.
(46) Mark P: Original handwritten bill issued by Nem Chand.
(47) Mark P1: Original handwritten bill issued by Ravinder.
(48) Mark P2: Original handwritten bill issued by Sunil Kumar.
(49) Mark P-3: Original handwritten bill issued by Saraswati Hardware Paints and Sanitary Store. (50) Mark Q: Rough handwritten quotation given by Plumber namely Subhash.
(51) Mark Q1: Original handwritten bill given by Plumber namely Subhash.
(52) Mark R1: Original cash memos dated 11.08.18 issued by Sumit regarding the demolition and lifting of Malba. (53) Mark -R2: Original cash memos dated 25.08.18 issued by Anil regarding the demolition and lifting of 'Malba'. (54) Mark - R3: Original cash memos dated 29.08.18 issued by Santosh regarding the demolition and lifting of 'Malba. (55) Mark - R4: Original cash memos dated 12.09.18 issued by Krishna regarding the demolition and lifting of 'Malba. (56) Mark - R5: Original cash memos dated 03.12.18 issued by Sunil Kumar regarding the demolition and lifting of CS (Comm) 111/2019 Page No. 11 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH 'Malba.
(57) Mark - R6: Original cash memos dated 17.10.18 issued by Santosh regarding the demolition and lifting of 'Malba. (58) Mark - R7: Original cash memos dated 14.10.18 issued by Mewa Lal regarding the demolition and lifting of 'Malba.
(59) Mark - R8: Original cash memos dated 29.10.18 issued by Anil Kumar regarding the demolition and lifting of 'Malba.
(60) Mark - R9: Original cash memos dated 15.11.18 issued by Sunil Kumar regarding the demolition and lifting of 'Malba.
(61) Mark - R10: Original cash memos dated 25.11.18 issued by Banwari Lal regarding the demolition and lifting of 'Malba.
(62) Mark - R11: Original cash memos dated 05.12.18 issued by Nem Singh regarding the demolition and lifting of 'Malba.
(63) Mark - R12: Original cash memos dated 25.12.2018 issued by Guddu Singh regarding the demolition and lifting of 'Malba.
(64) Mark S: Original handwritten bill dated 13.12.18 issued by Shiv Madhav Overseas.
(65) Ex.PW1/1 & Ex.PW1/2: Original final bill dated 16.01.2019 sent to the plaintiff and its postal receipts CS (Comm) 111/2019 Page No. 12 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH respectively.
(66) Ex.PW1/3: Photocopies of the relevant extracts from Delhi Schedule of Rates issued by Central Public Works Department.
(67) Ex.PW1/4: Photocopies of handwritten calculation sheets prepared on the basis of Delhi Schedule of Rates. (68) Ex.PW1/5 and Ex.PW1/6: Copy of legal notice dated 30.01.19 issued to the defendant and postal receipt thereof respectively.
(69) Ex.PW1/7: Non Starter Report dated 27.03.2019.
8. The plaintiff also examined PW2 Sh. Ravinder Sen vide his affidavit Ex.PW2/A who deposed that he is engaged in the business of building construction work and provided labour mason and baildar for the civil construction at Plot No.A-7/68, Sector - 16, Rohini, New Delhi. Witness further deposed that the plaintiff paid Rs.6,43,712/- to him for the materials supplied by him to the plaintiff and proved the original bill in this regard vide Ex.PW2/1.
9. The plaintiff examined PW3 Sh. Nem Chand who deposed vide affidavit of evidence Ex.PW3/A that the plaintiff deputed him for Electrical Work for providing of the conduct pipe, electrical boxes, fan box in linter and walls. He further deposed that he completed the electric wiring at A-7/68, Sector -
CS (Comm) 111/2019 Page No. 13 of 42BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH 16, Rohini, New Delhi and supplied all the electrical material to the plaintiff and demanded Rs.61,774/- but the plaintiff against demand of Rs.20,000/- towards part payment and Rs.41,774/- is remained due and outstanding against the plaintiff. He proved the original bill as Ex.PW3/1.
10. PW4 Subhash who was examined vide affidavit Ex.PW4/A deposed that he done sanitary work at ground floor, first floor, second floor and third floor at H.No.A-7/68, Sector - 16, Rohini, New Delhi and total cost of the work conducted by him was Rs.93,650/-; plaintiff paid him Rs.40,000/- and Rs.53,650/- is due and outstanding. He proved the original bill as Ex.PW4/1.
11. The plaintiff further examined PW5 Sh. Kaptan @ Santosh who deposed as under:
"I am doing the business of supply of building material under the name and style of M/s Santosh Trading. I know the plaintiff Bakshish Singh. I had supplied building material to him in the year, 2018. I had placed various bills/invoices in this regard in the name of the plaintiff. I have seen the bills/invoices from the court record. These are the same bills/invoices which I had raised in the year, 2018 in the name of the plaintiff in respect of the material supplied by me to him. These bear my signatures at pt. X. The same are Ex. PW5/A(Colly)(total 5 bills)".CS (Comm) 111/2019 Page No. 14 of 42
BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH
12. The summoned witness i.e. PW6 Sh. Lokesh Kumar, SSA, Engineering Department, MCD, Rohini Zone, Sector -5, Rohini, Delhi who deposed as under:
"I am a summoned witness. I have brought the summoned record i.e the Online Sanction Plan and Sanction Letter dated 01.11.2018, of Property bearing no. A-7/68, Sector 16, Rohini, Delhi. Copy of the same are Ex. PW6/1 and Ex. PW6/2 respectively".
