Delhi District Court
Shivanik Arjun Santwani vs Mrs. Rajshree Singh on 15 March, 2023
IN THE COURT OF DISTRICT JUDGE,
COMMERCIAL COURT (02),
SOUTH DISTRICT, SAKET COURT, NEW DELHI
CS (COMM) 52/22
Shivanik Arjun Santwani ..... Plaintiff
proprietor of M/s H. S. Floors,
office at B-176, Lajpat Nagar-I,
New Delhi-110024
Versus
Mrs. Rajshree Singh ..... Defendant No. 1
r/o F-27, Asola Farms,
Chattarpur, Delhi-110074
Ms. Arundhati Khanna .....Defendant no. 2
Architect of Fortis Healthcare Ltd.
Tower A, Unitech Business Park,
Block F, South City 1, Sector-41,
Gurugram, Haryana - 122001
Date of Institution : 12.03.2019
Date of arguments :14.03.2023
Date of Judgment : 15.03.2023
JUDGMENT
1. This is a suit for recovery of Rs.4,68,704/-
alongwith pendetelite and future interest @ 18% per annum.
1.1 Plaintiff, Shri Shivanik Arjun Santwani is proprietor of M/s H.S. Floors, who is engaged in the business of providing floor related services. The business activities are also managed by Sh. Mohan Santwani father of plaintiff as well. Ms. Arundhati Khanna (D-2) who was earlier representing Forties Healthcare Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 1 of 49 Ltd. (D-3) became acquainted with the plaintiff in the year 2012 as plaintiff had worked with D-3. It is stated that plaintiff received a telephonic call from D-2 regarding availing floor related and other restructuring services for the farm house at F- 27, Asola Farm, Chhatarpur, New Delhi-110074.
1.2 Defendants agreed to avail the services of the plaintiff and acknowledged two quotations letter dated 10.11.2015, raised by plaintiff and addressed to D-2, bearing the subject 'Polishing of White Marble Floor' and 'Densification of Concrete', at F-27, Asola Village, Chattarpur, New Delhi. D-2 vide email dated 16.12.2015, informed plaintiff about drawing a cheque of Rs.75,000/- in lieu of advance payment, bifurcated as Rs.25,000/- towards polishing work and Rs.50,000/- towards densification concrete work.
1.3 The case of the plaintiff is that he took up the project and dispensed with the services with due care and kept defendants informed regarding the material used, the schedule and timely updated defendants vide emails. On 05.03.2016, plaintiff informed the defendants about completion of project and that house was ready for use and further work completion certificate was obtained from the site supervisor namely Shri Rohtash Singh. Plaintiff conveyed to defendants that site measurement has been taken. He sent several emails to defendants requesting them to visit the site to satisfy about quality of work but defendants ignored those requests of the plaintiff for inspection of the work site on one pretext or the other.
Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 2 of 49 1.4 It is further pleaded that defendants resorted to fault- finding in order to ignore the payment. The final bills were raised on 23.03.2016 and sent vide email dated 21.04.2016. Thereafter, plaintiff requested the defendants to release the payment due to him. It is stated that since plaintiff was engaged in another project, therefore, machinery and equipment employed at the defendants' work site had to be removed and shifted to the other project on 03.04.2016 after approval of the defendants.
1.5 It is stated that when defendants failed to make the payment, plaintiff sent a legal demand notice dated 18.02.2019 through registered post, which was received by the defendants on 21.02.2019 and 23.02.2019. Plaintiff has prayed for passing a decree for principal amount of Rs.3,04,485/- alongwith interest @ 18% per annum w.e.f. 23.03.2016 till filing of the suit, amounting to Rs.1,64,219/- and also pendent-lite and future interest and costs.
Written Statement 2.1 Suit was contested by defendants by filing written statement. In the preliminary objections, D-1 and D-2 stated that suit is not maintainable and deserves to be dismissed. It is stated that plaintiff arraigned D-1 in the present dispute merely because D-1 is the owner of the suit property and entire transaction was an interaction between D-2 and the plaintiff. It is stated that D-2 resides at the suit property with her mother (D-1), who is a qualified achitect with over 21 years of experience in designing various residential and industrial projects in India and abroad and is well known in her filed of work, as plaintiff had not come to the Court within clean hands and suppressed material facts.
Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 3 of 49 2.2 It is stated that D-2 was an employee of D-3 company working in the projects department. The scope of the work of the D-2 at the D-3 company included the designing and execution of buildings and renovation of already existing buildings. It is stated that from time to time Sh. Mohan Santwani (father of plaintiff) had been engaged by D-3 company to carry out work of polishing of marble and D-2 had the opportunity to observe the work carried out by father of the plaintiff during her employment at D-3 company. It is stated that around September 2015, D-2 had approached plaintiff's father for providing services pertaining to polishing of marble. However, after visiting the project site, Sh. Mohan Santwani noticed that D-2 had extensively used exposed concrete in the project and upon representations and assurances of Sh. Mohan Santwani , it was agreed between D-2 and Sh. Mohan Santwani that the scope of work to be performed would also include densification and water proofing of the exposed concrete. It was understood between the parties that the services provided would be end to end and that the quotations agreed upon by D-2 included the over-all cost, including the cost of material as well. It is stated that prior to engaging Sh. Mohan Santwani D-2 had never met or interacted with the plaintiff. D-2 sought to engage Sh. Mohan Santwani as she was familiar with his work and because of his assurances that M/s H. S. Floors is nothing but an later ego of Sh. Mohan Santwani and that he would coordinate and supervise the work on insistance of Sh. Mohan Santwani, the work was awarded in the name of his son i.e. plaintiff.
2.3 Case of D-1 and D-2 further is that the parties had agreed upon the terms on which services were to be provided by Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 4 of 49 M/s H. S. Floors on 16.11.2015, a sum of Rs. 75,000/- was paid to M/s H. S. Floors by D-2 as mobilization advance, out of the said sum, Rs. 25,000/- was paid against concrete densification and waterproofing and Rs. 50,000/- against polishing of marble. It is stated that screeding and concrete finishing of concrete at the external walls (hereinafter referred to as Wall Mix Work) of the project had to be carried out. M/s H. S. Floors undertook to supervise and coordinate for the execution of the said work, while D-2 continued to deal with M/s H. S. Floors , the firm proceeded to outsource the Wall Mix Work to certain external sub-contractors namely Sh. Dilip Shinde and Sh. Vijay Chavan. It is stated that D-2 had never met with Sh. Dilip Shinde and Sh. Vijay Chavan and had only agreed to engage them on the insistence of Sh. Mohan Santwani and his assurance that he would personally supervise their work and would be responsible for its due execution but despite that Sh. Mohan Santwani never visited the project site nor responded to the queries by D-2 with respect to the status of work.
2.4 Case of D-1 and D-2 further is that in the beginning of February 2016, plaintiff informed the D-2 that the wok at the project site had been completed, however on an inspection of the project site by D-2 it was discovered that the quality of work provided by the plaintiff was so abysmal that even Sh. Mohan Santwani agreed that the work done was sub-standard and assured that the same would be redone. It was admitted by him that during the period of time, the work was being done at the project site, he did not even bother to visit the suit property to ascertain the quality of work done or to supervise the work. It is stated that whilst the project was ongoing, D-2 had provided the Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 5 of 49 plaintiff space at the project site to house the labourers engaged by the plaintiff as well as to store the material and tools to be used by the plaintiff for the project and the said lodging and storage had been provided D-2 in good faith and for the swift completion of the project.
2.5 It is further stated that the plaintiff started making repeated demands on D-2 to clear its payment and D-2 reiterated that as per the terms of the agreement, which had been agreed upon between the parties, the payment would be cleared only once the project was duly executed in its entirety as it had already been inordinately delayed and each day of delay added to the cost of the project making its burdensome upon D-2. In March 2016, the plaintiff started making false representations to D-2 regarding the completion of work. On 05.03.2016, the plaintiff contacted D-02 stating that the works under their scope had been completed and when d-2 asked for proof, the plaintiff admitted that the work was not yet completed, however stated that the same was near completion.
2.6 It is stated that plaintiff admitted that work on the project site was pending and the project was not complete in all respects and was not ready to be handed over to the D-2. It is stated that D-2 raised certain queries in good faith from the plaintiff in order to be satisfied regarding the quality of materials used and the techniques utilized for the wok done. It is stated that the concerns of D-2 also arose due to the fact that during one of the inspections, it was noticed by D-2 that plaintiffs were being using expired materials and D-2 , herself being an architect was much aware of the various possible methodologies that could Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 6 of 49 have been used, however, plaintiff failed to satisfactorily respond to the said queries.
