Delhi District Court
Northern Nursery Thr. Prop. Sheetala ... vs . H & S Associates & Anr. on 19 August, 2023
Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
IN THE COURT OF ADDITIONAL DISTRICT
JUDGE02, SOUTH DISTRICT, SAKET COURTS
COMPLEX, NEW DELHI
Presiding Judge: Sh. Dinesh Kumar, DHJS
CS DJ No. 6692/2016
Filing No. 12103/2015
CNR No. DLST010007612015
In the matter of
Northern Nursery
having Office at
Bharat Sevak Samaj Nehru Sewa Kendra
Mehrauli Gurgaon Road, Delhi
Through Proprietor
Sheetala Prasad Pal
.........Plaintiff
Versus
1. H & S Associates
Office At C31, Ground Floor
Nathu Singh Market, Main Road,
Masoodpur, Vasant Kunj, Delhi
Presently HTC Sports Pvt. Ltd.
Through the Director
CS DJ No. 6692/2016
CNR No. DLST010007612015
Page 1 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023
Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
2. Himanshu Chaturvedi
Proprietor of H & S Associates
& Director of HTC Sports Pvt. Ltd.
Office At C31, Ground Floor
Nathu Singh Market
Main Road, Masoodpur
Vasant Kunj, Delhi.
.............Defendant
Date of Institution : 09.04.2015
Date of reserving the judgment : 27.07.2023
Date of pronouncement : 19.08.2023
Decision : Suit Decreed.
SUIT FOR RECOVERY OF RS. 11,91,000/(RUPEES
ELEVEN LAKH NINETY ONE THOUSAND ONLY)
WITH INTEREST, PENDENTE LITE AND FUTURE
INTEREST.
JUDGMENT
1. The plaintiff has filed the present suit for recovery of Rs. 11,91,000/ from the defendants along with interest @ 18% p.a., pendente lite and future interest. The case of the plaintiff, as per the plaint is as under: 1.1. The defendants had been awarded the contract for the construction of Sports Facilities in Shriram School at Agra, U.P. by the management of the said CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 2 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
school in the year 2012. The said contract had been executed by defendants in the year 20122013. 1.2. In furtherance of execution of the contract, the plaintiff has been orally called on for the execution of the part of the work awarded to the defendants pertaining to development of Lawn Tennis Court, landscaping and other allied work. The payment of the part of work executed on part of plaintiff was to be released by defendants as and when the work was executed properly and payment was released from the management of the school.
1.3. At the time of execution of work, certain deficiencies had been raised by defendants vide email dated 11.07.2013. In reply to the email, the plaintiff had rectified the deficiencies raised and had completed the work to the satisfaction of the defendants. The plaintiff had raised 11 bills with respect to the work executed in favour of defendants at Agra totaling to Rs. 16,54,570/.
1.4. The defendants had also made agreement with the plaintiff to execute some work at BPTP Manesar and Park Prime at Gurgaon. The same was executed CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 3 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
by plaintiff and no deficiencies / objections had been raised. The plaintiff had raised 5 bills regarding the said work totaling to Rs. 5,37,430/.
1.5. The total invoice value of 16 invoices raised was Rs. 21,92,000/ out of which Rs. 10,01,000/ has been paid by the defendants to plaintiff. The balance amount of Rs. 11,91,000/ is yet to be paid. 1.6. The defendants had issued cheque no. 160436 dated 10.08.2013 drawn on Corporation Bank, Hauz Khas Branch, Delhi. The cheque was dishonored due to reason 'funds insufficient'. The plaintiff, on pressure from defendants, had to sign adjustment voucher with respect to aforesaid cheque and had not initiated legal action with respect to bouncing of cheque at the appropriate time.
1.7. The plaintiff had received last payment from the defendants in March 2014. After that the defendants had stopped picking up telephone calls of the plaintiff. However on SMS, the plaintiff has been assured of the payment soon. Since July 2014, the defendant no. 2 had stopped responding to SMS of the plaintiff. 1.8. The plaintiff sent legal notice dated 21.01.2015 CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 4 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
to the defendants, calling upon the defendants to make balance payment of Rs. 11,91,000/. However, till date, no payment has been made by the defendants. No reply to the legal notice has been received. 1.9. This Court has territorial jurisdiction to adjudicate the present case as the plaintiff and the defendants have been residing within the territorial jurisdiction of this Court. The part cause of action for filing the present suit has arisen within the territorial jurisdiction of this Court. Hence, the present suit has been filed with the following prayers :
a) "Pass a decree for recovery in favour of the plaintiff and against the defendant for the sum of Rs. 11,91,000/ (Rupees Eleven Lakh Ninety One Thousand Only) along with pendente lite and future interest @ 18% p.a. on such amount till the date of its realization;
b) "Award costs of the suit; and
c) "Pass such further and/or other orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case and in the interest of justice"
2. Vide order dated 09.04.2015, the summons were directed to be issued to the defendants. The defendants appeared through counsel. Written statement was filed. The suit has been contested on the following grounds :
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2.1. The plaintiff has filed a false case. Due to the acts of gross misconduct, negligence and unprofessional conduct of the plaintiff, the defendant has suffered losses. It is the plaintiff who has committed breach.
2.2. The defendants are engaged in providing comprehensive range of sports development programmes for students in performance sports, recreational opportunities, events, coaching or broader sports development activities. The plaintiff was given the task of development of lawn tennis court with its landscaping and other allied work. The agreement was oral. The defendants were assured that the plaintiff would complete the work within stipulated time and that there would be no delay in completion of work assigned to him.
