Delhi District Court
Rijwan Ansari vs Jasmine Buildmart Private Limited on 19 August, 2023
IN THE COURT OF Ms. NIRJA BHATIA
DISTRICT JUDGE (COMM. COURT-06),
SOUTH-EAST DISTRICT, SAKET COURT, NEW DELHI
CS (Comm) 250/2020
Rijwan Ansari
Proprietor of M/s Rijwan Ansari
(A proprietorship Firm)
Office-cum-residence at H. No. 046,
Krishna Kunj, Maruti Kunj, Gali no. 11,
Bhondsi, District Gurugram, Haryana.
..... Plaintiff
Versus
Jasmine Buildmart Private Limited
(Through Managing Director / Proprietor / Chairman)
Registered Office at:-
Unit No. 202, Second Floor,
Elegance Tower, Jasola District Centre,
Jasola, New Delhi-110025
.....Defendant
Date of Institution: 29.09.2020
Arguments concluded on : 04.08.2023
Date of Judgment: 19.08.2023
JUDGMENT
1) By this judgment I shall decide the present suit seeking relief of recovery of Rs. 10,83,229/- ( Rupees Ten Lakh Eighty-Three Thousand, Two Hundred and Twenty Nine Only) by plaintiff namely Sh. Rijwan Ansari, proprietor of M/S Rijwan Ansari, a proprietorship firm with its office-cum-residence at H.No. 046, Krishna Kunj, Maruti Kunj, Gali no. 11, Bhondsi, Haryana.
CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 1 of 42
2) The suit is filed against M/S Jasmine Buildmart Pvt. Ltd. ( hereinafter referred as defendant ) through its Managing Director/ Proprietor having its registered office at Elegance Tower, Jasola District Centre, Jasola, New Delhi-110025.
Facts stated by the plaintiff.
3) (a) It is stated that plaintiff was awarded a work contract by the defendant vide letter dated 30.12.2017 with reference no. KRRISH/JBPL/2017-18/37 for dismantling, scaffolding, fixing and removing work at its project at Provence Estate, Gwal Pahari, Sector 3, Gurugram, Haryana. Prior to awarding the work contract, the parties had agreed at the rate contract for work of dismantling/chipping of RCC or Brick work with chipping hammer / breaker machine including equipmeent and disposal of debris to the assigned shaft complete @ of Rs. 198 per Hrs, (2) Fixing of Scaffolding as directed at the agreed rate of Rs. 2.25 Per Square feet, (3) Removing of Scaffolding as directed ( at agreed rate of Rs. 2 per square feet), (4) Manpower Supply (I) Scaffolder ( as agreed @ Rs. 500/- per Eight Hours), (II) Labour ( as agreed @ 400 per Eight Hours) at the aforementioned project. The work at the above rates was agreed.
(b) Plaintiff claims that during the work, plaintiff gave details of all the work in progress and material quality etc. timely to defendant and also issued some bills / invoices. The plaintiff thus issued the following bill:-
CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 2 of 42 Date S. No. Rupees 01.09.2018 020 6,84,918/-
09.10.2018 022 2,82,786/-
15.11.2018 026 6,36,203/-
10.01.2019 032 7,28,545/-
02.05.2019 043 7,34,777/-
(c) Plaintiff thus states that bill of total amount of Rs. 30,67,229/- were raised and the defendant was requested to make the payment in time. The defendant discharged part payment towards the above bills and made the payments as below:-
Date Payment Through 16.08.2018 98,000/- NEFT 24.09.2018. 5,00,000/- NEFT 03.11.2018. 2,97,000/- NEFT 04.12.2018. 4,95,000/- RTGS 14.02.2019 2,97,000/- Demand Draft 25.03.2019 1,48,500/- NEFT 05.09.2019 1,48,500/- NEFT
To support the aforesaid payments, plaintiff has relied upon the copies of bill certificate qua GST, Income Tax and TDS (colly).
(d) Plaintiff states that against the bills raised for an amount of Rs. 30,67,229/-, defendant has paid Rs. 19,84,000/- and hence an amount of Rs. 10,84,229/- is still payable and due.
(e) It is claimed that defendant has availed the service of the plaintiff from 30.12.2017 to May 2019 during which CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 3 of 42 the plaintiff informed the defendant regarding estimated bills and placed the same before plaintiff in time and consequently in the month of May 2019, was forced to stop the work as the payment was not forthcoming from the defendant even to discharge the liability for the labour. The request thus made for discharging of the remaining amounts did not yield any result due to which, the plaintiff was constrained to send legal notice dated 08.01.2020, however, the demands are still unrealised which are now demanded through the present claim along with the interest @ 18%.
Case of the Defendant
4) (a) The defendant has filed their Written Statement and has raised certain preliminary objections. It is claimed that the present suit filed against the defendant is misconceived and is liable to be rejected since there is no cause of action in favor of the plaintiff.
(b) Defendant has raised objection to the territorial jurisdiction of this Court. It is stated that the project work was conducted at Gurugram, the work order was received by plaintiff at Gurugram and the entire cause of action accrued in his favor at Gurugram, in which scenario the Delhi Courts have no jurisdiction. It is also stated that the invoice annexed with the plaint itself clarifies " all disputes are subject to Gurgaon Jurisdiction only", due to which the present suit is not maintainable. Though it is admitted that the address mentioned on plaint is correct address of CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 4 of 42 defendant's Delhi Office. It is claimed that the said office is being used for keeping records only.
(c) It is claimed that the quality and nature of work done by the plaintiff is poor and sub-standard. It is claimed that plaintiff was provided with the work for wall chipping (wall service smoothening and fixing of scaffolding in lift shafts. During the pendency of the work, the plaintiff stopped the work even though the work was not complete and lift installation could not be started, until the work got completed. The acts of the plaintiff resulted in the flaws which were suggested by M/S Schindler India Ltd. Which was appointed for fixing the lift. The defendant had to appoint 2 different contractors namely Atul Enterprises and Shiv Electrical Contractor, who completed and improve the sub-standard incomplete work of the plaintiff which resulted in additional expenses during the pendency of the project.
