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[Cites 12, Cited by 0]

Delhi District Court

Smt. Kunta Devi vs Shri Ravi Gupta on 8 February, 2023

       IN THE COURT OF SHRI SANJAY SHARMA­I :
         DISTRICT JUDGE (COMMERCIAL COURT)
                    EAST DISTRICT
            KARKARDOOMA COURTS : DELHI
CS (Comm) No. 160/2022
Smt. Kunta Devi
W/o late Shri Nirman Kumar
R/o J­3/53, J­Extension
Laxmi Nagar,
Delhi - 110092                                ................Plaintiff
                  Versus
Shri Ravi Gupta
S/o Shri KR Gupta
R/o D­312, Nirman Vihar,
Delhi - 110092                               ................Defendant
         Date of institution        : 25.5.2022
         Date of reserving judgment : 10.1.2023
         Date of judgment           : 08.2.2023
JUDGMENT:

The plaintiff has filed the present suit against the defendant seeking damages/compensation of an amount of Rs.35 lacs on account of non­compliance of Collaboration Agreement dated 23.9.2018 by the defendant and also, seeking recovery of an amount of Rs.14,40,000/­ towards loss of rental income. 1.1 In brief, the facts as averred in the plaint are that the plaintiff is an absolute and exclusive owner of the property bearing No.J­3/53, J­Extension, Laxmi Nagar, Delhi - 110092 (hereinafter referred to as the suit property), measuring 55 sq. yards (out of the total 100 sq. yards). The defendant is a Builder who contacted the plaintiff through a property dealer namely Shri Suraj Arora and offered her to construct the suit property on CS (Comm) No. 160/2022 Smt. Kunta Devi Vs. Ravi Gupta 1 of 20 collaboration basis.

1.2 It has been averred that the defendant misrepresented the facts and misguided the plaintiff and on his false, illusive, ambiguous statement, the plaintiff fell into a trap. Accordingly, an Agreement dated 23.9.2018 was executed between the plaintiff and the defendant, which is alleged to be not fairly drafted by the defendant with ulterior motives. The plaintiff handed over the peaceful temporary possession of the suit property to the plaintiff on 10.10.2018 for dismantling the old structure of the suit property and to construct a new building in its place, with certain terms and conditions regarding structure of the suit property, quality of material to be used, size and width of the columns/beams, size of parking and four floors to be built over it and also the time period of 12 months for the entire construction of the building.

1.3 It has been averred that the defendant deliberately used sub­standard and lower quality material in the building. Further, the time schedule of construction was also not followed by the defendant thereby causing heavy financial losses to the plaintiff besides causing her social, physical and mental harassment. It has further been averred that plaintiff was forced to live in a rented accommodation and if the defendant would have completed the construction in time as per the Agreement, the plaintiff would have been living in her house and also getting monthly rental income of about Rs.48,000/­, i.e. Rs.12,000/­ per floor.

1.4               It has been averred that on 07.8.2019, the defendant


CS (Comm) No. 160/2022
Smt. Kunta Devi Vs. Ravi Gupta                                     2 of 20

himself intentionally got the incomplete basic structure damaged, i.e. one RCC Panel was demolished and reinforcement cut at 2 nd floor's flooring and 1st floor's ceiling/roof area , in collusion with MCD officials without any notice.

1.5 The plaintiff issued legal notice dated 25.2.2022 which was never replied by the defendant despite service. On 31.3.2022, the plaintiff filed a complaint before the SHO, Laxmi Nagar but no action was taken by the police against the defendant. Instead, the defendant filed a false and fabricated suit against the plaintiff which is pending trial. Hence the present suit.

2. Defendant was duly served with the summons of the suit and filed written statement through his Counsel. In the written statement, a preliminary objection regarding limitation in filing of the present suit by the plaintiff has been taken as the Collaboration Agreement, which is the basis of the present suit, was executed on 23.9.2018 and the plaintiff failed to file the present suit within the stipulated period of three years. 2.1 It has also been claimed that as per Section 16(c) of the Specific Relief Act, 1963, the plaintiff is barred from claiming any relief as she has failed to prove that she had performed or had always been ready and willing to perform the essential terms of the contract which were to be performed by her, other than the terms of the performance which had been prevented or waived by the defendant.

