Delhi District Court
Shri Akhtar Ali vs Shyam Lal Aggarwal on 26 April, 2025
IN THE COURT OF PAWAN KUMAR MATTO
DISTRICT JUDGE COMMERCIAL COURT-04, SHAHDARA,
KARKARDOOMA COURTS, DELHI
CS (Comm.) No. 388/23
CNR No. DLSH01-004619-2023
In the matter of :-
Shri Akhtar Ali
S/o Shri Sultan Ahmed
R/o H.No.108, Gali No.4,
B-Block, Bhagriti Vihar,
Phase-II, Delhi-110094
......Plaintiff
VERSUS
1. Shri Shyam Lal Aggarwal
2. Shri Vipul Goel
S/o Shri Shyam Lal Aggarwal
BOTH RESIDENTS OF:
R/o B-67, Street No.5,
Loni Road, Shahdara, Delhi-110032
Also At:
Plot No. 85, Near T.R. Sahni Showroom
Rajinder Nagar Industrial Area,
Sahibabad, Ghaziabad, U.P.
...... Defendants
Date of institution of the case : 03.08.2023
Date of final arguments : 16.04.2025
Date of judgment : 26.04.2025
CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 1 OF 48
JUDGMENT
1. Briefly stating that the plaintiff has filed the suit for recovery of Rs. 8,12,910/- (Rupees Eight Lacs Twelve Thousand Nine Hundred Ten Only) along with pendente lite and future interest @ 24% per annum till the date of realization of the decretal amount with cost, stating therein that the plaintiff is peace loving and law abiding citizen of India. He is an illiterate person and he can do the signatures. He has also stated that the plaintiff is working as a contractor of building construction.
2. The plaintiff has further averred that the defendant no.1 is the owner of property bearing Plot No.85, Near T.R. Sahni showroom Rajinder Nagar Industrial Area, Sahibabad, Ghaziabad, U.P. and for the construction of the said property, the defendants had contacted to the plaintiff and in this regard an agreement/samjhotanaama was entered into between the plaintiff and the defendants on dated 31.01.2020 and all the terms and mode of payment were reduced into writing in the said agreement/samjhotanaama. It is also stated here that the said agreement was got prepared by the defendants and the same has been executed in the office of the defendants at B-67, Street No.5, Loni Road, Shahdara, Delhi-110032.
3. It is also averred by the plaintiff that the defendant no.2 is the son of defendant no.1 and an agreement/ samjhotanaama has been executed between the plaintiff and the defendants, wherein the defendant no.1 had signed, as the first party and the defendant no.2 CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 2 OF 48 signed as a witness. However, the agreement is in the name of the defendant no.2, but, the stamp paper was purchased in the name of defendant no.1 by the defendants.
4. It is further averred that as per the agreement, the plaintiff had to construct the aforesaid property and for that the labour rate for the first lintel (lentor) was decided @ Rs.200/-sq. feet and for the second lintel (lentor), it was Rs.165/- sq. feet. It was also agreed upon between the plaintiff and the defendants that for the plain floor or tiles, the rate would be Rs.20/- sq. foot, for the septic tank or water tank, the rate was agreed to be @ Rs 200/- sq. foot, for the steps of stairs, it was Rs.400/- per sq. etc., which were to be paid by the defendants to the plaintiff.
5. It is also averred by the plaintiff that the said work was to be completed within 4 to 4 ½ months from the date of execution of the agreement dated 31.01.2020 and the mode of payment was decided as follows:-
(a) Upto Tiebeem 20% payment was to be paid.
(b) After completion of construction/chinai 20%.
(c) At the time of lintel (lentor) 20%
(d) At the time of plaster 25%
(e) At the time of RCC 10%
(f) and after completion of final work 5%
6. It is also averred by the plaintiff that the said terms were duly accepted by the defendants and the plaintiff, in presence of marginal witnesses. He has also averred that the plaintiff has started the work of construction at the aforesaid site of the defendants and after CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 3 OF 48 raising some construction, the lockdown was declared by the Central Government in entire country and with the consent of the defendants, the work was stopped and therefore, the construction could not completed within a period of four month, as agreed upon between the parties, but, after the unlock process, the plaintiff completed the entire work and handed over the constructed property to the defendants in the month of August 2020.
7. It is also averred by the plaintiff that as per the agreement, the defendants had to pay a total amount of Rs.20,32,275/-. But, the defendants had paid only 60% of total amount and they did not pay the amount, which was agreed to be paid at the stage of (d) to (f), as the defendants had assured to the plaintiff that they would make the payment of 40% of remaining amount of the total amount, after selling of his property i.e. B-67, Street No.5, Loni Road, Shahdara, Delhi-110032 and the plaintiff had believed upon the defendants and agreed for the same, as the defendants had paid the aforesaid 60% payment, as per schedule without any delay.
8. It is further averred that the plaintiff came to know about the fact that the defendants had already sold their aforesaid property, but, they did not pay the remaining amount of Rs.8,12,910/- to the plaintiff, despite of repeated requests and demand made by the plaintiff, as the plaintiff has liability to pay to the labour, as well as, to the other supplier.
CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 4 OF 48
9. It is further averred that the plaintiff also came to know about the fact that the defendants had already shifted in their property bearing Plot No.85, Near T.R. Sahni Showroom Rajinder Nagar Industrial Area, Sahibabad, Ghaziabad, (U.P.), which was constructed by the plaintiff and whenever, the plaintiff had visited at the aforesaid property of the defendants and demanded his money, the defendants had threatened to the plaintiff to face dire consequences and flatly refused to make any payment to the plaintiff.
10. It is further averred that the the plaintiff did not find any other alternative, so, the plaintiff had sent a legal notice on dated 17.10.2020 through his counsel and demanded a sum of Rs.8,12,912/- from the defendants and the same was duly served to the defendants. It is also averred that after receiving the legal notice, the defendants had sent a false and frivolous reply to the plaintiff on dated 12.11.2020. However, the defendants have admitted only their part liability. It is also averred by the plaintiff that the defendants are liable to pay a sum of Rs.8,12,912/- to the plaintiff along-with interest.
11. It is also averred that the cause of action for filing the present suit arose to the plaintiff against the defendants at various times. The cause of action firstly arose on dated 31.01.2020, when the plaintiff and the defendants had entered into an agreement, which was executed in the office of the defendants at B-67, Street No.5, Loni Road, Shahdara, Delhi-110032. The cause of action further CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 5 OF 48 arose, when, the plaintiff had started his work on the site of the defendants i.e. Plot No.85, Near T.R. Sahni Showroom, Rajinder Nagar, Ghaziabad, (UP). The cause of action further arose in the month of August 2020, when, the plaintiff had completed the entire work of construction of the defendants and handed over the same to the defendants. The cause of action further arose, when, the defendants had assured to the plaintiff that they would make the payment of remaining 40% of total cost of construction to the plaintiff after selling of his property bearing no. B-67, Street No.5, Loni Road, Shahdara, Delhi-110032. The cause of action further arose, when, the defendants had sold the aforesaid property, but, did not make the payment to the plaintiff. The cause of action further arose, when, the plaintiff came to know that the defendants had already shifted in Plot No.85, Near T.R. Sahni Showroom, Rajinder Nagar, Ghaziabad, U.P. The cause of action further arose on 17.10.2020, when, the plaintiff served a legal notice to the defendants and demanded for his payment. The cause of action further arose on dated 12.11.2020, when, the defendants had sent a false and frivolous reply to the legal notice. The cause of action is still subsisting.
12. It is also averred that in compliance of provision of commercial court Act, the plaintiff had a filed an application for pre-litigation mediation, however, no fruitful purpose was served and a non-starter report was given to the plaintiff. It is also averred that the agreement dated 31.01.2020 has been executed between the parties at the address of the defendant at B-67, Street No.5, Loni CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 6 OF 48 Road, Shahdara, Delhi-110032 and the cause of action also arose within the jurisdiction of this Court, hence, this Court has territorial jurisdiction to try and entertain the present suit.
