Delhi District Court
Ms. Mithlesh Sharma vs Sh. Rakesh Kumar on 12 February, 2015
IN THE COURT OF NAVEEN K. KASHYAP,
COMERCIAL CIVIL JUDGE-CUM - ADDITIONAL RENT
CONTROLLER, WEST DISTRICT, TIS HAZARI COURTS
COMPLEX , DELHI.
Suit no: 27/2011
Ms. Mithlesh Sharma
Wife of Late Sh. Madan Lal Sharma
R/o 1305, Gali No. 89,
Ganesh Pura, Tri Nagar,
Delhi-110035. ... Plaintiff
Versus
Sh. Rakesh Kumar
T-39, Karam Pura,
New Delhi-110015. ... Defendant
Date of Institution : 24/01/2011
Date of pronouncing judgment : 12.02.2015.
Decision : Suit Dismissed
SUIT FOR RECOVERY OF RS.1,20,000/- WITH INTEREST @ 24%
PER ANNUM
JUDGMENT
1.This is a suit for recovery of money of Rs. 1,20,000/- along with interest @ 24% per annum.
2.As per the case of plaintiff, plaintiff and defendant entered into an agreement dated 01/02/2010 wherein the defendant agreed to construct the two room set with latrine, bathroom and kitchen on the fourth floor of her house bearing no. 1305, Gali no. 89, Ganesh Pura, Tri Nagar, Delhi-35 and to demolish the extra kitchen and to convert the same in bathroom, fixing the tiles and other repairing work with all S No. 27/2011. Ms. Mithlesh Sharma vs. Rakesh Kapoor 1 of 9 finishing of wood doors, steel windows and electrical wiring, fitting, plumbing work and stone polishing with finishing etc. within two months after the date of starting the work. And for this a sum of Rs. 2,70,000/-, was agreed as construction charges with material. It is further submitted that the plaintiff paid Rs. 50,000/- in cash in advance and Rs. 50,000/- was again paid to the defendant after starting of the work. But it is alleged that after constructing wall measuring 20X12X5 the defendant stop the work.
It is further submitted that despite several requests, the defendant failed to complete the work on one pretext or other even after taking extra time. And the same was not completed even after the expiry of two months as agreed.
As a result the defendant forced the plaintiff to engage another Contractor for completion of work for which she has to pay Rs. 20,000/- to such other contractor. It is further alleged that defendant wants to misappropriate Rs. 1,00,000/- of the plaintiff. It is further stated that plaintiff even made a complaint to police post, Shanti Nagar, Tri Nagar, Delhi-35 against the defendant. Further, the defendant even issued a legal notice dated 21/12/2010 to the defendant to return Rs. 1,00,000/- plus Rs. 20,000/- as damages along with interest @ 24 % per annum. It is further alleged that despite service of legal notice, the defendant neither replied to the same nor complied with the terms of such notice till date. Further, the plaintiff relied on certain documents and filed the present suit.
3. The defendant filed his W.S. dated 19/07/2011 and contest the present suit. As per the defendant's claim, the plaintiff has not come to the court with clean hands before the court and has suppressed S No. 27/2011. Ms. Mithlesh Sharma vs. Rakesh Kapoor 2 of 9 material facts. It is further stated that plaintiff was served with notice dated 10/02/2010, U/s 344 (2) of the DMC Act in respect of unauthorised construction of the property in question. It is further stated that as per the agreement in question dated 01/02/2010, the defendant constructed the fourth floor. But plaintiff got constructed the same without any permission or sanction plan from MCD. It is further alleged that as such MCD booked the construction under unauthorised category and subsequently demolished the same as per information received by the defendant.
It is further alleged that instead of clearing the dues of the defendant, the plaintiff has filed the present vague and baseless suit. The defendant did not deny entering into the construction agreement dated 01/02/2010. But it is stated by defendant that he executed the work assigned as per agreement. But it is claimed that the same is demolished by MCD and defendant cannot do anything for the same. Further, the defendant submitted that he executed the work strictly in accordance with the work and after raising construction work of walls, laid the roofs thereof (lantern) and continued working. But it is further submitted that when he was carrying out finishing work, the MCD booked the premises of plaintiff for unauthorised construction and subsequently demolished the same.