(d) Defendant claims that the suit is not filed within the domain of provisions of Commercial Courts Act. The plaintiff has not filed any calculation to the interest claimed in the plaint and has not stated any reason for the said interest and day to day calculation to this effect.
(e) Defendant claimed that the transaction between the parties is based on the work order dated 30.12.2017 placed by the defendant concerning its construction site. Under the terms and conditions of which the payments were to be made only for the work which is done or completed which condition is not fulfilled by the plaintiff CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 5 of 42 as is evident from the conduct of the plaintiff that he has not completed the work at the site and has abandoned the incomplete work with sub-standard quality. It is stated that against improper work Shindler India Ltd. had written letters dated 15.04.2019 and 07.05.2019 to the defendant expressing that the work in the lift shafts is incomplete and the work is not in accordance with the requirements.
(f) It is averred that no amount is due as mere bills placed by the plaintiff do not constitute "Written Contract"
since only issuance of bill or invoice is insufficient to create any obligation on defendant to pay the amount as mentioned in the bill.
(g) The defendant has also raised objections towards deficient court fees and has averred that the requisite amount of the court fees in the present claim is Rs.
12,916.31/- whereas the plaintiff has filed the court fees of only Rs. 6,520/-.
(h) The defendant has specifically admitted the invoices as below:-
Invoice No. Dated Amount ( In Rupees )
020 ( Annex. C) 03.08.2018 6,84,918/-
022(Annex. D) 09.10.2018. 2,82,786/-
026 (Annex E) 15.11.2018 6,36,203/-
032 ( Annex. F) 10.01.2019 7,28,545/-
Total ( Rupees Twenty-Three Lacs Thirty-Two 23,32,452/- Thousand Four Hundred Fifty-Two Only)
(i) The defendant specifically denies issuance of bill dated 02.05.2019 vide serial no. 43 for Rs. 7,34,777/- and CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 6 of 42 has reiterated that during the period of work, the defendant was overbilling the defendant in collusion with one company staff Adil Haneef. The defendant has denied that the total amounts due were of Rs. 30,64,229/- and has submitted that only bills amounting to Rs. 23,32,452/- were issued by the plaintiff against the work order qua which an amount of Rs. 19,84,000/- were paid excluding TDS and an amount of Rs. 19,766/- was deducted towards TDS.
(j) Defendant claims that as per agreed terms and conditions of work order the payment against bill / invoices were to be released after the completion of the specified work and after verification of the bill.
(k) Where as the plaintiff indulged in excessive billing and on inspection the work was found to be delayed and not as per the expectations of the engineers. On being enquired the plaintiff threatened to stop the work and abandoned the site which compelled the defendant to verify every work and bill issued by the plaintiff and since the plaintiff never made himself available to explain the delay and lacunae in work, the bill could not be settled after the deductions, however, plaintiff abandoned the site and work which led to further delay and loss to the defendant. It is stated that for the above acts the plaintiff is liable to compensate the defendant.
(l) Defendant denied that a legal notice dated 08.01.2020 is send by the plaintiff. It is averred that the said notice is not tenable in the eyes of law as plaintiff is CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 7 of 42 relying upon the fake and bogus bills which are prepared by him and in terms of the settled provisions of Law, a suit of recovery based on such invoices is not maintainable. It is denied that no cause of action exist in favour of the plaintiff and it is stated that suit be dismissed. Replication
5) Replication to the Written Statement is filed by the plaintiff. The objections raised are disputed. It is denied that the court has no territorial jurisdiction to entertain the present suit. It is averred that the office of the defendant is situated at Jasola, District Center and hence this court has jurisdiction to entertain the suit.
6) It is averred that the defendant has admitted the work order and false plea of bogus and forged documents is being raised just to escape the liability. The plaintiff asserted that the bills are genuine and well-acknowledged at the end of the defendant who has made part payment qua them, while the defendant has denied only one bill bearing no. 43 for Rs. 7,34,774/- dated 02.05.2019 and has remained silent on the other issued bills. Plaintiff claims that all the bills are genuinely raised against the work done by the plaintiff.
7) It is denied that the work was poor and sub-standard as no such objection on aforementioned account had ever been raised. Plaintiff claims that work was stopped due to the defendant's conduct which resulted in non-payment of labourers due to lack of money. Plaintiff denied that the present case is not properly framed under the provisions of CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 8 of 42 Commercial Courts, Commercial Divisions and Commercial Appellate Division of High Courts (amended) Act, 2018. Rest of the submissions are disputed and the statements in the plaint were reasserted.
8) During the pendency of the proceedings, plaintiff by separate application deposited the deficient court fee which request was allowed.
9) Vide separate order dated 06.10.2022, the application U/O 7 Rule 11 CPC was rejected and parties were asked for admission / denial and for filing of proposed issues.
Issues
10) The issues were framed as below:-
(1) Whether the plaintiff is entitled to
the relief of recovery as prayed
for? OPP
(2) Whether any interest is payable if
so at what rate? OPP
(3) Any other relief?
It be observed that while the matter was listed on 25.11.2022 inadvertently issues could not be framed and at the stage of Final Arguments, it was observed whereafter, the issues were framed and parties were inquired about their stance on leading any further / fresh evidence, however, Sh. Mohsin Khan, Ld. Counsel for the plaintiff and Sh. Bakul Jain, Ld. Counsel for the defendant made their respective statements and no other evidence except one on record was led / relied upon whereafter the matter is proceeded with.
CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 9 of 42 Evidence led by parties.
Plaintiff's Evidence.
11) (a) Plaintiff stood as his own witness and filed the examination in chief by way of affidavit. The documents as below were tendered:-
1) Copy of work order dated 30.12.2017, Mark A.
2) Copy of quotation letter, Mark B.
3) Copy of bill dated 01.09.2018 issued by the plaintiff in the name of defendant, Ex. PW-1/A (OSR).
4) Copy of bill dated 09.10.2018 issued by the plaintiff in the name of defendant, Ex. PW-1/B (OSR).
5) Copy of bill dated 15.11.2018 issued by the plaintiff in the name of defendant, Ex. PW-1/C (OSR).