13. It is also averred that the plaintiff has filed the present suit within the limitation. As an ordinary suit for recovery was filed before the Ld. Principal District & Sessions Judge, Shahdara District, Karkardooma Courts, Delhi and the same was marked to the court of Sh. Vineet Kumar, Ld. ADJ-01, Shahdara, Karkardooma Courts, Delhi, for trial in accordance with law and vide order, dated 07.01.2023, the said suit was again sent to the court of the Ld. Principle District & Sessions Judge, Shahdara District, Karkardooma Courts, Delhi, with the request to transfer the suit to commercial court. Thereafter, vide orders dated 12.01.2023, Ld. Principal District & Sessions Judge, Shahdara District, Karkardooma Courts, Delhi had transferred the suit to the commercial court, Shahdara and the suit was received in the court of Sh. Brijesh Kumar Garg, Ld. Judge Commercial Court, Shahdara, Delhi on dated 17.01.2023 and thereafter on dated 18.05.2023 Sh. Brijesh Kumar Garg, the Ld. Judge Commercial Court, Shahdara, Delhi had returned the plaint to the plaintiff for filing the present plaint in the commercial court of competent jurisdiction. The plaintiff has prayed for passing a decree for recovery of Rs.8,12,910/- (Rupees Eight Lacs Twelve Thousand Nine Hundred Ten Only) in favour of plaintiff and against the defendant alongwith interest @ 24% per annum from the date of institution of suit, till realization of the amount and cost of the suit.
CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 7 OF 48
14. The summons of the suit were issued to the defendants and on completion of service of summons, the defendants have appeared through their counsel and filed joint written statement and contested the suit of the plaintiff on the ground inter alia that the suit has been instituted on the basis of the Samjhotanama dated 31.01.2020, and stated that the said Samjhotanama does not disclose the time, date and place, as to where, it was prepared. It also does not disclose the name of the persons, between whom, the said Samjhotanama was executed.
15. It is also stated that the said Samjhotanaama was attested by Notary/public having his registration 67/2010, but, place and state are not mentioned therein. It is also stated that this court has no jurisdiction, because samjhotanaama is executed in Uttar Pradesh for plot no. 85, near T.R. Swahney Car Showroom.
16. It is also stated that the plaintiff has allegedly constructed the property situated in the area of Ghaziabad and he had visited to demand the money, who was threatened within jurisdiction of Ghaziabad, so, question of filing of suit in Delhi does not arise.
17. It is also stated that the plaintiff had filed the suit for recovery in the court of Additional District Judge, Delhi by avoiding pre-institution mediation, and the same was transferred to the court of Sh. Brijesh Garg, District Judge, Commercial Court, because it was not in proper shape of the commercial suit, then the same was not allowed and ultimately the present suit has been filed after long time, CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 8 OF 48 so, the suit of the plaintiff is time barred, hence the suit is liable to be dismissed. It is also stated that the defendants had executed Samjhotanaama dated 31.01.2020 in Ghaziabad, (U.P.) and there was no term and condition of any work by plaintiff with Sh. Vipul Goyal for construction of Plot no. 85 near T.R. Sahni Car Show Room, Rajender Nagar, Shahibabad, Ghaziabad, (U.P.). It is also stated that no work was ever done by the plaintiff and construction was done by One Shokeen only, hence the suit of the plaintiff is liable to be dismissed.
18. It is also stated that Sh. Shokeen discharged his duties and did the work of construction on the property in question and he had received the payment against his work and he also did not complete the work according to the compromise deed, so, the question of payment does not arise.
19. The defendants have also stated that as per the report of architect, total cost of construction was Rs. 19,25,974.48paise/-, but the plaintiff had mentioned in para no. 7 of the notice that the total cost was Rs. 20,32,275/- and out of the said amount, the plaintiff has claimed Rs. 8,12,910/- from the defendants and further stated that the said balance amount is imaginary and no work of construction was ever raised, as claimed in the notice of the plaintiff. The defendants have also stated that the plaintiff had issued the receipt of payment of Rs. 16,72,000/- on a paper and the same was admitted through his whatsapp of his mobile phone no. 9953333939 dated 28.10.2020 at CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 9 OF 48 01:46PM and only balance amount was shown as Rs. 3,86,000/-, so, the notice of the plaintiff was self contradictory.
20. It is also stated that sometime the plaintiff has claimed an amount of Rs. 8,12,910/- and sometime he has claimed Rs. 3,86,000/-. It is also stated that the defendants are having strict proof of payment of balance amount of the work done by the plaintiff and Sh. Shokeen and the defendants have no liability to pay any money to the plaintiff. It is also stated that the plaintiff has defamed to the defendants and defendants are having reputation in the society. It is also stated that the plaintiff has suppressed all the true and material facts and tried to show the balance in different digits.
21. It is also stated that the defendants have asked Shokeen, number of times to produce his license, permit for contractorship, as well as, to construct the building, but, the plaintiff intentionally and deliberately did not produce any permit or license and he had not completed the work to hide his wrongs after settling the terms and conditions.
22. It is also stated by the defendants that plaintiff (Sh. Shokeen) has not obtained any completion certificate and he has not produced the same. It is also stated that the plaintiff had not mentioned the date in the notice on which the money was received by him from the defendants, from time to time. It is also stated that plaintiff has filed the suit only on the basis of Samjhotanaama dated 31.1.2020 (alleged agreement) executed between the plaintiff and the defendant Vipul Goyal, but, the same is not signed by the defendants and the said CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 10 OF 48 Samjhotanaama is quite illegal and the suit of the plaintiff is liable to be dismissed.
23. Replying to the plaint on merit, the defendants have denied that the plaintiff is peace loving and law abiding citizen of India or that he is contractor of building construction. The defendants have not denied that defendant no. 1 is the owner of property bearing plot no. 85, Near T.R. Sahani Showroom, Rajinder Nagar Industrial Area, Shahibabad, Ghaziabad (U.P.). The defendants have denied that the said agreement/ Samjhotanaama was executed in the office of the defendants at B-67, Gali no. 5, Loni Road, Shahdara, Delhi -32 and stated that the property in question is situated within the jurisdiction of Ghaziabad, (UP) and no agreement was ever executed at B-67, Gali no. 5, Loni Road, Shahdara, Delhi -32 at any point of time between the parties. The defendants have not denied that the defendant no. 2 is the son of defendant no. 1. It is also stated that the stamp paper was purchased in the name of defendant no. 1.
24. The defendants have denied the rates of construction, as mentioned in the plaint. The defendants have also denied about the schedule of payment, allegedly agreed upon between the parties to the present lis, as mentioned in the plaint. The defendants have also denied that they had accepted the terms in the presence of the marginal witnesses. The defendants have also denied that after raising of some constructions, the lock down was declared by the central Government or that with the consent of the defendants, the work was stopped or that for the same reason, the construction could not be completed CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 11 OF 48 within period of 4 months, as agreed upon between the parties. The defendants have denied that they have agreed to pay total amount of Rs. 20,32,275/- or that the defendants have paid only 60% of the total amount.
25. It is also stated by the defendants that the work of construction was done by one Shokeen, no construction was ever done by the plaintiff. They have also stated that the entire payment has been done to the person, who had worked at there and nothing is left. The defendants have denied that an amount of Rs. 8,12,910/- is yet to be paid by them. The defendants have also stated that work of the defendants was not done by the plaintiff and their work was got completed by other contractor/labour, so, the question of the payment to the plaintiff does not arise. The defendants have denied that they had ever threatened to the plaintiff to face dire consequences. The defendants have also denied that any cause of action has ever arisen to the plaintiff to file the present suit. They have also denied that this court has jurisdiction to entertain the present suit and prayed for dismissal of the suit.
26. The plaintiff had filed replication, wherein, he has denied the averments made in the written statement and reiterated the contents of the plaint therein and on the basis of pleadings of parties, the Ld. Predecessor of this Court vide his order dated 19.12.2023 was pleased to frame the following issues:-
(1) Whether the plaintiff is entitled to a decree for recovery of Rs. 8,12,910/- along with interest pendent lite and future @ CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 12 OF 48 24% per annum from the defendants and costs of the suit?
OPP
(2) Whether this court does not have territorial jurisdiction to
entertain this suit? OPD
(3) Relief.
27. Thereafter the matter was fixed for evidence of the plaintiff. In order to prove his case, the plaintiff has examined himself as PW1 vide his affidavit Ex. PW-1/A and in one way or the other, he has reiterated the contents of the plaint therein. He has relied upon the documents Ex.PW1/1 to PW1/5. He was cross examined by the Ld. Counsel for the defendants.
28. Sh. Shokeen has been examined as PW-2, vide his affidavit PW-2/A, who has supported version of the plaintiff. He was also cross examined by the Ld. Counsel for the defendants.
29. Thereafter, the plaintiff had given the statement for closing his evidence and evidence of the plaintiff was closed. Then, the matter was fixed for evidence of the defendants.
30. The defendant no. 1 has examined himself as DW-1, vide his affidavit DW-1/1, wherein, he has deposed almost on the similar lines as that of the written statement. He has relied upon the copy of his Aadhar Card Ex. DW-1/A and report of Architect already CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 13 OF 48 Ex. PW-1/D1. He has also identified the signature and seal of architect at Point A. He was cross examined by the Ld. Counsel for the plaintiff.