2.3. The plaintiff was made to understand before execution of the project that the reimbursement of the services would be only subject to receipt of a satisfactory note from the management of the school, to which the plaintiff agreed and started the work. 2.4. However, there were numerous complaints CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 6 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
from the School Authorities with regard to the shoddy irregularities in the work executed by the plaintiff. The said fact was brought to the knowledge of the plaintiff. He specifically admitted the irregularities in the work and assured to rectify / repair the same. 2.5. The defendants had sent an email dated 11.07.2013 pointing out the defects in the work carried out by the plaintiff which were yet to be completed. The extracts of the email are as under :
a) Foot field side doors do not have hooks and handles,
b) Chain fencing is not properly welded at many places,
c) Wiring in court lights is not proper, i.e. lot of wires are left open.
d) Every light pole MCB box are not water proofed and will get damaged in rain and become risky for children. Material supplied by you our scope of work only labourer.
e) The Court tiles that have been laid are 20% damaged. Some of them are of faded colour and some of them are more rougher than others. The CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 7 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
students are complaining of uneven bounce from many spots. Tiles are provided by you by our scope of work were only labour.
f) Paint work not proper both on fencing and plaster. In progress.
g) RCC base court getting cracked and is hollow at many places. Completed.
h) One base pole adjuster not working properly. Low quality material provided.
i) Other slider gate is not working at all. Working properly.
j) 30% plants are damaged. Work completed in front of your staff.
k) Kids field grass area not leveled. Completed. 2.6. The plaintiff failed to rectify those faults. The plaintiff was informed that payment of the bills raised by the plaintiff shall be released only after the rectification of sub standard work done by the plaintiff. The plaintiff, however, failed to do so due to which the defendant had to suffer enormous business losses and damage to their reputation and goodwill. 2.7. The bills raised by the plaintiff are forged and CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 8 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
fabricated. It was agreed between the parties that the payments for the execution of the work done would be subject to the "satisfaction note" from the management of the school. The plaintiff has not obtained any of such satisfaction note from the management of the school.
2.8. The bills raised by the plaintiff were consisting of enormous figures and charged at a very high and exorbitant rate compared to what was discussed and was to be charged. The plaintiff did not complete the BPTP work which caused damage to the defendant. The defendant had to engage services of another contractor to finish the work which was supposed to be executed by the plaintiff. It caused wrongful losses to the defendant. The plaintiff is trying to get the benefit of his own wrongs.
2.9. The defendant had provided the plaintiff with various equipment and material to carry out the work, the cost of which should have been deducted in the bills. However, the same has been added in the bills raised by the plaintiff and that too at very high and excessive rate. There are no merits in the suit of the CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 9 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
plaintiff. Hence, it is prayed that the suit may be dismissed.
3. The plaintiff filed replication to the written statement to the defendant. He denied all the allegations made in the written statement and reiterated the facts mentioned in the plaint. He would also state that the contract between the parties was for provision of services as well as goods. The amount was to be paid on completion of work. The defendants have not provided any details of the alleged loss suffered by them. The plaintiff had immediately rectified the complaint received through email dated 11.07.2013. The faults were rectified to the satisfaction of school management. The defendant had made payments till March 2014 i.e. even after the email dated 11.07.2013 which shows that the work was completed by the plaintiff to the satisfaction of the defendant and the school management. Hence, it is prayed that the suit may be decreed.
4. On the basis of the pleadings, vide order dated 24.11.2015, following issues were framed : "1. Whether the job work done by plaintiff was not satisfactory and as per the agreement between the parties, if so, its effect? OPD "2. Whether the plaintiff is entitled to recovery CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 10 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
of the suit amount as prayed? OPP "3. Whether the plaintiff is entitled to recovery of interest, if so, for what period, on what amount and at which rate? OPP"
5. The plaintiff lead the evidence. The plaintiff examined himself as PW1. He tendered his evidence by way of affidavit Ex. PW1/A. He has reiterated the facts stated in the plaint. He has relied upon the following documents:
a) Photocopies of invoices are Ex. PW1/1 (Colly).
b) The cheque bearing no. 160436 dated 10.08.2013 for Rs. 10,00,000/ issued by the defendant in favour of the plaintiff is Ex. PW1/2.
c) Copy of returning memo dated 14.08.2013 is Ex.PW1/3.
d) Copy of returning memo dated 09.11.2013 is Ex.PW1/4.
e) Copy of email / reply to email is Ex. PW1/5.
f) The deficiencies in the work cited by plaintiff are Ex. PW1/6.
g) Statement of account of the plaintiff is Ex. PW1/7 (Colly).
h) Copy of legal notice dated 21.01.2015 is Ex.CS DJ No. 6692/2016
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PW1/8 (Colly).
6. The plaintiff further examined Sh. Ganga Prasad Pal as PW2. He has tendered his evidence by way of affidavit which is Ex. PW2/A. He would state that he is the brother of the plaintiff and that he had executed the work on site on behalf of the plaintiff. He has narrated how he had got the works executed on site and got the discrepancies rectified after the email dated 11.07.2013.
7. Both the witnesses were cross examined by Ld. Counsel for the defendants. The plaintiff did not examine any other witness. Hence, PE was closed vide order dated 24.01.2019 and the matter was fixed for defendants' evidence.