Further, the defendant denied other allegations on merit made in the present plaint.
4. Thereafter the plaintiff filed a rejoinder dated 16/12/2011 in which he denied the allegations made by defendant in W.S. and reaffirmed the stand taken by the plaintiff originally.
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5. Vide order dated 09/01/2012, on the basis of the pleadings of the parties the following issue were framed in this case:
1. whether the suit is barred for cause of action? OPD
2. Whether the plaintiff is entitled to recovery suit amount ? OPP.
3. Relief .
6. In order to prove her case, the plaintiff examined herself as PW-1. She further got examined Sh. Rakesh Kumar, her son in law as PW-2. Both such witnesses deposed on the lines of the plaint and both of them were cross examined by the Ld. Counsel for the defendant.
7. Thereafter matter was fixed for defendant's evidence. Defendant examined himself as DW-1. As DW-1, he repeated his stand taken in the W.S. Further, he got examined one Sh. Jagdish Chander as DW-2 in support of his case. Such DW-2 is a person who accompanied the defendant during construction. Further, one Sh. Harish Kumar, Record Keeper from Building Department of MCD was also summoned as witness by the defendant and he was examined in court. All these witnesses were cross-examined by the Ld. Counsel for plaintiff.
8. Thereafter, matter was fixed for final arguments and final arguments were addressed in detail. Further, both the sides filed their written submissions / arguments also.
9. I have given due consideration to the contentions and carefully perused the record. My issue-wise findings are as follows:
S No. 27/2011. Ms. Mithlesh Sharma vs. Rakesh Kapoor 4 of 9 ISSUE No-1:
Whether the suit is barred for cause of action? OPD
10. The onus to prove this issue was on the defendant and to discharge his proof, he examined himself as DW-1 and his worker/brother as DW-2. He further summoned the witness from the MCD from the office of Assistant Engineer (building ), Rohini Zone Sector -5, Delhi and examined him as DW-3.
11. In this case, the defendant is fair enough and admitted that he entered into contract in question Ex. PW-1/1 for the construction in the plaintiff's premises on the fourth floor. Further, it is deposed by the defendant no. 1 that plaintiff was served with notice dated 10/02/2010 U/s 344 (2) of the DMC Act in respect of unauthorised construction of the property in question. It is further deposed that as per the agreement in question dated 01/02/2010, the defendant constructed the fourth floor. But plaintiff got constructed the same without any permission or sanction plan from MCD. It is further deposed that as such MCD booked the construction under unauthorised category and subsequently demolished the same as per information received by the defendant. He further deposed that he executed the work strictly in accordance with the work and after raising construction work of walls, laid the roofs thereof (lantern) and continued working. But it is deposed that when he was carrying out finishing work, the MCD booked the premises of plaintiff for unauthorised construction and subsequently demolished the same.
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12. The defence taken by the DW-1/defendant is supported by the independent witness from MCD/DW-3. DW-3 deposed about the fact that a notice was issued from the MCD regarding the suit property and copy of such notice is placed on record as marked A by him.
13. Not only that in the suit the stand of plaintiff is that defendant intentionally did not complete the construction and there was no issue of intervention by the MCD building department because of lack of sanction plan regarding such construction, but even the plaintiff/PW-1 herself admitted during her cross examination that it is the MCD and the police who stopped the construction work in the suit property. PW-1/plaintiff further admitted during her cross examination that MCD carried out the demolition work for unauthorised construction. She further admitted that she did not tell these facts to his counsel while filing the suit or drafting her evidence by way of affidavit.
14. Not only that, during the cross-examination of DW-1/defendant, a suggestion was put by the plaintiff side itself (which was denied by the DW-1) that plaintiff received the notice of demolishing the construction while the construction was going on, therefore, he did not construct further. Further, a suggestion was put to DW-1 (which was denied by DW-1) that notice from the MCD marked A was got issued by defendant/ DW-1 in connivance with the MCD.
Thus, in any case, it can be inferred that plaintiff herself admitted that she had received the notice marked A from the MCD.
15. Therefore, it is clear that the plaintiff suppressed the material fact S No. 27/2011. Ms. Mithlesh Sharma vs. Rakesh Kapoor 6 of 9 that while the defendant/contractor was carrying on the construction in the suit property at the instance of plaintiff, the same was demolished for want of building sanction plan from the MCD.
