Delhi District Court
Indra Sen Sharma vs Sanjeev Aggarwal on 3 April, 2025
IN THE COURT OF SENIOR CIVIL JUDGE CUM RENT
CONTROLLER (WEST), TIS HAZARI COURTS, DELHI
Presided by : Ms. Richa Sharma
Civil Suit No. 651/2023
CNR No. DLWT03-001349-2023
SH. SANJEEV AGGARWAL
S/O LATE SH. B.B. AGGARWAL
R/O B-12, LSC MARKET, SHIVAJI
ENCLAVE, NEW DELHI-110027. .......PLAINTIFF
VERSUS
SH. INDER SEN SHARMA
S/O SH. VINDESHARY SHARMA
R/O PLOT NO. G-92/27, LAXMI PARK,
NANGLOI, DELHI-110041. .......DEFENDANT
AND
Counter Claim No. 15/23
CNR No. DLWT-03-00-2071-2023
SH. INDER SEN SHARMA
S/O SH. VINDESHARY SHARMA
R/O PLOT NO. G-92/27, LAXMI PARK,
NANGLOI, DELHI-110041.
.......DEFENDANT / COUNTER-CLAIMANT
VERSUS
SH. SANJEEV AGGARWAL
S/O LATE SH. B.B. AGGARWAL
R/O B-12, LSC MARKET, SHIVAJI
ENCLAVE, NEW DELHI-110027.
.......PLAINTIFF / NON-CLAIMANT
Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma
&
Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 1 of 34
Date of Filing of the main suit : 24.05.2023
Date of Filing of the counter - claim : 08.08.2023
Date of Judgment : 03.04.2025
JUDGMENT
1. Vide the present consolidated judgment, the suit filed by the plaintiff and the counter-claim filed by the defendant shall be adjudicated upon, as both have interwoven facts and pleadings and the evidence led by both the parties is to be read conjointly in both the cases, as ordered vide order dated 20.03.2025 on the joint request of the Counsels for both the parties.
BRIEF FACTS OF THE MAIN CASE NO. No. 651/2023
2. In brief the facts of the present case as per plaint filed by the plaintiff in the main suit are, that the plaintiff had done construction/fitting/ furnishing work of property bearing no. G-92, Laxmi Park, Nangloi New Delhi, as per defendant need and as per agreement executed between defendant and plaintiff.
3. It has been averred, that after completion of work, the total cost was Rs.12,25,960/-, out of which defendant had paid Rs. 11,64,730/- and the balance amount of Rs. 61,230/- is still pending to be paid by the defendant. It has been averred, that the plaintiff informed the defendant regarding the pending balance amount several times, but defendant had only assured the plaintiff that he will pay the same, Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma & Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 2 of 34 but till date, the outstanding amount has not been cleared.
4. It has been averred, that on 8th January, 2023, plaintiff again requested the defendant to clear the balance amount but defendant threatened the plaintiff of dire consequences, inspite of making the outstanding payment and thereafter, the plaintiff informed police regarding the said incident.
5. It has been averred, that thereafter, the plaintiff sent the legal notice dated 17.04.2023, thereby calling upon the defendant to make the payment of Rs. 61,230/- and the service of the legal notice was duly affected, to which the defendant sent the false and frivolous reply. Hence, the present suit was filed for recovery of the amount of Rs.61,230/- along with pendent-elite and future interest.
WRITTEN STATEMENT FILED BY THE DEFENDANT IN THE MAIN CASE NO. No. 651/2023
6. It has been contended, that the plaintiff started the work of construction / fitting / furnishing as per the agreement, however the plaintiff did not complete the said work as per the defendant's need and agreement. It has been contended, that the plaintiff had charged extra amount of Rs. 57,720/-, and the defendant is liable to pay only Rs. 3510/-. It has been contended, that the defendant had not given any threats to the plaintiff, rather it was the plaintiff who used abusive language and threatened the defendant.
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7. It has been contended, that the plaintiff tried many ways to harass the defendant and the plaintiff had also issued a notice from the Steel and Metal Worker's Union dated 13.02.2023, signed by Sh. Shradha Singh, Secretary to Sh. Manish Thakur, IO, in this regard and on that forum, the defendant clarified his issues.
8. It has been contended, that as per the agreement, both the parties agreed for construction / furnishing work upto 1 ½ floor for the total amount of Rs. 8,07,000/-, but thereafter, the defendant decided to built one more floor, which was verbally agreed between the parties for the total amount for the construction i.e. Rs. 1,25,960/-, and the duration of the construction period was fixed as four months. It has been contended, that during the construction work, the defendant went to the site and checked the work, there he found lots of mistakes and raised complaints to the plaintiff.
