Delhi District Court
M/S Red Floor India vs Surender Nayyar Etc on 29 October, 2024
IN THE COURT OF SH. YASHU KHURANA,
CIVIL JUDGE-01, SOUTH EAST DISTRICT, SAKET
COURTS, NEW DELHI
Presiding Officer: Sh. Yashu Khurana, DJS
Suit No. CS SCJ 1532/2021
In the matter of:-
M/s Red Floor India,
Through authorized representative
Mr. Bindhy Basani Ram,
having its registered office at
AB1, 2nd Floor, Community Centre
Safdarjung Enclave (Opp. Safdarjung Club)
New Delhi- 110029. ... Plaintiff
Vs.
1. Mr. Surender Nayyar
R/o B-33, Greater Kailash-1,
New Delhi- 110048.
2. Mr. Raghav Nayyar
S/o Mr. Surender Nayyar
R/o B-33, Greater Kailash-1,
New Delhi- 110048. ....Defendants
Date of institution of Suit : 14.12.2021
Date on which Judgment was reserved : 05.10.2024
Date of pronouncement of the Judgment : 29.10.2024
AND
In the Counter claim /suit no. CS SCJ 623/22
In the matter of:-
1. Mr. Surender Nayyar
R/o B-33, Greater Kailash-1,
New Delhi- 110048.
CS SCJ 1532/2021 RED FLOOR INDIA v. SURENDER NAYYAR & ANR. Page no. 1 of 15
and
CS SCJ 623/2022 SURENDER NAYYAR & ANR. v. RED FLOOR INDIA
Digitally
signed by
yashu
yashu khurana
khurana Date:
2024.10.29
16:22:05
+0530
2. Mr. Raghav Nayyar
S/o Mr. Surender Nayyar
R/o B-33, Greater Kailash-1,
New Delhi- 110048. ... Plaintiff
Vs.
M/s Red Floor India,
Through authorized representative
Mr. Bindhy Basani Ram,
having its registered office at
AB1, 2nd Floor, Community Centre
Safdarjung Enclave (Opp. Safdarjung Club)
New Delhi- 110029. ....Defendants
Date of institution of counter-claim : 09.03.2022
Date on which Judgment was reserved : 05.10.2024
Date of pronouncement of the Judgment : 29.10.2024
SUIT FOR RECOVERY OF MONEY ALONG WITH
PENDENTE-LITE INTEREST ALONG WITH COUNTER
CLAIM ON BEHALF OF THE DEFENDANT NO. 1 AND 2.
1. Vide this judgment, I shall dispose of CS SCJ No.
1532/2021 i.e. Red Floor India v. Surender Nayyar & Anr and
CS SCJ No. 623/2022 i.e. Surender Nayyar & Anr. V. Red Floor
India. Suit bearing no. 623/2022 is the counter-claim filed by the
defendants in CS SCJ No. 1532/2021. Hence, both the suits are
being disposed of vide this common judgment. For the brevity of
the decision the nomenclature/ status of the parties in CS SCJ
1532/21 is being used in the judgment, hereinafter.
Brief Facts: -
CS SCJ 1532/2021 RED FLOOR INDIA v. SURENDER NAYYAR & ANR. Page no. 2 of 15 and CS SCJ 623/2022 SURENDER NAYYAR & ANR. v. RED FLOOR INDIA Digitally signed by yashu khurana yashu Date:
khurana 2024.10.29 16:22:16 +0530
2. M/s Red floor India (hereinafter referred to as "plaintiff") is a whole seller, distributor, manufacturer, supplier, trader, retailer and service provider for Pergo- company engaged in offering a range of laminated floorings. Plaintiff has filed the present suit for recovery of Rs.81,599/-. Surender Nayyar, (hereinafter defendant no. 1) who was introduced to the plaintiff by son in law of defendant No. 1, for the purpose of getting real wood flooring done at defendant no 1's residence. Raghav Nayyar, (hereinafter defendant no. 2) i.e. son of defendant no. 1 has also engaged the plaintiff for the purpose of installation of flooring of his residence.