6) Copy of bill dated 10.01.2019 issued by the plaintiff in the name of defendant, Ex. PW-1/D (OSR).
7) Copy of bill dated 02.05.2019 issued by the plaintiff in the name of defendant, Ex. PW-1/E (OSR).
8) Copy of statement of account of plaintiff since 01.01.2018 to 11.11.2019, Ex. PW-1/F (Colly) (OSR).
9) Copy of PAN card of plaintiff, Ex. PW- 1/G (OSR).
10) Copy of legal notice dated 08.01.2020 alongwith and tracking report, collectively Ex. PW-1/H (Colly)(OSR).
11) Postal receipts of dispatch of legal notice dated 08.01.2020, Ex. PW-1/J.
12) Copy of bill certificate qua GST and tax of the plaintiff, Mark C.
13) Copy of handwritten work details done by the plaintiff, Mark D (colly).
CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 10 of 42
(b) During the cross-examination, he admitted that quotation 'Mark B' was issued by him to the defendant. At which stage, he was confronted with the document by the defendant, it was exhibited as Ex.PW1/X1. He admitted that Ex.PW1/X1 (the rate quotation) specifies the amount of rate payable and its purpose was to finalise the rate against which the defendant was to receive the work and payments.
(c) The nature of work was only masonry work for correction of lintre/ concrete wall and to fix the wooden planks (pair banana) fixing and removal etc. He could not remember that in the present case, the wall correction was done in shaft and lift area.
(d) He admitted the work order Ex.PW1/X2. He admitted that the work order Ex.PW1/X2 being based on the rate contract Ex.PW1/X1. He was asked to compare Ex.PW1/X1 and Ex.PW1/X2, the rates in both the documents and whereafter he stated that the rates in documents Ex.PW1/X2 and Ex.PW1/X1 both were same as quoted by him.
(e) He admitted the bill no. 20 dated 03.08.2018 and his signatures at point X whereafter, it was exhibited as Ex.PW1/D1. He admitted the signatures upon bill no. 22 dated 09.10.2018 at point X whereafter it was exhibited as Ex.PW1/D2. He admitted the signatures at point X on Bill no. 26 dated 15.11.2018 whereafter it was exhibited as Ex.PW1/D3. He admitted that signatures at point X on bill CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 11 of 42 no. 32 dated 10.01.2019 were his whereafter the document was exhibited as Ex.PW1/D4.
(f) He admitted that after the bills were submitted, the defendant company verified the work and then released the payment at that stage he volunteered that the verification was done prior to issuance of bills by him. He then admitted that verification was done post submissions of estimates. It was admitted that measurement sheets were signed by both sides and then explained that process of issuance of bill was that after the measurement was taken, the defendant company was used to prepare the bill at their end which he was used to formalise and submit for payment. Though he admitted that he had not placed any bill prepared by the defendant on the basis of which, he formalise the bill along with his documents. He denied that the defendant was not used to prepare any such bill and due to that reason he had not filed any such document of bill prepared by the defendant company. On being asked, he stated that he cannot bring any such bill prepared by defendant.
(g) He was shown the estimate sheets bearing no. RA 1, RA 2, RA 3 & RA 4 which documents he admitted and were bearing his signatures at point X, whereafter RA 1 was exhibited as Ex.PW1/D5, RA 2 was exhibited as ExPW1/D6, RA 3 was exhibited as Ex.PW1/D7 and RA 4 was exhibited as Ex.PW1/D8. Qua Ex.PW1/D8, he stated that he cannot identify the signatures at point Y as they CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 12 of 42 were not his whole signatures as he was used to sign originally.
(h) He then detailed that he cannot read or write the bills the he had given to the defendant. As he cannot read and write English Language, the bills were prepared with outside help of different persons who were known to him and were available at the requisite time and accordingly he took help from one Mehtab Bhai his friend, who had prepared the bill ExPW1/D1. He admitted that the bill certificate RA1 is against invoice no. 20, bill certificate no. RA 2 is against invoice no. 22, bill certificate no. RA 3 is against invoice no. 26 and bill certificate no. RA 4 is against invoice no. 32.
(i) He then detailed that he was used to submit the original bills to the defendant which were raised upon defendant and due to above he does not have the original bills with him. At which stage, he produced the original bills Ex.PW1/A to Ex.PW1/D which he explained were the copies of the bills sent to defendant in original. He denied that he submitted incorrect bills. He denied that Ex.PW1/A to Ex.PW1/D are forged bills and stated that they were his copies to the original bills / first copies that were supplied to the defendant for payment. He admitted that Ex.PW1/A to Ex.PW1/D are originally written and are not the carbon / xerox copies, at which stage he stated that he can bring the original bill book from where the bills are generated. The suggestion that he had not submitted the original bill of Ex.PW1/E to defendant for payment was CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 13 of 42 denied. He denied that he had not done any work or rendered any service for purpose of which Bill Ex.PW1/E is raised. He had not submitted on record any acknowledgment of service to defendant and claimed while volunteering that no such acknowledgment was given. He had not filed any communication pertaining to submission of bill and stated that he had filed all the bills in his possession. The suggestion that he has filed the bills without rendering any service was denied and due to that reason he had no proof of service rendered by him towards Ex.PW1/A. The suggestion Ex.PW1/H are forged document was denied. At which stage, the cross was deferred for bring original bill book
(j) Plaintiff then produced the original bill book on 15.04.2023 and admitted that Ex.PW1/A to Ex.PW1/D are generated from the same bill book which bill book was then exhibited as Ex.PW1/D9. It was denied that the bills were fabricated and the bills were not against the work done and the rest of the submissions regarding the work being sub-standard or incomplete were disputed whereafter the PE was closed.
Defendant's Evidence.
12) (a) Sh. Yogender Singh, Authorised Representative appeared as defendants's witness. He has filed his examination in chief by way of affidavit and exhibited the following documents:-
CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 14 of 42 (1) Copy of Inter office memo dated 28.03.2019, Ex. DW-1/1.
(2) Letter dated 07.05.2019 issued by Schindler Limited, Ex. DW-1/2.
