Delhi District Court
Komal Chauhan vs Ms. Harsh Arya on 30 May, 2015
IN THE COURT OF SH. GURVINDER PAL SINGH
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
C.S. No. 354/2007
Unique I. D. No. 02401C1202372007
Komal Chauhan,
Proprietor of M/s Chauhan Building Contractor,
B3/279, Sultanpuri,
Delhi110086.
......Plaintiff
Versus
1 Ms. Harsh Arya,
Principal, S.D. Public School,
Lal Mandir, East Patel Nagar,
New Delhi110008.
2 Sanatan Dharam Public School,
through its Manager,
Lal Mandir, East Patel Nagar,
New Delhi110008.
.......Defendants
CS354/2007
Komal Chauhan Vs. Ms. Harsha Arya & Anr. Page 1 of 25
SUIT FOR RECOVERY OF RS.6,28,000/ WITH INTEREST
Date of institution of suit : 29.11.2007
Date of conclusion of arguments : 19.05.2015
Date of pronouncement of judgment : 30.05.2015
JUDGMENT
1. Plaintiff alleging himself to be proprietor of M/s Chauhan Building Contractor, has filed this suit for recovery of Rs.6,28,000/ with interest from defendants. The factual matrix of the case is as follows. The defendants entered into an oral contract with plaintiff for construction of building of defendant school and renovation of old building of said school with materials on date 10.08.2004. The payment for the work done by plaintiff was to be made by defendants as per measurement of work done as per said oral agreement. Plaintiff continuously worked for construction of school building for the defendants as per their directions and requirements since January 2004 till September 2005 as per the agreement and up to the satisfaction of defendants. Accordingly, the defendants made the payment of work done by plaintiff through various cheques on various dates vide statement of CS354/2007 Komal Chauhan Vs. Ms. Harsha Arya & Anr. Page 2 of 25 account of defendants. Such cheques were bearing no. 172335, 172979, 172898, 172956, 172962, 173001, 173028, 173058, 173057, 173082, 173081, 173120, 173163, 173208, 173285, 197458 and 197507. Thereafter, boundary wall of school was demolished by M.C.D. The defendants again contacted plaintiff for reconstruction of the boundary wall of the defendant school and some other works in school building on the same terms and conditions. Plaintiff took up the civil work of defendants on 25.05.2006 for covered area at ground floor and at first floor vide diagram alongwith additional work at ground floor and proposed first floor building for canteen block and completed the same during period of 25.05.2006 to 24.06.2006, 01.10.2006 to 25.10.2006 and finally on 19.06.2006 to 21.06.2006 up to entire satisfaction of the defendants. After the measurement, bill no. 1 was raised for Rs.5,89,950/, payment due 70% i.e. Rs. 4,12,965/; bill no. 2 was raised of Rs.5,31,000/, payment due 30% i.e. Rs.1,59,300/; bill no. 3 of Rs. 21,000/ and hence total outstanding was Rs. 8740/ plus Rs. 3500/ plus Rs. 4,12,965/ of first bill plus Rs. 15,750/ plus Rs. 7000/ plus Rs. 1,59,300/ of second bill plus Rs. 3000/ plus Rs. 4200/ plus Rs. 9200/ plus Rs. 4600/ of third bill; total of these bills was Rs. 6,28,000/. Defendants did not make CS354/2007 Komal Chauhan Vs. Ms. Harsha Arya & Anr. Page 3 of 25 the outstanding payment of Rs.6,28,000/ to the plaintiff even after bills no. 1, 2 and 3 with measurement of work done were submitted by plaintiff. Defendants assured that the outstanding payment would be made after some time. Believing on defendant's assurance, plaintiff did not insist, although he had incurred huge amount for work of the defendants. Due to withholding of payable sum of plaintiff, plaintiff suffered great loss of income, so he claimed interest @ 24% per annum. Plaintiff also averred of having suffered by hiring shuttering materials on hire from M/s D.R. Timber Traders, Village Pitampura Market, New Delhi110034 vide bills dated 01.12.2004, 16.12.2004, 01.01.2005 and 16.01.2005, thereby 100 ballies, 300 fattes, 20 pallu, 5 tasla, 3 kasi, 2 ghan (iron), which were lying under the custody of defendants for which defendants were liable to pay hire @ 200/ per day since 25.05.2006 till releasing the same. Plaintiff further stored cement 100 bags by purchasing the same from Shikha Sales Corporation, A13, Krishan Vihar, Delhi, out of which 80 bags of cement were lying in possession of defendants alongwith half truck Rodi, half truck Badarpur, one truck sand, 2 ½ Quintal sariya (iron), 8 frame, 8 irons, for which plaintiff was entitled to claim with interest on principal value. Plaintiff served a legal CS354/2007 Komal Chauhan Vs. Ms. Harsha Arya & Anr. Page 4 of 25 demand notice dated 26.02.2007, served upon defendants on 28.02.2007 and defendant sent reply, which was neither proper nor satisfactory nor outstanding payments were made by defendants. Resultant had been this suit.
