Delhi District Court
Sh. Sunil Kumar vs Sh. Amit Bhargava on 31 January, 2023
IN THE COURT OF ADJ07, SOUTHEAST DISTRICT, SAKET COURTS,
DELHI
Presided By : Sh. Jay Thareja, DHJS
Civil Suit No:207256/2016
Sh. Sunil Kumar
Prop. of M/s. Pooja Interior,
51, B. M. K., Giri Nagar,
Kalkaji, New Delhi110019. ... Plaintiff
Versus
Sh. Amit Bhargava
R/o Flat No.81, Raj Residency,
Plot No.13, Sector18, Dwarka,
New Delhi. ... Defendant
SUIT FOR RECOVERY OF RS.12,39,749/ALONG WITH
COSTS AND INTEREST AT THE RATE OF 24% PER
ANNUM
DATE OF INSTITUTION : 15.07.2013
DATE OF FINAL ARGUMENTS : 21.12.2022
DATE OF DECISION : 31.01.2023
JUDGMENT
1. The plaintiff has filed this suit against the defendant, seeking recovery of (a) principal sum of Rs.12,39,749/, (b) prelitigation interest at the rate of 24% per annum w.e.f. 01.09.2012, (c) pendentelite interest and future interest at the rate of 24% per annum and (d) costs of this suit.
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2. In order to justify the recovery of the aforesaid money from the defendant, the plaintiff has interalia pleaded in the plaint of this suit that the plaintiff is running a business of construction work under the name and style of M/s. Pooja Interior; that the plaintiff does all kinds of construction work including interior designing etc. of residential and commercial properties; that the defendant had approached the plaintiff through Sh. Raj Chakravarti in the beginning of November 2011 for interior designing work at Flat no. 81, Raj Residency, Plot No. 13, Sector18, Dwarka, New Delhi; that in respect thereof, a meeting was held between the plaintiff and the defendant at the flat of the defendant in the beginning of November 2011; that after the said meeting, the plaintiff had sent a quotation/estimate to the plaintiff, of Rs.23,32,000/, through email; that thereafter, the defendant had engaged the services of Ms. Rashmi Singh, Architect/Designer; that as per the instructions of the defendant, Ms. Rashmi Singh, Architect/Designer, had made designs qua the aforesaid flat of the defendant and sent them to the plaintiff, through email dated 18.11.2011; that upon the assurance of the defendant that he will pay all the dues of the plaintiff including cost of raw material, labour charges etc., the plaintiff had done the requisite work, inclusive of designer work, wooden work, electrical work, polish work etc. at the flat of the defendant during 01.02.2012 till 07.09.2012; that upon completion of the work, the plaintiff had served a full and final bill of Rs.27,19,749/ (with annexures) upon the defendant, in October 2012; that out of the said sum, the defendant had already paid Rs.14,80,000/ to the plaintiff, during 26.01.2012 to 16.09.2012; that upon being asked to pay the balance sum of Rs.12,39,749/, the defendant had sought some time, in the presence of witnesses; that thereafter, the defendant had shunted the plaintiff; that as a result Civil Suit No.207256/2016 Sh. Sunil Kumar v Sh. Amit Bhargava Page No.2 of 25 thereof, the plaintiff had served a legal notice dated 25.04.2013 upon the defendant interalia seeking recovery of Rs.12,39,749/; that the defendant had replied to the said legal notice vide a false reply dated 22.05.2013 and that in such circumstances/state of affairs, the plaintiff is entitled to recover from the defendant, the different sums of money, sought by way of this suit.
3. Upon service of summons for settlement of issues of this suit, the defendant has contested this suit by filing his written statement. In the written statement of the defendant, it is interalia pleaded that the plaintiff has not properly valued this suit, for the purpose of courtfees and jurisdiction; that the plaintiff has not paid the requisite courtfees; that this Court does not have the territorial jurisdiction to try and adjudicate this suit; that this suit is bad for non joinder and misjoinder of a party; that the plaintiff does not work under the name and style of M/s. Pooja Interior; that the plaintiff does not do the work of construction or interior designing; that the defendant had not approached the plaintiff through Sh. Raj Chakravarti in the beginning of November 2011; that instead, the plaintiff had approached the defendant at Flat no. 81, Raj Residency, Plot No. 13, Sector18, Dwarka, New Delhi and claimed himself to be an Interior Designer; that a meeting was held between the plaintiff and the defendant at the flat of the defendant in the beginning of November 2011; that after the said meeting, no quotation/estimate was sent by the plaintiff; that the defendant would never have agreed to an exorbitant quotation/estimate of Rs.23,32,000/; that the actual agreement between the parties was that the plaintiff will do the requisite work at the flat of the defendant, at a total cost, which will not exceed Rs.11,80,000/, latest by April 2012; that the defendant had not engaged the Civil Suit No.207256/2016 Sh. Sunil Kumar v Sh. Amit Bhargava Page No.3 of 25 services of Ms. Rashmi Singh, Architect/Designer; that Ms. Rashmi Singh, Architect/Designer, had not made any designs qua the flat of the defendant and sent them to the plaintiff, through email; that the plaintiff had started the work at the flat of the defendant, without any formal approval; that while the work was being done at the flat of the defendant, the plaintiff had never served a formal bill upon the defendant; that whenever the plaintiff had demanded advance money, the defendant had paid the same; that the plaintiff had not completed the requisite work at the flat of the defendant, by April 2012; that when the plaintiff had failed to complete the requisite work, at the flat of the defendant, by June 2012, then the defendant had got the plaintiff removed from his flat, on 31.08.2012 and himself got the requisite work done; that the alleged full and final bill of Rs.27,19,749/ (with annexures) was never served by the plaintiff upon the defendant; that the alleged full and final bill of Rs.27,19,749/ is remarkably inflated; that the defendant had never sought time to pay any money to the plaintiff, in the presence of witnesses; that the reply dated 22.05.2013 qua the legal notice dated 25.04.2013, is true and that the defendant has absolutely no liability to pay any money to the plaintiff.
