Delhi District Court
Ms Branmage vs Design House Indiap Ltd on 29 August, 2023
IN THE COURT OF ADDITIONAL DISTRICT JUDGE-03
EAST, KARKARDOOMA COURTS: DELHI.
Presided by :SH. RAJESH KUMAR
CS No. 446/2020
M/S BRANMAGE
THROUGH ITS DIRECTOR
MR. AMARLEEN SINGH,
HAVING ITS REGISTERED OFFICE
AT C-52/A-2, LANE-2,
KEHAR SINGH ESTATE,
WESTERN MARG,
BEHIND SAKET METRO STATION,
NEW DELHI-110017 ..............Plaintiff
Versus
M/S DESIGN HOUSE,
THROUGH ITS DIRECTOR,
MR. VIJAY SHARMA, 40,
GROUND FLOOR,
EAST ANGAD NAGAR,
DELHI-110092 .............Defendant
Date of Institution : 18.05.2015
Date of Reserving Order : 08.08.2023
Date of judgment : 29.08.2023
M/s Branmage Vs. M/s Design House India Pvt. Ltd. C.S No.446/2020 Page 1/24
JUDGMENT
SUIT FOR DAMAGES
1. Plaintiff has filed the present suit for damages against the defendant. It is averred in the plaint that plaintiff is a sole proprietorship firm under the name and style of M/s Branmage having its registered office at C-52-A-2, Lane-2, Kehar Singh Easte, Western Marg, behind Saket Metro Station, New Delhi-110017. The plaintiff is engaged in the business of interior and exterior designing for individuals, corporate, firms and others as per the contract on assignment basis. Defendant is also in the similar kind of business and provides services related to interior, exterior designing and also deals with decoration. On 22.05.2014, the plaintiff was awarded with a project for the interior designing of the showroom of and by Tommy Hilfiger, renowned fashion label company in India for its branch at Lucknow. After discussion and consultations with the defendant, the plaintiff engaged and outsourced the project for the interior and exterior designing, fabrication and installation of all the interior and exterior materials/ elements in the showroom which was at the Fun Mall at Lucknow, of his client namely Tommy Hilfiger.
2. The defendant was asked to provide the samples which had to be approved by the Chief Executive Officer, Tommy Hilfiger. The defendant thereafter provided the samples and the same were M/s Branmage Vs. M/s Design House India Pvt. Ltd. C.S No.446/2020 Page 2/24 approved by the CEO, Tommy Hilfiger and the plaintiff. The defendant charged the plaintiff a sum of Rs. 20,000/- for the same and the same was paid by the plaintiff by cash. On 23.05.2014, the plaintiff and the defendant discussed the details and bits and pieces of the project and it was settled that the above-mentioned project/ work at Lucknow would be done within an amount of Rs.24,00,000/- which the defendant had agreed and accepted verbally which was crystallized through the exchange of emails between the parties. The defendant agreed to provide an estimate and cost details to the plaintiff in a day or two at the latest and thereafter defendant was to proceed with the project/ work of the plaintiff for his client Tommy Hilfiger.
3. On 23.05.2014, the plaintiff handed over the project for the interior and exterior designing, fabrication and installation of all the interior and exterior materials/ elements at the site of Tommy Hilfiger. During the discussion with the defendant, it was clearly mentioned and stated that the above said project was to be executed in 45 days from the day of outsource i.e. 06.07.2014. The project was time bound and was to be completed within time i.e. 45 days from the date of outsource. The completion of the project shall be subject to the satisfaction of the client. In case there is any deficiency or discrepancies either in materials or in the constructions of the project or if any deviation from the agreed terms, that shall be immediately removed without further cost to the client or to the plaintiff. The defendant had agreed to the terms and conditions for execution of the work at Lucknow for the plaintiff's client. The defendant started the work at the site at Lucknow and off the site at factory for the M/s Branmage Vs. M/s Design House India Pvt. Ltd. C.S No.446/2020 Page 3/24 plaintiff's client (Tommy Hilfiger).The defendant had failed to provide the estimate or the cost of the project even after several reminders telephonically and personally to the plaintiff and his associates/ supervisor rather the defendant kept on asking the plaintiff for the advance payment for the said project. The plaintiff was forced to issue an advance payment of Rs.10,00,000/- drawn on Indian Bank bearing cheque No. 691648 dated 03.06.2014. Defendant even after taking the advance amount, failed to provide estimate or cost of project at Lucknow. Defendant claimed and informed the plaintiff and his client that he had started the work both on site i.e. at Lucknow and off site i.e. at his factory which was located in Shaibabad. The plaintiff and his client wanted to see the progress of the work but defendant avoided the client's visit on some pretext or the other. Upon visit of plaintiff and his client, it was found that no work had been started at the site.