16. It is a basic law that object of an agreement has to be lawful and it cannot be against the law. Therefore, we have to see whether the object of the agreement of construction Ex. PW-1/1 in question was lawful or whether it was not against the law. In this regard it is noted that as per the MCD Act, no construction of the nature and extent as mentioned in agreement Ex. PW-1/1 is allowed without obtaining prior sanction from the MCD. And on the basis of evidence on record it is proved by defendant that construction was ordered by the plaintiff without such sanction plan at all. Therefore, this court concludes that the object (i.e the construction in the suit premises) of agreement in question Ex. PW-1/1 was against the law. Therefore, no cause of action can arise in favour of plaintiff and against the defendant based on such agreement whose object is against the law. And as such same cannot be enforced through the court of law. As a result, it is held that defendant has proved this issue No. 1.
ISSUE No. 2:
Whether the plaintiff is entitled to recovery suit amount ? OPP.
17. Onus to prove this issue was on the plaintiff. PW-1/plaintiff as well as plaintiff's witness, PW-2, deposed that plaintiff and defendant entered into an agreement dated 01/02/2010 Ex. PW-1/1 wherein the defendant had agreed to construct the two room set with latrine, bathroom and kitchen on the fourth floor of her house bearing no. 1305, Gali no. 89, Ganesh Pura, Tri Nagar, Delhi-35 and to demolish the extra S No. 27/2011. Ms. Mithlesh Sharma vs. Rakesh Kapoor 7 of 9 kitchen and to convert the same in bathroom, fixing the tiles and other repairing work with all finishing of wood doors, steel windows and electrical wiring, fitting, plumbing work and stone polishing with finishing etc. within two months after the date of starting the work. It is further deposed that a sum of Rs. 2,70,000/- was agreed as payable by plaintiff to defendant as construction charges with material for such construction. It is further deposed that the plaintiff paid Rs. 50,000/- in cash in advance and Rs. 50,000/- was again paid to the defendant after starting of the work. It is further deposed that after constructing wall measuring 20X12X5', the defendant stopped the work. It is further deposed that despite several requests, the defendant failed to complete the work on one pretext or the other even after taking extra time and the same was not completed even after the expiry of two months as agreed. It is further deposed that as a result the defendant forced the plaintiff to engage another contractor for the completion of work for which she has to pay Rs. 20,000/- to such other contractor.
18. The agreement for construction as well as receiving a total sum of Rs. 1,00,000/- towards the payment for same is not denied by the defendant.
19. But as already discussed above under the discussion of issue no. 1, it is proved on record on the basis of evidence, including the cross examination of PW-1 & PW-2 that the object of such construction was against the law as the same was against the MCD Act. Therefore, plaintiff is disentitled to recover the sum of Rs. 1,00,000/- paid to the defendant under such contract.
S No. 27/2011. Ms. Mithlesh Sharma vs. Rakesh Kapoor 8 of 9 Further, in any case it is proved on record by the defendant that he carried out the work pursuant to such construction agreement in question. In fact, even the plaintiff admits that some construction was carried out by the defendant, but the extent of such construction is disputed by the parties. Therefore, in any case the defendant has already incurred expenses on account of labour and other material from the money paid by the plaintiff. In fact as per the claim of defendant he spent Rs. 1,50,000/- which is more than the amount paid by the plaintiff to him.
Further, under such evidence on record, the plaintiff can not claim back Rs. 20,000/- paid by her to another contractor, as the defendant can not be bound to carrying out the construction under such legally unenforceable agreement in question, Ex PW-1/1, therefore, he can not be liable for consequential expenses/damages of non-compliance of the same.
In view of such findings it is held that the plaintiff has failed to prove issue no-2.
20. In view of the finding that defendant proved issue no. 1 and further that in any case plaintiff failed to prove issue no. 2, therefore, present suit is dismissed accordingly. Decree sheet be prepared. No order as to cost. File be consigned to record room. Announced in the open court on 12/02/2015 (This judgment contains 9 pages).
(Naveen Kr. Kashyap) Commercial Civil Judge- cum-
Additional Rent Controller, West District Courts, Delhi.
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