Delhi District Court
Cs No. - 6701/16 vs Shri Abhishek Saini on 18 December, 2019
IN THE COURT OF MS VANDANA JAIN
ADDITIONAL DISTRICT JUDGE-07
SOUTH-EAST DISTRICT, SAKET COURTS
NEW DELHI
CS No. - 6701/16
Shri Siddharth Sapra,
S/o Shri Harbans Lal Sapra,
R/o 4, First Floor, Sant Nagar,
East of Kailash,
New Delhi-110065. .......Plaintiff
Versus
Shri Abhishek Saini
S/o Late Shri Narinder Saini
R/o 106-A/1, Gautam Nagar,
New Delhi-110049. .......Defendant
Date of institution of case : 09.03.2016
Date of reserving Order : 16.12.2019
Date of Order : 18.12.2019
Suit for recovery of Rs. 10,00,000/- (Rs. Ten Lakhs Only)
JUDGMENT
1. Brief facts of the present case are that the plaintiff is the owner of property bearing no. 33 measuring, 66 Sq. Yards CS-6701/16 Siddharth Sapra Vs. Abhishek Saini Page 1 of 23 situated at Sant Nagar, East of Kailash, New Delhi-110056 (hereinafter referred as "suit property') and an collaboration agreement dated 07.09.2015 (wrongly typed as 13.06.2015 in the legal notice) was signed between the plaintiff and defendant for construction of the aforesaid suit property and the defendant agreed to complete the construction within 06 months.
2. The defendant was to provide the entire building material and the plaintiff agreed to pay Rs. 28 Lakhs to the defendant. The entire payment was made at the instance of the defendant who showed his urgent need and pressed the plaintiff to make the entire payment. The property was handed over to the defendant to raise construction but the defendant stopped working and removed his labour from the site in December 2015 itself without completing the work which caused inconvenience to the plaintiff. The plaintiff requested the defendant to complete the work, but he did not turn up. Plaintiff was left with no alternative, so he engaged another contractor CS-6701/16 Siddharth Sapra Vs. Abhishek Saini Page 2 of 23 namely Sh. Dheeraj and got the work completed and incurred labour charges of Rs. 4,25,000/- and cost of material to be Rs. 2,99,453/-. The said work could be completed in January 2016 only, by contractor Sh. Dheeraj. Plaintiff served legal notice dated 25.01.2016 upon the defendant calling him to pay the said amount alongwith damages of Rs. 2 Lakhs and interest, however, no amount was paid. Defendant is stated to be liable to pay an amount of Rs. 20,33,453/-, but he has pressed his claim only for Rs. 10,00,000/- alongwith pendente-lite interest.
3. The summons of the suit were sent to the defendant and defendant filed the written statement stating that he has filed a suit for recovery of Rs. 6 Lakhs. He admitted having signed collaboration agreement dated 07.09.2015, but it is stated that the possession of the suit property was handed over to the defendant on 29.02.2016 for raising the construction and therefore, he was to complete the construction by 29.08.2016. He has denied that the defendant had left the work in-between. CS-6701/16 Siddharth Sapra Vs. Abhishek Saini Page 3 of 23 It is stated that the plaintiff approached the defendant to raise construction through one agent namely Sh. Mohan and he was paid the commission of Rs. 1.5 Lakhs by defendant. It is stated that since this suit has been filed before expiry of 06 months from the date of handing over the possession of the property, therefore, suit is premature and is liable to be dismissed.
4. He has denied receiving Rs. 28 Lakhs from the plaintiff and has stated that he has only received Rs. 22 Lakhs and has filed a separate suit for recovery of Rs. 6 Lakhs. It is further stated that the defendant completed the construction work in April 2016 and handed over the vacant possession of the same to the plaintiff in April 2016 itself after raising complete construction. It is also stated that in case he was not satisfied with the construction work he could have filed a suit for specific performance, but the suit for recovery is not maintainable.