2.2 Further, it was submitted that the defendant had tried to speak to the plaintiff for a number of times in order to execute CS (Comm) No. 160/2022 Smt. Kunta Devi Vs. Ravi Gupta 3 of 20 his part of contract but the plaintiff refused to entertain him. Thus, aggrieved by her attitude, the defendant issued her a legal notice dated 26.6.2019 to which she paid no heed and the defendant filed a suit before the Court of Ld. Civil Judge titled as Ravi Gupta Vs. Kunta Devi, bearing Civil Suit No.682/2019 which is pending trial. It is submitted that the plaintiff should have filed a counter­claim instead of the present suit and thus, the present suit filed by the plaintiff is barred by the doctrine of res­ subjudice, envisioned under Section 10 CPC. Further, an objection has been raised that the suit filed by the plaintiff is not covered under Section 2(1)(c) of the Commercial Courts Act as the dispute arising of the present suit is not of a commercial nature and thus, is not maintainable.

2.3 On merits, the ownership of the suit property is not disputed but it has been stated that the plaintiff did not provide clear site plan of the property and had given photocopy of the same and she herself approached the defendant to reconstruct her property after dismantling the old structure. It has further been stated that the plaintiff was well aware of the terms of the Collaboration Agreement and when almost 80% of the construction work was complete, she had herself started restraining the defendant as well as the labour from entering the building by locking the entrance door. It is alleged that the plaintiff restrained the defendant from completing the work and also from claiming his agreed share in the building as per agreement. It is further stated that the plaintiff had been constantly bothering the defendant by putting new demands for CS (Comm) No. 160/2022 Smt. Kunta Devi Vs. Ravi Gupta 4 of 20 increasing the height of the building from 15 meters to 18 meters which is contrary to the Master Plan of Delhi and also against the bye­laws of the MCD. It is further stated that no violation was committed by the defendant at any time and he had incurred expenditure to the tune of Rs.18 lacs. It was also submitted that the defendant had constructed the building upto the second floor but when the construction of third floor was about to finish, the plaintiff started delaying the execution of the said agreement by putting new demands, as aforesaid. It is further stated that the plaintiff has falsely calculated the rental income without any proof. Further, the plaintiff refused to receive the legal notice dated 26.6.2019 sent by the defendant. The defendant further denied the averments made by the plaintiff in her plaint.

3. The plaintiff also filed replication to the written statement of the defendants, reiterating the contents of the plaint and denying the counter allegations.

4. From the pleadings of the parties, following issues were framed on 13.10.2022 :

1) Whether the plaintiff is entitled for a decree against the defendant in the sum of Rs.35 lacs as compensation ? OPP

2) Whether the plaintiff is entitled for a decree against the defendant in the sum of Rs.14,40,000/­ being the losses of the monthly rental income caused to her? OPP

3) Whether the construction could not be completed because of the acts of the plaintiff CS (Comm) No. 160/2022 Smt. Kunta Devi Vs. Ravi Gupta 5 of 20 for which defendant is not liable? OPD

4) Relief.

5. At the trial, the plaintiff examined herself as PW1. She deposed the facts as stated in the plaint, by way of affidavit Ex.PW1/A and also proved the site plan of the suit property as Ex.PW1/1, Collaboration Agreement dated 23.9.2018 as Ex.PW1/2, legal notice as Ex.PW1/3 and its postal receipt and tracking report as Ex.PW1/4.

5.1 The plaintiff also examined her son Shri Rakesh Kumar as Ex.PW2 who deposed by way of affidavit Ex.PW2/1. He proved the photographs of the suit property and a certificate under Section 65­B of the Indian Evidence Act in support thereof, as Ex.PW2/A and Ex.PW2/B respectively. 5.2 The plaintiff further examined Shri Jitendra Kumar Prajapati - Draftsman as PW3 who tendered his evidence by way of affidavit Ex.PW3/1 and proved the inspection report of the suit property as Ex.PW3/A which was prepared by him. 5.3 The plaintiff also examined one of her neighbour Shri Raj Kumar as PW4 who proved the rate of rent of the demised premises and closed the evidence.