2. Defendants on appearance after service filed written statement containing preliminary objections viz. (i) no document has been placed by plaintiff in support of his claim; (ii) the submitted documents are manipulated and fabricated; (iii) the estimate of plaintiff is undated and no such approval was taken by the plaintiff; (iv) no work was carried out by the plaintiff for which he is claiming recovery from defendants; (v) the filed documents pertain to transaction of M/s D.R. Timber Traders and plaintiff and there is no privity of contract between plaintiff and M/s D.R. Timber Traders; (vi) no document is filed on record showing construction carried out by plaintiff nor same was measured in presence of any of the representatives of defendants nor the same was accepted by the defendants; (vii) the bills/invoices raised by the plaintiff were fabricated/manipulated and fictitious; (viii) since no building was constructed, defendants were not liable to make any CS354/2007 Komal Chauhan Vs. Ms. Harsha Arya & Anr. Page 5 of 25 payment; (ix) plaint was lacking cause of action; and (x) plaint was false, frivolous, misconceived, concocted and based on wrong, incorrect facts and fabricated documents and is devoid of any merit. Also was submitted by defendants that no documents filed by plaintiff had any signatures of defendants or their representatives for either placing any order for any work to be done in defendant school or any work actually having been done in defendant school nor any estimate of work done had been submitted by plaintiff with any of defendants containing any acknowledgment of defendants nor any measurement was taken in presence of any of defendants or their representatives in respect of any construction carried out by plaintiff nor the same had been accepted by any of the defendants. It was also submitted by defendants that bill no. 3739 filed by plaintiff on record was of date 16.01.2005, whereas bill no. 3900 filed by plaintiff on record was of date 16.12.2004 and the numbers of these bills clearly depict of the bills to be fabricated/manipulated since afore elicited later bill of date 16.01.2005 is having number 3739 prior to bill dated 16.12.2004 having number 3900. Also was submitted that the suit had been filed by plaintiff with sole object of harassing, humiliating and to extort money from defendants. It was further stated by answering CS354/2007 Komal Chauhan Vs. Ms. Harsha Arya & Anr. Page 6 of 25 defendants that whenever work was done by the plaintiff, plaintiff was duly paid and there was no outstanding on any account, whatsoever, against the answering defendants for which the claim had been filed by the plaintiff. Answering defendants have prayed for dismissal of the suit with compensatory and exemplary costs.
3. Plaintiff filed replication to the written statement of the defendants to controvert the contentions of the written statement and to reiterate the averments of the plaint.
4. From the pleadings of the parties, following issues were framed by my Ld. Predecessor vide order dated 05.11.2008 :
1)Whether the plaint is liable to be rejected for want of cause of action? OPD
2)Whether the plaintiff is entitled for a decree for a sum of Rs.6,28,000/ ? OPP
3)Whether the plaintiff is entitled for pendentelite and future interest on decree amount? If so, at what rate? OPP CS354/2007 Komal Chauhan Vs. Ms. Harsha Arya & Anr. Page 7 of 25
4)Relief.