3. After multiple visits at defendant no.1's residence, which included examination of the wood flooring samples arranged by the plaintiff, defendant No. 1 finalised walnut engineered wood flooring from 'Quick Step' and paid an advance of Rs.1,00,000/-. Thereafter, flooring boxes were delivered, and the installation process was initiated. However, defendant no. 1 asked to change the material and go ahead with walnut engineered wood flooring from 'Kingdom Floors' instead of 'Quick Step'. Accordingly, the quotation was revised to Rs.3,18,617/- and defendant made additional payment of Rs.1,00,000/- leaving a balance of Rs.1,18,617/-. Thereafter the flooring boxes were delivered and balance amount was demanded by plaintiff, but defendant no. 1 involved his son in law, and remitted only Rs.50,000/-; leaving a balance of CS SCJ 1532/2021 RED FLOOR INDIA v. SURENDER NAYYAR & ANR. Page no. 3 of 15 and CS SCJ 623/2022 SURENDER NAYYAR & ANR. v. RED FLOOR INDIA Digitally signed by yashu yashu khurana Date:
khurana 2024.10.29 16:22:33 +0530 Rs.68,617/- defendant no.1 promised to pay the balance, on the date of completion.
4. During the same period defendant no. 2 had also availed plaintiff's services where the quotation value amount was Rs.60,181/-, out of which defendant no. 2 paid only Rs.50,000/- and an amount Rs.10,182/- is still outstanding from defendant no. 2.
5. Despite completion of the work defendants failed to pay the outstanding amount. Hence, the present suit bearing no. CS SCJ 1532/21 was filed by the plaintiff.
6. Defendants filed a counter claim along with the written statement which was registered as a separate suit bearing no. CS SCJ 623/2022. Defendants claimed that the wooden flooring installed at defendant no.1's residence was termite infested. Accordingly, they seek recovery of Rs.2,50,000/- which was paid to the plaintiff for installation of the flooring at defendants' premises, along with damages of Rs.23,600/- from the plaintiff. Due to the inferior quality products supplied by plaintiff to defendant no. 1, both the defendants claim that they are not liable to pay the outstanding amount as claimed by the plaintiff.
7. Based on the pleadings, the following issues were framed in CS SCJ No. 1532/2021: -
CS SCJ 1532/2021 RED FLOOR INDIA v. SURENDER NAYYAR & ANR. Page no. 4 of 15 and CS SCJ 623/2022 SURENDER NAYYAR & ANR. v. RED FLOOR INDIA Digitally signed by yashu yashu khurana Date:
khurana 2024.10.29 16:22:44 +0530 "(1) Whether the defendant has suffered losses owing to defective materials supplied by the plaintiff to the defendant and to what extent?OPD.
(2) Whether the plaintiff is entitled to recover an amount of Rs.81,559/- from the defendant?OPP.
(3)Whether the plaintiff is entitled to interest as prayed for in prayer clause (b) of the plaint?OPP.
(4) Whether the plaintiff is entitled to costs as prayed for in prayer clause (c) in the plaint?OPP.
(5) Relief."
8. Similarly, following issues were framed in the CS SCJ 623/2022: -
"(1) Whether the counter-claimants are entitled to recover an amount of Rs. 2,73,600/- from the defendant?OPP.
(2)Whether the counter claimants are entitled to interest as prayed for in prayer clause (b) of the counter-claim?OPP.
(3) Relief."
9. Vide order dated 01.05.2024 passed in counter claim, parties adopted their evidence in CS SCJ no. 1532/2021.
CS SCJ 1532/2021 RED FLOOR INDIA v. SURENDER NAYYAR & ANR. Page no. 5 of 15 and CS SCJ 623/2022 SURENDER NAYYAR & ANR. v. RED FLOOR INDIA Digitally signed by yashu yashu khurana khurana Date:
2024.10.29 16:22:50 +0530
10. To prove its case plaintiff examined its authorized representative, Sh. Bindhy Basani Ram, who tendered his evidence by way of affidavit i.e. Ex.PW 1/A and relied upon the following documents: -
SL Documents Exhibits
1 Authority letter dated 26.10.2021 Ex.PW1/1
2 True copy of initial quotations Mark A (colly)
shared with the defendant by the
plaintiff
3 True copy of delivery challan Mark B
towards supply of material to the defendants by the plaintiff 4 True copy of invoice No. Ex.PW1/2 RFI/GST/117 dated 25.07.2021 5 True copy of invoice No. RFI/ Ex.PW1/3 GST/120 dated 28.07.2021 6 True copy of invoice No. RFI/ Ex.PW1/4 GST/0176 dated 06.09.2021 7 True copy of invoice No. RFI/ Ex.PW1/5 GST/116 dated 25.07.2021 8 Screenshots of whatsapp Ex.PW1/6 conversations (colly) 9 Report dated 18.10.2021 Ex.PW1/7 (OSR) 10 Affidavit/ certificate under Ex.PW1/8 Section 65-B of Indian Evidence Act 11 Plaint Ex.PW1/9 (same is de-exhibited)