9. It has been contended, that on 25.12.2022, the plaintiff called the defendant on his mobile phone and he denied to continue the further construction work. The defendant further contended that the plaintiff had failed to complete the following work :-
I. Top Floor electricity work not done. II. Inverter wire not installed.
III. POP finishing work not done.
IV. Painting work was not done.
V. Stone Grinding (Farsh ki Ghisai) of all floors not done. VI. Gate of stairs on top floor / exit (Mumti ka darwaza) not done. VII. Fibre roof of top floor Verandah along with support side wall of Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma & Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 4 of 34 fibre roof not done.
VIII. From ground to top floor side marble (Jeene ki patti of stair) not done.
IX. Top Floor Verandah tile work not done. X. Stone work in all almirah(s) incomplete. XI. Glass related work in whole premises not done. XII. Top floor roof was not plastered, which created wetness in roof and walls and was incomplete.
10. It has been contended, that some of the electrical fittings installed were of defective and inferior quality and and four tiles of bathroom were different. It has been contended, that thereafter the defendant got completed the construction / repair work with the help of some private workers and invested the amount of Rs. 98,398/-.
11. It has been contended, that the plaintiff sent a legal notice dated 17.04.2023, to which the defendant sent the reply cum legal notice dated 24.04.2023, which was not replied by the plaintiff.
12. No replication has been filed by the plaintiff to the written statement of the defendant in the main case.
BRIEF FACTS OF THE COUNTER-CLAIM FILED BY THE COUNTER-CLAIMANT / DEFENDANT
13. The contents of the counter-claim are more or less same as that of the written statement filed by the defendant / counter-claimant in the main suit and therefore, the same are not reproduced again for the sake brevity. By filing the counter-claim, the defendant / counter-
Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma & Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 5 of 34 claimant has sought the following reliefs :-
(i) A sum of Rs. 94,888/-,
(ii). A sum of Rs. 2,50,000/-,
(iii) Damages for breach of contract &
(iv) Interest.
WRITTEN STATEMENT FILED BY THE PLAINTIFF / NON- CLAIMANT
14. The plaintiff / non-claimant has taken the same pleas as have been taken by it in the main suit and thus for the sake brevity, same are not reproduced again.
15. It has been contended, that the counter claim filed by the defendant/counter-claimant is not maintainable in law as the defendant has not approached this Court with clean hands and concealed material facts. It is further stated, that no relief of decree is being claimed in the counter claim.
ISSUES IN THE MAIN CASE AS WELL AS THE COUNTER-
CLAIM
16. From the pleadings, following issues were framed in the main case on 18.03.2024 and similar / same issues were framed in the counter- claim on 20.03.2025:-
1. Whether the plaintiff is entitled for a decree for a sum of Rs. 61,230/- from the defendant along with interest, as prayed for ? OPP
2. Whether the counter claimant / defendant is entitled to recover Rs 94,888/-
Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma & Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 6 of 34 from the plaintiff as the plaintiff left the work incomplete and the defendant / counter claimant got it completed from some other person, as prayed for in the counter claim ? OPC / OPD
3. Whether the counter claimant is entitled to recover Rs. 2,50,000/- on account of construction defects left by the plaintiff / non-claimant in the building, as prayed for in the counter claim? OPC / OPD
4. Whether the counter claimant is entitled to damages on account of breach of contract, as prayed for? OPC
5. Whether the plaintiff completed the construction work as per agreement?
OPP
6. Relief.
17. Vide order dated 18.03.2024 in the main case, the evidence was ordered to be recorded through Local Commissioner.
PLAINTIFF'S EVIDENCE
18. In order to prove his case, the plaintiff examined himself as PW-1, who filed his evidence by way of affidavit ie Ex.PW-1/A. He relied upon following documents:-
Ex.PW1/1 Copy of Legal Notice dated 17.04.2023 Ex.PW1/2 Copy of Reply / Legal Notice dated 22.04.2023 Ex.PW1/3 Copy of written complaint Ex.PW1/4 Copy of Agreement dated 04.05.2022 Ex.PW1/5 Copy of screen shots communication between the Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma & Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 7 of 34 plaintiff and the defendant Ex.PW1/6 Copy of certificate under Section 65-B Indian Evidence Act
19. PW1 was cross-examined at length by the Counsel for the defendant.
Thereafter, the plaintiff evidence was closed.
DEFENDANT'S EVIDENCE
20. In order to prove his case, the defendant examined himself as DW-1, who filed his evidence by way of affidavit ie Ex.DW-1/A. He relied upon the following documents:-
Ex.DW1/1 Copy of General Agreement (OSR) Ex.DW1/2 Copy of Whatsapp Chat Ex.DW1/3 Copy of bills of other workers (OSR) Ex.DW1/4 Copy of Notice from Indian Steel and Metal (OSR) Workers' Union.
Ex.DW1/5 Copy of photographs of construction / structure defects.
Ex.DW1/6 Copy of the aadhar card of the defendant.
21. DW1 was cross-examined at length by the Ld. Counsel for the plaintiff. Thereafter, the defendant evidence was closed.
