Delhi District Court
Mohd. Abul Hasan vs Ashok Jain on 25 September, 2019
IN THE COURT OF MR. SUNIL BENIWAL,
ADDITIONAL DISTRICT JUDGE -02, (CENTRAL),
DELHI
Old RCA no. 39/17
New No. 172/17
Mohd. Abul Hasan
S/o Md. Sher Ali,
R/o H.No. 12, Gali No. 16-17,
Kaushik Enclave, Burari,
Delhi-110084. .....Appellant
Versus
Ashok Jain,
S/o Late Sh. Satya Pal Jain,
R/o 5/16, First floor,
Roop Nagar, Delhi-110007
.........Respondent
Date of Institution of Appeal : 03.07.2017
Date of pronouncement of judgment : 25.09.2019
APPEAL
By this judgment I shall decide the appeal of the appellant Mohd Abdul
Hasan
That the Appellant plaintiff herein, filed a suit for Recovery of
Rs.2,75,137/- against the work/extra work done at the premises of the
Respondent at 5/16, Roop Nagar, Delhi -110007. The Defendant Respondent
RCA No. 172/17 Mohd. Abul Hasan vs Ashok Jain 1/22
herein, contested the suit by filing the Written Statement and Counter Claim.
The Ld. Trial court was pleased to dismiss the suit of the Appellant, hence
the present appeal. The present appeal is being preferred against the
Order/Judgment/Decree dated 28/04/2017, passed by the court of Ld. Civil
Judge :03: Central, Tis Hazari Courts, Delhi. The Certified Copy of the
Judgment/Decree dated 28/04/2017 is annexed herewith as Annexure 'A'.
That the brief facts leading to suit/appeal are given hereunder :-
BRIEF FACTS
1. That the appellant is engaged in the field of construction activities, renovation, repairing, interior decoration alongwith furnishing the house with all allied work of sanitary, plumber, wooden, electricity, tiles with other fittings and fixtures of toilet & washroom etc.
2. That the Respondent approached the Appellant for hiring his services for renovation & construction of his house at first floor, 5/16, Roop Nagar, Delhi -11007.
3. That both the Appellant and Respondent entered into agreement on 02-02-2014 for work, containing the details, specifications and terms of the renovation/constructions. The said agreement was the reciprocal agreement and payment was linked with various stages of work. The said work was to be completed within a reasonable period of 70 days. No date was mentioned. The copy of the Agreement dated 02-02-2014 is annexed herewith as Annexure -'B'.
RCA No. 172/17 Mohd. Abul Hasan vs Ashok Jain 2/22
4. That the Appellant projected the estimated cost of Rs.10,83,500/- as per definite specification and/or brand of Toilet fittings, size of wooden work alongwith accessories of wooden work (handle/locks etc.) size of Tiles/POP, brand of cables etc., more particularly mentioned in the specification chart of agreement dated 02-02-2014, which is part and parcel of the suit.
5. That finally, the total work was agreed to be done for Rs.9,80,000/- (Rupees Nine Lac Eighty Thousand only). That Respondent was agreed to pay the aforesaid settled amount in installments as per stages of the work :
(1) 20% advance before starting work, (2) 25% after completion of structure work, (3) 20% after POP, (4) 15% before flooring work, (5) 15% before Paint and (6) 5% at the final stage.
It was also agreed that additional work, if any, will be paid extra. As per agreement furniture work was not included in the scope of work.
6. That the Respondent, in addition to work in terms of Agreement dated 02/02/2014 insisted to expand the covered area and insisted to carry out the additional work of POP, Flooring, Paint, wooden work and designer tiles in toilet, which was more than the agreed size and also of different specification & brand. That the Respondent assured and promised to pay extra amount for additional work to the Appellate at later.
RCA No. 172/17 Mohd. Abul Hasan vs Ashok Jain 3/22
7. That the Appellant carried out the work as per agreement to the entire satisfaction/consent of Respondent and completed the job much before the stipulated period of 70 days. As there was marriage within the family of Respondent in subsequent months. The factum of marriage was not disclosed at the time of agreement and not mentioned in the agreement.