5. He has denied that the plaintiff had engaged another contractor for completing the work or has incurred the expenses CS-6701/16 Siddharth Sapra Vs. Abhishek Saini Page 4 of 23 stated in the plaint. It is further stated that in para 05 of the plaint, the cost of material is shown to be Rs. 2,99,453/- whereas in para no. 8, the same is shown to be Rs. 12,99,453/-. The said contradiction shows that the suit of the plaintiff is false and without any basis. It is stated that the suit is false and is liable to be dismissed.
6. Replication to the written statement of the defendant was filed wherein the content of the plaint were reiterated and the averments pleaded in the written statement were denied. It was stated that the plaintiff has spent Rs. 20,33,453/- and there is no construction. He has reiterated that amount of Rs. 28 Lakhs was paid in its entirety in the manner mentioned below :-
a) 07.09.2015 initially Rs. 3,00,000/-
b) 07.09.2015 Rs. 5,00,000/-
c) 30.09.2015 Rs. 5,00,000/-
d) 05.10.2015 Rs. 5,00,000/-
e) for payment to MCD Rs. 3,00,000/-
f) for payment to local police Rs. 1,00,000/-
g) 10.10.2015 Rs. 5,00,000/-
7. After completion of pleadings following issues were CS-6701/16 Siddharth Sapra Vs. Abhishek Saini Page 5 of 23 framed on 02.11.2016.
"1. Whether the plaintiff is entitled to recover an amount of Rs. 10,00,000/- or any other amount alongwith interest, pendente- lite and future @ 18% per annum or at any other rate from the defendant on the basis of the grounds taken in the plaint? OPP.
2. Whether the suit for recovery is not maintainable as the 6 months period in terms of clause 7 of the construction agreement dated 07.09.2015 was to expire on 29.08.2016? OPD.
3. Whether the suit for recovery is not maintainable without claiming specific performance against the defendant? OPD.
4. Whether the suit for recovery is filed without any cause of action? OPD. CS-6701/16 Siddharth Sapra Vs. Abhishek Saini Page 6 of 23
5. Whether the present suit for recovery is not maintainable and is liable to be stayed in view of pendancy of a previously instituted Civil Suit No. 287/16 inter se the same parties and with respect to the same subject matter? OPD.
6. Whether the suit for recovery is barred under Order 2 Rule 2 CPC? OPD.
7. Relief."
8. Matter was listed for plaintiff's evidence. Plaintiff examined himself as PW-1, the agent Sh. Mohan as PW-2 and the Contractor Sh. Dheeraj as PW-3. Thereafter, PE was closed.
9. Defendant examined himself as DW-1 and thereafter, DE was closed.
10. Ld counsel for plaintiff has argued that plaintiff has paid Rs. 28,00,000/- in pursuance of collaboration agreement and handed over the possession of the property to the defendant for CS-6701/16 Siddharth Sapra Vs. Abhishek Saini Page 7 of 23 raising construction which was to be concluded within six months but the defendant left the construction in between and plaintiff under compulsion had to engage another contractor namely Dheeraj and he incurred Rs. 4,25,000/- towards labour charges and Rs. 12,99,453/- towards material cost and same is recoverable from the defendant.
11. On the other hand, Ld counsel for defendant has argued that he had completed the construction within the time, though entire amount of Rs. 28,00,000/- was not paid and only Rs. 22,00,000/- was paid by the plaintiff. He has further argued that suit of the plaintiff is false and is liable to be dismissed.
12. I have heard the final arguments and carefully perused the record.
13. I shall decide the issues one by one.
14. Issue No. 1. Whether the plaintiff is entitled to recover an amount of Rs. 10,00,000/- or any other amount alongwith interest, pendente-lite and future @ 18% per CS-6701/16 Siddharth Sapra Vs. Abhishek Saini Page 8 of 23 annum or at any other rate from the defendant on the basis of the grounds taken in the plaint? OPP.