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22. Thereafter, the Local Commissioner filed his report along with the evidence recorded by him in the Court and the same has been taken on record on 21.05.2024.
23. Thereafter, on 20.03.2025, Ld. Counsels for both the stakeholders made statement before the Court and requested that the evidence led in the Main Suit be also read in the Counter-claim, which was allowed and the evidence led in the main was ordered to be read in the Counter-claim also.
WRITTEN SYNOPSIS FILED BY THE PLAINTIFF / NON- CLAIMANT
24. It has been stated by the plaintiff, that the plaintiff had done construction work of the property in question as per the defendant's need and oral agreement between the parties. It has been stated by the plaintiff, that after the completion of work, only Rs. 11,64,730/- was paid by the defendant and Rs. 61,230/- is still due.
25. It has been stated by the plaintiff, that despite repeated requests from the side of the plaintiff, the defendant did not clear the outstanding amount. Thereafter, the plaintiff sent the legal notice dated 17.04.2023 which was duly served.
26. It has been stated by the plaintiff, that the counter-claimant has no Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma & Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 9 of 34 cause of action to file the same as the same is not verified in accordance with the law. Further the photographs and bills submitted by the defendant are not supported with the certificate 63 of BSA, 2023. Hence, prayer is made for recovery of amount of Rs.61,230/- and dismissal of the counter-claim.
WRITTEN SYNOPSIS FILED BY THE DEFENDANT / COUNTE
27. It has been argued by Ld. Counsel for the defendant, that the Plaintiff's claim lacks merit due to several reasons i.e.
1. Unilateral Halt in Construction,
2. Surmises of Estimated Amounts by Plaintiff as different amounts demanded on different time i.e (i) on December 5, 2022, demanding Rs. 51,030 via Whatsapp chat, (ii) Later on 8-1-2023, plaintiff Demand Revised Amount of Rs. 56,830/-, (iii) on 8-1-23, plaintiff also complaint to Police about not payment an amount of Rs.61,230/- and (iv) On 13-02-2023, Via a complaint to so called Labour Office, Delhi Govt. Plaintiff Demand an amount of Rs. 75,000/- as being he is an electrician pending towards Defendant.
3. Discrepancies in Billing as after scrutiny of bill/invoice send through whatsapp on which plaintiff demanded Rs. 61,230/-, however the plaintiff charged Rs.57,720/- extra and the amount due on side of defendant is Rs. 3510/- only, but that amount is only payable when the incomplete work left by plaintiff had been completed by defendant.
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28. It has been argued by Ld. Counsel for the defendant, that on June 4, 2022, an agreement was made between Defendant and Plaintiff with regard to the development of a 45 yard plot situated at G-92, Laxmi Park, Nagloi, West Delhi and the agreed price for foundation, ground floor, one room on the first floor and stair covering (referred to as Mumty) was Rs. 8,60,000/-. It has been argued by Ld. Counsel for the defendant, that the work commenced as per the agreement, and payments were made to the Plaintiff accordingly and the agreement's final point (21) is crucial as it covers works not specified under other headings, particularly relating to the completion of the second floor Mumty. It has been argued by Ld. Counsel for the defendant, that on December 5, 2022, the Plaintiff halted construction, demanding Rs. 51,030 via Whatsapp chat Dated 6-12-2022, later on 8-1-2023, demand revised amount of Rs.56,830/-, on 8-1-23, plaintiff made complaint to Police about not payment of the amount of Rs 61,230/-, on 13-02-2023, a complaint to was registered by plaintiff to Labour Office, Delhi Govt. and demanded an amount of Rs. 75,000/- referring him as an electrician; on 17-04-2023, plaintiff sent a Legal Notice demanding an amount of Rs. 61,230/-.
29. It has been argued by Ld. Counsel for the defendant, that despite defendant's requests to complete the remaining work, the Plaintiff's rigid behavior led the defendant to hire private labor and artisans to finish the work and the defendant spent Rs. 98,398/- to complete the Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma & Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 11 of 34 remaining work, including expenses for electric items, paint, building material, etc. It has been argued by Ld. Counsel for the defendant, that numerous construction defects exist in the premises, including improperly erected brick walls, unstable pillars, poor drainage, faulty electrical fittings, and incomplete plastering.
30. It has been argued by Ld. Counsel for the defendant, that in support of his arguments, he has relied upon the judgment in the case of Union of India v. Ramesh Electricity Co. (2008) , in which the Hon'ble Supreme Court held that a party claiming payment under a contract must prove the amount due and demonstrate compliance with the terms of the contract . Ld. Counsel has argued that in the present case, the Plaintiff has failed to provide proper documentation or justification for the additional charges claimed, thereby failing to establish the Defendant's liability for the alleged outstanding amount. Learned Counsel for the defendant has further relied upon the judgment titled as S.M. Aslam v. Union of India (2010) , in which it held that the burden of proof lies on the plaintiff to establish the amount due and compliance with contractual terms.