(3) Copy of letter dated 15.04.2019 issued by Schindler Limited, Ex. DW-1/3.
(4) Ledger account in the books of defendant for the period from 01.04.2017 to 31.03.2021, Ex.
DW-1/4.
After his tendering statement was complete, he was cross-examined by Sh. Asif Ali, Ld. Counsel for the plaintiff. Wherein initially he was cross-examined about his capacity to depose on behalf of defendant company and his status as the project incharge of defendant. He tendered Ex.DW1/P1 his business card to show his status has project in charge of defendant.
(b) The work order dated 30.12.2017 already Ex. PW1- X2 was admitted. He stated that the work order was issued after the oral understanding have been arrived at and the work order was issued after the terms were crystallized thereafter, the work was started by the plaintiff. He admitted as correct that after the agreement on rate is arrived at by the parties, work order is issued. He stated that the plaintiff started the work after issuance of work order and no work was carried out after 10.01.2019. He admitted that from the period of 2017-2019, plaintiff has raised bills upon defendants which he stated have been paid. He admitted that no letter / complaint was issued regarding work from 2017 till 2019 at which state he volunteered that that the complaint could have been made CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 15 of 42 only after completion of work which was specifically awarded for alignment of lift shaft.
(c) He admitted that except one bill rest of the bills are admitted by the defendant. He denied that last bill no. 43 Ex.PW1/E is also genuine. He denied that the payment of this bill is fully and deliberately avoided. He admitted that no complaint regarding work quality was issued directly to the plaintiff and volunteered that the complaint was issued to Adil Haneef. He was unaware that any document is filed by his counsel for appointment of two contractors who completed the work after plaintiff abandoned the site despite the effort made by him to search the file no such document could be located whereafter, he admitted that no such document is filed. The witness could not show any document having been filed to show additional payment having been made.
(d) He claimed that a letter informing the plaintiff that bill dated 02.05.2019 is without any base was written to plaintiff and is filed on record and at this stage, he was urged to show the letter and he pointed out to the letter dated 25.02.2019, which was exhibited as Ex.DW1/P2. He denied that letter dated 25.02.2019 is not connected to bill dated 02.05.2019. It was denied that the aforementioned letter Ex.DW1/P2 was never issued or sent to the plaintiff. He admitted that there is no acknowledgment receipt on the letter Ex.DW1/P2 and volunteered that it was sent by hand. He admitted that there is no by hand acknowledgement on Ex.DW1/P2 to which he CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 16 of 42 volunteered that plaintiff has not even acknowledged the receipt of work which was given by hand. He denied that Ex. DW1/P2 was never sent or received by the plaintiff and due to that reason there is acknowledgement of his receipt. He admitted that after plaintiff left the work, no letter to showcause or asking to the plaintiff to resume the work was issued. He then pointed out to letter Ex.DW1/1, however, admitted that it was never issued to the plaintiff and volunteered that it was an internal communication. He denied that the contents were not concerned with the plaintiff. It was admitted that no separate complaint was filed against the plaintiff before any authority regarding the contents of Ex.DW1/1.
(e) He admitted that being project incharge. He was used to visit the site regularly and he had not written any letter as employee of defendant informing about dis- satisfactory work quality being performed by the plaintiff and volunteered that it could have been seen only at the stage of installation of lift. He was asked about the authorization or resolution in his favour and whereupon he detailed that authorization is issued in his favour by the director. The cross-examination was then deferred to bring on record the proof of his employment and competence. He then produced his identity card, copy of which was exhibited as Ex.DW-1/P-3 and photocopy of original resolution Ex.DW-1/P-4. Thereafter, the DE was closed.
13) Both the parties then sought time for final arguments. Matter was fixed for final arguments. CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 17 of 42 Final Arguments
14) Sh. Asif Ali, Ld. Counsel for the plaintiff and Sh. Bakul Jain, Ld. Counsel for the defendant have made their respective submissions. The same are heard and taken note of.
15) Now, the assessment of evidence and material placed by parties and decision issue-wise is below:
Issues No. 1 and 216) In order to make a detailed assessment on the facts, it is necessary to first evaluate their depth through the evidence placed orally as well as through documents on record.
17) It is important to take note that defendant admitted to have paid amount of Rs. 19,84,000/- out of claim of 30,67,229/- and except denying the liability of Rs.
7,34,777/-, the rest of amount was offered during final arguments by Ld. Counsel for defendant. Hence, the plaintiff's partial entitlement against Rs. 10,83,229/- is admitted.
18) The parties admitted that plaintiff was appointed as contractor at Provence Estate, Gwal Pahari, Sector-3, Gurugram, Haryana project site of defendant and plaintiff was confronted with the work contract during evidence whereafter it was exhibited as Ex. PW-1/X-2. The document and contents hence are admitted by both sides.
19) The defendant then confronted the plaintiff with the rate contract and also asked him to compare the rates, CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 18 of 42 whereafter the rate contract was exhibited as Ex. PW-1/X1 and hence is an admitted document by both.
20) It is admitted that plaintiff left the work and his contract was neither terminated by defendant nor was he made to leave the site, though the timing up till which plaintiff continued to work at site is stated by defendant as January 2019 and as May 2019 by the plaintiff.
21) As most of the circumstances giving rise to context in which the issues are existing remained admitted, it is taken note that parties dissented majorly around the authenticity of bill No. 43 dated 02.05.2019, Ex. PW-1/E as the defendant alleged that the plaintiff was guilty of forging and fabricating the above bill against which he did no work. It is alleged that the bill was manipulated by plaintiff in connivance with one Adil Hanif, an employee of defendant company. Thus, the cause of action presented by the plaintiff was challenged on account of fraud allegedly committed by plaintiff in connivance with an employee of the defendant.
22) The claims hence were juxtaposed qua the extent that while plaintiff was burdened to prove his entitlement to recover the claim/ suit amount as against legal discharge of service at site, the defendant was to establish that the liability was fake and had been fictitiously raised by over inflating and forging the bills with one of its hands/ employees.