31. The defendants did not examine any other witness and closed their evidence.
32. I have heard the counsels for the parties.
33. Sh. Fahimuddin, Ld. Counsel for plaintiff has submitted that a samjhotanaama dated 31.01.2020 Ex. PW-1/1 was entered into between the parties to the present lis, vide which, the plaintiff had agreed to construct the property of the defendants. He has further submitted that the defendants had agreed to make the payment as follows:-
(a) Upto Tiebeem 20% payment.
(b) After completion of construction/chinai 20%.
(c) At the time of lintel (lentor) 20%
(d) At the time of plaster 25%
(e) At the time of RCC 10%
(f) and after completion of final work 5%
34. He has further submitted that 60% amount has been paid by the defendants to the plaintiff and despite of completion of construction, the defendants failed to make the payment of balance amount of Rs.
8,12,910/-. He has further submitted that as per samjhotanaama, which is Ex. PW-1/1, the construction was to be completed by the plaintiff between 4 to 4 and half months and said samjhotanaama was entered into between the parties to the present lis on dated 31.01.2020 and work of construction was started on 01.02.2020 and in view of the CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 14 OF 48 lock down, the work of construction was completed in the month of August, 2020 and submitted that defendants were liable to pay the total amount of Rs. 20,32,275/- and 60% amount has been paid to the plaintiff by the defendants and an amount of Rs. 8,12,910/- is yet to be paid by the defendants. He has also submitted that in view of non payment of an amount of Rs. 8,12,910/-, a legal notice dated 17.10.2020 Ex. PW-1/2 was served to the defendants and the defendants have received the said legal notice and the reply of the said legal notice Ex. PW-1/4 on dated 12.11.2020 was sent by the defendants through their counsel and claimed that the plaintiff had issued the receipt of Rs. 16,72,000/- on paper and he had admitted on whatsapp on dated 28.10.2020 and the defendants have claimed that the plaintiff had claimed balance amount of Rs. 3,86,000/- on the whatsapp. But, the defendants have failed to bring on record any receipt or any such whatsapp message of the plaintiff and defendants have claimed that total cost of construction was Rs. 19,25,974.48paise/- and samjhotanaama Ex. PW-1/1 is admitted in the reply to the legal notice Ex. PW-1/4. The defendants have also claimed that the work of construction was done by Shokeen, PW-2. He has also submitted that samjhotanaama was entered into between the parties to the present lis, at B-67, Durgapuri Shahdara Delhi and the defendants have claimed that the plaintiff did not do the work of construction, it was done by the Shokeen and submitted that since the samjhotanaama Ex. PW-1/1 is an admitted document and the plaintiff has successfully proved on record that he had completed the work of construction and the defendant no. 1 has examined himself as DW-1 vide his affidavit Ex. DW-1/1 and who has deposed that entire work of CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 15 OF 48 construction was done by Shokeen and also claimed that the plaintiff had not worked, as per terms and conditions of Samjhotanaama and further claimed that Shokeen had received the payment. But, as the defendants have failed to prove on record any documentary proof of receiving any payment by Shokeen or plaintiff. He has further submitted that defendant no. 1 during his cross examination had admitted that plaintiff (Akhtar Ali) had worked in the property no. 85 near T.R. Sahani showroom, Rajinder Nagar, Ghaziabad, since February, 2020 to October, 2020 and he has failed to show any receipt regarding any payment either to shokeen or to the plaintiff and DW-1 had produced dairy Ex. DW-1/P1 (during his cross examination). But, he has admitted that the said dairy does not bear the signatures of Shokeen or Akhtar Ali. So, the defendant no. 1, who is father of defendant no. 2 and defendant no. 2, have failed to prove that defendants had paid the suit amount to the plaintiff or to Sh. Shokeen, So, both the defendants are liable to pay an amount of Rs. 812,910/- and prayed for decretal of the suit amount along with interest and cost of the suit.
35. On the other hand, Sh. R.S. Goswami, Ld. Counsel for the defendants has submitted that samjhotanaama Ex. PW-1/1 is not in proper form and further submitted that the testimony of the plaintiff is full of vagueness and contradictions. He has also submitted that the plaintiff has mentioned in the legal notice Ex. PW-1/2 that he is contractor, but, at the time of his cross examination, sometime he has claimed to be Mason and other time he has claimed to be contractor. But, plaintiff has admitted during his cross examination that he does CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 16 OF 48 have license of contractor. He has also submitted that the said samjhotanaama Ex. PW-1/1 was entered into between the parties to the present lis on dated 31.01.2020 at Ghaziabad and the work of construction was required to be completed between 4 and 4 and half months, but, the plaintiff has failed to comply with the terms of the said agreement/ samjhotanaama Ex. PW-1/1 and submitted that the work was got completed by Shokeen, who has been examined as PW- 2 and defendants had made the payment to Shokeen for the entire work done by PW-2, (Sh. Shokeen). He has also submitted that plaintiff has failed to bring on record any proof of making payment to the labourers by the plaintiff. He has also submitted that the plaintiff during his cross examination has admitted that he did not maintain any dairy. He has further submitted that the plaintiff has also failed to tell the details of the total constructions in the property of the defendants. He has also submitted that the property of the defendants is situated in the area of Ghaziabad and the plaintiff has failed to prove on record that the samjhotanaama Ex. PW-1/1 was entered into within the territorial jurisdiction of this court and it is nowhere mentioned therein that it was executed within the territorial jurisdiction of this court and submitted that testimony of the plaintiff is self contradictory. He has also submitted that Shokeen has been examined as PW-2 and submitted that his testimony is not trustworthy, as he has claimed that he worked under the plaintiff. He has also submitted that since the work of construction was completed by the Shokeen and the defendants had made the payment to Shokeen and after making payment of the work of construction done by Shokeen on the property of the defendants, no amount is yet to be paid by the defendants to the CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 17 OF 48 plaintiff. He has also submitted that defendant no. 1 has been examined as DW-1, he has proved that he has paid the entire amount to Shokeen for the work done by him on his property and submitted that since the plaintiff has failed to prove on record that he has completed the work of construction in the property of the defendant, so, the suit of the plaintiff is may be dismissed.
36. In rebuttal thereof, Ld. Counsel for the plaintiff has submitted that since the case in hand, defendant no. 1 has examined himself as DW-1. He has admitted the samjhotanaama Ex. PW-1/1. He has also submitted that only the rate of constructions were mentioned in the said samjhotanaama, amount for such construction by the parties is not mentioned therein. He has further submitted that in the architect report Ex. PW-1/D1, certain amounts are mentioned, but the cost of construction qua the ground floor P.C.C 127 ft. 6 inch x 125 ft. = 3437 Sq. Ft. is not mentioned therein and submitted that the cost of construction for ground floor P.C.C was Rs. 1,73,164/- and which is omitted in the said report of the architect Ex. PW-1/D1 and submitted that if the amount of Rs. 1,73,164/- is added in the amount 17,52,810/-, then the amount Rs. 19,25,974/-, c omes and submitted that plaintiff has claimed that the total cost of construction was Rs. 20,32,275/- and the defendants in the reply to the legal notice Ex. PW- 1/4 have claimed that cost of construction as per report of the architect was Rs. 19,25,974/- and submitted that defendants have claimed in their written statement that the plaintiff did not work on the site of the defendants, but, the defendant no. 1 during his cross examination has admitted that that plaintiff had done the work of construction on the CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 18 OF 48 site of the defendants since February, 2020 to October, 2020 and the defendants have claimed in their written statement that they have paid the entire amount to the Shokeen and also claimed that Shokeen had worked on the site of the defendants, but defendants have failed to prove on record that even the amount of Rs. 19,25,974/- was paid either to the plaintiff or to Shokeen and submitted that defendant no. 1 during his cross examination had produced a dairy claiming therein that payment was made to the plaintiff. But, during his cross examination, he has admitted that the said dairy does not bear the signature of the plaintiff and Shokeen and defendant no. 1 (during his cross examination) has failed to tell as to on what basis, he had mentioned in para no. 7 of his written statement that the balance amount of Rs. 3,86,000/- towards (the plaintiff) Akhtar Ali and submitted that the testimony of the defendant no. 1 is inconsistent to the contents of the written statement and reply to the legal notice Ex. PW-1/4 and submitted that defendant no. 1, during his cross examination had given the details of making payments of Rs. 7,51,600/- to the plaintiff (Akhtar Ali) and submitted that testimony of DW-1 cannot be relied upon, as it is contradictory to the written statement and reply to the legal notice and prayed for decretal of the suit.
37. I have given thoughtful consideration to the submissions made by the Ld. Counsels for the parties and perused the record.