31. It has been argued by Ld. Counsel for the defendant, that the plaintiff is liable to pay for construction defects in the property. It has been argued by Ld. Counsel for the defendant, that Indian Contract Act, 1872 imposes an implied warranty on contractors to perform work with reasonable care and skill and as per the Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma & Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 12 of 34 Principles of Contractual Warranties, contractors are liable for defects in workmanship and materials.
32. Learned Counsel for the defendant has relied upon the section 73 of Indian contract Act 1872, illustration (f), in which it has stated that a contracts to repair B's house in a certain manner, and receives payment in advance. A repairs the house, but not according to contract. B is entitled to recover from A the cost of making the repairs conform to the contract. It has been further submitted, that the Indian Contract Act, 1872 imposes an implied warranty on the contractor to perform the work with reasonable care and skill. Breach of this warranty entitles the employer to claim damages for any resulting defects or deficiencies in the work. In support of this argument, Ld. Counsel for the defendant has relied upon the following judgments :-
(a) In Larsen & Toubro Ltd. v. State of U.P. (2013), the Supreme Court held that a contractor is liable for defects in workmanship and materials, necessitating remedial action at the contractor's expense.
(b) Pioneer Urban Land and Infrastructure Ltd. v. Govindan Raghavan (2019): The court emphasized the contractor's duty to perform the work with reasonable care and skill, holding them liable for defects in workmanship.
33. It has been argued by Ld. Counsel for the defendant, that the defendant is entitled to compensation as per section 75 of the Indian Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma & Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 13 of 34 Contract Act, 1872, in view of the breach of contract by the plaintiff. In support of his case, Learned Counsel for the defendant has further relied upon the judgment titled as Satya Jain v. Anis Ahmed Rushdie (2013), in which it was held that parties must fulfill the contractual obligations as agreed upon, and failure to do so constitutes a breach of contract.
34. I have heard the final arguments advanced at length by Ld. Counsels for both the parties and have gone through the plethora of record meticulously.
35. My findings are as under:-
ISSUES NO. 1 & 51. Whether the plaintiff is entitled to a decree for a sum of Rs. 61,230/- from the defendant along with interest, as prayed for ? OPP
5. Whether the plaintiff completed the construction work as per agreement?
OPP
36. Both the issues are taken up together as common question of law and facts are entailed in there.
37. Before proceedings with the appreciation of evidence advanced, this Court deems it fit to discuss in brief the law laid down with respect to the onus of proof in civil litigation.
38. The burden of proof in civil trial is the obligation on the plaintiff ie Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma & Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 14 of 34 the plaintiff would adduce evidence that proves his claims against the defendant and is based on preponderance of the probabilities. Under Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it. Relevant provisions of the Bhartiya Sakshya Adhiniyam, 2023 (earlier Evidence Act, 1872) dealing with burden of proof are produced as under:-
Burden of proof:-
104. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
105. On whom burden of proof lies.--
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
106. Burden of proof as to particular fact.-
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 any particular person.
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109. Burden of proving fact especially within knowledge.--
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
39. Therefore, on the basis of the law laid down as above, court proceeds with the appreciation of evidence as adduced in the present suit.
40. The plaintiff examined himself as PW1 and relied in his evidence upon the documents exhibited from Ex.PW1/1 to Ex.PW1/6.
41. Vide the plaint, it is averred by the plaintiff, that the plaintiff had done construction/fitting/ furnishing work of property bearing no. G-92, Laxmi Park, Nangloi New Delhi, as per defendant's needs and as per agreement executed between defendant and plaintiff. It has been further averred, that after completion of work, the total cost came to Rs.12,25,960/-, out of which defendant had paid Rs. 11,64,730/- and the balance amount of Rs. 61,230/- is still pending to be paid by the defendant. Thereafter, the plaintiff sent the legal notice dated 17.04.2023, calling upon the defendant to make the payment of Rs. 61,230/-, to which the defendant sent the false and frivolous reply and therefore the present suit had been instituted by the plaintiff to recover the said amount.
42. Per contra the stand of the defendant is, that the plaintiff started the Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma & Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 16 of 34 work of construction / fitting / furnishing as per the agreement, but he did not complete the said work as per the defendant's need and agreement. Further, the plaintiff had charged extra amount of Rs. 57,720/- and the defendant is liable to pay only Rs. 3510/- as the remaining amount. It has been contended, that as per the agreement both the parties agreed for construction / furnishing work upto 1 ½ floor for the total consideration amount of Rs. 8,07,000/-. Subsequently, defendant decided to built one more floor and it was verbally agreed between the parties that the total amount for the construction would be Rs. 12,25,960/- but when defendant went to the site and checked the work he found lots of mistakes and raised complaints regarding the same to the plaintiff.
