Delhi District Court
Lakha Painter Polish Decorators vs Kapil Malhotra on 27 October, 2023
IN THE COURT OF SH. FAHAD UDDIN
COMMERCIAL CIVIL JUDGE (WEST), TIS HAZARI COURTS, DELHI.
CS SCJ No: 610047/2016
CNR No. DLWT03-001103-2014
LAKHA PAINTER & POLISH DECORATORS
Through its Proprietor
Sh. Jag Ram
At C-153 (C.N. No. 691, Gali No. 5),
New Shyam Nagar,
New Delhi-110018. ...Plaintiff
VERSUS
1. SH. KAPIL MALHOTRA
2. MRS. SUMAN MALHOTRA
Both Residents of:-
A-10, Meera Bagh, New Delhi. ...Defendants
Date of Filing : 28.01.2014
Date of Judgment : 27.10.2023
JUDGMENT
1. Vide this judgment/ order, I shall decide the present case filed by the plaintiff Lakha Painter and Polish Decorators through its Proprietor Sh. Jagram against the defendants Kapil Malhotra and Suman Malhotra for recovery of Rs. 2,29,000/- (Rupees Two Lakh Twenty Nine Thousand only) alongwith interest as mentioned in the plaint. The brief facts necessary for deciding the present case may be described as under:-
CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 1/ 28Plaintiff's case as per the plaint:-
2. It is the case of the plaintiff that the plaintiff Lakha Painters and Polish Decorators is a Proprietorship firm and deals in job work of Plaster of Paris, P.U Polish and Paint work and other works. In the month of February 2013, the defendant no. 1 & 2 had requested to Sh. Mohinder Sapra of Sapra Paint Pvt. Ltd., New Delhi for meeting with expert painter as the defendant's polish work was previously done by some other painter but his quality was not good and the defendants were not satisfied with his work. On the request of the defendants, the plaintiff was sent to defendants for seeing the work to be done and thereafter a meeting between the plaintiff and defendants was held at the shop of Sapra Paints where the material rates for the work to be done were finalized after 2-3 meetings after a lot of discussions and after agreeing upon the rates as mentioned in the plaint, the rates were reduced to writing in presence of Sh. Mohinder Sapra before starting the work. The original paper upon which the said rates were agreed upon were kept by defendant no. 1 and many a times the plaintiff asked for a copy of the same but the defendant never provided the same to the plaintiff. On 01.12.2013, Sh. Mohinder Sapra had given a certificate to this effect to the plaintiff on his request. The plaintiff stated that the job work at the residence of the defendants i.e. A-10, Meera Bagh, New Delhi was started on 26.02.2013 and completed on 17.09.2013 and during the execution of the said work many painters as mentioned in the plaint executed the work and during the working period, the defendants had checked the work and appreciated the quality of work. During the course of working, the plaintiff purchased paint material used in job work at defendant's site from Sapra paint Pvt. Ltd., and the defendants made payment of Rs. 1,90,000/- to Sapra Paint Pvt. Ltd. , regarding purchase of paint material from 26.02.2013 till 17.09.2013. The said payment of Rs. 1,90,000/- was to be adjusted from the final CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 2/ 28 payment payable to the plaintiff by the defendants. During the course of working, the defendants also made payment of Rs. 1,52,000/- to the plaintiff in labour account. In the month of September 2013, the plaintiff finished the job work to the satisfaction of the defendants and the defendants also called a technical person to check the work and appreciated the quality of work done by the plaintiff and only then the plaintiff calculated measurement of work finally completed. On 17.09.2013 the plaintiff prepared final bill of Rs. 5,71,085/- in total as per agreed rates and apprised the defendants regarding the said bill.
3. The plaintiff had received Rs. 1,52,000/- as running payment in labour account plus Rs. 1,90,000/- on account of material purchased from Sapra Paint Pvt. Ltd. After deducting Rs. 1,52,000/- and Rs. 1,90,000/- from the total amount of Rs. 5,71,085/-, the plaintiff is now entitled to receive Rs. 2,29,085/- from the defendants. When the plaintiff demanded his balance payment of Rs. 2,29,000/- from the defendants, the defendants avoided to make the payment to the plaintiff on one pretext or the other. The plaintiff visited to the house of the defendants several times and requested for his balance payments but the defendants did not give even a single penny out of the said balance amount of Rs. 2,29,000/- to the plaintiff. The defendant no. 1 straight away refused to give the balance payment to the plaintiff and threatened the plaintiff to implicate him in false cases. On 18.11.2013, the plaintiff sent a legal notice through speed post by Labour Union to the defendants thereby demanding the balance payment of Rs. 2,29,000/- from the defendants. The defendant no. 1 got annoyed after receiving the said notice and on 29.11.2013, the defendant no. 1 extended threats through another person by phone no. 9911919374 thereby giving threats to kill the plaintiff or implicate him in false cases and pressurized the plaintiff to withdraw the said notice. The plaintiff also lodged a police complaint dated 30.11.2013 in this regard with SHO, P.S. Miyanwali Nagar CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 3/ 28 and Tilak Nagar but despite this the defendants did not bother to pay the outstanding amount to the plaintiff and hence, in the said background the present suit has been filed by the plaintiff against the defendants seeking a decree for a sum of Rs. 2,29,000/- against the defendants along with interest as prayed for in the plaint.