23) At this stage, it is material to take note of the relevant provision of evidence Act which clarifies the CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 19 of 42 position about the burden of proof and the manner in which the parties are required to discharge the same. The burden of proof is defined under Section 101 Evidence Act as below:
"101. Burden of proof.--Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
24) Hence, the necessary interpretation from the reading of above provision is that party who is likely to fail in case the fact stated by it is not proved in terms of law laid down is requisited to bear the burden to prove a case. As is observed by Hon'ble Supreme Court in Anil Rishi Vs. Gurbaksh Singh, (2006) 5 SCC 558 as below "Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side."
...................................................... ......................................................
"12. ... The onus to prove the validity of the deed of settlement was on Defendant 1. When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 20 of 42 him to prove such fraud, undue influence or misrepresentation. ...................................................... ......................................................
19. There is another aspect of the matter which should be borne in mind. A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.
25) The facts suggest that while most of the material relied upon by the plaintiff was presented to him during cross-examination by defendant, the same remained admitted through his cross-examination as the bills were confronted to plaintiff as Ex. PW-1/D1 to Ex. PW-1/D4.
The plaintiff was asked to detail the manner in which the bills were drawn whereafter he stated the process of preparation of bills. He detailed that prior to drawing the bills, measurements were taken and measurement sheets CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 21 of 42 were signed jointly. He was confronted with measurement sheets which are stated as RA sheets and are Ex. PW-1/D5 to Ex. PW-1/D8. The defendant questioned him on each bill and received an affirmation that each of the bill i.e., bill No. 20, 22, 26 and 32 were on the basis of RA sheets, proving the bills and RA sheets in process. The factum of discharge of payments thereupon again condensed the facts stated by plaintiff whereafter not much was left for him to prove.
26) As the plaintiff closed his evidence, the defendant was under the duty to discharge the onus of disproving the authenticity of the material placed by plaintiff and more particularly of bill Ex. PW-1/E which was alleged as forged. However, after the plaintiff admitted the bills alleged by defendant as its bills and separate from that of plaintiff, the defendant did not draw any effort to confront him with bills tendered by plaintiff during his evidence as Ex. PW-1/A to Ex. PW-1/D. No effort was made to compare the bills Ex. PW-1/D1 to Ex. PW-1/D4 which were presented by defendant to show that there was any disparity in amounts and/ or calculations on the basis of work done, [since the bills were all alleged as inflated] or with the other aspect to show that the bill given to defendant including Ex. PW-1/E was carrying any different handwriting and/ or amount etc. to indicate any act of forgery.
CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 22 of 42
27) It now needs to be noted that mere allegation in pleadings is not to be treated as proof as is held in Anil Rishi (supra) as under:
(10). Pleading is not evidence, far less proof.
Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act.
28) While discussing how the burden of proof is to be discharged, Hon'ble Supreme Court in In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple [(2003) 8 SCC 752, observed as under:
"29. In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in Addagada Raghavamma v. Addagada Chenchamma [(1964) 2 SCR 933 : AIR 1964 SC 136] there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 23 of 42 his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff's title."
29) The rule of shifting the onus of proof is deliberated further in Anil Rishi (supra) and is referred as below:
"The elementary rule in Section 101 is inflexible. In terms of Section 101, Evidence Act, 1872, ordinarily, the burden of proving the fact rests on the party who substantially asserts the affirmative of the issue and not on the party who denies it. The said rule may not be universal in its application and there may be exception thereto. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same."
30) In Narayan Govind Gavate etc. Vs. State of Maharashtra, 1977 (1) SCR 763, Hon'ble Supreme Court held as to how the result of evidence is to be determined as under:
106. In judging whether a general or particular or special onus has been discharged the Court will not only consider the 'direct effect of the oral and documentary evidence led but also what may be indirectly inferred because certain facts have been proved or not proved though easily capable of proof if they existed at all and such proof CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 24 of 42 of other facts may raise either, a presumption of law or fact. The party against which a presumption may operate can and must lead the evidence to show why the presumption should not be given effect to. If the party which initiates the proceeding or comes with a case to Court offers no evidence in support of it. The presumption is that such evidence does not exist and if some evidence is shown to exist on a question in issue but the party which has it within its power to produce it does not, despite notice to do so, produce it, the natural presumption is that it would, if produced, have gone against it. Similarly, a presumption arises from failure to discharge a special or 'particular onus. The doctrine of onus of proof becomes unimportant when there is sufficient evidence before the Court to enable it to reach a particular conclusion in favour of or against a party. The principle of onus of proof becomes important in cases of either paucity of evidence or where evidence given by two sides is so equivalenced that the Court is unable to hold where the truth lay."
31) Making the above principles applicable to the evidence it needs to be noted that since the defendant suffered the likely probability in failing to establish its defence, the defendant was duty bound to show substance in its allegations that bills were (a) inflated i.e. not in accordance with the work done by the plaintiff and (b) forged in connivance with its employee Adil Hanif.
32) While assessing the material placed through documents in conjunction with the statement of DW-1 presented orally, defendant has presented nothing else CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 25 of 42 except Ex. DW-1/1, an internal memo dated 28.03.2019. It is admitted that Ex. DW-1/1 was never served upon the plaintiff and is alleged to have been issued to Adil Hanif. The the contents of the memo are now noted herein below:
"Dear Adil, It's come to our notice that you are involved in some mischievous act with some contractors and passing their invoices on over value to pass them benefit. Please also note that Some Rijwan Ansari contractor assigned for Chipping and installation of Scaffolding is nothing but indirectly your company and you are managing his account and passing bills also.
This is final warning for you not to act like this and discontinue this agency as Rijwan Ansari is not performing work as required."
33) There is no material to show on record that at any stage plaintiff was informed and/ or warned of any of the acts alleged in the letter and the source as well as causes for such allegations, which came to the knowledge of the defendant, wherefrom any conclusion that the plaintiff proprietor firm is being run by Adil Hanif was drawn. No record of any meeting of minds to show any collusive act to create inflated bills to draw any advantage to either plaintiff or to Adil Hanif by sharing any amount of credit/payment/ release/ discharge or commission etc is cited. No record that Adil Hanif is running 'Rijwan Ansari' proprietor concern with the face of plaintiff is brought. No connection is established between the two. Further, even in cross-examination, no serious attempt is made to prove CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 26 of 42 that plaintiff was not the actual person running the business. There is no cross-examination to elicit that Adil Hanif is in any manner connected to plaintiff and has any access to any work done by plaintiff or controlling his labour, bills, accounts/ ledger or access to bank transactions etc. There is no context which is presented to connect the plaintiff with Adil Hanif in which scenario it is difficult to even draw any probability, least a substance in this allegation.