8. The defendants examined Mr. Himanshu Chaturvedi, defendant no. 2, as DW1. He has tendered his evidence by way of affidavit which is Ex. DW1/1. He reiterated the facts stated in the Written Statement. He has relied upon the Written Statement which is Ex. DW1/A.
9. DW1 was cross examined by Ld. Counsel for the plaintiff. The defendant did not examine any other witness. Hence, DE was closed vide order dated 01.02.2023. The matter was fixed for final arguments.
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10. Ld. Counsel for the plaintiff would argue that the plaintiff has proved that the defendants had provided execution of part of the work of the contract awarded to him pertaining to development of lawn tennis court, landscaping and other allied work. The agreement was oral. The plaintiff has also proved that he had executed the work to the satisfaction of the defendant. He had rectified the deficiencies pointed out vide email dated 11.07.2013 and informed the defendants. The arrangement between the plaintiff and the defendant was that the defendant shall release the payment of the part of the work as and when executed by the plaintiff properly and the payment was released from the management of the school. The plaintiff executed the work assigned to him. At the time of execution of the work, certain deficiencies had been raised by the defendants vide email dated 11.07.2013. The plaintiff had rectified those deficiencies and completed the work to the satisfaction of the defendants. The plaintiff had replied to the email dated 11.07.2013 informing that the defects notified were rectified to the satisfaction of the defendant as well as the school management. The plaintiff had also executed the work at Gurgaon as well as Agra from December 2012 to CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 13 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
September 2013. The plaintiff had raised 11 bills with respect to the work executed at Agra for a total sum of Rs. 16,54,570/. The defendants had also made arrangements with the plaintiff to execute some work at BPTP Manesar and Park Prime, both at Gurgaon. The plaintiff had executed both the works to the complete satisfaction of the defendants. The defendant did not raise any deficiencies with regard to the said work. The plaintiff had raised 5 bills regarding the said work for a total sum of Rs. 5,37,430/. The total value of all the 16 invoices comes to Rs. 21,92,000/. Out of the said amount, the defendants paid Rs. 10,01,000/. Amount of Rs. 11,91,000/ is still remain to be paid by the defendants. The plaintiff has also proved that the defendant had issued cheque no. 160436 dated 10.08.2013 drawn on Corporation Bank, Hauz Khas Branch, Delhi. However, the same was dishonoured due to reason 'funds insufficient'. He did not initiate any legal proceedings as the defendants had promised that entire payment shall be made if the voucher was signed. The plaintiff had received last payment from the defendants in March 2014 when the defendant no. 2 was informed about the death of father of the authorized representative of plaintiff. No payment was made CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 14 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
thereafter. The plaintiff had sent legal notice dated 21.01.2015 raising all the disputes and claiming the payment of the balance amount. The suit has been filed on 08.04.2015 i.e. within limitation period of 3 years. The defendant has taken a false defence that the work executed by the plaintiff was of very poor quality and that objections were raised by the principal employer i.e. school management at Agra. Therefore, the work was taken over by the defendant for further correction and execution. The defendant had also taken an objection that the bills raised and furnished are exorbitant and they are forged documents. These averments of the defendants are not supported by any document or any evidence. The defendants had made payments to the plaintiff even after July 2013 when for the first and last time, defects were notified to the plaintiff. Those defects were duly rectified to the satisfaction of the defendant. Hence, the plaintiff is entitled to recovery of the balance amount. Therefore, it is prayed that the suit may be decreed.
11. Ld. Counsel for the defendants, on the other hand, would argue that the suit filed by the plaintiff has no merits and it is liable to be dismissed. The plaintiff has tried to create an illusion by clever drafting and by representing CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 15 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
selective documents showing himself as aggrieved party. The plaintiff himself has admitted that various defects were notified by the defendants which were required to be rectified and a completion certificate was required to be taken. The certificate was to be provided by the plaintiff to the defendant and without such certificate, the plaintiff was not entitled to receive any amount. In the email dated 11.07.2013, the defendants had specifically pointed out the defects in the work carried out by the plaintiff. The contents of the email is sufficient to show that the entire work undertaken by the plaintiff was full of shortcomings. The plaintiff was required to rectify the shortcomings to the satisfaction of the defendant and the school management. It was specifically made clear to the plaintiff that payment, if any shall be released only after the rectification of the sub standard work. The plaintiff has admitted the irregularities in the work. He has intentionally raised exaggerated forged bills in order to cause wrongful loss to the defendants. It was specifically agreed that the payment for the execution of work done would be subject to the 'satisfaction note' from the management of the school. However, no such satisfaction note has been brought on record by the plaintiff.
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Moreover, the plaintiff was only contacted for the labour work and not for supply of material. The plaintiff has failed to bring on record any bills or completion certificate despite admitting in cross examination that he has the bills. He has also not brought on record any evidence to show that he had made payment as claimed by him. None of the bills filed by the plaintiff has any signature or endorsement from the defendants. The invoices do not bear any endorsement of the defendants. Therefore, the bills can not be read in evidence. The plaintiff had misused the security cheque of the defendant and therefore, he had not taken any legal recourse pertaining to the said cheque. In relation to the work at Gurgaon, there are emails to show that no work was carried out by the plaintiff in the month of September 2013 itself. PW2 i.e. the brother of the plaintiff has stated that he had no authority / employment contract to look after the affairs of the plaintiff. He has stated that he had no bills pertaining to the work executed at the sites. He would state that he might have duplicates along with the receiving of the defendants of those bills. However, no such bills with receiving have been brought on record. He had also stated that he had obtained a completion certificate from Shri Ram School, Agra.
