Delhi District Court
Thapar Builders Pvt. Ltd vs M/S Pragati Builders on 13 November, 2024
IN THE COURT OF SH.RAJ KUMAR TRIPATHI:
DISTRICT JUDGE (COMMERCIAL COURT)-08
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
CS DJ No.173/2021
(Thapar Builder Pvt. Ltd. vs. M/s Pragati Builder)
CNR No. DLSE01-001303-2021
Thapar Builder Pvt. Ltd.
Through Mr. Arjun Thapar,
A-3, Pumpos Enclave,
New Delhi-110 048.
........Plaintiff
Through:- Ms. Tarini Rawat, advocate
Versus
M/s Pragati Builder
Through its Proprietorship
Mr. Jasbeer Singh
Having its Registered Office at:-
15, Shakti Khand-III, Indirapuram,
Ghaziabad, U.P.
Also at:-
H.No.95, Shakti Khand-III,
Indirapuram, Ghaziabad, U.P.
....... Defendant
Date of filing : 10.02.2021
Final arguments heard on : 18.10.2024
Date of Judgment : 13.11.2024
JUDGMENT:
1.1 Plaintiff has filed the present suit against defendant for seeking recovery of an amount of Rs.30,50,815/- (Rupees thirty lacs fifty thousand eight hundred and fifteen only) along with interest @ 12% per annum w.e.f. July, 2019 till actual Digitally realization of amount. Raj signed by Raj Kumar Tripathi Kumar Date:
2024.11.14 Tripathi 10:43:38 +0530 CS DJ No.173/2021 (Thapar Builder Pvt. Ltd. vs. M/s Pragati Builder) Page 1 of 12 Brief facts of the case
2.1 Plaintiff is a Private Ltd. company incorporated under The Indian Companies Act. Mr. Arjun Thapar, who is one of the Directors of the company, has been duly authorized to sign, verify, depose and file the present suit against defendant on behalf of plaintiff company vide Board Resolution dated 04.02.2021. 2.2 Defendant is a proprietorship concern and is indulged in building construction work. Mr. Jasbeer Singh is sole proprietor of defendant.
2.3 Plaintiff had started a residential building project in the name and style of 'The Artha Project' at Plot No.15, Sector-4, Vaishali, Ghaziabad, U.P. The said project contains 26 floors with total about 126 flats/apartments.
2.4 Plaintiff avers that when the work was in progress, defendant approached for work and requested to assign some work to him. As plaintiff was also in need of some more manpower and assisting hands to expedite the work on the project site, it considered appropriate to assign some work to defendant such as external plumbing/drain and other small works. For the said purpose, plaintiff asked the defendant to submit quotation/offers. Upon that defendant submitted his offers/quotation dated 18.04.2018. On the basis of same, plaintiff issued BOQ, containing particulars of work, rate and desired money which was to be paid to defendant. The total BOQ and quotation was Rs.19,30,277/-. Some other additional work was Raj also assigned to defendant, such as road laying work (only 60 Kumar Tripathi meter) and rain water harvesting work worth Rs.16,41,071/-. The Digitally signed work order/BOQ also included material work order containing by Raj Kumar Tripathi Date: 2024.11.14 10:43:50 +0530 CS DJ No.173/2021 (Thapar Builder Pvt. Ltd. vs. M/s Pragati Builder) Page 2 of 12 material as well as the labour in the contract amount. 2.5 While defendant was doing the work as per plaintiff's desire, some more work curved out from the ongoing project. Plaintiff requested the defendant to do the said work also and raise his bill such as road laying work, rain water harvesting work and basement tree-mix assigned to him without BOQ worth Rs.16,41,071/-.
2.6 Defendant completed his work and raised the total bill of approximately Rs.35,71,348/- (including GST). However, plaintiff submits that defendant had taken money on account of paying to labour and other miscellaneous work which were being done at other site of defendant. In that process, defendant had taken a total sum of Rs.77,22,163/- from the plaintiff against those bills.