Thereafter, on 25.12.2022 plaintiff denied to continue with the further construction work and the defendant got completed the construction / repair work with the help of some other private workers and further invested the amount of Rs. 98,398/-. Further, the defendant / counter- claimant has also prayed for an amount of Rs. 2,50,000/- on account of the construction defects left by the plaintiff / non-claimant in the suit property.
43. Now, the first and foremost element that crops up for consideration in the backdrop of the facts and circumstances of the present case is, whether any written agreement was executed between the parties for the construction of work that was to be carried out in the property in question.
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44. It is pertinent to mention, that the plaintiff has placed on record the copy of the agreement dated 04.06.2022 exhibited as Ex.PW1/4. Perusal of the said agreement reveals, that the same was executed between the plaintiff and the defendant on 04.06.2022 with respect to the construction of ground floor and first floor (external / internal both) of plot bearing no. G-92, Laxmi Park, Nangloi, New Delhi - 110041 and the total costs that was agreed to be borne by the defendant was Rs. 8,60,000/- towards the entire construction. The time period that was fixed as per the present agreement for completion of the scheduled work of construction was four months. The execution of the agreement in question was also admitted by the defendant in his WS.
45. It is vital to note, that the bare perusal of the Ex.PW1/4 I.e. the general agreement perse reveals, that vide the said agreement, the terms and conditions were laid down by way of 21 bullet points pertaining to the aspect that will be taken care of as a part of the construction to be undertaken by the plaintiff.
46. As per the said agreement, the total consideration amount was Rs.
8,60,000 to be paid as per the mode of payment and the schedule mentioned in the agreement itself. At this stage, it is apposite to note, that it is averred by the plaintiff in his plaint, that he has already received an amount of Rs. 11,64,730/-, however the said Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma & Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 18 of 34 amount is over and above the consideration amount of the agreement i.e. Rs. 8,60,000/-. It is contended by the plaintiff, that pursuant to the completion of the work as per the agreement Ex.PW1/4, there was oral an oral agreement that was entered into between him and the defendant for carrying out some additional work at the property in question, apart from the work that had been agreed as per the agreement. Thus, on the face of it, no written agreement was entered into between the plaintiff and the defendant for carrying out of the extra / additional work by the plaintiff qua the defendant at the suit property for additional consideration. Meaning thereby, that in the absence of any written agreement qua the carrying out of the additional work at the premises in question, the onus was on the plaintiff to prove in the first place, that any such oral agreement was entered into, the terms of the said agreement, the nature of the work that had to be carried out in regard to the oral agreement, the mode and schedule of payment with respect to the additional work that was to be carried out in respect of the oral agreement. The aspects pertaining to the adjudication of the oral agreement and its terms need to be assessed, analyzed and appreciated on the basis of the evidence led by the plaintiff in the present case.
47. It has been categorically averred by PW1 in his cross-examination, that he had completed the work and had handed over the possession of the premised in question to the defendant on 05.12.2022, after the due diligence and cross-checking by the defendant. The relevant Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma & Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 19 of 34 excerpts of the cross-examination of PW1 are reproduced as under :-
"Q17. When have you completed the work in the property and when have you given or handed over the possession?
A. I have completed the work and handed over the possession on 05.12.22. Vol. I have handed over the possession after the due diligence or cross checking done by the defendant."
48. The defendant had also stepped into the witness box and had stated in his cross-examination, that he had engaged the plaintiff after making numerous inquiries and searches and that he has mutually signed the agreement with the plaintiff for the construction related work of his property. The relevant excerpts of the cross-examination of DW1 / defendant are reproduced as under :-
"I had engaged the Plaintiff after making numerous enquiries and searches. 1 have mutually signed the agreement with the plaintiff for the construction related work for my property."
49. Thus, from the above extracts, it can be deduced, that an agreement transpired between the parties with regard to the work to be carried out and the same was amounting to Rs. 8,60,000/- in total as enumerated in Ex.PW1/4 and any work agreed to be done beyond Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma & Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 20 of 34 that was not a part of the said agreement. Further, the averment of the plaintiff to the effect, that he had completed the work and handed over the possession on 05.12.2022 is devoid of any kind of explanation as to whether the said handing over was done after the completion of the work as per the agreement Ex.PW1/4 and whether the said completion also included the performance of the alleged extra work that was done by the plaintiff qua the defendant on the basis of the oral agreement. It is also noteworthy to mention, that in his answer to question no. 16 put to him in his cross-examination, plaintiff avers in his voluntary statement, that he had carried out extra work on the request of the defendant, however in his further answer to question no 18 put to him in his cross-examination he stated in his voluntary statement that there was some extra work but he was neither concerned nor he had commitment with regard to the said extra work. Out of his answers to question no. 16 and 18 with respect to the extra work being done by him, there is no clarity adduced as to what was the portion of the extra work that was to be performed by him and what was the portion of the pending work which though formed the part of the extra work but was not within the domain of his commitment with the defendant.
