Delhi District Court
Sh.Usman Salmani vs Sh. Parveen Nagpal on 7 June, 2022
THE COURT OF SH. ANKIT KARAN SINGH
CIVIL JUDGE01 (WEST), TIS HAZARI COURTS, DELHI
CS SCJ No. 1237/17
Date of Institution : 12.09.2017
Date of reservation of Judgment : 05.05.2022
Date of pronouncement of Judgment : 07.06.2022
Sh.Usman Salmani
S/o Mohd. Saleem
R/o WZ2B, Hind Nagar
Tilak Nagar
New Delhi18.
.............Plaintiff
Versus
Sh. Parveen Nagpal
S/o M.L Nagpal
R/o H.No. D17, Mukhram Garden
Tilak Nagar
New Delhi18.
..............Defendant
SUIT FOR RECOVERY
JUDGMENT
1. Brief facts as per plaint of the plaintiff are that the plaintiff is a CS No 1237/17 Usman Salmani Vs. Parveen Nagpal 1 /17 builder by profession and is doing the work of construction of properties and defendant is the absolute owner and in possession of the built up property upto 2nd Floor, bearing no. D17, Land measuring 50 Sq. Yards, situated at Mukhram Garden, Tilak Nagar, New Delhi18 (hereinafter referred to as 'suit property').
2. It is pleaded that defendant approached and requested to the plaintiff to build up complete third floor with material for a sum of Rs.5,50,000/and in this regard an agreement was executed on 16.05.2017 between plaintiff and defendant and as per terms and conditions of said agreement dated 16.05.2017, plaintiff completed all work except remaining minor works i.e POP expenses Rs. 15,000/, fitting expenses Rs. 10,000/, three window price Rs. 10,000/, paint expenses Rs. 15,000/, iron jali price Rs. 5,000/, iron main gate Rs. 5,000/ and bath room tooti fitting expenses Rs. 10,000/ i.e amounting to Rs. 70,000/.
3. It is further pleaded that defendant was bound down to make payment of construction work as per para no. IX to the plaintiff. It is further pleaded that defendant had made payment of Rs. 1,00,000/ on 23.05.2017 and Rs. 1,00,000/ on 28.05.2017 to the plaintiff against receipts and thereafter no payment has been made to plaintiff. It is further pleaded that a sum of Rs. 2,80,000/ is due against defendant which he has not paid despite repeated requests and visiting made by plaintiff in this regard on 05.08.2017, 10.08.2017 and 18.08.2017 and a criminal complaint dated 22.08.2017 has been made to the Commissioner of Police, Police Headquarter, ITO, New Delhi by the plaintiff in CS No 1237/17 Usman Salmani Vs. Parveen Nagpal 2 /17 this regard against defendant and his son and a legal notice dated 23.08.2017 was also sent to defendant but of no avail. Hence the present suit has been filed by the plaintiff.
4. By way of present suit, the plaintiff has prayed for the following reliefs :
i) Decree for Rs. 2,80,000/ alongwith interest @ 12 % p.a in favour of plaintiff and against defendant.
ii) Decree of permanent injunction thereby restraining defendant, his LRs, agents, associates, attorney, successors etc. from raising any construction over the suit property i.e bearing No. D17, Mukhram Garden, Tilak Nagar, Delhi.
Iii) Costs of the suit. iv) Any other relief.
5. Written statement has been filed on behalf of defendant wherein it is stated that the plaintiff in respect of the construction was looking for a builder who can carry out the job with material. It is further stated that defendant offered his services and after examining the entire property and discussing with the defendant, quality of material to be used in the construction offered to carry out the construction work for a total sum of Rs. 5,50,000/ which amount was payable by the defendant during the period of construction. It is further stated that all the terms and conditions were were agreed and negotiated between plaintiff and defendant in the agreement. It is further stated that defendant as on date has paid a total sum of Rs. 4,50,000/ to the plaintiff, who has failed to CS No 1237/17 Usman Salmani Vs. Parveen Nagpal 3 /17 complete the work and is indulged in further extortion and harassment. It is further stated that plaintiff deliberately has not provided the receipt for Rs. 2.5 lacs which was although received by him and which fact has not been denied by the plaintiff in the audio recordings. It is further stated that after the work was abandoned by plaintiff, the defendant held various meetings with the plaintiff but could not succeed in pursuing the plaintiff to complete the said work, however on the contrary, the plaintiff also started asking for more amount as compared to the agreed amount to complete the work.