6. The defendant only examined himself as DW1 and led his evidence by way of affidavit Ex.DW1/1. He relied upon the following documents :

Copy of Aadhar Card as Ex.DW1/A (OSR) Certified copy of Index alongwith photocopy of Civil Suit bearing No. CS/682/2019 titled as Ravi Gupta Vs. Kunta Devi filed before the Ld. Civil Judge, Shahdara District, Karkardooma Courts and order sheet dated 14.8.2019, as Ex.DW1/B. (Admitted documents by Ld. Counsel for the plaintiff).
CS (Comm) No. 160/2022
Smt. Kunta Devi Vs. Ravi Gupta 6 of 20 Certified copy of the WS filed by the plaintiff herein in the said suit as Ex.DW1/C. Certified copy of the evidence filed by way of affidavit by Smt. Kunta Devi (DW1 in the said suit and plaintiff in the present suit) as Ex.DW1/D. Certified copy of the affidavit in evidence of the son of Smt. Kunta Devi, namely Shri Rakesh Kumar as Ex.DW1/E. Certified copy of his cross­ examination as Ex.DW1/F. Certified copy of the affidavit in evidence of the daughter of Smt. Kunta Devi, namely Ms. Poonam as Ex.DW1/G.

7. I have heard Shri PK Ray - Ld. Counsel for the plaintiff, Shri Pawan Reley - Ld. Counsel for the defendant and have also gone through the written submissions filed by both the Ld. Counsels as well as records of the case.

8. The defendant raised a preliminary objection in the written statement that the present suit is barred by limitation and that it is not covered under the Commercial Court Act. Though no issues were framed on these objections, however, since these are legal issues, therefore, are required to be answered. 8.1 It was submitted by the defendant that the subject agreement was executed on 23.9.2018 and the limitation period for filing the suit ended on 23.9.2021, whereas the present suit was filed on 25.5.2022 and was therefore, barred by limitation. The present suit of the plaintiff is for seeking damages upon breach of contract. The limitation to file such a suit is three years. As per the Agreement, the defendant was supposed to complete the construction within 12 months of the execution of the contract which ended on 22.9.2019. Therefore, the cause of action would have arisen if the construction was not completed within 12 months of the execution of the contract. It means that CS (Comm) No. 160/2022 Smt. Kunta Devi Vs. Ravi Gupta 7 of 20 the limitation would have commenced from 22.9.2019 and would have ended on 22.9.2022. The suit having been filed on 25.5.2022 was therefore, within limitation. 8.2 It was further submitted that the Agreement was in respect of a purely residential unit and therefore, was not covered under the Commercial Courts Act. However, the meaning of commercial dispute as appearing in Section 2(c)(vi) of the Commercial Courts Act includes construction and infrastructure contracts, including tenders. It does not qualify such contracts either for commercial or residential purpose and therefore, any contract for either purpose would be covered under the meaning of a commercial dispute and hence the present suit pertains to a commercial dispute.

8.3 Ld. Counsel for the defendant also took an objection that the present suit is hit by Section 10 CPC as an earlier suit is already sub­judiced before a competent Court. However, the said suit is only for permanent and mandatory injunction and the cause of action in the suit is totally different from the one in the present suit and therefore, it is not barred under Section 10 CPC.

My issue­wise findings are as under:

ISSUE No.1 :

9. In the instant case, the plaintiff in the plaint as well as in her affidavit in evidence repeatedly pleaded and deposed that she is in her advance age and is uneducated and therefore, could not understood the ill intentions of the defendant and fell into his trap. She stated that the Agreement in question was not a fair agreement, tilted heavily in his favour, not fairly drafted CS (Comm) No. 160/2022 Smt. Kunta Devi Vs. Ravi Gupta 8 of 20 prompted by greed and malafide intentions. However, in her cross­examination she only deposed that the Agreement Ex.PW1/2 was executed in undue hurry and pressure as was got executed by the defendant during the period of 'shradh' whereas she wanted it to be executed during 'Navratras'. She was confronted with para 4 of her affidavit in evidence wherein she has deposed that the Agreement was executed after some consultation. Thus, sher herself contradicted her deposition. She clarified further in her cross­examination that the pressure was to proceed in hurry to sign the Agreement and apart from that there was no pressure upon her. Similarly PW2, her son, in his cross­ examination deposed that the Agreement Ex.PW1/2 was never executed by the plaintiff under any compulsion or force but was signed by her in a haste.