Defendants case as per the Written Statement:
4. The defendant no. 1 & 2 filed a W.S. in the present case wherein they raised certain preliminary objections to the case of the plaintiff and stated that the plaintiff is taking advantage of his own wrongs. The Plaintiff has not come to the Court with clean hands. M/s Macwins Global Pvt. Ltd. is a necessary party which has not been impleaded as a defendant in the present case and hence, the suit is liable to be dismissed. There is no cause of action in favour of the plaintiff and against the defendants. The plaint has not been properly verified by the plaintiff and the plaintiff has no locus-standi to file the present suit against the defendants as the defendants never agreed to get the paint and polish decoration work with the plaintiff in individual capacities. The defendants stated that M/s Sapra Paints Pvt. Ltd. introduced M/s Lakha Painters and Polish Decorators to give a contract to carry out paint and polish work for M/s Macwins Global Pvt. Ltd.,at A-10, Meera Bagh, New Delhi of which defendant no. 1 & 2 are the Directors. M/s Sapra Paints Pvt. Ltd. introduced M/s Lakha Painters and Polish decorators to M/s Macwins Global Pvt. Ltd., to remove existing melamine and to redo from scratch at A-10, Meera Bagh, New Delhi and accordingly M/s Macwins Global Pvt. Ltd., engaged M/s Lakha Painters and Polish Decorators to do the melamine work, PU pigment paint and PU clear as per the rates and materials agreed between the parties. Thus M/s Lakha Painter and Polish Decorators had orally agreed to carry out the said job work with the materials at the rates specified and the plaintiff has intentionally not impleaded CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 4/ 28 M/s Sapra Paints, M/s Macwins Global Pvt. Ltd., who are necessary party for proper adjudication of the present case between the parties. M/s Macwins Global Pvt. Ltd., had business dealings with M/s Sapra Paints Pvt. Ltd., and the said Sapra Paints Pvt. Ltd., connived with the plaintiff to make a false claim against the defendants as M/s Lakha Painter and Polish Decorators used sub-standard melamine material purchased from M/s Sapra Paints Pvt. Ltd., to cheat M/s Macwins Global Pvt. Ltd., by presenting false bills and issuing false certificate. The said fact came into the knowledge of the defendants after seeing the bills supplied to them by the plaintiff along with plaint. The defendants raised their objections to the said act of cheating by M/s Lakha Painter and Polish Decorator in pursuance to a criminal conspiracy with M/s Sapra Paints Pvt. Ltd., to cheat M/s Macwins Global Pvt. Ltd. There exists no agreement between the plaintiff and the defendants to the effect that the plaintiff would carry out any job work at A-10 Meera Bagh, New Delhi at the rates given in the plaint and the allegations made in the plaint by the plaintiff regarding the same are false and denied by the defendants. The defendants denied that the rates which were agreed upon between the plaintiff and the defendants were reduced in writing in presence of Sh. Mohinder Sapra as alleged by the plaintiff and the plaintiff demanded the original paper from the defendants but the defendant never provided the same to the plaintiff. No such written agreement was made between the plaintiff and the defendants. The defendants stated that an oral agreement was made between M/s Macwins Global Pvt. Ltd., and M/s Lakha Painter and Polish Decorator and the said fact is clear from the documents filed along with the plaint. The defendants denied that Sh. Mohinder Sapra had given any certificate to the plaintiff and the certificate which is Annexure-A in the plaint is a bogus document and has been procured by the plaintiff after receipt of reply to the legal demand notice dated 29.11.2013 sent by M/s Macwins Global Pvt. Ltd., to M/s Lakha Painters and Polish Decorators and Rashtriya Krantikari Majdoor Union.
CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 5/ 28The defendants denied that the job work at the residence of the defendants i.e. A- 10, Meera Bagh, New Delhi was started on 26.10.2013 and completed on 17.09.2013. The defendants stated that the job work carried on by M/s Lakha Painters and Polish Decorators were checked by the Architect under whose supervision the work was carried on and the Architect was not satisfied with the job work as the material used by M/s Lakha Painters and Polish Decorators was not according to the specifications. The Architect raised objections and directed M/s Macwins Global Pvt. Ltd., to stop the job work as M/s Lakha Painters & Polish Decorators failed to adhere to the suggestions given by the Architect to do the job work according to the specification agreed between the parties. When M/s Macwins Global Pvt. Ltd., stalled the job work being carried on by M/s Lakha Pianters & Polish Decorators, some fictitious persons got an undated written threat served upon it through Rashtriya Krantikari Majdoor Union to demonstrate and burn effigy in front of the house and office of M/s Macwins Global Pvt. Ltd., by gathering thousands of labours. Due to this reason, M/s Macwins Global Pvt. Ltd., replied to and described the details for the loss suffered due to irresponsible handling of job work by M/s Lakha Painters and Polish Decorators. Thereafter the plaintiff who is neither the owner nor proprietor of M/s Lakha Painters and Polish Decorators made false claims and presented the present suit knowing fully well that he has no right, interest and locus standi to file the present suit against the defendants.
5. The defendants stated that M/s Sapra Paint Pvt. Ltd., connived with the plaintiff to cheat M/s Macwins Global Pvt. Ltd., as it supplied inferior/ sub-standard materials through M/s Lakha Painters & Polish Decorators to carry out the job work of paint and polish at A-10 , Meera Bagh, New Delhi. The concerned bills were raised by M/s Sapra Paint Pvt. Ltd. against M/s Macwins Global Pvt. Ltd., and the money was paid time to time as per demand. However, the copies of the bills were CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 6/ 28 illegally delivered by M/s Sapra Paint Pvt. Ltd. to M/s Lakha Painters and Polish Decorators in pursuance to a criminal conspiracy to cheat M/s Macwins Global Pvt. Ltd. The signatures on the concerned bills have been forged and fabricated to make a false claim of Rs. 2,29,000/- from the defendants and M/s Macwins Global Pvt. Ltd. The defendants denied that the plaintiff finished the job work upto the satisfaction of the defendants and stated that the Architect under whose supervision the paint and polish work was being carried on inspected the site in September 2013 and opined that M/s Lakha Painters and Polish decorators did not apply the specified material and therefore, the said Architect advised M/s Macwins Global Pvt. Ltd., to stop work and asked M/s Lakha Painters and Polish Decorators to correct the wrong doing and complete the job work by applying appropriate materials. When M/s Macwins Global