8. That the Respondent also insisted to use fittings of toilet, wire cable and door accessories of higher price/superior brand of his choice other than initially agreed upon in agreement. The differences are shown in chart below regarding addition work and accessories etc.:-
S. Particular Work as per Work actual Difference
No. agreement dt done
02/02/14
1 Toilet
(i) Tiles 40 sq.ft. @Rs.330 53 sq ft 13 sq. ft. extra
work of Rs.4290
Brand Name -
(ii) Fittings Marc Brand Rs.5480
Name
-Jaguar
2 POP 700 sq ft @ 850 sq. ft. 150 sq.ft @ 185
Rs.180/- extra work of
Rs.27,750/-
3. Electrical Wire cable brand Wire cable Rs.12,377/-
name - Kalina brand name
wire - Havels
wire
RCA No. 172/17 Mohd. Abul Hasan vs Ashok Jain 4/22
4. Flooring 700 sq ft 830 sq. ft 700x5 =
Rs.3500
130x50 =
Rs.6500
5. Paint Plastic Paint Royal Paint Rs.37,500/-
6. Wooden work Rs.88000/- (It is 1,25,000/- Rs.47,740/-
(chaukhat) after average
deduction of final
settlement of Bill
from
Rs.100,000/-) as
total quotation
was of
Rs.10,83,5000 -
which was settled
in Rs.9,80,000/-
TOTAL 1,45,137/-
9. That the Appellant believing the words of Respondent that the Respondent would pay all the differences of cost & extra work at the final stage carried out & completed the work at the house of the defendant up-to his complete satisfaction before the time period of 70 days.
10. That the Appellant purchased the materials and paid the labour after finishing their assigned work out of his own pocket. The Respondent as per agreement dated 02/02/2014 did not make payments towards 5 th and 6th stage except 100,000/-. Document exhibit PW1/8 placed by RCA No. 172/17 Mohd. Abul Hasan vs Ashok Jain 5/22 Appellant/Plaintiff before trial court shows that he made payment for the Ghar Sazawat labour till 7/04/2014 after completing the paint and polish work (which was recorded on receipt dated 07/04/2014 in consolidated form). The documents regarding payments are exhibited as PW1/3, PW1/4, PW1/5 (estimate regarding work with plastic paint), PW1/6, PW1/7, PW1/8 (Actual payment till 7/04/2014 for actual work done with Royal paint) despite other previous payments to labour and material are annexed herewith as Annexure -'C' (colly).
11. That the Respondent did not make payment after 11/04/2016, despite repeated request & reminders, neither the balance amount of Rs.1,30,000/- out of agreed price of Rs.9,80,000/-. The Respondent, also, did not pay the payment of Rs.1,45,137/- for extra work/differences as per measurement of Appellant. The Respondent promised and agreed to pay the amount for additional work at its finality. The Appellant contacted & requested Respondent to pay the total amount of Rs.2,75,137/- (Rupees Two Lac Seventy Five Thousand & One Hundred Thirty Seven only) as appellant has spent his money in paying the wages of labour/mistry and purchasing the material from his own pocket for attaining the finality of work. The appellant reminded the Respondent several time on phone and visited his house for payment due even after completing the work.
12. That the Respondent did not make payment to Appellant on one or other pretext of sudden fixing of the marriage of his son or he had to incur RCA No. 172/17 Mohd. Abul Hasan vs Ashok Jain 6/22 huge expenses in the preparation of said marriage. The Respondent did not make payment of balance as well as extra work despite the completion of work under agreement dated 02/02/2014 before time.