2.7 It is further pleaded that on 23.03.2016, plaintiff raised the final bills for payment, despite the fact that the plaintiff had not completed its obligations under the agreement and started withdrawing the workers and tools deployed for the project. Due to such conduct and omissions of the plaintiff, not only was the D-2's work neglected and delayed, the plaintiff also caused D-2 in wrongful loss as D-2 had to shell out exorbitant amounts of money to accommodate the supervise the labourers , cost of scaffolding done and removed twice, cost of materials and other associated costs. Defendant no. 1 & 2 have pleaded that plaintiff abandoned the project work prior to their completion, but even the quality of works performed by the plaintiff was of sub- standard quality and had to be rectified at additional cost by D-2. Upon the appointment of second contractor, it was found by D-2 that the kitchen wire mash was missing at most places under the plaster and the entire work had to be redone after first removing and scraping the underlying works done by the plaintiff and thus, D-2 suffered loss on account of actions of the plaintiff and had to spend money to complete and redo the work left abandoned by the plaintiff and rectify the defects on the work already executed by the plaintiff. It is stated that plaintiff caused financial loss to D-2 breaching his obligations under the agreement and any amount, if payable, were in fact payable by the plaintiff to D-2.
2.8 It is averred that work of concrete desnfication , which was required to be carried out by the plaintiff , as represented by the plaintiff, intended to make the exposed Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 7 of 49 concrete on the exterior walls dust proof and waterproof. However, subsequent to the purported completion of project works by the plaint, D-2 never realized that the exposed concrete has neither been made dust proof nor water proof. It is stated that either no work of densification of concrete has been carried out or if any such work had been done, the plaintiff had made false representations regarding the result of such work. It is stated that no loss had been caused to the plaintiff on account of any wrongful act of D-2 and any financial loss which the plaintiff might have suffered is on account of its own failure to discharge its obligations.
2.9 On merits, D-2 admitted that the he had approached the plaintiff in order to avail floor related services and the same was being limited only to polishing of marble floor. D-2 denied that she approached the plaintiff for any other services including "other restructuring services" it is stated that it was only upon the insistence and representations made by the plaintiff's father Sh. Mohan Santwani as well as the plaintiff that D-2 hired the services of the plaintiff for concrete densification on the exterior surfaces for making them dust proof and water proof. D-2 admitted that two separate quotations letters were raised by the plaintiff and stated that the final agreement between the plaintiff and D-2 was on the basis email dated 16.11.2015. it is stated that vide email dated 16.11.2015, D-2 informed plaintiff that a cheque was drawn in his fvour to the tune of Rs. 75,000/-, however, the amounts were paid as advance was for Rs. 25,000/- against concrete densification and waterproofing and Rs. 50,000/-against polishing of marble. D-2 denied that D-2 agreed to any such quotations said to be provided by the plaintiff on 10.11.2015 and Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 8 of 49 engaged the plaintiff. It is stated that the final quotations agreed upon by the parties to the agreement were based on further negotiations and the terms of the same were distinct from that of the quotations and the quotations referred to by the plaintiff have no bearing in the present suit. It is stated that the understanding between the parties was that the plaintiff through the his father Sh. Mohan Santwani was hired for end to end services i.e full responsibility for the completion of the project was that of the plaintiff and the plaintiff was also responsible for procuring all and any material to be used for and during the course of the project. It is stated that D-2 ended up supplying the material including things like kitchen wire mesh.
2.10 D-2 denied that plaintiff dispensed the services with utmost diligence and due care and that the plaintiff had kept the D-2 informed regarding the schedule of the said project, materials used in it and had given timely updates to defendants through email. It is stated that on the contrary, the quality of work of the plaintiff was sub standard and the plaintiff promised to redo the entire work. It is stated defendant repeatedly attempted to contact the plaintiff regarding the completion of work, but plaintiff did not respond to any of the defendants pleas for site visit and failed to keep the defendants updated regarding the progress of the work at the site. D-2 denied that communication on 05.03.2016 was made by the plaintiff and on the contrary, despite the work not being finished and left in an incomplete state, the plaintiff started hounding the D-2 for payment. It is stated that in the email dated 17.03.2016 , plaintiff himself acknowledged that the work was not complete and D-1 had repeatedly stated that the works would be started in order to Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 9 of 49 complete it only after inspection by the plaintiff. It is stated that the entire process of obtaining a purported work completion certificate form Sh. Rohtash was intended to circumvent by D-2.
2.11 D-2 admitted that plaintiff raised final bills dated 23.03.2016 despite non-completion of work but denied that D-2 ignored the requests by the plaintiff for site visit or that in order to ignored the requests by the plaintiff for site visit or that the in order to ignore the payments due to the plaintiff, resorted to fault finding. D-2 further denied that D-2 started bickering about the services provided and withheld the payment due to the plaintiff. In this regard, it is stated that D-2 was merely attempting to cull out the complete details beforehand , so that any deficiency in that regard could be resolved before travelling all the way for the site visit. It is stated that in the light of past experience of D-2 , with the work done by the plaintiff in the project, where the work done was so abysmal that even the plaintiff admitted the lack of quality. It is stated that as per the agreement between the plaintiff and D-2, besides the advance payment was to be made once the plaintiff completed their work in entirely and despite the non- completion of work, plaintiff started repeatedly persisting D-2 for release of payments. D-2 admitted that on 03.04.2016 , plaintiff requested for the removal of the machinery to be used in other projects and the same was approved by D-2. D-2 denied that throughout the project tenure, plaintiff maintained discipline and decent work ethics. It is stated that during the pendency of the project, the plaintiff committed to finish the same within reasonable time period as the completion of the same had been delayed due to the plaintiff's own fault & negligence. It is stated that despite that, plaintiff engaged its workers, deployed for the Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 10 of 49 defendant's project and accommodated by the defendants at the defendant's own expense for various other projects. It is stated that D-2's guards caught the plaintiff's workers throwing the work material outside the walls of the project site and said material was purchased by the defendant no. 2 for the work at the project site. It is stated that the plaintiff attempted to interference bribe the defendant no.2's guard by offering them other jobs in a bid to keep them from disclosing the mala-fides of the plaintiff.
2.12 D-2 admitted legal notice dated 18.02.2019, however, denied that the same was sent bona-fide and stated that on 10.05.2018, D-2 had intimated to the plaintiff that D-2 intend to file a suit for compensation and damages for non-completion of work, misusing the accommodation provided by D-2 by engaging the labourers in other work else and offering jobs to the D-2 guards. It is stated that legal notice is nothing but a counter blast. D-2 denied that the cause of action arose when D-3 through D-2 approached the plaintiff to avail floor related services and the plaintiff sent emails to the defendant and that the plaintiff raised the final bills for payment on 23.03.2016. Replication 3.1 Plaintiff filed replication wherein he reiterated the contents of plaint and denied the assertions made by the defendants. It is submitted that Sh. Mohan Santwani father of plaintiff and was working on behalf of plaintiff and managing the work on his behalf and was responsible to him and as part of duty had visited the site many time to see the progress and had even communicated with D-1. It is further submitted that after 20% mobilization payment , defendant never made any payment as Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 11 of 49 agreed. It is pleaded that plaintiff himself asked D-2 to inspect the site on their part so that defendants would be satisfy and clear the outstanding of the plaintiff. Plaintiff reiterated that vide email dated 15.03.2016 and other various emails, when after the lapse of time of completion of work, the plaintiff again send other reminder mail to D-2 for inspecting the site and releasing of funds but all efforts made by the plaintiff remains futile and every time D-2 gave lame reason on one pretext to another and had not inspected the site in the presence of plaintiff.
3.2 In preliminary submissions, plaintiff stated that work was completed as per the instructions of the defendants. Plaintiff took up the said project and dispensed the services with utmost diligence and due care. Plaintiff informed the defendants about the schedule of the project, materials used in it and had given timely update to the defendant vide emails. Plaintiff stated that defendant was very much aware about the fact that Sh. Mohan Santwani is the father of plaintiff, who was responsible and managing the plaintiff's business. It is denied that Sh. Mohan Santwani had given assurance that he would personally supervise the work of Sh. Dilip Shinde and Sh. Vijay chava. Plaintiff denied that contrary to his assurances, Sh. Mohan Santwani never came to the project site to supervise the ongoing work. Plaintiff denied that upon inspection of the project site by D-2, it was discovered that the quality of work provided by the plaintiff was abysmal or that Sh. Mohan Santwani agreed that the work done was sub-standard and assured that the same world be re-done. It is stated that it was always the plaintiff who kept on informing about the progress of completion of work and the emails dated 21.12.2015 and 15.03.2016 make it clear, when Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 12 of 49 after the lapse of time of completion of work, the plaintiff again sent the reminder mail to D-2 for inspecting the site and realizing of funds but D-2 never inspected the site . It is stated that plaintiff did their work to the best expectation of defendant and all the time was plaintiff kept on informing the defendants about the status of the said project but D-2 never inspected the site/project. It is stated that the defendants had not approached the plaintiff because D-2 knew that the work of the plaintiff has no issues related to quality.