38. The perusal of record reveals that the plaintiff has sought to recover an amount Rs. 8,12,910/- along with interest @ 24% per CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 19 OF 48 annum as pendentelite and future interest till the realization of the amount and cost from the defendant. The defendants have disputed the jurisdiction of this court. So, the burden of proving issues no. 1 was on the plaintiff, whereas, the burden of proving of issue no. 2 was on defendants. In order to avoid repeatation, both the issues have been taken together for discussion.
39. In order to prove his case, the plaintiff has examined himself as PW1 vide his affidavit Ex.PW1/A and in one way or the other, he has reiterated the contents of his plaint therein. He has relied upon the following documents:-
i. Original general agreement/samhjotnaama dated 31.10.2022 Ex.PW- 1/1.
ii. Office copy of legal Notice dated 17.10.2022 Ex.PW-1/2 iii. Original postal receipt dated 19.10.2022 Ex.PW-1/3. iv. Original reply to legal notice dated 12.11.2022 Ex.PW-1/4. v. Non-Starter report Ex.PW-1/5.
40. The plaintiff was cross-examined by the Ld. Counsel for the defendants and during his cross-examination, he has deposed that he had sent a legal notice to the defendants before filing the suit. He had mentioned in the notice Ex.PW-1/2 that the agreement/samjhotanaama with the defendants was prepared at B-67, Gali No.5, Durgapuri, Loni Road, Shahdara, Delhi, and it was prepared by the defendants. He has also deposed that he cannot point out, as to where had he stated these facts in the notice Ex.PW-1/2. He has voluntarily deposed that he is illiterate and he cannot read or write in English or Hindi and he can CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 20 OF 48 only sign. He had informed his advocate about these two facts, and the advocate wrote them in the notice Ex.PW-1/2. He has denied that he has never informed his advocate about these facts or that the notice does not contains these facts. He has further deposed that he had mentioned in his plaint that the agreement/samjhotanaama was prepared by the defendant in his office. He has denied that these facts are not mentioned in the plaint. He has also denied that he had improved upon these facts in his evidence to justify filing of the suit in the Commercial Court, Shahdara District. He has also deposed that the agreement/samjhotanaama was executed between him, Shri Vipul Goyal, Shri Shyam Lal Aggarwal and Shokeen. He has again deposed that Shri Vipul Goyal is the son of Shri Shyam Lal Aggarwal. He has denied that no agreement/samjhotanaama was executed with Shri Shyam Lal Aggarwal and for that reason his name is not mentioned on the first few lines of the document. He has further deposed that the agreement/samjhotanaama was prepared in the office of Shri Shyam Lal Aggarwal. He has also deposed that Shokeen is illiterate. He has further deposed that the size of the plot was approximately 3500 sq. ft., measuring 128 ft. x 27 ft. 6 inches. He has also stated that the area and size of the plot might have been mentioned in the agreement/samjhotanaama, legal notice, plaint, and in his affidavit given in the evidence. He has also deposed that it is written in the agreement/samjhotanaama that it was executed with him. He has denied that this fact was not mentioned in the agreement/samjhotanaama. He has also deposed that he does not have any contractor's license, but, he has voluntarily deposed that he works on a very small scale. He has also stated that the architect was engaged CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 21 OF 48 for the drawings of the buildings was Ashu, as his surname may be Goswami. He has also deposed that he can not produce the drawings of Ashu, as it would be available with the defendant, who had engaged Ashu. He has denied that no person named Ashu was engaged as an architect or that no such drawings were prepared by Sh. Ashu. He has also deposed that he has not informed his advocate about Sh. Ashu. He has denied that he never had any drawings given by Sh. Ashu and for this reason, he did not mention about this fact in his notice and plaint. He has also deposed that he did not issue any receipt regarding payment made to labour engaged by him. He has voluntarily deposed that the payments were made on a daily basis and he had paid in cash to his labourers. He has denied that he did not engage any labour or perform any construction work. He has also deposed that he paid approximately Rs. 16,50,000/- to his labourers. He has also deposed that he was paid Rs. 12,15,000/-, and the rest amount was raised from his own resources. He had also deposed that the agreement/ samjhotanaama was prepared on dated 31.01.2020, and he had started to work from the next day and he can read the dates. He has also admitted it to be correct that no date of 31.01.2020 is mentioned in the typed portion of the agreement/samjhotanaama. He has also deposed that the stamp paper for the agreement/ Samjhotanaama was purchased by Sh.Shyam Lal Aggarwal, but, he can not say, whether the purpose of purchasing the stamp paper for construction is mentioned in the same or not. He has denied that the defendant did not purchase the stamp paper or that he himself purchased a stamp paper mentioning "General Agreement." He has deposed that the notary stamp on the agreement/ Samjhotanaama was affixed by the notary in CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 22 OF 48 the office of the defendant. He has denied that the notary stamp was arranged by his counsel to fulfill the deficiencies in the document. He has also denied that the defendant did not have any office in Durgapuri. He has also denied that Shokeen, (who signed as a witness at point A on Ex.PW-1/1), was actually engaged by the defendant for construction work. He has also denied that the actual construction cost was Rs. 19,25,974.48 paise/- and reiterated that he had received approximately Rs. 12,15,000/- from the defendant against a total cost of Rs. 20,32,275/-. He has admitted it to be correct that his mobile number is 9953333939. He has also deposed that architect Ashu was appointed by the defendant no. 1, Shri Shyam Lal Aggarwal. But, he never visited Ashu's office. He does not know whether M/s Kastiya Designs was the architect. He has voluntarily deposed that he only knew Ashu, who was introduced by the defendant. He has denied the suggestion that no person in the name of Ashu was architect or that only M/s Kastiya Designs handled the project. He has also deposed that he did not maintain records of construction work of property and record of payments made to him by the defendants. He has voluntarily deposed that all payments were made in cash. He has also deposed that he did not maintain the record of payment to the labourers and he has voluntarily deposed that the defendant used to provide all construction materials. He cannot say whether Ex.PW1/D1 was the measurement report from M/s Kastiya Designs. He has also deposed that he had no documentation regarding the measurement of work or the amount payable to him but, the records were available with the defendants. He has also deposed that he has not mentioned these facts in his plaint or legal notice. The measurement of lintel of the premises CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 23 OF 48 was 128 ft. x 27 ft. 6 inches and stated that the size of the plot was more than the same. He had not stated in the plaint about the exact construction in square feet, but, he had mentioned that the ground and first floors were fully constructed, the second floor was half- constructed, and the third floor contained a lift room, mumty, latrine, bathroom, and labour room. He has also deposed that he can not recall the total constructed area. He has denied the that the calculations in Ex.PW1/D1 were correct and he has voluntarily deposed that the contents of samjhotanaama Ex.PW1/1 are accurate. He has admitted it to be correct that the constructed area of the ground and first floors was 3,520 sq. ft. each, with labourers charges of Rs. 200 per sq. ft. for labour rates. He has also admitted it to be correct that under ground water tank of 48 Sq. feet was constructed @ 200 per sq. feet for labour. He has denied that road ramp of 220 sq. feet was constructed @ Rs. 165/- for labour. He has voluntarily deposed that it was Rs. 100 per sq. feet. He has also admitted it to be correct that washroom of 41.25 sq. feet was constructed @ Rs.165 per sq. feet for labour. He has also admitted it to be correct that office of 119 sq. feet was constructed @ Rs.165 per sq. feet for labour. He has also admitted it to be correct that staircase of mumty of 341 sq. feet was constructed @ Rs.165 per sq. Feet for labour. He has denied that ground floor PCC without office lift washroom area was constructed @ Rs.15 per sq. feet for labour. He has also denied that ground floor RCC Jaal was constructed @ Rs. 82/- per sq feet for labour. He has denied that he cannot depose the accurate details of construction and measurement, as he has never performed any construction work on the plot or for this reason he has not maintained any record of labourers engaged by him or record of CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 24 OF 48 payments made by him to the laborers. He has also denied that he has falsely claimed Rs. 20,32,275/- as cost of labour and construction. He has further deposed that he had previously constructed a property in Shahdara for a builder named Shri Kashi Ram Billa at R-8, Naveen Shahdara. He has denied that there is no such builder or property constructed by him. He has claimed himself as a mason by profession and stated that he has no other source of income. He has denied that he had not made any payment to any labour or that no amount is payable to any labour. He has admitted it to be correct that the defendants had talked with him for construction of property. He has denied that because, he did not do any work, the defendants had to get the work done through Shokeen. He has also denied that because Shokeen was engaged by the defendants, so, he has filed a false suit to extort money from the defendants. He has also deposed that he did not obtain a completion certificate for the construction from any authority, but, he has voluntarily deposed that he is a small contractor. He has denied that he can not produce any evidence of work done, as he has never performed any construction. He has also denied that he is aware of the defendants and the property, because the defendants had only talked about the property. He has denied that the defendants had already Vacated their office at B-67, Street No.5, Loni Road, Shahdara, Delhi, before they had talked with him about their property. He also denied that the agreement Ex.PW1/1 was not typed at the defendant's office or that it was falsely prepared by him and got it signed by the defendants, after talking about the construction of property or that he did not do any work or that agreement Ex. PW-1/1 was never acted upon. He has denied that he has deposed falsely.
