Delhi District Court
Aman Suri vs Perfect Tensile Structures on 15 September, 2023
IN THE COURT OF SHRI VINOD KUMAR
GAUTAM:ADDITIONAL SESSIONS JUDGE (SC-
POCSO) SOUTH-WEST DISTRICT, DWARKA
COURTS, NEW DELHI
CS No. : 10673/16
CNR No. :DLWT01-001542-2014
1. Sh. Aman Suri
S/o Sh. Joginder Pal Suri
R/o F-6/1, Vasant Vihar,
Delhi. ......Plaintiff
Versus
1. Perfect Tensile Structures,
Ankit Cottage,
All at 2623/1, Shadipur, Main Bazar,
Opp. West Patel Nagar,
New Delhi-110008.
Through its partners Sh. Ajay Sharma.
All also at:-
Aggarwal Tower.
Office No. 302, 3rd Floor, CU Block,
Pitampura, New Delhi-34.
2. Sh. Ajay Khanna.
S/o Sh. Sharvan Khanna,
Partner of Perfect Tensile Structures
Suit No. 10673/16 Aman Puri Vs. Perfect Tensile Structure Page no. 1/10
R/o IP-29D, Pitampura,
New Delhi-110028.
3. Sh. Dinesh Jain,
S/o Sh. Nem Chand Jain,
Partner of Perfect Tensile Structures
R/o 8, Veer Nagar,
Jain Colony, Near GTK Road,
R.P. Bagh, New Delhi.
4. Sh. Ankit Bhatia,
S/o Sh. Tajinder Kumar Bhatia,
Partner of Perfect Tensile Structures
R/o 2623/1, Shadipur Main Bazar,
Opposite West Patel Nagar,
New Delhi-110008 ......Defendants
Date of institution of case : 21.05.2014
Judgment reserved on : 26.05.2023
Judgment passed on : 15.09.2023
(This judgment is being pronounced by the undersigned
after his transfer in terms of order No.35/G
I/Gaz.IA/DHC/2023 as the case was listed for
pronouncement of the judgment before the transfer court).
JUDGMENT
15.09.2023
1. The present suit has been filed by the plaintiff for recovery of Rs.11,02,250/- along with pendente-lite and Suit No. 10673/16 Aman Puri Vs. Perfect Tensile Structure Page no. 2/10 future interest and declaration.
2. The brief facts of the case as averred by the plaintiff is that he is the joint owner and in joint possession of the newly constructed house at property bearing no. F-6/1, Vasant Vihar, New Delhi. In the last week of May, 2012, the defendants contacted the plaintiff for installation of project of roof kite (Fabric Ferari) and car parking and the plaintiff accepted the offer of the defendants through email dated 11.06.2012 which was to be carried out by the defendants @ Rs.375/- per sq. ft. and car parking @ Rs.175/- per sq. ft. The plaintiff also paid Rs.2,00,000/- through two cheques to the defendants. It is submitted that the defendants has undertaken to execute the work with best materials within time and also represented that his fabric will be hundred percent waterproof, fire retardant and guaranteed up to 10 years. It is further submitted that initially, the plaintiff was reluctant to grant the contract to the defendants, but on repeated assurances of the defendants, the plaintiff agreed to place an order for the said project. It is further submitted that the defendants have not installed the project within time and as per the design, purchase order and requirement of the plaintiff and has installed defective roof kite.
3. It is further submitted that within month of installation of the said project canopy has completely collapsed. Thereafter the plaintiff informed the defendants about the same but they gave unsatisfactory reply and postponed the Suit No. 10673/16 Aman Puri Vs. Perfect Tensile Structure Page no. 3/10 matter on one pretext or the other. The plaintiff also contacted the expert and conclusion was reached that the roof kite was collapsed due to defective workmanship and negligent acts of the defendants which resulted in damage to the waterproofing as well as stone of the roof of the house. It is further submitted that the defendants neither have expertise in this field and they infact outsourced the said project without the consent of the plaintiff.