Pvt. Ltd., asked M/s lakha Painters and Polish Decorators to apply/ use the agreed material as per the oral agreement between the parties in presence of M/s Sapra Paint Pvt. Ltd., the said M/s Lakha Painters and Polish Decorators stopped the job work in the middle and got a written threatening served upon M/s Macwins Global Pvt. Ltd. The bill of Rs. 5,71,085/- was never tendered by the plaintiff to the defendants and the said document / bill (Annexure-C) is a forged and fabricated document and the same was fabricated after receipt of reply dated 29.11.2013 sent by M/s Macwins Global Pvt. Ltd., to Rashtriya Krantikari Majdoor Union and M/s Lakha Painters and Polish Decorators. The defendants stated that since M/s Macwins Global Pvt. Ltd., had agreed with M/s Lakha painters and Polish Decorator to do the complete job work with material for Rs. 3,75,000/- only and it was agreed that M/s Macwins Global Pvt. Ltd., would pay the said sum to M/s Lakha Painters and Polish Decorators after the completion of work and after approval of the Architect. But in November 2013 when the Architect inspected the paint and polish work done by M/s Lakha Painters and Polish Decorator, he noticed that the contractor has not carried out the work CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 7/ 28 according to the procedure and did not use appropriate material as per specification agreed between the parties. Thus the Architect gave an opinion that the Contractor had not finished the work and he instructed M/s Macwins Global Pvt. Ltd., not to pay any further amount to the Contractor M/s Lakha Painters and Polish Decorators as the work was supposed to be redone. Hence, M/s Macwins Global Pvt. Ltd., through its Directors requested M/s Lakha Painters and Polish Decorators to explain the deficiency in service and demanded the return of Rs. 3,42,000/- which was paid to M/s Sapra Paints Pvt. Ltd and to M/s Lakha Painters and Polish Decorator towards purchase of material and for job work in pursuance to the contract. But instead of paying any heed to the said legitimate demand of M/s Macwins Global Pvt. Ltd., M/s Lakha Painters and Polish Decorators approached the Labour Union to illegally threaten it with a view to extort Rs. 2,29,085/- from M/s Macwins Global Pvt. Ltd., either by hook or crook. In reply to the legal notice dated 18.11.2013 issued on behalf of the plaintiff, M/s Macwins Global Pvt. Ltd., demanded Rs. 3,42,000/- alongwith damages and interest from M/s Lakha Painters and Polish Decorators which was never replied to by the plaintiff and thus M/s Lakha Painters and Polish Decorators admitted the claim of M/s Macwins Global Pvt. Ltd. and as such M/s Macwins Global Pvt. Ltd. is entitled to a refund of Rs. 3,42,000/- from M/s Lakha Painters and Polish Decorators on account of deficiency in service and causing wrongful loss of Rs 3,42,000/- to M/s Macwins Global Pvt. Ltd. The defendants stated that the job work was not done properly by the plaintiff and the paint work was to be redone resulting in loss to M/s Macwins Global Pvt. Ltd. Further, M/s Lakha Painters and Polish Decorators left the work in the middle and started resorting to illegal activities to extort money from M/s Macwins Global Pvt. Ltd. M/s Lakha Painters and Polish Decorators as well as M/s Sapra Paint Pvt. Ltd., connived with each other in raising a false claim against the defendants in the present case. Hence no question to make balance payment of Rs. 2,29,000/- to the CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 8/ 28 plaintiff arise at all. M/s Macwins Global Pvt. Ltd. had made payment of Rs 3,42,000/- for carrying on paint and polish job work with material at A-10, Meera Bagh, New Delhi and therefore the defendants in the capacity of directors of M/s Macwins Global Pvt. Ltd. are entitled to get refund of Rs. 3,42,000/- from M/s Lakha Painters and Polish Decorators as explained above. The plaintiff has filed the present suit to harass and humiliate the defendants and the allegations made by the plaintiff in the plaint against the defendants are false and fabricated. No cause of action arose in favour of the plaintiff against the defendants to file the present suit and hence, on the grounds raised in the W.S. by the defendants, the defendants prayed for dismissal of the plaint and prayed for passing of a decree for a sum of Rs. 3,42,000/- along with interest against the plaintiff.
Replication:-
6. Replication has also been filed in the present matter on behalf of the plaintiff wherein the plaintiff denied the case of the defendants as stated in the W.S. and reiterated and reaffirmed his own case as per the plaint. The plaintiff denied that M/s Macwins Global Pvt. Ltd., is a necessary party for adjudication of the present case or that the plaint does not disclose cause of action against the defendants or that the plaint has not been verified properly as alleged by the defendants in the W.S. The plaintiff specifically denied that the plaintiff had done the job work for M/s Macwins Global Pvt. Ltd., as alleged by the defendants in the W.S. The plaintiff stated that defendant no. 1 & 2 got the polish and paint work done in their personal capacity in their house at A-10, Meera Bagh, New Delhi. The plaintiff denied that he had connived with Sapra Paints Pvt. Ltd., or that any agreement for the job work was executed between the plaintiff and M/s Macwins Global Pvt. Ltd., as alleged by the defendants in the W.S. The plaintiff further denied that any oral agreement was made between M/s Macwins Global Pvt. Ltd. and M/s Lakha Painters and Polish CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 9/ 28 Decorators and stated that a written agreement was executed between M/s Macwins Global Pvt. Ltd. and M/s Lakha Painters and Polish Decorators in presence of Mohinder Sapra of Sapra Paints Pvt. Ltd. The legal notice dated 18.11.2013 issued on behalf of the plaintiff shows that polish job work was done in the residence of the defendants and office of M/s Macwins Global Pvt. Ltd is in Bawana Industrial area, New Delhi. After completion of entire work, one Technical person had checked the work done by the plaintiff and showed his satisfaction. The plaintiff denied that M/s Sapra Paint Pvt. Ltd. connived with the plaintiff and supplied inferior/ sub-standard material to carry out the job work done for the defendants. The plaintiff specifically denied that the material used for the said job work was of inferior quality or sub-standard as alleged by the defendants in the W.S. The plaintiff specially denied that M/s Macwins Global Pvt. Ltd., is entitled for refund of Rs. 3,42,000/- from the plaintiff as alleged in the W.S. The defendants have falsely claimed the said amount from the plaintiff and no court fees has been affixed for recovery of the said amount in the W.S. Rest of the averments made by the plaintiff in the replication are not being repeated herein for the sake of brevity.
To sum up suffice is to say that the plaintiff has prayed for passing of a decree in his favour as per the plaint.
