Delhi District Court
Bajrang Pandit vs Raj Kumar Thakur on 9 May, 2025
IN THE COURT OF MS. MONA TARDI KERKETTA,
DISTRICT JUDGE-06,
SOUTH EAST DISTRICT, SAKET COURTS, DELHI
CS DJ No.514/18
CNR No.DLSE01-002800-2018
Sh. Bajrang Pandit
S/o Sh. Ram Badan Pandit,
R/o D-49B, Saurabh Vihar, Gali No.3,
Nala Road, Badarpur,
Delhi-110043 ..... Plaintiff
Versus
Sh. Raj Kumar Thakur
R/o B-56, Meetapur Extension,
Sindhu Farm Road,
Badarpur,
New Delhi-110044 .... Defendant
Date of Filing of the Suit : 04.04.2018
Date of Final Arguments : 28.04.2025
Date of the Judgment : 09.05.2025
Final Decision : Suit Dismissed.
Counsels for the parties:
For Plaintiff : Sh. Dinesh Kumar, Adv.
For Defendant : Sh. M.S. Sisodia, Adv.
SUIT FOR RECOVERY OF Rs.3,78,454/- ALONG WITH
INTEREST
JUDGMENT
1. The brief facts as stated in the plaint are that Digitally signed by MONA MONA TARDI TARDI KERKETTA KERKETTA Date:
2025.05.24 17:40:23 +0530 CS DJ No.514/2018 Page 1 of 14 DJ-06/SE/Saket/Delhi Plaintiff entered into an oral agreement with Defendant for construction services of a five-storey building located at Plot No. A-97, Gali No.1, Mohan Baba Nagar, Tajpur Pahari, Badarpur, New Delhi-110044, on a three-side open plot measuring 110 sq. yards. As per the agreement, Plaintiff's scope of work comprised construction of walls, laying of roof slabs, internal plastering, and semi-constructed flooring at a rate of Rs.182.5 per sq. foot, with additional compensation for exterior wall plastering if requested. Defendant represented to Plaintiff that all requisite building plans had received Municipal Authority sanction and undertook to provide building materials, water, and electricity without delay at Defendant 's expense.
2. It is stated that relying on said representations, Plaintiff commenced construction in August 2013, engaging sufficient labor and foregoing other contractual opportunities during this period. During construction of the first floor, Plaintiff encountered obstruction from police and Municipal Authorities due to Defendant 's failure to obtain sanctioned building plans as previously represented, alongside insufficient supply of building materials and water. Defendant assured Plaintiff of ongoing discussions with Municipal Authorities regarding plan sanction and promised compensation for idle labor costs and delays occasioned by said obstructions. Subsequent to completion of additional slabs, the construction was sealed by Municipal Authorities, further impeding work progress. Defendant falsely represented having obtained permission to continue construction Digitally signed MONA by MONA TARDI KERKETTA TARDI Date:
KERKETTA 2025.05.24 17:40:29 +0530 CS DJ No.514/2018 Page 2 of 14 DJ-06/SE/Saket/Delhi without disturbing the seal. In reliance on Defendant 's representations, Plaintiff completed all contracted work and additional tasks by August 2015.
3. It is further stated that throughout construction, Defendant made partial payments totaling Rs.4,61,000/- against the construction charges, which Plaintiff duly documented. Upon completion, Defendant refused to compensate Plaintiff for additional expenses incurred due to construction obstructions. Per contractual calculations, the total amount payable to Plaintiff was Rs.8,00,000/-, leaving an outstanding balance of Rs.3,39,000/- after accounting for payments received. Despite multiple requests for payment of the outstanding amount, Defendant has failed to remit payment. Finding no other option, Plaintiff had issued the legal notice dated 06.04.2017, however, despite service, Defendant has neither replied nor complied with the same. Hence, the present suit.
4. Plaintiff prayed to pass the following reliefs in his favour and against Defendant :
4.1) A decree for recovery of Rs.3,39,000/- along with interest @ 12% p.a. 4.2) Cost of suit;
4.3) Any other order which this Hon'ble Court may deem fit in the interest of justice.
5. Defendant contested the present suit on the Digitally signed MONA by MONA TARDI KERKETTA TARDI Date:
KERKETTA 2025.05.24 17:40:32 +0530 CS DJ No.514/2018 Page 3 of 14 DJ-06/SE/Saket/Delhi following grounds: -
5.1) The plaint has not been properly verified and the verification is defective.
5.2) The suit of Plaintiff is without any cause of action. 5.3) Plaintiff has concealed material facts and information from this Court and has not approached this Court with clean hands.
