Delhi District Court
Counter vs Sh.Usman Salmani on 7 June, 2022
THE COURT OF SH. ANKIT KARAN SINGH
CIVIL JUDGE01 (WEST), TIS HAZARI COURTS, DELHI
Counter Claim No. 03/18
Date of Institution : 23.10.2017
Date of reservation of Judgment : 05.05.2022
Date of pronouncement of Judgment : 07.06.2022
Sh. Parveen Nagpal
S/o M.L Nagpal
R/o H.No. D17, Mukhram Garden
Tilak Nagar
New Delhi18
..........Counter claimant
Versus
Sh.Usman Salmani
S/o Mohd. Saleem
R/o WZ2B, Hind Nagar
Tilak Nagar
New Delhi18.
..............Respondent
JUDGMENT
1. Brief facts as per counter claim are that the counter claimant is owner of property bearing no. D17, Mukh Ram Garden, Tilak Nagar, New Delhi18 Counter Claim No 3/18 Praveen Nagpal Vs. Usman Salmani 1 /18 and the said property is comprised of ground floor, first floor and second floor. It is further stated that since the family of the counter claimant had grown up and accordingly counter claimant required additional accommodation which could only be met through by raising additional construction on the property. It is further stated that since it was not possible for the counter claimant to procure the material and to do all other ancillary works in respect of the construction as such was looking for a builder who can carry out the job with material, the respondent offered his services and after examining the entire property and discussing with the counter claimant quality of material to be used in the construction offered to carry out the construction work for a total sum of Rs. 5,50,000/ which amount was payable by the counter claimant during the period of construction. It is further stated that all the terms and conditions which were agreed and negotiated between the counter claimant and respondent were incorporated in the agreement which was not only signed and executed by the counter claimant and the respondent but also was acted upon. It is further stated that the counter claimant as on date has paid a total sum of Rs. 4,50,000/to the respondent and who has failed to complete the work and is indulging in further extortion and harassment.
2. It is further stated that respondent deliberately has not provided the receipt for Rs.2.5 lacs which was although received by him and which fact has not been denied by the respondent in the audio recordings. It is further stated that after the work was abandoned by respondent, the counter claimant held various meetings with the respondent but could not succeed in pursuing the respondent to complete Counter Claim No 3/18 Praveen Nagpal Vs. Usman Salmani 2 /18 the said work, on the contrary the respondent also starting asking for more amount as compared to the agreed amount to complete the work. It is further stated that counter claimant under pressure although agreed to pay the additional amount but even then the respondent did not come forward to complete the said job.
3. It is further stated that due to harassment and pressure tactics adopted by the respondent the counter claimant suffered mentally and physically. It is further stated that as the respondent refused to carry out the said work in terms of the agreement dated 16.05.2017, accordingly the counter claimant was left with no other option except to get the said job completed from other persons.
4. It is further stated that the counter claimant in order to get the work completed has to incur a further sum of Rs. 1,80,000/ and receipt/quotation in respect of which are filed. It is further stated that although the counter claimant has suffered due to inaction on the part of the defendant who left the work in between tremendously but still the counter claimant is claiming a sum of Rs. 2 lacs towards the mental harassment and the tension and inconvenience caused to the counter claimant on account of the acts of the respondent. It is further stated that since in terms of agreement Rs. 1 lac was to be further paid by the applicant in case the respondent completed the entire job and considering the fact that applicant has to incur a sum of Rs. 1,80,000/ and after adjusting the said amount a sum of Rs. 80,000/is the additional cost to be incurred by the counter claimant, as such the counter claimant is within his right to seek the recovery of the same. It is further stated that besides above a sum of Rs. 2 lacs is being claimed towards the mental Counter Claim No 3/18 Praveen Nagpal Vs. Usman Salmani 3 /18 harassment and damages and hence a total sum of Rs. 2,80,000/ is claimed by way of present claim.
5. By way of counter claim the counter claimant has prayed that
(a) Decree of Rs. 2,80,000/ be passed in favour of counter claimant and against respondent.