11. To prove the counter-claim defendants examined defendant no. 2, who tendered his evidence by way of affidavit i.e. Ex. DW 1/A and relied upon the following documents: -
SL Documents Exhibits
CS SCJ 1532/2021 RED FLOOR INDIA v. SURENDER NAYYAR & ANR. Page no. 6 of 15
and
CS SCJ 623/2022 SURENDER NAYYAR & ANR. v. RED FLOOR INDIA
Digitally
signed by
yashu
yashu khurana
khurana Date:
2024.10.29
16:22:55
+0530
1 Copy of Special Power of Ex. DW1/1
Attorney (OSR)
2 Invoice RFI/GST/176 dated Ex. DW1/2
06.09.2021 (same is de-
exhibited and
marked as Mark
A
3 Photographs of infested installed Ex. DW1/3
material (colly)
4 Email dated 01.11.2021 Ex. DW1/4
5 Email dated 15.11.2021 Ex. DW1/5
6 Bill/ Invoice raised for pest Ex. DW1/6
control (same is de-
exhibited and
marked as
Mark B
Final arguments: -
12. Ld. Counsel for the plaintiff reiterated the contents of the plaint and stated that plaintiff is entitled to recover Rs.68,617/- from defendant no.1 and Rs.10,182/- from defendant no. 2, along with Rs.2,760/- as interest on the outstanding amount till the institution of the present suit. He relied upon Mark A i.e. true copy of initial quotations shared by plaintiff with the defendants. He stated that the aforesaid document has duly been proved as defendant has admitted the document and his signatures on the aforesaid document. He stated that defendants have stopped payment on account of termite issue, however, plaintiff was only liable for the quality of the product and its installation. It was defendants' obligation to ensure that floor was dry and free from termites. He further relied upon Ex.PW1/7 i.e. report of the pest controller, dated 18.10.2021 to state that there is no termite issue at plaintiffs warehouse.
CS SCJ 1532/2021 RED FLOOR INDIA v. SURENDER NAYYAR & ANR. Page no. 7 of 15 and CS SCJ 623/2022 SURENDER NAYYAR & ANR. v. RED FLOOR INDIA Digitally signed by yashu yashu khurana khurana Date:
2024.10.29 16:23:01 +0530
13. Per contra, ld. counsel for the counter-claimants stated that there was no termite issue on defendant no. 1's floor and if there was any moisture issue at the property, then plaintiff should have raised objection at the time of installation.
Brief analysis of the dispute between the parties: -
14. Plaintiff had installed wooden flooring on defendant no. 1's floor and after installation termite issue was encountered by defendant no. 1 because of which he refused to pay the outstanding amount of Rs.68,617/-. Due to the aforesaid issue defendant no. 2 also refused to pay the outstanding amount of Rs.10,650/-. Simultaneously, defendants have claimed an amount of Rs. 2,73,600/- as refund and damages. Plaintiff claims that termite issue arose due to defendants fault, whereas, defendants attribute the same to the plaintiff. They claim that the goods were already infested with termite.
Issue-wise findings and analysis : -
Issue no.1: Whether defendant has suffered losses owing to defective material supplied by the plaintiff to the defendant to what extent? OPD Considering the pleadings of the parties, the issue is amended to read as under: -
CS SCJ 1532/2021 RED FLOOR INDIA v. SURENDER NAYYAR & ANR. Page no. 8 of 15 and CS SCJ 623/2022 SURENDER NAYYAR & ANR. v. RED FLOOR INDIA Digitally signed by yashu yashu khurana Date:
khurana 2024.10.29 16:23:07 +0530 "Whether defendant no. 1 has suffered losses owing to defective material supplied by the plaintiff to defendant no. 1's to what extent? OPD1"
The aforesaid issue is being taken up with the following issues framed in the counter claim.
"Whether counter claimants are entitled to recover Rs. 2,73,600/- from the defendant?" OPP; and Whether the counter claimants is entitled to interest as prayed for in prayer clause (b) of the counter claim? OPP
15. To discharge the burden of proof cast upon defendant no.1, he had to prove beyond preponderance of probabilities that, there has been a breach of contract. He had to prove that plaintiff had supplied defective products to him. Secondly, he had to prove that he has suffered loss/ damage due to the breach of contract.
16. To prove the breach of contract defendant no. 1 relied upon the testimony of PW-1, wherein he has stated that there was no termite issue prior to installation of wooden flooring on the site. Based on the aforesaid testimony, it is alleged that termite infestation arose due to wooden flooring installed by plaintiff. It is claimed that wooden flooring itself was termite infested.