6. It is further stated that defendant under pressure although had agreed to pay the additional amount but even then the plaintiff did not come forward to complete the said job. It is further stated that due to harassment and pressure tactics adopted by plaintiff, the defendant suffered mentally and physically. It is further stated that as plaintiff refused to carry out the said work in terms of agreement dated 16.05.2017, the defendant was left with no option except to get the work completed from other persons.
7. It is further stated that the expenses to the tune of Rs. 1,80,000/ had incurred in order to get the work completed. It is further stated that since in terms of agreement Rs. 1 lac was to be further paid by the defendant in case the plaintiff completed the entire job and considering the fact that defendant has to incur a sum of Rs. 1,80,000/ and after adjusting the said amount a sum of Rs.
80,000/is the additional cost to be incurred by the defendant, as such the defendant is within his right to seek the recovery of the same. It is further CS No 1237/17 Usman Salmani Vs. Parveen Nagpal 4 /17 stated that besides above a sum of Rs. 2 lacs is being claimed towards the mental harassment and damages and hence a total sum of Rs. 2,80,000/ is claimed by way of counter claim by the defendant. It is stated that the present suit be dismissed.
8. Replication has been filed by plaintiff wherein the averments made in the plaint are denied and prayer is made for dismissal of suit.
Vide Order dated 17.04.2018, following issues are framed :
(1) Whether the plaintiff is entitled to the decree of sum of Rs. 2,80,000/ as prayed for ? OPP (2) Whether the plaintiff is entitled to interest @ 12 % per annum. If so, for what period ? OPP (3) Whether the plaintiff is entitled to decree of permanent injunction as prayed for ? OPP (4) Relief.
9. In order to prove his case plaintiff has examined himself as PW1 and has tendered in evidence his duly sworn in affidavit. Same is Ex. PW 1/A and has relied upon the following documents :
1. Site plan Ex. PW 1/12. Copy of construction agreement Mark A dated 16.05.2017
3. Payment receipt dated 23.05.2017 Mark B CS No 1237/17 Usman Salmani Vs. Parveen Nagpal 5 /17
4. Payment receipt dated 28.05.2017 Mark C
5. Original copy of complaint dated Ex. PW 1/5 22.08.2017
6. Postal receipts dated 23.08.2018 Ex. PW 1/6 (colly.)
7. Legal notice dated 23.08.2017 Ex. PW 1/7
8. Postal receipt dated 23.08.2017 Ex. PW 1/8 pertaining to legal notice
9. Reply of legal notice dated Ex. PW 1/9 29.08.2017
10. Besides himself plaintiff has examined another witness namely Sh. Rajeev Kumar as PW2, who has tendered in evidence his duly sworn in affidavit. Same is Ex. PW 2/A.
11. Both witnesses were crossexamined by counsel for defendant. Thereafter vide statement made by plaintiff on 05.09.2018, PE was closed and the matter was listed for DE.