13. The plaintiff also summoned the witness i.e. PW7 Sh. Rajesh Mittal (Proprietor) M/s. Saraswati Hardware Paints Office, F-3/4, Sector 15, Rohini, Delhi who deposed as under:
"I am a summoned witness. The plaintiff used to purchase sanatery items from me some time in 2019. I have issued a bill in my hand writings for a sum of Rs. 1,11,950/-. Same is Ex. PW7/A containing 2 pages. I have received the entire payment of Rs. 1,11,950/- from the plaintiff in cash".
14. PW8 Sh. Sudeep Kumar (Proprietor) Shri Radhey Trading, K-1, near Santoshi Mata Mandir, R.D. Public School, Krishan Vihar, Delhi deposed as under:
"I am a summoned witness. The plaintiff used to purchase rohri, badarpur, red bricks and 225 cement bags from me on 20.08.2018 and 18.10.2018 for which I have issued two bills Ex. PW8/A and Ex. PW8/B respectively which bears my signature at pt. A & B. I have received the entire payment of these two bills for a sum of Rs. 2,72,075/- from the plaintiff in cash and no payment is due".CS (Comm) 111/2019 Page No. 15 of 42
BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH
15. PW9 Sh. Dilip Kumar (Proprietor) of Bhagwati Timber Trading Shop No.A-84, Mangol Puri, Marbel Market, Delhi deposed as under:
"I am a summoned witness. The plaintiff had not purchased any material from me.
At this stage, the Ld. counsel for the plaintiff submits that the witness is not deposing truthfully. He further requests that witness may be declared hostile and he may be permitted to cross examine him. Heard. Permission granted.
XXXXX-By Sh. Bhavesh Kumar Sharma, Ld. Counsel for the plaintiff.
I have seen the documents Mark D from the court file. These documents bear the stamp of my firm M/s Bhagwati Timber Store at pt. A. (Vol. May be the plaintiff might have come to me and I might have given an estimate to him). Since this document pertains to year, 2018 and I cannot say with certainty whether I had actually issued the same to the plaintiff. It is wrong to suggest that plaintiff has purchased woods/items in the year, 2018. It is wrong to suggest that the plaintiff has paid a sum of Rs. 79,624/- in cash against a purchase of the wooden items. It is wrong to suggest that I am deposing falsely".
16. The plaintiff examined PW10 Sh. Ravi Shankar Gupta, S/o Sh. Roshan Lal Gupta, aged about 48 years, R/o B- 9/11, Ring Road, Rajouri Garden, Delhi (Prop. Of M/s. Agarsain Steels) who deposed as under:
"I am a summoned witness. The plaintiff used to CS (Comm) 111/2019 Page No. 16 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH purchase Construction Stell (Saria) from me. I have brought three computerized printout of Invoice Nos.R/17-18/001449 dated 26.10.18, R/17-18/001448 dated 26.10.18 and R/17-18/001447 dated 26.10.2018. The same are Ex.PW10/1 to Ex.PW10/3 respectively which bears my signatures at points A.
17. The plaintiff also summoned and examined PW11 Sh. Naresh Pareek, S/o Sh. Satya Narayan Pareek, aged about 33 years, R/o C-3/30, Rajouri Garden, Delhi who deposed as under:
"I am a summoned witness. I am doing three businesses of stone, construction and exports. I am doing business All Stone India. Salarsar Stone is registered in the name of my father. The address of Salasar Stone, Plot No.60, Singhole Marble Market, Narela, Delhi. The witness is shown the delivery challan Mark -C consisting of two pages and he has stated that he does not know who had issued the delivery challan as there are number of people working. We are doing stone supply business. I do not know plaintiff i.e. Bakshish Singh".
18. The defendant/counter claimant examined himself to prove the defence as well as the amount claimed in the counter claimed vide affidavit Ex.PW1/A in the counter claim. He also relied upon the following documents:
(1) Ex.PW1/1 (OSR): Photocopy of valuation report dated 08.08.19.
(2) Ex.PW1/2 (OSR): Photocopy of bill dated 22.03.2019 CS (Comm) 111/2019 Page No. 17 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH issued by Aggarwal Electricals.
(3) Ex.PW1/3 (OSR): Photocopy of bill dated 16.03.19 issued by Station Canteen Noida.
(4) Mark A: Computerized copy of bill dated 31.03.19 issued by Vijay Sales.
(5) Ex.PW1/5 (OSR): Photocopy of bill dated 20.03.19 issued by Sh. Raj Khosla of M/s. Khosla Paints and Cement Store having signature of Sh. Raj Khosla at point A. (6) Ex.PW1/6 (OSR): Photocopy of electricity bill dated 18.02.2019 issued by TPDDL.