(b) Interest @ 18 % p.a from the date of filing the present counter claim till its realization may also be awarded to the counter claimant.
(c) Costs of the suit.
6. Written statement has been filed by respondent wherein it is stated that the respondent is the absolute owner and in possession of built up property upto second floor bearing no. D17, measuring 50 Sq. Yards situated at Mukhram Garden, Tilak Nagar, New Delhi. It is further submitted that the counter claimant approached and requested to the respondent to built up complete third floor with material for a sum of Rs. 5,50,000/ and in this regard an agreement was executed on dated 16.05.2017 between them. It is further stated that as per terms and conditions of the said agreement dated 16.05.2017, the respondent completed all work except remaining minor finishing work for a total amount of Rs. 70,000/. It is further stated that counter claimant failed to make the payment to the respondent and only made payment of Rs. 1 lac each on 23.05.2017 and 28.05.2017 to the respondent and for the same the respondent issued the receipt to the counter claimant. It is further stated that respondent stopped the remaining work due to nonpayment and thereafter respondent visited to the house of counter claimant on dated 05.08.2017, Counter Claim No 3/18 Praveen Nagpal Vs. Usman Salmani 4 /18 10.08.2017 and 18.08.2017 and made requests to make payment of Rs. 2,80,000/ but the counter claimant and his son flatly refused to make the remaining payment. Thereafter respondent made complaint to police. In reply to the merits the averments made in counter claim are denied and prayer is made to dismiss the counter claim.
7. Vide Order dated 17.04.2018, following issues are framed :
1. Whether the counter claimant is entitled to the decree of sum of Rs. 2,80,000/ as prayed for ? Onus on counter claimant.
2. Whether the counter claimant is entitled to interest, if any. If so, at what rate and for what period ? Onus on counter claimant.
3. Relief
8. In order to prove his case counter claimant has examined himself as PW1 and has tendered in evidence his duly sworn in affidavit. Same is Ex. PW 1/A and has relied upon the following documents :
1. Agreement dated 16.05.2017 Ex. PW 1/1 2. Audio Recordings Ex. PW 1/ 2
3. Videography regarding completion of work Ex. PW 1/3 in the suit property
4. The original receipts of payments Ex. PW 1/ 4 to Ex. PW 1/18
5. Quotation of work Ex. PW 1/19 & Ex. PW 1/20 Counter Claim No 3/18 Praveen Nagpal Vs. Usman Salmani 5 /18
6. Affidavit U/s 65 B of Indian Evidence Act, 1872 Ex. PW 1/ 21
9. Besides himself counter claimant has examined two more witnesses i.e. (1) Sh. Ashish Nagpal as PW2 and has tendered in evidence his duly sworn in affidavit. Same is Ex. PW 2/A. (2) Sh. Jasmeet Singh as PW3 and has tendered in evidence his duly sworn in affidavit as Ex. PW 3/A.
10. Thereafter vide statement made by counter claimant on 14.03.2019, counter claimant's evidence was closed.
11. Statement has been made by counsel for defendant on 14.03.2019 to the effect that he is adopting evidence led in the main case titled as 'Usman Salmani Vs. Parveen Nagpal bearing CS SCJ No. 1237/17'.
12. Defendant has examined himself as PW1 ( in CS SCJ No. 1237/17) and has tendered in evidence his duly sworn in affidavit. Same is Ex. PW 1/A and has relied upon the following documents :
Counter Claim No 3/18 Praveen Nagpal Vs. Usman Salmani 6 /18 1. Site plan Ex. PW 1/1
2. Copy of construction agreement Mark A dated 16.05.2017
3. Payment receipt dated 23.05.2017 Mark B
4. Payment receipt dated 28.05.2017 Mark C
5. Original copy of complaint dated Ex. PW 1/5 22.08.2017
6. Postal receipts dated 23.08.2018 Ex. PW 1/6 (colly.)
7. Legal notice dated 23.08.2017 Ex. PW 1/7
8. Postal receipt dated 23.08.2017 Ex. PW 1/8 pertaining to legal notice
9. Reply of legal notice dated Ex. PW 1/9 29.08.2017
13. Besides himself respondent has examined another witness namely PW 2 Sh. Rajeev Kumar ( in CS SCJ No. 1237/17), who has tendered in evidence his duly sworn in affidavit. Same is Ex. PW 2/A.