3.3 Plaintiff pleaded that it was the plaintiff, who suffered losses as the plaintiff is a business man and had to pay to his labourers, who was deployed on daily basis. It is stated that as per the terms and conditions, defendants had to make payment on weekly basis, which the defendants failed and vide email dated 15.03.2016, when the work was mostly completed within stipulated period of time given by D-2 and that the work was duly completed upon the satisfaction of the defendants and work completion/measurement certificate was obtained from defendants site engineer but because of mala fide intention, defendant never cleared the payments. It is stated that vide email dated 15.03.2016, the plaintiff communicated the defendants stating that the work was duly completed on their part and asked to release the payment as the work was duly completed within the given period of time and asked D-2 to visit the project site and satisfy themselves regarding for the said project but D-2 in order to avoid making the payments never visited the site to inspect and till date, had not released the payment.
Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 13 of 49 3.4 Plaintiff stated that before work contact agreement samples were made at the site and D-2 was satisfied with quality, methodology and materials used including make and brands, the plaintiff completed all the work with same procedure and with the satisfactory demands of D-2 and always updated D-2 about the quality of material used. Plaintiff stated that the plaintiff had kept the defendants informed regarding the schedule of the said projects, material used in it and had given timely update to the defendant by email. On 23.03.2016, plaintiff raised the final bills for payment but denied that the plaintiff had not completed/discharged its obligations under the agreement and started withdrawing the workers and tools deployed for the project. It is stated that plaintiff had other jobs and could not wait for months for inspection and keep their labour/machinery at site.
3.5 Plaintiff denied that due to conduct and omissions of the plaintiff, D-2's work was neglected and delayed or wrong full loss was caused to D-2. It is reiterated that work was duly completed upon the satisfaction of the defendant but because of the mala fide intention never cleared the payments. Plaintiff denied that plaintiff abandoned the project work prior to their completion or the quality of works performed/supervised by the plaintiff was of sub-standard quality which had to be rectified at additional cost by D-2. Plaintiff denied othe assertions. Plaintiff stated that the work was completed before time as every time, it was only the defendants, who had played with pre-planned strategy to deceive the plaintiff with bad intentions trying to mix other contractor issues with plaintiff, D-2 as an architect should have known that steel wire mesh, nails,cement etc., were not used in floor polishing and densification. It is stated that the bona Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 14 of 49 fide intention of the plaintiff could be seen in email dated 15.03.2016 , when after the lapse of time of completion of work, the plaintiff again send the reminder mail to defendant no. 2 for inspecting the site and releasing of funds but all the efforts made by the plaintiff remained futile and every time D-2 gave lame reason on one pretext to another. It is stated that plaintiff suffered the losses from the act of defendants as the plaintiff is a business man, who need to pay to the workers who had been deployed to the other site.
3.6 It is submitted that defendants admitted the facts that they had availed the services of plaintiff for concrete densification on the exterior surfaces for making them dustproof and waterproof. Plaintiff admitted that as per agreement between plaintiff and D-2, besides the advance payment was to be made once the plaintiff completed their work in entirely and stated that defendants had to pay weekly payment on percentage of job completed, which was never fulfilled by the defendants. Plaintiff further stated that plaintiff sent email dated 15.03.2016, shows that the work was completed within stipulated period of time given by D-2 to the satisfaction of the defendant.
4. After appearance on 11.02.2020, defendant nos. 1 & 2 as well as defendant no. 3 filed separate applications U/o VII Rule 11 CPC. Vide a detailed order dated 06.10.2020, application filed by D-1 and D-2 was dismissed, whereas application filed by D-3 U/o VII Rule 11 CPC was allowed and the name of D-3, Forties Healthcare Ltd. was ordered to be deleted from the array of the parties. On 06.10.2020, parties were directed to join mediation to explore the possibility of settlement.
Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 15 of 49 On 04.12.2020, Court was informed that parties could not settle the matter in mediation.
Issues
5. On 27.11.2021, case management hearing was held and from the pleadings following issues arose :-
1. Whether the suit is within limitation? OPP
2. What was the agreement between the parties regarding the services to be provided by the plaintiff to the defendant and regarding rate/amount? OPP
3. Whether plaintiff is entitled to recovery of principal amount of Rs.3,04,485/- from the defendant, towards job work? OPP
4. Whether the services provided by the plaintiff to the defendant was defective and deficient? OPD
5. Whether plaintiff has not performed his part of contract as per the agreement and accepted that the work was completed satisfactorily by the plaintiff vide document dated 05.03.2016? OPD
6. Whether the defendant suffered losses due to defective and deficient work done by the plaintiff and therefore, has no liability to pay any amount to the plaintiff? OPD
7. Whether plaintiff is entitled to interest as claimed @ 18% per annum w.e.f. the date of final bill i.e. 23.03.2016 till the date of filing of this suit, amounting to Rs.1,64,219/-? OPP
8. Whether plaintiff is entitled to pendent-lite interest till realization? If so, at what rate? OPP
9. Relief.
Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 16 of 49 Witnesses examined and documents placed on record
6. Plaintiff examined himself as PW-1. He placed on record electronic copy of GST no. FCFPS6500D1ZQ dated 26.06.2017 Ex. PW1/2; Quotations Ex. PW1/3 and Ex. PW1/4; Email dated 16.11.2015 Ex. PW1/5; Internal communication through emails between plaintiff and defendant w.e.f 07.11.2015 to 17.01.2019 Ex. PW1/61 to Ex. PW1/622; copies of work completion Certificates dated 05.03.2016 and 21.03.2016 Ex. PW1/7A to Ex. PW1/7D; copies of final bills dated 23.03.2016 amounting to Rs. 1,48,652/ and Rs. 2,31,173/ Ex. PW1/9 & Ex.PW1/10; emails Ex. PW1/616 to Ex. PW1/622; legal notice dated 18.02.2019 Ex. PW1/13; Postal receipts Ex. PW1/14 & Ex. PW1/15 and tracking reports to Ex.PW1/16A & Ex. PW1/16B and Certificate u/s 65B Indian Evidence Act Ex. PW1/17.
7. On behalf of defendants, Ms. Arundhati Singh Khanna was examined as DW-1. She placed on record CD containing two videos of the sample block sent by Sh. Mohan Santwani on 16.10.2015 Ex. DW1/1; Computer printouts Ex. DW1/2; Certificate u/s 65B Indian Evidence Act Ex. DW1/3; Computer printout Ex. DW1/4; copies of photos Ex. DW1/5 & Ex. DW1/6; Email dated 09.02.2016 Ex. DW1/7; printouts of photos Ex. DW1/8A to Ex. DW1/8B; Ex. DW1/9A to Ex. DW1/9D; Ex. Dw1/10A to Ex. DW1/10I; Computer printout of email dated 11.10.2018 Ex. DW1/11A & Ex. DW1/11B; Computer printout of consolidated summary of the amounts Ex. DW1/12; invoice raised by M/s S S Constructions Ex. DW1/13; Computer printouts of documents i.e. worksheet and email dated Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 17 of 49 15.04.2018 Ex. DW1/14A and Ex. DW1/14B; computer printouts of tax invoice dated 12.04.2018 raised by M/s Sarvodaya Enterprises for an amount of Rs. 3,01,595/ alongwith the breakup Ex. DW1/15A to Ex. DW1/15C; printouts of documents pertaining to the work done by M/s Sarvodaya Enterprises Ex. DW1/16A to Ex. DW1/16P; Computer printout of bank account statement w.e.f 05.04.2018 to 20.06.2018 Ex. DW1/17; photocopies of first page of cheque book showing details of payment made to M/s S S Constructions Co and M/s Sarvodaya Enterprises Ex. DW1/17 A to Ex. DW1/17B; Certificates u/s 65 B Indian Evidence Act Ex. DW1/18 and Ex. DW1/19 with regard to emails dated 10.02.2016 and 12.10.2015.
8. Shri Gurcharan Singh was examined as DW-2. He placed on record five photographs of the suit property taken by him during survey Ex. DW2/A-1 to Ex. SW2/A-5; copy of certificate u/s 65-B of Indian Evidence Act 1872 Ex. DW2/B. Affidavit in evidence of Shri Sandeep Seth to be examined as DW-3 was placed on record but he was not examined. He was dropped and DE was closed.
9. This Court has heard the submissions advanced by Shri Maneesh Gumber, Ld. Counsel appearing for the plaintiff as well as Shri Aditya Hooda, Ld. Counsel appearing for the defendants and perused the entire material placed on record.
Issue-wise findings Issue No. 1
10. Whether the suit is within limitation? Onus to prove this issue was on the plaintiff. This suit was filed on 12.03.2019.
Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 18 of 49 Ld. Counsel appearing for the defendants submitted that the present suit is barred by limitation since the suit has been filed beyond the time period of 3 years from the date of completion of work. It is submitted that date of preparation of purported measurement sheets, obtaining purported completion certificate etc. is 05.03.2016 and date of final bill/invoice i.e 23.03.2016 is immaterial. It is argued that as per Article 18 of the Limitation Act, 1963, when recovery of dues is sought against the work done, the starting point of limitation is the date of completion of work and not the date of invoices or non-payment of the invoices. It is submitted that Articles 113 or 137 of the Limitation Act, 1963 have no application, which apply only, if limitation is not provided elsewhere in the Schedule.