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However, no such completion certificate has been filed on record. His testimony is not reliable. Hence, the plaintiff has failed to prove his case against the defendants. Therefore, it is prayed that the suit may be dismissed.
12. I have heard the submissions of Ld. Counsel for the plaintiff and carefully perused the entire material on record including the written submissions filed by Ld. Counsel for the plaintiff. My issue wise findings are as under:
13. Issues no. 1 & 2: Both these issues are taken together as they are inter connected and require common discussion. These issues reads as under:
"1. Whether the job work done by plaintiff was not satisfactory and as per the agreement between the parties, if so, its effect? OPD "2. Whether the plaintiff is entitled to recovery of the suit amount as prayed? OPP
14. Before discussing the matter on merits, it would be relevant to discuss one important aspect. The plaintiff has filed the present suit showing two defendants. However, perusal of the record would show that there is only one defendant i.e. Himanshu Chaturvedi, shown as defendant no. 2, who is proprietor of H&S Associates i.e. defendant no. 1. A proprietary concern has no legal identity separate from its CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 18 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
proprietor. Therefore, the present suit is a suit for recovery of money filed by the plaintiff against defendant Himanshu Chaturvedi, proprietor of H&S Associates.
15. The plaintiff has averred that the defendant was awarded a contract for construction of sports facilities at Shri Ram School, Agra in the year 2012. The defendant had entered into an oral agreement with the plaintiff for development of lawn tennis court, landscaping and other allied work at the said school. As per the agreement, the payment was to be released to the plaintiff as and when the work was executed properly and the payment was released by the school management. The plaintiff had executed the work. Certain deficiencies had been raised by the defendant vide email dated 11.07.2013. The plaintiff rectified those deficiencies to the satisfaction of the defendant. He raised 11 bills for a sum of Rs. 16,54,570/. It is also averred by the plaintiff that he had also done some work for the defendant at BPTP Manesar and Park Prime, for which he raised 5 bills of Rs. 5,37,430/. Out of the total amount of Rs. 21,92,000/ of 16 invoices, the defendant had paid only Rs. 10,01,000/. Thus, the defendant is liable to pay balance amount of Rs. 11,91,000/. The plaintiff has also averred that the defendant CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 19 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
had issued a cheque of Rs. 10,00,000/ to discharge his liability which was dishonoured on presentation. The plaintiff did not file criminal complaint as the defendants assured to make the payment. Hence, the defendant is liable to make the balance payment.
16. The defendant has admitted that he had assigned the contract of work to the plaintiff. He would state that the plaintiff was orally called for execution of the work pertaining to development of lawn tennis court, landscaping and other allied work. However, there was an agreement that equipment and other things would be provided by the defendant and the work of the plaintiff would be to arrange / install the given articles. It was further explained to the plaintiff that the payment of the work would be released to the plaintiff only on receipt of satisfaction note from the management of the school. The plaintiff had agreed and started the work. The defendant received number of complaints from the school authorities regarding the irregularities in the work. The irregularities were brought to the knowledge of the plaintiff through various emails sent by the defendant. However, the plaintiff failed to rectify the deficiencies. The defendant had informed the deficiencies to CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 20 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
the plaintiff vide email dated 11.07.2013. The plaintiff failed to rectify those shortcomings. Therefore, the defendant had to face damage of his reputation and goodwill. The work done by the plaintiff was not to the satisfaction of the school management or the defendant. The bills raised by the plaintiff are forged and exaggerated. Further, in relation to the work at BPTP Manesar and Park Prime, the plaintiff did not complete the work within the stipulated time, rather left the work incomplete. The defendant had to assign the work to another contractor to complete the unfinished work. The plaintiff raised forged and exaggerated bills in relation to the work at BPTP Manesar and Park Prime. Hence, the defendant is not liable to make any payment to the plaintiff.
17. The defendant has made certain averments regarding damage to his reputation, losses suffered by him due to acts of the plaintiff, etc. However, no counter claim has been filed by the defendant and therefore there is no requirement of giving any findings on such allegations.
18. The plaintiff has examined himself as PW1. In his evidence, the plaintiff as PW1 has brought on record photocopies of certain invoices which are Ex. PW1/1 (Colly).
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19. The defendant has denied these invoices when they were tendered in evidence. Objection was raised regarding the mode of proof of all those invoices at the time when they were tendered in evidence they being photocopies and originals being not produced. As the defendant had taken an objection regarding mode of proof of documents i.e. the invoices Ex. PW1/1 (Colly), the burden was on the plaintiff to prove those invoices as per law. The plaintiff has not proved those documents as per law. The originals have not been brought on record. No secondary evidence has been brought on record to prove the existence and contents of those invoices. Hence, the invoices have remained not proved. It is settled position of law that mere putting an exhibit mark on a document is not sufficient to prove the document. The document is required to be proved as per law. I get strength from the judgment titled Dayamathi Bai Vs. Sri K.M. Shaffi, (2004) 7 SCC 107, passed by Hon'ble Supreme Court of India, wherein it has been held as under:
" 13. .... Objection as to the mode of proof falls within procedural law. Therefore, such objections could be waived. They have to be taken before the document is marked as an exhibit and admitted to the record (see Order 13 Rule 3 of the Code of Civil Procedure). This aspect has been brought out succinctly in the judgment of this Court in R.V.E. Venkatachala Gounder v.CS DJ No. 6692/2016
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Arulmigu Viswesaraswami & V.P. Temple [(2003) 8 SCC 752] to which one of us, Bhan, J., was a party vide para 20 : (SCC p. 764)
"20. The learned counsel for the defendant respondent has relied on Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes : (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 23 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons : firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court."