14. Both witnesses were crossexamined by counsel for counter claimant. Thereafter vide statement made by respondent on 05.09.2018, respondent evidence was closed.
Counter Claim No 3/18 Praveen Nagpal Vs. Usman Salmani 7 /18 15. ISSUE NO.1 AND 2
1. Whether the counter claimant is entitled to the decree of sum of Rs. 2,80,000/ as prayed for ? Onus on counter claimant.
2. Whether the counter claimant is entitled to interest, if any. If so, at what rate and for what period ? Onus on counter claimant.
The onus to prove both these issues was upon the plaintiff. Both the issues are taken up together being connected.
16. Before proceedings further lets discuss law on the point first:
Contract Act provides that Sec 52. Order of performance of reciprocal promises.--Where the order in which reciprocal promises are to be performed is expressly fixed by the contract, they shall be performed in that order; and where the order is not expressly fixed by the contract, they shall be performed in that order which the nature of the transaction requires.
Illustrations
(a) A and B contract that A shall build a house for B at a fixed price. A's promise to build the house must be performed before B's promise to pay for it.
Sec 53. Liability of party preventing event on which the contract is to take effect.--When a contract contains reciprocal promises, and one party to the Counter Claim No 3/18 Praveen Nagpal Vs. Usman Salmani 8 /18 contract prevents the other from performing his promise, the contract becomes voidable at the option of the party so prevented; and he is entitled to compensation from the other party for any loss which he may sustain in consequence of the nonperformance of the contract.
Illustration A and B contract that B shall execute certain work for A for a thousand rupees. B is ready and willing to execute the work accordingly, but A prevents him from doing so. The contract is voidable at the option of B; and, if he elects to rescind it, he is entitled to recover from A compensation for any loss which he has incurred by its nonperformance.
Sec 54. Effect of default as to that promise which should be first performed, in contract consisting of reciprocal promises.--When a contract consists of reciprocal promises, such that one of them cannot be performed, or that its performance cannot be claimed till the other has been performed, and the promisor of the promise last mentioned fails to perform it, such promisor cannot claim the performance of the reciprocal promise, and must make compensation to the other party to the contract for any loss which such other party may sustain by the nonperformance of the contract. Illustrations
(b) A contracts with B to execute certain builder's work for a fixed price, B supplying the scaffolding and timber necessary Counter Claim No 3/18 Praveen Nagpal Vs. Usman Salmani 9 /18 for the work. B refuses to furnish any scaffolding or timber, and the work cannot be executed. A need not execute the work, and B is bound to make compensation to A for any loss caused to him by the non performance of the contract.
Sec 55. Effect of failure to perform at fixed time, in contract in which time is essential.--When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract.
Effect of such failure when time is not essential.--If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure.
Effect of acceptance of performance at time other than that agreed upon.--If, in case of a contract voidable on account of the promisor's failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than that agreed, the promisee cannot claim compensation for any loss occasioned by the nonperformance of the promise Counter Claim No 3/18 Praveen Nagpal Vs. Usman Salmani 10 /18 at the time agreed, unless, at the time of such acceptance, he gives notice to the promisor of his intention to do so.
73.Compensation for loss or damage caused by breach of contract.--When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach.
Compensation for failure to discharge obligation resembling those created by contract.--When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract.
Explanation.--In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the nonperformance of the contract must be taken into account.
Illustrations Counter Claim No 3/18 Praveen Nagpal Vs. Usman Salmani 11 /18
(f) 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.