4. It is further averred in the plaint that on 08.06.2014, representative of Tommy Hilfiger addressed all the concerns raised by the defendant in executing the work which was with regards to specifications, drawing and other related issues. After clearing all the concerns and doubts of defendant with regard to structural, fabrication, drawings, all other necessary information was provided to the defendant but defendant did not intimate the plaintiff or representative of Tommy Hilfiger that defendant did not have man power to complete the project. On 23 rd and 24 June, 2014, the representative of Tommy Hilfiger visited the site to review the progress of work but nothing was ready. The work completed by the defendant was only frame work and the same were in worrisome and M/s Branmage Vs. M/s Design House India Pvt. Ltd. C.S No.446/2020 Page 4/24 pathetic conditions. The problems started when the plaintiff started asking the defendant that when the first lot of furniture would be leaving for Lucknow as the defendant was lingering on every time with new dates. The plaintiff's client was very hyper for providing new dates every time and not sticking to the committed dates which were obviously conveyed by the defendant to the plaintiff and same were passed on to the Tommy Hilfiger. The defendant informed that the materials had left for site (Lucknow) but due to break down of truck and the material is getting transferred to another truck. Again, next day the plaintiff was informed on enquiry that truck broke down. The plaintiff requested the defendant to provide a copy of the challan, driver's name and number to which the defendant being at fault got irritated felt offended and started asking the plaintiff for advance payment in return, apart from the amount paid. The plaintiff informed the defendant that he had failed to provide the estimate and cost of the project till date. Defendant got irritated and sent an estimate which was never discussed or even quoted the client that is Rs. 38,43,468/-.
5. The plaintiff had to face hardship and difficulty in dealing with the defendant as the defendant was unable to provide satisfactory services. The defendant was only insisting the remaining payment in advance. Above cost/ estimate of Rs. 38,43,468/- was objected by the plaintiff and the plaintiff asked the defendant to justify the cost but the defendant had not been able to justify the same and failed to create the project as per the satisfaction of the client of the plaintiff.
6. On 02.07.2017 due to paucity of time and blackmailing nature of the defendant, the plaintiff had no option but to proceed M/s Branmage Vs. M/s Design House India Pvt. Ltd. C.S No.446/2020 Page 5/24 ahead with the defendant and it was agreed that project was to be completed for an amount of Rs. 33,41,028/- which was accepted by the defendant. This aforesaid estimate of the defendant included cost of painting; however, paint work was done by one professional who was already engaged by the plaintiff and that painter executed work. The defendant agreed to hand over the site to the client of the plaintiff by 17.07.2014 but the defendant failed to deliver the same and wanted to further extend the delivery till 25.07.2014 but still the same could not be done. On 28.07.2014, CEO of Tommy Hilfiger visited the site and he came to know that no work was going on and defendant did not have man power or skilled labour to complete the project and the two labourer who were at the site had no idea as to what work was to be carried out and they did not possess experience and qualification. There the plaintiff had to hire one Mr. Muzammil Khan a painter and skilled labourer. Some loose furniture arrived at the site but officer of the Tommy Hilfiger rejected the same looking at the quality of products and material. The defendant again demanded money for the project and the plaintiff having no option provided the defendant Rs. 5 lakhs through cheques dated 28.07.2014. On 02.08.2014, the defendant informed that work could not be completed due to Ramjan Celebrations whereas painter and his team were working during the same period. The defendant also wrongly informed that Mall Authorities had stopped the work for 2-3 days. The defendant had time and again misinformed the plaintiff that work is in progress and will be completed within few days. On 05.08.2014, defendant again demanded payment to complete the project but the plaintiff denied M/s Branmage Vs. M/s Design House India Pvt. Ltd. C.S No.446/2020 Page 6/24 for the same, then the defendant asked the plaintiff to provide post- dated cheques for an amount of Rs. 17,83,019/- and same would be returned or deposited after calculation of the project and after handing over the project of Tommy Hilfiger. On 21.08.2015, the defendant provided invoices to the plaintiff on site to be signed by the plaintiff on which it was clearly mentioned that money will be deducted from the invoices provided paint work and penalty will be imposed due to non-delivery of site on time. After few days defendant said that there is some error in the calculation on his part and further demanded another post-dated cheque of Rs.16,81,100/- to which the plaintiff requested the defendant to return the previous cheques. Plaintiff provided his employee Jiten aforesaid cheques and instructed him to get back the old cheque. These cheques were provided to the defendant as security but the defendant neither returned the cheques nor delivered the project/ site for satisfaction. The plaintiff removed his employee Jiten from the job from after all haphazard created by the defendant alongwith Mr. Jiten. The employee of the plaintiff namely Mr. Jiten used to lie for being on the site and he used to support defendant's illogical reasons to hamper the work and extract money. Mr. Jiten had signed the invoices and mailed the defendant on 10.10.2014. The defendant mischievously and intentionally deposited one of the cheques on 13.11.2014 with an intention to extract money illegally. The defendant was time and gain given an extension for completion the project but the defendant was unable to complete the project and the work which the defendant performed was not upto the standard.