13. That the Respondent dishonestly & with malafide intention had not paid the abovesaid payment and intentionally and deliberately blocked the payment of Appellant in order to harass, misappropriate and cheat him for avoiding the payment of additional work. The Respondent did not fulfill his legal obligation to pay the above-mentioned dues of Appellant. The Respondent was legally bound to make the above said payment of Rs.2,75,135/- (Rupees Two Lac Seventy Five Thousand One Hundred Thirty Seven only) which Respondent has not paid till date. The appellant had to get notice sent for said payment. The legal notice dated 3/7/14 which was neither replied nor complied with.
14. That the Appellant/Plaintiff finding no alternative filed the suit for Recovery for Rs.2,75,137/-. The copy of the Plaint is annexed herewith as Annexure -'D'. The Defendant filed the written statement and counter claim. The copy of the Written Statement is annexed herewith as Annexure-'E'. The following issues were framed on the basis of pleadings.
1. Whether the Plaintiff had completed the work as per the agreement between the Plaintiff and the Defendant before or on time? OPP.
2. Whether the defendant instructed the plaintiff to carry out the RCA No. 172/17 Mohd. Abul Hasan vs Ashok Jain 7/22 additional work of POP. Flooring and Paint and whether the said work was carried out? OPP.
3. Whether the Plaintiff is entitled for decree of Rs.2,75,137/- alongwith pendent-lite and future interest @12%. OPP.
4. Relief.
15. That the Ld. Trial court was pleased to decide the issue no.1 & 2 collectively against the Appellant/Plaintiff. While issue no.1 & 2 are decided against the Plaintiff the relief claimed in issue no.3 was also declined. The Ld. Trial court in view of its findings was pleased to dismiss the suit of the Appellant plaintiff. The ld. Trial court also dismissed the counter claim of Respondent. The copy of the evidence by way of affidavit Plaintiff/Appellant is annexed herewith as Annexure-'F'. The copy of cross- examination of PW-1 Plaintiff/Appellant, dated 12.04.2017 is annexed herewith as Annexure-'G'. The copy of the cross-examination of Defendant/Respondent, dated 19.04.2017 is annexed herewith as Annexure-'H'. The copy of the List of Witnesses dated 17.05.2016 is annexed herewith as Annexure-'I'.
16. The appellant inter-alia preferred the present appeal on the following grounds -
GROUNDS A. Because Ld. Trial court failed to appreciate that the work assigned to the Appellant under agreement dated 02/02/2014 was completed well RCA No. 172/17 Mohd. Abul Hasan vs Ashok Jain 8/22 before time. The trial court ignored the evidence that the final work regarding paint and polishing was completed by his team of Ghar Sajawat on or before 07/04/2014 and he made payment of Rs.1,09,300/- till 07/04/2014. the consolidated receipt on their letter head has been exhibited as PW1/8. The Defendant was fully aware of the payments made to the labour from time to time by Appellant as he himself was in touch with them as they were working in his house and they had to take approval of work & also consultation regarding colour combination.
B. Because Ld. Trial court failed to appreciate that the issue no.2 was limited to the instructions regarding additional work. The issue only refers to dispute of additional work. The court has caused great miscarriage of justice to dismiss the entire claim of the Appellant including the claim for balance amount of Rs.1,30,000/-.
C. Because Ld. Trial court committed serious error by presuming on its own, the revocation of contract without any operation of law that too without fulfilling even a single requirement of law. It is well settled principle that the existence of contract takes place by the acts of parties, same is the case with revocation of contract which takes place only by acts of parties to the agreement. In the present case the Ld. Trial court presumed just by mere denial that Appellant has not completed the work or left the work unfinished that too without any cogent evidence or anything contrary proved by Respondent.