(l)A, a builder, contracts to erect and finish a house by the first of January, in order that B may give possession of it at that time to C, to whom B has contracted to let it. A is informed of the contract between B and C. A builds the house so badly that, before the first of January, it falls down and has to be rebuilt by B, who, in consequence, loses the rent which he was to have received from C, and is obliged to make compensation to C for the breach of his contract. A must make compensation to B for the cost of rebuilding the house, for the rent lost, and for the compensation made to C. Sec 74. Compensation for breach of contract where penalty stipulated for. When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for.
Explanation.--A stipulation for increased interest from the date of default may Counter Claim No 3/18 Praveen Nagpal Vs. Usman Salmani 12 /18 be a stipulation by way of penalty.
Exception.--When any person enters into any bailbond, recognizance or other instrument of the same nature, or, under the provisions of any law, or under the orders of the Central Government or of any State Government, gives any bond for the performance of any public duty or act in which the public are interested, he shall be liable, upon breach of the condition of any such instrument, to pay the whole sum mentioned therein.
Explanation.--A person who enters into a contract with Government does not necessarily thereby undertake any public duty, or promise to do an act in which the public are interested.
17. Hon'ble Supreme Court in Welspun Specialty Solutions Limited v. ONGC, LL 2021 SC 646, held that "30. It is now settled that 'whether time is of the essence in a contract', has to be culled out from the reading of the entire contract as well as the surrounding circumstances. Merely having an explicit clause may not be sufficient to make time the essence of the contract. As the contract was spread over a long tenure, the intention of the parties to provide for extensions surely reinforces the fact that timely performance was necessary. The fact that such extensions were granted indicates ONGC's effort to uphold the integrity of the contract instead of repudiating the same."
Counter Claim No 3/18 Praveen Nagpal Vs. Usman Salmani 13 /18
18. Ex PW 1/1 (counter claim) contains term (iii) as "That the second party will complete the construction within 75 days after start the work." After term (ix), the stages of payment on completion of work is mentioned. Respondent (Mr. Usman Salmani) during his cross examination also stated that in agreement dated 16.05.2017 construction of work is to be completed within a span of 75 days from the date of agreement. Respondent also conceded that as per agreement, the payment is to be made as per the different stages of construction. Respondent also conceded that in today's date the construction work in the suit property is completed. This clearly shows that time was of the essence of the contract.
19. Let's find out whether counter claimant has paid only Rs. 2,00,000/ as alleged by the respondent or Rs. 4,50,000/ as alleged in the counter claim. Counter claimant has filed Ex PW 1/15 and Ex PW 1/16 i.e. receipts of Rs. 1,00,000/ each given by plaintiff to defendant. Thus, payment of Rs. 2,00,000 is admitted by the respondent. Counter claimant has filed audio recording (Ex PW 1/2) in counter claim wherein the respondent, addressed with the name of Jolly, was put suggestion by the son of the counter claimant that respondent has received Rs. 4,50,000/ and has deliberately denied receipt of Rs. 4,50,000/. Suggestions were put regarding veracity of this recording to PW2 (in counter claim) and PW1 (in counter claim) during crossexamination by counsel of respondent. The recording contains voices of three persons. First person appears to be Sh. Ashish Nagpal as PW2 (in counter claim) has testified that recording was recorded by him. Other person is addressed as Jolly. As per counter claimant, this Jolly person is respondent himself. In reply to Counter Claim No 3/18 Praveen Nagpal Vs. Usman Salmani 14 /18 legal notice, Ex PW 1/9 (in CS SCJ 1237/17), para 3 clearly mentions the name of Mr. Usman Salmani aka Johny aka Jolly. It is not denied by the respondent in either written statement or crossexamination of counter claimant or his son that respondent is not called Jolly. Thus, this court finds that it was respondent himself who was addressed as Jolly in the audio recording.