"14. To the same effect is the judgment of the Privy Council in the case of Gopal Das v. Thakurji [AIR 1943 PC 83 : 47 CWN 607] in which it has been held that when the objection to the mode of proof is not taken, the party cannot lie by until the case comes before a court of appeal and then complain for the first time of the mode of proof. That when the objection to be taken is not that the document is in itself inadmissible but that the mode of proof was irregular, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. Similarly, in Sarkar on Evidence, 15th Edn., p.CS DJ No. 6692/2016
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1084, it has been stated that where copies of the documents are admitted without objection in the trial court, no objection to their admissibility can be taken afterwards in the court of appeal. When a party gives in evidence a certified copy, without proving the circumstances entitling him to give secondary evidence, objection must be taken at the time of admission and such objection will not be allowed at a later stage.
20. During his cross examination, PW1 has admitted that none of the bill / invoice filed by the plaintiff on record bears the receiving of the defendant. He also admits that he had received an email from the defendant regarding the deficiencies in the work done by him. He has stated that he had sent email stating that he had rectified the deficiencies. He has brought on record one email which is Ex. PW1/5 (Colly). Objection regarding mode of proof of Ex. PW1/5 was taken by the defendant regarding the said email. The plaintiff has not filed any certificate under Section 65B Indian Evidence Act to prove the contents of the email and to make it admissible in evidence. In the absence of any certificate under Section 65B Indian Evidence Act, the email Ex. PW1/5 cannot be read in evidence.
21. The plaintiff has examined his brother Ganga Prasad Pal as PW2. During his cross examination, suggestions have been given on behalf of the defendant that the witness was not present during the execution of the work as alleged by CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 25 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
him. It was also suggested that he did not have any authority to execute the work on behalf of the plaintiff. Even during the arguments, it is argued on behalf of the defendant that testimony of PW2 is not reliable. I find merits in the submissions of Ld. Counsel. There is nothing on record to show that PW2 was authorized by the plaintiff to work on his behalf at the site and that he had executed the work as claimed by him. Therefore, his testimony does not inspire confidence.
22. Be that as it may, there is one fact which attracts the attention of the Court in the present case. The plaintiff has relied upon a cheque dated 10.08.2013 issued in the name of the firm of the plaintiff for Rs. 10,00,000/ by the defendant. The averment in relation to the said cheque is in para 8 of the plaint which reads as under:
"8. That defendants had issued cheque no. 160436 dated 10.08.2013 drawn on Corporation Bank, Hauz Khas Branch, Delhi, however, same has been dishonoured due to reason 'funds insufficient.' Plaintiff on pressure from the defendants had to sign adjustment voucher with respect to the aforesaid cheque and had not initiated legal remedy with respect to bouncing of cheque at the appropriate time, to the effect that complete payment will be made immediately if the CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 26 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
voucher is signed."
23. While replying to the said averment in his written statement, the defendant has stated as under:
"8. That the contents of the corresponding para are admitted to the extent that the defendants had issued cheque no. 160436 dated 10.08.2013 drawn on Corporation Bank, Hauz Khas Branch, Delhi, however, same got dishonoured due to reason 'funds insufficient.' It is emphatically denied that the plaintiff on pressure from defendants had to sign adjustment voucher with respect to the aforesaid cheque and had not initiated legal remedy with respect to bouncing of cheque at the appropriate time, to the effect that complete payment will be made immediately if the voucher is signed."
24. Thus, the defendant has admitted issuance of cheque for Rs. 10,00,000/ in favour of the plaintiff. He has not disputed the date of the cheque. He has not taken any objections that the particulars were not filled by the defendant.
25. Section 118 of the Negotiable Instruments Act 1881, provides, interalia, that until contrary is proved, there shall be a presumption that every negotiable instrument was made or drawn for consideration. The cheque in question is a negotiable instrument and therefore, as per Section 118 of the Act, there is a presumption that the cheque was issued by CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 27 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
the defendant for consideration. No doubt, the presumption is rebuttable. The defendant can show as to how and under which circumstances the cheque was issued by him and that it was not issued for consideration. In the present case, the defendant had accepted issuance of cheque to the plaintiff. Therefore, burden was on the defendant to rebut the presumption. However, in the entire written statement, the defendant has not stated any ground which could show that he had some defence to rebut the initial presumption. The Criminal Law provided under Section 138 of the Act is different as the accused is not required to file any written statement and he has to disclose his defence only at the time of notice under Section 251 Cr.P.C. Further, once the accused rebuts the initial presumption, the prosecution has to prove the guilt of the accused beyond reasonable doubts. However, in a Civil Suit, a party is required to state its case or defence expressly in pleadings filed before the Court. Any ground which is not mentioned in the pleading cannot be considered by the Court during the final arguments as it is being beyond pleadings. A civil suit has to be decided on the preponderance of probabilities. Order VIII Rule 2, CPC provides that the defendant must raise by pleading all CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 28 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
matters which show that the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality.