2.7 In addition to the work assigned to defendant along with BOQ, he was further asked to do some additional work such as basement tree-mix etc. worth Rs.35,00,000/-. Out of which, defendant received an amount of Rs.24,00,000/- in cash. Defendant has admitted the same in his complaint dated 08.05.2019 given to District Magistrate, Ghaziabad, U.P. However, he has not mentioned the amount paid via other sources. As per plaintiff, defendant has received a total sum of Rs.1,01,22,163/-.
2.8 Defendant had worked and raised bill of Rs.35,71,348/-. He has also done additional work of Rs.35,00,000/- for which he has not raised any bill till date. Raj However, to show its bona fide, plaintiff is ready to adjust Kumar Tripathi Rs.35,00,000/- in the total payment of Rs.1,0,1,22,163/-. Hence, Digitally signed by Raj Kumar Tripathi Date: 2024.11.14 10:43:59 +0530 CS DJ No.173/2021 (Thapar Builder Pvt. Ltd. vs. M/s Pragati Builder) Page 3 of 12 after adjusting the said amount, defendant is liable to refund Rs.30,50,815/- to plaintiff.
2.9 Plaintiff alleged that after passing of about two months from the date of completion of work, it was noticed that extended outer plumbing and rain water harvesting were not done properly in accordance with drawing sanctioned by architect and the work executed was under par of approved work by engineers. To make it upto the approved work as per architect, plaintiff had to spend about an additional amount of Rs.20,00,000/-. 2.10 On the aforesaid averments and allegations, plaintiff has instituted the present suit against defendant for seeking recovery of the outstanding dues as claimed in the suit. Service of defendant 3.1 Pursuant to summons issued to defendant, defendant was served through affixation on 07.03.2024. Defendant was also served through publication in the newspapers 'The Statesman' (English) and 'Veer Arjun' (Hindi), both dated 06.02.2024. 3.2 Defendant, despite service of summons, chose not to appear and contest the suit filed by plaintiff against him. Defendant did not file written statement to the suit within stipulated time. Accordingly, opportunity given to defendant to file written statement was directed to be closed. As none appeared on behalf of defendant to contest the suit, defendant was directed to be proceeded ex parte on 19.04.2024. Evidence of plaintiff 4.1 In support of its case, plaintiff has examined its Director Mr. Arjun Thapar, who filed his evidence by way of Raj Kumar Tripathi affidavit, Ex.PW1/A, wherein he has reiterated and reaffirmed the Digitally signed by Raj Kumar Tripathi Date: 2024.11.14 CS DJ No.173/2021 10:44:08 +0530 (Thapar Builder Pvt. Ltd. vs. M/s Pragati Builder) Page 4 of 12 same facts as mentioned in the plaint.
4.2 Before coming to the testimony of PW1, the documents relied upon by him are hereby put in a tabulated form as under:-
S.No. Details of Document Exhibit Mark
1. Original Board Resolution dated 04.02.2021 Ex.PW1/1
2. Copy of offer letter dated 21.06.2018 and copy Ex.PW1/2
of bill of quantities (BOQ) dated 18.04.2018 and
along with terms and conditions Ex.PW1/3
(colly.)
3. Copy of complaint dated 08.05.2019 Mark-A
4. The payment details made to defendant and Ex.PW1/4 vouchers (colly.) and Mark-X1 to Mark-X7
5. Ledger Account of defendant Ex.PW1/6
6. Certificate under Section 65B of The Indian Ex.PW1/7 Evidence Act regarding Ledger Account Findings and analysis 5.1 I have heard and considered the submissions advanced by learned counsel for plaintiff and perused the material on record.
5.2 In a civil proceedings, it is the plaintiff, who has to stand on his/her own legs. He/she cannot derive any benefit from the latches of the opposite party. In a given case, even if the opposite party does not appear, the plaintiff has to prove and establish his/her own case, which he or she has pleaded, by adducing evidence. It is not the law that the statement made by the plaintiff/claimant will be accepted as gospel truth in the absence of the opposite party. The duty to establish the truth remains with the plaintiff/claimant even if, the opposite party Raj Kumar does not appear or even after appearance, written statement is not Tripathi Digitally signed by filed. The Court also has a duty to scrutinize the evidence and Raj Kumar Tripathi Date: 2024.11.14 CS DJ No.173/2021 10:44:17 +0530 (Thapar Builder Pvt. Ltd. vs. M/s Pragati Builder) Page 5 of 12 apply the correct law before decreeing the lis ex parte. Rather, the Court's duty increases by few folds when the plaintiff prays to pass a decree ex parte.