RCA No. 172/17 Mohd. Abul Hasan vs Ashok Jain 9/22 D. Because Ld. Trial court failed to appreciate the well settled law that
the normal presumption in such cases of construction work and reconstruction and renovation is that the stipulation as to time is not the essence of this contract despite that the date is stipulated. The time is not the essence of contract in such cases. The stipulation must show the intention was to make the rights of the parties depend upon the observance of the time limit in fashion which is unmistakable and not that it should take place within a reasonable time. It is pertinent to mention herein that the Respondent cannot blow hot and cold at the same time. On the one hand he is saying that the work was to be completed on or before 13/4/2014 and at the same time he says that time period was extended till 20/4/2014. It clearly shows that the time was not the essence of the contract. E. Because Ld. Trial court failed to appreciate that under section 55 (read with section 51) of the contract Act, 1872 if the work is not completed the contract to work becomes voidable. It has to be revoked only by sending any communication to that effect if any part does not want to continue with agreement. No communication/legal Notice was sent. The contract was never revoked which itself proves the falsity of the Respondent. F. Because the ld. Trial court committed serious error in non- delivering the justice by deciding the issue no.1 by picking up or mis- interpreting the stray reference/averment in the plaint/affidavit that the work was completed by Appellant on or before second week of May, 2014 and by RCA No. 172/17 Mohd. Abul Hasan vs Ashok Jain 10/22 ignoring that the averment at other places in the plaint and evidence by way of affidavit that work was completed before the period of 70 days at various places. No contradiction has been brought tin evidence by putting or confronting the said averment. Even during cross examination of appellant, at various places the Appellant has repeated that the work was completed within time of 70 days.
G. Because Ld. Trial court failed to appreciate that the issue no. 1 was framed on the plea of Respondent/Defendant and the onus of that plea to prove that the work was not carried out as per agreement or no additional work was done was to be shifted on Respondent. The Original agreement was admitted by both the parties and in the presence of the agreement, it had to be presumed that every thing took place as per agreement if anything contrary is not proved.
H. Because Ld. Trial court failed to appreciate the effect of the stray averment if not confronted to Appellant/Plaintiff or no contradiction is brought in evidence regarding the same. It is to be taken to be not proved. In fact the Appellant/Plaintiff in the entire pleadings is maintaining that the work was completed before the 70 days and seventy days are expiring in the second week of April 2014. The date of second week of May, 2014 regarding completion of work was to be explained by the Appellant Plaintiff during cross examination. If not so, the Respondent had to show contradiction by putting both the statements or averments to the RCA No. 172/17 Mohd. Abul Hasan vs Ashok Jain 11/22 Appellant/Plaintiff. The ld. Trial court has ignored the pleadings of Appellant/Plaintiff and evidence recorded in the case. I. Because Ld. Trial court failed to appreciate that pleading must be taken as a whole and same cannot be so dissected to accept one part and reject the other part. In the present case the Respondent dissected the pleadings to accept only that part which suits him or serves his purpose and ignored other set of pleadings. The pleadings should be read harmoniously and in its entirely. If anything contrary comes on record unintentionally or in wrong impression or error in computation is to be abandoned. It is upto the Appellant to explain but on perusal of records in its entirely and on evaluation of the circumstances it seems a grave mishap has taken place regarding second week of April, 2014 and second week of May, 2014 which started from initial point and went upto last. The party should not be penalized for the fault of advocate who was engaged to keep care and caution regarding confusion/mistake the pleadings. J. Because the impugned judgment is bad in the eyes of law facts and contrary to the settled provisions of law regarding reciprocal contract of performance under the provisions of the section 51 of the contract Act, 1872. In the case of reciprocal performance where one has agreed to pay the money as per stages of work. It depends on both the parties to perform their assigned part respectively. One has to make the payment on time and other is bound to finish the work on time. In fact, the present case is an example RCA No. 172/17 Mohd. Abul Hasan vs Ashok Jain 12/22 and proof of gentlemanliness on the part of Appellant/Plaintiff that on the consideration of respect of Respondent and his own reputation in the market finished the work despite the delay in payment by Respondent by understanding the genuine problem of lack of funds with Respondent. The Appellant/Plaintiff had great faith on Respondent as Respondent made assurances and promises to clear all the outstanding including for additional work just after becoming free from sudden fixing of the marriage of his marriage son. The main problem in the payment started only at the time of discussion and putting claim for additional work the Appellant did at the work site. The Respondent flatly denied to consider the additional work despite previous assurances.