15. The case of the plaintiff is that plaintiff and defendant had entered into collaboration agreement on 07.09.2015 for raising construction of first floor, second floor and third floor including all electricity works, furniture and fixtures by defendant which was to be completed within six months from the date of handing over of the possession. As per plaintiff, property was handed over to the defendant on the very same date and the plaintiff was to pay Rs. 28,00,000/- to the defendant. Plaintiff says that entire amount has been paid and all receiving/acknowledgments are present on the backside of the agreement Ex PW1/1 as well as Ex PW1/7. It is further stated that defendant has also admitted the same in his cross examination that the entire payment has been received. The grievance of the plaintiff is that in December, 2015, defendant left the work in between and despite the repeated requests did CS-6701/16 Siddharth Sapra Vs. Abhishek Saini Page 9 of 23 not come back to take up the work and, therefore, he had to engage another contractor namely Dheeraj to complete the work and he had paid Rs. 4,25,000/- to Dheeraj towards labour charges and Rs. 12,99,453/- towards cost of material. It is also stated that contractor Dheeraj could complete the work in January, 2016 only. The defendant has rebutted the averments of the plaintiff and has stated that he has constructed the property and handed over the possession of the property in April, 2016 to the plaintiff. It is stated by defendant in his written statement that plaintiff was to pay Rs. 28,00,000/- to him, however, only Rs. 22,00,000/- have been paid and Rs. 6,00,000/- is outstanding. Plaintiff has filed eighty six invoices Ex PW1/4 (colly) to show the bills of material and expenses incurred on the material. Perusal of these invoices shows that invoices are for the month of November 2014, July 2015, October 2015, January 2016 and only one invoice of July, 2016. It is stated at the outset that these invoices have not been CS-6701/16 Siddharth Sapra Vs. Abhishek Saini Page 10 of 23 proved in accordance with law and none of the supplier who raised these invoices have been examined. Even otherwise, the careful perusal of these invoices shows that some of the invoices were in the name of the plaintiff and they were of year 2014. These invoices cannot be considered as collaboration agreement is of September, 2015 and any invoice prior to that period cannot be said to be pertaining to this case. As regards, the invoices of October to December, 2015 are concerned, it is the own assertion of the plaintiff that defendant left the work in between in December, 2015. This itself shows that even if plaintiff had incurred this cost on material, work was done by defendant during that period, therefore, invoices of October, 2015, November, 2015 and December, 2015 (since no date of leaving of work in December, 2015 has been given) cannot be considered.
16. There are several invoices of January, 2016, however, they neither bear the name of plaintiff nor of contractor Dhiraj. CS-6701/16 Siddharth Sapra Vs. Abhishek Saini Page 11 of 23 No person has been examined to prove as to who issued these invoices and to whom the material mentioned in the invoices was sold. Invoices placed on record have not been proved and further cannot be believed in view of the reasons given above. Since these invoices are not proved, therefore, plaintiff has not been able to prove that he incurred cost of Rs. 12,99,453/- towards material used by contractor Dhiraj for completing the work.
17. It is pertinent to mention here that plaintiff has no where stated in the entire plaint and has further not proved as to how much work was completed by defendant and how much work was left incomplete by him. This was the basic foundation for determining the loss incurred or expenses incurred by the plaintiff allegedly on the cost of material and labour charges when the work was allegedly done by contractor Dheeraj. There is no letter on record of the contemporary period showing that plaintiff had ever called upon the defendant to complete the CS-6701/16 Siddharth Sapra Vs. Abhishek Saini Page 12 of 23 incomplete work or had ever notified as to what work was specifically left incomplete. This pertinent assertion of plaintiff that defendant left the work in between does not stand proved. Defendant's 'written statement' at the same time also does not exhibit good defence. Ld. counsel for defendant had put suggestions to plaintiff which are inconsistent with the defence of the defendant taken in written statement regarding the date of handing over the possession to defendant, date of completion of construction but since the plaintiff's case is not sound, the defence of defendant becomes insignificants.