Thus, the plaintiff answers perse are contradictory and non-explanatory of the actual extra work that he had undertaken at the behest of the defendant. At this stage, it is also pellucid to note, that plaintiff had categorically stated in his cross-examination vide his answer to question no. 19, that there was some pending work Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma & Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 21 of 34 with respect to the second floor of the property but he was handed over the work pertaining to the ground floor and first floor only and that the work pertaining to the second floor did not fall under his purview.
However, the said aspect of the work regarding the ground and the first floor given to him already stands covered in Ex.PW1/4 and there is no disagreement with regard to the same between the plaintiff or the defendant but at the cost of brevity, it is being stated again that the facet of extra work that was to be undertaken by the plaintiff for the defendant remains unexplained as it stands deduced out of his own statement that work relating to second floor did not fall in his purview and as far as the work related to first and ground floor is concerned the same was part of the agreement Ex.PW1/4 and so being the case, what was the actual extra work that was performed by the plaintiff to the defendant stands not proved. The relevant excerpts of his cross-examination are reproduced as under :-
"Q16. Whether out of the extra work that you have carried out in the property, how much amount have you recovered?
A. I have done work of Rs. 3,65,960/- out of which Rs.61,230/- is still pending and recoverable. Vol. I have carried out the extra work on the request of the defendant.
Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma & Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 22 of 34 Q18. Was there any pendency of work in the property after handing over the complete possession by you?
A. Yes, there was some pending work. Vol. There was some extra work however, I have no concerns and commitments with respect to the extra work.
Q19. what according to you was the pending work at the time of handing over the possession?
A. There was some pending work with respect to the 2nd floor of the property however, only the work of ground and first floor was handed over to me. Vol. Work related to 2nd floor does not falls under my purview.
50. Thus, from the above extracts of the plaintiff's examination in chief and cross-examination, the following stands deduced :-
firstly - the averment made by the plaintiff with regard to the delegation of some extra work upon him by the defendant by way of an oral agreement entered into between him and defendant apart from the written agreement Ex.PW1/4 stands unproved. The plaintiff has simplicitor made a bald statement qua the assignment of the work and consequential completion of the same by him without any Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma & Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 23 of 34 positive evidence being led to this effect. Secondly - There is no averment of the plaintiff vide which it stands proved as to what was the nature of the extra / additional work that was to be performed, the bifurcation of the said work, the payment that was to be made for that additional work and the duration and the mode of payment. Mere making of the statement to the effect that the work was done beyond the agreed contractual work won't suffice.
Thirdly - It is averred by the plaintiff that he had received an amount of Rs. 11,64,730/- against an agreed amount of Rs.12,25,960/- but how the plaintiff arrived at these two arbitrary figures has not been elucidated. Therefore, in the absence of the cogent evidence, this Court finds no hesitation in holding that the plaintiff has miserably failed to explain by way of any material evidence as to how he is entitled to Rs. 61,230/-.
51. Moving ahead, vide the present suit this Court will adjudicate the principal suit i.e. the claim of the plaintiff as well as the counter- claim of the defendant as the issues framed in both i.e. the suit as well as the counter-claim are same and the evidence led by the parties are also common. This Court now proceeds with the adjudication of the remaining issues of which the onus was upon the defendant / counter-claimant and the issues no. 2, 3 and 4 are reproduced as under : -
2. Whether the counter claimant / defendant is entitled to Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma & Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 24 of 34 recover Rs 94,888/- from the plaintiff as the plaintiff left the work incomplete and the defendant / counter claimant got it completed from some other person, as prayed for in the counter claim ? OPC / OPD
3. Whether the counter claimant is entitled to recover Rs.
2,50,000/- on account of construction defects left by the plaintiff / non-claimant in the building, as prayed for in the counter claim? OPC / OPD
4. hether the counter claimant is entitled to damages on account of breach of contract, as prayed for? OPC
52. The principal contention of the defendant is that the plaintiff had not completed the work that was assigned to him by the former but in order to elucidate this averment, it was incumbent upon the defendant to prove the specific work that was though assigned to the defendant but not completed by him. The defendant has nowhere in the entire evidence advanced by him has proved the facets of the work which were though assigned by plaintiff but not proved by him. The defendant on being subjected to the litmus test of cross- examination stated, that he had not paid the remaining amount to the plaintiff qua the extra word as said work was incomplete and also that the plaintiff has charged extra charges and had done double billing.
Thus, the entire asseveration regarding the non-completion of the work, taking of extra charges and raising double bills by the defendant are mere oral assertions devoid of merit in the absence of Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma & Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 25 of 34 any proof to this effect.