5.4) The present suit is false, frivolous, and vexatious and this is a fit case where this Court should exercise the jurisdiction vested in it by dismissing the suit of Plaintiff while imposing an exemplary cost upon Plaintiff. 5.5) The suit premises was handed over to Plaintiff for civil work including RCC, brick work and plaster work of the premises @ Rs.140/- per sq. ft. as agreed by Plaintiff. Plaintiff started the work from 25.08.2013 and handed over the premises to Defendant after completing the work on till 2014, December. 5.6) The constructed area of the suit premises was 1200 sq. feet per floor and it was decided by Plaintiff that he would construct the suit premises till 5th floor as (G/UG/F/S/T) @ Rs.140 per sq. feet. As Plaintiff was uneducated not able to wrote anything that Defendant himself wrote all the given payment amount in his diary. Defendant from time to time made all the payment @ Rs. 4,96,000/- and in fact made the excess payment of Rs. 41,400/- to Plaintiff.
5.7) Plaintiff only constructed till third floor as (G/UG/F) and in between the construction, Plaintiff had abandoned the work without completing the same. Defendant requested him to complete the work in all respect but he refused.
Digitally signed MONA by MONA TARDI
KERKETTA
TARDI Date:
KERKETTA 2025.05.24
17:40:36 +0530
CS DJ No.514/2018 Page 4 of 14 DJ-06/SE/Saket/Delhi
Thereafter, when Defendant demanded back the aforesaid excess payment of Rs.41,400/-, Plaintiff refused to return the same and started threatening Defendant to get demolished the property and implicate him in false case.
6. Plaintiff did not file any replication to the written statement of Defendant despite opportunity given.
7. Vide order dated 01.10.2019, Defendant was examined under Section 10 CPC wherein he stated that Plaintiff had carried the work upto 3rd floor and Plaintiff left about 40% of the work.
8. From the pleadings of the parties, the following issues were framed by the Ld. Predecessor vide order dated 15.02.2020:
1. Whether Plaintiff is entitled for recovery of Rs.3,78,454/- ? OPP.
2. Whether Plaintiff is entitled for interest and, if so, at what rate and for what period ? OPP
3. Whether there is no cause of action in favour of Plaintiff against Defendant ? OPD
4. Relief.
9. Subsequent thereto, the matter was fixed for Plaintiff's evidence. In order to prove his case, Plaintiff examined himself as PW-1 and relied upon the following documents:
Ex.PW-1/1: Original carbon copy of bill dated Digitally signed by MONA MONA TARDI TARDI KERKETTA Date: 2025.05.24 KERKETTA 17:40:42 +0530 CS DJ No.514/2018 Page 5 of 14 DJ-06/SE/Saket/Delhi 15.08.2015.
Ex.PW-1/3: Legal notice dated 06.04.2017.
Ex.PW-1/4: Postal receipts.
Ex.PW-1/5: Internet generated copy of tracking report of
speed post.
Ex.PW-1/6: Certificate u/s 65B of Indian
Evidence Act.
Mark A: Copy of ledger account (3 pages).
10. PW-1 was duly cross examined on behalf of Defendant . Vide separate statement of Plaintiff dated 04.05.2023, Plaintiff's evidence was closed.
11. Subsequent thereto, the matter was listed for Defendant 's evidence. However, despite repeated opportunities, Defendant has failed to lead evidence. Vide order dated 26.02.2024, Defendant 's evidence was closed.
12. Subsequent thereto, the matter was fixed for final arguments. Defendant preferred to file written arguments, however, Plaintiff neither filed written arguments nor addressed the oral arguments and therefore, the Court proceeded to dispose off the present suit on the basis of materials available on record. Thereafter the matter was fixed for pronouncement of judgment.
13. The following arguments were submitted on behalf of Defendant:
Digitally signed MONA by MONA TARDI
TARDI KERKETTA
KERKETTA Date: 2025.05.24
17:40:46 +0530
CS DJ No.514/2018 Page 6 of 14 DJ-06/SE/Saket/Delhi
13.1) Plaintiff caused delays in construction of the suit
premises, having promised completion by December, 2014 but abandoned the work midway to undertake other contracts during the same period.
13.2) All construction materials were provided by Defendant at his own cost without any delay or hindrance to the construction work.
13.3) There was no obstruction caused by Police or Municipal Authorities as the construction work on the suit premises had already received prior approval from Government Authorities.
13.4) Defendant suffered losses due to Plaintiff's incomplete work and was compelled to engage another contractor in November 2014 to complete the remaining construction, with whom there were no payment disputes.
13.5) Plaintiff failed to carry out construction work according to specifications and instructions, delivering poor and inferior quality work that did not meet Defendant's satisfaction.
13.6) No amount remains pending as Plaintiff had already received his full balance payment and, in fact, had taken excess payment of Rs.41,400/- from Defendant, which amount Plaintiff is liable to return.