M/s Branmage Vs. M/s Design House India Pvt. Ltd. C.S No.446/2020 Page 7/247. Finally, after giving several extensions the plaintiff left with no option had to engage other vendors and on 27.08.2014 the project was outsourced to vendors of Mumbai who completed the project. Most of the work was done again by vendors because the work done by the defendant was rejected by representative of Tommy Hilfiger. The plaintiff has engaged an employee for supervision of work who latter had started helping the defendant in his nefarious activities. The plaintiff had to visit Lucknow several times and stay in hotel to check the status of the work which incurred loss to the plaintiff. The project was delayed by more than two months by the defendant. Finally, on 09.09.2014 site was handed over to Tommy Hilfiger after re-doing the entire work with the help of new vendors of Mumbai. Even after handing over the site, main door handle stopped working and when plaintiff informed about the same to the defendant, the defendant stated that he can do nothing and ask the plaintiff to call customer care number Godrej. In the month of December, 2014, representative of Tommy Hilfiger also informed that there are cracks on the ceiling, warmish and on the walls. The plaintiff had to suffer annual business/ client loss, and reputation in the market due to unprofessional approach of the defendant and the plaintiff lost a high- profile client like Tommy Hilfiger and the plaintiff was blacklisted by the said client. The present suit is for recovery of legitimate amount of outstanding money being owed by the defendant towards the plaintiff. The defendant failed to pay legitimate amount of money which constrained the plaintiff to file the present suit. The plaintiff prays a decree for an amount of Rs.25 lakhs alongwith 24 % pendente lite and M/s Branmage Vs. M/s Design House India Pvt. Ltd. C.S No.446/2020 Page 8/24 future interest. Hence, the present suit is filed.
8. Summons were issued to the defendant and same were duly served. Defendant has filed the written statement. It is contended in the written statement that averments raised by the plaintiff are baseless, unfounded and liable to be rejected. It is further contended that plaintiff has filed the suit to counter a criminal complaint which is pending adjudication in the Saket Court under section 138 NI Act. The plaintiff is trying to mislead the court and deliberately concealed the material fact of pending criminal complaint against the plaintiff. The present suit for damages is not filed by the competent person or name as the M/s BRANMAGE is a proprietorship firm hence this suit for damages is liable to be dismissed. It is also submitted that defendant worked continuously and had to hold the work due to technical faults of other agencies working at the site. It is also submitted that order of Lucknow from Mall, Tommy Hilfiger Store was confirmed by the plaintiff on 03.06.2014 and plaintiff confirmed the order with a cheque of Rs. 10 lakhs which was credited in the account of the defendant on 05.06.2014, and only then the defendant was to start the work at site. It is also submitted that when the representatives of Tomy Hilfiger with representative of Tax India Lifestyle (who was in possession of the site and was working) visited physically the site, it was agreed by Tax India Lifestyle representative to complete the work in 20 days and that they will intimate the same the plaintiff so that defendant's team may take over the site to start the work. The defendant denied that the problem started when plaintiff started asking the defendant as to when first lot of furniture would be leaving from Lucknow. It is submitted M/s Branmage Vs. M/s Design House India Pvt. Ltd. C.S No.446/2020 Page 9/24 by the defendant that the defendant had requested the plaintiff to give Road Permit and their bill on 20.06.2014 to enable the transportation of ready material to site to initiate the site work but the plaintiff himself failed to given permit and the bills, and the same were delivery to the defendant on 01.07.2014, and thereafter the defendant immediately dispatched the material in the evening of 01.07.2014. The defendant admitted that material had left for the site but due to breakdown of the truck material was being transferred to another truck. The defendant admitted that on 02.07.2014 an estimate cost of Rs.38,43,468/- was sent by the defendant, however, defendant specifically