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41. Sh. Shokeen has been examined, as PW2 vide his affidavit Ex.PW2/A, who has testified therein that he is working as RAJ MISTRI since long and the he had worked under the plaintiff at the site of defendant and in this respect, the plaintiff and the defendant had entered into an agreement/samjhotanaama dated 31.01.2020 already EX. PW1/1, which was executed at the office of the defendant at B-67, street no. 5. Loni Road, Shahdara, Delhi, which bears his signature at point A and the defendant No. 1 had signed it, as the second party at point B and his son had signed as a witness at point C and the plaintiff had signed, as a first party at Point D in his presence, which was later on notarised. He has also deposed that in the presence of him, the aforesaid terms of agreement/samjohtanaama were duly accepted by the defendants and the plaintiff. He has further deposed that the plaintiff alongwith his labour had done the work of construction at the site i.e. the property of defendants bearing No. 85, Near T.R. Sahni Showroom, Rajinder Nagar, Industrial Area, Sahibabad, Ghaziabad, U.P., and the same was handed over after completion of work of construction. He has also deposed that after completion of work by the plaintiff, the defendant had contacted with this witness for the purpose of the construction of foundation of their machines and as the plaintiff had already completed his work, as per the agreement/samjhotanaama of the defendant and therefore, he had done some work of construction i.e. foundation of machines and the defendant asked to this witness for cutting of trees at the site and the said work of cutting of trees was also done by him and the said work was done by him in his personal capacity, for which, the defendant had CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 26 OF 48 paid the settled amount to this witness. He has further deposed that the said work has been done by him without knowledge of the plaintiff, as this witness had worked on the said site with the plaintiff till their final work. He has further deposed that now, he came to know that the defendant had not paid the agreed amount to the plaintiff and the plaintiff had filed the present suit against the defendants. He has also deposed that plaintiff has started the work of construction at the aforesaid site of the defendants and after raising some construction, the lockdown was declared by the Central Government in entire country and with the consent of the defendants, the work was stopped and therefore, the construction could not be completed within a period of four months, as agreed, but, after the unlock process, he had completed the entire work and handed over the constructed property to the defendants in the month of August 2020.
42. PW-2 was cross examined by the Ld. Counsel for the defendants and during his cross examination he has deposed that he has never received summon of this court. He has voluntarily come in the court. Plaintiff had told him about the present case on 01.04.2024. He had come in the court on 01.04.2024. He does not know, as to on which date, the plaintiff had told him about this case. He is illiterate. He has got prepared some papers from his own lawyer. The name of his lawyer is Sh. Fahimuddin. He has admitted it to be correct that Sh. Fahimuddin is counsel for the plaintiff. He has denied that plaintiff had taken him to his counsel. He does not know the chamber number of Sh. Fahimuddin, Advocate, but, his chamber is at 6th floor in the Karkardooma Court. He does not have his mobile phone number. He CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 27 OF 48 was read over his affidavit by the lawyer. It was prepared on his instructions. He cannot tell the contents of paras of his affidavit Ex.PW2/A. He was told by his lawyer and he was made to understand the contents of his affidavit Ex.PW2/A. He has denied that affidavit Ex.PW2/A was not prepared in his presence or that the same was not read over to him in vernacular or that he has deposed falsely in this regard. He does not have any license or certificate to do the job of mason. He does not know, whether the plaintiff was maintaining any register of labours, who were doing job or not. He may be maintaining the same at home, but, he was not maintaining the same at the site. Plaintiff had kept the labours on temporary basis, all those were daily wagers and payments of daily wages were done on the same day. He does not know, when the plaintiff used to take money from the owners. The plaintiff used to take money from the defendant from his office. He never went with the plaintiff in the office of the defendants. He again said that once he had gone to the office of the defendant. He has also deposed that there are 12 months in a year and there are 31 days in the month of January. The compromise had taken place at B- 67, Gali no.5, Loni Road, Durgapuri, Shahdara and the typing machine was also kept on the said address i.e. B-67. He has deposed that the stamp paper was brought by the defendant. He does not know, from where, the defendant had brought the said stamp paper. This stamp paper was typed in the office of the defendant. He has denied that there was no typing machine in the office of the defendant. He has denied that the defendant did not bring any stamp paper. The typing work was done on the stamp paper by the person, who was called by the defendant. The age of the said typist may be of about 40 years. He CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 28 OF 48 would have stayed in the office of defendant for one hour. He does not know the name of the said typist. There were four persons in the office of the defendant at the time of execution of compromise Ex.PW1/1. The compromise had taken place between Vipin Goyal and Akhtar Ali. The said stamp paper, on which, the compromise was prepared was signed by thekedar Akhtar Ali, Vipin Goyal, Shyam Lal and this witness (Shokeen). He does not know, who had signed the second or third page of the said compromise Ex.PW1/1. When, the counsel for defendants had shown page no.1 of the compromise deed Ex.PW1/1 and on seeing the same, he has stated that he cannot tell about the persons, whose signatures are there on the said page. He has admitted that page no.1 and 2 of the said compromise do not bear the signature of four persons. He has admitted that page no.1 and 2 of the said compromise do not bear his signature and deposed without looking page no.3 of the said compromise Ex.PW1/1, he cannot tell as to which person had signed thereon in which language, he has also deposed that he and Shyam Lal had witnessed the said compromise and Vipul and Akhtar Ali had signed the same being party to the said compromise. He has denied that he and Vipul had signed the said compromise Ex.PW1/1 as witness to the said compromise. He has denied that this compromise Ex.PW1/1 was not executed in his presence or that he is speaking lie to this effect. He has also deposed that only one copy of this compromise was prepared in his presence. He does not know who had retained the same compromise Ex.PW1/1. He has denied that when the testimony of plaintiff remained weak, then, he had brought him in the court or that at the instance of the lawyer of the plaintiff, he had put his signatures in the court on the last CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 29 OF 48 page of Ex.PW1/1 or that for the same reason, Ex.PW1/1 does not bear his signature. He has denied that the plaintiff did not comply with the terms of Ex.PW1/1. He cannot tell the exact amount, which he had received from the plaintiff regarding the compliance of Ex.PW1/1. He did not maintain any diary or notebook regarding the receiving of amount from the plaintiff. He cannot tell the names of those labourers, who had worked with him on the site. He has denied that he is unable to tell the names of the labourers for the reason that the plaintiff had not worked on the said site. He has denied that the plaintiff had never worked on the said site. He has denied that he had never worked at the said site or that for the same reason, he did not maintain any diary or that for the same reason, he is not able to tell the names of the labourers. He does not know, whether plaintiff was maintaining any diary or not. Ashu Gupta was the Architect of this site. This witness has also deposed that he is doing the work of mason only. He had done only trimming of the trees. He did not cut the trees. He was never employed by the defendant to cut any tree. The defendant had paid him the money, as per his wish for trimming the trees at site and he had accepted the same. He did not write in para no.4 of his affidavit that the defendant asked him for cutting of trees at the site and the work of cutting the trees was also done by him in his personal capacity. He has further stated that he did not mention in para no.4 of his affidavit given in evidence Ex.PW2/A that he had worked in his personal capacity and the defendant had paid the settled amount to him. He has denied that when, he had come in the office of the Advocate, his said affidavit Ex.PW2/A was already prepared by the Advocate or that on the dictation of the said Advocate, he had put his CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 30 OF 48 signatures thereon. He has denied that the affidavit was prepared by the counsel for the plaintiff himself or that due to the said reason, it is not mentioned that the said affidavit was read over to him in vernacular. He has denied that the affidavit Ex.PW2/A was not prepared at his instance or that he has deposed falsely in this regard. He has denied that he never worked under the contractorship of the plaintiff or that due to this reason, he is unable to tell about the amount received by him. He has denied that defendant had already sold away the said site. The work of construction was completed in the month of August, 2020. He has denied that he has never worked at the site. He had worked with the plaintiff for about 4-5 years. Prior to this site, the site of the plaintiff was at Tronica city. Ashu Gupta was Architect on the said site. He does not know whether the complete name of the Architect was Ashu Goswami or not. Akhtar Ali is not his relative. He has denied that the plaintiff belongs to his community, so, he has deposed falsely in his favour. No suggestion was given to the PW-2 that entire work was done by PW-2. PW-2 has corroborated the testimony of PW-1.