5. In evidence plaintiff has examined himself as PW1 vide affidavit Ex PW1/P1; Sh.Chander Pal, mason as PW2 vide affidavit Ex PW2/1; and Sh. Ram Chander, mason as PW3 vide affidavit Ex PW3/A. PW1 relied upon documents i.e. (i) cash memos of D.R. Timber Traders exhibited as Ex PW1/7 to Ex PW1/10; (ii) cash memo no. 683 exhibited as Ex PW1/11; (iii) legal notice dated 26.02.2007 alongwith two postal receipts, one postal certificate, two AD Card, one registered envelop exhibited as Ex PW1/12 to Ex PW1/19, respectively. All the PWs were crossexamined.
6. Sh. Jagdish Lal Anand, Manager of S.D. Public School/defendant has been examined as DW1 vide affidavit Ex DW1/A. DW1 was crossexamined.
7. On 05.03.2015, defendant's evidence was closed and matter was fixed for 31.03.2015 for final arguments. On 31.03.2015 final CS354/2007 Komal Chauhan Vs. Ms. Harsha Arya & Anr. Page 8 of 25 arguments were addressed by counsel for defendant, whereas counsel for plaintiff was not available due to death in neighbourhood and matter was adjourned for arguments to be addressed in oral or in writing by/or on behalf of plaintiff on or before 09.04.2015 and date 28.04.2015 was fixed for orders. Even on 09.04.2015, plaintiff again submitted of non availability of his counsel and he himself submitted. Again two working days time was given to plaintiff for filing written arguments, if any, with the copy for opposite side. Nothing of the sort was done. Application under Section 151 CPC dated 18.04.2015 was left by Counsel for plaintiff in the petition box of the Court of Ld. District Judge (Central), which was sent to this court vide order dated 18.04.2015 at 4.15 PM of Ld. District Judge (Central) for 20.04.2015. On 20.04.2015, Sh. B.L. Gupta, Advocate appeared and sought to file written arguments on behalf of plaintiff with fresh power of attorney, but had not provided copy of written arguments to opposite party/counsel. Sh. B.L. Gupta, Advocate submitted that he would supply the copy of written arguments to opposite party/counsel. Again at 3.00 PM on 20.04.2015, Sh. B.L. Gupta, Advocate appeared and filed his affidavit with mention of refusal to receive copy of written arguments with list of citation by Sh. N.K. CS354/2007 Komal Chauhan Vs. Ms. Harsha Arya & Anr. Page 9 of 25 Kapoor, defendant's counsel on being tendered to him by the deponent/plaintiff's counsel and had placed on record with index written arguments, affidavit, list of documents and list of citation. Notice was again issued to defendants through counsel for 22.04.2015, which was received back unserved. Again on 22.04.2015, notice was issued to defendants and counsel for 24.04.2015. Notice was served on defendant school in terms of order dated 22.04.2015 and in the copy of notice, received back, there was mention by the receiving official of defendant school that Sh. Subhash Anand (earlier arraigned as defendant no1) had expired month back. Other defendants/counsel were directed to file copy of death certificate of said Sh. Subhash Anand within a week. Plaintiff was given opportunity to take appropriate steps. On 29.04.2015, copy of death certificate of Sh. Subhash Anand (earlier arraigned as defendant no1) was filed by Ld. Counsel for defendant. Plaintiff through Counsel moved application under Order XXII Rule 4/4 (A) read with Section 151 CPC for substitution of present Manager in place of deceased Sh. Subhash Anand (earlier arraigned as defendant no1). On 14.05.2015, Ld. Counsel for plaintiff withdrew aforesaid application under Order XXII Rule 4/4 (A) read with Section 151 CPC by giving statement to that CS354/2007 Komal Chauhan Vs. Ms. Harsha Arya & Anr. Page 10 of 25 effect submitting that since Sanatan Dharam Public School was already arraigned as defendant, plaintiff/defendant does not wish to bring on record any legal representative of deceased Sh. Subhash Anand and prayed for deletion of name of Sh. Subhash Anand from array of parties and accordingly said application of plaintiff was dismissed as withdrawn and plaintiff was permitted to delete the name of Sh. Subhash Chand (earlier arraigned as defendant no1) from array of parties. Amended memo of parties was filed by plaintiff on 14.05.2015.