26. Hence, in the present case, the defendant was required to mention in the written statement as to how he was not liable to pay the amount of Rs. 10,00,000/ mentioned in the cheque Ex. PW1/2 which is admittedly issued by the him in favour of the plaintiff and which was dishonoured on presentation. However, no such reason has been provided by the defendant in his WS. It is also noteworthy that in his affidavit of evidence Ex. DW1/1, the defendant has not even mentioned anything about the said cheque. In these circumstances, I am of the considered opinion that the defendant has failed to rebut the initial presumption in favour of the plaintiff that the cheque Ex. PW1/2 was issued by the defendant for consideration of Rs.10,00,000/, as mentioned in the cheque. During cross examination of PW1, one suggestion was given that the plaintiff did not file any CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 29 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
complaint case under Section 138 Negotiable Instruments Act against the defendant as he had already admitted his fault with respect to faulty construction. However, I am of the considered opinion that merely giving such a suggestion to PW1 during his cross examination is not sufficient to discharge the initial presumption. Not filing a criminal complaint under Section 138 Negotiable Instruments Act is not a fact which disentitle the plaintiff to seek recovery of the amount in a civil suit as both the remedies are alternative remedies.
27. It is also noteworthy that the defendant has admitted that the work was allotted to the plaintiff. He has also not denied that the work was completed by the plaintiff at the project site at Agra. His only averment is that the work was faulty having discrepancies and that the plaintiff was informed about the discrepancies and that the plaintiff did not rectify those discrepancies despite knowledge. He has also stated that the work at BPTP Manesar was not completed by the plaintiff. In relation to the work at BPTP Manesar, DW1 has stated that due to shortcomings in the work done by the plaintiff, he had to hire another contractor to complete the work.
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28. During his cross examination, DW1 was asked whether he had mentioned the name of the contractor hired by the defendant to complete the work which was left by the plaintiff, he would state that he has not mentioned the name of such contractor. He would also state that he has not filed any proof of actual payment made to such contractor hired in lieu of the plaintiff. Once the defendant avers that the plaintiff had left the work incomplete without removing the discrepancies and that the defendant had hired another contractor to complete the work, the burden was on the defendant to prove that he had hired such a contractor and got the work completed from him and further that he had made payment to that contractor. However, no such evidence has been brought on record by the defendant.
29. Further, the defendant has averred that there were various discrepancies in the work which were notified to the plaintiff. During his cross examination, the witness would state that defects and time line were pointed out again and again to the plaintiff. Suggestion was given to the witness that no defects other than those notified vide email dated 11.07.2013 had been pointed by the defendant. To this suggestion, the witness would state that defects and time line CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 31 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
were pointed out again and again. However, the defendant has not brought any material on record to show that except the email dated 11.07.2013, there were discrepancies pointed by the defendant to the plaintiff in the work done by the plaintiff. There is only one email dated 11.07.2013 stated to be sent by the defendant to the plaintiff informing the discrepancies in the work. The defendant has not filed copy of the said email on record. One email has been filed on record by the plaintiff which is Ex. PW1/5 (Colly). However, on an objection of the defendant regarding mode of proof, that document is already held to be not admissible in evidence in the absence of certificate under Section 65B Indian Evidence Act.
30. The defendant in his written statement and in affidavit has mentioned the contents / extracts of the email dated 11.07.2013. The contents / extracts mentioned in the affidavit of evidence of DW1 is reproduced hereunder. It is noteworthy that reading of this content show that there are total 10 points raised by the defendant showing discrepancies in work. There are two parts of some of the points in the said extracts. For a clear understanding the first part is typed in normal font while the second part is typed in CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 32 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
italic font.
a) Foot field side doors do not have hooks and handles,
b) Chain fencing is not properly welded at many places,
c) Wiring in court lights is not proper, i.e. lot of wires are left open.
d) Every light pole MCB box are not water proofed and will get damaged in rain and become risky for children. Material supplied by you our scope of work only labour.
e) Paint work not proper both on fencing and plaster. In progress.
f) RCC base court getting cracked and is hollow at many places. Completed.
g) One base pole adjuster not working properly. Low quality material provided.
h) Other slider gate is not working at all. Working properly.
i) 30% plants are damaged. Work completed in front of your staff.
j) Kids field grass area not leveled. Completed.
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31. The defendant has mentioned it as contents of the email sent by the defendant to the plaintiff. However, it appears to be the reply sent by the plaintiff to the email of the defendant. The portion of the extracts which is in normal font appears to be the content of the original email sent by the defendant, while the portion in italic font appears to be reply given by the plaintiff to that particular query. For example, the discrepancy informed by the defendant through point no. 4 appears to be that light pole MCB box were not water proofed and they will be risky for children if damaged in rain. The reply to said discrepancy by the plaintiff, as shown in italic font, appears to be that the material was supplied by you i.e. the defendant and the scope of the work of the plaintiff was only labour. Even the case of the defendant is that the material was to be provided by the defendant and the plaintiff had to provide only labour work. Thus, it is shown on the preponderance of probabilities that the extracts mentioned in the affidavit Ex. DW1/1 in para 7 are lifted from the reply sent by the plaintiff to the email of the defendant. Even though the defendant has raised objection on the mode of proof of proving the reply stated to be sent by the plaintiff to him, he himself has admitted the CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 34 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
contents of that reply by mentioning it in the affidavit. There is no other material on record produced by the defendant to show that there were other discrepancies in the work done by the plaintiff. Perusal of these extracts of the email would show that there are total 10 discrepancies mentioned in the said email. There are shortcomings mentioned at serial No.(d) & (g) in which it is mentioned in reply that the material was supplied by the defendant. So far as discrepancies at point No.(f), (h), (i) & (j) are concerned, it is mentioned in the reply that the work has been completed. In response to the discrepancies at point (e) it is mentioned that the work of paint was in progress. There is no answer to the discrepancies at point (a), (b) and (c). In the email Ex.PW1/5 there are replies to query at point (a) to (c) also which mentions that the work regarding those faults was rectified. However, as the document is not to be considered in evidence, I am not discussing those parts of the said email. However, in any case, these are only very small discrepancies which do not entitle the defendant to retain the amount of the plaintiff.