18. Plaintiff has examined two other witnesses in his support. PW-2 is Mohan who had introduced the defendant to the plaintiff for raising construction. Though, in his affidavit he has stated that:-
"That the said work of construction was commenced by the defendant but was not completed and then the plaintiff was in search of another person when Shri Dhiraj came CS-6701/16 Siddharth Sapra Vs. Abhishek Saini Page 13 of 23 forward and completed the work left by the defendant. The plaintiff paid a sum of Rs. 4,25,000/ to Shri Dhiraj for the completion of work, which was left incomplete by the defendant even after receiving the full and final payment. The plaintiff was regular and attentive towards payment and the plaintiff paid the amounts regularly but the defendant was lingering on the work and the plaintiff then contracted me and had come to me to say that defendant is avoiding to complete the work. The plaintiff also incorred cost of Rs. 12,99,453/ on the material and Rs. 1,03,500/ towards interest only due to noncompletion of work by the defendant also on other heads."
19. However, during his cross examination he took complete U-Turn and admitted that he do not know exact date when the defendant completed the construction and handed over the possession of the property to the plaintiff. He also stated that he CS-6701/16 Siddharth Sapra Vs. Abhishek Saini Page 14 of 23 do not know nothing about para no. 2 of his affidavit in which he had stated that construction was commenced by defendant but was not completed by him and thereafter work was got completed by one Dhiraj. He also admitted that plaintiff had told him about Rs. 4,25,000/- paid to Dhiraj and incurring of Rs. 12,99,453/- on the material. The testimony of this witness does not inspire confidence and hence cannot be believed and, therefore, his testimony is discarded.
20. Similarly, PW-3 is Dhiraj who is stated to be another contractor engaged by plaintiff for completing the work and he stated in his affidavit that he was working as supervisor with the defendant while making construction in the property of the plaintiff and plaintiff during the said period paid Rs. 4,25,000/- to him as defendant has left the work incomplete and has incurred amount of Rs. 12,99,453/- towards material. During his cross examination, he admitted that he had completed the incomplete construction work out of his own will and without any permission CS-6701/16 Siddharth Sapra Vs. Abhishek Saini Page 15 of 23 from the defendant. It is pertinent to mention here that testimony of PW-3 is inconsistent with the pleadings of the plaintiff. In the plaint, it is stated that plaintiff had engaged another contractor namely Dhiraj to complete the work whereas in the affidavit of PW-3 Dhiraj, it is stated that Dhiraj was working as supervisor with the defendant while raising construction in the property of the plaintiff and during the said construction, plaintiff paid him the amount as alleged. Nowhere in the entire suit, plaintiff has stated that Dhiraj was supervisor of the defendant or he allowed Dhiraj to complete the work. This version cannot be believed and, therefore, testimony of PW-3 is also discarded.
21. It is further strange to note here that though plaintiff has alleged that he is liable to recover Rs. 20,33,453/- from the defendant as mentioned in para no. 8 of the plaint but he is claiming Rs. 10,00,000/- only considering the relationship and workmanship of the defendant. This court fails to understand as CS-6701/16 Siddharth Sapra Vs. Abhishek Saini Page 16 of 23 to why the plaintiff would shed away a huge amount of Rs. 10,00,000/- and will only be claiming of half of the claim if his claim is honest and genuine.
22. Plaintiff has not been able to prove that he is entitled to recover any amount from the defendant and has further not been able to prove that what work was left incomplete by defendant and what incomplete work was done by contractor Dhiraj. Hence, issue no. 1 is decided against plaintiff and in favour of defendant.
23. Issue No. 2. Whether the suit for recovery is not maintainable as the 6 months period in terms of clause 7 of the construction agreement dated 07.09.2015 was to expire on 29.08.2016? OPD.
24. Onus to prove this issue was upon defendant. Defendant has stated in his written statement that collaboration agreement was dated 07.09.2015, however, possession of the property was handed over on 29.02.2016. As per clause 7 of the CS-6701/16 Siddharth Sapra Vs. Abhishek Saini Page 17 of 23 collaboration agreement, six months period was granted to complete the construction and, therefore, as per defendant's version construction was to be completed on or before 29.08.2016. In this regard, it is pertinent to mention here that except for writing the date of handing over the possession on 29.02.2016, defendant has nowhere proved the said date of handing over the possession of the property by the plaintiff to the defendant. Plaintiff has specifically claimed that possession was handed over on the date of collaboration itself on 07.09.2015. It is very strange to note that during the cross examination of PW-1, Ld counsel for defendant gave suggestion to the witness that possession was given in October, 2015 whereas in the written statement, defence of the defendant is that possession was handed over on 29.02.2016. There is not even a single document on record which could show the date of handing over the possession of the property by the plaintiff to the defendant. Therefore, present suit cannot CS-6701/16 Siddharth Sapra Vs. Abhishek Saini Page 18 of 23 be said to be pre-mature. Hence, this issue is decided against the defendant and in favour of plaintiff.