43. The plaintiff did not examine any other witness and closed his evidence.
44. The defendant no. 1 has examined himself as DW1 vide his affidavit Ex. DW1/1. He has almost deposed on the similar lines as that of the written statement of the defendants and this defendant no. 1 has admitted that agreement Ex. PW-1/1 was entered into between him and plaintiff and claimed that Shokeen had done the work of CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 31 OF 48 construction at his sight and plaintiff has violated the terms and of the agreements EX. PW-1/1. He has also claimed that Shokeen had received the payment of the work done by him. He has relied upon the following documents:-
(i) Photocopy of Aadhar Card is Ex.DW1/A (OSR).
(ii) The report of Architect already Ex.PW1/D1. He had identified the signature and seal of architect at point A.
45. He was cross-examined by Ld. Counsel for the plaintiff and during his cross-examination, he has deposed that he is 8th class pass. His son Vipul Goel is 12th pass. In the year 2019-20 he used to work of Iron sheets. He used to run his business in the year 2019-20 from B- 67, Durga Puri Chowk, Shahdara, Delhi. His son also used to work with him in the year 2019-20. B-67, Durga Puri Chowk, Shahdara, Delhi was owned by him at that time. He has already sold the said property bearing no. B-67, Durga Puri Chowk, Shahdara, Delhi. He has shifted from B-67, Durga Puri Chowk, Shahdara, Delhi to Rajinder Nagar, Ghaziabad in the month of October, 2020. Mr. Akhtar Ali (plaintiff) had worked in the Property bearing no.85, Near TR Sawhney Showroom Rajinder Nagar, Ghaziabad since February, 2020 to October, 2020. He has not brought any receipt of payment to Mr. Akhtar Ali (plaintiff) for the work done by him in the above said property for the said period. He has voluntarily deposed that. because Shokeen had told that he is illiterate, so, he could not prepare any receipt. He did not get prepare any receipt for the payment to Shokeen from any other person. When the Architect had visited the property CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 32 OF 48 bearing no. 85, Near TR Shaney Showroom Rajinder Nagar, Ghaziabad, the Architect had telephonically called Akhtar Ali, but, Akhtar Ali had not come at the site. He has admitted it to be correct that the report of the Architect Ex.PW1/D1 was not prepared in the presence of Mr. Akhtar Ali. He cannot comment whether he had got prepared the report of architect of his own. Shokeen used to do the work of supervision and construction of the said site as a mason. He cannot tell the specific work done by Shokeen at the said site. He has voluntarily deposed that because all the labourers used to work jointly. He had made payment of Rs.16,72,000/- to Akhtar Ali. He cannot tell the exact dates with amounts, which were given by him to Akhtar Ali. He had made payment of Rs.16,72,000/- in installments to Akhtar Ali. Sh. Akhtar Ali had sent him a message on his phone regarding receiving of Rs.16,72,000/-, but his phone has already been lost. He had lodged a complaint regarding the missing of phone in the PS Ghaziabad, but, he cannot produce any report filed with the police regarding the missing of phone. He has denied that he did not lodge any report with the police regarding the alleged missing of phone or that for the same reason he cannot produce the said report. He has also deposed that he did not get any receipt in writing from Sh. Akhtar Ali regarding receiving Rs.16,72,000/- from him. He has voluntarily deposed that Sh. Akhtar Ali is also illiterate. He has denied that he did not pay Rs.16,72,000/- to Sh. Akhtar Ali or that for the same reason he cannot produce any receipt in writing. The agreement Ex.PW1/1 entered into between him and Sh. Akhtar Ali was signed by him, Akhtar Ali, Shokeen, and his son Vipul Goyal. He does not know whether Akhtar Ali and Shokeen had signed or not. He has voluntarily CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 33 OF 48 deposed that THODA BAHUT LIKH PAD LETE THE. He does not know whether Akhtar Ali and Shokeen are related to each other or not. He cannot tell how much amount was paid by him to Akhtar Ali and how much amount was paid by him to Shokeen. He did not go through the reply Ex.PW1/4 to the legal notice prior to the sending of the same to the plaintiff. He had read the written statement filed by his counsel in this case. He had read the contents of his affidavit Ex.DW1/1. He can produce the diary maintained by him regarding the payments, on the next date of hearing. He has also deposed that he has mentioned the payments made to Shokeen and Akhtar Ali in the said diary. Then, cross-examination of this witness (DW-1) was deferred at the request of Ld. Counsel for the plaintiff as this witness had stated that he could produce the said diary on the next date of hearing.
46. Then this witness (DW-1) had brought the diary and this witness had shown the original diary to the ld. Counsel for the plaintiff and during his cross examination by Ld. Counsel for the plaintiff, he had admitted that this diary Ex. DW-1/P1, produced by him in the court does not bear the signature of Shokeen and Akhtar Ali. He has voluntarily stated that he has mentioned the name of Akhtar Ali and Shokeen. He has also deposed that the name of son of Akhtar Ali namely Salman is also mentioned in this diary at point B, as he had also made payment to Salman on behalf of Akhtar Ali. He has denied that he has fabricated the diary Ex.DW1/P1 or that for the same reason it does not bear the signatures of Akhtar Ali and Shokeen. He has also deposed that the entries in the diary Ex.DW1/P1 are done in his handwriting. He writes only Hindi language. He can read only Hindi.
CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 34 OF 48 He has denied that the entries in the Ex.DW1/P1 are not in his handwriting. He has admitted that he had not given any notice in writing to Akhtar Ali, when he did not do the work, as per contract. He has also deposed that he had shifted his factory at 85, Near T.R. Sahny Showroom, Rajinder Nagar, Shahibabad, U.P. on 21.10.2020. He had received the notice sent by Akhtar Ali on 23.10.2020. He has also deposed that after 08.06.2020 he did not pay any money to Akhtar Ali. He had paid money to Shokeen. He had made all the payment to Shokeen and not to Akhtar Ali. He has also deposed that he had paid Rs. 500/- on dated 02.02.2020 and Rs. 1100/- on dated 02.02.2020, Rs. 15,000/- on dated 24.02.2020, Rs. 1,00,000/- on dated 28.02.2020, Rs. 5000/- on dated 04.03.2020, Rs. 1,00,000/- on dated 11.03.2020, Rs. 1,00,000/- on dated 13.03.2020, Rs. 5000/-on dated 22.03.2020, Rs.1,00,000/- on dated 11.05.2020, Rs.1,50,000/- on dated 15.05.2020, Rs.1,25,000/- on dated 30.05.2020, Rs.50,000/- on dated 03.06.2020, to Akhtar Ali. He has also deposed that there was no separate agreement of him with Shokeen. He has denied that he had not made any payment to Akhtar Ali as stated above. Only two contractors namely Akhtar Ali and Shokeen had worked at his site between February, 2020 to October, 2020. At the time of working of Akhtar Ali at his site, the draftsman available on the site was Sh. Bharat Goswami. Even at the time of working of Shokeen at his site, the draftsman available on the site was Sh. Bharat Goswami. He failed to tell the registration number of said draftsman. He has denied that the report of architect Ex.PW1/D1 is forged and fabricated. He has also deposed that he is the income tax payee. He has admitted that he did not show any payment to Sh. Akhtar Ali in his ITR. Sh. Akhtar Ali CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 35 OF 48 did not issue any receipt to him regarding any alleged payment. He has also deposed that he cannot say as to how in para no.7 of his written statement, he has mentioned the balance payment of Rs.3,86,000/- towards Akhtar Ali. He has denied that he had ever admitted an amount of Rs.20,32,275/-. He has denied that he has deposed falsely.
47. Since the case in hand, the plaintiff has sought to recover an amount of Rs. 8,12,910/- (Rupees Eight Lacs Twelve Thousand Nine Hundred Ten Only) along with interest @ 24% per annum from the date of filing of the suit till the date of realization of the decretal amount and the cost of the suit. So, the burden of proving of issue no. 1 was on the plaintiff.
48. The perusal of the record reveals that the plaintiff has claimed that the total cost of construction of property of the defendants was Rs. 20,32,275/- and the cost of construction was required to be paid by the defendants to the plaintiff, as per the stages, (which are discussed herein above in para no. 5 of this judgment). The plaintiff has also claimed that the rates of construction were settled between the plaintiff and the defendants, as mentioned in the agreement/samjhotaama Ex. PW-1/1 and claimed that despite of completion of work of construction, the defendants had paid only 60% amount and they have failed to make the payment of remaining 40% amount of the total cost of construction, which comes to Rs. 8,12,910/-. The plaintiff has also claimed that the said agreement/samjhotanaama Ex. PW-1/1 was executed between the parties at B-67, Street No.5, Loni Road, Shahdara, Delhi-110032.