11. Ld. Counsel for defendant placed reliance in the case of "Micrographics India vs. Govt. of NCT of Delhi & Anr.", dated 17.04.2018 in RFA No. 320/2018 wherein the our Hon'ble High Court observed that in the present case, the plaintiff is seeking payment for the services provided by him to the defendant department as well as for the goods supplied by him to the defendant department, therefore, the relevant article which shall determine the limitation of present suit are Articles-14, 15 and 18 of Limitation Act and as per all the three articles, the period of limitation for filing the suit is three years from the date of delivery of goods or completion of work or when there is fixed period of credit from the date when the said period expires. Ld. Counsel for the defendant argued that plaintiff has failed to plead or prove any facts in issue in support of the this issue. It is submitted that Order VII Rule 6 of the CPC mandates that where plaint has been filed beyond the prescribed period of limitation, Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 19 of 49 the plaint must contain specific averments seeking exemption from the limitation law.
12. Per contra, Ld. Counsel appearing for the plaintiff submitted that after completion of work on 21.03.2016, the final bills were raised by him on 23.03.2016, which were sent to the defendants through email dated 21.04.2016 as no one was available to receive the bills. It is submitted that plaintiff from time to time sent emails and reminders for payment and requested the defendant to inspect the site to satisfy themselves with the quality and completion of the work. Defendants stated in her email dated 14.04.2016 that she will not release payment unless she inspect the site. Plaintiff through email dated 21.04.2016 again requested for inspection of site as well as due payment vide e-mail Ex PW 1/6 and defendants refused to pay the amount to the plaintiff vide email dated 10 th May 2018 Ex. PW1/11.
13. It is submitted that suit was filed on 12.03.2019 and in compliance with the order dated 13.03.2019, plaintiff instituted pre-institution mediation under Section 12A of Commercial Courts Act 2015 and filed an application before DLSA for pre-institution mediation on 06.04.2019 and non- starter report dated 11.07.2019 was issued to the plaintiff and filed before this Court on 16.07.2019. It is submitted that the present suit is within limitation and this Court has dealt with this aspect vide its order dated 06.10.2020.
14. The issue of limitation is a mixed question of law and fact. In the present case, plaintiff is seeking payment for the services provided by him to the defendant. Having regard to Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 20 of 49 Article 18 of the Limitation Act, 1963 for recovery of dues sought against the work done/services rendered, the starting point of limitation would be date of completion of work. The question to be addressed is when it can be said that the work is completed.
15. To find this, evidence and documents placed on record and pleading needs to be scrutinized and analyzed. In cross-examination, DW-1 on asking whether she could tell the name of the person she had authorized to sign the measurement sheets and to verify the job work of other various contractors including the plaintiff, DW-1 stated that she had not authorized anybody and that the measurement sheets were done in her absence and without prior information to her. She further stated that in construction parlance, measurement sheets are never deemed a completion certificate, which is always issued to the contractor after the defects liability period, which was construction norm.
16. In her affidavit in evidence, DW-1 deposed that without completing the work and without rectifying the poor quality of work and the defects pointed out by her, the plaintiff started raising frivolous and baseless claims that the work was completed. DW-1 deposed that on 05.03.2016, the plaintiff contacted her and stated that the work had been completed, however when she demanded proof of the completion of work, plaintiff admitted that work was not yet complete and was near completion and in subsequent mails, plaintiff admitted that the entire work was still not complete.
17. DW-1 deposed that when the plaintiff claimed that the work of concrete densification as well as marble polishing Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 21 of 49 was complete, vide email dated 21.03.2016, she informed M/s H. S . Floors that she was out of station and would like to inspect the work in the presence of Sh. Mohan Santwani. DW-1 further deposed that vide email dated 21.03.2016, she requested M/s H. S. Floors to share with her the product literature, specs as well as the methodology statement employed by M/s H. S. Floors, which was never supplied. DW-1 stated that plaintiff in her absence and without her knowledge prepared the alleged measurement sheets and got the same signed from one Sh. Rohtash, who was not her representative or employee, and could neither inspect the work on her behalf nor sign the alleged measurement sheets on her behalf, which were never shared and contents thereof were verified by her or her representative and measurement sheets were prepared by M/s H. S. Floors before she could inspect the worksite and were neither a completion certificate nor reflected the completion of work done by M/s H. S. Floors. DW-1 deposed that on 30.03.2016 , Sh. Mohan Santwani wrote an email to her asking her to fix a time for inspection of the work done by M/s H. S. Floors.
18. In cross-examination, on being asked that the plaintiff after rectifying the defects pointed out by her and her vide email dated 21.04.2016 Ex. PW1/6-18 , DW-1 stated that the contents of said email were incorrect. She stated that Sh. Rohtash had no authority to approve any work and was also not asked to check anything. DW-1 deposed that after 21.04.2016 , there was no follow up form Mohan Santwani/plaintiff as he abandoned the work once he was able to remove his material and tools until two years later.
Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 22 of 49
19. Now, in para 10 of affidavit in evidence Ex. PW1/A, PW-1 deposed that on 05.03.2016, he had informed the defendants that the said project was completed and the site/farm house was ready and available for use. PW-1 further deposed that he obtained work completion certificates dated 05.03.2016 Ex. PW1/7A to Ex. PW1/7C with measurement sheet dated 21.03.2016 Ex. PW/17D from sh. Rohtash Singh-site supervisor, who was representing defendants at the site. In para 12 of affidavit in evidence Ex. PW1/A, PW-1 further deposed that he had raised two final bills dated 23.03.2016 amounting to Rs. 1,48,652 Ex. PW1/9 and amounting to Rs. 2,31,173/- Ex. PW1/10 which was sent through email dated 21.04.2016 Ex. PW1/6-16 to Ex. PW1/6-22 as defendant deliberately avoiding to meet the plaintiff.
20. In cross-examination, PW-1 deposed that whatever defects were pointed out were rectified by him PW-1 deposed that work forming subject matter in the present suit was completed around 15/16.03.2016 and concrete densification was completed around end of February 2016. On being shown the para 10 of the evidence in affidavit, wherein it is stated that on 05.03.2016, plaintiff had informed the defendants that the said project was completed and the site/farm house was ready and available for use. PW-1 deposed that he did not remember the date exactly when the work was completed, PW-1 testified that heinformed D-2 through email and telephone regarding completion of work as it was a continuous process. PW-1 denied that Ex. PW1/7-A to Ex. PW1/7-D were the only measurement sheets but not work completion certificate. PW-1 stated that Ex. PW1/7-A to Ex. PW1/7-D were handover sheets, which were Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 23 of 49 handed over to defendant when the work was completed. PW-1 deposed that handover sheets were verified and received by Sh. Rohtash present at the site, who was the representative of D-2. PW-1 deposed that D-2 told him that Sh. Rohtash was his representative. PW-1 deposed that in the present case, measurement sheet and work completion certificate/hand over sheet were the same.
21. PW-1 denied that Sh. Rohtash was the employee of another contractor working at the site. PW-1 deposed that after completing their work, they prepared the handover sheet/measurement sheet and got them rectified from defendant or the site supervisor. PW-1 admitted that measurement sheets were prepared by him before inspection of the work by defendants. PW-1 admitted that after inspection of the work by defendant and discussion with his father, his father stated a part of the work had to be re-done. PW-1 deposed that the defects were pointed out by the defendant in January 2016, which were rectified the defects by March 2016. PW-1 denied the suggestion that the defects were pointed out by the defendant after 05.03.2016 and that email dated 14.04.2016 addressed by the defendant to his father pertains to defects that arose after 05.03.2016. PW-1 admitted that on 17.03.2016, his father wrote an email to D-2 stating that some work was pending. PW-1 stated that they prepared the measurement sheet on 21.03.2016 after completing the work. PW-1 deposed that he wrote an email to D- 2 after getting the measurement sheet signed by Sh. Rohtash and the same email contained the invoices.
Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 24 of 49
22. Although in para 8 of the plaint, plaintiff has mentioned that he had informed that project is completed and the site is ready and available for use and that work completion certificate had been obtained from the site supervisor Sh. Rohtash Singh and also conveyed to the defendant that site measurement had also been taken. In para 16 of the plaint , plaintiff needed about arising of the cause of action on 23.03.2016 when the final bill was issued. Pleadings have to be read meaningful alongwith documents and Court has to peruse and appreciate the evidence and material placed on record in its entirety and as a whole.