(7) Ex.PW1/7 (OSR): Photocopy of rent agreement dated 18.07.19 bearing the signature of landlady Smt. Amita Agarwal at point B. (8) Mark B: Photocopy of alteration plan fee receipt dated 31.10.18 issued by Building Department of MCD.
(9) Mark C: Photocopy of alteration permit fee receipt dated 26.09.18 issued by Building Department of MCD. (10) Ex.PW1/10 (OSR): Photocopy of cash memo receipt dated 10.03.19 issued by Sh. Birbal Kumar. (11) Ex.PW1/11 (OSR): Photocopy of cash memo receipt dated 15.03.19 issued by Sh. Gajender. (12) Ex.PW1/12 (OSR): Photocopy of cash memo receipt dated 28.03.19 issued by Sh. Rajanoor. (13) Mark D & E: Photocopy of medical prescriptions dated both 17.01.18 of my wife Smt. Kamlesh Anand issued by CS (Comm) 111/2019 Page No. 18 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH Dr. Harender Kumar of Dr. BSA Hospital. (14) Mark F: Photocopy of medical prescription dated 22.08.18 of my wife Smt. Kamlesh Anand issued by Dr. P. K. Sethi of Sir Ganga Ram Hospital.
(15) Mark G: Photocopy of discharge summary dated 17.01.18 of my daughter in law Smt. Namrata Anand issued by Narinder Mohan Hospital.
(16) Ex.PW1/17: Affidavit/statement of truth dated 23.11.20 of the defendant/counter claimant. (17) Mark H1 to Mark H8: Photographs of property taken by the son of the defendant from his mobile phone on 25.12.2018.
(18) Mark I: Photocopy of statement of payments made by the plaintiff to the Architect Sh. Jai Bhagwan. (19) Ex.PW1/27 (Colly): Attested copy of bank statement of my account with State Bank of India showing transaction on 08.11.18 and 05.07.19.
(20) Ex.PW1/28: Original invoice no.6833 dated 13.03.19. (21) Ex.PW1/29: Original invoice no.1192 dated 12.03.19. (22) Ex.PW1/30: Original invoice no.5063 dated 15.12.18. (23) Ex.PW1/31: Original invoice no.4955 dated 09.12.18. (24) Ex.PW1/32: Original invoice no.5077 dated 16.12.18. (25) Ex.PW1/33: Original invoice no.579 dated 23.12.18. (26) Mark K-1 to K-3: Three original handwritten bills/cash memo of Rs.9640/-, Rs.4771/- and Rs.3885/-
CS (Comm) 111/2019 Page No. 19 of 42BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH respectively.
(27) Mark K-4: Copy of handwritten bills/cash memo of Rs.5770/-.
(28) Mark K-5: Original handwritten delivery challan of Somany Tiles dated 23.12.2018 of Rs.3580/-. (29) Mark K-6: Original handwritten delivery invoice/cash memo of Kajaria Tiles of Rs.107388/-. (30) Mark K-7: Original handwritten delivery invoice/cash memo dated 08.01.2019 of tiles of Rs.43828/-. (31) Mark K-8: Original handwritten delivery challan dated 12.12.2018 of tiles of Rs.10220/-. (32) Mark K-9: Original handwritten invoice no.50 dated 13.12.18 of tiles of Rs.18816/-.
(33) Mark K-10: Original handwritten invoice dated 27.01.2019 & 28.01.2019 of Rs.10337/- issued by Sethi Electricals.
(34) Mark K-11: Original handwritten invoice dated 09.02.19 of tiles of Rs.7250/-.
(35) Mark K-12: Original handwritten invoice dated 02.02.19 of electrical items of Rs.35590/- issued by Sethi Electricals.
(36) Mark K-13: Original handwritten invoice dated 02.02.19 of electrical items of Rs.17624/- issued by Sethi Electricals.
(37) Mark K-14: Original handwritten invoice dated CS (Comm) 111/2019 Page No. 20 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH 02.02.19 of electrical items of Rs.6515/- issued by Sethi Electricals.
(38) Mark K-15: Original handwritten invoice dated 01.02.19 of electrical items of Rs.5600/- issued by Sethi Electricals.
(39) Mark K-16: Original handwritten invoice dated 16.02.19 of electrical items of Rs.1625/- issued by Sethi Electricals.
(40) Mark K-17: Original handwritten invoice dated 21.02.19 of electrical items of Rs.480/- issued by Sethi Electricals.
(41) Mark K-18: Original handwritten invoice dated 27.02.2019 of electrical items of Rs.1170/- issued by Sethi Electricals.
(42) Mark K-19: Original handwritten invoice dated 18.03.19 of electrical items of Rs.2878/- issued by Sethi Electricals.
(43) Mark K-20: Original handwritten invoice dated 19.03.19 of Electrical items of Rs.590/- issued by Sethi Electricals.
(44) Mark K-21: Original handwritten cash memo dated 15.02.19 of steel rolling, grill gate items of Rs.73311/- issued by Vicky.
(45) Mark K-22: Original handwritten cash memo dated 05.04.19 of steel rolling, grill gate items of Rs.77000/-.