K. Because Ld. Trial court failed to appreciate the possibility of carrying out additional work at the work site. It is justifiable reason that, not only the parties to contract but other members of the family & their relatives/friends play role in any change or additional work. Even the tacit approval of the Respondent to agreement makes the parties liable for payment of additional work as stipulated in the agreement. In the present case the Respondent in clear terms assured orally to the Appellant/Plaintiff by expressing the words that Respondent shall consider the same at the later stage after measurement of the additional work. The Respondent did not show any interest in joint measurement. In case of dispute regarding measurement of work can be done at any stage, if the parties are fair enough RCA No. 172/17 Mohd. Abul Hasan vs Ashok Jain 13/22 to each other, either by themselves or appointing the local commissioner or by any mode under the direction of Hon'ble Court.
L. Because Ld. Trial court failed to appreciate the fact that no one would leave work unfinished when his own stake is involved. The plea of Respondent is not tenable that Appellant/Plaintiff left the work unfinished at the last stage when he successfully completed the most tedious work of dismantling/foundation work/construction work/ lantering / plastering / flooring etc. without any violation of prevailing law. The Appellant Plaintiff has no reason to leave work unfinished. The finishing & furnishing work is the team work of experts when it is handed over to any team they do not leave that work unfinished till then any compelling circumstances do not arise as leaving & starting work again have caused loss to both wagers & Appellant. No such compelling circumstances are shown or averred. The work was very well completed before the stipulated time under the care and caution of the Appellant/Plaintiff as per specification and additional work as per consent/instruction of the Respondent. The plea of Respondent that the Appellant/Plaintiff left the work on 20/04/2014 due to illness of his wife is not tenable when his labour is there to complete the work. M. Because the Ld. Trial court failed to appreciate the facts & circumstances that the Respondent was very well aware of the progress of the day to day work himself or through his agents/relatives. The Respondent was fully aware that work would be completed well before the time by RCA No. 172/17 Mohd. Abul Hasan vs Ashok Jain 14/22 sincerity of the Appellant/Plaintiff. No dispute ever arose that why Respondent let him continue the work till finishing of the entire work which was assigned orally or by agreement.
N. That the Ld. Trial court failed to appreciate that the Appellant/Plaintiff exhibited and proved 15 documents. The Respondent did not object the documents but objected only to one document i.e. PW1/2. The admitted documents regarding payments are exhibited as PW1/3, PW1/4, PW1/5 (Estimate regarding work with Plastic paint), PW1/6, PW1/7, PW1/8 (Actual payment till 7/04/2014 for actual work done with Royal paint). And suggestion was only that the bills are part of work not additional work.
O. Because Ld. Trial court failed to appreciate that the aim of the fair trial is only the purpose of bringing the truth on record. The purpose or motive of fair trial is to search the truth only the truth. The appellant/plaintiff filed the list of witnesses giving the name of the Maker of the bills to be examined but either the counsel of the Plaintiff or due to the unknown circumstances which led to non-examining of the said witnesses makes judicial system a failure to search the truth. If that is the only issue to reject the claim of Plaintiff, the case can be remanded back to the trial court to examine limited witnesses who were part of the list of witnesses filed on behalf of Appellant/Plaintiff. The nature of the case and standard of understanding of legal provisions by Appellant/Plaintiff is lay man, he RCA No. 172/17 Mohd. Abul Hasan vs Ashok Jain 15/22 entirely posed faith on his counsel. He should not be penalized for the fault of the counsel.
P. Because Ld. Trial court failed to appreciate that if defendant is denying the additional work and dispute arose, same could be got measured by a third party with regard to structural expansion which is not in dispute. The structural expansion has also contributed in the additional work. Q. Because the Ld. Trial court failed to appreciate that the time was not the essence of the contract. As the time is not determined/governed by the urgency of the parties to contract or sudden fixing of marriage of Respondents son whereas same is determined by the nature of the contract & circumstances.