denied that it was agreed between the plaintiff and defendant that entire cost of the project shall not exceed more than 20 lakhs under any circumstances. It is also submitted by the defendant that progress on the day-to-day basis was updated to the plaintiff to his satisfaction through proper channels. The defendant submitted that painting work was done by the defendant. The defendant denied that project was to be completed and handed over to Tomy Hilfiger on 06.07.2014 as per understanding and oral agreement with the defendant. The defendant also submitted that other agencies were working at the site and that was the reason for the delay in the work and it was only after completion of their work, the defendant was supposed to do its part of the work. Defendant also submitted that defendant had right to demand the money i.e. 50 % of the contract value for which the defendant had asked the plaintiff number of times, but the plaintiff was not releasing the payment. The defendant also submitted that mall authorities had stopped work for 2-3 days however M/s Branmage Vs. M/s Design House India Pvt. Ltd. C.S No.446/2020 Page 10/24 with the proactive approach of the defendant, the mall authorities had allowed the defendant to work which the plaintiff also appreciated. The defendant admitted that one cheque dated 07.08.2014 amounting to Rs.17,83,019/- was issued by the plaintiff, however, defendant further submitted that at the time of handing over the cheque, the plaintiff requested the defendant not to present the said cheque due to shortage of the fund which defendant accepted. The defendant further stated that plaintiff after going through all his accounts, disputed the amount due towards the defendant and claimed that only an amount of Rs.16,81,100/- is due and therefore, accordingly, the plaintiff issued another cheque no. 691681 dated 24.08.2014 amounting to Rs.16,81,100/- which the defendant accepted under protest and presented the same on 13.11.2014 which was dishonoured due to stop payment. The defendant also submitted that cheque no. 691679 dated 07.08.2014 was not presented by the defendant till date. The defendant also submitted that delay was due to bad weather condition and other agencies working at the site and the same was informed by the defendant to the plaintiff through Email. The defendant denied that above stated cheque, which was handed over to the defendant, was to be treated as security cheque.
9. It is also submitted by the defendant that defendant presented the satisfactory work as per the contract and duly updated day to day progress to the plaintiff. At every step, the plaintiff and his client have inspected pre and post production/ site execution work and never raised any concern in any communication to the defendant. The defendant deployed more than 30 workers with 24 hours services with M/s Branmage Vs. M/s Design House India Pvt. Ltd. C.S No.446/2020 Page 11/24 supervisory staff and even the defendant was at the site to inspect the same. The defendant also submitted that after handing over the site plaintiff never complained with regard to the work done by the defendant. Defendant further denied all the other allegations as alleged by plaintiff in this plaint and therefore it is requested to dismiss the present suit.
REJOINDER
10. Plaintiff has filed the rejoinder in response to the written statement filed by the defendant reiterating the plaint averments. All the averments of the written statement were denied by the plaintiff. ISSUES
11. Upon completion of pleadings, the Ld. Predecessor of this court had framed the following issues vide order dated 14.03.2016:
1. Whether the plaintiff is entitled to the decree for recovery alongwith interest, as prayed? OPP
2. Whether plaintiff is entitled to the damages due to the acts of the defendant, as prayed? OPP
3. Whether the suit as filed is not maintainable? OPD
4. Relief.
PLAINTIFF'S EVIDENCE
12. Plaintiff has examined two witnesses to prove his claim. PW-1- Shri Mujammil Khan has tendered his evidence by way of affidavit Ex. PW1/A and relied upon document i.e. photocopy of bill dated 15.09.2014 is Mark-A. PW-2-Sh. Amarleen Singh has tendered his evidence by way of M/s Branmage Vs. M/s Design House India Pvt. Ltd. C.S No.446/2020 Page 12/24 affidavit Ex. PW2/A and relied upon documents:
1. Ex. P-1 (colly)- copies of emails.
2. Ex. P-2 (colly)- copies of invoices.
Plaintiff's evidence was closed vide order dated 04.06.2019.