ISSUES:
7. Out of the pleadings of the parties, the following issues were framed by the Court for adjudication in the present matter vide order dated 02.01.2015:-
1. Whether the present suit suffered from non -joinder of necessary parties i.e. M/s Macwins Global Pvt. Ltd ? (OPD)
2. Whether the present plaint is not properly verified as per law, if so consequence thereof ? (OPD)
3. Whether the plaintiff has no locus standi to file the present suit ? (OPD) CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 10/ 28
4. Whether the plaintiff is entitled to a decree for recovery of money for Rs. 2,29,000/- ? (OPP)
5. Whether the plaintiff is entitled for payment of interest @ 18% p.a. till its realization ? (OPP)
6. Relief.
Plaintiff Evidence:-
8. To prove the case of the plaintiff against the defendants, the plaintiff got examined one witness i.e. PW-1 Jagram (Plaintiff himself), who tendered his evidence by way of affidavit which is Ex. PW-1/A on court record. In his evidence by way of affidavit PW-1 reiterated and reaffirmed his case as per plaint. In addition PW-1 relied upon the following documents in support of his case.
i. Photocopy of rate list is marked as Mark-A. ii. Photocopies of the concerned bills are marked as Mark-B (Colly.).
iii. Photocopy of bill dated 17.09.2013 is marked as Mark-C. iv. Photocopy of legal notice is marked as Mark-D. v. Photocopy of postal receipt for the notice sent to the defendants is marked as Mark-E. vi. Photocopy of complaint dated 01.12.2013 made to P.S. Miyawali is marked as Mark-F. Vii. Photocopy of complaint dated 01.12.2013 made to P.S. Paschim Vihar is marked as Mark-I. The said witness PW-1 (Jagram) was duly cross examined by the counsel for the defendant and after conclusion of his cross examination, the witness was discharged. No other witness has been examined on behalf of the plaintiff in support of his case and vide order dated 11.03.2020 passed by the Court plaintiff CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 11/ 28 evidence was closed in the present matter.
Defendants' Evidence:-
9. To disprove the case of the plaintiff, the defendants got examined one witness i.e. DW-1 Sh. Harish Kumar Malhotra who is the SPA Holder of the defendants. The said witness tendered his evidence by way of affidavit which is Ex.
DW-1/A on Court record. In his evidence by way of affidavit, DW-1 reiterated and reaffirmed the case of the defendants as stated in the W.S on Oath. In his testimony DW-1 relied upon the following documents;
1. Original SPA dated 27.09.2022 in favour of DW-1 is Ex. DW-1/1 (objected to by counsel for the plaintiff as the document is not properly attested and stamped).
2. Photocopy of reply of M/s Macwins Global Pvt. Ltd., is marked as Mark-DW-1 (Objected to by the plaintiff).
The said witness DW-1 was duly cross examined by counsel for the plaintiff and after conclusion of cross examination of DW-1 Sh. Harish Kr. Malhotra he was discharged. No other witness has been examined on behalf of the defendants in support of their case in the present case and on separate statement of DW-1, DE was closed on 07.03.2023.
Final Arguments:-
10. Thereafter final arguments were addressed in the present matter by the Counsels for the parties. During final arguments counsel for the plaintiff prayed for decree of the present suit against the defendants on the basis of testimony of PW-1 Jagram as well as documents relied upon by him during his examination in chief.
On the other hand, counsel for the defendants submitted that the plaintiff has miserably failed to prove his case against the defendants and it is the defendants CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 12/ 28 who are entitled for refund of Rs. 3,42,000/- from the plaintiff as mentioned in the W.S.
11. Submissions heard. Record perused. Judgments filed by the parties also gone through.
12. Before proceeding further in the present case, it is desirable to firstly deal with the objections raised by the Counsel for the Plaintiff qua the documents tendered by DW-1 Harish Kumar Malhotra in his examination in chief. Counsel for the Plaintiff has objected to the original SPA dated 27.09.22 which is Ex. DW-1/1 on court record on the ground that the said document is not properly attested and stamped. A perusal of the said document shows that vide SPA dated 17.08.22, Sh. Kapil Malhotra (defendant no.1) appointed Sh. Harish Kumar Malhotra (father) as his attorney in the present case. The said SPA was executed on 17.08.22 and bears the signatures of both the executant and the acceptor and is duly notarized by the Notary public at Delhi and a stamp duty of Rs 100 (One Hundred only) was paid for the said SPA on 27.09.22. As per section 2(21) of the Indian Stamp Act 1899 a "Power of attorney" includes any instrument (not chargeable with a fee under the law relating to court fees for the time being in force) empowering a specified person to act for and in the name of the person executing it. As per schedule 1, Article 48 of the Stamp Act 1899 relating to "Stamp Duty on Instruments", Stamp Duty payable on a Power of Attorney- (b) when required in suits or proceedings under the Presidency Small Cause Courts Act 1882 (Eight Annas), (c) when authorizing one person or more to act in a single transaction other than the case mentioned in clause (a) (One rupee) and (g) in any other case (one rupee for each person authorized). Thus in view of the said provisions/clauses, the stamp duty of Rs 100/- (One Hundred only) paid on the SPA dated 17.08.22 seems CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 13/ 28 to be adequate/sufficient and the document seems to be properly executed by the parties and attested by the Notary Public, Govt. of NCT of Delhi and the objections raised by the Counsel for the Plaintiff regarding the said document "not properly attested and stamped" seems to be not maintainable and therefore rejected.
Another objection raised by the Counsel for the Plaintiff is to the photocopy of reply of M/s Macwins Global Pvt. Ltd. which is marked as Mark- DW-1 on court record. The said reply dated 29.11.2013 was issued on behalf of M/s Macwins Global Pvt. Ltd through its directors Sh. Kapil Malhotra & Suman Malhotra to M/s Rashtriya Krantikari Majdoor Union and M/s Lakha Painters & Polish Decorators whereby they were called upon to withdraw the notice dated 18.11.2013 issued to defendant no.1 and 2 and for refund Rs 3,42,000/- from M/s Lakha Painters & Polish Decorators. Only a photocopy of the said document/reply dated 29.11.2013 alongwith photocopy of postal receipts has been placed on record by DW-1 in support of the case of the defendants. In his cross examination, PW-1 (Jagram) specifically stated that he had sent the legal notice to the defendants dated 18.11.2013 and he had sent this legal notice to Sh. Kapil Malhotra & Ms. Suman Malhotra and since reply dated 29.11.2013 was issued on behalf of the said defendants to M/s Rashtriya Krantikari Majdoor Union and M/s Lakha Painters and Polish Decorators , naturally the original of the said reply may not be available with the defendants and as per section 65 (c), secondary evidence may be given when the original has been destroyed or lost or when the party offering evidence of its contents for any other reason not arising from his own default or neglect, produce it in reasonable time. Hence, the Plaintiff being recipient/addressee of the said reply dated 29.11.2013 cannot deny the same and the defendants cannot be expected to produce the original of the same, as the original might have been sent to M/s Rashtriya Krantikari Majdoor Union and M/s Lakha Painters and Polish Decorators and photocopy of the same might have been retained by the defendant for future CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 14/ 28 course of action. Thus, due to these reasons, this Court finds no merit in the objection raised by the Counsel for the Plaintiff on the admissibility of the said document Mark DW-1 on court record and the same is accordingly rejected.
