{"id":173520,"date":"2008-09-11T00:00:00","date_gmt":"2008-09-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shri-bigneswar-rout-vs-ramesh-kumar-kashyap-on-11-september-2008"},"modified":"2015-11-15T23:03:42","modified_gmt":"2015-11-15T17:33:42","slug":"shri-bigneswar-rout-vs-ramesh-kumar-kashyap-on-11-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shri-bigneswar-rout-vs-ramesh-kumar-kashyap-on-11-september-2008","title":{"rendered":"Shri Bigneswar Rout vs Ramesh Kumar Kashyap on 11 September, 2008"},"content":{"rendered":"
Delhi High Court<\/div>\n
Shri Bigneswar Rout vs Ramesh Kumar Kashyap on 11 September, 2008<\/div>\n
Author: Pradeep Nandrajog<\/div>\n
*                 IN THE HIGH COURT OF DELHI\n\n\n+                        RFA 559\/2004\n\n\n     SHRI BIGNESHWOR ROUT             ..... Appellant\n          through: Mr.Manish Verma, Adv.\n\n\n                               VERSUS\n\n\n     RAMESH KUMAR KASHYAP         ...... Respondent\n         through: Mr.Sunil Lalwani, Adv.\n\n\n                          RESERVED ON:\n                            11.9.2008\n\n\n                         DATE OF DECISION:\n%                            17.9.2008\n\n\n     CORAM:\n     Hon'ble Mr.Justice Pradeep Nandrajog\n     Hon'ble Mr.Justice J.R. Midha\n\n1.   Whether reporters of local papers may be allowed\n     to see the judgment?\n\n2.   To be referred to the Reporter or not?\n\n3.   Whether judgment should be reported in Digest?\n\n\n:    PRADEEP NANDRAJOG, J.\n<\/pre>\n
1.           Appellant was the plaintiff. The respondent was the<\/p>\n
defendant.\n<\/p>\n
2.           Appellant   had    sought   a   decree   in   sum    of<\/p>\n
Rs.4,57,712\/- alleging that the respondent a civil contractor<\/p>\n
awarded to him, the work of designing and executing sanitary<\/p>\n
works at 7 premises being:-\n<\/p>\n
RFA 559\/2004                                           Page No.1 of 9<\/span>\n<\/p>\n
          (i)     B-22, Lajpat Nagar III, New Delhi.\n\n         (ii)    A-139, Shivalik, New Delhi.\n\n         (iii)   C-33, Sainik Farms, New Delhi.\n\n         (iv)    B-33, NDSE Part-II, New Delhi.\n\n         (v)     Rajeshwar Farm House, Chattarpur, New Delhi.\n\n         (vi)    CNG Mother Station, Sarai Kale Khan, New Delhi.\n\n         (vii) H-49, NDSE Part-I, New Delhi.\n\n<\/pre>\n
3.               Claiming that after the works were executed, bills<\/p>\n
were raised for payment due for the work done, totalling<\/p>\n
Rs.2,77,712\/- and alleging that the payment was not made,<\/p>\n
and stating that appellant was entitled to interest @24% per<\/p>\n
annum from the date of each bill, calculating the pre-suit<\/p>\n
interest at Rs.1,80,000\/-, suit for recovery of Rs.4,57,712\/- was<\/p>\n
filed.\n<\/p>\n
4.               In para 4 of the plaint details of the bills raised were<\/p>\n
stated as under:-\n<\/p>\n
         (i) B-22, Lajpat Nagar III, New Delhi – Rs.63,385\/-.\n<\/p><\/blockquote>\n
         (ii) A-139, Shivalik, New Delhi – Rs.26,942\/-.\n<\/p><\/blockquote>\n
         (iii) C-33, Sainik Farms, New Delhi – Rs.38,665\/-.\n<\/p><\/blockquote>\n
         (iv) B-33, NDSE Part-II, New Delhi – Rs.67,970\/-.\n<\/p><\/blockquote>\n
         (v) Rajeshwar Farm House, Chattarpur, N.D. – Rs.44360\/-.\n<\/p><\/blockquote>\n