12. Vide Order dated 14.03.2019 it is mentioned that counsel for defendant has got his statement recorded to the effect that he is adopting the evidence led in connected case bearing counter claim no. 3/18 ( PW1 Parveen Nagpal). 13 In order to prove his case defendant has examined himself as PW1 (in Counter Claim NO.3/18) and has tendered in evidence his duly CS No 1237/17 Usman Salmani Vs. Parveen Nagpal 6 /17 sworn in affidavit. Same is Ex. PW 1/A and has relied upon the following documents :
1. Agreement dated 16.05.2017 Ex. PW 1/1 2. Audio Recordings Ex. PW 1/ 2
3. Vidography regarding completion of work Ex. PW 1/3 in the suit property
4. The original receipts of payments Ex. PW 1/ 4 to Ex. PW 1/18
5. Quotation of work Ex. PW 1/19 & Ex. PW 1/20
6. Affidavit U/s 65 B of Indian Evidence Act, 1872 Ex. PW 1/ 21 Besides himself defendant has examined two more witnesses i.e.
1. Sh. Ashish Nagpal as PW2 and has tendered in evidence his duly sworn in affidavit. Same is Ex. PW 2/A.
2. Sh. Jasmeet Singh as PW3 and has tendered in evidence his duly sworn in affidavit as Ex. PW 3/A. Thereafter vide statement made by defendant (counter claimant in CC NO.
3/18) on 14.03.2019, PE was closed.
14. My issuewise findings are as under :
CS No 1237/17 Usman Salmani Vs. Parveen Nagpal 7 /17
ISSUE NO 1 AND 3
(1) Whether the plaintiff is entitled to the decree of sum of Rs.
2,80,000/ as prayed for ?
(3) Whether the plaintiff is entitled to decree of permanent
injunction as prayed for ?
The onus to prove both these issues were upon the plaintiff. Before proceedings further lets discuss law on the point first:
15. Contract Act provides that Sec 52. Order of performance of reciprocal promises.--Where the order in which reciprocal promises are to be performed is expressly fixed by the contract, they shall be performed in that order; and where the order is not expressly fixed by the contract, they shall be performed in that order which the nature of the transaction requires.
Illustrations
(a) A and B contract that A shall build a house for B at a fixed price. A's promise to build the house must be performed before B's promise to pay for it.
Sec 53. Liability of party preventing event on which the contract is to take effect.--When a contract contains reciprocal promises, and one party to the contract prevents the other from performing his promise, the contract becomes voidable at the option of the party so prevented; and he is entitled to compensation from the other party for any loss which he may sustain in CS No 1237/17 Usman Salmani Vs. Parveen Nagpal 8 /17 consequence of the nonperformance of the contract. Illustration A and B contract that B shall execute certain work for A for a thousand rupees. B is ready and willing to execute the work accordingly, but A prevents him from doing so. The contract is voidable at the option of B; and, if he elects to rescind it, he is entitled to recover from A compensation for any loss which he has incurred by its nonperformance.
Sec 54. Effect of default as to that promise which should be first performed, in contract consisting of reciprocal promises.--When a contract consists of reciprocal promises, such that one of them cannot be performed, or that its performance cannot be claimed till the other has been performed, and the promisor of the promise last mentioned fails to perform it, such promisor cannot claim the performance of the reciprocal promise, and must make compensation to the other party to the contract for any loss which such other party may sustain by the nonperformance of the contract. Illustrations
(b) A contracts with B to execute certain builder's work for a fixed price, B supplying the scaffolding and timber necessary for the work. B refuses to furnish any scaffolding or timber, and the work cannot be executed. A need not execute the work, and B is bound to make compensation to A for any loss caused to him by the non CS No 1237/17 Usman Salmani Vs. Parveen Nagpal 9 /17 performance of the contract.
Sec 55. Effect of failure to perform at fixed time, in contract in which time is essential.--When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract.
Effect of such failure when time is not essential.--If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure.
Effect of acceptance of performance at time other than that agreed upon.--If, in case of a contract voidable on account of the promisor's failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than that agreed, the promisee cannot claim compensation for any loss occasioned by the nonperformance of the promise at the time agreed, unless, at the time of such acceptance, he gives notice to the promisor of his intention to do so.
CS No 1237/17 Usman Salmani Vs. Parveen Nagpal 10 /17
73.Compensation for loss or damage caused by breach of contract.--When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach.