Issue no.1: Whether the present suit suffered from non-joinder of necessary parties i.e. M/s Macwins Global Pvt. Ltd? (OPD)
13. The onus to prove this issue is on the defendants. In their W.S the defendants have raised a preliminary objection that M/s Macwins Global Pvt. Ltd is a necessary party in the present suit and hence the suit is liable to be rejected for non-impleading the said necessary party in the present suit. Further M/s Sapra Paints Pvt. Ltd. introduced M/s Lakha Painters & Polish Decorators to give contract to carry out Paint & Polish Work for M/s Macwins Global Pvt. Ltd at A-10, Meera Bagh, New Delhi of which the defendant no.1 and 2 are the directors. M/s Lakha Painters & Polish Decorators had specifically agreed orally with M/s Macwins Global Pvt. Ltd. to carry out the job work with material at the rates specified. However, in his replication the Plaintiff has specifically denied that M/s Macwins Global Pvt. Ltd. is a necessary party in the present case or that the Plaintiff had done the work for M/s Macwins Global Pvt. Ltd and stated that both defendant no.1 and 2 got polish and paint work done in their personal capacity in their house at A- 10, Meera Bagh, New Delhi. In his cross examination , PW-1 (Jag Ram) stated that it is correct that he had completed the works of M/s Macwins Global Pvt. Ltd. and that he had sent the notice dated 18.11.2013 (Mark D) to M/s Macwins Global Pvt. Ltd and he has not written any communication to the defendants in relation to any of the outstanding. Further in his cross examination DW-1 specifically stated that during the year 2012-2014, the defendant no.1 and 2 were residing at A-10, Meera Bagh, New Delhi and the said property is in the name of his wife Suman Malhotra.
CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 15/ 28The entire transaction was based on an oral agreement. Further copies of the bills which are Mark-B (Colly) on court record and regarding which no objections have been raised by the defendants at the time of tendering the said bills and in their WS the defendants have admitted the bills from pg no. 10 to 37 were raised by M/s Sapra Paints Pvt. Ltd. to M/s Macwins Global Pvt. Ltd and the money against the said bills were paid from time to time as per demand. A perusal of the said bills reveal that the said bills were issued by M/s Sapra Paints Pvt. Ltd in the name of defendant no.1 and 2 at A-10, Meera Bagh, New Delhi and the said bills show that the defendants were acting in their personal capacity and not as directors of M/s Macwins Global Pvt. Ltd. and as per the statement made in cross examination by DW-1 , the said property is in the name of his wife Suman Malhotra. Thus no oral contract between the plaintiff and M/s Macwins Gobal Pvt. Ltd. as suggested by the defendants can be assumed in the facts and circumstances of the present case and the defendants cannot be allowed to allege that M/s Macwins Global Pvt. Ltd. is a necessary party for the adjudication of the present suit. Hence, due to these reasons this issue is decided against the defendants.
Issue no.2: Whether the present plaint is not properly verified as per law, if so consequence, thereof? (OPD)
14. The onus to prove this issue is also on the defendants. In preliminary objection no.8 in the WS , the defendants stated that the plaint has not been properly verified according to law and therefore the suit is liable to be rejected. On the contrary in the replication, the Plaintiff has denied that the plaint has not been properly verified as alleged by the defendants in their WS. No specific evidence has been led by DW-1 to prove this issue, no averment regarding the said issue has been made by DW-1 in his evidence by way of affidavit which is Ex. DW-1/A on CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 16/ 28 court record. Further no suggestion were put to PW-1 on behalf of the defendant with regard to this issue. From the perusal of the plaint, the plaint seems to properly verified alongwith relevant paras in terms of order VI rule 15 CPC and as the defendants have failed to lead any evidence or give any suggestion with regard to the said issue during cross examination of PW-1, this issue is accordingly decided against the defendants.
Issue no.3: Whether the Plaintiff has no locus -standi to file the present suit?
(OPD)
15. The onus to prove this issue is also on the defendants. In their W.S in para no. 9, the defendants have stated that the Plaintiff has no locus-standi to claim, verify and present the suit as the defendants never agreed to get paint and polish work done with the plaintiff in their individual capacities and therefore the suit is liable to be rejected. In the replication, the plaintiff specifically denied the said averments made by the defendants. While dealing with issue no.1, this Court has already held that copy of bills (Mark-B)(Colly) from pg no.10 to 37 show that the defendants were acting in their personal capacity and not as directors of M/s Macwins Global Pvt. Ltd. and as per the statement made in cross examination by DW-1 , the property bearing no. A-10, Meera Bagh, New Delhi is in the name of his wife Suman Malhotra and defendant no.1 and 2 were residing at the said address i.e A-10, Meera Bagh, New Delhi during the year 2012 & 2014. Thus no oral contract between the plaintiff and M/s Macwins Gobal Pvt. Ltd. as suggested by the defendants can be assumed in the facts and circumstances of the present case and the defendants cannot be allowed to allege that M/s Macwins Global Pvt. Ltd. is a necessary party for the adjudication of the present suit. The present suit has been filed by the Plaintiff (Jag Ram) being the proprietor of M/s Lakha Painter & Polish Decorators for the outstanding amount of Rs 2,29,000/- for the paint and polish CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 17/ 28 work done at the aforesaid address of the defendants in the year 2013 and as per the averments made by the Plaintiff in the plaint, it is held that the Plaintiff has locus-standi to file the present suit against the defendants as well as cause of action. This issue is decided against the defendants accordingly.