DEFENDANT' EVIDENCE.
13. Defendant has examined only one witness as DW-1. DW- 1 Sh. Nitin Gola has tendered his evidence by way of affidavit Ex. DW1/A and relied upon documents as:
1. Ex. DW1/1- board resolution
2. Ex. DW1/2- true copy of complaint u/s 138 of NI Act.
3. Ex. DW1/3 (colly) the true copies of invoices dated 21.08.2014.
4. Ex. DW1/4- the true copy of cheque 691681 dated 24.08.2014.
5. Ex. DW1/5- the true copy of return memo dated 13.11.2014.
Defendant's evidence was closed vide separate statement dated 16.12.2019.
14. Arguments heard on either side.
ISSUES WISE FINDINGS
15. I have given thoughtful consideration to the submissions made on behalf of plaintiff, considered the relevant provisions of the law, pleadings of both the parties, deposition of witnesses and material on record. The issue wise finding is as under:
Issue No.3.M/s Branmage Vs. M/s Design House India Pvt. Ltd. C.S No.446/2020 Page 13/24
Whether the suit as filed is not maintainable?OPD The onus to prove this issue is upon the defendant. But the defendant has not led any evidence nor filed any document to prove this issue. Hence, this issue is decided in favour of plaintiff and against the defendant.
16. Issue no. 1 & 2.
1. Whether the plaintiff is entitled to the decree for recovery alongwith interest, as prayed?OPP And
2. Whether plaintiff is entitled to the damages due to the acts of the defendant, as prayed? OPP Issue no. 1 & 2 are being taken up together as both the issues are interconnected. The plaintiff has filed the present suit for recovery of Rs.25 lakhs alongwith 24 % pendent lite and future interest as well as for damages. As per averments in the plaint, both plaintiff and defendant are engaged in the business of interior and exterior designing as per contract/ assignment basis. On 22.05.2014, the plaintiff was awarded with a project for interior and exterior designing of his showroom by Tommy Hilfiger, a renowned fashion label company for its branch at Lucknow. The plaintiff after discussion and consultation of defendant, engaged an outsourced the services of the defendant for project. It is also averred in the plaint that the defendant provided samples which was approved by CEO of Tommy Hilfiger and the plaintiff and cash amount of Rs.20,000/- was paid by the plaintiff to the defendant for the same. It is also averred in the plaint that on 25.05.2014, it was settled between plaintiff and M/s Branmage Vs. M/s Design House India Pvt. Ltd. C.S No.446/2020 Page 14/24 defendant the project at Lucknow would be done within an amount of Rs. 24 lakhs which the defendant agreed and accepted verbally and which was crystallized through emails between the parties. According to plaintiff, the defendant neither completed the work in time nor done the work as per the satisfaction of plaintiff's client i.e Tommy Hilfiger. Plaintiff also claims that the work was to be completed within 45 days from day of outsourced i.e. 06.07.2014 but the defendant made delay in completing the work. It is pertinent to note here that according to plaintiff, defendant agreed to complete the project within an amount of Rs. 24 lakhs but perusal of the plaint and documents relied by the plaintiff, nowhere shows that the terms and conditions between plaintiff and defendant were reduced into writing. According to plaintiff, these terms were crystallized through emails, but the perusal of email and its reply dated 02.07.2014 Ex. P-1 shows that the plaintiff sent a email saying that project needs to be completed in 24 lakhs but in its reply on behalf of defendant it was stated that the cost was never discussed with us and is too high and that is why the defendant was asking the estimate from the plaintiff from long. In the said reply it is also mentioned that the defendant asked the plaintiff to clear advance payment within 2-3 days. This shows that according to plaintiff, the project was to be completed in Rs. 24 lakhs but defendant did not accept the same and hence there is no merit in the claim of the plaintiff that the project was to be completed in Rs. 24 lakhs as the agreement was not crystallized regarding the amount in which the project was to be completed. Perusal of all the emails and documents relied upon also nowhere show that project work was to be completed within 45 M/s Branmage Vs. M/s Design House India Pvt. Ltd. C.S No.446/2020 Page 15/24 days from the day of outsource i.e. 06.07.2014. PW-2 Amarleen Singh (proprietor) during his cross examination admitted that parties did not agree in writing regarding the date of completion of project and there was no written agreement regarding the completion of project within 45 days. According to plaintiff, there was oral agreement to complete the work in 45 days, but the plaintiff except making a self-serving statement, has neither examined any witness nor relied upon any document to show that the defendant was to complete the project within 45 days.
