* IN THE HIGH COURT OF DELHI
+ RFA 559/2004
SHRI BIGNESHWOR ROUT ..... Appellant
through: Mr.Manish Verma, Adv.
VERSUS
RAMESH KUMAR KASHYAP ...... Respondent
through: Mr.Sunil Lalwani, Adv.
RESERVED ON:
11.9.2008
DATE OF DECISION:
% 17.9.2008
CORAM:
Hon'ble Mr.Justice Pradeep Nandrajog
Hon'ble Mr.Justice J.R. Midha
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: PRADEEP NANDRAJOG, J.
1. Appellant was the plaintiff. The respondent was the
defendant.
2. Appellant had sought a decree in sum of
Rs.4,57,712/- alleging that the respondent a civil contractor
awarded to him, the work of designing and executing sanitary
works at 7 premises being:-
RFA 559/2004 Page No.1 of 9
(i) B-22, Lajpat Nagar III, New Delhi.
(ii) A-139, Shivalik, New Delhi.
(iii) C-33, Sainik Farms, New Delhi.
(iv) B-33, NDSE Part-II, New Delhi.
(v) Rajeshwar Farm House, Chattarpur, New Delhi.
(vi) CNG Mother Station, Sarai Kale Khan, New Delhi.
(vii) H-49, NDSE Part-I, New Delhi.
3. Claiming that after the works were executed, bills
were raised for payment due for the work done, totalling
Rs.2,77,712/- and alleging that the payment was not made,
and stating that appellant was entitled to interest @24% per
annum from the date of each bill, calculating the pre-suit
interest at Rs.1,80,000/-, suit for recovery of Rs.4,57,712/- was
filed.
4. In para 4 of the plaint details of the bills raised were
stated as under:-
(i) B-22, Lajpat Nagar III, New Delhi – Rs.63,385/-.
(ii) A-139, Shivalik, New Delhi – Rs.26,942/-.
(iii) C-33, Sainik Farms, New Delhi – Rs.38,665/-.
(iv) B-33, NDSE Part-II, New Delhi – Rs.67,970/-.
(v) Rajeshwar Farm House, Chattarpur, N.D. – Rs.44360/-.
(vi) CNG Mother Station, Sarai Kale Khan, N.D. –
Rs.14,430/-.
(vii) H-49, NDSE Part-I, New Delhi – Rs.21,960/-.
5. The respondent denied any outstanding payment
and pleaded that the appellant was engaged by him for
RFA 559/2004 Page No.2 of 9
executing works only at 3 premises, being B-33, NDSE, Part-II,
New Delhi; Rajeshwar Farm House at Chattarpur and at A-139
Shivalik, New Delhi.
6. In respect of the farm-house at C-33, Sainik Farm, it
was pleaded that the building belonged to Justice (Retd.)
Mr.Mahesh Chandra and that the appellant executed certain
sanitary works at the said building for which payment was
directly made by the owner of the building.
7. Pertaining to the 3 buildings qua which respondent
admitted that the appellant had executed works at his
instance, it was stated that running payments were made from
time to time and when final bills were raised payments were
made by recording full and final payment on the respective bill
itself.
8. It was pleaded that the cause of the suit was rooted
in a retaliatory action for the reason the wife of the respondent
had filed a suit against the appellant in respect of some
property in Delhi.
9. Needless to state, on the pleadings of the parties
the only relevant issue was whether the appellant was entitled
to the suit amount.
10. Besides examining herself as his witness, appellant
examined one Girdhar Sahu as PW-2 and Pradeep Kumar as
PW-3.
11. Besides examining himself as his witness,
RFA 559/2004 Page No.3 of 9
respondent examined one Umesh Chaudhary as DW-2.
12. Learned Trial Judge held that the appellant having
not produced any documentary evidence except to prove
photocopies of the 7 bills pertaining to the 7 properties in
respect whereof claim was made, which bills were marked as
Mark-A to Mark-G, no other evidence was led to prove that the
appellant had executed works at the different sites claimed by
him in the plaint. Pertaining to the evidence of the
respondent, with reference to Ex.DW-1/1, Ex.DW-1/2, Ex.DW-
1/3, Ex.DW-1/4, Ex.DW-1/5, Ex.DW-1/6 and Ex.PW-1/D-1
learned Trial Judge has held in favour of the respondent and
hence has dismissed the suit.