Issue no.4: Whether the Plaintiff is entitled to a decree for recovery of money for Rs 2,29,000/-? (OPP) Issue no.5: Whether the Plaintiff is entitled for payment of interest @ 18 % per annum till its realization? (OPP)
16. Issue nos. 4 & 5 are being taken up together as they are inter-connected and the onus to prove these issues is on the Plaintiff.
To prove his case against the defendants, the plaintiff got examined one witness i.e. PW-1 Jagram who is the proprietor of M/s Lakha Painters and Polish Decorators. The said witness tendered his evidence by way of affidavit which is Ex. PW-1/A on Court record. In his evidence by way of affidavit i.e. Ex. PW-1/A, PW-1 Jagram stated that in the month of February 2013, defendant nos. 1 & 2 requested to Mohinder Sapra of Sapra Paints Pvt. Ltd. for meeting with an expert painter as the defendants polish work was previously done by some other painter but his quality was so poor that the defendants were not satisfied with his work. On their request the plaintiff was sent to the defendants for seeing the work and thereafter a meeting between the plaintiff and the defendants was held at the shop of M/s Sapra Paints where the material rates were finalized after 2-3 meetings and a lot of discussion and the agreed rates were reduced to writing in presence of Sh. Mohinder Sapra before starting the work. The original paper upon which the rates were agreed upon were kept by the defendant no. 1 (Kapil Malhotra) and many a times the plaintiff asked for copy of the same, but the defendants never provided CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 18/ 28 the same to the plaintiff. The job work was started at the residence of the defendants i.e. A-10 , Meera Bagh, New Delhi on 26.02.2013 and completed on 17.09.2013 and during the execution of the said work, the painters as mentioned in the affidavit, executed the work and the defendants checked the work and appreciated the quality of work. During the course of working the plaintiff purchased the material used in the said job work from M/s Sapra Paints Pvt. Ltd. and the defendants made payment of Rs. 1,90,000/- to M/s Sapra Paints Pvt. Ltd. for purchase of the material from 26.02.2013 to 17.09.2013. The said payment of Rs. 1,90,000/- was to be adjusted to the final payment to be paid by the defendants to the plaintiff and during the course of working, the defendant also made payment of Rs. 1,52,000/- to the plaintiff towards labour account. In the month of September 2013 the plaintiff finished the job work upto the satisfaction of the defendants and the defendants also called a technical person who checked the work and appreciated the quality of work and only then the plaintiff calculated measurement of work finally completed. On 17.09.2013, the plaintiff prepared final bill of Rs. 5,71,085/- in total as per the agreed rates and apprised the defendant about the said bills and after deducting the payment made by the defendants i.e. Rs. 1,52,000/- and Rs. 1,90,000/- from Rs. 5,71,085/- the defendants are now liable to pay Rs. 2,29,085/- to the plaintiff but the defendants avoided to make the said payment to the plaintiff on one pretext or the other and the defendants did not pay a single penny out of the balance amount of Rs. 2,29,000/- to the plaintiff and the defendant no. 1 straightaway refused to give the balance payment to the plaintiff and rather threatened him to implicate him in some false case. On 18.11.2013, the plaintiff sent a notice through Speed post by Labour Union to the defendants demanding therein the balance payment of Rs. 2,29,000/-. After sending the said notice, the defendant no. 1 got annoyed and on 29.11.2013, the defendant extended threats to the plaintiff to implicate him in false cases and pressurized the CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 19/ 28 plaintiff to withdraw the said notice. For this reason the plaintiff lodged a complaint on 30.11.2013 with SHO, P.S. Miyawali Nagar and Tilak Nagar.
17. Further, in support of his case, the PW-1 has relied upon documentary evidence which is Mark-A to Mark-I on Court record. Photocopy of rate list dated 01.12.2013 / Certificate issued by Sh. Mohinder Sapra of Sapra Paints Pvt. Ltd. regarding the rate of material agreed between the plaintiff and the defendants is Mark-A and in the said document it has been certified by Sh. Mohinder Spara that the rate were finalized in the presence of Mohinder Sapra after 2-3 rounds of meeting at the site and the defendant no. 1 wanted a visit of technical person of some company for his satisfaction and accordingly, representative of one of the leading companies visited the site and was satisfied with the quality of work done. After the job is over in all respects, the defendant no. 1 has withheld the balance amount due to the plaintiff. Copy of the bills issued in favour of defendant no. 1 & 2 for material purchased from M/s Sapra Paint Pvt. Ltd., between the period from 26.02.2013 till 27.08.2013 from page no. 10 to 37 are Mark-B (Colly.). Further, photocopy of final Bill dated 17.09.2013 regarding the final amount prepared by the plaintiff of Rs. 5,71,085/- for the work done for the defendants is Mark-C. Photocopy of notice issued to defendant nos. 1 & 2 by the Secretary, Rashtriya Krantikari Majdoor Union regarding non payment of the balance amount of Rs. 2,29,085/- to the plaintiff is Mark-D. Photocopy of postal receipt dated 18.11.2013 showing issuance of the said notice to the defendants on behalf of the plaintiff is Mark-E. Photocopy of complaint dated 01.12.2013 made by the plaintiff to SHO, P.S. Miyawali Nagar regarding non payment of the balance amount of Rs. 2,29,085/- by the defendants to the plaintiff is Mark-F. Further, photocopy of complaint dated 01.12.2013 made by the plaintiff to SHO, P.S. Paschim Vihar regarding non payment of the said amount by the defendants to the plaintiff is Mark-I. CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 20/ 28
18. It may be noted that only photocopies of the said documents Mark-A to Mark-I have been produced by the plaintiff in support of his case and the reason given for the non production of the original documents by the plaintiff is that he had issued the notice dated 25.05.2019 to his previous counsel Sh. Kuldeep Gola for production of the said original documents as the plaintiff had handed over the said original documents to his counsel for filing the same in the present suit but he had filed the photocopies of the same and the originals were retained by him and despite issuance of the said legal notice to the counsel, he has not produced the said documents in original before the Court.
19. In this regard the plaintiff has also relied upon the judgment titled as M. Chandra Vs. M. Thangmuthu & Anr. AIR 2011 S.C. 146= 2010 AIR SCW 6362 (Civil Appeal No. 7284/2008) decided on 07.09.2010 ; wherein it was observed that:-
"It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in other form, the secondary evidence must be authenticated by foundational evidence that the alleged copy is infact a true copy of the original. It should be emphasised that the exception to the rules requiring primary evidence are designed to provide relief in a case where a party is a genuinely unable to produce the original through no fault of that party."