32. It is worth noting that the email is dated 11.07.2013 as stated by the defendant and admitted by the plaintiff.
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However, the cheque Ex.PW1/2 is shown to be issued on 10.08.2013 i.e. after about one month when the discrepancies were brought to the notice of the plaintiff vide email dated 11.07.2013. The defendant, in para No. 7 of his affidavit of evidence Ex. DW1/1, has narrated the extracts/content of the email dated 11.07.2013. Thereafter, in para 8, after stating that the work done by the plaintiff was full of shortcomings and that the plaintiff was asked to rectify the same to the satisfaction of the deponent's company and the school management, he has stated as under:
"8. .... It was also patently made clear to the plaintiff that payment of the forged bills raised by the plaintiff shall be released only after the rectification of the substandard work unfinished by them." (emphasis supplied)
33. Now, this statement of the defendant on oath in his affidavit of evidence makes it clear that he had received the bills/invoices from the plaintiff and he had assured to clear all the dues of the invoices raised by the plaintiff after the shortcomings were rectified. Thus, the defendant was in possession of the bills raised by the plaintiff at the time of sending the said email. On one hand, the defendant is claiming that the bills were forged, on the other hand he is CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 36 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
also assuring that the bills would be cleared after rectification of the shortcomings. Both the things are not possible simultaneously. The defendant has not brought on record the bills which were given to him by the plaintiff and which he claims to be forged.
34. Again, the email is dated 11.07.2013. The cheque Ex.PW1/2 is shown to be issued on 10.08.2013 i.e. after about one month when the discrepancies were brought to the notice of the plaintiff vide email dated 11.07.2013. There is no explanation by the defendant as to why and how he issued a cheque of Rs. 10 Lakhs to the plaintiff on 10.08.2013 if the work was not completed by the plaintiff to the satisfaction of the defendant. There is only one plausible explanation for the issuance of the cheque i.e. the work was completed by the plaintiff to the satisfaction of the defendant and therefore, he had issued the cheque of Rs. 10,00,000/ towards payment of the work done by the plaintiff. During Course of arguments, it has been argued on behalf of the defendant that the plaintiff had misused a security cheque. However, there is no such pleading to the said effect in the Written Statement. In the absence of a pleading to that effect, the defendant is not permitted to argue a case which is CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 37 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
beyond pleadings.
35. The defendant in his affidavit and WS has stated that the plaintiff was required to obtain a satisfaction certificate from the School management before the money could be released to him. The plaintiff has denied the said averment and stated that the amount of the work was to be released as and when the work was executed properly and payment was released from the management of the school. Thus, the averment of the plaintiff is that the amount was to be released after execution of the work. It is the defendant who has averred that a satisfactory note was to be obtained from the school before payment could be released to the plaintiff. Therefore, burden was on the defendant to prove the said averment by leading evidence. However, there is nothing on record except the self serving statement of the defendant to show that the plaintiff was required to obtain a satisfactory note from the school. The burden was on the defendant to prove the said fact by leading evidence, as provided under Section 103 of Indian Evidence Act, which provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 38 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
any particular person. The defendant has also not brought anything on record that the school authorities had ever raised any concern informing the defendant regarding the irregularities or discrepancies in the work done by the plaintiff.
36. The defendant, in para 11 of the affidavit of evidence, has averred that the invoices raised by the plaintiff were consisting of enormous figures and charged at very high and exorbitant rates compared to what was discussed and was to be charged. The defendant has also averred, in para 13 of the affidavit, that the defendant had provided the plaintiff with so many equipment and material to carry out the work, the cost of which should have been deducted in the bills whereas the same has been added in the forged bills raised by the plaintiff and that too at a very high and excessive rate.
37. Now, the defendant has taken objection regarding mode of proof of the invoices filed by the plaintiff they being photocopies and originals being not proved. Therefore, the Court can not read those invoices in evidence. However, the defendant also has not brought on record the invoices which were allegedly issued by the plaintiff to him. Further, the defendant has not mentioned as to what was agreed to be CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 39 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
charged by the plaintiff and what was actually charged. He has also not mentioned what were the equipment and material provided by the defendant to the plaintiff. He has also not mentioned as to what was the amount charged by the plaintiff and what should have been charged by him. Thus, these appears to be vague statements without any substance and not supported by any material on record. These avements do not inspire confidence.