8. I have heard arguments addressed by Sh. B.L. Gupta, Ld. counsel for plaintiff, Sh. N.K. Kapoor, Ld. counsel for defendants and have given thoughts to the rival contentions put forth, pleadings of the parties, evidence, relied precedents, written arguments of plaintiff through counsel and have also examined the record of the case.
9. Ld. Counsel for plaintiff argued that the plaintiff duly proved his version, which was not rebutted by defendant. Also was argued that the contents of paras1, 2, 3, 4, 5, 8 and 9 of plaint have not been specifically denied by defendant which amounts to admission under CS354/2007 Komal Chauhan Vs. Ms. Harsha Arya & Anr. Page 11 of 25 Order VIII Rules 3 & 5 of CPC, so facts contained in said paras need not be proved. Also was argued that legal notice dated 26.02.2007 was issued by plaintiff and served upon defendants but its contents were not denied and since the sum payable to plaintiff was not paid, plaintiff was entitled for decree of the sum claimed. Also was argued that DW1 Sh. Jagdish Lal Anand did not produce any authorization or resolution by defendant school so his affidavit Ex DW1/A had no value in the eyes of law. Ld. counsel for plaintiff has placed reliance upon :
1) Hari Singh & Ors. Vs. Dharam Singh & Anr., AIR 1980 Delhi 316;
2) State of Madhya Pradesh Vs. Sardarmal, AIR 1987 MP 156;
3) Sushil Kumar Vs. Rakesh Kumar, (2003) 8 SCC 673;
4) Ram Singh & Ors. Vs. Ram Singh, AIR 1986 SC 3;
5) South India Corporation (Agencies) Private Ltd. Madras Vs. State Trading Corporation of India Ltd., Cochin, AIR 1970 Kerala 138 (V 57 C 24);
6) Azgor Ali & Ors. Vs Reazuddin Miah & Ors., AIR 1989 Gauhati 74;
CS354/2007 Komal Chauhan Vs. Ms. Harsha Arya & Anr. Page 12 of 25
7) Maganbhai Chhotubhai Patel Vs. Maniben, AIR 1985 Gujrat, 187;
8) Bharat Fire & General Insurance Ltd. Vs. Parameshwari Prasad Gupta, AIR 1968 Delhi, 68 (V 55 C 18);
9) Mohammed Sab Wallad Gafar Sab Vs. Abdul Gani Wallad Mohammed Hayath & Ors., AIR 1985 Karnataka 177;
10) Municipal Corporation Vs. S.N. Gupta, 1977 RLR 470
11) K.A. Louiz & Ors. Vs. A.A. Augustin, AIR 2005 Kerala 1; and
12) Ashok Kumar Vs. Usha Rani Kad, 26 (1984) DLT 398
10. In the course of final arguments, Ld. counsel for defendant argued in terms of the pleadings. Ld. Counsel for defendant submitted that neither any work was entrusted by the defendant upon the plaintiff with respect to the claim made by plaintiff nor plaintiff had done any such work for which he is seeking recovery of sum in the plaint nor is there any document by which plaintiff could prove in plaintiff evidence that either any order of work of construction/renovation was placed upon CS354/2007 Komal Chauhan Vs. Ms. Harsha Arya & Anr. Page 13 of 25 plaintiff contractor or was carried out by him or any bill/estimate was served upon by plaintiff to any of defendants or any of defendants had either acknowledged the work or the terms of the work or the amounts in part or in toto, claimed by plaintiff from the defendants. Ld. Counsel for defendants argued for dismissal of the suit.