4. In the replication qua the written statement of the defendant, the plaintiff has traversed the contents of the said written statement, made the necessary denials and reaffirmed the contents of the plaint. Additionally, the plaintiff has pleaded that this Court has the territorial jurisdiction to entertain this suit because the terms of the agreement qua the work to be done by the plaintiff at the flat of the defendant, were finalized at the office of the plaintiff in Kalkaji, New Delhi, within the territorial jurisdiction of this Court.
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5. On the basis of the aforesaid pleadings of the parties, the following issues were framed by a Ld. Predecessor Judge, on 08.05.2014: "1. Whether the plaintiff is entitled for recovery of suit amount as prayed for alongwith interest? If so, from which date and at what rate of interest? OPP
2. Whether the suit of the plaintiff is not maintainable for want of territorial jurisdiction of this Court? OPD
3. Whether the suit of the plaintiff is bad for nonjoinder of the necessary parties? OPD
4. Relief."
6. During the trial of this suit, five witnesses viz. PW1 Sh. Sunil Kumar, PW2 Sh. Sunil Gupta, PW3 Sh. Vijay Kumar, PW5(sic) Sh. Ashok Kumar and PW6(sic) Sh. Dongar Singh were examined in support of the case of the plaintiff and one witness viz. DW1 Sh. Amit Bhargava was examined in support of the case of the defendant.
7. During examinationinchief, the plaintiff viz. PW1 Sh. Sunil Kumar had deposed in line with the plaint of this suit and tendered in evidence partnership deed, Ex.PW1/A(OSR), quotation/estimate dated 16.11.2011, Ex.PW1/B, record of email dated 18.11.2011 of Ms. Rashmi Singh, Ex.PW1/C(colly), final bill of February 2012 to September 2012, Ex.PW1/D(colly), attendance roll of the laborers, Mark A, copy of details of subcontractors, Mark B, copy of details of team of the plaintiff, Mark C, list of advance payment, Mark Civil Suit No.207256/2016 Sh. Sunil Kumar v Sh. Amit Bhargava Page No.5 of 25 D, particulars of kids bedroom, Mark E, particulars of master bedroom, Mark F, particulars of master and kids passage gallery, Mark G, particulars of TV room, Mark H(colly), particulars of living room, Mark I(colly), particulars of store room, Mark J, particulars of extra work, Mark K, particulars of kitchen, Mark L, particulars of dinning room, Mark M, photographs, Ex.PW1/E(colly), legal notice dated 25.04.2013, postal and courier receipt, Ex.PW1/F(colly) and reply dated 22.05.2013, Ex.PW1/G. During crossexamination, the plaintiff viz. PW1 Sh. Sunil Kumar had interalia deposed that his business of interior decoration includes painting, polish, wood work, POP, plumber work, etc.; that before doing the work for the defendant, he had done another work in a kitchen of a flat in Dwarka, at the instance of a friend of Sh. Raj Chakravarti; that while he was doing the work of the defendant, he had not indulged in any other work, except some small works in Gurgaon and Delhi; that while he was doing the work of the defendant, he had not used raw materials, purchased for the defendant, in the works being executed at Gurgaon and Delhi; that apart from the work of the defendant, he had not got any other work from Sh. Raj Chakravarti; that he does not have any personal relations with Sh. Raj Chakravarti; that he had spoken to the defendant, for the first time in November 2011, when the defendant had called him and explained that he needs to get some work done in his flat; that he had met the defendant for the first time in November 2011 at the flat of the defendant; that on that day, he had not taken any measurements of the flat of the defendant as the defendant had explained the rough measurements of the flat to him; that 23 days thereafter, he had sent the rough estimate to the defendant through the email, Ex.PW1/B(colly); that the recipient of the said email was Ms. Milly, wife of the defendant; that the defendant had telephonically accepted the said rough Civil Suit No.207256/2016 Sh. Sunil Kumar v Sh. Amit Bhargava Page No.6 of 25 estimate and asked him to go ahead with the work; that he had never given specific estimate of the work to be done at the flat of the defendant, to the defendant; that he had met the defendant and Sh. Raj Chakravarti at the flat of the defendant only; that there is no written agreement or agreement through email between him and the defendant, regarding the work to be done at the flat of the defendant; that he had never made any commitment regarding the date of completion of the work at the flat of the defendant; that his wife, Ms. Veena Devi is his partner in the business being run in the name and style of M/s. Pooja Interior; that M/s. Pooja Interior is a registered firm; that this suit has not been filed by M/s. Pooja Interior; that this suit has been filed by M/s. Pooja Interior, the partnership firm, referred in the documents tendered in evidence by him; 1 that the firm in the name of M/s. Pooja Interior is a partnership firm and it was never a proprietorship firm; that he has registration under VAT and Service Tax in the name of his firm but he does not have any registration under Shops and Establishment Act; that he does not have any registration of VAT or Service Tax in his personal name; that he has 1213 employees in his firm; that he does not have any ESI registration; that Ms. Rashmi Singh, Architect/Designer, was asked by the wife of the defendant to prepare the designs qua the flat of the defendant; that no written work order was placed by the defendant upon him; that he had never served a legal notice upon the defendant, as partner of M/s. Pooja Interior; that the terms and conditions between the parties were settled orally through personal meeting and through phone; that whenever he had spoken to the defendant, his phone was not on a speaker mode; that whenever he had spoken 1 This testimony of the plaintiff viz. PW1 Sh. Sunil Kumar is contrary to the positive pleadings made in paragraph 2 of the plaint of this suit, where from it emerges that this suit has been filed by M/s. Pooja Interior, a proprietorship firm.
