Delhi District Court
Jamshed Khan vs K.M.Gupta on 27 September, 2023
IN THE COURT OF SH. AJAY GARG,
ADDITIONAL DISTRICT JUDGE -01,
EAST DISTRICT, KARKARDOOMA COURTS, DELHI
CS No. 3172/16
CNR NO. DLET01-009915-2016
In the matter of:
Mr. Jamshed Khan
S/o Rafiq Ahmad
R/o House No.33/484,
Trilok Puri, Delhi-110091.
........Plaintiff
Versus
Mr. K.M. Gupta
Partner of M/s Praveen Nagar Property
S/o Sh. B.M. Gupta
R/o 10-A, Pratap Nagar,
Delhi-110091.
Also At: Shop at House No.30/410,
Trilok Puri, Delhi-110091.
.........Defendant
Date of Institution : 17.08.2016
Order reserved on : Not reserved
Order announced on : 27.09.2023
CS No.3172/16 Jamshed Khan Vs. K.M. Gupta Page No. 1 of 10
SUIT FOR RECOVERY OF Rs.3,21,300/-.
ORDER
(I) BRIEF FACTS :- 1.) The present suit is for recovery of Rs.3,21,300/- along-with interest @ 24% per annum. 2.) The plaintiff is in the construction business. The
defendant is the property dealer running his business under the name and style of 'Praveen Nagar Property' from property bearing no.30/410, Trilok Puri, Delhi-110091.
3.) In March, 2015, the defendant approached the plaintiff for construction of building upon Plot No. C-50, Main Road, Shashi Garden, Delhi-110091, admeasuring 60 sq.yds. in the month of March, 2015 (hereinafter referred to as 'suit property'). The plaintiff accepted the proposal for construction of suit property up to third Floor by 31.07.2015 against the total consideration of Rs.5,00,000/- vide agreement dated 05.04.2015. During the ongoing construction, defendant made part payment of Rs.2,75,000/- only.
4.) Thereafter, there was novation in the contract on account of some extra construction work. Thus, a fresh contract dated 01.07.2015 was executed in respect of the extra work with additional cost of Rs.80,000/- out of which Rs.50,000/- was paid on that very day.
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5.) As per the terms of contract, plaintiff executed the assigned work and handed over the possession on 21.07.2015 and demanded balance payment of Rs.2,55,000/-. Despite assurances, defendant did not make the balance payment. Consequently, plaintiff has to make payment to sub-contractors on his own. Instead of making payments, defendant took the lame excuse of non-completion of work as per the contract.
6.) Consequently, plaintiff issued legal notice dated 18.04.2016 demanding the balance amount. The defendant got duly served with the legal notice but to no avail. Left with no option, plaintiff filed the present suit.
7.) Upon receipt of summons, defendant put the appearance and defend the suit.
8.) In written statement, defendant raised preliminary objections as to maintainability of the suit, concealment of material facts and lack of cause of action. It is averred that defendant has already paid Rs.3,75,000/- out of which Rs.3,25,000/- has been paid against acknowledgement and Rs.50,000/- by way of cash. It is further averred that in the second agreement dated 01.07.2015, it was agreed between the parties that in case plaintiff is unable to complete the work on time, he has to pay Rs.5,000/- per day as penalty to the defendant. However, since plaintiff failed to complete the work as per contract, the defendant had to engage another contractor to complete the leftover construction work and had suffered financial and mental loss as he had to pay Rs.4,00,000/- to subsequent contractor. The plaintiff has deliberately not filed the original copy CS No.3172/16 Jamshed Khan Vs. K.M. Gupta Page No. 3 of 10 of the first agreement dated 05.04.2015 on record. Further, defendant averred that he is a retired government officer and he is neither a property dealer nor running any business under the name of Praveen Nagar Property. Though, defendant denied having approached the plaintiff for construction of the suit property. However, admitted that he met plaintiff in the month of March, 2015 through one Praveen Nagar for construction of House No.C- 50, Shashi Garden and a construction agreement was executed on 05.04.2015 in the presence of witness Praveen and it was mutually agreed that construction work would start from 14.04.2015. He denied novation of contract on account of extra work, though admitted extra payment of Rs.80,000/- under pressure from the plaintiff. Remaining averments were denied in toto.