5.3 In Ramesh Chand Ardawatiya v. Anil Pajwani AIR 2003 2508, while considering the provisions of Order IX Rule 6 and Order VIII Rule 10 of CPC, it was observed that even if the suit proceeds ex parte under Order IX Rule 6 of the CPC, the necessity of proof by the plaintiff of its case cannot be dispensed with.
5.4 In the matter of Maya Devi v. Lalta Prasad, (2015) 5SCC 588, it was held that the absence of defendant to contest the suit does not invite a punishment in the form of an automatic decree.
5.5 In Meenakashisundram Textiles v. Valliammal Textiles 2011 (3) CTC 168, Hon'ble Madras High Court held that even an ex parte judgment should contain reasons. It was held, ".....The Civil Procedure Code does not say that the court is bound to grant a decree in case the defendant is absent." 5.6 PW1 Mr. Arjun Thapar, in his affidavit of evidence, Ex.PW1/A, has deposed and corroborated about the facts as mentioned in the plaint. He has proved the documents as mentioned in para no.4.2 of the judgment.
5.7 In para no.5 of his affidavit, Ex.PW1/A, PW1 deposed that the defendant completed his work and raised his total bill of approximately Rs.35,71,348/- (including GST). He Raj averred that defendant has taken money on account for paying to Kumar Tripathi the labour and other miscellaneous work which were being done Digitally signed at other site of the defendant and in the said process, he took a by Raj Kumar Tripathi Date: 2024.11.14 10:44:26 +0530 CS DJ No.173/2021 (Thapar Builder Pvt. Ltd. vs. M/s Pragati Builder) Page 6 of 12 total sum of Rs.77,22,163/- from plaintiff against the bills. The schedule of the bills raised by defendant and payment details made by plaintiff along with vouchers have been proved as Ex.PW1/4 (colly.).
5.8 Plaintiff has not specified as to on which date, and by which mode defendant took money for making payment to the labour. The details of the site, where the work was being done by defendant have also not been given. The banking statement showing the payment of Rs.77,22,163/- allegedly paid by plaintiff to defendant has also not been filed and proved on record. Thus, the assertions made in para no.5 of the affidavit could not be proved.
5.9 PW1 further deposed that in addition to the period assigned to defendant along with BOQ, he was further asked to do some additional work such as basement tree-mix and other works, total worth of Rs.35,00,000/- (approximately). Out of said amount, defendant has also received an amount of Rs.24,00,000/- in cash. Defendant has admitted the same in his complaint dated 08.05.2019 given to District Magistrate, Ghaziabad, U.P. However, he has not mentioned the amount paid via other sources. Accordingly, defendant has received total amount of Rs.1,01,22,163/-.
5.10 As per PW1, defendant has worked and billed total of Rs.35,71,348/- and the additional work done by him was of Rs.35,00,000/- approximately for which till date, no bill has been raised. However, in the interest of justice and to show the Raj bonafide, plaintiff is ready to adjust Rs.35,00,000/-also out of Kumar Tripathi total payment made of Rs.1,01,22,163/- on account. Thus, after Digitally signed by Raj Kumar Tripathi Date: 2024.11.14 CS DJ No.173/2021 10:44:38 +0530 (Thapar Builder Pvt. Ltd. vs. M/s Pragati Builder) Page 7 of 12 settlement of the amount, defendant is liable to refund a sum of Rs.30,50,815/-.