Civil Suit No.207256/2016Sh. Sunil Kumar v Sh. Amit Bhargava Page No.7 of 25 to the defendant, on phone, Sh. Sunil Gupta and others were not present; that upon completion of work at the flat of the defendant, no writing was given by the defendant, acknowledging satisfaction with the work done by him but the neighbours of the defendant, who had seen the work, had appreciated it; that when he had prepared the final bill, Ex.PW1/D(colly), Sh. Sunil Gupta was present and Sh. Vijay Kumar was not present; that the defendant had made payments in cash and through cheque; that the defendant had made payments to him or upon his instructions to the suppliers of material but not to M/s. Pooja Interior; that the bill, Ex.PW1/D(colly) is not a final bill; 2 that it is wrong to say that the documents, Mark A(colly) to Mark H are not originals; that it is wrong to say that the bill, Ex.PW1/D(colly) does not consist of originals; that it is wrong to say that the documents, Ex.PW1/D9 to Ex.PW1/D13 are false and manufactured documents; that it is wrong to say that the photographs at page no.191 to 248, part of Ex.PW1/E(colly) are not of the flat of the defendant; that the defendant had refused to accept the final bill, Ex.PW1/D(colly) at his residence in the presence of the carpenter, Sh. Vijay Kumar; 3 that the defendant had not sought time to make any payment in the presence of any witness; 4 that the defendant had never threatened him with dire consequences; 5 that some of the bills, 2 This testimony of the plaintiff viz. PW1 Sh. Sunil Kumar is contrary to the positive pleading made in paragraph 8 of the plaint of this suit. In the said paragraph, the plaintiff has pleaded that the bill, Ex.PW1/D(colly) is the 'full and final' bill.
3 This testimony of the plaintiff viz. PW1 Sh. Sunil Kumar is contrary to the positive pleading made in paragraph 8 of the plaint of this suit. In the said paragraph, the plaintiff has pleaded that he had delivered the bill, Ex.PW1/D(colly) to the defendant.
4 This testimony of the plaintiff viz. PW1 Sh. Sunil Kumar is contrary to the positive pleading made in paragraph 10 of the plaint of this suit. In the said paragraph, the plaintiff has pleaded that in the presence of witnesses, the defendant had sought time to pay balance of Rs.12,39,749/ to the plaintiff.
5 This testimony of the plaintiff viz. PW1 Sh. Sunil Kumar is contrary to the positive pleading made in paragraph 12 of the plaint of this suit and the positive assertion made in paragraph 13 of the Civil Suit No.207256/2016 Sh. Sunil Kumar v Sh. Amit Bhargava Page No.8 of 25 forming part of final bill, Ex.PW1/D(colly), do not bear the details of the flat of the defendant but the work, reflected by the said bills was done at the flat of the defendant; that he does not have the originals of the documents at page no.159 to 171; that the bills at page no.172 to 190 are computer generated and that he has filed certificate under Section 65B of the Evidence Act, 1872, qua them; 6 that all the dealings pertaining to this suit were done in Dwarka, New Delhi 7 and that it is wrong to say that he has filed this suit, only to harass the defendant.
8. During examinationinchief, PW2 Sh. Sunil Gupta had interalia relied upon some of the documents by the plaintiff viz. PW1 Sh. Sunil Kumar and deposed that he is working as a Supervisor with M/s. Pooja Interior, partnership firm of the plaintiff, Sh. Sunil Kumar; that being the supervisor of the partnership firm, M/s. Pooja Interior, he has knowledge qua all its dealings; that the defendant had approached the plaintiff through Sh. Raj Chakravarti in the beginning of November 2011 for interior designing work at the flat of the defendant; that the meeting was held between the plaintiff and the defendant at the flat of the defendant in the beginning of November 2011, where he had also participated; that after the meeting, the plaintiff had sent the quotation/estimate dated 16.11.2011, Ex.PW1/B; that thereafter, the defendant had engaged Ms. Rashmi Singh, Architect/Designer, who had prepared designs qua the flat of the defendant and sent them to the plaintiff, through email dated 18.11.2011; that evidence affidavit, Ex.P1 of the plaintiff viz. PW1 Sh. Sunil Kumar, to the effect that the defendant had threatened him with dire consequences.
6 The record of this Court shows that the plaintiff had filed a certificate under Section 65B of the Evidence Act, 1872, in this suit, on 14.10.2014.
7 This testimony of the plaintiff viz. PW1 Sh. Sunil Kumar is fatal to the plea of the plaintiff that this Court has the territorial jurisdiction to hear and adjudicate this suit.