11. My issue wise findings are as under : Findings on Issues No(1) & (2)
1)Whether the plaint is liable to be rejected for want of cause of action? OPD
2)Whether the plaintiff is entitled for a decree for a sum of Rs.6,28,000/ ? OPP Plaintiff averred in the plaint of having entered into oral contract on date 10.08.2004 with defendants for construction and renovation of old building of defendant school with materials and the payment for the work done by the plaintiff was to be made by defendants as per measurement of work done as per said oral agreement. In para2 CS354/2007 Komal Chauhan Vs. Ms. Harsha Arya & Anr. Page 14 of 25 of plaint, it is averred by plaintiff that he continuously worked for construction of school building for defendants as per their directions and requirement since January 2004 till September 2005 as per the agreement and upto the satisfaction of the defendants for which he received even payments vide cheques vide statement of account of defendants. Accordingly as elicited above, pleadings of plaintiff are self contradictory, since in para1 of plaint he avers of the oral contract to be of date 10.08.2004 but in para2 of the plaint he submits of continuously working as per said agreement since January 2004. Entire plaint finds no whisper about the terms of such oral contract i.e., (i) specific nature of the work entrusted to plaintiff to be done in defendant school; (ii) what materials plaintiff was to use; (iii) the period in which specified work was to be done; (iv) specified quality of the materials to be used; (v) specified rates of the materials as well as of the labour. It is own version of plaintiff PW1 that the payment for work done by the plaintiff was to be made by the defendants as per measurement of work done. Plaintiff in affidavit Ex PW1/P1 reiterated the averments of the plaint but in the entire led evidence there is no document proved by plaintiff with respect of acknowledgment of satisfaction of defendants for work done by plaintiff CS354/2007 Komal Chauhan Vs. Ms. Harsha Arya & Anr. Page 15 of 25 or in fact any work done by plaintiff at all or receipt of any invoices/bills by defendants with regards to any of the works done by plaintiff on whose premise the claim in the suit rested upon. Before my Ld. Predecessor when affidavit Ex PW1/P1 was tendered in the examination inchief of PW1 i.e. plaintiff, it was observed by my Ld. Predecessor on 23.05.2009 that documents given exhibit in affidavit were not followed and that Ex PW1/7 to Ex PW1/10 were cash memos of D.R. Timber Traders; Ex PW1/11 was cash memo no. 683 of Sikha Sales Corporation; Ex PW1/12 to Ex PW1/19 were legal notice, postal receipts, postal certificate, AD Card, registered envelop. It was also observed in the examination in chief on 23.05.2009 by my Ld. Predecessor that rest of the documents were the copies, which were marked from Mark1 to Mark9 and MarkA to MarkS i.e., Mark1 to Mark3 were copies of bills of Chauhan Building Contractor; Mark4 was copy of statement of account; Mark9 was copy of reply of notice of defendant; Mark7 (colly 3 pages) was copy of estimated cost; and Mark8 was copy of diagram. The copies of the cheques were MarkA to MarkS. The originals of the documents given Mark1 to Mark8 and MarkA to S were neither produced nor requisitioned nor summoned to CS354/2007 Komal Chauhan Vs. Ms. Harsha Arya & Anr. Page 16 of 25 prove them.
12. Order VI Rule 2 of CPC provides of every pleading to contain a statement in a concise form of the material facts on which the party pleading relies for his claim. It has been made vivid and clear in discussions herein above that the pleadings of the plaintiff in the suit do not contain the material facts with respect to the elicited terms of the contract and the pleadings of the plaintiff are accordingly devoid of material and relevant particulars to that effect. None of the other two plaintiff witnesses amongst PW2 and PW3, the masons working under plaintiff/PW1 could elicit any terms of the alleged oral contract entered inter se parties to the suit as alleged by the plaintiff/PW1. What was the work specified to be done by plaintiff on directions of defendant school through Manager/Authorized Representative of the school and the terms of such work to be performed and the period in which the specified work was to be performed, have not been testified by PW2 or PW3.