CS (Comm) 111/2019 Page No. 21 of 42BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH (46) Ex.PW1/5A: Original handwritten bill dated 20.03.19 issued by Raj Khosla of M/s. Khosla Paint and Cement Store of Rs.1,41,100/-.
19. The defendant/counter claimant summoned and examined the witnesses i.e. DW-2: Sh. H.L. Gupta S/o Late Sh. B.L. Gupta, Aged about 82 years, R/o 9/77, Sector-3, Rajinder Nagar, Sahibabad, Ghaziabad, UP-201005; DW-3: Sh. Gajender S/o Sh. Ranbir Singh, Aged about 47 years, R/o 192/5, Haider Pur, Ambedkar Nagar, Delhi and DW-4: Sh. Birbal Kumar S/o Sh. Niranjan Dass, Aged about 65 years, R/o J-47, Bhatta Road, Swaroop Nagar, Delhi. The testimony of these witnesses is reproduced as under:
DW2 "I am a summoned witness. I am Retired Civil Engineer from Delhi Government and presently I am doing valuation of immovable properties. I had given my Valuation Report dated 08.08.2019 on the request of Sh. Sudhir Chander Anand regardin Property No. A7/68, Sector-16, Rohini, Delhi-110085. The said report including photographs and bearing my signatures and round stamp on each page is Ex.DW2/1 (Colly.) (total 29 pages). Part-I of my report is the summary of the property in question. Part-II of my report is the brief summary of Part-I. Annexure-A of my report is showing the work done by the Contractor Sh. Bakshish Singh which include abstract of cost and detailed measurements. Annexure-B is showing the work done by by the CS (Comm) 111/2019 Page No. 22 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH owner Sh. Sudhir Chander Anand and detailed measurements. The photographs which are part of my report are of the property in question. As per my valuation given in the report the Contractor Sh. Bakshish Singh did total work of Rs.9,57,200/- in the said property and the owner Sh. Sudhir Chander Anand did total work of Rs.10,80,600/- in his property in question.
XXXX by Sh. Bhavesh Kumar Sharma, Learned Counsel for the Plaintiff.
I did my Engineering in Civil in the year 2006. I did not file any certificate of my Engineering with my report. (Vol. Same is not required). It is wrong to suggest that I am not a Civil Engineer.
In mid of July, 2019, I was asked by Sh. Sudhir Chander Anand to prepare the Valuation Report. It is correct that I had not received any notice from the Court for inspection of the property in question. I visited the property in question three four times in July, 2019 but I do not remember the date. No construction of any type was going on in the property in question when I visited. During my visit, Sh. Sudhir Chander Anand had told me about the construction in the property in question. It is correct that I had never visited the property during the period of construction. It is correct that I had not given any notice to the Contractor during my inspection of the property in question. I do not know if any case in Court was pending at the time when I prepared my report. It is correct that after seeing the report, I have mentioned about pendency of case at Page No.2 of my report. It is correct that there were disputes CS (Comm) 111/2019 Page No. 23 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH between owner and the contractor.
I do not remember the date of inspection of the property but I had visited the property three four times in July, 2019 for inspection etc. During my visits, I had found Sh. Sudhir Chander Anand, his wife and their son in the property. I was shown the sanction plan of the property by the owner but it is correct that I was not shown the drawing as per which the construction was to be carried out. It is correct that I was shown the sanction plan approved by MCD. It is correct that there was extended balcony (Chhazza) on the first floor. The second floor was fully covered with roof and over the second floor there was mumty. I was told by the owner Sh. Sudhir Chander Anand about the work which was executed by the Contractor Sh. Bakshish Singh and also the work which was executed by the owner himself. I had taken the measurements of both the works executed by Sh. Bakshish Singh and owner. It is correct that the owner had not given any measurements to me. The owner had not provided me the details of the quantity of bricks, cement, saria, disposal material, malba etc. It is wrong to suggest that I have taken wrong measurements of the propety in question for the work done by the Contractor.
It is correct that the owner had told me that the Contractor had done some dismentalling of the old structure. (Vol. The same is mentioned in my report). It is correct that I did not know the size of the saria which was inside the roof, pillars, beams and linter. (Vol. I did the calculation as per general practice). The work of plaster and electric work done by the CS (Comm) 111/2019 Page No. 24 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH Contractor are mentioned in my report. I calculted the cost of the work as per Delhi Schedule of Rate applicable at that time. I do not know what rate of work was agreed between the contractor and owner. It is wrong to suggest that the measurement shown by me in my report regarding the work carried out by the contractor are incorrect or less in all the items mentioned in the report.
It is correct that my calculation was based on DSR of 2016. (Vol. I was not aware that the rates have been revised as per DSR of 2018). It is correct that as per information given by the owner, the work was executed in the year 2018-19. It is wrong to suggest that I have prepared false and fabricated report at the instant of the owner Sh. Sudhir Chander Anand.
It is correct that the photographs filed with my report were taken by me. (Vol. They were taken by me digital camera). My son had taken the printouts of the photographs. I can operate digital camera. It is correct that I have not filed any certificate u/s 65B of Indian Evidence Act. It is wrong to suggest that the photographs are fabricated or that they do not pertain to the suit property. It is wrong to suggest that I am deposing falsely.