Civil Suit No.207256/2016Sh. Sunil Kumar v Sh. Amit Bhargava Page No.9 of 25 after going through the designs of Ms. Rashmi Singh, Architect/Designer, the plaintiff had prepared a fresh estimate of Rs.28,00,000/ and intimated to the defendant;8 that only when the defendant had agreed to the fresh estimate of Rs.28,00,000/, on phone, the plaintiff had started doing the requisite work at the flat of the defendant and completed it, during 01.02.2012 to 07.09.2012; that after completion of requisite work at the flat of the defendant, as per the satisfaction of the defendant, the plaintiff had served a full and final bill of Rs.27,19,749/, Ex.PW1/D(colly) upon the defendant, in his presence and in the presence of Sh. Vijay Kumar;9 that the photographs, Ex.PW1/E(colly) depict the status of the flat of the defendant, at the different stages of work; that in his presence, the defendant had sought time to pay the balance sum of Rs.12,39,749/ to the plaintiff10 and that despite requests and reminders, the defendant has not paid the said balance sum to the plaintiff. During crossexamination, PW2 Sh. Sunil Gupta had interalia deposed that his driving license is Ex.PW2/D1(OSR); that his correct name is Sh. Sunil Dutt and not Sh. Sunil Gupta; that he has been working with M/s. Pooja Interior for last 18 years; that there are about 1718 employees in M/s. Pooja Interior; that he does not know at how many places M/s. Pooja Interior was doing work in the year 2012; that in 2011, he had met Sh. Raj 8 In the plaint of this suit, the plaintiff has not made any pleading qua the said fresh estimate of Rs.28,00,000/. Therefore, the said aspect of the testimony of PW2 Sh. Sunil Gupta, appears to be a classical case of plaintiff leading evidence, beyond pleadings. 9 This testimony of PW2 Sh. Sunil Gupta, introduced through the affidavit, Ex.PW2/A, prepared on 06.10.2015 i.e. after the last crossexamination of the plaintiff viz. PW1 Sh. Sunil Kumar, on 13.08.2015, is contrary to the testimony of the plaintiff viz. PW1 Sh. Sunil Kumar to the effect that the defendant had refused to accept the final bill, Ex.PW1/D(colly) at his residence in the presence of the carpenter, Sh. Vijay Kumar.
10 This testimony of PW2 Sh. Sunil Gupta, introduced through the affidavit, Ex.PW2/A, prepared on 06.10.2015 i.e. after the last crossexamination of the plaintiff viz. PW1 Sh. Sunil Kumar, on 13.08.2015, is contrary to the testimony of the plaintiff viz. PW1 Sh. Sunil Kumar to the effect that the defendant had not sought time to make any payment in the presence of any witness.
Civil Suit No.207256/2016Sh. Sunil Kumar v Sh. Amit Bhargava Page No.10 of 25 Chakravarti and the defendant; that the plaintiff had sent an email to the defendant but he does not remember its date; that no email was sent by Ms. Rashmi Singh, Architect/Designer, to Sh. Sunil Kumar; that he does not know how to operate a computer; that he does not have an email ID; that he used to collect payments from the defendant; that he had never received any cheque from the defendant; that all the materials used in the flat of the defendant were purchased by him and supplied to Sh. Vijay Kumar, Sh. Yunas, Sh. Ram Pratap, Sh. Ashok Kumar, etc.; that the defendant and his wife had also purchased several materials for use in the flat of the defendant; that it is wrong to say that he had not worked at the flat of the defendant; that he had not shot any of the photographs, Ex.PW1/E(colly) and that every time, he had met the defendant, it was in Dwarka, only.11
9. During examinationinchief, PW3 Sh. Vijay had interalia deposed that he was working as a Carpenter in M/s. Pooja Interior, partnership firm of the plaintiff; that he has personal knowledge of the facts and circumstances of this suit; that he had done the requisite wood work at the flat of the defendant under the supervision of Sh. Sunil Gupta @ Sh. Sunil Dutt; that after completion of the work, the plaintiff had raised the bill of Rs.27,19,749/ upon the defendant and delivered it, to the defendant, in his presence and the presence of Sh. Sunil Gupta @ Sh. Sunil Dutt in October 2012;12 that in his presence and in the 11 This testimony of PW2 Sh. Sunil Gupta is relevant qua the plea of the plaintiff that this Court has the territorial jurisdiction to hear and adjudicate this suit. 12 This testimony of PW3 Sh. Vijay Kumar, introduced through the affidavit, Ex.PW3/A, prepared on 06.10.2015 i.e. after the last crossexamination of the plaintiff viz. PW1 Sh. Sunil Kumar, on 13.08.2015, is contrary to the testimony of the plaintiff viz. PW1 Sh. Sunil Kumar that the defendant had refused to accept the final bill, Ex.PW1/D(colly) at his residence in the presence of Civil Suit No.207256/2016 Sh. Sunil Kumar v Sh. Amit Bhargava Page No.11 of 25 presence of the other witnesses, the defendant had sought time to pay Rs.12,39,749/ to the plaintiff13 and that on 01.04.2013, the defendant had threatened the plaintiff with dire consequences. 14 During crossexamination PW3 Sh. Vijay Kumar had interalia deposed that he had worked with the plaintiff for about 13 years before starting his own work; that he has signed the evidence affidavit, Ex.PW3/A without reading and understanding its contents and that evidence affidavit, Ex.PW3/A was prepared at the instructions of the plaintiff, by his Advocate.
10. During examinationinchief, PW5 (sic) Sh. Ashok Kumar, Labour Supervisor of M/s. Pooja Interior, partnership firm of the plaintiff, had interalia deposed in line with the plaint of this suit. During crossexamination PW5 (sic) Sh. Ashok Kumar had interalia deposed that the partners in M/s. Pooja Interior are Sh. Sunil Kumar and Smt. Veena Devi; that he has no knowledge if the partnership firm, M/s. Pooja Interior is registered or not; that he had not seen the full and final bill of Rs.27,00,000/; that the plaintiff had informed him that the defendant is liable to pay him Rs.12,39,749/ and that it is wrong to say that the defendant is not liable to pay any money to the plaintiff.
the carpenter, Sh. Vijay Kumar.