13. Ex.PW-1/D-1 is a bill on the letter-head of the
appellant. It is dated 7.2.1995. It pertains to property No.B-
33, NDSE Part-II, New Delhi. The bill has been raised for
sanitary and plumbing work in sum of Rs.36,000/-. There are
cuttings in the bill, evidencing that the recipient of the bill had
certified the same for lesser payment. Noting certain earlier
payments paid, balance amount has been acknowledged as
having been received by the appellant by recording a full and
final settlement of the bill and receipt of payment by the
appellant.
14. Ex.DW-1/1 is a bill dated 7.2.1995. It pertains to
sanitary and plumbing work executed at Rajeshwar Farm
House, Chattarpur. It is on the letter-head of the appellant.
RFA 559/2004 Page No.4 of 9
Like the previous bill, the bill has cuttings, evidencing
settlement of the bill by the recipient. It records a full and final
payment being received by the appellant under the bill.
15. The bill Ex.DW-1/2, is dated 17.11.1995. It pertains
to property No.A-139 Shivalik, New Delhi. Like the previous
bills it is on the letter-head of the appellant and has cuttings
evidencing settlement of the bill by the recipient and receipt of
full and final payment thereunder by the appellant.
16. Ex.DW-1/4, Ex.DW-1/5 and Ex.DW-1/6 are vouchers
of the sole proprietary firm of the respondent evidencing
receipt of payment by the appellant on 3 different dates.
17. Learned counsel for the appellant urged that there
was no reason to disbelieve the testimony of the appellant and
his witnesses.
18. We are afraid, this argument which is more in the
nature of a query, takes the cause of the appellant no further.
19. We note that learned counsel for the appellant drew
our attention to the testimony of the appellant wherein he
refuted his signatures on Ex.DW-1/1, Ex.DW-1/2, Ex.DW-1/3,
Ex.DW-1/4, Ex.DW-1/5, Ex.DW-1/6 and Ex.PW-1/D-1.
20. But, when questioned as to what was the
explanation of the appellant to Ex.PW-1/D-1, Ex.DW-1/1 and
Ex.DW-1/2, the 3 bills on the letter-head of the appellant,
learned counsel for the appellant made a vague excuse that
the possibility of the letter-heads of the appellant being
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misused cannot be ruled out.
21. On what basis did the counsel urge that misuse
cannot be ruled out, remains a question unanswered by
learned counsel for the appellant.
22. Learned counsel for the appellant conceded that no
suggestion has been put to the respondent when he appeared
as his witness that the respondent had access to the office of
the appellant and probably stole blank letter-heads to create
the 3 bills.
23. The 3 bills on the letter-head of the appellant shows
bills raised pertaining to Rameshwar Farm House at
Chattarpur, house bearing No.A-139, Shivalik, New Delhi and
house bearing No.B-33, NDSE Part-II and being raised on
7.2.1995, 17.11.1995 and 7.2.1995 respectively. These bills
run in the teeth of the corresponding bills stated to have been
raised by the appellant pertaining to the 3 properties.
24. We find that the learned Trial Judge has analyzed
the evidence in the following words:-
“The defendant, on the other hand, has given enough
proof that he had made payments time to time to the
plaintiff against the bills raised by him. The defendant
has proved on record bills Ex.DW-1/1 dt.7.2.95 in
respect of Rajesh Farm House Chattar Pur, Bill
Ex.DW1/2 dated 17.11.95 in respect of A-139, Shivalik
New Delhi and Bill Ex.PW-1/D-1 dt. 7.2.95 in respect of
B-33, NDSE Part-II, Ex.PW-1/D-1 is purported to have
been signed by the plaintiff at Point-A and
acknowledges payment. Likewise Ex.PW-1/1 is
purported to have been signed by the plaintiff at
Point-A in acknowledgment of payment. The
defendant has also proved on record the payment
vouchers Ex.DW1/4 to DW1/6 which are alsoRFA 559/2004 Page No.6 of 9
purported to have been signed by the plaintiff in token
of receipt of the payment on the dates on which they
were prepared. Ex.DW1/4 is dt.12.4.95 for a sum of
Rs.8000/- Ex.DW-1/5 is dt. 11.9.95 and is for a sum of
Rs.6400/- whereas Ex.DW-1/6 is dt.20.11.95 for a sum
of Rs.7320/-. Even though, the plaintiff has denied the
signatures on all the aforesaid documents, the
defendant has in his testimony asserted that the
vouchers and the bills were signed in his presence by
the plaintiff. He has also asserted that the plaintiff
has signed these vouchers and bills at the time of
receipt of payment from him. This assertion of the