34) It is noted that merely exhibiting the document it cannot be taken as a proof as is held by Hon'ble Supreme Court in R. V. E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V. P. Temple and AR, Appeal (Civil) No. 10585 of 1996, DOD 08.10.2003, relevant paras as reproduced herein under:
"......................................................... ............................................................. Order 13 Rule 4 of the CPC provides for every document admitted in evidence in the suit being endorsed by or on behalf of the Court, which endorsement signed or initialed by the Judge amounts to admission of the document in evidence. An objection to the admissibility of the document should be raised before such endorsement is made and the Court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend the document being endorsed as admitted or not admitted in evidence. In the latter case, the document may be returned by the Court to the person from whose custody it was produced.
CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 27 of 42 Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered ................................ ......................................................"
35) Though the internal memo dated 28.03.2019 is exhibited as Ex. DW-1/1, no effort is made to call the author as witness to establish the background of contents of the memo. Even the receipt of service to Adil Hanif is not placed. No proof of its post is shown. While the letter itself is not addressed to plaintiff, DW-1 imputed the plaintiff for failing to acknowledge the receipt without assigning any explanation for such imputation. No Dak record which was the evidence under control of defendant itself is produced which rather provides an opportunity for drawing an inference against defendant. The plaintiff was not even confronted with above memo when he appeared as a witness. Again, there is no diary dispatch or proof of CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 28 of 42 service to show that the aforesaid act of indulgence as is alleged on behalf of Adil Hanif in connivance with plaintiff is even put to plaintiff at any stage, till he worked on site.
36) The defendant hence has miserably failed on above count to prove any co-relation, connect or even an iota of substance in allegation that plaintiff was "hand-in-glove"
with Adil Hanif or both were colluding and conniving with each other with intention to dupe the defendant by forging and/ or creating inflated bills.
37) While the defendant alleged that the bills were inflated, no effort is made towards clarifying or explaining the allegation. As the essence of meaning of word 'inflation' is captured below with the help of Cambridge Dictionary:
"To make a number or value higher or greater than it should be, or to make something seem more important than it really is."
38) Thus, the general understanding from the aforementioned definition reveals that an inflation is made when it is showing or carrying an artificially created valuation. Accordingly, the defendant was duty-bound to establish that the bills drawn at it are not carrying genuine valuation and false assessment and payment for work done is intended through them.
39) It is requisited at this stage to take note of the fact that defendant himself has confronted the plaintiff with CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 29 of 42 documents Ex. PW-1/D5 (colly) to Ex. PW-1/D8 (colly) i.e. the RA sheets. The RA sheets are the proof of measurement which is also a record of the work done by the plaintiff at site. The defendant after confronting the plaintiff with the revised RA bills/ sheets has put the bills issued consequent to each assessment at site of the work done on the basis of which the measurement are taken note of. The RA sheet is bearing the signature of plaintiff as well as the official deputed by the defendant. Since the documents are presented to the plaintiff by the defendant during the evidence, they are deemed to be admitted.
40) The defendant as a next step has confronted the plaintiff with bills Ex. PW-1/D1 to Ex. PW-1/D4 which are stated to be have been generated consequent to the RA bills. It can be safely assessed that since the bills are confronted to the plaintiff by the defendant, the bills are admitted by the defendant. The RA sheets Ex. PW-1/D5 (colly) to Ex. PW-1/D8 (colly) and bills Ex. PW-1/D1 to Ex. PW-1/D4 are thus, connected. The bills hence are admittedly issued on account of the measurements taken and approved by the defendant itself. There is no statement that the bills submitted by the plaintiff are not in accordance with the work performed as is inspected and supervised by the defendant, and/ or the bills are showing any deviation from the work and rate contract as agreed by parties. The defendant again confronted the plaintiff with the rate contract and rather made the plaintiff read the rates stated in the rate contract and other documents during the CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 30 of 42 evidence which are stated to be the same. In which background, rate contract Ex. PW-1/X1 is again admitted piece of evidence on which the RA sheets Ex. PW-1/D5 to Ex. PW-1/D8 and bills Ex. PW-1/D1 to Ex. PW-1/D4 are made.
41) In order to reach on a finding that the bills presented by the plaintiff were inflated, fabricated and/ or were forged, the defendant was duty bound to show that the bills were not in consonance with either agreed rate as per the rate contract, and/ or had been showing the excess evaluation than measured by the parties jointly in terms of the RA sheets Ex. PW-1/D5 (colly) to Ex. PW-1/D8 (colly) and/ or were finding valuation which was not in accordance with the work done and inspected. No such material has been brought on record to show any such deviation. In this background, there is no material available with the defendant to allege any manipulation in the bills which were rather admitted by the defendant during the written statement wherein in para 4 (a) of the written statement, the defendant stated as below:
"(a) The claim amount is over and above the billed amount and the Plaintiff has placed reliance upon a bogus bill which is duly denied in the affidavit of admission and denial. It is submitted that bill no. 43 dated 02.05.2019 to the tune of Rs. 7,34,777/-
(Rupess Seven Lac Thirty-Four Thousand Seven Hundred Seventy-Seven) is a bogus bill and was never issued nor any work against the said bill was ever done by the Plaintiff."
CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 31 of 42
42) Now coming to the question of the allegations pertaining to bill Ex. PW-1/E for an amount of Rs. 7,34,775/-. It is pertinent to take note of the fact that in the examination affidavit Ex. DW-1/A the defendant has challenged all the bills as in contrast to the bill Ex. PW- 1/E which alone was raised in dispute in written statement.