9.1 The plaintiff had absolutely no pressure or force or compulsion to sign the agreement. She could have refused to sign but she chose not to. There is nothing on record to suggest as to what pressure was induced by the defendant even to obtain the signatures of PW1 in haste. Thus, this plea of the plaintiff cannot be accepted and it cannot be said that the defendant used any undue influence or got the Agreement signed with any ulterior motives or intentions. Even otherwise, when a person signs a document, it is presumed that he or she signed it with her free consent and will unless contrary is proved which is not there in the present case.

9.2 The plaintiff further pleaded that because of the acts of the defendant, she was forced to reside in a rented CS (Comm) No. 160/2022 Smt. Kunta Devi Vs. Ravi Gupta 9 of 20 accommodation. Again in her cross­examination, PW1­plaintiff deposed that she never shifted to any rented accommodation. Similarly, his son - PW2 also admitted in the cross­examination that he or PW1 never resided in any rented accommodation. Thus, the plaintiff has pleaded wrong facts in the suit and made false depositions.

9.3 The main case of the plaintiff is that the defendant flouted the basic conditions of the Agreement in not following the slab to slab height of the floors to be constructed, used inferior material than what was agreed upon in the Agreement, did not follow the schedule of construction, caused violations of the Agreement, caused financial losses to her and also intentionally, in collusion with the MCD, got damaged the incomplete structure of the building. It is the case of the defendant that it was the plaintiff herself with her son - PW2 who interfered in the construction and stopped it in between with intention to grab the two floors which were to be delivered to the defendant after the construction was complete as per the Collaboration Agreement.

9.4 The plaintiff/PW1 and PW2, both denied the suggestions that they stopped the construction as the height of each of the floor was not 10 feet. The main dispute between the parties is also in respect of the height of the floors. According to the plaintiff, the height of each floor from slab to slab should have been 10 feet as per the Agreement, whereas the defendant claims that the total height of the building could not have exceeded 15 meters as per the Agreement and also as per the bye­ CS (Comm) No. 160/2022 Smt. Kunta Devi Vs. Ravi Gupta 10 of 20 laws of MCD and Master Plan of Delhi. The Agreement is already on record Ex.PW1/2.

9.5 According to Annexure 'A' of the said Agreement, in the General Specification Clause, it is provided as under :

'The construction will consists of parking floor. The floor will have 10 feet clear height from slab to slab. Building height is expected to be increased from 15 meters.' 9.6 At the end of Annexure 'A', it is provided that 'Any changes during the work or any extra work borne by owner will be chargeable.' 9.7 A plain reading of the above condition/s may infer that the building would be having a parking floor and that floor would have a height of 10 feet from slab to slab. It was pointed out by Ld. Counsel for the defendant that the word mentioned there is 'floor' and not 'floors' which shows that the Agreement was only for the parking floor to have 10 feet height. However, as per the plaint, the parking floor was constructed with a floor height of 8 feet and only upper ground floor was constructed with a height of 10 feet. Thereafter, the height decreased at each floor to 9.3 feet and then to 8.3 feet. The defendant has neither in the written statement nor in his affidavit stated as to what should have been or what was the slab to slab height of each floor which he had constructed.
9.8 The Agreement Ex.PW1/2 is silent regarding the height of each floor. In case, the argument of Ld. Counsel for the defendant is accepted that only the parking floor would have a height of 10 feet, then it was incumbent that the height of each floor should have been mentioned in the Agreement but it is CS (Comm) No. 160/2022 Smt. Kunta Devi Vs. Ravi Gupta 11 of 20 silent on this aspect. As per norms, height of the stilt/parking floor is never 10 feet and of the living floors can never be of less than 10 feet or at the most about nine feet. In the absence of the Agreement mentioning the height of each floor, the stipulation as aforesaid, has to be read as height of 'floors' instead of 'floor' meaning thereby that each floor should have had a height of 10 feet which may have increased the height of the building to be more than 15 meters. The Agreement pre­saw this eventuality and therefore, it is also provided that the height of the building is expected to be increased from 15 meters. 9.9 Ld. Counsel for the defendant pointed out that as per the Agreement, the plaintiff was supposed to bear extra charges for the extra work but neither it is stated in the written statement that the defendant demanded extra charges nor as to what would have been the extra charges if the building height exceeded 15 meters. In the cross­examination of DW1, a letter of the Delhi Electricity Regulatory Commission dated 31.5.2019 was put to the witness who showed ignorance about it and is Ex.DW1/PB.