CS SCJ 1532/2021 RED FLOOR INDIA v. SURENDER NAYYAR & ANR. Page no. 9 of 15 and CS SCJ 623/2022 SURENDER NAYYAR & ANR. v. RED FLOOR INDIA Digitally signed by yashu yashu khurana Date:
khurana 2024.10.29 16:23:14 +0530
17. Per contra, plaintiff has relied upon testimony of DW-1, who deposed on behalf of defendant no. 1. Based on his testimony, plaintiff contended that the wooden flooring was delivered in presence of defendants, and they did not raise any objection at the time of accepting delivery of the goods. Plaintiff contended that the installation of wooden flooring for defendant no. 1 was completed on 30.08.2021, however, defendant no.1 raised the termite issue for the first time in October 2021. Accordingly, it was contended that defendant no.1 have failed to discharge the burden of proving that defective goods were supplied to him by the plaintiff. He further, relied upon testimony of DW-1, wherein he has accepted that checking for termite at the site, was not part of plaintiff's scope of service. He also relied upon document bearing Mark-A i.e. quotation of work order, to contend that as per the contract, defendant no. 1 was obliged to ensure that base/sub-floor is dry, free from moisture or water ingress. Therefore, the possibility of termite infestation arising due to moisture and dampness of defendant no. 1 property cannot be denied.
18. Considering the rival contentions raised by the parties, it cannot be said that defendant no. 1 has discharged the burden of proof cast upon him. Defendant no. 1 was required to prove that the there has been a breach of contract whereby, defective and termite infected wooden flooring was supplied to him. Considering the fact that defendant no.1 did not raise any CS SCJ 1532/2021 RED FLOOR INDIA v. SURENDER NAYYAR & ANR. Page no. 10 of 15 and CS SCJ 623/2022 SURENDER NAYYAR & ANR. v. RED FLOOR INDIA Digitally signed by yashu khurana yashu Date:
khurana 2024.10.29 16:23:19 +0530 complaint regarding the wooden flooring at the time of accepting of delivery of flooring and raised the dispute in October, 2021 i.e. i.e. 2 months of installations. It cannot, on the preponderance of probabilities, be concluded that plaintiff had delivered defective wooden flooring to defendant no. 1.
19. Additionally, as per document bearing Mark-A, which has been admitted by DW-1 in his cross-examination, defendant no. 1 was obliged to ensure that base/sub-floor is dry, free from moisture or water ingress. Defendant no.1 has failed to prove that the base/sub-floor was free from moisture/water ingress at the time of installation of flooring and after the installation. Based on PW1's statement that, there was no termite infestation at the time of installation of wooden flooring, it cannot be said that the wooden flooring itself was termite infected.
20. In the present case, defendant no. 1 has failed to prove that termite infestation at the site could not have occurred except from termite infected wooden flooring supplied by plaintiff. Defendant no. 1 has failed to prove the possibility of moisture, water ingress or dampness of the property, which could have also resulted in termite infestation at the property. Therefore, defendant no.1 has failed to discharge the burden of proving the issue at hand, and has not been able to prove that defendant no. 1 has suffered a breach of contract caused the plaintiff. Accordingly, it is held that the counter claimants / CS SCJ 1532/2021 RED FLOOR INDIA v. SURENDER NAYYAR & ANR. Page no. 11 of 15 and CS SCJ 623/2022 SURENDER NAYYAR & ANR. v. RED FLOOR INDIA Digitally signed by yashu yashu khurana Date:
khurana 2024.10.29
16:23:24
+0530
defendants have not been able to prove that they are entitled to recover Rs. 2,73,600/- from the non-counter claimant/plaintiff and interest thereupon.
Issue no. 2 : Whether plaintiff is entitled to recover Rs. 81,559/- from the defendants? OPP
21. To discharge the burden of proving this issue, plaintiff was required to prove existence of a valid contract between the parties and non-payment of the outstanding amount. It is admitted by the defendants that they had entered a contract with the plaintiff for installation of wooden flooring at defendant no. 1's premises and vynl flooring at defendant no. 2's premises. Therefore, the plaintiff has successfully discharged the first limb of onus cast upon it. To prove the outstanding liability of defendants, plaintiff relied upon Ex.PW1/2 to Ex.PW1/5 i.e copy of invoices raised by plaintiff for the services rendered for defendant no. 1 and defendant no. 2.