9.) Plaintiff filed replication to the written statement wherein the contents of the written statement are denied and averments made in the plaint are reiterated and affirmed.
(II) ISSUES:-
10.) From the pleadings, following issues were framed
vide order dated 16.02.2017 :-
a) Whether the plaintiff is entitled to recover a
sum of Rs.3,21,300/- along-with pendate lite and future interest @ 24% per annum? OPP
b) Whether the plaintiff has suppressed true and material facts from the Court?OPD
c) Whether the present suit has been filed without any cause of action?OPD
d) Relief.
CS No.3172/16 Jamshed Khan Vs. K.M. Gupta Page No. 4 of 10 (III) EVIDENCE:-
a) PW1- In order to substantiate its case, Sh. Jamshed Khan, plaintiff himself stepped in witness box as PW1 and tendered his evidence by way of affidavit Ex. PW-1/A. In his affidavit Ex. PW-1/A, PW-1 has reiterated the facts averred in the plaint and has placed reliance on the documents Ex. PW1/1 to PW1/6.
i) Ex.PW1/1 - Election ID card.
ii) Ex.PW1/2 - Copy of construction agreement.
iii) Ex.PW1/3 - Complaint dt. 03.03.2016.
iv) Ex.PW1/4 - Four postal receipts of complaint sent to SHO, ACP, DCP and Commissioner.
v) Ex.PW1/5 - Legal Notice dt. 18.04.2017.
vi) Ex.PW1/6 - Two postal receipts of legal notice sent to defendant.
This witness was exhaustively cross-examined by ld. counsel for defendant. During the cross-examination, PW1 has produced construction agreement dt. 05.04.2015 vide Ex.PW1/D1.
b) PW2- Sh. Shiv Chand Tiwari examined as PW2 and tendered his evidence by way of affidavit Ex.PW2/A. He has been cross-examined by counsel for defendant at length.
c) PW3- Sh. Renu Ram examined as PW3 and tendered his evidence by way of affidavit Ex.PW3/A. He has been thoroughly cross-examined by counsel for defendant.
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d) PW4- Sh. Dilshad examined as PW4 and tendered his evidence by way of affidavit Ex.PW4/A. He has been cross- examined by counsel for defendant at length.
Thereafter, vide separate statement of plaintiff dated 21.01.2019, the plaintiff's evidence was closed.
e) DW1- In order to substantiate its case, Sh. K.M. Gupta, defendant himself stepped in witness box as DW1 and tendered his evidence by way of affidavit Ex. DW-1/A. In his affidavit Ex. DW-1/A, DW-1 has reiterated the facts averred in the WS and has placed reliance on the following documents:-
i) Ex.DW1/A- Original second agreement dt. 01.07.2015.
ii) Ex.DW1/B- Photographs of suit property.
iii) Ex.DW1/C- New agreement with the contractor.
iv) Ex.DW1/D- Original receipt dt. 25.07.2015.
v) Ex.DW1/E- Original receipt dt. 27.07.2015.
DW1 has also relied upon Ex.PW1/D2 and Ex.PW1/D3 i.e. photographs of the suit property. He has been exhaustively cross-examined by counsel for plaintiff.
f) DW2- Sh. Rodash Singh has been examined as DW2 and tendered his evidence by way of affidavit Ex.DW2/A. He has been thoroughly examined by counsel for the plaintiff.
g) DW3- Sh. Praveen Nagar has been examined as DW3 and tendered his evidence by way of affidavit Ex.DW3/A. However, his cross-examination could not be conducted as he CS No.3172/16 Jamshed Khan Vs. K.M. Gupta Page No. 6 of 10 failed to appear before the Court.
Thereafter, vide separate statement of counsel for defendant dated 07.12.2022, defendant's evidence was closed.
11.) Arguments heard. Record perused. Considered.
(IV) ISSUE-WISE FINDINGS :-
ISSUE NO.1: Whether the plaintiff is entitled to recover a sum of Rs.3,21,300/- along-with pendate lite and future interest @ 24% per annum? OPP
a) Onus to prove this issue is upon the plaintiff. Since the execution of the agreement, consideration amount, its content and non-payment of balance amount is not in dispute. In these circumstances, the only bone of contention is whether the work was completed as per the construction contract or not. In order to prove the due completion of work, the plaintiff apart from himself has examined PW2 i.e. sub-contractor Shiv Chand Tiwari, who has deposed that he has done electric work at the suit premises and received the payment from the plaintiff after his work.