13 This testimony of PW3 Sh. Vijay Kumar, introduced through the affidavit, Ex.PW3/A, prepared on 06.10.2015 i.e. after the last crossexamination of the plaintiff viz. PW1 Sh. Sunil Kumar, on 13.08.2015, is contrary to the testimony of the plaintiff viz. PW1 Sh. Sunil Kumar to the effect that the defendant had not sought time to make any payment in the presence of any witness. 14 This testimony of PW3 Sh. Vijay Kumar is contrary to the testimony of the plaintiff viz. PW1 Sh. Sunil Kumar to the effect that the defendant had never threatened him with dire consequences.
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11. During examinationinchief, PW6(sic) Sh. Dongar Singh, Electrician/Contractor had interalia deposed that he had done electrical work at the flat of the defendant at the behest of the plaintiff and his partnership firm, M/s. Pooja Interior; that the work done by him was supervised by Sh. Sunil Gupta @ Sh. Sunil Dutt; that he had submitted a bill of Rs.58,000/ to the plaintiff; that out of the said sum, he was paid Rs.35,000/; that the balance of Rs.23,000/ is yet to be paid to him and that the plaintiff has promised to pay him the balance of Rs.23,000/, as and when he gets paid by the defendant. During cross examination PW6(sic), Sh. Dongar Singh had interalia deposed that nothing was agreed in writing between him and the plaintiff qua the work to be done at the flat of the defendant; that it is wrong to say that he had not worked at the flat of the defendant; that his bill of Rs.58,000/ is not on the record of this Court and that it is wrong to say that he had deposed falsely in this Court at the instance of the plaintiff.
12. During examinationinchief, the defendant viz. DW1 Sh. Amit Bhargava had interalia deposed in line with the written statement filed in this suit and relied upon the reply dated 22.05.2013, Ex.PW1/G. During cross examination, the defendant viz. DW1 Sh. Amit Bhargava had interalia deposed that the plaintiff had done the interior work at his flat; that while the work was being done, he was not residing at his flat; that Sh. Raj Chakravarti is his friend; that Sh. Raj Chakravarti had introduced him to the plaintiff; that it is wrong to say that Sh. Raj Chakravarti had gone to the office of the plaintiff in Kalkaji for the interior work at his flat; that the meeting between him, Sh. Raj Chakravarti and Civil Suit No.207256/2016 Sh. Sunil Kumar v Sh. Amit Bhargava Page No.13 of 25 the plaintiff had taken place in November 2011; that he had received the estimate of Rs.23,32,000/ vide the email Ex.PW1/B(colly); that he knows Ms. Rashmi Singh, Architect/Designer, as she was working with the plaintiff; that although Ms. Rashmi Singh, Architect/Designer, had prepared the designs qua his flat, he does not know if Ms. Rashmi Singh, Architect/Designer had sent them to the plaintiff, on 18.11.2011; that he does not know whether the two plans, part of Ex.PW1/C(colly) were the designs prepared by Ms. Rashmi Singh, Architect/Designer; that since he does not understand the said plans, he cannot say if his flat was prepared as per the said plans; that it is wrong to say that after preparation of the designs by Ms. Rashmi Singh, Architect/Designer, the plaintiff had given him a fresh quotation/estimate of Rs.28 lacs to 30 lacs; that it is wrong to say that there was an oral agreement between him and the plaintiff qua interim payment during the work and final payment, after completion of the work; that it is wrong to say that the plaintiff had completed the requisite work between 01.02.2012 to 07.09.2012; that the plaintiff had not done the work of providing and laying of new floor, worth Rs.5,60,000/ (mentioned in the estimate, part of Ex.PW1/B(colly)); that the plaintiff had not done the work of providing and making modular kitchen, worth Rs.1,95,750/ (mentioned in the estimate, part of Ex.PW1/B(colly)); that the hardware and cutlery were bought by him; that the plaintiff had only installed wooden frames and laminates; that the plaintiff had not done the work of making and providing washroom, worth Rs.2,50,000/ (mentioned in the estimate, part of Ex.PW1/B(colly)); that the hardware and fittings of wardrobe, electrical wires, switches, MCBs were bought by him, but they were supposed to be bought by the plaintiff; that the bills, Ex.DW1/X(OSR), reflect the purchases made by him; that some of the bills, forming part of Civil Suit No.207256/2016 Sh. Sunil Kumar v Sh. Amit Bhargava Page No.14 of 25 Ex.DW1/X(OSR) are of 2012 and some are of 2013; that it is wrong to say that the bills, forming part of Ex.DW1/X(OSR), which do not bear his name, do not reflect purchases for his flat; that some of the bills, forming part of Ex.DW1/X(OSR) which do not bear signatures of seller and purchaser, are forged and fabricated; that none of the bills, Ex.DW1/X(OSR) bear his signatures; that it is correct that the plaintiff had affixed some of the materials purchased by him and the rest were fixed by the company/supplier; that he does not remember the time taken by the plaintiff and the seller to fix the glass purchased by him; that actually, no glass was fixed by the plaintiff; that the photographs, Ex.PW1/E(colly) (from pages no. 191 to 248) pertain to his flat; that the four photographs at page no. 232 of the photographs, Ex.PW1/E(colly) are not of the kitchen; that the said photographs are of the bar in the living area etc.; that it is wrong to say that the entire work visible in the photographs at pages no. 233 to 248, part of Ex.PW1/E(colly) was done by the plaintiff; that the work of curtains, glass, wallpapers, reflected in the said photographs was not done by the plaintiff; that he had never received the bill, Ex.PW1/D(colly); that it is wrong to say that he had received the bill, Ex.PW1/D(colly) 15 and despite receipt, he had not paid it; that it is wrong to say that the plaintiff used to demand money at the interim stage, only after completion of a specific work; that all the payments to the plaintiff, were made through a bank; that he does not remember the names of the persons, from whom, he had got the remaining work done at his flat, after the plaintiff had left; that work is still incomplete at his flat; that it is wrong to say that since the plaintiff had completed the entire work, he does not remember the 15 This suggestion to DW1 Sh. Amit Bhargava is contrary to the testimony of the plaintiff viz. PW1 Sh. Sunil Kumar to the effect that the defendant had refused to accept the final bill, Ex.PW1/D(colly) at his residence in the presence of the carpenter, Sh. Vijay Kumar.