4. It is further submitted that the estimate of the cost for repair/renovation is Rs.2,88,000/- for waterproofing and Rs.2,50,000/- for stones and thus the defendants are liable to pay a sum of Rs.5,38,000/- to the plaintiff. It is further submitted that the defendants are also liable to compensate the plaintiff for the breach of contract and for harassment for which the plaintiff has claimed the amount of Rs.3 lakhs from the defendants. It is further submitted that the defendants sent the false and frivolous bill through email dated 1.10.2012 showing total amount of Rs.3,70,150 /- and a sum of Rs.1,95,000/-as balance due against the plaintiff. It is further submitted that the defendants are also liable to return the sum of Rs.2 lakhs along with interest at the rate of 24% per annum to the plaintiff. The plaintiff also sent the legal notice dated 13.1.2014 to the defendants in this regard but to no avail. Hence the plaintiff has filed the present suit.
5. The defendant no.1 has filed the written statement and has taken various preliminary objections such as the Suit No. 10673/16 Aman Puri Vs. Perfect Tensile Structure Page no. 4/10 present suit is without any cause of action; that the plaintiff has concealed the material facts; that the cheques were issued by the plaintiff in the name of 'Delhi Tirpal' and the defendant is nowhere related with the said firm.
6. On merits, it is submitted that the defendants despite the plaintiffs failure to perform their part of obligation of paying 60% advance payment has installed a roof kite structure, tensile Ferrari 502 Fabric as well as car parking structure tensile on the platform already constructed by the plaintiff at his premises. The defendant made the request to the plaintiff through emails dated 27.08.2012 and 27.08.2012 but the plaintiff despite that has not made the balance payment of Rs.1,95,000/- to the defendants. It is further submitted that the plaintiff has sent the legal notice dated 13.1.2014, after one year of the completion of structure. It is further submitted that the plaintiff has interfered during the anchoring of the poles as well as the heights of poles as done by the defendant according to design specifications. It is further submitted that as per the agreed terms and conditions dated 11.06.2012, the defendant has not been assigned the task of civil work. The defendant has denied the other averments made by the plaintiff in the plaint and has prayed for the dismissal of the suit.
7. The plaintiff has filed the replication and has denied the averments made in the written statement and has reiterated and reaffirmed the averments made in the plaint.
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8. Vide order dated 09.07.2018 following issues were framed in the present case:-
9. ISSUE No.1:- Whether the plaintiff is entitled for the decree for the sum of Rs.11,02,250/- ? OPP
10. ISSUE No.2:- Whether the plaintiff is entitled for the future and pendentelite interest on the amount claimed if yes, at what rate? 0PP
11. ISSUE No.3:- Relief.
12. The plaintiff in his evidence has examined himself as PW1. He has filed his affidavit in his examination-in-chief as Ex.PW1/A wherein the plaintiff has reiterated his case as averred in the plaint. He has also relied upon the following documents:-
a) E-mail dated 06.06.2012 is Ex.PW1/1. b) E-mail dated 09.06.2012 is Ex.PW1/2. c) E-mail dated 11.06.2012 is Ex.PW1/3. d) Legal notice dated 13.01.2014 is Ex.PW1/4.
e) Original postal receipts and AD card is Ex.PW1/5.
f) Reply dated 29.01.2014 to legal notice is Ex.PW1/6.
g) E-mail dated 01.10.2012 is Ex.PW1/7.
h) Copy of estimate given by HS Sons Contractor dated 08.01.2014 is Ex.PW1/8.
i) Original estimate of repair work given by Ramanand Chauhan is Ex.PW1/9.
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j) Photographs of showing the collapse of installation of project in roof kite are Ex.PW1/10 (colly 17 photographs).
k) payment receipt of photographs is Ex.PW1/11.
l) Certificate under section 65-B of Indian Evidence Act of Shri Yogender Kumar is Ex.PW1/12 and certificate of the plaintiff under section 65-B is Ex.PW1/12A.