Compensation for failure to discharge obligation resembling those created by contract.--When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract.
Explanation.--In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the nonperformance of the contract must be taken into account.
Illustrations
(f) A contracts to repair B's house in a certain manner, and receives payment in advance. A repairs the house, but not according to contract. B is entitled to recover from A the cost of making the repairs conform to the contract.
CS No 1237/17 Usman Salmani Vs. Parveen Nagpal 11 /17
(l)A, a builder, contracts to erect and finish a house by the first of January, in order that B may give possession of it at that time to C, to whom B has contracted to let it. A is informed of the contract between B and C. A builds the house so badly that, before the first of January, it falls down and has to be re built by B, who, in consequence, loses the rent which he was to have received from C, and is obliged to make compensation to C for the breach of his contract. A must make compensation to B for the cost of rebuilding the house, for the rent lost, and for the compensation made to C. Sec 74. Compensation for breach of contract where penalty stipulated for. When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for.
Explanation.--A stipulation for increased interest from the date of default may be a stipulation by way of penalty.
Exception.--When any person enters into any bailbond, recognizance or other instrument of the same nature, or, under the provisions of any law, or under CS No 1237/17 Usman Salmani Vs. Parveen Nagpal 12 /17 the orders of the Central Government or of any State Government, gives any bond for the performance of any public duty or act in which the public are interested, he shall be liable, upon breach of the condition of any such instrument, to pay the whole sum mentioned therein.
Explanation.--A person who enters into a contract with Government does not necessarily thereby undertake any public duty, or promise to do an act in which the public are interested.
16. Hon'ble Supreme Court in Welspun Specialty Solutions Limited v. ONGC, LL 2021 SC 646, held that "30. It is now settled that 'whether time is of the essence in a contract', has to be culled out from the reading of the entire contract as well as the surrounding circumstances. Merely having an explicit clause may not be sufficient to make time the essence of the contract. As the contract was spread over a long tenure, the intention of the parties to provide for extensions surely reinforces the fact that timely performance was necessary. The fact that such extensions were granted indicates ONGC's effort to uphold the integrity of the contract instead of repudiating the same."
17. Mark A and Ex PW 1/1 (counter claim) contains term (iii) as "That the second party will complete the construction within 75 days after start the work." After term (ix), the stages of payment on completion of work is mentioned. PW1 during his cross examination also stated that in agreement dated 16.05.2017 CS No 1237/17 Usman Salmani Vs. Parveen Nagpal 13 /17 construction work is to be completed within a span of 75 days from the date of agreement. PW1 also conceded that as per agreement, the payment is to be made as per the different stages of construction. PW1 also conceded that in today's date the construction work in the suit property is completed. This clearly shows that time was of the essence of the contract.
18. Let's find out whether plaintiff was paid only Rs. 2,00,000/ as alleged in the plaint or Rs. 4,50,000/ as alleged in the written statement. Plaintiff has filed Mark B (Ex PW 1/15 in counter claim) and Mark C (Ex PW 1/16 in counter claim) i.e. receipts of Rs. 1,00,000/ each given by plaintiff to defendant. Thus, payment of Rs. 2,00,000 is also admitted by the plaintiff. Defendant has filed audio recording (Ex PW 1/2 in counter claim) wherein the plaintiff addressed with the name of Jolly, was put suggestion by the son of the defendant that plaintiff has received Rs. 4,50,000/ and deliberately denied receipt of Rs. 4,50,000/. Suggestions were put regarding veracity of this recording to PW2 (in counter claim) and PW1 (in counter claim) during crossexamination by counsel of plaintiff. The recording contains voices of three persons. First person appears to be Sh. Ashish Nagpal as PW2 (in counter claim) has testified that recording was conducted by him. Other person is addressed as Jolly. As per defendant, this Jolly person is plaintiff himself. In reply to legal notice, Ex PW 1/9, para 3 clearly mentions the name of Mr. Usman Salmani aka Johny aka Jolly. It is not denied by the plaintiff in either plaint or crossexamination of defendant or his son that plaintiff is not called Jolly. Thus, this court finds that it was plaintiff who was addressed as Jolly in the audio recording.