Civil Suit No.207256/2016Sh. Sunil Kumar v Sh. Amit Bhargava Page No.15 of 25 names of the persons, from whom, he had got the alleged remaining work done at his flat and that it is wrong to say that he is dishonestly not paying the legitimate dues of the plaintiff.
13. In order to adjudicate upon this suit, I had heard Sh. Jagdish Kumar Verma, Ld. Advocate for the plaintiff and Sh. Jitendra Kumar Jha, Ld. Advocate for the defendant, on 21.12.2022. The issue wise findings, in this suit are as follows:
ISSUE NO. 2"2. Whether the suit of the plaintiff is not maintainable for want of territorial jurisdiction of this Court? OPD"
14. In respect of this issue, the case of the plaintiff is that this Court has the territorial jurisdiction to hear and adjudicate this suit because the contract between the parties was finalized at the office of the plaintiff at 51, B.M.K., Giri Nagar, Kalkaji, New Delhi19, within the territorial jurisdiction of this Court and because as such, this suit is squarely governed by Section 20(c) of CPC, 1908. Per contra, the case of the defendant is that this Court does not have the territorial jurisdiction to hear and adjudicate this suit because nothing had happened between the parties at the aforesaid office of the plaintiff, within the territorial jurisdiction of this Court and because the plaintiff should have filed this suit at Dwarka Courts, Delhi, within whose jurisdiction, the defendant is ordinarily Civil Suit No.207256/2016 Sh. Sunil Kumar v Sh. Amit Bhargava Page No.16 of 25 residing (re: Section 20(a) of CPC, 1908) and within whose jurisdiction, the flat of the defendant, is located (re: Section 20(c) of CPC, 1908).
15. In my view, this issue is liable to be decided in favour of the defendant and against the plaintiff, on account of the following two reasons.
16. Firstly, this issue is liable to be decided in favour of the defendant and against the plaintiff because the plaintiff has not led any cogent evidence to prove that the contract between the parties was finalized at the office of the plaintiff at 51, B.M.K., Giri Nagar, Kalkaji, New Delhi19, within the territorial jurisdiction of this Court. In this regard, it is noteworthy (a) that the plaintiff has nowhere disclosed the exact date and time, when the contract between the parties was finalized at the office of the plaintiff at 51, B.M.K., Giri Nagar, Kalkaji, New Delhi19, within the territorial jurisdiction of this Court; (b) that during his crossexamination, the plaintiff viz. PW1 Sh. Sunil Kumar has unequivocally admitted that all the dealings pertaining to this suit were done in Dwarka, New Delhi and (c) that PW2 Sh. Sunil Gupta @ Sunil Dutt, Supervisor of the firm of the plaintiff has deposed that every time, he had met the defendant, it was in Dwarka only.
17. During the hearing of final arguments, the Ld. Advocate for the plaintiff, as a bolt from the blue, had submitted that the contract between the parties should be accepted to have been finalized at the office of the plaintiff at 51, B.M.K., Giri Nagar, Kalkaji, New Delhi19, because every time the defendant had spoken to the plaintiff, on phone, in November 2011, the plaintiff was at his Civil Suit No.207256/2016 Sh. Sunil Kumar v Sh. Amit Bhargava Page No.17 of 25 office at 51, B.M.K., Giri Nagar, Kalkaji, New Delhi19, within the territorial jurisdiction of this Court and because the emails, part of Ex.PW1/B and Ex.PW1/C(colly) were sent from the office of the plaintiff at 51, B.M.K., Giri Nagar, Kalkaji, New Delhi19, within the territorial jurisdiction of this Court. In my view, the said submission of the Ld. Advocate for the plaintiff, is legally untenable, in view of the judgment of the Hon'ble High Court of Delhi in Degremont Limited v Kolkatta Municipal Corporation, (2013) SCC OnLine Del 2852. In paragraph 11 of the said judgment, the Hon'ble High Court has held that the unilateral acts of the plaintiff, upon which the defendant has no control, are immaterial, for determining the territorial jurisdiction of a Court, to hear and adjudicate a suit.16 Also, in my view, the aforesaid submission of the Ld. Advocate for the plaintiff, is factually untenable because neither in the plaint of this suit nor during the trial of this suit, the plaintiff has expressly claimed that every time the defendant had spoken to him, on phone, in November 2011, the plaintiff was at his office at 51, B.M.K., Giri Nagar, Kalkaji, New Delhi19, within the territorial jurisdiction of this Court and that the emails, part of Ex.PW1/B and Ex.PW1/C(colly) were sent from the office of the plaintiff at 51, B.M.K., Giri Nagar, Kalkaji, New Delhi19, within the territorial jurisdiction of this Court.