5.11 From the aforesaid deposition of PW1, it is to be noted that out of total work for an amount of Rs.35,00,000/- (approx), plaintiff has paid an amount of Rs.24,00,000/- to defendant in cash. The plaint, the affidavit of evidence of PW1 as well as the documents filed and proved on record by plaintiff, are totally silent about the specific date(s) on which the said amount in cash was paid to defendant. Plaintiff has not placed or proved on record its banking statement or any of its Directors to show the withdrawal of such huge amount around the dates when the payment in cash was allegedly made to defendant. No witness has been examined by plaintiff in whose presence the amount was paid to defendant. Plaintiff has not filed the income tax return showing the payment of Rs.24,00,000/- in cash to defendant. Thus, in the absence of any corroborative documentary evidence, the version of plaintiff cannot be believed that defendant was paid an amount of Rs.24,00,000/- in cash in respect of the work done by him. Plaintiff has further failed to prove the complaint dated 08.05.2019 allegedly made by defendant to District Magistrate, Ghaziabad, U.P. on record in which defendant is reported to have admitted for having received an amount of Rs.24,00,000/- in cash. Thus, the averments of the said complaint and alleged admission of receipt of payment remained unproved.
5.12 PW1 further deposed that after passing of about two Raj months from the date of completion of work, it was noticed that Kumar the extended out plumbing and rain water harvesting were not Tripathi done properly by defendant in accordance with the drawing Digitally signed by Raj Kumar Tripathi Date: 2024.11.14 10:44:46 +0530 CS DJ No.173/2021 (Thapar Builder Pvt. Ltd. vs. M/s Pragati Builder) Page 8 of 12 sanctioned by the architect and the work executed was under par of approved work by the engineers. To make it upto the approved work as per architect, plaintiff had to expend about an additional amount of Rs.20,00,000/-.
5.13 The aforesaid assertions made by PW1 in his affidavit of evidence could not be proved by any corroborative piece of evidence i.e. either oral or documentary. Plaintiff has placed nothing on record to show that an amount of Rs.20,00,000/- as claimed in para no.8 of the affidavit of evidence of PW1 was actually spent by it for the work as per architect. Neither the architect, who sanctioned the drawing plan nor the engineers, who pointed out that the execution of work by defendant was not upto the approved level were examined to prove the averments as mentioned in para no.8 of the evidence affidavit of PW1. Except the bald testimony of PW1, there is nothing on record to prove that due to deficiency of work done by defendant, an amount of Rs.20,00,000/- was actually spent by plaintiff.
5.14 The present case is a classic example, where a huge cash transaction for an amount of Rs.24,00,000/- is reported to have been made by plaintiff to defendant. The said amount is unaccountable as no documentary evidence in respect of said transaction has been brought and proved on record by plaintiff. There is mammoth problem, which is vis-a-vis parallel economy Raj of black money. In numerous cases, like the one in hand, this Kumar court has found that people thronging the courts with concocted Tripathi stories of exchange of lakhs and lakhs of rupees in cash.
Digitally signed by Raj Kumar Tripathi5.15 As per section 10 and 23 of The Indian Contract Act, Date: 2024.11.14 10:44:56 +0530 CS DJ No.173/2021 (Thapar Builder Pvt. Ltd. vs. M/s Pragati Builder) Page 9 of 12 1872, any Agreement between two parties which is in violation of any law of land, is not enforceable in law and cannot qualify to be a legally enforceable contract.
5.16 Section 40A (3) of The Income Tax Act, 1961 r/w Rule 6 DD of Income Tax Rules, 1962 prohibits giving of cash more than Rs.20,000/-.
5.17 Hon'ble Supreme Court has come down heavily on black money issue and directions have been issued in a PIL on the subject. Despite the same, people, who are not even income tax payee or even assessee come with suits claiming cash transaction worth lakhs of rupees and unknowingly, the courts end up ratifying their claims of apparent black money. In Atar Singh Gurmukh Singh v. ITO, Ludhiana, AIR 1991 SC 2109, while expressing its opinion on the menace of black money and its ill effect, Hon'ble Supreme Court observed as under:-
"It will be clear from the provisions of Section 40A (3) and Rule 6DD that they are intended to regulate the business transaction and to prevent the use of unaccounted money or reduce the chances to use black money for business transactions. If the payment is made by a crossed cheque drawn on a bank or a crossed bank draft then it will be easier to ascertain, when deduction is claimed, whether the payment was genuine and whether it was out of the income from disclosed sources. In interpreting a taxing statute the Court cannot be oblivious of the proliferation of black money which is under circulation in our country. Any restraint intended to curb the chances and opportunities to use or create black money should not be regarded as curtailing the freedom of trade or business."