43) At first, it be observed that the defendant cannot by his own whims change the goal post at every stage and make the plaintiff follow the same. The fact admitted in the written statement cannot be permitted to be retracted or withdrawn as is a settled law and is more particularly held by Hon'ble Delhi High Court in Prakash Rattan Lal Vs. Mankey Ram, C.M. (Main) No. 976 of 2007 & C.M. Appl. No. 9885 of 2007, DOD 19.01.2010.
44) Again as what tantamounts to an admission and how an assertion of fact is to be treated as admission is explored by Hon'ble Gauhati High Court in Uttam Chand Kothari Vs. Gauri Shankar Jalan and ors, AIR 2007 Gau 20, as under:
"12. Before entering into the question as to whether the impugned order needs interference by this Court under Article 227, it is, to my mind, necessary to ascertain if there is any difference in the law between an 'express' and 'implied' admission made in a written statement and withdrawal thereof by way of amendment.
15. From a careful reading of Order VIII, Rules 3, 4 and 5, it clearly emerges that when an allegation of a fact, made in the CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 32 of 42 plaint, is not denied, in a written statement, specifically or by necessary implication or is not stated to have not been admitted, such a pleading will constitute an implied admission. In short, evasive denial or non- specific denial constitutes an implied admission in a judicial proceeding of civil nature. This does not, however, mean, I must hasten to add, that an implied admission must necessarily occur in a judicial proceeding, for, it is possible to make an implied admission, otherwise than in a judicial proceeding, in terms of the provisions of the Evidence Act. Whether there is an implied admission or not is, usually, a question of fact or may, in a given case, be a mixed question of fact and law. An express admission is one which is specifically made, either in a judicial proceeding or otherwise, in accordance with the provisions of the Evidence Act. However, in order to determine if an admission has been made in a written statement, the written statement has to be read as a whole.
22. Emphasising that the amendments, which aim at resiling from an express, admission, cannot be allowed, the Supreme Court, in Union of India v. Pramod Gupta, reported in (2005) 12 SCC 1 : (AIR 2005 SC 3708) at paragraph 134 at page 53 held thus (para 142 at p. 3736 of AIR):
"134. We do not agree. The pleadings before the trial Court are the basis for adduction of evidence either before the trial Court or before the appellate Court. By amending the memo of appeal the original pleadings cannot be amended."
CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 33 of 42
45) Further, in Lohia Properties (P) Ltd. Vs. Atmaram Kumar, (1993) 4 SCC 6, it is held by Hon'ble Supreme Court that admission once made cannot be retracted and the relevant paras as reproduced as under:
"15. Rule 5 provides that every allegation of fact in the plaint, if not denied in the written statement shall be taken to be admitted by the defendant. What this rule says is, that any allegation of fact must either be denied specifically or by a necessary implication or there should be at least a statement that the fact is not admitted. If the plea is not taken in that manner, then the allegation shall be taken to be admitted.
18. Certainly it is a case to which Order 8 Rule 5 was attracted. It is unnecessary to examine the question as to where a judicial admission could be permitted to be withdrawn or retracted."
46) It be further observed that the defendant cannot be permitted to make statement beyond pleadings as is held by Hon'ble Supreme Court in Harihar Prasad Singh and others Vs. Balmiki Prasad Singh and others, (1975) 1 SCC 212 and Hon'ble Delhi High Court in Prakash Rattan Lal Vs. Mankey Ram (supra) and the relevant part is reproduced herein under:
"4. The sole purpose of pleadings is to bind the parties to a stand. When the plaintiff makes certain allegations, the defendant is supposed to disclose his defence to each and every allegation specifically and state true facts to the court and once the facts are stated by both the parties, the court has to frame CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 34 of 42 issues and ask the parties to lead evidence. It is settled law that the parties can lead evidence limited to their pleadings and parties while leading evidence cannot travel beyond pleadings. If the parties are allowed to lead evidence beyond pleadings then the sacrosancy of pleadings comes to an end and the entire purpose of filing pleadings also stand defeated. The other purpose behind this is that no party can be taken by surprise and new facts cannot be brought through evidence which have not been stated by the defendant in the written statement. The law provides a procedure for amendment of the pleadings and if there are any new facts which the party wanted to bring on record, the party can amend pleadings, but without amendment of pleadings, a party cannot be allowed to lead evidence beyond pleadings.
5. I am supported in this view by judgments of Supreme Court in AIR (1975) 1 SCC 212; Harihar Prasad Singh & Ors. Vs. Balmiki Prasad Singh wherein the Supreme Court has held that evidence adduced cannot travel beyond the pleadings. In AIR (1987) 2 SCC 555; Ram Sarup Gupta by LRs Vs. Bishun Narain Inter College & Ors., the Supreme Court again reiterated that the evidence cannot travel beyond the pleadings."
47) In which background any assertion that all the bills submitted by the plaintiff are false is not tenable and the defence could be restricted only to the dispute raised pertaining to bill Ex. PW-1/E dated 02.05.2019 for an amount of Rs. 7,34,777/-. However, while the defendant alleged that the bill above was forged and manipulated, when the evidence is read in light of the discussion above, CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 35 of 42 no material as such to show that the bill was not in specification of either the rate contract Ex. PW-1/X1 or RA sheets, number of hours etc. is stated. No material is shown to establish an act of forgery or inflation. It is hence is to be read in context of facts presented immediately prior and after the time of raising of the bills.
48) The defendant failed to establish any context qua authenticity of bill dated 02.05.2019 with the internal memo Ex. DW-1/1 issued to its employee Adil Hanif on 28.03.2019. Apparently, the internal memo is stated to be sent to Adil Hanif much prior to the raising of bill dated 02.05.2019 by plaintiff for not taking any steps against plaintiff till the bill is question is intended to be resisted on above ground since knowledge to alleged acts of inflation was available to defendant as per its own admission.
49) The above fact becomes more dominant in conjunction with the dates of payment having been admittedly made by the plaintiff. Defendant paid an amount of Rs. 98,000/ on 16.08.2018, an amount of Rs. 5 lacs on 24.09.2018, Rs. 2.97 lacs on 03.11.2018, Rs. 4.95 lacs on 04.12.2018, Rs. 2.97 lacs on 14.02.2019, Rs. 1,48,500 on 25.03.2019 and again Rs. 1,48,500 on 05.09.2019.
