Delhi District Court
Jagan Nath vs Mukesh Goel on 6 December, 2023
IN THE COURT OF MS. DIVYA MALHOTRA,
ADMINISTRATIVE CIVIL JUDGE-cum-COMMERCIAL CIVIL
JUDGE-cum-ADDITIONAL RENT CONTROLLER: NORTH-
WEST DISTRICT: ROHINI DISTRICT COURTS
CS SCJ 1088/2019
CNR No. DLNW030018012019
Jagan Nath
S/o Late Jhamman Ram
R/o A-2/57, Sector-5, Rohini,
Delhi-110085. ................Plaintif
versus
Mukesh Goel
S/o Ishwar Chand
R/o B-7/62, Sector-5,
Rohini, Delhi-110085. ...............Defendant
SUIT FOR PERMANENT INJUNCTION, DECLARATION
AND DAMAGES
Date of Institution : 26.07.2019
Date of Decision : 06.12.2023
Final Order : Decreed
EX-PARTE JUDGMENT
This is a suit for Declaration, Permanent Injunction and
Damages filed by the plaintiff against his builder.
Digitally signed
by DIVYA
DIVYA MALHOTRA
MALHOTRA Date: 2023.12.06
16:46:49 +0530
CS SCJ 1088/19 Jagan Nath V/s Mukesh Goel Page 1 of 6
BRIEF FACTS
1. Plaintif entered into a collaboration agreement dated 16.06.2018 Mark A with the defendant, a builder for construction / re-building of his Property No. A-2/57, Sector-5, Rohini, Delhi (hereinafter referred to as "suit property"). The reconstruction was to be carried out on the lines of another property i.e. A-2/91, in the same vicinity and the suit property was to be constructed upto three stories viz ground floor with parking upper floor, first floor, second floor and third floor. The construction was to be completed in 12 months and in the meantime, plaintif had to shift to a rented accommodation. The expenses /rental income of the same was to be borne by the defendant in terms of Clause 18 of Mark A. The plaintif, therefore, shifted to A-2/65, Sector-5, Rohini, Delhi-110085 at a monthly rent of Rs. 17,000/- vide rent agreement Mark B.
2. To plaintif's dismay, the construction of the suit property was not carried out as per the agreed terms nor the construction was completed within twelve months. The defendant used inferior quality material and despite several requests of the plaintif, he neither adhered to the terms nor completed the construction in time. Due to his negligence, one labor died after falling from the incomplete lift in the suit property in the month of May, 2019 and an FIR no. 123/2019, under Section 288/304 IPC was also lodged at PS Budh Vihar in this regard. It is stated that on 15.07.2019, the defendant threatened the plaintif, when he was asked to leave the Digitally signed by DIVYA DIVYA MALHOTRA MALHOTRA Date: 2023.12.06 16:47:02 +0530 CS SCJ 1088/19 Jagan Nath V/s Mukesh Goel Page 2 of 6 project if he was not capable of completing the work in time. The plaintif ultimately had to shift into the half-constructed property and rest of the construction had to be undertaken by him. Aggrieved by defendant's conduct, plaintif has filed the present suit seeking permanent injunction against creation of third party interest; declaration of collaboration agreement Mark A as null and void and damages to the tune of Rs. 2,50,000/-.
3. Defendant did not file any Written Statement. Hence, his defence was struck of vide order dated 01.11.2021. Thereafter, he entered into a settlement with the plaintif in the Mediation Center whereby he agreed to complete the construction work within two months of the date of agreement i.e. 03.10.2019. However, the said settlement was not complied with and the matter proceeded on merits. Afterwards, defendant stopped appearing in the matter, and therefore, he was proceeded exparte vide order dated 24.12.2022. He remained exparte thereafter.