53. Specific question was put to the defendant in his cross-examination with regard to the raising of the objection by him for the first time for the work not done by the plaintiff but he gave a very vague answer to the same stating, that he had raised the objection for the work done as and when required but he was not sure of the date, month when he had raised the objection for the first time. The relevant excerpts of his cross-examination are reproduced as under :-
"Q. When you have raised the objections for the first time for the work done by the plaintiff?
A. I have the raised objection for the work done by the plaintiff as and when required, however, the plaintiff did not resolve the same. I am not sure of the day, date, month, when I had raised the objection for the first time."
54. Further, the defendant categorically admitted in his cross-
examination that he had not made any efforts to terminate the agreement in writing despite he being displeased with his work. The relevant excerpts of his cross-examination are reproduced as under :-
"Q. Have you ever tried or made any efforts to cancel or terminate the agreement in Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma & Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 26 of 34 writing as you were not satisfied with the construction work of the plaintiff before filing the suit or making any complaint before the appropriate forum?
A. No, I had not made any efforts to terminate the agreement in writing, however, I have said the same to the plaintiff several times verbally."
55. It is further apposite to note, that during the course of cross-
examination defendant was asked if he had placed on record any document to testify the fact that the plaintiff had charged extra or double amount from him for the work done and in his reply, the defendant placed reliance upon the documents Ex.PW1/2 containing the whats-app chat between the plaintiff and the defendant and he specifically placed reliance on pages no. 17, 20, 26, 28, 29, 38 and 43 of the said chat. At this stage, Court deems it fit to state that the whats-app chat being an electronic reproduction of the evidence required to be supported by certificate under Section 65-B IEA for the same being admissible in evidence, but no such certificate has been furnished by the defendant in order to prove the contents of the whats-app chat. At this stage, even if the Court for a moment chooses not to look into the filing of the certificate u/s 65B Indian Evidence Act, and simplicitor appreciates the contents of the said document, it can be culled out that there is nothing on page no. 17 of Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma & Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 27 of 34 the said chat to show that the plaintiff had charged the double or extra amount. At page no. 20, again there is simply a screen shot pertaining to a payment of Rs. 60,000/- made but there is nothing on the said page to deduce that any objection regarding the taking of extra charges by the plaintiff from the defendant is taken. As far as pages 26, 28, 29, 31, 38 of the said extracts of the chat are concerned, all these documents perse have overwriting made with blue pen, thereby perse questioning the authenticity and veracity of these chats.
56. Another indispensable aspect of defendant's cross-examination is that he admitted that after completion of work i.e. on 06.12.2022 when the defendant had organized the inauguration ceremony he had also invited the plaintiff for the same. Now, from this question that was put to the defendant and subsequent answer given thereby two aspects arise :-
firstly - by giving answer in affirmative, defendant admitted that the inaugural function was organized on completion of work that is on 06.12.2022, the work stood completed and so being the case, the onus lies upon the defendant to prove that how and under what circumstances, he is averring that the plaintiff had not completed the work and secondly - if the plaintiff had not completed the work despite multiple objections and directions, then why and under what circumstances, the defendant had invited the plaintiff for the Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma & Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 28 of 34 inauguration function.
57. Apart from the above, categorically questions were put to the defendant in his cross-examination as to whether he had informed or conveyed in writing that construction of his house was still pending even after the handing over of the possession to him by the plaintiff. In answer to this question, the defendant stated, that he had informed the plaintiff on whats-app chat on 25.12.2022. The relevant excerpts of the cross-checking of DW1 are reproduced as under :-
"Q. Have you ever informed or conveyed in writing that construction of your house is still pending even after the handing over of the possession to you by the plaintiff? A. Yes. I had informed the plaintiff on whats- app chat on 25.12.2022."
58. It is relevant to note, that firstly the said whats-app chat is not admissible as the same is not supported with the certificate under Section 65-B Indian Evidence Act or the certificate under Section 63 of Bhartiya Sakshaya Adhiniyam. Even if the non-filing of the certificate is ignored and the chat of the relevant period is read, nothing can be culled out from the chat to infer that the defendant had conveyed to the plaintiff that construction of his house was still pending even after the handing over of the possession to him by the plaintiff.
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59. It is further pellucid to note, that a vital question was put to the defendant in his cross-examination with regard to the pendency of the construction related work and that whether the plaintiff had completed the construction work before inauguration of his house or after inauguration. The defendant had admitted, that the construction work was completed before inauguration.
"Q. Can you tell that when you messaged the plaintiff about the pendency of construction related work of your house, when did the plaintiff completed your construction related work before inauguration of your house or after inauguration?
A. The construction work was completed before inauguration however, I hired outside worker or private labour to complete the same as the plaintiff did not completed the work. Vol. I had informed the plaintiff on 25.12.2022 that on 05.12.2022 I had hired labour from outside for getting the work completed of my house and further informed the plaintiff that the cost of the same would be borne by you the plaintiff."