According to it, the maximum height of the building shall be 15 meters without stilt parking and 17.5 meters with stilt parking. This is according to the Master Plan of Delhi 2021, as mentioned in the said letter. Hence, the height of the building could have been raised beyond 15 meter and upto 17.5 meters without violation of any bye­laws. Thus, it is wrong to say on part of the defendant that it would have violated the Master Plan 2021 of Delhi. There is nothing in the cross­examination of PW1 or PW2 that the cost of the construction would have increased in case the CS (Comm) No. 160/2022 Smt. Kunta Devi Vs. Ravi Gupta 12 of 20 height of each floor was kept upto 10 feet level or the height of the building was increased beyond 15 meters or if the defendant ever demanded such extra charges. The defendant in the written statement has not refuted the claim of the plaintiff in para 8 of the plaint where the height of each floor has been mentioned in a tabular form nor there was any cross­examination of PW1 and PW2 regarding the existing height of the floors which is stated to be 08 feet for the parking floor, 10 feet for the upper ground floor, 9.3 feet for the first floor, 8.3 feet each for the second and third floor. It is, thus, clear that the defendant violated the terms of the Agreement in constructing the building and maintaining the desired height of each floor as per the said Agreement. 9.10 The plaintiff has also alleged that the defendant has not constructed the building with the desired quality of building material while raising the construction as mentioned in tabular form in para 8 of the plaint. According to her, the column size/width of the beams was reduced and the quality of iron bar, cement and gravel was also not as per the agreed terms. There was no specific denial to this contention in the written statement nor it was mentioned as to what quality of material and what specification of construction was actually used by the defendant. Even in the cross­examination of PW1 and PW2, nothing in this respect was put to the witness, meaning thereby that the defendant admitted these violations.

9.11 The only defence raised by the defendant is that the plaintiff harassed and resisted in the construction when the construction was already completed upto second floor and did not CS (Comm) No. 160/2022 Smt. Kunta Devi Vs. Ravi Gupta 13 of 20 permit the defendant to complete the work for which he not only issued a legal notice in June 2019 but also filed a civil suit seeking injunction against the plaintiff which is still pending trial and wherein an order for maintaining status quo was passed. 9.12 The Ld. Counsel for the defendant submitted that PW2 in his cross­examination admitted that the plaintiff did not sent any legal notice, chat or e­mail stating delay in the construction or deficiency in any construction till the filing of the present suit but that will not validate the wrong acts of the defendant in not complying with the terms of the Agreement. In case, the plaintiff objected or stopped the construction, she had a valid reason since the construction was not being done as per the specifications and in terms of the Agreement. Further, when the Court passed an order for maintaining status quo, no construction could have been raised thereafter.