(At this stage, after the witness signed his deposition, he states that he has prepared revised Abstract Of Cost on 05.05.2023 and seeks to produce the same on record. Learned Counsel for the Plaintiff objects to take on record of the said revised report of the witness on the ground that it cannot be taken on record when the deposition of the witness is already CS (Comm) 111/2019 Page No. 25 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH complete and he has also signed the same and also in view of the fact that the witness did not say anything regarding the same in his examination-in-chief. I do not find any force in the objection of the Ld. Counsel. The witness is still in the court room even if he has already signed his deposition. It appears that the witness had brought the said revised report alongwith him but he did not produce the same in his examination-in-chief as no question was put to him in this regard. It cannot be said that the witness has prepared his revised report after his cross-examination was over and in order to fill any lacuna in his cross- examination. Further, in view of the statement of the witness in his cross-examination, I find it expedient in the interest of justice to take on record the revised report of the witness and to examine the witness a fresh with regards to the same.
Hence, let the witness be examined afresh on the said revised report which he is seeking to submit).
DW-2: Sh. H.L. Gupta (Recalled for further examination in view of the observations of this Court noted hereinabove).
On SA I tender in evidence my revised report dated 05.05.2023 as ExDW2/2. This report is based upon the DSR of 2018. As per this report, the contractor had done total work of Rs.11,88,243/- and the owner had done the work of Rs.11,50,097/-.
I had received notice from the Hon'ble Court to depose as a witness but I have not brought the same. I do not remember what was mentioned in that notice. I cannot produce the summons issued by CS (Comm) 111/2019 Page No. 26 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH this Court for deposing and submitting the report. It is wrong to suggest that I have not received any summons/notice from the Hon'ble Court. I had given the original report prepared by me to my client Sh. Sudhir Anand.
I prepared the report dt. 05.05.2023 Ex. DW2/2 on the same day i.e 05.05.2023. I prepared the said report on the asking of the defendant Sudhir Anand who stated that the report has to be prepared on the rates of 2018. It is wrong to suggest that I change my report in every case. Sudhir Chand Anand did not provide any drawing i.e structural drawing, foundation drawing etc. I had visited the suit property and prepared my report on the rates of 2016 and second report was prepared on the rates of 2018.
Ques. Have you considered footing/foundation work, electrical work, plaster work and RCC Column in both your reports?
Ans. These items have not been provided by the defendant.
I prepared the reports on the basis of the work done by the defendant and the work done by the contractor. It is wrong to suggest that I have mentioned incorrect rates at sr. no. 5 in Annexure A of my report Ex. DW2/2.
Ques. As per the DSR, 2018 item 5.3 page 95 rate for reinforced cement concret work in beams, suspended floors, roofs having slope up to 15 degree landings, balconies, shelves, chajjas, lintels, bands, plaint window sills, staircases and spiral stair cases above plinth level up to floor five level, excluding the cost of centering, shuttering, finishing and CS (Comm) 111/2019 Page No. 27 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH reinforcement with 1:1.5:3(1 cement : 1.5 coarse sand (zone-III) :3 graded stone agreegate 20 mm nominal size) @ 9763 per cubic meter but you have deliberately taken 5.1.3 whose rate is 7296.35 per cubic meter?
Ans. I have taken the measurement 1:2:4.
It is correct that I have not actually verified the ratio 1:2:4 as mentioned in the report is actually constructed by the contractor or not. It is correct that in RCC Steel work construction Tor Steel is provided as per item 5.22.3 of DSR 2018 page 98 whose rate is 83.50 per kg but I have taken 5.22.1 @ 82.1 per kg. It is wrong to suggest that I have taken deliberately on the instruction of the Sh Sudhir Chand Anand taken the wrong items and rates so that the amount and the measurement of the work done could be reduced.
In a report dt. 05.05.2023 Ex. DW2/2 at sr. no. 10 of at Annexure A, the quantity 1700 kg of steel as per the general practice. I have not verified the quantity of steel provided by the contractor from any drawing nor from the actually purchases by the contractor. (Vol. Actually purchase of steel by the contractor may be on the higher side but I do not know exactly). It is correct that in my both the reports, I have not taken the measurement of the providing of GI Pipes Gali Traps & construction of main Whole and removal of the old water pipelines at ground floor and first floor were not taken. It is correct that in my reports Ex. DW2/1 & Ex. DW2/2, I have not taken the measurement for the construction of RCC Pillar & footing & earth work are not taken. It is also correct that in my reports Ex. DW2/1 & Ex. DW2/2, I have not taken the providing and fixing of CS (Comm) 111/2019 Page No. 28 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH electrical items at any of the floor. It is correct that in my reports Ex. DW2/1 & Ex. DW2/2, I have not taken the measurement of the items i.e the water pipe, sanitary pipes, concealed stop cock at ground floor and first floor after removal of the previous items water pipes, sanitary pipes. It is also correct that I have not considered the measurement and price of the sanitary and shuttering of the RCC Columns and its relevant items as per DSR, 2018. As per the guidelines of PWD, in a construction work usually, the profit of the contractor is 10 % of the concluded construction value including all items, labour and other charges. It is correct that I have not taken note of said contractor profit in both of my reports. (Vol. I had taken enhancement of 15 % on account of contractor profit and miscellaneous charges which is mentioned in my report). I am not aware whether the work awarded by the Sudhir Chand to the plaintiff was on a labour basis or with material. It is correct that I have not considered the measurement and price of removal of malba after dismantling the old structure in my both reports Ex. DW2/1 and Ex. DW2/2. It is wrong to suggest that this item is included in item no. 1, 2 & 3 in my report as Annexure A. Ques. Which of your two reports i.e report dt. 08.08.2019 Ex. DW2/1 and report dt. 05.05.2023 Ex. DW2/2 is correct?