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60. However, during his earlier cross-examination he had stated, that despite non-completion of the construction work he had invited the plaintiff in the inaugural function.
"Q. Is it right to say that after completion of the work i.c., on 06.12.2022 you nave organised the inauguration ceremony and invited the plaintiff as well?
A. Yes, I have invited the Plaintiff for the same. Vol. The work was not completely done by the Plaintiff however, I had still invited him."
61. Thus, from the above extracts, it can be deduced that :-
Firstly, the defendant miserably failed to prove that there was another agreement that was entered into between the Defendant and Plaintiff for the additional work apart from Exhibit-PW1/4 and that the Defendant had agreed to do the work that the plaintiff had asked him to do so.
Secondly, the defendant had not furnished any evidence to substantiate his submission that the plaintiff failed to perform the work assigned to him by the defendant. Thirdly, There is no explanation or any documentary proof with regard to the exact nature of the incomplete work in consonance to the oral agreement entered between the plaintiff and the defendant.
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62. Now, the only aspect which needs to be adjudged is with regard to the engaging of additional workers by the defendant for completion of the additional work as the plaintiff had left the work incomplete. It is is apropos to note, that the defendant mentioned in his cross- examination, that he had informed the plaintiff on 05.12.2022 and 25.12.2022 that he had hired the workers from outside for getting the wok completed, which was left incomplete by the plaintiff. It is vital to note, that mere informing to the other party regarding the hiring of additional / extra workers would not result into a binding contract or will not amount to assigning or transferring of the liability to that person i.e. the defendant in this case. It was vital for the defendant to prove, that there was an agreement between the plaintiff and the defendant with respect to the extra work and that the expenditure which was being incurred by the defendant for carrying out of the said work would be paid by the plaintiff as he had failed to carry out the agreed work.
63. Therefore in view of the above-detailed discussion, the defendant has miserably failed to prove, that :-
firstly - the work was left incomplete by the plaintiff, Secondly - plaintiff had agreed that labour charges for the extra work would be borne by the plaintiff, Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma & Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 32 of 34 Thirdly - there is an agreement entered into between the plaintiff and the defendant for extra work, Fourthly - bills of the expenditure incurred by the defendant for the completion of the alleged work by the other labours, which was allegedly left incomplete by the plaintiff.
Therefore, the plaintiff cannot be held liable simplicitor on the basis of mere bal averments of the defendant.
64. Therefore, in view of the above detailed discussion and as a result of the appreciation of evidence, this court is of the considered opinion, that both i.e. plaintiff / non-claimant and defendant / counter- claimant have failed to prove their respective case i.e. the main suit and the counter-claim respectively on the scale of preponderance of probabilities.
Relief
65. Thus, in the teeth of the above analysis, this court is of the considered opinion, the suit filed by the plaintiff namely Sh. Sanjeev Aggarwal (non-claimant in the counter claim) and the counter-claim filed by the counter-claimant namely Sh. Inder Sen Sharma (defendant in the main suit) are dismissed.
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66. No separate order as to cost.
67. Decree sheet be prepared accordingly.
68. File be consigned to record room after due compliance.
Digitally signedby RICHA SHARMA RICHA Date:
SHARMA 2025.04.03 16:03:30 +0530 Announced in open Court (Richa Sharma) on 03.04.2025. SCJ-cum-RC (West) Tis Hazari Courts, Delhi 03.04.2025 Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma & Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 34 of 34 CS SCJ 651/23 SANJEEV AGGARWAL Vs. INDER SEN SHARMA & Counter Claim 15/23 INDRA SEN SHARMA Vs. SANJEEV AGGARWAL 03.04.2025 Present : Sh. Dhananjay Kumar Jha, Learned Counsel for the plaintiff.
Sh. Amit Kumar and Sh. Deepak Kumar Chauhan, Learned Counsel for the defendant.
Written synopsis on behalf of the plaintiff filed in the main suit. List for judgment at 4:00 PM today.
(Richa Sharma) Sr. Civil Judge - Cum - RC THC / Delhi / 03.04.2025 AT 4:00 PM Present : None.
Vide separate detailed common judgment of the even date announced in the open Court today, the suit filed by the plaintiff namely Sh. Sanjeev Aggarwal (non-claimant in the counter claim) and the counter- claim filed by the counter-claimant namely Sh. Inder Sen Sharma (defendant in the main suit) are dismissed. No separate order as to cost. Decree sheet be prepared accordingly. Digitally signed by RICHA SHARMA RICHA File be consigned to record room after due compliance.
Date:
SHARMA 2025.04.03 16:03:24 +0530 (Richa Sharma) Sr. Civil Judge - Cum - RC THC / Delhi / 03.04.2025 Civil Suit No. 651/2023 Sanjeev Aggarwal Vs. Inder Sen Sharma & Counter Claim No. 15/23 Inder Sen Sharma Vs. Sanjeev Aggarwal Page 35 of 34