5.18 It is well settled that a contract to defraud the revenues or that tends to promote corruption in public life or Raj Kumar Tripathi which tends to prejudice social and economic interest of the community would be void and unenforceable as being opposed to Digitally signed by Raj Kumar Tripathi Date: 2024.11.14 10:45:05 +0530 CS DJ No.173/2021 (Thapar Builder Pvt. Ltd. vs. M/s Pragati Builder) Page 10 of 12 public policy. The general principle has been exemplified and extended to contracts which may be ex facie lawful but which were intended to be exploited for an illegal purpose (Reliance is placed upon judgment titled as Nagle v. Feilden (1966) 2 QB 633 and Alexander v. Rayson (1936) 1 KB 169.
5.19 In M/s Anand Prakash Om Prakash v. M/s Oswal Trading Agency AIR 1976 Delhi 24, Hon'ble Delhi High Court while dealing with civil suit, wherein in a transaction of sale/purchase of goods through unaccounted money i.e. black money, painstakingly assessed the legal position in the light of prevailing statutory provisions and precedents in English Law. Hon'ble Court, while discussing section 10 and 23 of The Indian Contract Act at length, made valuable observations qua necessity of curbing the usage of black money and highlighted cautions which are supposed to be taken by judicial courts. In matters pertaining to black money, Hon'ble High Court observed as under:-
"In England an agreement which tends to be injurious to the public or against public good is void at Common Law as being contrary to public policy. Even though it is a country wedded to contractual freedom, it is recognised that any contract that tends to prejudice any social or economic interest of the country must be forbidden.
What contracts would be contrary to public policy has been subject matter of considerable controversy. At one time it was thought that the rules already established in that behalf by precedent may be moulded to fit the new conditions of a changing world, yet it was no longer legitimate for the courts to invent a new head of public policy. In course of time, however, this concept underwent considerable Digitally signed by change and it was recognised that the determination Raj Kumar Raj Tripathi of what was contrary to public policy must Kumar Date: necessarily vary from time to time and it was Tripathi 2024.11.14 10:45:13 pointed out that the rules remain but "its application +0530 varies with the principles which for the time guide CS DJ No.173/2021 (Thapar Builder Pvt. Ltd. vs. M/s Pragati Builder) Page 11 of 12 public opinion". Recent thinking on this branch of the law favours a more dynamic approach and it is suggested that "the law relating to public policy cannot remain immutable. It must change with the passage of time. The wind of change blows upon it."
5.20 In the case in hand, plaintiff claims to have paid an amount of Rs.24,00,000/- in cash to defendant. The said consideration, in lieu of work done by defendant was/is unaccounted money. This is high time when the court should reconsider entertainment of suits with stories of payments of huge cash, black money in violation of above statutory provisions. A small step on the part of judiciary in not recognizing the claim of cash transaction of undeclared money will go a long way in curbing this menace.
5.21 For the foregoing reasons and discussions, I am of the considered view that plaintiff has miserably failed to prove its case. Accordingly, the suit filed by plaintiff is dismissed. 6.1 Decree Sheet be prepared accordingly.
Digitally signed by 7.1 File be consigned to Record Room. Raj Raj Kumar Tripathi Kumar Date:
Tripathi 2024.11.14 10:45:22 +0530 Announced in the open court (RAJ KUMAR TRIPATHI) Dated: 13.11.2024 District Judge (Commercial Court)-08, South-East District, Saket Courts, New Delhi.CS DJ No.173/2021 (Thapar Builder Pvt. Ltd. vs. M/s Pragati Builder) Page 12 of 12