22. As per the invoices, defendant no. 1 was liable to pay Rs.3,18,617/- out of which defendant no. 1 has already paid Rs. 2,50,000/-. Similarly, as per the invoice's defendant no. 2 was liable to pay Rs.60,182/- out of which defendant no.2 has paid Rs.50,000/-. Plaintiff also relied upon Ex.PW1/6 i.e. print out of whatsapp chats between plaintiff and defendant no. 1. Perusal of the conversation reveals that defendant no.1 refused to clear the dues owing to a door profile issue.
CS SCJ 1532/2021 RED FLOOR INDIA v. SURENDER NAYYAR & ANR. Page no. 12 of 15 and CS SCJ 623/2022 SURENDER NAYYAR & ANR. v. RED FLOOR INDIA Digitally signed by yashu yashu khurana khurana Date:
2024.10.29 16:23:31 +0530
23. Per contra, defendant no. 1 in the written statement denied the outstanding liability. He stated that the wooden flooring installed by plaintiff was termite infested, hence, he is not liable to pay the outstanding amount. He also stated that the invoice bearing no. RFI/GST/0176 dated 06.09.2021 for Rs. 34,515/- is forged and fabricated as the invoice given to him is for Rs. 21,948/-.
24. Since, it has been adjudicated hereinabove that defendant no. 1 has failed to prove that the loss caused to him was attributable to Plaintiff, hence defendant no. 1 has no ground for denying his outstanding liability. With respect to the discrepancy of amount in the invoice bearing no. RFI/GST/0176 dated 06.09.2021, defendants have failed to prove their contention by way of primary evidence. They have also not furnished any ground for leading secondary evidence. Hence, there is no discrepancy in the outstanding amount recoverable from defendant no. 1. Accordingly, on the preponderance of probabilities, its held that Plaintiff is entitled to recover Rs. 68,617/- from defendant no.1.
25. Perusal of the pleadings further reveals that defendant no. 2 has not raised any defense for not making the outstanding payment to Plaintiff, nor has he denied the outstanding liability. Accordingly, defendant no.2 is deemed to have admitted his liability. Hence, plaintiff is entitled to recover Rs. 10,182/- from defendant no. 2.
CS SCJ 1532/2021 RED FLOOR INDIA v. SURENDER NAYYAR & ANR. Page no. 13 of 15 and CS SCJ 623/2022 SURENDER NAYYAR & ANR. v. RED FLOOR INDIA Digitally signed by yashu yashu khurana Date:
khurana 2024.10.29
16:23:36
+0530
26. Plaintiff has failed to furnish grounds for claiming interest of Rs. 2,760/- on the outstanding amount of Rs. 78,799/- till the filing of the suit. Hence, plaintiff is not entitled to recover 2,760/- from the defendants.
Issue no. 3: Whether plaintiff is entitled to interest as prayed for in prayer clause (b) of the plaint? OPP
27. Plaintiff has claimed interest @18% p.a on the outstanding amount from the defendants. However, no ground has been made out to justify the afore-mentioned rate of interest. However, taking note of the commercial nature of transaction between the parties, this court deems it appropriate to award pendente-lite and future interest on the outstanding amount of Rs.78,799/- to the plaintiff @ 10% p.a. Issue no. 4: Whether plaintiff is entitled to cost as prayed for in prayer clause (c) of the plaint? OPP
28. No order as to costs. Cost of the suit and the counter claim are to be borne by the parties.
Relief:-
29. In view of the foregoing reasons, the present suit is decreed in favour of the plaintiff and against the defendant. Plaintiff is entitled to recover Rs. 78,799/- from the defendant CS SCJ 1532/2021 RED FLOOR INDIA v. SURENDER NAYYAR & ANR. Page no. 14 of 15 and CS SCJ 623/2022 SURENDER NAYYAR & ANR. v. RED FLOOR INDIA Digitally signed by yashu yashu khurana khurana Date:
2024.10.29 16:23:42 +0530 along with interest @ 10% p.a. from the date of institution of the suit, till its realization. No order as to costs.
30. Original documents, if any, be returned to the rightful claimant against due acknowledgment after receipt of their certified copies on record.
31. After preparation of the decree sheets by the Reader, the files shall be consigned to the record room.
Digitally
Pronounced in the open yashu
signed by
yashu
khurana
Court on 29th October, 2024 khurana Date:
2024.10.29
16:23:45
+0530
(Yashu Khurana)
Civil Judge-01, South East
District, Saket, New Delhi
CS SCJ 1532/2021 RED FLOOR INDIA v. SURENDER NAYYAR & ANR. Page no. 15 of 15
and
CS SCJ 623/2022 SURENDER NAYYAR & ANR. v. RED FLOOR INDIA