R. Because the ld. Trial court failed to appreciate that the time stipulated in the agreement to execute construction work is only the reasonable time.
S. Because the Ld. Trial court failed to appreciate that Respondent/Defendant has not given any particular details, name of person to show that he carried out and finished the work on his own after 20/04/2014. The plea of starting work after 20/04/2014 is false & frivolous as no work remained unfinished as per assignment to Appellant. It was next to impossible to start work and get completed the work with new team in such a short period. The said plea has been raised in order to avoid the payment of Appellant with dishonest intention.
RCA No. 172/17 Mohd. Abul Hasan vs Ashok Jain 16/22 T. Because the impugned judgment is bad in the eyes of law as the Ld. Trial Court misled himself by giving the finding that the defendant/Respondent has the denied the extra work. It is submitted that the plaintiff/Appellant has proved that the additional work was carried out by his statement and defendant/Respondent himself has admitted that brands of the fitting and fixtures at the time of actual installation as respondent requested on the insistence of the family member to be used best quality wires of Havells and Jaguar fittings of Toilets and also pay the difference. U. Because the Ld. Trial court itself by giving a finding that the appellant failed to prove remaining market rate of the plastic paint and Royal paint. It is submitted that it is not only market price of the paints that will determine its cost. It is submitted that by using the different type of paints results in increase and decrease of labour charges. It is further submitted that the variation of prices is evident from the quotation Ex.PW1/5 and the actual work done in Ex.PW1/8.
V. Because Ld. Trial court has failed to appreciate that the defence brought forward by the respondent was a selfserving statement and was not proved by producing any witness or evidence.
W. Because the Ld. Trial court has failed to apply its judicial mind in passing the impugned judgment and has totally ignored the facts of the case and the documents placed on record by the Appellant/Plaintiff. X. Because the Ld. Trial court has taken into consideration the RCA No. 172/17 Mohd. Abul Hasan vs Ashok Jain 17/22 hypothetical and illogical propositions which resulted into great miscarriage of justice.
Y. Because the order of ld. Trial court is patently wrong on facts as well law and there is material irregularity in the findings given by trial court. The Ld. Trial court totally ignored the material facts and the same is a grave error of law and fact.
17. That the appellant has not filed any other similar appeal either before this Hon'ble Court or any other court praying inter-alia for a similar relief as is being prayed for in the present appeal.
18. That the appeal is within the period of limitation.
19. That the appeal is within the jurisdiction of Hon'ble Court as the impugned judgment is delivered by the Civil Judge-03: Central Distt. Tis Hazari Court.
20. That the requisite court fee is being paid.
PRAYER It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to ;-
A. Admit the present appeal. B. Set-aside/modify the impugned order/Judgment passed by Learned
trial court on dated 28.04/2017 or remand back the case to the trial court for fair trial save to the extent that it directs issuance of summons to the Respondent.
RCA No. 172/17 Mohd. Abul Hasan vs Ashok Jain 18/22 C. Pass any other orders as this Hon'ble Court deems fit.
21 It was submitted by the ld. Counsel for the respondent that it is admitted by both the parties that as per the agreement dated 02.02.2014 the construction work was to be completed within 70 days from 02.02.2014 as there was a marriage in the respondent's house. This fact is admitted during the cross-examination of PW1, wherein, he has stated that it is correct that I had to finish the work within 70 days as there was marriage in defendant's house.