CS No 1237/17 Usman Salmani Vs. Parveen Nagpal 14 /17
19. Audio recording categorically nullifies the case of the plaintiff as plaintiff has admitted in audio recording that he has received Rs. 4,50,000/ from the defendant. Audio recording further clearly shows that plaintiff is asking son of the defendant to increase the agreed amount. Audio recording shows that plaintiff was not willing to perform his part of the agreement. It further shows that testimony of PW1 cannot be relied upon. It further shows that plaintiff is wrongfully claiming outstanding balance of Rs. 2,80,000/ from the defendant, when in fact plaintiff has already received Rs. 4,50,000/ from the defendant. Audio recording further shows the plaintiff has not given the receipt of rest of the amount i.e. Rs. 2,50,000/. All this clearly shows that breach of contract was made on part of the plaintiff citing hike in construction expenses.
20. Section 41(h) of Specific Relief Act, provides that an injunction cannot be granted when the conduct of the plaintiff has been as to disentitle him to the assistance of the court. During crossexamination of PW1 has conceded that the construction work was to be done within a span of 75 days from the date of agreement dated 16.05.2017. Thus, construction was supposed to be completed by plaintiff by the end of August 2017. The construction was not completed by the plaintiff by the end of August 2017 due to his own fault in asking more than contractual amount which was not agreeable by the defendant. Plaintiff has not come to the court with clean hands. In the legal notice dated 23.08.2017, plaintiff is claiming more than contractual amount from the defendant.
21. In view of the above, this court does not find that plaintiff is entitled to CS No 1237/17 Usman Salmani Vs. Parveen Nagpal 15 /17 the relief of recovery of Rs. 2,80,000/ from the plaintiff. This court also finds that plaintiff is not entitled to permanent injunction in its favour as equally efficacious remedy in the nature of specific performance of contract was also available to the plaintiff. In the contract, time of performance of agreement, was essential. The defendant stated that construction has already been completed by the defendant which was left by the plaintiff and that now construction is complete. PW1 during his crossexamination conceded that construction work in the suit property is completed. Thus, relief of permanent injunction has also become infructuous.
22. In Dr. N.G. Dastane vs Mrs. S. Dastane on 19 March, 1975, AIR 1975 SC 1534, (1975) 2 SCC 326, Hon'ble Supreme Court observed that:
"24. The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A. prudent man faced with conflicting probabilities concerning a factsituation will act on the supposition that the fact exists, if on weighing the various probabilities he links that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note : "the nature and CS No 1237/17 Usman Salmani Vs. Parveen Nagpal 16 /17 gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue" Per Dixon, J. in Wright v. Wright (1948) 77 C.L.R. 191 at p. 210; or as said by Lord Denning, "the degree of probability depends on the subjectmatter. In proportion as the offence is grave, so ought the proof to be clear" Blyth v. Blyth [1966] 1 A.E.R. 534 at 536. But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged."
23. In the present case, balance of probabilities lies in favour of the defendant. Issue no 1 and 3 are decided against plaintiff.
24. ISSUE NO. 2(2) Whether the plaintiff is entitled to interest @ 12 % per annum. If so, for what period ? OPP The onus to prove this issue was upon the plaintiff.
Issue no 2 consequently is decided against the plaintiff. In view of aforementioned findings and observations the suit of the plaintiff stands dismissed. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Digitally signed ANKIT by ANKIT KARAN
KARAN SINGHDate: 2022.06.08
SINGH 17:48:22 +0530
Pronounced in the open court (Ankit Karan Singh)
today i.e. on 07.06.2022 Civil Judge-01(West)/Delhi
CS No 1237/17 Usman Salmani Vs. Parveen Nagpal 17 /17