23. Appreciation of evidence on record as a whole shows that handover sheets/measurement sheets Ex. PW1/7A for the part of the work was prepared by the plaintiff on 05.03.2016 and measurement sheet Ex. PW1/7D for the remaining part was prepared on 21.03.2016. According to the defendant, the work had not been completed to her satisfaction. Evidence on record shows that work had been completed on 21.03.2016 and thereupon, final bill was raised by the plaintiff on 23.03.2016, sent to the D-2 through mail dated 21.04.2016. This Court finds that work had been completed on furnishing of final bill on 23.03.2016 and thus, this Court is of the considered view that the period of limitation would start from the date of submission of the final bill on 23.03.2016 and suit having been filed on 12.03.2019 is within limitation. The issue no. 1 is decided in favour of plaintiff and against the defendants.
Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 25 of 49 Issue No. 2
24. What was the agreement between the parties regarding the services to be provided by the plaintiff to the defendant and regarding rate/amount? Onus to prove this issue was on the plaintiff. Case of plaintiff is that he is the proprietor of M/s H. S. Floor and engaged in the business of providing floor related and other activities services. In para 5 of the plaint, plaintiff has asserted that the defendant agreed to avail the services of the plaintiff and thereupon plaintiff raised two quotations dated 10.11.2015 Ex. PW1/3 & Ex. PW1/4 addressed to defendant no. 2 bearing subject title as "Polishing of White Marble Floor at F-27, Asola Village, Chhattarpur" and "Densification of concrete at F-27, Asola Village, Chattarpur". In response, defendant in the written statement has admitted about raising of two separate quotation letters by the plaintiff.
25. Ld. Counsel for the plaintiff submitted that plaintiff was only assigned the job work of concrete Densification and Marble Floor Polishing services for which the defendants agreed and acknowledged the said quotations. In para 6 of the plaint, plaintiff has pleaded that defendant agreed and acknowledged the above said quotations and engaged the plaintiff for the services. It is further the case of plaintiff that D-2 vide email dated 16.11.2015, informed the plaintiff about drawing of cheque of Rs. 75,000/- as advance payment and the bifurcation of the said amount was (a) Rs. 25,000/- against work of polishing and (b) Rs. 50,000/- for concrete densification work. In response to these averments in para 5 and 6 , the defendant has not disputed about the email dated 16.11.2015 sent by D-2 to the plaintiff and about drawing of the cheque of Rs. 75,000/- and its breakup which is Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 26 of 49 given as an advance.
26. Ld. Counsel for the defendant argued that since the agreement for execution of work was essentially between D-2 and Sh.Mohan Santwani, the plaintiff has no privity to the same and consequently, there is no agreement for execution of any work between the plaintiff and D-2 and as the plaintiff has failed to prove any agreement between the parties. It is argued that notwithstanding the absence of any agreement, the defendants have proved the agreement for execution of work between Sh.Mohan Santwani and D-2, who approached the plaintiff's father Sh.Mohan Santwani in September 2015 for carrying out the work of polishing of marble for the Project and Sh.Mohan Santwani upon visiting the site also recommended densification work at the Project. Ld. Counsel appearing for the defendants argued that the plaintiff has failed to prove the agreement between the parties regarding the services which were to be provided by the plaintiff to the defendants and there was no privity of contract between the plaintiff and the defendants and the work had actually been awarded by D-2 to the father of the plaintiff Sh.Mohan Santwani, who had agreed to interact with M/s H.S. Floors only on the assurance of Sh.Mohan Santwani. It is submitted that while the plaintiff has averred in his affidavit in evidence as stated at Para 4 and 5 that the plaintiff was earlier acquainted with D-2, who had called him to avail floor related services and other restructuring services from D-2, however, during cross-examination, the plaintiff admitted that he never had any dealing with defendant no. 1 prior to the present work & did not do any work for defendant no. 2 prior to the work forming the subject matter of the present suit from the firm M/s H. S. Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 27 of 49 Floor. Plaintiff admitted that D-2 had approached his father for the work forming the subject matter of the present suit and all discussion regarding scope of work, pricing, etc., was between his father and D-2 and he never interacted with D-2 on phone.
27. Ld. Counsel for the defendant argued that D-2 specifically stated in her affidavit that M/s H. S Floors is nothing but the alter ego of Sh.Mohan Santwani and that he will oversee, coordinate and supervise all the work and that no questions were put to D-2 during her cross-examination with respect to this. Ld. Counsel for the defendant submitted that on 16.11.2015, rates were finalized between Mohan Santwani and D-2 vide D-2's e- mail. It is submitted that during the execution of work of floor polishing and concrete densification by the plaintiff, the work of wall mix/plastering was also awarded to Sh.Mohan Santwani, which is reflected from all the e-mails exchanged with regard to the wall-mix/plastering work were also addressed to Sh.Mohan Santwani/ Plaintiff. It is argued that Shri Mohan Santwani, however, without any such agreement with D-1/D-2, outsourced wall mix work to external contractors- Sh. Dilip Shinde and Sh. Vijay Chavan. It is submitted that Sh. Mohan Santwani/plaintiff had promised the highest quality of work to the defendants, however, the work was neither complete nor up to the quality promised by Sh.Mohan Santwani/plaintiff.
28. The defendant's version is that the final agreement between the plaintiff and D-2 was based on email dated 16.11.2015. It is denied that D-2 agreed to the quotation provided by the plaintiff on 10.11.2015 and engaged the plaintiff on the Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 28 of 49 basis thereof and stated that the final quotations agreed upon by the parties were based on further negotiations. In replication, plaintiff denied that the amounts were paid in advance and denied that the final quotations were based on further negotiations.
29. Admittedly, plaintiff is the son of Mohan Santwani. Defendant has mentioned that Mohan Santwani insisted that work be awarded in the name of his son i.e. plaintiff. Even the quotations Ex. PW1/3 dated 10.11.2015 and Ex. PW1/4 dated 16.11.2015 are on the letter heads of H. S. Floors, which were written by D-2. In written statement, D-2 has although initially mentioned that she was engaging Mohan Santwani but at several places D-2 has mentioned about H. S. Floors and she was dealing with H. S. Floors. For example, in para 4 (v) it is stated that parties agreed on the terms on which services were provided by H. S. Floors on 16.11.2015 and a sum of Rs. 75,000/- was paid to H. S. Floors which was bifurcated as mentioned above.
30. Admittedly, plaintiff had raised two quotations letters Ex. PW1/3 and Ex. PW1/4 dated 10.11.2015 addressed to defendant no. 2. The first quotation was given @ Rs.45/- per sq. ft for surface preparation and densification of concrete, Rs.9/- per sq. ft for solvent base water proof sealer coating and Rs. 65/- per sq. ft for polishing of white antique marble floor. Defendant vide email dated 16.11.2015 Ex.PW1/5 reduced the charges and job work to Rs.40/- per sq. ft for densification of concrete and Rs.9/- per sq. ft for water proofing treatment dust proofing treatment and Rs.60/- per sq. ft for polishing. Plaintiff vide email dated 15.03.2016 informed the D-2 that their job of concrete Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 29 of 49 densification is complete and marble polishing job was mostly finished and asked for approval, if D-2 wanted Sealer application on concrete and if yes, then requested for release of funds vide email dated 15.03.2016. D-2 vide email, dated 16.11.2015 informed the plaintiff that a cheque has been drawn in favor of the plaintiff amounting to Rs.75,000/- as an advance payment. Bifurcating the said amount as (a) Rs.25,000/- against the work of polishing and (b) Rs.50,000/- against the concrete densification work, totaling to Rs.75,000/-.
31. In view of evidence on record, this Court finds that an agreement was in existence between plaintiff and D-2 for providing services pertaining to polishing of marble, densification of concrete, water proofing treatment dust proofing treatment. In her affidavit in evidence D-2 is DW-1 interalia has stated that scope of work of marble polishing included grinding filling up of the gaps between the stone floor tiles, leveling of the filling and the stone floor tiles and ultimately, polishing of the prepared floor surface. She deposed that the agreement between the parties was through email dated 16.11.2015 and subsequent to the agreement, a sum of Rs. 75,000/- was paid to M/s H. S. Floors by her on 16.11.2015 as mobilization advance. DW-1 has referred about the other work of screeding and concrete finishing of external walls (Wall Mix Work) which D-2 agreed outsourced and engaged Vijay Chavan and Dilip Shinde on the assurance of Mohan Santwani.
32. This Court finds that work of polishing of white marble floor at F-27, Asola Village, Chhattarpur and densification of concrete at F-27, Asola Village, Chhattarpur belonging to D-1 and D-2 had come into existence between the Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 30 of 49 parties on 16.11.2015. Parties agreed for treatment of densification of concrete @ Rs.49 per sq ft (which included job work to Rs. 40/- per sq. ft for desnfication of concrete and Rs. 9/- per sq ft for water proofing treatment, dust proofing treatment and Rs. 60/- per sq. ft for polishing. This issue no. 2 is decided accordingly.