16 If the submission of the Ld. Advocate for the plaintiff is accepted, it would mean that the Courts of Chennai, Mumbai, Ahemdabad or any remote part of the country, would have had the territorial jurisdiction to hear this suit, if at the time of receiving the calls of the defendant in November, 2011, the plaintiff would have been in Chennai, Mumbai, Ahemdabad or any remote part of the country, unbeknown to the defendant or if the plaintiff would have sent the emails, part of Ex.PW1/B and Ex.PW1/C(colly) from Chennai, Mumbai, Ahemdabad or any remote part of the country, unbeknown to the defendant. This cannot be the law, as has been held by the Hon'ble High Court of Delhi in Degremont (supra).
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18. Secondly, this is liable to be decided in favour of the defendant and against the plaintiff because an overall assessment of the pleadings of the parties and the evidence led by the parties in this suit, clearly reveals that the jurisdiction to hear and adjudicate this suit, vests with Courts at Dwarka Courts, Delhi only. I say so because it is an admitted position between the parties to this suit that the defendant is ordinarily residing within the territorial jurisdiction of Dwarka Courts, Delhi (re: Section 20(a) of CPC, 1908) and because the substantial part of the cause of action to file this suit viz. settlement of terms between the parties, actual work done by the plaintiff, payment by the defendant to the plaintiff, has arisen within the territorial jurisdiction of Dwarka Courts, Delhi (re: Section 20(c) of CPC, 1908).17
19. In view of the aforesaid, this issue is decided in favor of the defendant and against the plaintiff. It is held that this Court does not have the territorial jurisdiction to hear and adjudicate this suit.
ISSUE NO.1 "1. Whether the plaintiff is entitled for recovery of suit amount as prayed for alongwith interest? If so, from which date and at what rate of interest? OPP"
17 In Rattan Singh Associates (P) Ltd. v Gill Power Generation Company (P) Ltd. 2009 (93) DRJ 431, quoted with approval in Degremont (supra), the Hon'ble High Court has held that "It is the Court within whose jurisdiction, the cause of action has substantially or predominantly arisen which would have territorial jurisdiction to adjudicate upon the lis."Civil Suit No.207256/2016
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20. The finding qua this issue is being given without prejudice to the aforesaid finding given qua issue no.2 and with the understanding that if the plaintiff accepts the aforesaid finding given qua issue no.2 or it withstands the scrutiny of superior Courts, the finding qua this issue, will be taken to have been given, coram non judice/without jurisdiction.
21. In respect of this issue, the case of the plaintiff is that he is entitled to recover from the defendant, a sum of Rs.12,39,749/ along with interest at the rate of 24% per annum w.e.f. 01.09.2012 because as per the agreement between the parties, he had done work worth Rs.27,19,749/ in the flat of the defendant; because after completion of the said work, he had served the full and final bill, Ex.PW1/D(colly) upon the defendant; because upon service of the said bill, the defendant had assured him, in the presence of witnesses that the outstanding sum of Rs.12,39,749/ will be paid to him and because despite the said assurance as well as service of legal notice dated 25.04.2013, part of Ex.PW1/F(colly), the defendant had not paid him the outstanding sum of Rs.12,39,749/. Per contra, the case of the defendant is that he is not liable to pay any money to the plaintiff because the plaintiff had not done work worth Rs.27,19,749/ in his flat; because the plaintiff had never served the full and final bill, Ex.PW1/D(colly) upon him; because he had never agreed to pay the alleged outstanding sum of Rs.12,39,749/ to the plaintiff and because vide his reply dated 22.05.2013, Ex.PW1/G, he had duly replied to the legal notice dated 25.04.2013, part of Ex.PW1/F(colly) of the plaintiff.
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22. In my view, this issue is liable to be decided in the favor of the defendant and against the plaintiff, on account of the following reasons.
23. Firstly, this issue is liable to be decided in favour of the defendant and against the plaintiff because during the trial of this suit, it has been found that in the plaint of this suit, the plaintiff has lied about (a) service of the full and final bill, Ex.PW1/D(colly) upon the defendant, (b) the defendant having sought time to make payment of Rs.12,39,749/ to the plaintiff, in the presence of witnesses and
(c) the defendant having threatened the plaintiff with dire consequences. In this regard, it is noteworthy that during his crossexamination, the plaintiff viz. PW1 Sh. Sunil Kumar, in contrast to the pleadings made in paragraphs 8 to 12 of the plaint of this suit as well as the assertions made in his evidence affidavit, Ex.P1, has testified before this Court (a) that the defendant had refused to accept the full and final bill, Ex.PW1/D(colly) at his residence in the presence of the carpenter, Sh. Vijay Kumar; (b) that the defendant had not sought time to make any payment in the presence of any witnesses and (c) that the defendant had never threatened him with dire consequences. In my view, in light of the said lies, it will not be apposite for this Court, to believe the plaintiff viz. PW1 Sh. Sunil Kumar and grant the claim of Rs.12,39,749/along with interest, made by way of this suit.