Further, in the case of Dhanpat Vs. Sheo Ram (deceased through LRS) (Civil Appeal No. 1960/2020) decided on 19.03.2020 decided by the Hon'ble Supreme Court of India; it was observed:
CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 21/ 28"There is no requirement that an application is required to be filed in terms of Sec. 65 -C of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed."
20. Further, in the present case during the examination in chief of PW-1 (Jag Ram) no objections have been raised on behalf of the defendants regarding the documents to Mark-A to Mark-I tendered by the plaintiff in his evidence and in terms of Sec. 65-C of the Indian Evidence Act which provides that when the original has been destroyed or lost or when the party offering evidence of its contents cannot for any other reason arising from his own default or neglect, produce it in reasonable time, secondary evidence may be given of the existence, condition or contents of a document. Copy of the notice dated 25.05.2019 issued on behalf of the plaintiff to his earlier counsel Sh. Kuldeep Gola shows that the plaintiff had given original of the said documents to his earlier counsel and he filed photocopies of the same in the present case and retained the original with him and despite issuing the said notice the original documents were not produced by the counsel for the plaintiff before the Court. Further, as the defendants have failed to raise any objection regarding tendering of photocopies Mark-A to Mark-I on Court record by the plaintiff and no suggestions were put to the plaintiff/ PW-1 during his cross examination regarding the said documents by the defendants, secondary evidence / photocopies of the said documents seem to be admissible and may be read in evidence on behalf of the plaintiff in support of his case.
21. In his cross examination PW-1 stated that he had gone to shop of Sapra Paints and Sh. Mohinder Sapra introduced him to the defendants. He had done the CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 22/ 28 work for the defendants and he did not have any written contract between the plaintiff and the defendants and the same is with the defendants. He had requested to the defendants to provide him with the copy of the said contract. He had gone to their home for collecting the said contract. He further stated as correct that Sh Mohinder Sapra of M/s Sapra Paint Ltd. had issued the Certificate in favour of the plaintiff which is Mark-A on Court record and he had sent a legal notice to the defendants dated 18.11.2013 and he had sent this legal notice to defendant no. 1 & 2. PW-1 stated that M/s Macwins Gobal Pvt. Ltd. is the company of the defendants and it is correct that he had completed the works of M/s Macwins Gobal Pvt. Ltd. and that he sent the notice to M/s Macwins Gobal Pvt. Ltd. He stated that he has not written any communication to the defendants in relation to any of the outstanding and he has not made M/s Sapra Paints Pvt. Ltd. as a co-defendant in the present suit. He again said that he had sent the final bill which is Mark-C on Court record to the defendants and he had given the same to the defendants by hand. There is no receiving which he had taken from the defendants. PW-1 denied the suggestion that Mark-C is a forged and fabricated document. No other material facts has been deposed to by PW-1 in the present case.
22. To disprove the case of the plaintiff, the defendant examined one witness i.e. DW-1 namely Sh. Harish Kumar Malhotra who is the SPA Holder of defendant no 1. The said witness tendered his evidence by way of affidavit which is Ex. DW-1/A on Court record. In his evidence by way of affidavit, DW-1 stated that M/s Lakha Painters and Polish Decorators were introduced to M/s Macwins Gobal Pvt. Ltd. by M/s Sapra Paints Pvt. Ltd. to remove existing malamine and to redo the paint job at premises No. A-10, Meera Bagh, New Delhi. It was orally agreed by M/s Lakha Painters and Polish Decorators that they would carry out the said job work at the rate mentioned in the W.S. The job work done by M/s Lakha Painters and Polish CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 23/ 28 Decorators was of sub standard quality. The material used for the said job work was purchased from M/s Sapra Paint Pvt. Ltd and M/s Lakha Painters and Polish Decorators had connived with M/s Sapra Paint Pvt. Ltd. to cheat M/s Macwins Gobal Pvt. Ltd. by presenting false bills and certificate. M/s Lakha Painters and Polish Decorators stopped the job work in the middle and left the job work incomplete due to which M/s Macwins Gobal Pvt. Ltd. suffered huge losses. As per the oral agreement M/s Lakha Painters and Polish Decorators was entitled to receive Rs. 3,75,000/- only when the job work was completed to the satisfaction of M/s Macwins Gobal Pvt. Ltd. Since M/s Lakha Painters and Polish Decorators left the job work incomplete, M/s Macwins Gobal Pvt. Ltd. had to get the said work completed through a third party for which M/s Macwins Gobal Pvt. Ltd. incurred additional expenses and as the job work done by M/s Lakha Painters and Polish Decorators was of poor quality, the entire work had to be redone by a third party contractor. Hence, M/s Lakha Painters and Polish Decorators is liable to refund Rs. 3,42,000/- alongwith interest to M/s Macwins Gobal Pvt. Ltd.
23. In support of case of the defendants, DW-1 relied upon two documents i.e. original SPA dated 27.09.2022 which is Ex. DW-1/1 on court record and photocopy of reply sent by M/s Macwins Gobal Pvt. Ltd. as Mark-DW-1.
24. In his cross examination, DW-1 Harish Kr. Malhotra stated that during the year 2012 and 2014, the defendant no. 1 & 2 were residing at the address given in the memo of parties i.e. A-10, Meera Bagh New Delhi. The said property is in the name of his wife Suman Malhotra. He denied the suggestion that the plaintiff had done the paint work at the aforesaid address as per the applicable standard or that any written agreement was executed between the plaintiff and the defendants. The entire transaction was based on an oral agreement. The plaintiff had worked in the CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 24/ 28 aforesaid property for approximately 15-20 days. He got done the remaining work of painting in the said property through some other contractor/ local painter whose name was Ravinder. He stated that he did not have any bills for the payment made to the said Ravinder for completion of remaining work in the said property. He denied the suggestion that the plaintiff had done good quality work in the property as per applicable standard and stated that the plaintiff had left the work incomplete. He denied the suggestion that he had not got the remaining work complete from some other painter or that the plaintiff is not liable to pay any amount to him and instead he is liable to pay the suit amount of the plaintiff. He stated that his son Kapil Malhtra, his wife, DW-1 were the Directors of M/s Macwins Gobal Pvt. Ltd. at the relevant time. No other material fact has been deposed to by DW-1 in the present case.