defendant is supported by DW-2 Unesh Choudhary
who is an engineer working with the defendant. In his
testimony, this witness has claimed that the plaintiff
has raised bills Ex.DW-1/1 to DW-1/3 and has also
signed vouchers Ex.DW1/4 to DW1/6. He has also
asserted that the plaintiff has received payment in
cash as well as through cheques. According to him,
the last payment through cheque was made to the
plaintiff on 17.5.95, whereas the last cash payment
was made on 20.11.95. The payment through cheque
has been proved on record through the statement of
account proved on record by the defendant. As per
the statement of account Ex.DW-1/7 the plaintiff had
received payment by cheque on 29.2.95, 17.4.95 and
17.5.95 amounting to Rs.10,000/-, Rs.10,000/- and
Rs.15,000/- respectively. The plaintiff on his part has
given no explanation at all in respect of the payments
received by him through cheques even though he has
denied payments in cash and has denied his
signatures on the vouchers/receipts. The plaintiff has
also not explained bills Ex.PW-1/D-1, DW-1/1 and DW-
1/2 which are on his pad letters and appear to be in
his own handwriting. I have myself compared the
signatures of the plaintiff purported to have been
made on the aforesaid vouchers/bills with his admitted
signatures on the record. They appear to be similar
and I am convinced that the vouchers/bills contain the
signatures of the plaintiff which he is now denying
with a view to negate the defendant’s defence. The
falsity of the claim set up by the plaintiff is apparent.
He has set up a plea that despite raising bills, the
defendant had failed to pay even a single penny to
him. Yet he has not explained the payments received
by him through cheques on various dates as has been
proved above. He has also admitted in his cross-
examination that he had received payment in
November 1995 from the defendant. Ex.DW-1/6 is
dt.20.11.95 which records payment of Rs.7320/- to theRFA 559/2004 Page No.7 of 9
plaintiff as full and final payment. This lends credence
to the case set up by the defendant that the final
payment was made to the plaintiff on 20.11.95 and
nothing had remained due. Ex.DW-1/6 clinches the
issue in favour of the defendant.
It is pertinent to point out that according to the case
set up by the plaintiff he had carried on sanitary work
from June 1996 to August 1997. The plaintiff has
admitted that he had not written any letter to the
defendant seeking payment of the aforesaid bills. It is
admitted on record that the plaintiff had entered into
a transaction of sale in respect of property No.B-71,
Paryawaran Complex, N.D. with the wife of the
defendant on 30.4.98. The parties are in litigation
over possession of the said property. The wife of the
defendant has filed a suit for declaration/injunction as
well as for possession against the present plaintiff.
This suit was filed prior to the filing of the present suit
by the present plaintiff. In the said suit, the plaintiff
herein had filed a written statement wherein there is
not an iota of averment that an amount of
Rs.2,77,712/- was due and payable by the defendant.
This betrays the behavior of a normal human being. It
was the first opportunity with the plaintiff herein to
raise the issue of payment of a sum of Rs,2,77,712/-
by the defendant. Yet the plaintiff kept silent and did
not make any allegation in that regard. Conspicuously
enough, he did not make these allegations until he
allegedly sent a notice dt. 10.3.99. It appears that the
claim set up by the plaintiff is an afterthought and is
as a sequel or counter blast to the case filed against
the plaintiff by the wife of the defendant. I, therefore,
hold that the plaintiff has failed to prove that he is
entitled to recover the suit amount as well as interest
from the defendant. In fact, he has failed to prove any
cause of action for filing the present suit. Issue Nos.1
and 3 are decided against the plaintiff and in favour of
the defendant.”
25. We have no hesitation to concur with the view taken
by the learned Trial Judge by additionally noting that Ex.PW-
1/D-1, Ex.DW-1/1 and Ex.DW-1/2 being on the letter-head of
the appellant are good evidence to non-suit the appellant if for
no other reason, the sole reason, that the appellant has failed
RFA 559/2004 Page No.8 of 9
to explain as to how his letter-heads were used to raise the
bills.
26. The appeal is dismissed with costs.
PRADEEP NANDRAJOG, J.
J.R. MIDHA, J.
September 17, 2008
dk
RFA 559/2004 Page No.9 of 9