38. It is also averred by the defendant in para 15 of the affidavit of evidence that the work was to be completed within the stipulated time and that time was of the essence and that the work was delayed. Again, this averment is vague without any details. The defendant has not mentioned as to what was the period during which the work was to be completed. Also, the fact that the agreement was oral is sufficient to show that the time was not of the essence.
39. In para 16 of the affidavit of evidence, the defendant has admitted that he had assigned the execution of the work to the plaintiff at BPTP and Park Prime. He has stated that the plaintiff had to complete the work as per the satisfaction of the defendant subsequent to which payment due to the plaintiff would by reimbursed. In para 17, he would state CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 40 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
that the work undertaken by the plaintiff was inordinately delayed and was not completed as per the terms and conditions agreed between the parties.
40. Perusal of para 16 and 17 of the affidavit Ex.DW1/1 would show that the defendant has admitted that the plaintiff was assigned work by him at BPTP Manesar and Park Prime Gurgaon. His only contention is that the work was delayed and not completed as per the terms and condition. This averment is again a vague averment. The plaintiff has not stated what was the time fixed for completion of the projects and further what were the terms and conditions agreed between the parties which were not completed. Thus, these averments also do not inspire confidence.
41. The plaintiff has claimed recovery of Rs. 11,91,000/ from the defendant. However, he has failed to prove that he was entitled to recover more than Rs. 10,00,000/ i.e. the amount of the cheque from the defendant. As already discussed, the invoices brought by the plaintiff on record have not been proved. There is no other evidence on record to show that the plaintiff was entitled to recover amount of Rs. 1,91,000/ apart from the amount of the cheque Ex. PW1/2.CS DJ No. 6692/2016
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42. In the light of the discussion hereinabove, I hold that the defendant has failed to show that the work done by the plaintiff was not satisfactory and as per agreement between the parties. The plaintiff, on the other hand, has shown that he had completed the work as per agreement. He has also proved on the preponderance of probabilities that the defendant had issued the cheque Ex. PW1/2 to discharge his legal liability and that the defendant was liable to pay Rs. 10,00,000/ to the plaintiff. Issue no.1 and 2 are accordingly decided in favour of the plaintiff and against the defendant.
43. Issue No. 3 : This issue reads as under :
"3. Whether the plaintiff is entitled to recovery of interest, if so, for what period, on what amount and at which rate? OPP"
44. The plaintiff has claimed interest @ 18%. As per Section 34 of the Interest Act, it is the discretion of the Court to award interest in a decree for payment of money. The Section reads as under :
"(1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent. per annum as the Court deems reasonable on CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 42 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
such principal sum, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit :
"Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent. per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions. "Explanation I.In this Subsection, "nationalised bank"
means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970).
"Explanation II. For the purposes of this section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability.
"(2) Where such a decree is silent with respect to the payment of further interest on such principal sum from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefor shall not lie."
45. Section 34 of the CPC also provides the same law in relation to the interest to be awarded in a money suit. Thus, the Court has to decide whether the interest claimed by the plaintiff is reasonable or not.
46. In the present case, the plaintiff has claimed interest @ 18% p.a. The rate of interest claimed by the plaintiff appears to be excessive rate of interest. Therefore, I am not inclined to grant such a high rate of interest to the plaintiff. The Division Bench of Hon'ble High Court of Delhi in the case of Pt. Munshi Ram & Associates (P) Ltd. V. DDA, CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 43 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
2010 SCC Online Del 2444 has held that higher rates of interest, which are against public policy, can be struck down by the Court by finding such rates of interest to be against the public policy. Any Contract, which is against the public policy, is void under Section 23 of the Indian Contract Act, 1872. The said Judgment was also relied upon by the Hon'ble High Court in the case bearing R.F.A. no. 823/2004 titled Shri Sanjay Mittal Versus Sunil Jain, decided on 07.12.2018.
47. In the facts and circumstances of the case, and the fact that the transaction is commercial in nature, I hold that the plaintiff is entitled to interest @ 9% p.a. from the date of filing of the suit till preparation of decree. He shall be entitled to interest @ 9% p.a. from the date of decree till realization of the amount.
48. Relief: In view of the findings recorded hereinabove, the suit of the plaintiff is decreed. The plaintiff is entitled to a decree of recovery of Rs. 10,00,000/ from the defendants. The plaintiff is also entitled to an interest @ 9% per annum from the date of institution of the suit till preparation of decree. The plaintiff is also entitled to interest @ 9% p.a. from the date of decree till realization of the amount. The CS DJ No. 6692/2016 CNR No. DLST010007612015 Page 44 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023 Northern Nursery Thr. Prop. Sheetala Prasad Pal Vs. H & S Associates & Anr.
plaintiff is also entitled to the cost of the suit.
49. The plaintiff is directed to deposit the deficient Court Fee, if any, within 15 days. The decree shall not be executable unless the entire Court fee is paid. The fact of deficiency of Court Fee if any be mentioned in the decree.
50. Decree sheet be prepared accordingly.
Digitally
Pronounced in the open Court signed by
DINESH
on this 19th day of August 2023. DINESH KUMAR
KUMAR Date:
2023.08.21
16:03:28
+0530
(DINESH KUMAR)
ADDITIONAL DISTRICT JUDGE02, SOUTH
SAKET COURTS COMPLEX, NEW DELHI
CS DJ No. 6692/2016
CNR No. DLST010007612015
Page 45 of 45 Dinesh Kumar/ADJ02/South/Saket/19.08.2023