22 Appellant has admittedly not completed the work as per the agreement and left the site incomplete on 20.04.2014, causing financial loss and mental agony of the respondent. Thereafter, the respondent has got the work completed through some other contractor after paying a higher amount. It is further submitted that the appellant has neither completed the original work so undertaken by him nor any additional work as pleaded in his plaint. 23 While passing of the impugned order ld. Trial court has rightly appreciated the aforesaid facts at para no.12 and 13 of the impugned order. 24 The appellant has misguided this Hon'ble Court in para I of grounds that "it seems a grave mishap has taken place regarding second week of April, 2014 and second week of May, 2014, which started from initial point and went on upto last". In this regard, it is submitted that the appellant has duly pleaded in his plaint in para 15 of Annexure D. Also, in his submissions RCA No. 172/17 Mohd. Abul Hasan vs Ashok Jain 19/22 by way of affidavit Annexure F in para 15 that it has completed the work in the second week of May, 2014. Furthermore, the appellant has not placed any iota of evidence to prove that it has completed the work within time or second week of May, 2014.
25 There is nothing on record to corroborate the claim of the appellant regarding additional work or completion of work. Thus, as there is no evidence to show that plaintiff was working in the house of the respondent after stipulated period to carry out additional work and therefore the present appeal is liable to be dismissed.
26 I have gone through the grounds of the appeal as well as the trial court record. Counsel for appellant has argued that inadvertently the date of 14th May, 2014 was mentioned in the notice issued to the defendant for recovery of alleged amount as well as in the plaint of the suit. It is submitted by counsel that he had finished the work before the stipulated period of 70 days as envisaged by the agreement into between the parties. Counsel has further submitted that though it is correct that plaintiff has failed to prove the bills as per which the material of superior quality was used and has also failed to produce the author of the bill in order to prove the same but the truth is that the plaintiff/appellant had infact used goods of superior quality than the goods agreed between the parties and therefore, was liable to recovery of enhanced amount instead the rate as agreed. 27 I have heard the arguments on appeal and also gone through the RCA No. 172/17 Mohd. Abul Hasan vs Ashok Jain 20/22 record.
28 In the opinion of the court, the appellant has not been able to prove that any of the grounds of appeal are true and genuine and also not able to prove that there is infirmity and illegality in the impugned judgment which entitles the appellant for grant of any relief in the present appeal. The findings on all the issues given by the trial court are just, legal and valid and do not suffer from any infirmity or illegality whatsoever. Appropriate and sufficient reasoning has been given by the trial court while arriving at the conclusions and findings which determine the issues. The arguments of the appellant are not tenable that in the demand notice and in the plaint, inadvertently wrong date was mentioned. If this was so, then why no amendment application was moved by the plaintiff before the trial court. At this stage, the plaintiff cannot be allowed to raise new grounds which were not taken by the appellant before the trial court, when the appellant had the opportunity to raise these grounds before the trial court itself even by way of a subsequent amendment. The appellant has failed to prove that he had upheld his part of the agreement and contract entered into between the parties. The appellant has further failed to prove that the contract work as undertaken by him as per the agreement was finished by him on time as stipulated in the agreement. The appellant has failed to prove that he had used material of a superior quality under any oral agreement as against the written agreement which was the basis of the original claim of the appellant RCA No. 172/17 Mohd. Abul Hasan vs Ashok Jain 21/22 before the trial court. Appellant has failed to prove that time was not the essence of the contract. Rather the appellant has taken contradictory stands and alternatively inconsistent pleas in his plaint which is not permitted as per law. The appellant has failed to make out any case of recovery of money against the respondent before the learned trial court. The reasoning given by the learned trial court for arriving at its decisions in view of its findings while deciding the issues that were framed is just, proper and lawful and does not suffer from any illegality, infirmity or any of the grounds as mentioned in the appeal. Appellant has not been able to convince the court that any of the grounds upon which the appeal has been filed are legal and tenable and sustainable. Therefore, in view of the above mentioned reasons, the appeal is dismissed.
Appeal file be consigned to record room.
TCR be sent back to the concerned court with direction to consign to record room. Digitally signed by SUNIL SUNIL BENIWAL BENIWAL Date: 2019.09.26 16:01:49 +0530 Announced in the open Court on 25th day of September, 2019 (SUNIL BENIWAL) ADJ-02, Central,THC/Delhi RCA No. 172/17 Mohd. Abul Hasan vs Ashok Jain 22/22