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49. The perusal of the record reveals that the defendants in their joint written statement have claimed that the said agreement/samjhotanaama Ex. PW-1/1 was executed in the Ghaizabad (Uttar Pradesh) for the plot no. 85, Near T.R. Sahni Showroom Rajinder Nagar, Industrial Area, Sahibabad, Ghaziabad, (U.P.) and they have also claimed that since the said agreement/samjhotanaama Ex. PW-1/1 was executed between the parties at Ghaziabad (U.P.), qua the property situated in the area of District Ghaziabad, (U.P.) so, this court lacks territorial jurisdiction and in view of such claim made by the defendants in their joint written statement, the issue no. 2 was framed by the Predecessor of this Court and the burden of proving of issue no. 2 was on the defendants.
50. Since the perusal of the record reveals that defendants had sent the reply to the legal notice Ex. PW-1/4 and in para no. 1 of preliminary intimation thereof, the defendants have mentioned that the plaintiff had entered into a compromise deed dated 31.01.2020 at Delhi with Vipul Goyal for construction of plot no. 85, Near T.R. Sawhney Car Showroom, Rajinder Nagar, Industrial Area, Ghazibad, UP and further stated that certain terms and conditions were decided between both the parties. Whereas at the time of filing of the written statement, the defendants started claiming therein that the defendants had entered into samjhotanaama dated 31.01.2020 in Ghaziabad and since the property (regarding construction of which, the said samjhotanaama was entered into), is also situated in CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 37 OF 48 Ghaziabad, so, the defendants have disputed the territorial jurisdiction of this court.
51. Since the perusal of the record reveals that the stamp paper on which, the said agreement/samjhotanaama Ex. PW-1/1 was prepared, the same was purchased from Delhi in the name of the defendant no. 1 namely Sh. Shyam Lal Aggarwal and the perusal of the cross examination of defendant no. 1 (DW-1) also reveals that defendant no. 1 has admitted that in the year, 2019-20, he used to run his business from B-67, Durgapuri Chowk, Shahadara, Delhi - 32 and the said property was owned by him and he had sold the said property and he had shifted from B-67, St. No. 5, Loni Road, Shahdara, Delhi - 32 to Plot No. 85, Near T.R. Sahani Showroom, Rajinder Nagar Industrial Area, Shahibabad, Ghaziabad, U.P. in the month of October, 2020. thus it is clear that at the time of execution of the said samjhotanaama Ex. PW-1/1, the defendants were running their business in the said property bearing no. B-67, St. No. 5, Loni Road, Shahdara, Delhi - 32.
52. Since the perusal of the para no. 15 of affidavit of the plaintiff (tendered in evidence) Ex. PW-1/A reveals that plaintiff has deposed therein that on dated 31.01.2020, the agreement was executed between the parties at the address of the defendants i.e. B- 67, St. No. 5, Loni Road, Shahdara, Delhi - 32 and the perusal of the cross examination of the plaintiff reveals that the Ld. Counsel for the defendants did not give any suggestion to the plaintiff that the said agreement/samjhotanaama Ex. PW-1/1 was executed in CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 38 OF 48 Ghaziabad, UP. In view of the cross examination of Defendant no. 1 (DW-1), and unrebutted and unimpeached testimony of the plaintiff (PW-1), since the stamp paper, whereon, the said agreement/samjhotanaama Ex. PW-1/1 was prepared, was also purchased from Delhi in the name of the defendant no. 1, and since the defendants have admitted in the reply to the legal notice Ex. PW-1/4 that the said compromise deed dated 31.01.2020, was entered into with Sh. Vipul Goyal at Delhi, so, such admission of the defendants in the reply to the legal notice Ex. PW-1/4, is the best evidence to hold that the said samjhotanaama Ex. PW-1/1 was entered into between the parties to the present lis at Delhi and in view of execution samjhotanaama Ex. PW-1/1 within the territorial jurisdiction of this court, the part of cause of action has arisen within the territorial jurisdiction of this court, therefore, this court is inclined to hold that the defendants have failed to prove on record that said samjhotanaama Ex. PW-1/1 was executed at Ghaziabad or that this court lacks territorial jurisdiction to try and entertain the present suit. So, issue no. 2 is decided in favour of the plaintiff and against the defendants.
53. No doubt that the plaintiff has claimed that total cost of work of construction of the property of defendants situated at Plot no. 85, Near T.R. Sawhney Showroom Rajinder Nagar Industrial Area, Shahibabad, Ghaziabad, U.P. is Rs.20,32,275/-, but, in order to fortify such averments, the plaintiff has failed to bring on record any cogent evidence, except the oral testimony of the plaintiff, since the defendants have disputed the same and the defendants have claimed CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 39 OF 48 that total cost of construction was Rs. 19,25,974.48paise/- therefore, in the considered opinion of this court, the such oral testimony of the plaintiff is not sufficient to hold that the total cost of construction of the property was Rs. 20,32,275/-.
54. The perusal of the reply to the legal notice Ex. PW-1/4 and joint written statement of the defendants reveal that defendants have claimed that as per the report of architect, the cost of construction was 19,25,974.48paise/-. The ld. Counsel for the defendants during cross examination of plaintiff, had put up the report of M/s Kastiya Designs Ex. PW-1/D1 before him, but the plaintiff has denied the correctness of the calculation of cost therein.
55. The Ld. Counsel for the plaintiff has submitted that in this report of architect, the cost of construction regarding the ground floor P.C.C 127 ft. 6 inch x 125 ft. = 3437 Sq. Ft. is not mentioned said report of M/s Kastiya Designs Ex. PW-1/D1. He has also submitted that the architect had omitted to write the cost of construction regarding the same and submitted if, the amounts mentioned in the said report are looked into, the total there is Rs. 17,52,810/- and submitted that if the amount of cost of Rs. 1,73,164/- regarding the construction of PCC 127 ft. 6 inch x 125 ft. = 3437 Sq. Ft. is added therein, then the, total amount comes to Rs. 19,25,974/-, which is similar to the amount of total cost of construction, as claimed by the defendants.
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56. Since the defendants have claimed that total cost of construction of their property was Rs. 19,25,974/-. Since the plaintiff has failed to bring on record any cogent evidence regarding the total cost of construction of the said property of the defendants to the tune of Rs. 20,32,275/-. So, in the given circumstances, total cost of construction, to the tune of Rs. 19,25,974.48 paise/- as claimed by the defendants, is relied upon by this court. The perusal of the record reveals that the plaintiff has relied upon the shamjhotanaama dated 31.01.2020 Ex. PW-1/1, which is signed by the plaintiff and the defendant no. 1 as party to the same and defendant no. 2, Sh. Vipul Goyal and Sh. Shokeen had signed the same, as witness thereto. The perusal of the reply to the legal notice Ex.PW1/4 reveals that the defendants have claimed therein that the said compromised deed dated 31.01.2020 was entered into with Sh. Vipul Goyal i.e. defendant no.2. The plaintiff has claimed that the said samjhotanaama was executed on dated 31.01.2020 at B-67, Durga Puri Shahdara, Delhi. The perusal of the reply to the legal notice Ex. PW-1/4 sent by the Ld. Counsel for the defendants reveals that the defendants have admitted that the said compromise dated 31.01.2020 was entered into with (defendant no. 2) namely Sh. Vipul Goyal on dated 31.01.2020 at Delhi. The defendants have also stated in their joint written statement that it was not executed between the plaintiff and defendants. Thus the contents of the written statement are self contradictory and also inconsistent to the contents of their reply to the legal notice Ex.PW1/4.
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57. The perusal of the record reveals that the defendants in the reply to the legal notice Ex. PW-1/4 have claimed that as per the report of architect, the total cost of construction was Rs. 19,25,974.48paise/- and out of which Rs. 16,72,000/- was paid to the plaintiff and work was completed through someone and they have also claimed that the plaintiff had issued the receipt on a paper regarding receiving of Rs. 16,72,000/- and the defendants have also claimed that this fact was also admitted by the plaintiff on whatsapp on dated 28.10.2020. It is also claimed by the defendants in the reply to the legal notice that the plaintiff had shown the balance amount of Rs. 3,86,000/- in the said whatsapp messages. The defendants have also claimed in the said reply to the legal notice Ex. PW-1/4, that the plaintiff had claimed the balance amount of Rs. 8,12,810. The defendants have claimed that there is contradiction regarding the balance amount in the legal notice Ex. PW-1/2 and the whatsapp messages.