25. Issue No. 3 & 4 are taken up together being inter-related.
26. Issue No. 3. Whether the suit for recovery is not maintainable without claiming specific performance against the defendant? OPD.
And
4. Whether the suit for recovery is filed without any cause of action? OPD.
27. Cause of action has not been defined anywhere. Its definition has been developed over years by numerous judgments of higher courts.
A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, willful default, undue influence or of the same nature. So long as the plaint CS-6701/16 Siddharth Sapra Vs. Abhishek Saini Page 19 of 23 discloses some cause of action which requires determination by the court, mere fact that in the opinion of the Judge the plaintiff may not succeed can not be a ground for rejection of the plaint; Mayar (H.K) Ltd V. Owners & Parties, Vessel M.V. Fortune Express, AIR 2006 SC 1828.
Further in Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust, AIR 2012 SC 3912: (2012) 8 SCC 706: JT 201, it was held, "Cause of action" is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. A cause of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue;
28. The present suit has been filed for recovery of amount paid to the other contractor as it is alleged that the defendant CS-6701/16 Siddharth Sapra Vs. Abhishek Saini Page 20 of 23 left the work in between and plaintiff has to engage another contractor. There are facts in issues as some facts are asserted by one but denied by other. So it cannot be said that suit is without any cause of action. Further, it was plaintiff's wish whether he wished to file the suit for specific performance and wishes to file suit for recovery without waiting for the first contractor to complete the work. The suit for recovery cannot be dismissed for the sole ground that suit for specific performance ought to have been filed by plaintiff. Therefore, both these issues are decided against the defendants and in favour of plaintiff.
29. Issue No. 5 Whether the present suit for recovery is not maintainable and is liable to be stayed in view of pendancy of a previously instituted Civil Suit No. 287/16 inter se the same parties and with respect to the same subject matter? OPD.
30. The suit bearing no. 287/16 is no doubt between the same CS-6701/16 Siddharth Sapra Vs. Abhishek Saini Page 21 of 23 parties and with respect to same cause of action, however, the same was filed in April, 2016 whereas in the present suit has been filed in March, 2016. Therefore, present suit cannot be stayed. Even otherwise, during the course of final arguments, this issue was never pressed. Hence, this issue is decided against defendant and in favour of plaintiff.
31. Issue No. 6 Whether the suit for recovery is barred under Order 2 Rule 2 CPC? OPD.
32. Onus to prove this issue was upon defendant. However, defendant has not led any evidence nor has addressed any final arguments on the said issue. Hence, this issue is not pressed. Even otherwise, it is beyond comprehension as to how present suit is barred under Order II Rule 2 CPC as plaintiff has only filed the present suit and there is no other suit filed by plaintiff in which he could have claimed all the reliefs prayed for in the present suit arising out of the same cause of action against the same parties. Hence, this issue is decided against CS-6701/16 Siddharth Sapra Vs. Abhishek Saini Page 22 of 23 the defendant and in favour of plaintiff.
Relief.
33. In view of the findings given on issue no. 1, suit of the plaintiff is dismissed. No order as to cost.
34. Decree sheet be prepared accordingly.
35. File be consigned to Record Room after due compliance.
Digitally signed by VANDANA VANDANA JAIN JAIN Date: 2019.12.24 15:15:37 +0530 Announced in the open ( VANDANA JAIN) court on 18.12.2019 Additional District Judge-07/SE Saket Courts, New Delhi. CS-6701/16 Siddharth Sapra Vs. Abhishek Saini Page 23 of 23