17. Even for the sake of arguments, it is presumed that work was to be completed within 45 days from 06.07.2014, the emails relied upon by the plaintiff, averments in the plaint and evidence by way of affidavit Ex. PW2/A of PW-2 Shri Amarleen Singh show that the defendant sought extension of time to complete the project and the plaintiff granted the said extension of time to the defendant.
18. During his cross examination, PW-2 Sh. Amarleen Singh, proprietor of the plaintiff admitted that there was no written contract between plaintiff and Tommy Hilfiger. PW-2 Sh. Amarleen Singh also admitted that there was no written contract between plaintiff and the defendant company and plaintiff has no written receipt of handing over the sub contract to the defendant. PW-2 also stated during his cross examination that plaintiff has not filed any statement of account/ ledger with regard to his project with Tommy Hilfiger as well as with the defendant. The PW-2 also stated during his cross examination that he cannot remember as to whether any document relating to contract amount of Rs.38 lakhs approximately M/s Branmage Vs. M/s Design House India Pvt. Ltd. C.S No.446/2020 Page 16/24 was filed by him in the present case or not. PW-2 also admitted that there are no such emails regarding handing over of drawings or other receipts. PW-2 also stated during his cross examination that he does not remember as to whether he has given to the defendant, any project or any list of work to be done by the defendant. PW-2 also admitted during cross examination that the defendant was not supposed to do AC work and painter work and work of Wall Paint inside the shop was not to be done by the defendant. PW-2 also admitted that the defendant was not supposed to do electricity work in the project.
19. Email dated 11.07.2014 Ex. P-1 shows that the defendant in the said email stated reasons for extension of completion of work. In the said email the defendant stated is that there was delay of three days because Form 38 for transporting the material to site was not provided by the plaintiff despite intimation about the same 10 days in advance due to which material was dispatched late and work at site was started with delay. Another reason as mentioned in the email was incomplete AC Ducting and the work of the same was not complete. Last reason for delay was mentioned as incomplete electricity work at site. It was also mentioned in the email that after verification of the AC Ducting by the client the defendant needed 25 more days to complete the work and the defendant requested the plaintiff to confirm the date of verification of AC/Ducting work so that the defendant may start the work. During cross examination of PW-2 admitted to have received above mentioned email dated 11.07.2014 Ex. P-1. During cross examination, Ld. Counsel for defendant asked a specific question from PW-2 as to whether any reply to the above said email M/s Branmage Vs. M/s Design House India Pvt. Ltd. C.S No.446/2020 Page 17/24 was sent on behalf of plaintiff to contradict the facts, to which PW-2 replied that he had given reply on the same day at 12.34 p.m. Reply dated 11.07.2014 at 12.34 p.m to the above said email is on record which merely mentions that plaintiff will get back on this after going through the same, but nowhere in the reply plaintiff had contradicted the facts as mentioned in the email Ex. PW-1 dated 11.07.2014 sent by the defendant. This shows that the delay in completion of work was not on the part of the defendant and the plaintiff was aware about the reasons for delay in the completion of the work. The plaintiff claimed that the delay was on the part of the defendant but above-mentioned email and its reply shows that the delay in completion of work was not being done by the defendant and it was in fact on the part of the plaintiff. Electricity and AC work was not the responsibility of the defendant and as per above mentioned email Ex. PW1 dated 11.07.2014, the defendant was not able to start the work as above mentioned electricity and AC work was not complete, and plaintiff was also aware about the said fact.