Ans. My report dt. 05.05.2023 Ex. DW2/2 is correct. I had prepared the report dt. 08.08.2019 Ex. DW2/1 on the basis of the dates prevailing in the year, 2016 whereas the rates prevailing in the year, 2018 should have been considered by me.
CS (Comm) 111/2019 Page No. 29 of 42BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH I cannot say whether 10 % of contractor profit has been considered by me while arriving at the figure of Rs. 11,50,097/- as total cost of construction in my report Ex. DW2/2. It is wrong to suggest that both of my reports are false and have been prepared by me at the instance of defendant. It is wrong to suggest that I have deliberately left out various items while preparing the reports. It is wrong to suggest that I have deliberately considered the incorrect measurements and incorrect price while preparing these reports".
DW-3:
I am a summoned witness. The document already Ex.PW1/11 (OSR) bears my signature at point A. The Ex.PW1/11 (OSR) pertains to the work which was carried out by me for Sh. Sudhir Anand at A-7, Sector-16, Rohini Delhi and the House Number might be 68 or 69. I done the work from 15.01.2019 till March, 2019. The bill pertains to the labour which was done by me. The material of the electrical items were paid by the owner. I had received total payment of Rs.37,000/- from the owner regarding labour charges of electrical work done by me. XXXX by Sh. Bhavesh Kumar Sharma, Learned Counsel for the Plaintiff.
I am only educated upto 5 th Class. I am not a Contractor. I started doing electric work from experience. There were two old floors and one new floor in the building. When I started working the second floor was not ready and only structure was there. I had started working after 15.01.2019 but I do CS (Comm) 111/2019 Page No. 30 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH not remember the exact date. It is correct that the fan box and pipes in the linter of the second floor were already there. I did the electric work in the entire staircase, front portion of Chhazza on the ground floor and second floor. I had completed work in the month of March, 2019. The owner and his family were residing in the property when I started the work. It is wrong to suggest that I am deposing falsely.
DW-4:
I am a summoned witness. The document already Ex.PW1/10 bears my signature at point A. The Ex.PW1/10 pertains to the wood work which was carried out by me for Sh. Sudhir Anand at A- 7/68, Sector-16, Rohini Delhi. I done the work from January, 2019 after buying wood and had finished till March, 2019. The bill pertains to the labour and cost of wood which was incurred by me. I had received total payment of Rs.1,40,000/- from the owner regarding labour and material of wood work done by me. The amount taken by me was Rs.1,40,000/- and what is mentioned in Ex.PW1/10 is slight variation which is very common.
XXXX by Sh. Bhavesh Kumar Sharma, Learned Counsel for the Plaintiff.
I do not have any shop. It is correct that I had visited the property for doing the work. (Vol. I could have done the work only by visiting the property. In this property, there were three floors. I had used Sagwan wood and I had put doors and windows in the property. I had put the windows and doors in the third floor of the property. I had installed ten doors and five windows. It is correct that the same is not mentioned CS (Comm) 111/2019 Page No. 31 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH in Ex.PW1/10. It is correct that the rate of the doors and windows is not mentioned in Ex.PW1/10. (Vol. The same was done after measurements). I had received payments in three installments from the owner. It is correct that the same is not mentioned in Ex.PW1/10. I had received the last payment after finishing the work in March, 2019 but I do not remember the date. It is correct that Ex.PW1/10 was prepared after finishing of work by me. It is wrong to suggest that I have deliberately not mentioned about the previous payments received from the owner. It is wrong to suggest that Ex.PW1/10 is forged and fabricated. It is wrong to suggest that I have not executed any work in the property in question. It is wrong to suggest that I am deposing falsely".
20. I have heard the final arguments addressed by the counsel for the parties and gone through the records as well. I have also gone through the written arguments filed by the parties.
My issue-wise findings are as under:
Issues No.1 to 3 of the suit (1) Whether the plaintiff is entitled to a decree in the sum of Rs.16,14,126/- in his favour and against the defendant? OPP. (2) Whether the plaintiff is entitled to pendente lite and future interest @ 12% per annum from 16.01.19 till realization of the amount? ..OPP (3) Whether the plaintiff is liable to return an amount of Rs.3,27,000/- alongwith damages of Rs.4,63,520/- to the CS (Comm) 111/2019 Page No. 32 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH defendant alongwith Rs.39,240/- towards interest @ 18% per annum w.e.f. 01.12.2018 to 31.07.2019? OPD Issues No.1 to 3 of the counter claim (1) Whether the plaintiff is entitled to a decree in the sum of Rs.8,29,760/- in his favour and against the defendant? OPP (2) Whether the plaintiff is entitled to pendentelite and future interest @ 18% per annum on the amount of Rs.8,29,760/-? OPP (3) Whether the plaintiff is liable to pay a sum of Rs.16,14,126/- to the defendant regarding construction/renovation of property bearing no.A-7/68, Sector -
16, Rohini, Delhi? OPD
21. Section 101 of the Evidence Act, 1872 defines "burden of proof" which is reproduced as below:-
"101. Burden of proof- whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been liable to discharge his burden. Until he CS (Comm) 111/2019 Page No. 33 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH arrives at such conclusion he cannot proceed on the basis of weakness of other party. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings.