13. In defendant's evidence, defendant no.1 has examined himself as DW1. He has filed his affidavit in his examination-in-chief as DW1/A wherein he hs reiterated the case of the defendants and has also relied upon the upon the following documents:-
a) Copy of email dated 25/05/2022 as Mark-X.
b) Copy of email dated 27/08/2012 as Mark-X.
c) Copy of EQ no.01 dated 22/09/2012 as Mark-Z.
d) Copy of email dated 06/06/2012 as Ex.DW1/1 (already Ex.PW1/1 by the plaintiff).
e) Copy of email dated 06/11/2012 as Ex.DW1/2 (already Ex.PW1/2 by the plaintiff).
14. I have heard final arguments advanced by the learned counsel for the parties and has perused the records of the case.
15. My issue wise findings are as follows:-
Issue no.1:- The onus to prove this issue was upon the plaintiff. Admittedly, there was no written agreement Suit No. 10673/16 Aman Puri Vs. Perfect Tensile Structure Page no. 7/10 executed between the parties and the same was based on interaction on email. It is the case of the defendants that the plaintiff himself has not complied with the terms and conditions as accepted by him in email dated 11.6.2012, Ex.PW1/3. The said condition was to pay in 60% of the amount in advance and remaining after completion of the work. The plaintiff has not led any evidence to prove that he has performed his part of the agreement with regard to the aforesaid payment schedule of paying the money in advance and after completion of the work.
16. The plaintiff in his plaint has not mentioned the date on which the work was completed by the defendants. The plaintiff has also not led any evidence in this regard. The plaintiff even in his cross examination was not able to tell the date of completion of work. Admittedly, the plaintiff has sent the legal notice dated 13.01.2014 to the defendants. As per the case of the defendants, the said notice was sent after about one year of the completion of structure. DW1 has also stated in his cross-examination that he has received the call from the plaintiff after 15 months. There was no suggestion or question put to the DW1 to deny this fact of receiving the call by the DW1 after 15 months. Therefore, the question arises as to why the plaintiff has not informed the defendants about the collapse of the canopy immediately. In the normal course of circumstances, if there were any defective work done by the defendants then the same would have been informed to them without any delay and should not have waited for one Suit No. 10673/16 Aman Puri Vs. Perfect Tensile Structure Page no. 8/10 year to inform about the same. The said delay has not been explained by the plaintiff in the present case.
17. During the pendency of the case, the plaintiff has filed an application for removal of roof kites and direction was also given to him to file the video graphs and photographs but the plaintiff has not filed the same. Therefore the adverse inference also to be drawn against the plaintiff.
18. The documents Ex.PW1/8 to Ex. PW1/11 have not been proved by the plaintiff as per the Indian Evidence Act as no witness who has given the estimate regarding repair work and who has taken the photographs and who has given the payment receipt of photographs have not been examined by the plaintiff. The plaintiff is not able to prove that the work done by the defendants was defective. Therefore, the plaintiff has failed to discharge the onus of this issue. Accordingly, this issue is decided in favour of the defendants and against the plaintiff.
19. ISSUE No.2:- Whether the plaintiff is entitled for the future and pendentelite interest on the amount claimed if yes, at what rate? 0PP
20. In view of the discussion on the issue no.1 as the plaintiff has failed to prove that he is entitled for the suit amount, the question of awarding interest to the plaintiff does not arise. Accordingly this issue is decided against the plaintiff and in favour of the defendants.
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21. ISSUE No. 3:- Relief.
22. In view of my above discussions, the suit of the plaintiff is dismissed. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the Digitally signed by VINOD open court dated 15.09.2023 VINOD KUMAR GAUTAM KUMAR Date: GAUTAM 2023.09.20 10:08:30 +0530 (Vinod Kumar Gautam) ASJ (SC-POCSO) Dwarka Courts, New Delhi 15.09.2023 Suit No. 10673/16 Aman Puri Vs. Perfect Tensile Structure Page no. 10/10