13. In affidavit Ex PW2/1, it is own version of PW2 Sh. Chander Pal, mason that since January 2004 till September 2005 when CS354/2007 Komal Chauhan Vs. Ms. Harsha Arya & Anr. Page 17 of 25 the plaintiff had allegedly got done the construction work of school building of defendants, in such period he (PW2) was on other site of plaintiff at Punjabi Bagh, Delhi and regarding the fact of work done at the site of school building of defendants, it was told to PW2 by plaintiff. Per se, such version of PW2 is hear say and being hit by Section 60 of Indian Evidence Act is inadmissible in evidence. PW2 further deposed in Ex PW2/1 that plaintiff took up work of defendants on 25.05.2006 for common area at ground floor and first floor for civil work construction and completed the same during period of 25.05.2006 to 24.06.2006 to the satisfaction of defendants after which measurement bills were raised by plaintiff and produced before defendants for their payment. Though, in affidavit Ex PW2/1, there is mention of a site plan purported to be exhibited as Ex PW2/A but in the examination of PW2 done before my Ld. Predecessor on 22.04.2014, neither there is any mention of any site plan afore mentioned as Ex PW2/A in affidavit Ex PW2/1 nor such plan has been proved on record. Even, there is no document proved on record of any work order of defendant school completed by plaintiff having any signatures of defendants or any representative of defendant school with respect to the satisfaction of work or any measurement of works or bills CS354/2007 Komal Chauhan Vs. Ms. Harsha Arya & Anr. Page 18 of 25 raised upon it. In crossexamination, PW2 candidly admitted that he did not have any document to show that he had worked in the school premises as alleged by him. PW2 elicited that the attendance register must be with the contractor i.e. plaintiff. No such attendance register embodying signatures of either PW2 mason or PW3 mason, retained by plaintiff/contractor (PW1) has been placed on record nor proved. Plaintiff has withheld the best available evidence with him in form of attendance register containing signatures of masons PW2 and PW3 for proving of any work done by either PW2 or PW3 as masons with PW1. So, there is no option but to presume the existence of fact that had such attendance register been produced by plaintiff/PW1 containing signatures of PW2 and PW3 masons for their work done with him, then it would have been unfavourable to plaintiff/PW1, who withheld it, in terms of illustration (g) of Section 114 of Evidence Act.
14. PW3, mason, in his crossexamination made vivid and clear of having no personal knowledge of the dealings between plaintiff and defendants. PW3 also elicited that he could not tell accordingly as to how much amount was due, payable by defendants to plaintiff and elicited CS354/2007 Komal Chauhan Vs. Ms. Harsha Arya & Anr. Page 19 of 25 that he was employed by plaintiff as mason orally and had come to testify at instance of plaintiff. PW3 also elicited that he had no special qualification to work as mason having learnt the work of mason privately. By elicited deposition of PW3 in crossexamination, the facts narrated in affidavit Ex PW3/A with regard to the rates, quantity of the building materials or hire charges with respect to shuttering materials pale into insignificance as it is candid admission of PW3 to have come to testify at instance of plaintiff.
15. True that vague or evasive reply of the defendant cannot be considered to be a denial of fact(s) alleged by plaintiff and it is the law laid down by the Supreme Court in cases of (i) Mahendra Manilal Nanavati Vs. Sushila Mahindra Nanavati, AIR 1965 SC 364; and
(ii) Nagin Das Ram Das Vs. Dalpatram Ichharam (1974) 1 SCC 242 :
AIR 1974 SC 471 that admissions in pleadings are binding but in the case of Mahendra Manilal Nanavati (supra) it was also held that admission in the pleading must be taken as a whole. The entire tone and tenor of the written statement of defendant when read as a whole, makes it crystal clear of clear and specific denial of any work done by plaintiff with CS354/2007 Komal Chauhan Vs. Ms. Harsha Arya & Anr. Page 20 of 25 respect to which he had sought the decree in the suit for the specified sums. Even, in respective paragraphs 3 to 5, 8 and 9 of the reply on merits in the written statement, there is clear mention of specific denial of each and every allegation made in the corresponding para of the plaint. Admissions of defendant cannot be carved out of the blue. Photocopies of the cheques MarkA to MarkS stand not proved for non production/nonrequisition of their originals in the course of evidence of PW1. Copy of statement of account Mark4, does not bear any signatures of any Authorized