22. It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit, this suit is to be decided on the basis of preponderance of probabilities.
In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to observe as under:-
"A civil case is decided on balance of probabilities. The balance of probabilities in the present case shows that the Power of Attorney Ex. PW3/1 and the Will Ex. P-1 were duly executed by the deceased Sh. Sohan Singh. The Power of Attorney is after all a registered Power of Attorney, and more importantly, the original title documents of the subject property are in the possession of the respondent No. 1 and which would not have been, if there was not to be any transfer of title in the suit property. Merely because two views are possible, this court would not interfere with one possible and plausible view which is taken by the court below, unless such view causes grave injustice. In my opinion, in fact, grave injustice will be caused CS (Comm) 111/2019 Page No. 34 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH not to the objectors/appellants but to the respondent No. 1 her father-in-law Sh. Sewa Singh, if the impugned judgment is set aside."
In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
''8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case vis-a- vis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit "preponderance of probability" would serve the purpose for obtaining a decree".
23. The relevant Section 103 Indian Evidence Act, 1872 which cast onus on the parties to prove their contention is also reproduced for ready reference as under:
Section 103 Evidence Act, 1872: Burden of Proof as to particular fact The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person. Illustration:
(a) A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission.
B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.
24. The brief and relevant facts for the filing of the suit alongwith defence of the defendant and the counter claim has CS (Comm) 111/2019 Page No. 35 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH been mentioned at the outset. All these issues are decided together being connected and interrelated.
There is no denial by the defendant regarding the award of the contract for construction/renovation of the building by the plaintiff. It is also proved from the record that the part payment was made by the defendant to the plaintiff for the job done by the plaintiff but the plaintiff has not completed the work and the defendant was constrained to get it completed from other entities. Several witnesses have been examined by the plaintiff in support of the claim to prove the entitlement of the amount like chowkidar, workman, contractor, carpenter, shopkeeper, etc. The witnesses examined by the plaintiff were cross-examined at length by the counsel for the defendant. Throughout the plaint as well as the affidavit of evidence, the plaintiff has not detailed or given the dimension of the work done against which the amount is claimed specifically in this case. Mark A i.e. the copy of rough note containing details of the construction of the house of the defendant done by the plaintiff is not proved in accordance with the law and has no evidenciary value. It is further observed that most of the invoices by the plaintiff in support of the claim are merely photocopies and not proved as per the provisions of Indian Evidence Act. Merely filing of the photocopies of the bill is not sufficient to prove the contention. Further, the plaintiff has not proved anything in support of the contention that he made payment to the other persons examined by him for their services.
CS (Comm) 111/2019 Page No. 36 of 42BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH PW1 during cross-examination deposed that he has no technical qualification and during the period of contract in question, he had two other contracts having obligations. It is also admitted form the cross-examination of PW1 that he could not complete the work as per the time scheduled admitted between the plaintiff though the defendant has handed over the premises after vacating the same on rent for the work get done by the plaintiff. Admittedly, the plaintiff was to start work from 15.07.2018 which was not done.
The plaintiff has examined many witnesses in support of the claim. PW2 has been examined to prove the civil construction in the property and proved the bill accordingly. PW2 during cross-examination admitted that the bills alleged by him were issued by his Munsi. PW2 also not proved or deposed regarding the work done at the site. The witness failed to depose as to when the work was started or when it was stopped by MCD to again resume. The witness further admitted number of mason and labourers engaged at the site have not referred in the bill Ex.PW2/1. No quotation is proved by the PW2 regarding the work done nor is any written work order issued by the plaintiff to PW2.
PW3 who has been examined to prove the electrical work also deposed during cross-examination that the content of his affidavit by way of evidence Ex.PW3/A were not explained to him and he was not aware where and by whom it was prepared.
CS (Comm) 111/2019 Page No. 37 of 42BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH PW3 is not qualified for working as electrician nor he had any licence to work as an Electrical Contractor. Moreover, the witness failed to prove when he started the work in question, when it was stopped nor any quotation is filed. Further, the witness failed to disclose the work done by him. Again the bill Ex.PW3/1 relied by the plaintiff was not issued by him.
The plaintiff examined PW4 claiming that he has completed the plumbing work and relied upon the bills Ex.PW4/1. PW4 also does not had any qualification to work as Sanitary Contractor. The witness admitted that:
"It is correct that the plaintiff never paid any amount to me by cheque or by any electronic transfer in my account. It is correct that I had no dealings with the defendant regarding the work I did for the plaintiff. I had given quotation to the plaintiff before starting the work. I do not have the copy of the same.