20. During cross examination, PW-2 also admitted that he has received email dated 09.07.2014 at 6.30 p.m. which was sent by the defendant. The PW-2 also admitted that plaintiff did not give any reply to the said email. Perusal of the above said email dated 09.07.2014 shows that the defendant sent an estimate to the plaintiff and sought approval from the plaintiff with PO and 50 % payment so that defendant can start the fabrication work. This email also shows that work of fabrication was to be started subject to above mentioned approval of the plaintiff but the plaintiff has not filed any reply to the M/s Branmage Vs. M/s Design House India Pvt. Ltd. C.S No.446/2020 Page 18/24 said email or any documentary evidence to show that plaintiff gave approval for the same so that the defendant may start the work. Except the self-serving statement during cross examination by PW-2 that oral reply to the above said email was given, no other document has been filed or relied upon by the plaintiff. This also shows that the delay in starting and completion of the project was not in the part of the defendant.
21. PW-2 also admitted to have received five emails dated 23.07.2014, 24.07.2014 and 06.08.2014. Ld. Counsel for defendant during cross examination asked a specific question from the PW-2 as to whether he had given any reply to above said emails to contradict the claim, to which PW-2 replied that he does not remember as to whether he gave reply to the said emails or not. Perusal of these emails show that the defendant had asked the plaintiff to release the amount and also sought estimate approval and purchase order. It is also mentioned in the said emails that even after one and half months since the site has been started but the advance amount is still pending due to which the project may face inconvenience and delay in completion and requested the plaintiff to release PDCs. Email dated 25.08.2014 shows that it is stated by the defendant in the said emails that as on date the defendant has completed the work and wanted to hand over the site, but the client pointed out certain wavy/ uneven feel (dhavak) on a glossy front facade and the defendant also stated that the entire process for re-doing the front facade will take another 15
-20 days. The defendant in the said email dated 25.08.2014 also requested the plaintiff to release a sum of Rs.10 lakhs. The plaintiff M/s Branmage Vs. M/s Design House India Pvt. Ltd. C.S No.446/2020 Page 19/24 did not give any reply to the above said emails. Except the self-serving statement, the plaintiff has not filed any document or email which may show that the plaintiff had contradicted the claim of the defendant as mentioned in the above mentioned emails. This also shows that the plaintiff was aware about the delay in completion of work was not on the part of the defendant. Hence, there is no merit in the contention of the plaintiff that defendant made delay in completion of the work.
22. During cross examination, PW-2 admitted that a cheque amounting to Rs.16,81,100/- was issued by the plaintiff in favour of the defendant which was dishonoured. PW-2 also admitted during his cross examination that defendant had corrected the calculation towards the work done, and thereafter he had issued cheque of Rs.16,81,100/- Ex. PW1/D2. PW-2 during his cross examination also admitted that total amount for the agreed between the parties was Rs.33,41,028/-. PW-2 during his cross examination also stated that out of total cost of project, he had paid Rs.15 lakhs to the defendant as advance and PW-2 further admitted that he has not paid rest of the balance amount till date.
23. In view of above discussion, it is evident that plaintiff has not been able to prove that the defendant was to complete the work within 45 days. Plaintiff has also not filed any document which shows that the defendant was aware from the very beginning that work was to be completed within 45 days. It is also interesting to note that plaintiff has not mentioned in the plaint and evidence by way of affidavit the description of the work which the defendant was supposed to do. Plaintiff has not given reply to the emails sent by the M/s Branmage Vs. M/s Design House India Pvt. Ltd. C.S No.446/2020 Page 20/24 defendant wherein reasons for delay were mentioned. According to defendant, the work was delayed due to other agencies working at the site or due to other reasons as mentioned in the emails, but the plaintiff neither replied to the said emails nor gave any satisfactory explanation regarding the same. Plaintiff has also failed to prove that the delay in completion of the work, was caused due to the defendant.
24. It is claimed on behalf of the plaintiff that due to the delay caused by the defendant in completion of the work and due to unsatisfactory work done by the defendant, plaintiff has to get the services of vendors from Mumbai for completing the remaining work and therefore plaintiff had to suffer a huge loss in terms of salary to the employees and unnecessary travel and stay of the plaintiff at Lucknow. It is surprising to note here that the present claim of the plaintiff is based upon the fact that plaintiff had to take services of the new vendors for completion of unfinished work, but neither in the plaint nor in the evidence by way of affidavit plaintiff has mentioned the name of the new vendors who helped plaintiff in completion of the work. It is also pertinent to note here that plaintiff has not even examined any witness who belong to the new vendors from Mumbai, to state that new vendors completed the unfinished project/ work. It is also surprising to note here that plaintiff has not even mentioned the actual or rough amount of money which plaintiff paid to the new vendors of Mumbai to complete the project. Hence, the claim of the plaintiff that remaining work was completed at site with the help of new vendors of Mumbai, does not inspire confidence. There is no merit in the contention of the plaintiff that plaintiff had to take M/s Branmage Vs. M/s Design House India Pvt. Ltd. C.S No.446/2020 Page 21/24 services of new vendors of Mumbai to complete the project.