Issue No. 4, 5 and 633. Whether the services provided by the plaintiff to the defendant was defective and deficient? & Whether the defendant suffered losses due to defective and deficient work done by the plaintiff and therefore, has no liability to pay any amount to the plaintiff? & Whether the defendant suffered losses due to defective and deficient work done by the plaintiff and therefore, has no liability to pay any amount to the plaintiff? The onus to prove these issues was on the defendant, which she failed to discharge. These issues are taken up before issue no. 3 and being inter-connected are taken up together.
34. Ld. Counsel appearing for the defendants submitted that D-2 raised several objections with regard to the quality of the work as well as the management of Sh.Mohan Santwani/plaintiff during the execution of the work by the plaintiff/Mohan Santwani. It is submitted that the e-mails whereby the defendant has raised objections with regard to the quality of work being executed by the plaintiff/Mohan Santwani and through the sub- contractors engaged by the plaintiff/Mohan Santwani are that vide e-mail dated 17.11.2015, D-2 objected to the delay in dispatch of material and vide e-mail dated 27.11.2015, D-2 objected to being suddenly informed that for wall mix work, she Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 31 of 49 has to pay not only for base material and cement but also for fiber net and additional labour charges. It is submitted that D-2 also objected to not being provided with any specifications and vide e-mail dated 27.11.2015, D-2 also pointed out Sh. Mohan Santwani's failure to co-ordinate.
35. Ld. Counsel for defendant submitted that vide e- mail dated 05.02.2016 sent to Plaintiff, his father Mohan Santwani and Vijay Chauhan, D-2 pointed out deficiencies/dereliction of duties by the Plaintiff and the persons deployed by him that D-2 was unable to even contact Sh.Dilip Shinde, nobody visited the site to check up the work; no body informed the status of the work despite repeated requests, there were cracks in the work all across the project and screed had been applied unevenly. It is stated that D-2 is not even informed about the workers leaving the site, workers/Team left the work at D-2`s site incomplete and went away to Noida/Meerut. It is stated that plaintiff`s staff, Surinder was staying at D-2`s premises and his other workers were executing some other work in Meerut leaving D-2`s work incomplete. It is stated that work completion was inordinately delayed and Mohan Santwani stopped taking interest in work after December 2015 visit and failed to rectify the shortcomings/deficiencies in work execution and Mohan Santwani disappointed D-2. It is stated that D-2 did not want workmanship compromised and the intent of Plaintiff, his father and others engaged by him was bad.
36. It is argued that e-mails dated 17.11.2015, 27.11.2015 and 05.02.2016 were written before any payment related issues arose between Plaintiff and D-2, before the work has been stated to be completed by the Plaintiff on 05.03.2016. It Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 32 of 49 is submitted that plaintiff did not send any reply to D-2`s e-mail dated 05.02.2016 and that plaintiff himself had filed D-2`s e-mail dated 05.02.2016. It is submitted that vide e-mail dated 19.03.2016, plaintiff himself admitted that he wanted to use Indian sealer on concrete and that vide e-mail dated 21.03.2016, D-2 stated that she was comfortable dealing with Sh. Mohan Santwani and that work checking should be done in the presence of Sh.Mohan Santwani and that plaintiff has still not sent the product literature and plaintiff had not shared the methodology statement with the products and companies of the products they used. It is submitted that vide e-mail dated 14.04.2016, D-2 again pointed out the deficiency and delay in execution of the work and vide e-mail dated 17.01.2019, D-2 stated that D-2 ought to have filed a case against Plaintiff since Sh. Mohan Santwani disappeared altogether and work remained incomplete and Plaintiff/ Sh.Mohan Santwani kept D-2's work pending and took up other jobs during the work period and even used D-2's premises for accommodation of labors doing some other work at some other place.
37. Ld. Counsel for the defendant submitted that the defects pointed out by D-2 from time to time were never rectified by the Plaintiff/ Mohan Santwani. It is submitted that apart from the foregoing documents placed on record by the plaintiff himself showing several defects in the work being executed by the plaintiff and several other defects have been proved by the defendants. It is further submitted that the plaintiff has utterly failed to do the work of concrete densification up to the standard promised to the defendants. Ld. Counsel for the defendant reiterated that the defendants were promised that the exposed Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 33 of 49 concrete at the suit premises would have the same properties as the sample block prepared and shown to D-2, however, a bare comparison of the sample block shown to D-2 Ex. DW-1/1, Ex. DW-1/2 & DW-1/4) with the photographs of the work done, as proved by the defendants Ex. DW-1/9 & Ex. DW-1/10 show that the exposed concrete was ruined by the plaintiff instead of properly doing the work of concrete densification. It is submitted that the allegedly densified concrete is showing no resistance to dust, water, staining etc.
38. Ld. Counsel for the defendant argued that the surface of the allegedly densified concrete has marked undulations and the surface does not have the same shine/gloss as was promised to the defendants in the sample. It is submitted that the aforementioned facts have been proved by the unrebutted testimony of the DW-1 & DW-2. Ld. Counsel for the defendant argued that the invoice shows that plaintiff has only charged for densification of concrete and has not charged for waterproofing @ Rs.9/- sq. ft. extra. It is further submitted that waterproofing/dust proofing is within the scope of work. Ld. Counsel for the defendant submitted that the plaintiff thus, did incomplete work. It is submitted that the work was promised to the defendants on the basis of the sample block (Exhibit DW-1/1) and therefore, the work of waterproofing/ sealer application was an integral and non-severable part of the agreement. It is submitted that the plaintiff was also found using expired products to execute the work.
39. Ld. Counsel for the defendant argued that when a representative of BASF India Limited visited the work site at the Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 34 of 49 insistence of D-2, he informed D-2 that the plaintiff was using products of other local brands by putting the same in containers of BASF India Limited. It is submitted that the work of marble polishing was also of extremely poor quality. Ld. Counsel submitted that the pictures of the work done by the plaintiff (Exs. DW-1/5, DW-1/6, DW-1/8, DW-1/9, DW-1/10) show that the surface of the marble was rough and was not leveled. It is submitted that the filler in the marble was missing at several places and was excessive at other places. It is submitted that the plaintiff had damaged the marble while doing the work as is evident from photos showing cracks in the marble/broken marble.
40. Ld. Counsel for the defendant argued that as the work was abandoned by the plaintiff and whatever work was done was of extremely poor quality, the defendants were constrained to engage other contractors for rectification of the work done by the plaintiff. It is submitted that defendants engaged M/s S.S. Construction for rectification of plastering/civil work on external walls, who was already executing some work for the defendants at the suit premises and accordingly, the work of rectification of plastering work/wall-mix work done by the plaintiff/plaintiff's subcontractors was awarded to M/s S S Construction. It is submitted that DW-2 (Gurcharan Singh) was deployed by M/s S S Construction as site supervisor at the suit premises and DW-2 in his affidavit in evidence has stated that the undertook a site survey of the entire suit premises before commencing work of rectification and found that the work of concrete densification, wall-mix/plastering and marble floor polishing was of extremely poor quality. Ld. Counsel for the Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 35 of 49 defendant argued that the plastering done by the sub-contractor of the plaintiff had to be removed as the chicken wire mesh had not been inserted while doing the plastering and the entire plastering had to be redone by M/s S.S. Construction after inserting the chicken wire mesh.
41. Ld. Counsel for the defendant further argued that M/s S.S. Construction raised an invoice of Rs.5,32,914.69 paise for rectifying the work which was poorly done by the plaintiff Ex. DW-1/13 and the amount of Rs.5,32,914.69 paise was accordingly paid by the defendants to M/s S S Construction Ex. DW-1/17. It is submitted that the work of rectification of poorly executed work of marble polishing by the plaintiff was awarded by the defendants to M/s Sarvodaya Enterprises, who re-did the work of marble polishing to the satisfaction of the defendants. It is submitted that M/s Sarvodaya Enterprises raised an invoice of Rs.3,00,076.64 paise for redoing the work of marble polishing Ex. DW-1/15 and that defendants paid a sum of Rs.3,00,076.64 paise to M/s Sarvodaya Enterprises for redoing the work of marble polishing Ex. DW-1/17. It is submitted that defendants have undertaken expenditure of Rs.8,32,991.33 paise for rectification of the work poorly executed by the plaintiff and there is not a single document/e-mail wherein D-1 or D-2 have accepted that the work is complete or that the work is satisfactory. It is submitted that the purported measurement/job hand over sheets dated 05.03.2016 over sheet has not been signed by D-1 and/or D/2 and/or by anyone authorized by them.
42. Per contra, Ld. Counsel appearing for the plaintiff submitted that after completion of job work by the plaintiff, the Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 36 of 49 plaintiff continuously requested to inspect the site so that the plaintiff could raise the bill and also request for release of payment vide emails dated 15.03.2016, 17.03.2016, 19.03.2016, 29.03.2016, 02.04.2016, 10.04.2016, 14.04.2016, 21.04.2016, 10.05.2016 and through various telephonically reminders. It was urged that defendants never inspected the site in the presence of the plaintiff and before 10.05.2018, never raised question of losses/counter claim. It is further submitted that defendant first time raised the question of loss/counter claim on 10.05.2018 and they never informed about the defect after 21.04.2016 when the plaintiff raise final bills/invoices for payment sent her through email.