Representative/Manager of defendant school nor its original has been filed, so Mark4 stands not proved. Ex PW1/7 to Ex PW1/10, the cash/credit memos of M/s D.R. Timber Traders are in the name of "Komal Thekedar" i.e. plaintiff with further mention of S.D. Public School, Patel Nagar but do not find any signatures of any Authorized Representative/Manager of defendant school for any receipt of shuttering material on hire. Even amongst them, Ex PW1/8 of date 16.12.2004 bears number 3900 while Ex PW1/9 of date 01.01.2005 bears number 3720. Cash/credit memos used by any supplier are in seriation in a financial year w.e.f. 1st April ending with 31st March of next year. Eyebrows are raised when the cash/credit memo of same CS354/2007 Komal Chauhan Vs. Ms. Harsha Arya & Anr. Page 21 of 25 supplier/trader issued a fortnight later bears serial number which is prior to the serial number of the issued cash/credit memo earlier, as elicited above. Neither proprietor of D.R. Timber Traders, who issued said cash/credit memos Ex PW1/7 to Ex PW1/10 has been brought in witness box by plaintiff in corroboration of his version of having received shuttering material on hire nor there is any privity of contract with respect to the shuttering material on hire having been received by the defendant school on its supply. Similarly, with respect to the 100 cement bags, detailed in Ex PW1/11 there is no privity of contract by the seller and defendant school since it does not bear any signatures of Authorized Representative of defendant school. Even, Ex PW1/11 bears the name of S.D. Public School to be the purchaser and not the plaintiff. Remaining photocopies of documents from Mark1 to Mark8 stand not proved for want of production of their original and they also lack signatures of any Authorized Representative/Manager of the school. Consequent upon receipt of legal notice Ex PW1/12 dated 26.02.2007, it is own admitted case of the plaintiff that Sh. Subhash Anand (now deceased, earlier arraigned as defendant no1) had sent reply Mark9 to Counsel for plaintiff with respect to the legal demand notice dated 26.02.2007, CS354/2007 Komal Chauhan Vs. Ms. Harsha Arya & Anr. Page 22 of 25 received on 03.03.2007, requesting Counsel for plaintiff to furnish following information so as to answer the demands made in notice dated 03.03.2007 : " (i) ID Proof of Mr. Komal Chauhan
(i) PAN Number of Mr. Komal Chauhan
(ii) Tan Number
(iii) Last 10 yrs. Income Tax returns
(iv) Details Cash/Cheque received from S.D. Public School since last 10 yrs.
(v) Copy of contract of work done in S.D. Public School since last 10 years
(vi) Copy of contract of work done in S.D. Public School, East Patel Ngr.
(vii) Actual Contract amount settled, amount received and Balance left.
(viii) Whether the bills for the whole amount submitted to school office. Please attach a copy of it.
(ix) Whether the school administrator is satisfied with the work. Work Completion Report.
(x) Name the person with whom you have made the contract/who are authorized for your payment/who have issued you cheques of payment."
Instead of complying by furnishing the desired information, plaintiff filed the suit unnecessarily. Nowhere from Mark9 it can be CS354/2007 Komal Chauhan Vs. Ms. Harsha Arya & Anr. Page 23 of 25 construed that there was any admission on the part of the defendants/ defendant school for demands raised in the legal notice Ex PW1/12. Plaintiff was required to furnish clarificatory information which could have formed basis of settlement of his dues, if any. Be that as it may, fact remains that by entire led plaintiff evidence, plaintiff has miserably failed to prove to be entitled for any sum claimed or there existing any cause of action in his favour. Precedents relied upon by Ld. Counsel for plaintiff are of no help to the plaintiff accordingly. Issues no1 and 2 are accordingly decided in favour of the defendants and against the plaintiff.
Findings on Issue No(3) Whether the plaintiff is entitled for pendentelite and future interest on decree amount? If so, at what rate? OPP
16. In view of my findings on issues no1 and 2 above, since plaintiff is not entitled for any sum claimed, plaintiff is not entitled for any interest. Issue no3 is decided in favour of defendants and against the plaintiff.
CS354/2007 Komal Chauhan Vs. Ms. Harsha Arya & Anr. Page 24 of 25 RELIEF
17. In view of findings of Issues no. 1 to 3 above, the suit of the plaintiff is dismissed with costs. Decree sheet be prepared accordingly and file be consigned to record room.
Announced in open Court on 30th Day of May, 2015.
(GURVINDER PAL SINGH)
Addl. Distt. Judge(Central)01,
(AD) Tis Hazari Courts, Delhi.
CS354/2007
Komal Chauhan Vs. Ms. Harsha Arya & Anr. Page 25 of 25