XXXX XXXX XXXX It is correct that the plaintiff had not given any work order to me in writing. I do not remember the date regarding the meeting with the plaintiff for this work. I did not remember the amount and date of the first payment made by the plaintiff to me in cash. I do no remember the amount and last payment paid by the plaintiff to me in cash".
No document has been produced by PW4 to prove any work done by him and the witness further admitted that Ex.PW4/1 is not prepared by him nor it was issued by him to the plaintiff".
CS (Comm) 111/2019 Page No. 38 of 42BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH
25. The testimony of PW5 is to the effect that he has supplied the building material to the plaintiff and raised the bill Ex.PW5/A (Colly) and it does not prove any such material was used by the plaintiff for the purpose of construction at the spot. Moreover, PW5 also admitted that he is not aware as to where the plaintiff used the material supplied by him as he had building project at number of places in 2018. These bills do no bear any GST number nor any GST has been paid against these bills for the items supplied to the plaintiff.
26. PW7 has been examined to prove the bills of sanitary items vide Ex.PW7/A. Admittedly, PW7 also do not have GST number. The witness failed to furnish the details of the items supplied to the plaintiff pursuant to Ex.PW7/A nor Ex.PW7/A was issued by him.
The testimony of PW8 is also to the same effect. Ex.PW8/A and Ex.PW8/B are in respect of the rohri, badarpur, red brick and cement bags. The entity of the PW8 is also non compliance of GST nor any GST has been charged against the bill Ex.PW8/A and Ex.PW8/B. PW9 failed to deposed regarding the authenticity and certainty of the bills issued by him.
PW10 who claimed to have supply the steel/saria raised the bill in the name of the defendant though admittedly he never met him. The witness admitted that the invoices are raised CS (Comm) 111/2019 Page No. 39 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH as per choise of the purchaser even if the person was not present. The witness further admitted that he was not aware where the material mentioned in the invoices was used; where the items mentioned in the invoices were delivered or to whom the same was delivered.
In nut shell, the testimony of PWs does not reach to the conclusion that the plaintiff invested the amount of the bill for construction in question or what was the scope of the construction by the plaintiff at all. Even the bills relied by the plaintiff are not proved in accordance with the provisions of law considering the testimony of witnesses examined in this respect. Accordingly, plaintiff failed to prove the contention in the plain and discharge the onus.
As regards the relief claimed by the defendant/counter claimant in the counter claim, it is submitted that the defendant has completed the work and spent the amount therefore, is entitled for the amount claimed in the counter claim. The defendant also failed to detail the work done by the plaintiff, the scope of the work to be done by the plaintiff, work left by plaintiff which was completed by the defendant etc. Merely completing the work and spending any amount does not cast any liability upon the plaintiff nor is the plaintiff responsible for any such spending of the defendant. The defendant has not paid all the amount agreed for the construction of the house in question to the plaintiff. It is admitted that the plaintiff has done some part of CS (Comm) 111/2019 Page No. 40 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH construction but has not completed. It is also admitted that the complete payment was not made to the plaintiff. DW1 also during cross-examination admitted that work done by the plaintiff in the case but has not calculated his expenses or remaining expenses made by the defendant which was to be done by the plaintiff. The work was stopped by the defendant only and the defendant also did not obtain the necessary Sancton for start of the work as per schedule. The defendant is therefore, also responsible for the delay caused by the plaintiff in the work if any. Merely making vague allegations and claiming the amount on the basis of bills for completing the own work does not entitle the defendant for any amount from the plaintiff. The testimony of DW2 to DW4 is not relevant for decision of the case as the defendant has spent the amount if any on his own construction without obtaining the permission from the plaintiff.
27. In view of the testimony of witnesses and documents on record, aforementioned discussions and examining the case on the basis of preponderance of probabilities, this court is of the considered opinion that the plaintiff and the defendant/counter claimant have failed to discharge the onus and prove the issues. Issues are accordingly decided against the plaintiff and the defendant/counter claimant. In view of the above findings, the plaintiff and the counter claimant are not entitled for the relief as prayed in the suit as well as in the counter claim. The suit of the CS (Comm) 111/2019 Page No. 41 of 42 BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH plaintiff and the counter claim of the defendant/counter claimant are accordingly dismissed.
28. Decree sheet be drawn accordingly.
29. Copy of the judgment be placed in both the files.
30. The copies of the judgment be issued to all the parties to the dispute through Electronic Mail. Judgment be also uploaded on the server.
31. File be consigned to Record Room after necessary compliance. GORAKH Digitally signed by GORAKH NATH NATH PANDEY Date: 2024.10.22 PANDEY 16:27:25 +0530 Announced in the open court (GORAKH NATH PANDEY) st on 01 October, 2024. District Judge (Commercial Court) North: Rohini:Delhi.
CS (Comm) 111/2019 Page No. 42 of 42BAKSHISH SINGH VS. SH. SUDHIR ANAND AND CS (Comm) 428/2019 SUDHIR CHANDER ANAND VS. BAKSHISH SINGH