Thereafter, PW3 i.e. Plumber Renu Ram has been examined by plaintiff, who has deposed that he has not received balance payment from the plaintiff since defendant has not made the payment to the plaintiff till date. PW4 i.e. Dilshad deposed that he has affixed tiles on the suit premises and is the brother of the plaintiff.
b) Per contra, counsel for the defendant argued that since plaintiff has failed to complete the work as per the agreement, the CS No.3172/16 Jamshed Khan Vs. K.M. Gupta Page No. 7 of 10 defendant had to engage another contractor for the remaining pending work and has incurred an additional cost. He further argued that plaintiff has miserably failed to prove his case and rather fortified the stand of defendant. In support he submitted that PW2 in his cross-examination has admitted that he has concluded the pending electric work at the suit premises at the behest of defendant after the work got done by the plaintiff. Meaning thereby, electric work was not concluded by the plaintiff. He further pleaded ignorance about any monetary transactions between the parties. Even PW3 was neither able to place any documentary evidence regarding the completion of the work at the suit premises nor any proof of payment received from the plaintiff towards the said work. PW4 also pleaded ignorance as to any monetary transactions between the parties. Even PW1 in his cross-examination admitted that he has not filed any documentary evidence like photographs or any videography in respect of the construction work done by him at the suit premises. Even he has failed to produce on record any payment proof to the sub- contractors/ labourers hired by him for the construction work at the suit premises. Further in his cross-examination he admitted Ex.PW1/D3 i.e. photographs of the suit property and also admitted non-completion of the work of the external side of the suit property.
c) Though none of the parties have placed any credible evidence in support of their contentions, however, since onus lies upon the plaintiff to prove this issue, he has to discharge his burden by leading affirmative evidence in this regard. Though plaintiff claims that he has completed the entire work, however, no documentary proof of completion has been placed on record. In CS No.3172/16 Jamshed Khan Vs. K.M. Gupta Page No. 8 of 10 the case before hand, since inception, every aspect/ transaction was documented. Initial contract was recorded vide Ex.PW1/2 and its subsequent novation vide Ex.DW1/A. Even the payments made from time to time was duly recorded/ acknowledged in writing. In these circumstances, it is highly improbable that though the entire transaction between the parties is duly recorded in writing, however, no completion certificate has been issued upon completion of the work. Even plaintiff did not bother to collect evidences regarding completion of work such as photographs, payment proofs of electric work, plumbing work etc. This conduct does not fit in the scheme of things. Further, though the plaintiff claims that the construction contract was awarded to him through one Sh. Praveen Nagar and he is one of the witness to the construction agreement, but he has not been examined by the plaintiff whereas the defendant examined him in support of his contentions as DW3. However, his cross-examination could not be completed due to his non-appearance. Further, even DW2 i.e. Contractor who has completed the remaining work for the defendant has been examined by the defendant in support of his contentions who proved the execution of contract between him and the plaintiff. Thus, in totality of circumstances, by all preponderance of probabilities, the plaintiff has failed to discharge onus to prove this issue.
ISSUE NOS. 2 AND 3: Whether the plaintiff has suppressed true and material facts from the Court?OPD AND Whether the present suit has been filed without any cause of action?OPD CS No.3172/16 Jamshed Khan Vs. K.M. Gupta Page No. 9 of 10
a) The onus to prove these issues was upon the defendant. However, the defendant has neither led any evidence nor tendered any documents to show that whether any material fact was concealed by the plaintiff or that suit is not within the limitation or that the present suit is without any cause of action. Further, no ground shown for non-maintainability of the suit in its present form. Thus, mere bald pleadings sans evidence holds no water. Hence, these issues are decided against the defendant.
(d) Issue No.4: (RELIEF):- a) In view of the findings recorded in the above issues, the suit
of the plaintiff filed for the recovery of Rs.3,21,300/- is dismissed being devoid of merits.
No order as to cost.
Decree-sheet be prepared accordingly.
File be consigned to record room after due compliance.
Pronounced in the open Court (AJAY GARG)
on 27.09.2023 Additional District Judge-01
East/KKD Courts/New Delhi
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