58. The perusal of the record also reveals that the defendants have failed to bring on record any such receipt of Rs. 16,72,000/- allegedly prepared on paper by the plaintiff, the defendants have also failed to bring on record any alleged whatsapp messages of the plaintiff dated 28.10.2020 to show that plaintiff had ever claimed the balance amount Rs. 3,86,000/- in any whatsapp message and the perusal of the record also reveals that the defendants no. 1 during his cross examination has deposed that his phone has already been lost, regarding which he had also lodged a complaint in the police station, Ghaziabad, but, defendant no. 1 has failed to bring on record any copy of report CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 42 OF 48 regarding the missing of his mobile phone. Wherein he claimed to have received such message of the plaintiff.
59. It is worthwhile to mentioned here that the defendants in their joint written statement have claimed that the plaintiff did not do the work of construction and claimed that the Shokeen had completed the work of construction and also claimed that the Shokeen had received the payment against the work done by him. Whereas the perusal of the reply to the legal notice Ex. PW-1/4 reveals that defendants have admitted therein that the work was done by this plaintiff and Mr. Shokeen and also stated that Rs. 16,72,000/- was paid by the defendants to the plaintiff.
60. It is worthwhile to mention here at the time of cross examination of defendant no. 1 (DW-1) had admitted that the plaintiff had worked in the property of the defendants bearing no. Plot No. 85, Near T.R. Sahni Showroom Rajinder Nagar Industrial Area, Sahibabad, Ghaziabad, U.P. since February,2020 to October, 2020 Thus the testimony of the defendant no. 1 is found to be self contradictory. The perusal of the joint written statement shows that the defendants have claimed that no construction was done by the plaintiff and the defendants have claimed therein that the construction was done by Shokeen and the defendants have also claimed that Shokeen had received the payment against the work done by him.
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61. It is also pertinent to mention here that DW-1, during his cross examination has produced a dairy Ex. DW-1/P1 and on seeing the said dairy, he could give the details of payments of total amount of Rs. 7,51,600/- paid to Akhtar Ali, but, as the said dairy does not bear the signature of plaintiff, Shokeen, Akhtar Ali. So, the said dairy Ex. DW-1/P1does not inspire any confidence. So, the same is not relied upon.
62. It is also pertinent to mention here that defendants in their joint written statement have denied that Akhtar Ali had done any work of construction and claimed that only Shokeen had done work on the sites of the defendants. Since defendant no. 1 has been examined as DW-1 and during his cross examination, he has admitted that plaintiff Akhtar Ali had worked in property bearing no. Plot no. 85, Near T.R. Sawhney Car Showroom, Shahibabad, Ghaziabad since February, 2020 to October, 2020 and also claimed that he has made the payment of Rs. 16,72,000/- to the plaintiff and defendant no. 1 has also admitted that during his cross examination only 2 contractors namely Akhtar Ali and Shokeen had worked on his site from February. 2020 to October, 2020 and DW-1 has also admitted that after 08.06.2020, he did not pay any money to Akhtar Ali and thus it is proved on the record that work of construction was completed by the plaintiff on the site of the defendants and then the defendants had shifted therein and Sh. Shokeen has been examined as PW-2 and Sh. Shokeen in his affidavit Ex. PW-2/A has deposed that he had worked under the plaintiff. He has also proved the execution of the samjhotanaama Ex. PW-1/1 and identified his signature thereon and the perusal of the CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 44 OF 48 cross examination of Sh. Shokeen reveals that during his cross examination, the Ld. Counsel for the defendants had given the suggestion to him that he never worked on site of the defendants. Since the defendants have taken the plea in their written statement that the work of construction was not done by the plaintiff and also claimed therein that Sh. Shokeen had done the work of construction in the property of the defendants. So, for the best reason known to the Ld. Counsel for the defendants, he had given such suggestion to Sh. Shokeen (PW-2) that he had never worked on the site of the defendants and such suggestion was denied by Sh. Shokeen (PW-2). The defendants have failed to bring on record any proof of payment regarding the total cost of constructions of their property to Sh. Shokeen (PW-2) as claimed by them and perusal of the cross examination of Sh. Shokeen (PW-2) reveals that no suggestion has been given to PW-2 to rebut his testimony regarding doing of work of construction at the site of the defendants by Sh. Shokeen under the plaintiff.
63. It is also worthwhile to mentioned here that the defendant No.1 during cross examination has also claimed to have made the payment to son of Akhtar Ali, but, defendants did not mention this fact anywhere in their joint written statement or their reply to the legal notice Ex. PW-1/4.
64. Since the plaintiff has claimed that total cost of construction on the site of the defendants was Rs. 20,32,275/- and claimed defendants had paid only 60% and also claimed that defendants are liable to pay CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 45 OF 48 an amount of Rs. 8,12,910/-, but, the plaintiff has failed to bring on record any cogent evidence to prove that the total cost of construction of property of the defendants was Rs. 20,32,275/- and since the defendants had admitted in the reply to the legal notice Ex. PW-1/4, that total cost of construction was Rs. 19,25,975.48paise/- and the defendants have claimed that Rs. 16,72,000/- have already been paid to the plaintiff. Since the defendants have denied in their written statement that the plaintiff had worked on their site and claimed that one Shokeen had done the work of the construction on the property of the defendants, but, Sh. Shokeen has proved on the record that he worked under the plaintiff. Since the testimony of defendant no. 1 (DW-1) is found to be self contradictory and inconsistent to the contents of reply to the legal notice Ex. PW-1/4 and written statement and DW-1 during his cross examination had deposed that the work of the construction on the site of the defendants between February, 2020 To October, 2020 was done by Sh. Akhtar Ali and this DW-1 has also admitted that after dated 08.06.2020, he did not pay any money to the plaintiff. Since Samjhotanama Ex. PW-1/1 is an admitted document, in accordance with which, the payments to the plaintiff was required to be made by the defendants stage-wise, and as per cross examination of DW-1, the plaintiff did the work of construction till October, 2020 and after 08.06.2020, the defendant did not make any payment to the plaintiff. Therefore, the testimony of DW-1 is found to be inconsistent to the contents of written statement and reply to the legal notice. So, this court does not find any force in the submissions of the Ld. Counsel for the defendants.
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65. Since the plaintiff has admitted that he did not maintain the record of payment made to him by the defendants. So, in the given circumstances, the testimony of the DW-1 becomes relevant, wherein he has deposed that he had paid an amount of Rs. 16,72,000/- to the plaintiff and since the defendants have claimed that the total cost of construction of their property was Rs.19,25,974.48 paise/- and the defendant no.1 during his cross examination deposed that this plaintiff had worked on his site since February, 2020 till October,2020 and after 08.06.2020, he did not pay any money to the plaintiff. So, this court is inclined to hold that after deduction of amount of Rs. 16,72,000/- from the total cost of construction of Rs. 19,25,974,48paise/-, the plaintiff is entitled to recover an amount Rs. 2,53974.48paise/-from the defendants. No doubt that the plaintiff has claimed 24% interest per annum on this suit amount. But, in the considered opinion of this court, the rate of interest @ 24% per annum claimed by the plaintiff appears to be exorbitant, so, this Court is inclined to hold the that plaintiff is entitled to recover an amount of Rs. 2,53,974.48paise/-, along with interest @ 9% per annum on the decretal amount from the date of institution of the suit till the realization of the decretal amount and cost from the defendants. In the abovesaid terms, the issue no.1 is decided in favour of the plaintiff and against the defendants.
RELIEF:-
66. In view of my finding on issue no. 1 and issue no. 2 decided in favour of the plaintiff and against the defendants, the suit of the plaintiff for recovery of an amount of Rs. 2,53,974.48paise/- along CS (COMM) 388/23 SHRI AKHTAR ALI VS. SHRI SHYAM LAL AGGARWAL & ORS. PAGE NO. 47 OF 48 with interest @ 9% per annum from the date of institution of the suit till the realization of the decretal amount is decreed with cost of the suit. The defendants are directed to pay Rs. 2,53,974.48paise/- along with interest @ 9% per annum on the decretal amount from the date of institution of the suit till the realization of the decretal amount and cost to the plaintiff.
67. Decree sheet be prepared accordingly.
68. File be consigned to record room..
PAWAN Digitally
by PAWAN
signed
KUMAR KUMAR MATTO
Date: 2025.04.26
MATTO 16:38:43 +0530
Announced in the open (PAWAN KUMAR MATTO)
court on this day DISTRICT JUDGE.
of 26.04.2025 (COMMERCIAL COURT-04)
SHAHDARA, KKD COURTS, DELHI.
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