50) It is noted that even after the alleged fact of forging and manipulating came to the knowledge of defendant, the defendant continued to make payments which is established from admitted payments made of Rs. 2.97 lacs CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 36 of 42 on 14.09.2019, Rs. 1,48,500/- on 25.03.2019 and Rs. 1,48,500/- on 05.09.2019.
51) The statement of defendant in above circumstance appear to be suffering from infirmity and improbability as it is unlikely that despite knowing the fact of manipulation in bills, no steps would be taken by defendant to counter the plaintiff.
52) Now coming to to deal with the submissions of no liability standing in favour of plaintiff for the reason of his giving deficient service and non-performing of assigned work for which it is claimed that defendant incurred extra expenses in hiring two contractors and paying them additionally.
53) Intriguingly enough the plaintiff worked at the contract site from the year 2017 till 2019 during which period defendant did not raise any cause qua the quality of work. As stated by DW-1 himself, the project was under
his supervision as he was the project in-charge. The facts that the measurement sheets Ex. PW-1/D5 to Ex. PW- 1/D8 were jointly made and major part of payment being discharged leads to assumption that the payments were released only consequent to being satisfied with the work. In order to establish an attempt to breach the above assumption, DW-1 claimed that complete assessment of quality of work was possible only after completion, however, no such evidence is brought on record to establish the above plea. The defendant though tried to rely upon Ex. DW-1/2 and Ex. DW-1/3, letters dated CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 37 of 42 07.05.2019 and dated 15.04.2019 written by Schindler Limited, no witness from Schindler was called to depose in furtherance. In this scenario, merely exhibition of letters would not tantamount to their being proved. It is required to be taken note that by avoiding to bring a witness, responsible for writing the contents tantamounts to defendant intending to deprive an opportunity of cross-
examination to plaintiff which again indicates that real facts were intended to be avoided from being brought on record. In which background read with the fact that defendant continued to make payments till September 2019 itself shows no depth in the above plea.
54) Further, even otherwise if the statement made by DW-1 is believed that deficiency of the work performed could have been known only at the time of installation of lift, it is apparent that the deviation in measurement or work was such, which could not be pointed out in the normal course of inspection, even to a technically sound person such as DW-1, appointed to look-after and supervise the site.
55) In such a case, neither the extent of deficiency of work, which is not established through evidence nor any dispute being raised to the said issue by even a slightest intimation or complaint, also suggests any probability in the defence raised to stop the bill of the plaintiff. Rather stopping the payment of even admitted bills suggests to the conduct of the defendant.
CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 38 of 42
56) As the defendant did not bring any material to either prove the forgery in the bills and specifically bill No. 43 dated 02.05.2019 amounting to Rs. 7,34,775/- and or any other bill prior thereto nor the defendant could establish the allegation of deficient work or overspending due to fault assignable to plaintiff, the defendant did not establish any part of its defence to oust the claim of plaintiff.
57) Coming to the averrments that plaintiff has failed to prove his case for the reason of not submitting the original bills, ledger and account etc., it is needless to say that a fact admitted need not be proved. In the given circumstances, where the defendant has already made major part of the payment, it is now estopped from claiming otherwise. The law of estopple is provided under Section 115 of Indian Evidence Act is brought in for reliance.
"115. Estopple.- When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceedings between himself and such person or his representative, to deny the truth of that thing."
58) As a conclusion at this stage, I may refer to observations made in Narain Govind Gavate (supra) to determine the manner in which the determination of trial is to be made:
CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 39 of 42 "(b) The result of a trial or proceeding is determined by a weighing of the totality of facts, circumstances and presumptions operating in favour of one party as against those which may tilt the balance in favour of another. Such weighment always takes place at the end of a trial or proceeding which cannot, for purposes of this final weighment be split up into disjointed and disconnected parts. What is weighed at the end is one totality against another and not 17--
1234SCI/76 764"
59) Having noted the above, it be observed that while plaintiff was requisited to prove his entitlement to claim the relief against work done by him at the instance of defendant, at Gwal Pahari, the defendant itself admitted the assignment through work order Ex. PW-1/X2, the fixation of rate through rate contract Ex. PW-1/X1 the measurement through RA sheets Ex. PW-1/D5 to Ex. PW-
1/D8 and the bills being raised in advance as Ex. PW-1/A to Ex. PW-1/D, the dispute qua the bill Ex. PW-1/E was raised by defendant and upon such resistance the onus shifted on defendant to prove that bill was inflated, however, no worthwhile material was brought to show that plaintiff has not worked at site against bill and/ or same was either inflated or forged. The additional pleas of deficient service and loss due to abandonment were also not established in which view plaintiff has proved the case in preponderance successfully.
CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 40 of 42
60) Accordingly, the claim of the plaintiff is decreed for an amount of Rs. 10,83,229/- alongwith interest @12% in terms of the provision of Section 34 of CPC with costs from the date of filing of the suit till realisation. The plaintiff is awarded cost on account of Court fees @ Rs. 13,150/- (Rs. 6,630 + Rs. 6,520). Counsel's fee @ Rs. 20,000/- is also accorded towards litigation expenses (as no separate fee certificate is filed) under Section 35 CPC.
61) Decree sheet be drawn separately.
62) File be consigned to Record Room after completion of necessary formalities.
Announced in open Court (Nirja Bhatia) today on 19th August, 2023 District Judge (Commercial Court -06) South-East, Saket Courts, New Delhi CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 41 of 42 CS (Comm) 250/2020 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. 19.08.2023 Present: Ld. Proxy Counsel for the plaintiff.
Ld. Proxy Counsel for the defendant.
Vide separate judgment announced in the open Court, the suit of the plaintiff is decreed.
File be consigned to Record Room after completion of necessary formalities.
(Nirja Bhatia) District Judge (Commercial Court-06) South-East, Saket Courts, Delhi ISB 19.08.2023 CS (COMM) 250/20 Rijwan Ansari Vs. Jasmine Buildmart Pvt. Ltd. Page no. 42 of 42