14. Let us first discuss some of the relevant legal proposition essentials for adjudication of a Civil Suit, which are Digitally signed MONA by MONA TARDI KERKETTA TARDI Date:
KERKETTA 2025.05.24 17:40:51 +0530 CS DJ No.514/2018 Page 7 of 14 DJ-06/SE/Saket/Delhi mentioned as under: -
14.1) It is well settled proposition of law that Plaintiff must prove his entire case in accordance with law and stand on his own legs. (Ref: Harish Mansukhani Vs. Ashok Jain, 2009 (109) ,DRJ 126 (DB) ; Ganpat Lal Vs. Nand Lal Hanswani & Ors. AIR 1998 MP 209). In the judgment titled as Shri Sunil Dang Vs. Dr. R.L.Gupta, CS(OS) 1617(2007), decided on 13.01.2009, It was held that even in the cases where Defendant is ex-parte, responsibility of Plaintiff to prove his case does not get diluted. On the contrary, on the Defendant being ex-parte, the onus is more on Plaintiff to prove his case. When Defendant is contesting the suit, the matters which are not disputed by Defendant are deemed to be admitted and need not be proved.
However, when Defendant fails to appear, there can be no admission and Plaintiff is to prove the entire case in accordance with law.
14.2) There is an essential distinction between burden of proof and onus of proof; burden of proof lies upon the person who must prove a fact and it never shifts but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. (Ref: AIR 1964 SC Page 136; Section 101 & 102 of Indian Evidence Act).
14.3) It is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and in case such material evidence is withheld, the court may draw adverse inferences under section 114(g) of the Evidence Act.
14.4) Plaintiff is required to produce best of evidence in Digitally signed by MONA MONA TARDI TARDI KERKETTA KERKETTA Date: 2025.05.24 17:40:55 +0530 CS DJ No.514/2018 Page 8 of 14 DJ-06/SE/Saket/Delhi
his possession and he is not entitled to get the decree on the basis of failure of Defendant to prove his right or title. Plaintiff cannot bank upon the weaknesses of Defendant in order to prove his case on his own by producing the cogent materials. [Ref: Punjab Urban Planning and Development Authority Vs. M/s Shiv Saraswati Iron and Steel Re-rolling Mills , Civil Appeal No. 1734 of 1998 ].
14.5) Failure of a party to prove its defence does not amount to admission nor it can reverse or discharge the burden of proof of the Plaintiff (Ref: LIC of India & Ar. Vs. Ram Pal Singh Bisen,(2010) 4 SCC 491).
15. The findings of the court on the issues framed are as under:
Issue No.1 : Whether Plaintiff is entitled for recovery of Rs.3,78,454/- ? OPP.
& Issue No.2 : Whether Plaintiff is entitled for interest and, if so, at what rate and for what period ? OPP
16. Both the aforesaid issues are taken up together as they can be decided through common discussion. The onus to prove these issue was fixed upon Plaintiff. Defendant argued that the construction work was carried out under a mutual agreement at Rs. 140 per sq. ft for a total floor area of 1200 sq. ft across five floors, but Plaintiff only completed construction up to the first floor (3600 sq. ft total). Defendant paid Rs. 4,96,000Digitally againstsigned the MONA by MONA TARDI KERKETTA TARDI Date:
KERKETTA 2025.05.24 17:41:01 +0530 CS DJ No.514/2018 Page 9 of 14 DJ-06/SE/Saket/Delhi completed work and no further payment is due. Defendant further contended that due to Plaintiff's incomplete work, he suffered immense losses and was compelled to engage another contractor to complete the remaining construction, while the work performed by Plaintiff was of poor and substandard quality, not meeting specifications or Defendant's satisfaction. Additionally, Defendant alleged that Plaintiff took an advance payment of Rs. 41,400 which has not been returned till date.
17. Let us now examine whether Plaintiff has been able to discharge the onus to prove these issues on the basis of the evidence adduced.
18. This Court finds that Plaintiff's evidence was severely inadequate and legally insufficient to prove his case as pleaded in the plaint. Despite being afforded multiple opportunities to produce supporting documents in the beginning and even at the time of tendering evidence, Plaintiff produced and exhibited only three documents : an original carbon copy of a bill dated 15.08.2015 (Ex.PW-1/1), a legal notice (Ex.PW-1/3), and a ledger account (Mark A). The carbon copy bill Ex.PW-1/1 is a handwritten and rough estimate lacking essential commercial requirements and details such as GST number, TIN number, company name, serial number, and stamp, with no acknowledgment or confirmation from Defendant regarding the amount mentioned therein. Critically, Plaintiff failed to produce the original bill or ledger register despite opportunities to do so, on the pretext of unavailability. The genuineness of documents Digitally signed by MONA MONA TARDI TARDI KERKETTA Date: 2025.05.24 KERKETTA 17:41:05 +0530 CS DJ No.514/2018 Page 10 of 14 DJ-06/SE/Saket/Delhi Ex.PW-1/1 and Mark A remained unproved as per the requirement under the Evidence Act, and Plaintiff failed to invoke the provision of Order XI CPC for discovery and production of original documents from Defendant.