TRIAL
4. Plaintif Jagan Nath entered the witness box as PW1 and was examined vide affidavit Ex. PW1/A wherein he reiterated the contents of his plaint and relied upon the following documents:-
(a) Copy of collaboration agreement and material list of the suit property as Mark Digitally signed by DIVYA A; DIVYA MALHOTRA MALHOTRA Date: 2023.12.06 16:47:12 +0530 CS SCJ 1088/19 Jagan Nath V/s Mukesh Goel Page 3 of 6
(b) Copy of rent agreement as Mark B;
(c) Copy of FIR and notice under Section 91 Cr. PC as Mark C and
(d) Copy of complaint dated 22.07.2019 with original postal receipt alongwith annexures as Ex. PW1/4.
4.1 No other witness was examined and PE stood closed on 24.12.2022. The witness was not cross-examined as the defendant remained exparte during trial.
Heard. Perused.
FINDINGS
5. PW1 has duly proved the contents of the plaint as well as the documents relied upon by him. His testimony to the efect that he engaged the defendant for construction of the suit property; that the collaboration agreement Mark A was executed between the parties and that the defendant failed to complete the construction of the suit property as per the terms agreed between the parties and within time, has gone uncontested and unrebutted in the absence of any cross- examination by the defendant to that efect.
5.1 The Mediation Agreement dated 03.10.2019 entered between the parties also lends credence to plaintif's version regarding non-compliance of the collaboration agreement as defendant undertook to complete the construction within 02 Digitally signed by DIVYA DIVYA MALHOTRA MALHOTRA Date: 2023.12.06 16:47:19 +0530 CS SCJ 1088/19 Jagan Nath V/s Mukesh Goel Page 4 of 6 months thereafter. However, the same evidently was not complied with and the defendant even stopped appearing in the matter to contest plaintif's version or to put forth his own version whereby the version of the plaintif has to be accepted as correct. I otherwise also, have no reason to disbelieve the same. The suit of the plaintif is well within limitation.
5.2 As far as the relief of damages is concerned, plaintif has claimed an amount of Rs. 2,50,000/- towards the same. He relied upon the rent agreement Mark B as well as Clause 18 of the collaboration agreement Mark A whereby it was agreed upon by the parties that the defendant shall pay the annual rental incurred by the plaintif while occupying the rented property during the time construction of the suit property was going on. A calculation sheet has been filed as per which, the defendant has failed to pay the rent @ 17,000/- per month w.e.f. 15.04.2019 to 20.07.2020 which comes out to be Rs. 2,21,000/-. The version of the plaintif in this regard has also gone uncontested and unrebutted. Thus, in terms of the collaboration agreement, the defendant is liable to pay the aforesaid amount. Plaintif has not proved the basis of the remainder amount.
5.3 Pertinently, the plaintif had filed the present suit seeking declaration of the collaboration agreement dated 16.06.2018 as null and void and also seeking a decree of permanent injunction against the defendant fromDigitally creatingsigned by DIVYA DIVYA MALHOTRA MALHOTRA Date: 2023.12.06 16:47:27 +0530 CS SCJ 1088/19 Jagan Nath V/s Mukesh Goel Page 5 of 6 any third party interest in the suit property but during the final arguments, he stated that he was not pressing the aforesaid relief(s) and was only pressing the relief of damages. Same was re-iterated in the final written arguments filed by him. Even otherwise, the agreement Mark A, being a private corner of transaction between the parties, is determinable at the instance of the parties and does not require order of the Court.
RELIEF
6. For the reasons assigned hereinabove, the suit of plaintif is partly decreed in the following manner :-
A decree of recovery of Rs.2,21,000/- is passed in favor of the plaintif and against the defendant towards damages.
The remaining relief(s) are disposed of as not pressed. Costs of the suit are also awarded in favor of the plaintif.
Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance. Digitally signed by DIVYA DIVYA MALHOTRA MALHOTRA Date:
2023.12.06 Announced in the open Court 16:47:36 +0530 on 6th December, 2023 (Divya Malhotra) ACJ/ARC (North-West) Rohini Courts, Delhi.CS SCJ 1088/19 Jagan Nath V/s Mukesh Goel Page 6 of 6