25. After appreciation of the testimony of PW-1 Jagram and DW-1 Harish Kr. Malhotra as well as documents relied upon by them in their evidence, this Court is of the view that the plaintiff has been able to prove his case against the defendants on the basis of preponderance of probailities, the documents filed on behalf of the plaintiff on record i.e. Mark-A to Mark-I to support the case of the plaintiff and as held earlier by this Court in the preceding paragraphs that the photocopies of the said documents are admissible in suppport of the case of the plaintiff. Mark-A i.e. Certificate dated 01.12.2013 issued by Sh. Mohinder Sapra of M/s Sapra Paint Pvt Ltd. shows that the defendants had engaged the plaintiff for paint and polish work at the rate specified in the said Certificate and the plaintiff had done the work to the satisfaction of the defendants and when the job was complete in all respects, defendant no. 1 withheld the balance amount due to the plaintiff. Mark-B (Colly.) from page no. 10-37 are photocopies of the bills issued in the name of the defendants no. 1 & 2 for purcahse of material from M/s Sapra Paint Pvt Ltd.
CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 25/ 28between February 2013 till August 2013. Mark-C shows that after completion of work, the plaintiff had raised a bill of Rs. 5,71,085/- against the defendants and in his cross examination, the plaintiff has specially stated that he had sent Mark-C to the defendants and given the same to the defendants by hand. Due to non payment of the balance amount of Rs. 2,29,085/- the plaintiff got issued a notice through Rashtriya Krantikari Majdoor Union to the defendants for payment of the balance amount of Rs. 2,29,085/- on 18.11.2013 and in response to the said legal notice on 29.11.2013, the defendants got issued a reply to M/s Rashtriya Krantikari Majdoor Union and M/s Lakha Painters and Polish Decorators, wherein the defendants denied the liability of Rs. 2,29,085/- to the plaintfif and instead call upon the plaintiff to pay Rs. 3,42,000/- as damages alongwith interest to the defendants.
26. The whole grievance of the defendants against the plaintiff is that M/s Lakha Painters and Polish Decorators used sub standard material for the job work and stopped the job work in the middle/ incomplete for which the defendants suffered huge losses and the defendants got completed the work from third party incurring additional expenses. However, no evidence in support of the same has been filed on behalf of the defendants and the record shows that before issuance of notice on behalf of the plaintiff to the defendants regarding payment of balance amount of Rs. 2,29,085/- on 18.11.2013, the defendants never raised the said issues formally or informally. In his cross examination, DW-1 specifically stated that he did not have any bills for the payment made to the other painter for completion of remaining work in the property A-10, Meera Bagh, New Delhi and since the said property was in the name of his wife Suman Malhotra (Defendant no. 2) and the bills which are Mark-B (Colly.) from page no 10 to 37 issued in the name of defendants no. 1 & 2, the defendants cannot now take the plea that there was an oral contract between the plaintiff and M/s Macwins Gobal Pvt. Ltd. The evidence shows that the defendants CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 26/ 28 got work done at their residential address ie. A-10, Meera bagh, New Delhi and were acting in their individual capacity. Further, no evidence has been led on behalf of the defendants regarding deficiency in service or use of sub standard material by the plaintiff while carrying out the paint work at the said address of the defendants and the Certificate dated 01.12.2013 issued by Sh. Mohinder Sapra which is Mark- A on Court record shows that when the job was over in all respects, the defendant no. 1 withheld the balance amount due. The plaintiff has entered into the witness box and has relied upon the documents Mark-A to Mark-I in support of his case. Further, no objections were raised on behalf of the defendants at the time of marking of the said documents and in view of the judgments relied upon by the plaintiff in the present case which have been discussed above, the said documents seem to be admissible in support of the case of the plaintiff and thus collectively prove the case of the plaintiff on the basis of preponderance of probabilities.
27. On the other hand, the defendants no. 1 & 2 have neither entered the witness box nor filed any cogent and material evidence to prove deficiency in service by the plaintiff while carrying out the job of paint and polish work at the residence of the defendants which resulted in monetary loss to the defendants as alleged by the defendants in their W.S. Thus, there seems to be no justification on the part of the defendants to withheld the balance amount due to the plaintiff in the facts and circumstances of the present case and it may also be noted that the plaintiff is a labourer who is seeking the balance amount after completion of job work from the defendants. The defendants are better placed and well off in comparison to the plaintiff and the denial of the balance amount of Rs. 2,29,000/- on the part of the defendants seems to be unjustifiable and unjust enrichment by the defendants at the cost of the plaintiff in the facts & circumstances of the present case.
CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 27/ 2828. Hence, this Court is of the view that the plaintiff has been able to prove his case before this court on the basis of preponderance of probabilities as well as on the documents Mark-A to Mark-I filed on Court record and accordingly, this Court deems fit to decree the suit of the plaintiff against the defendants and the plaintiff is held entitled to recover a sum of Rs. 2,29,000/- (Rupees Two Lakh Twenty Nine Thousand only) from the defendants as prayed for in the plaint. Further, plaintiff is held entitled to recover pendente lite interest over and above the said amount @ 9% p.a. from the date of filing of the present suit till date of decree and future interest @ 6% p.a. from the date of decree till realization of amount from the defendants. In the interest of justice, the plaintiff is also held entitled to recover costs of the suit from the defendants as per rules.
29. With these observations/ directions, the suit of the plaintiff is decreed.
30. Let decree sheet be prepared accordingly in favour of the plaintiff and against the defendants in the aforesaid terms.
31. No further action is required.
32. File be consigned to Record Room after due compliance.
Digitally
signed by
Announced in the open Court FAHAD
FAHAD
UDDIN
on 27th October, 2023. UDDIN Date:
2023.11.09
14:30:42
+0530
(This Judgment contains 28 pages)
(FAHAD UDDIN)
Commercial Civil Judge,
West District, Delhi.
CS No. 610047/16 Lakha Painter & Police Decorator Vs. Kapil Malhotra & Anr. Page No. 28/ 28