9.13 The other objection of the plaintiff is that the construction was not completed within the stipulated period of 12 months. It is the case of the defendant that since the plaintiff blocked the entry of the defendant and his workers, the construction could not be completed. When the construction was not going as per the specification upto the third floor, the plaintiff had all the apprehensions and thus, had the right to stop the construction and asking the defendant to correct the errors. 9.14 Ld. Counsel for the defendant submitted that he had made certain suggestions to PW1 and PW2 regarding the harassment being caused to the defendant. It is clarified that suggestions do not form evidence and they are no proof of any CS (Comm) No. 160/2022 Smt. Kunta Devi Vs. Ravi Gupta 14 of 20 fact. They are simply the defence raised by the opposite party which are required to be proved during the evidence of the said party and unless proved, have no value in the eyes of law. 9.15 The plaintiff relied upon the testimony of PW3 to prove that the construction was not as per the specification and was against the terms of the agreement. This testimony was assailed by Ld. Counsel for the defendant on the ground that the same cannot be read as this affidavit is barred under Rule 1B of Order XVIII of the Commercial Courts Act and further the inspection report filed by the said witness Ex.PW3/1 was filed after the filing of the suit and therefore, cannot be considered in terms of Order 11 Rule 4 & 5 of the Commercial Courts Act. 9.16 I do not agree with these contentions. Order 18 Rule 1B of the Commercial Courts Act provides that a party shall not lead additional evidence unless sufficient cause is made out in an application for that purpose and the Court allows it. Infact, the name of PW3 was already mentioned in the list of witnesses filed by the plaintiff at the time of case management hearing and his affidavit was also filed. So there is no question of filing of any additional affidavit. Rule 1B of the Act follows Rule 1A of Order XVIII which provides filing of affidavit of evidence of all witnesses whose evidence is supposed to be led by a party simultaneously. That was complied with by the plaintiff and therefore, the affidavit of PW3 cannot be discarded. Similarly, the suit was filed on 25.5.2022 and the inspection report relied upon by PW3 is dated 04.11.2022 i.e. subsequent to the filing of the suit and therefore, could not have been filed with the suit.

CS (Comm) No. 160/2022

Smt. Kunta Devi Vs. Ravi Gupta 15 of 20 Further, the witness/PW3 had brought the report with him. Hence, it is not a bar to take the said report on record and provisions of Order 11 Rule 3 & 4 CPC would not apply. 9.17 However, the testimony of PW3 in proving the said report is not reliable. PW3 deposed that he is a Draftsman working under the Architect Ms. Bindu Lenka but in the cross­ examination he could not file any document to show that he was working with the said Architect. He further admitted that the inspection report Ex.PW3/A had been prepared at the instance of the plaintiff only, without consulting the defendant. He also admitted that the said report did not bear his signatures but was signed only by Ms. Bindu Lenka. On one hand, the report was not signed by the witness and on the other hand, the person signing it never prepared it or even visited the site and therefore, no authenticity can be attached to the said inspection report and as such it cannot be admitted in evidence. However, despite that the violations committed by the defendant, as noted above, remained undisputed.

9.18 It has also been alleged by the plaintiff that the defendant in collusion with the MCD officials demolished the partly constructed building but again there is no evidence to that effect except mere vague assertion by the plaintiff and PW2 and therefore, this allegation cannot be accepted. 9.19 In view of the above findings, it is held that the defendant had violated the terms of the Agreement Ex,PW1/2 and thus, breached the contract. However, in the Agreement it is not provided that in case of any breach, any specified damages CS (Comm) No. 160/2022 Smt. Kunta Devi Vs. Ravi Gupta 16 of 20 are to be granted by the defaulting party nor such damages are quantified.

9.20 Section 73 of the Indian Contract Act provides as under:­ "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 or indirect loss or damage sustained by reason of the breach.

Explanation: ­ In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non­ performance of the contract must be taken into account."

9.21 In ONGC Ltd. vs Saw Pipes Ltd. (2003) 5 SCC 705, the Hon'ble court while deliberating upon the compensation to be granted under Section 73 and 74 of the Contract Act, relied upon the judgment of Maula Bux Vs. Union of India (1969) 2 SCC 554, wherein it was specifically held that :

"It is true that in every case of breach of contract the person aggrieved by the breach is not required to prove actual loss or damage suffered by him before he can claim a decree and the Court is competent to award reasonable compensation in a case of breach even if no actual damage is proved to have been suffered in consequence of breach of contract."