20. Audio recording relied by PW1 and PW2 is the most crucial document in the present case. Audio recording categorically nullifies the case of the respondent as respondent has admitted in audio recording that he has received Rs. 4,50,000/ from the counter claimant. Audio recording further clearly shows that respondent is asking son of the counter claimant to increase the agreed amount. Audio recording shows that respondent was not willing to perform his part of the agreement. It further shows that testimony of PW1 (in CS SCJ 1237/17) cannot be relied upon. It further shows that respondent is wrongfully claiming outstanding balance of Rs. 2,80,000/ from the counter claimant, when in fact respondent has already received Rs. 4,50,000/ from the counter claimant. Audio recording further shows the respondent has not given the receipt of rest of the amount i.e. Rs. 2,50,000/. All this clearly shows that breach of contract was made on part of the respondent citing hike in construction expenses.
21. During crossexamination of PW1 (in CS SCJ 1237/17) has conceded that the construction work was to be done within a span of 75 days from the date of agreement dated 16.05.2017. Thus, construction was supposed to be completed by respondent by the end of August 2017. The construction was not completed by the Counter Claim No 3/18 Praveen Nagpal Vs. Usman Salmani 15 /18 respondent by the end of August 2017 due to his own fault in asking more than contractual amount which was not agreeable by the counter claimant. Respondent has not come to the court with clean hands. In the legal notice dated 23.08.2017, respondent is claiming more than contractual amount from the counter claimant.
22. In the contract, time of performance of agreement, was essential. The counter claimant stated that construction has already been completed by the counter claimant which was left by the respondent and that now construction is complete. PW1 (in CS SCJ 1237/17) during his crossexamination conceded that construction work in the suit property is completed.
23. In Dr. N.G. Dastane vs Mrs. S. Dastane on 19 March, 1975, AIR 1975 SC 1534, (1975) 2 SCC 326, Hon'ble Supreme Court observed that:
"24. The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A. prudent man faced with conflicting probabilities concerning a factsituation will act on the supposition that the fact exists, if on weighing the various probabilities he links that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines Counter Claim No 3/18 Praveen Nagpal Vs. Usman Salmani 16 /18 where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note : "the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue" Per Dixon, J. in Wright v. Wright (1948) 77 C.L.R. 191 at p. 210; or as said by Lord Denning, "the degree of probability depends on the subject matter. In proportion as the offence is grave, so ought the proof to be clear"
Blyth v. Blyth [1966] 1 A.E.R. 534 at 536. But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged."
24. It is cardinal principle of damages for breach of contract that damages are awarded to place the injured party in the same position in which he would have been had he not sustained the injury complained of. Thus, damages must commensurate the injury sustained of. In the present case, counter claimant is not claiming general damages which naturally arose in the normal course of events. It appears that counter claimant is claiming special damages for breach of contract. Counter claimant has also filed various bills and payment receipts for work done in the suit premises after respondent did not complete the construction work. Thus, damages were not liquidated when the parties agreed and entered into agreement. The notice of special damages to be incurred by the counter claimant were not brought in the knowledge of the respondent. No notice in any form was sent to the respondent before carrying out the construction work. It is also relevant to note that Counter Claim No 3/18 Praveen Nagpal Vs. Usman Salmani 17 /18 agreement Ex PW 1/1 does not contain any term or clause regarding breach of contract. It was not in contemplation of parties what damages parties would be entitled to in case of breach of contract. It appears that on breach of contract by respondent, both the parties decided to tread on their separate path. Whereas, respondent proceeded to file a suit for recovery of outstanding amount and permanent injunction restraining counter claimant to carry on construction; the counter claimant filed the counter claim in respect of construction left by the respondent.
25. In view of the above findings and observations, this court does not find that counter claimant has been able to prove this case. Thus, counter claim filed stands dismissed. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
ANKIT Digitally signed
by ANKIT
KARAN KARAN SINGH
Date: 2022.06.08
SINGH 18:09:06 +0530
Pronounced in the open court (Ankit Karan Singh)
today i.e. on 07.06.2022 Civil Judge01(West)/Delhi
Counter Claim No 3/18 Praveen Nagpal Vs. Usman Salmani 18 /18