43. Ld. Counsel for plaintiff submitted that now defendants have raised counter claim which cannot be maintainable as the defendants never informed any defect after completion of job or that the plaintiff has refused to do so. It is submitted that the first person should be the plaintiff to offer to rectified defect and only on refusal by plaintiff then only the offer should be given to other contractor(s) if at all. It is submitted that defendants through witness Ex.DW-2, tried to show that M/s S.S. Construction Company was done defective job of plaintiff. It is stated that DW-2 in his cross-examination stated that M/s Sarvodaya Enterprises has not done any job of concrete densification and that M/s S.S. Construction Company did repair work, staff quarter work, garden pathway work, painting work and terrace water proofing at the suit premises, which was not in the scope of job work of the plaintiff, therefore, no job work of plaintiff was redone by M/s S.S. Construction Company. It is submitted that the Photographs Ex. DW 2/ A-1 to A-5 are the Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 37 of 49 same which DW-2 stated to be clicked by him and identical to Ex.DW-1/10A to DW-1/10-I.
44. Ld. Counsel for the plaintiff further submitted that it is admitted by the defendant during cross-examination that apart from the plaintiff there are many agencies/contractors employees were already working in the premises of defendant. In fact it is further admitted by the defendant that Shri Rohtash was working prior to the date of start of the plaintiff job work at the site and was the site supervisor. It is further admitted that the plaintiff's father has suggested and to help/oblige the D-2 who is the Architect for further business/old association, coordinating with M/s Concept Concrete (P) Ltd, which otherwise D-2 being very well aware that M/s Concept Concrete (P) is separate company from plaintiff. It is submitted that no payment was given/received by the father of the plaintiff for the coordination with M/s Concept Concrete (P) Ltd, which is different legal entity. Ex.DW- 1/13 is raised by M/s S.S. Construction Co. does not seems to be an invoice and that from perusal of Ex.DW-1/13, it show Bill Summary and at the bottom reflecting that in case of cheque payment 13% will be added towards taxes, meaning thereby the same is not actually bill/ invoice. It is submitted that no taxes were charged by the M/s S.S. Contraction Co. and also job work for which the alleged bill was raised was whether the scope of job of the plaintiff.
45. Ld. Counsel for the plaintiff argued that bill dated 12.04.2018 for M/s Sarvodaya Enterprises i.e Ex.DW-1/15A to Ex.DW-1/15C are not proved on record. It submitted that the defendant filed evidence by way of affidavit of DW-3, who is the Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 38 of 49 owner of M/s Sarvodaya Enterprises, which state that total work of Rs.20,66,455/- was done. It is submitted that no witness/Authorised representative from M/s Sarvodaya Enterprises was examined on behalf of M/s Sarvodaya Enterprises and measurement sheet dated 12.04.2018 shows some work was done by M/s Sarvodaya Enterprises too on 12.04.2018, whereas the plaintiff had completed the job in the month of March 2016. How the plaintiff is liable for the job/defect, if any, after after lapse of more than two years is not explained. It is submitted that in both the bills i.e. Ex.DW-1/13 and Ex.DW-1/15A to DW 1/15C, the respective measurement sheets are not duly verified/attested by respective contractor and even not by the defendants and are fabricated . Alleged payments /cheque do not reflect against which bill the alleged payment was made by the defendants and for which job work. Ld. Counsel for the plaintiff submitted that defendants have not supplied information/documents as directed by this Court vide order dated 24.03.2022 in response to the application of the plaintiff under Section XI Rule 12 CPC, which clearly shows that these bills are fabricated in a manner to deprive the plaintiff for his legal dues and try to shows that defective job work was done by other contractors.
46. Ld. Counsel for plaintiff submitted that plaintiff is not the only contractors whose account was not clear by the defendants that is why the above information was deliberately hide from the Court. It is further submitted that plaintiff shall not be responsible for any mis-handling and negligence of the defendants, when the plaintiff took away their machinery with the permission of the defendant and when plaintiff left the Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 39 of 49 premises there are construction/civil work was going on even and if defendants have found any defect, it should have be first informed the plaintiff and directed him to rectify the defect and if the plaintiff refused to do so then only the defendants can take work from other during the reasonable period not that after more than 2 years of completion of job.
47. Ld. Counsel for the plaintiff submitted that defendants have failed to establish that any defective material was used. Defendant No. 2 herself was qualified Architect and used to visit site and her representative was also there in the site, who never raised such question of alleged defective material was used. Quotations were raised after the plaintiff took his machineries with permission of the D-2 and too despite repeated request and reminder to inspect the site. Alleged objection of losses raised by the defendants for the first time on 10.05.2018 i.e. after more than two years of completion of job by the plaintiff is an after thought.
48. Defendant examined DW-2, site incharge with S. S. construction Company, who purported to have carried out various job works at the suit premises. He deposed that S. S. Construction had done repair work, staff quarter work, garden path way work , painting work and terrace water proofing. DW-2 during cross-examination admitted that S.S Construction Company had not done any job of concrete densification of the suit premises. He also admitted that they had not done any job of marble polishing in the suit premises. DW-2 testified that he did not know M/s H. S. Floor or Sh Shivanik Arjun Santwani . He did not know what was the contractual agreement between them.
Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 40 of 49
49. Admittedly, defendant has not refuted any of the bills or raised any objection regarding the quality of the work after the job was completed and furthermore, plaintiff was allowed to take away his tool/machineries on 02.04.2016. No communication regarding the inferior quality of work done seems to have been raised/received from the defendant for almost more than two years since April 2016. Defendants even after 2½ years of competing the job did not inform the plaintiff about the alleged bad quality of job despite repeated request and reminder for a joint inspection of site and balance payment and defendants never inspected the site in the presence of the plaintiff and never informed that the defendants were re-doing/rectification is doing from some other contractors. Plaintiff's job was of polishing of white marble and concrete densification, completed earlier in March 2016. In these circumstances, after handing over the site, various kind of civil work are undertaken by D-2 by the other civil contractors, then plaintiff shall not be made responsible for acts of the other contractors or defendants after 2½ years of completing the job.
50. There is nothing on record to show the exact defects and deficiency in the work performed by the plaintiff or the nature thereof. Admittedly, no notice had been served by D-2 to the plaintiff regarding the defects in the services at any point of time. The claim regarding the alleged losses suffered by the defendant was put during cross-examination of PW-1/plaintiff at any point of time. There is no specific suggestion about the loss caused or the manner in which the loss was caused or the amount or the alleged quantum the loss suffered by D-2 for the acts and omission of the plaintiff.
Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 41 of 49
51. On appreciation of aforenoted evidence on record, this Court finds that defendant has failed to establish that services provided by the plaintiff were defective or deficient. Defendant has further failed to discharge her onus as to how or in what manner plaintiff had not performed his part of contract as per the agreement or the work was not completed satisfactorily. D-2 has further failed to establish that she suffered losses due to the defective and deficient work done by the plaintiff and therefore, could not be liable to pay any amount. These issues no. 4,5 6 are accordingly decided against D-2 and in favour of plaintiff.
Issue no. 3
52. Whether plaintiff is entitled to recovery of principal amount of Rs.3,04,485/- from the defendant, towards job work? Onus to prove this issue was on the plaintiff. Plaintiff was assigned the job work of concrete Densification and Marble Floor Polishing services. Admittedly, defendant no. 2 via email, dated 16.11.2015 had informed the plaintiff that a cheque has been drawn in favor of the plaintiff amounting to Rs.75,000/-, the said cheque was in lieu of an advance payment and bifurcation of the said amount was as (a) Rs.25,000/- against the work of polishing and (b) Rs.50,000/- against the concrete densification work, totaling to Rs.75,000/-.
53. According to the plaintiff as per the final bills, Ex.PW-1/9 and Ex.PW-1/10, plaintiff raised total bill for Rs.1,48,652/- and Rs.2,31,173/- out of which Rs.75,000/- was received by the plaintiff as advance, therefore Rs.3,04,825/- was being due as principal amount. There is nothing on record to show that any payment after being paid advance was released to Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 42 of 49 the plaintiff. Plaintiff's version is that despite repeated request and reminder and email dated 21st December 2015 and 15th March 2016, no amount has been paid by defendanta. It is submitted that measurement sheet which is attached with the bills was verified by Sh. Rohtash the site supervisor of the D-2. It is argued that plaintiff vide email dated 15th March 2016 has specifically requested the D-2 for inspection of job done so that the plaintiff could proceed with the measurement and billing with Sh.Rohtash. It is submitted that D-2 in reply to mail or in trail mail never objected that Sh. Rohtaash was not the authorized person for checking/verification of measurement sheets.