25. Plaintiff has examined Shri Mujamil Khan as PW-1. According to PW-1, plaintiff approached him for the work of painting in one of the retail outlets project namely Tommy Hilfiger showroom situated at Lucknow. During cross examination, PW-1 stated that he does not have any proof to show that he has worked for PW-2/ plaintiff in the above-mentioned premises. PW-1 also admitted that he was not having any written contract with plaintiff. PW-1 also stated during his cross examination that he used to raise the bills for work but I do not know whether the plaintiff has filed the bills in the court or not. It is pertinent to note here that PW-1 has relied upon photocopy of bill date 15.09.2014- Mark-A, but original of said bill was never produced in the court. Plaintiff has also not given any satisfactory explanation as to why original was not produced. Hence, in absence of original document, the court cannot rely upon the photocopy of said bill. During cross examination, PW-1 also stated that he does not know the terms and conditions of any contract which took place between plaintiff and defendant. PW-1 also stated during his cross examination that he is not aware as to whether the project was to be completed within 45 days or not. PW-1 further stated during cross examination that according to his contract with the plaintiff, he was to complete the project within 45 days. PW-1 also stated that even he had not completed the work in 45 days. The testimony of PW-1 is also of no help to the plaintiff as this witness has also not been able to prove that due to fault of the defendant, the work at the site was delay and due to which plaintiff suffered loss. This witness has also not been M/s Branmage Vs. M/s Design House India Pvt. Ltd. C.S No.446/2020 Page 22/24 able to prove that the defendant did unsatisfactory work. Moreover, during cross examination, PW-2 Shri Amarleen Singh (proprietor of plaintiff) admitted that painting work was not to be done by the defendant. Hence, even if any painting work done by PW-1, the plaintiff cannot claim any damages regarding the same from the defendant as painting work was not his responsibility.
26. The plaintiff has filed the present suit for recovery of Rs. 25 lakhs against the defendant with pendente lite and future interest and also for damages as incurred by the plaintiff due to the act of the defendant. Plaintiff has not filed any document to show that amount of Rs. 25 lakhs are due against the defendant. The plaintiff has even during his cross examination admitted that out of Rs.33,41,028/-, he has paid only Rs. 15 lakhs to the defendant and remaining amount have not been paid till date to the defendant. Hence, plaintiff has not explained as to on what basis plaintiff is claiming Rs. 25 lakhs from the defendant.
27. Regarding the damages, plaintiff was required to prove the loss or harm which he has suffered. But on perusal of entire plaint and testimonies of witnesses, it is evident that plaintiff has failed to prove that the defendant caused delay in the project and the work done by the defendant was unsatisfactory. It is also pertinent to note here that according to plaintiff, Tommy Hilfiger was not satisfied if the work completed by the defendant, but no witness from the office of Tommy Hilfiger was examined by the plaintiff and no written document i.e. letter etc issued by Tommy Hilfiger regarding the unsatisfactory work done by the defendant, was filed by the plaintiff.
M/s Branmage Vs. M/s Design House India Pvt. Ltd. C.S No.446/2020 Page 23/24Hence, the plaintiff has miserably failed to prove that plaintiff has suffered loss and harm. In view of the same, both issues no. 1 & 2 are decided against the plaintiff and in favour of defendant. Relief.
In view of above discussion, plaintiff has not been able to prove its case. Hence, the suit filed by the plaintiff is dismissed. Parties to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room as per rules.
Typed to the dictation directly, (Rajesh Kumar)
corrected and pronounced in Additional District Judge-03,
open court on 29.08.2023 East/KKD Courts, Delhi.
M/s Branmage Vs. M/s Design House India Pvt. Ltd. C.S No.446/2020 Page 24/24