9.22 In the instant case, the plaintiff has alleged a loss of CS (Comm) No. 160/2022 Smt. Kunta Devi Vs. Ravi Gupta 17 of 20 Rs.35 lacs and has sought damages to that effect. However, there is nothing on record vide which this loss can be assessed or can be said to be the actual loss. On the other hand, the defendant has pleaded that he had already invested and lost a sum of Rs.18­20 lacs in raising the construction. The building has already been constructed upto third floor and therefore, the plea of the defendant of having spent that amount can be well presumed. Further, the plaintiff has not refuted this claim in the cross­ examination of DW1. In view thereof, it is held that loss has been caused to the plaintiff because of the acts of the defendant for breach of contract, for which she is entitled to compensation/damages. Hence, considering the amount spent by the defendant, the plaintiff is granted compensation of Rs.10 lacs. This issue is decided accordingly in favour of the plaintiff. ISSUE No.2 :

10. The plaintiff has claimed that she has also suffered loss of the expected rent of the three floors which she could have received per month and has assessed the same at Rs.14,40,000/­. This she has assessed at an average of Rs.12,000/­ per month for four floors, i.e. Rs.48,000/­ per month multiplied by 30 months. There is nothing on record to suggest that the floors could have been given on rent just after the completion of construction and would have fetched that amount of rent. The plaintiff relied upon the testimony of PW4 in this respect, who was a neighbour of the plaintiff, who deposed that all the four floors would have fetched a monthly rent of Rs.48,000/­ @ Rs.12,000/­ p.m. In the cross­ examination, he deposed that he was not an expert dealing with CS (Comm) No. 160/2022 Smt. Kunta Devi Vs. Ravi Gupta 18 of 20 the rent or property matters. He also admitted that rent of each and every property is decided on the basis of its area and quality. Lastly, he admitted that he had been brought to the Court by the plaintiff. Thus, he was an interested witness being a neighbour of the plaintiff and his opinion was not formed on any concrete or independent basis but he repeated only the claim asserted by the plaintiff. Hence, his testimony cannot be accepted. There is no other evidence on record to accept this plea of the plaintiff and hence, it cannot be said that the plaintiff lost any amount from the expected rental income of the property.

10.1 Ld. Counsel for the defendant submitted that two floors were to be given to the defendant after the completion of construction and therefore, there was no question of the plaintiff having let all the four floors on rent. However, as per the Agreement Ex.PW1/2, upper ground floor, first floor, second floor and third floor with roof rights were to be delivered to the plaintiff making out four floors. Thus, this argument is not sustainable. In any case, since the plaintiff has failed to prove the expected rental income or to examine any prospective tenant, it is held that she could not prove this issue and accordingly this issue is decided against the plaintiff.

ISSUE No.3 :

11. In view of the findings in Issue No. 1 above, it is clear that the Agreement Ex.PW1/2 was not fairly worded, ambiguous and suffered from some technical lacunae. The benefit of the same would go to the plaintiff. It has already been held that the defendant has failed to prove that it was the plaintiff CS (Comm) No. 160/2022 Smt. Kunta Devi Vs. Ravi Gupta 19 of 20 who interfered and therefore, the construction could not be completed within the specified time. It has also been held that interference, if any, on part of the plaintiff was justified as the construction was not being made as per the terms of the Agreement. Hence, it cannot be said that the construction could not be completed because of the acts of the plaintiff. The mere fact that the defendant issued notice or filed a suit for mandatory injunction would not in itself be sufficient to hold the contrary. The said suit is still sub­judiced and no findings have been made therein. Hence, this issue is decided against the defendant. ISSUE No.4/Relief :

12. In light of the above discussion and findings on the above issues, the suit of the plaintiff is hereby partly decreed in her favour with directions to the defendant to pay damages in the sum of Rs.10 lacs. Since no interest has been claimed in the suit, no orders for interest are being passed. Costs of the suit are also awarded to the plaintiff.

Decree Sheet be prepared accordingly. File be consigned to Record Room.

ANNOUNCED IN OPEN COURT ON 8th day of February 2023 (SANJAY SHARMA­I) District Judge (Commercial Court) East District Karkardooma Courts, Delhi CS (Comm) No. 160/2022 Smt. Kunta Devi Vs. Ravi Gupta 20 of 20