24. Secondly, this issue is liable to be decided in favour of the defendant and against the plaintiff because in paragraph 2 in the plaint of this suit, the plaintiff has categorically pleaded that this suit has been filed by him as the proprietor of M/s. Pooja Interior but during his examinationinchief, the plaintiff viz. PW1 Sh. Sunil Kumar has tendered in evidence partnership deed, Civil Suit No.207256/2016 Sh. Sunil Kumar v Sh. Amit Bhargava Page No.21 of 25 Ex.PW1/A(OSR) of M/s. Pooja Interior, a partnership firm of the plaintiff and his wife, Smt. Veena Devi and to further complicate the matter during cross examination, the plaintiff viz. PW1 Sh. Sunil Kumar has positively deposed that this suit has not been filed by M/s. Pooja Interior, the proprietorship firm but it has been filed by M/s. Pooja Interior, the partnership firm. In my view, the said shenanigans of the plaintiff have created enough ambiguity for this Court to reject the claim of Rs.12,39,749/along with interest, made by way of this suit. If this suit has been filed by M/s. Pooja Interior, the partnership firm, as was positively deposed by the plaintiff viz. PW1 Sh. Sunil Kumar, then (a) in accordance with Order XXX Rule 1 of CPC, 1908, it should have been filed in the name of M/s. Pooja Interior, the partnership firm and (b) this suit, is squarely hit by Section 69 of the Partnership Act, 1932 because the plaintiff has not placed on record any document to show that M/s. Pooja Interior, the partnership firm, is registered with the Registrar of Partnership Firms, as per the provisions of Partnership Act, 1932.18
25. Thirdly, this issue is liable to be decided in favour of the defendant and against the plaintiff because the full and final bill, Ex.PW1/D(colly), which forms the basis/foundation of the claim of Rs.12,39,749/ along with interest made by the plaintiff, is full of ambiguities and flaws. In this regard, it is noteworthy (a) that the full and final bill, Ex.PW1/D(colly) is not on any letterhead bearing VAT and Service Tax numbers of the plaintiff or the VAT and Service Tax 18 For the law regarding Section 69 of the Partnership Act, 1932, reference is craved to the judgments of the Hon'ble Supreme Court in M/s. Shreeram Finance Corporation v Yasin Khan & Ors., (1989) 3 SCC 476, Delhi Development Authority v Kochhar Construction Work & Anr., (1998) 8 SCC 559 and Haldiram Bhujiawala & Anr. v Anand Kumar Deepak Kumar & Anr., (2000) 3 SCC 250.
Civil Suit No.207256/2016Sh. Sunil Kumar v Sh. Amit Bhargava Page No.22 of 25 numbers of M/s. Pooja Interior, the partnership firm; (b) that the majority of the annexures to the full and final bill, Ex.PW1/D(colly), which are in the shape of 'kacha bills', do not reflect that the purchases made vide them, were for the flat of the defendant and (c) that the claims qua workers/professionals, made in page 2 of the full and final bill, Ex.PW1/D(colly) are remarkably inflated and not backed by any credible evidence to show that actually a team of at least 18 people 19 was working at the flat of the defendant, on each and every day between February 2012 to 07th September 2012.
26. In view of the aforesaid, this issue is decided in favour of the defendant and against the plaintiff. It is held that the plaintiff is not entitled to recover any money from the defendant.
ISSUE NO. 3"3. Whether the suit of the plaintiff is bad for nonjoinder of the necessary parties? OPD"
27. In his written statement, the defendant has not disclosed the name of the person, who according to him, should have been joined as a necessary party in this suit. Also, during his testimony, the defendant viz. DW1 Sh. Amit Bhargava has not disclosed the name of the person, who according to him, 19 The names of the said 18 persons can be found at serial no. 8 of page 2 of the full and final bill, Ex.PW1/D(colly). The logic behind 1466 days mentioned therein is completely beyond comprehension because 01.02.2012 to 07.09.2012 consists of only 219 days.
Civil Suit No.207256/2016Sh. Sunil Kumar v Sh. Amit Bhargava Page No.23 of 25 should have joined as a necessary party in this suit. Therefore, this issue is decided in favour of the plaintiff and against the defendant. It is held that this suit is not bad for nonjoinder of a necessary party.
RELIEF
28. In view of the aforesaid findings given qua the issues framed in this suit, on 08.05.2014, particularly the issue no. 2, it is directed that the plaint of this suit shall be returned to the plaintiff as per Order VII Rule 10 of CPC, 1908, for filing before Dwarka Courts, Delhi, if the plaintiff or the Ld. Advocate for the plaintiff come forward to take the plaint of this suit, as per Order VII Rule 10 of CPC, 1908, within the next 120 days. In the event, the plaintiff or the Ld. Advocate for the plaintiff do not come forward to take the plaint of this suit, as per Order VII Rule 10 of CPC, 1908, within the next 120 days and no order is received from the Hon'ble High Court of Delhi, staying the operation of this judgment and the consequent decree, it will be assumed that the plaintiff has lost interest in the cause pleaded in the plaint of this suit and this suit will be treated as dismissed, for want of the territorial jurisdiction of this Court to hear and adjudicate this suit, leaving the parties to bear their own costs.
29. Before parting with this judgment, it is clarified that this judgment has been passed, after taking note of the judgment of the Hon'ble Supreme Court in Sayed Muhammed Mashur Kunhi Koya Thangal v Badagara Jumayath Palli Dhara Committee and Others, 2004 (7) SCC 708, wherein it has been held that a Civil Suit No.207256/2016 Sh. Sunil Kumar v Sh. Amit Bhargava Page No.24 of 25 plaintiff can only succeed on the strength of his case and not the weakness, if any, found in the case of the defendant.
30. After preparation of the decree sheet by the Reader, the file shall be consigned to the record room.
Digitally
signed by JAY
THAREJA
JAY Date:
THAREJA 2023.02.01
10:18:21
+0530
Announced in open Court (Jay Thareja)
today on 31.01.2023 Ld. ADJ07, South East District,
Saket Courts/Delhi
Civil Suit No.207256/2016
Sh. Sunil Kumar v Sh. Amit Bhargava
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