19. Furthermore, Plaintiff presented no additional supporting document such as bills, cash memos, or invoices to substantiate the claimed Rs.8 lakh expenditure, examined no witnesses other than himself, and notably failed to examine laborers or material suppliers who could have corroborated the actual construction work performed and expenses incurred, thereby rendering the entire case unsubstantiated and legally deficient. It is well settled that it is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and in case such material evidence is withheld, the court may draw adverse inferences under section 114(g) of the Evidence Act. If this legal requirement is applied in the present case, Plaintiff having been failed to comply with this requirement, an adverse inference is liable to be drawn against plaintiff.
20. Pertinently, during cross-examination, Plaintiff/PW-1 made several critical admissions that substantially undermined Plaintiff's case and corroborated Defendant's version. PW-1 admitted that construction work commenced in 2013 and concluded in August 2015, with intermittent halts due to interventions by DJB, MCD, and Police Officials, thereby substantiating Defendant's contention that such delays Digitally signed by MONA MONA TARDI TARDI KERKETTA KERKETTA Date:
2025.05.24 17:41:11 +0530 CS DJ No.514/2018 Page 11 of 14 DJ-06/SE/Saket/Delhi necessitated engagement of an alternative contractor to complete the remaining work. Significantly, PW-1 acknowledged receipt of Rs.4,61,000/- from Defendant as total payment. While claiming completion of construction work in 2015, PW-1 paradoxically stated that he could not recall the exact duration for completion of the entire work and attributed construction delays to interference by various governmental agencies. Most notably, PW-1 admitted that Defendant consistently made payments within 2-3 days of demand, which admission strongly indicates that Defendant had discharged his payment obligations in full for all construction work performed by Plaintiff, thereby negating any claim of outstanding dues and reinforcing Defendant's position that no further amounts were payable. In view of the same, the court has come to the conclusion that Plaintiff failed to discharge the onus to prove his case against Defendant. The issues in hand are accordingly decided against Plaintiff and in favour of Defendant.
Issue No.3: Whether there is no cause of action in favour of Plaintiff against Defendant ? OPD
21. The onus to prove this issue was fixed upon Defendant. Defendant contended that Plaintiff's suit was not maintainable, having been filed without any valid cause of action, and argued that no cause of action existed in favor of Plaintiff against Defendant, rendering the suit liable to rejection under Order VII Rule 11 CPC. Conversely, Plaintiff refuted this contention, asserting the existence of a valid and continuing Digitally signed MONA by MONA TARDI KERKETTA TARDI Date:
KERKETTA 2025.05.24 17:41:15 +0530 CS DJ No.514/2018 Page 12 of 14 DJ-06/SE/Saket/Delhi cause of action. Plaintiff argued that the cause of action arose successively: initially when Defendant approached and engaged Plaintiff for construction work; subsequently when an oral agreement was reached regarding the scope of work and payment rates; further when construction commenced in August 2013; on each occasion when part payments were demanded and made; upon completion of the entire entrusted work by August 2015; on each date when Plaintiff approached Defendant for balance payment and Defendant refused; specifically on 06.04.2017 when a legal notice of demand was dispatched to Defendant and on 08.04.2017 when the notice was received by Defendant; and that the cause of action continues to subsist due to Defendant's persistent failure to discharge the alleged lawful dues of Plaintiff.
22. Upon examination of whether any cause of action arose to institute the present suit against Defendant based on the evidence adduced on record, it is observed that while no evidence was led by Defendant to discharge the burden of proving this issue, the determination of this issue has become redundant in light of the findings rendered on Issues No. 1 and 2, and accordingly, this issue is decided in consonance with the aforementioned findings.
RELIEF:
In view of the findings on the issues framed, the suit of Plaintiff stands dismissed leaving the parties to bear their own costs. MONA Digitally signed by MONA TARDI KERKETTA TARDI Date:
KERKETTA 2025.05.24 17:41:20 +0530 CS DJ No.514/2018 Page 13 of 14 DJ-06/SE/Saket/Delhi
23. Decree sheet be prepared accordingly.
24. File be consigned to Record Room, after due compliance. Digitally signed MONA by MONA TARDI KERKETTA TARDI Date:
KERKETTA 2025.05.24 17:41:25 +0530 Announced in the open court MONA TARDI KERKETTA on this 9th Day of District Judge(SE)-06 May, 2025 Saket Courts, New Delhi.
CS DJ No.514/2018 Page 14 of 14 DJ-06/SE/Saket/Delhi