54. It is submitted that vide email dated 02.04.2016, D-2 on request of the plaintiff to allow and removal of their machinery out of the site in reply wrote that Sh. Rohtash and the guard will check and then the plaintiff would be allowed to take out his machinery. It is submitted that D-2 vide email dated 12.10.2015 had instructed Sh. Rohtash about the sample given by the plaintiff. From the correspondence, one can understand the Sh.Rohtash was not the representative of the defendants and was the site incharge, who used to look after all affairs of defendants as per their instructions. Ld. Counsel for plaintiff submitted that now the defendants cannot deny that Sh.Rohtash was not an authorized person. It is further submitted that during cross- examination, D-2 stated that he was the site supervisor of the other contractor, whereas from the correspondence, it is not establish as such.
55. On behalf of defendants, it is submitted that Sh. Mohan Santwani/plaintiff had promised the highest quality of Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 43 of 49 work to the defendants, however, the work was neither complete nor up to the quality promised by Sh. Mohan Santwani/plainitff. Ld. Counsel for defendant submitted that quality of work of concrete densification was agreed between the parties on the basis of a sample block prepared by Sh.Mohan Santwani, who promised that the final delivered product will be the same as the sample block and D-2 agreed to get the work concrete densification done only on the promise that the work would be the same as of the sample. It is submitted that no questions were put to D-2 with regard to the aforementioned facts during her cross-examination.
56. Ld. counsel for defendant submitted that the plaintiff has failed to prove completion of work awarded to it and also failed to prove that the work was executed by the plaintiff to the satisfaction of the defendants. It is argued that the plaintiff has only produced measurement sheets which are merely documents showing measurement taken by the plaintiff, which are neither prepared after obtaining the satisfaction of the defendants as to the work purportedly executed nor are the said measurement sheets were signed by the defendants or their representative. Ld. Counsel for the defendant submitted that the measurement sheets have been signed by one Sh.Rohtash, who in fact, was site supervisor of another contractor working at the site and was in no way authorized by the defendants to sign any measurement sheets/work completion certificate. Ld. Counsel for the defendant argued that the plaintiff has contradicted himself with regard to the preparation of sheets in his cross-examination and as such the testimony of the plaintiff inspires no confidence with regard to preparation of the measurement sheets. It is argued that at one Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 44 of 49 point, it is submitted that handover sheets/ measurement sheets were prepared after inspection of the work by the defendants and then plaintiff admitted the suggestion that the measurement sheets were prepared by him before inspection of the work by the defendants.
57. Ld. Counsel for the defendants argued that there are several e-mails, placed on record by the plaintiff, which are dated after the preparation of the measurement sheets wherein the plaintiff is requesting D-2 to inspect the work and therefore, admittedly, the measurement sheets were prepared before inspection of the work by the defendants and consequently, the same cannot be treated as completion certificate. It is argued that in fact, the work was never completed and the part work done by the plaintiff was not up to the promised standard and quality. It is argued that as the plaintiff has failed to prove completion of work to the satisfaction of the defendants and therefore, the present issue ought to be decided against the plaintiff.
58. Perusal of testimony of PW-1 shows that plaintiff had completed the part of work on 05.03.2016 and then remaining work on 21.03.2016 for which the final bills were raised on 23.03.2016. The measurement sheets were received and verified by Sh. Rohtash - representative of the defendants. The measurement sheets were prepared by the plaintiff before inspection of the work by the defendants and discussion with his father that work had to be redone. PW-1 deposed that defect pointed by the defendants in January 2016 were rectified in March 2016. PW-1 admitted that on 16.03.2016, his father had written an email to D-2 stating that some work was pending. PW-
Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 45 of 49 1 deposed and explained that on 21.03.2016 measurement sheets were prepared after completing the work. He had written an email to D-2 after getting the measurement sheets signed by Sh. Rohtash alongwith final bill/invoices. No further suggestion was put to PW-1 that measurement sheets were not prepared on 21.03.2016 after completing the work or the final bill was not received on 23.03.2016.
59. There is no communication or any mail sent by D-2 to the plaintiff or his father pointing out any discrepancy in the final bill of Rs. 1,48,652/- dated 23.03.2016 Ex. PW1/9 and bill of Rs. 2,31,173/- Ex. PW1/10. No notice had been served by the defendant to plaintiff pointing out the exact defect in the workman ship/services provided by the plaintiff as regards floor polishing and concrete densification. The amount which is recoverable by the plaintiff for the work done and the services provided by him cannot be linked with the work /services provided by Vijay Chavan and Dilip Shinde and engaging M/s S S construction company and Sarvodya Enterprises by D-2 has no impact on the liability of the D-2 viz a viz plaintiff, having regard also to their nature of work/service.
60. The discussion of evidence noted above in para 15 to 22 of this judgment is not being reproduced for the sake of brevity. It may be further noted that admittedly, plaintiff served a legal demand notice dated 18.02.2019 Ex. PW1/13 vide postal receipt and tracking report Ex. PW1/14 to Ex. PW1/16 A & B whereby demanded a Rs. 3,04,485/-. There is nothing on record to show that D-1 & 2 had replied to the said legal notice Ex. PW1/13. Admittedly, no reply has been sent by the defendant to Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 46 of 49 the legal notice dated 18.02.2019. Silence to the legal notice is one of the additional factors which has to be kept in mind by the Court, while considering totality of the other facts and circumstances brought on record. The normal rules which governs civil proceedings is that a fact is established if it is proved by pre-ponderance of probabilities and a fact is said to be proved when after considering the matter before it, the Court either beliefs it to exists or considers its existences probable by applying the test of prudent man.
61. It is however, pertinent to note that neither in the pleading nor in the evidence of plaintiff there is anything on record indicate as to how D-1 is liable. There is no specific averment in the plaint as to how D-1 is liable. Admittedly, the quotations were addressed to D-2 who had agreed to take job work from the plaintiff. No exchange of communication has been proved between D-1 and the plaintiff at any point of time during the tenure of the work. Therefore, this Court finds that D-1 is not jointly and severally liable to pay any amount for the agreed services between D-2 and the plaintiff. To sum up, this Court finds that out of the total sum of Rs. 3,79,825/- payable by D-2 to the plaintiff as per the bills Ex. PW1/9 and Ex. PW1/10, plaintiff had already received an advance amount of 75,000/-. Thus balance amount of Rs. 3,04,825/- is payable by defendant no. 2 only to the plaintiff. In the result, this issue is decided in favour of plaintiff and against Defendant no. 2.
Issue No. 7 & Issue No. 862. Whether plaintiff is entitled to interest as claimed @ 18% per annum w.e.f. the date of final bill i.e. 23.03.2016 till the Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 47 of 49 date of filing of this suit, amounting to Rs.1,64,219/-? And Whether plaintiff is entitled to pendent-lite interest till realization? If so, at what rate? The onus to prove these issues is on the plaintiff. Ld. Counsel for the plaintiff submitted that the amount claimed by the Plaintiff for the job work, which is a commercial in nature and therefore the plaintiff is entitled to interest @ 18% per annum from the defendants on the principal amount till filling of the present suit. It is further submitted that the job work, which is a commercial in nature and therfore, the plaintiff is entitled to intrest @ 18% per annum from the date of filing of the suit till its realization and the plaintiff is also entitled for cost of suit and litigation charges/attorney fee of Rs. 55,000/-.
63. As per Section 34 CPC, wherein and in so far as a decree is for payment of money, the court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of suit to the date of decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit with further interest at such rate not exceeding 6% pa at Court deems reasonable on such principal sum from the date of decree to the date of payment or to such earlier date as the Court deems thinks. As per proviso to Section 34 CPC, where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent, per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalized banks in relation to commercial transactions.
Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 48 of 49
64. Indisputably there is no contractual agreement regarding the rate of interest for the delay in payment . There is nothing on record to show any specific demand by the plaintiff for the period two years. Legal notice dated 18.02.2019 was served upon the defendants. Plaintiff had demanded Rs. 3,04,485/- and seven days time was granted. This suit was filed on 12.03.2019. In the circumstances, Plaintiff is entitled to interest @ 9% per annum from the date of filing of this suit till realization of the amount.
Costs
65. The present suit was filed on 13.03.2019. Plaintiff shall be entitled to costs. In the circumstances noted above, pleader's fee and litigation expenses are assessed as Rs.15,000/- and Court fee deposited by the plaintiff is Rs. 7,000/-. This Court finds that plaintiff is entitled to total costs of Rs.22,000 (inclusive of Court fees).
Relief
66. In view of above noted findings on the issues, a decree is passed in favour of the plaintiff and against the defendants in the principal sum of Rs. 3,04,485/- alongwith interest @ 9% per annum from the date of filing of present suit till its realization and costs of Rs.22,000/-. Decree sheet be drawn up accordingly. File be consigned to record room.
(dictated and announced
in the open Court (VINAY KUMAR KHANNA)
th
on 15 March 2023) District Judge
(Commercial Court-02)
South Distt., Saket, New Delhi
Shivanik Arjun Santwani vs Rajshree Sing and ors. Page no. 49 of 49