         (vi) CNG Mother Station, Sarai Kale Khan, N.D. –
\n         Rs.14,430\/-.\n<\/p><\/blockquote>\n
         (vii) H-49, NDSE Part-I, New Delhi – Rs.21,960\/-.\n<\/p><\/blockquote>\n
5.               The respondent denied any outstanding payment<\/p>\n
and pleaded that the appellant was engaged by him for<\/p>\n
RFA 559\/2004                                                 Page No.2 of 9<\/span>
\n executing works only at 3 premises, being B-33, NDSE, Part-II,<\/p>\n
New Delhi; Rajeshwar Farm House at Chattarpur and at A-139<\/p>\n
Shivalik, New Delhi.\n<\/p>\n
6.         In respect of the farm-house at C-33, Sainik Farm, it<\/p>\n
was pleaded that the building belonged to Justice (Retd.)<\/p>\n
Mr.Mahesh Chandra and that the appellant executed certain<\/p>\n
sanitary works at the said building for which payment was<\/p>\n
directly made by the owner of the building.<\/p>\n
7.         Pertaining to the 3 buildings qua which respondent<\/p>\n
admitted that the appellant had executed works at his<\/p>\n
instance, it was stated that running payments were made from<\/p>\n
time to time and when final bills were raised payments were<\/p>\n
made by recording full and final payment on the respective bill<\/p>\n
itself.\n<\/p>\n
8.         It was pleaded that the cause of the suit was rooted<\/p>\n
in a retaliatory action for the reason the wife of the respondent<\/p>\n
had filed a suit against the appellant in respect of some<\/p>\n
property in Delhi.\n<\/p>\n
9.         Needless to state, on the pleadings of the parties<\/p>\n
the only relevant issue was whether the appellant was entitled<\/p>\n
to the suit amount.\n<\/p>\n
10.        Besides examining herself as his witness, appellant<\/p>\n
examined one Girdhar Sahu as PW-2 and Pradeep Kumar as<\/p>\n
PW-3.\n<\/p>\n
11.        Besides     examining   himself    as   his   witness,<\/p>\n
RFA 559\/2004                                         Page No.3 of 9<\/span>
\n respondent examined one Umesh Chaudhary as DW-2.<\/p>\n
12.          Learned Trial Judge held that the appellant having<\/p>\n
not produced any documentary evidence except to prove<\/p>\n
photocopies of the 7 bills pertaining to the 7 properties in<\/p>\n
respect whereof claim was made, which bills were marked as<\/p>\n
Mark-A to Mark-G, no other evidence was led to prove that the<\/p>\n
appellant had executed works at the different sites claimed by<\/p>\n
him in the plaint.        Pertaining to the evidence of the<\/p>\n
respondent, with reference to Ex.DW-1\/1, Ex.DW-1\/2, Ex.DW-<\/p>\n
1\/3,   Ex.DW-1\/4,    Ex.DW-1\/5,   Ex.DW-1\/6    and    Ex.PW-1\/D-1<\/p>\n
learned Trial Judge has held in favour of the respondent and<\/p>\n
hence has dismissed the suit.\n<\/p>\n
13.          Ex.PW-1\/D-1 is a bill on the letter-head of the<\/p>\n
appellant. It is dated 7.2.1995. It pertains to property No.B-<\/p>\n
33, NDSE Part-II, New Delhi.      The bill has been raised for<\/p>\n
sanitary and plumbing work in sum of Rs.36,000\/-. There are<\/p>\n
cuttings in the bill, evidencing that the recipient of the bill had<\/p>\n
certified the same for lesser payment. Noting certain earlier<\/p>\n
payments paid, balance amount has been acknowledged as<\/p>\n
having been received by the appellant by recording a full and<\/p>\n
final settlement of the bill and receipt of payment by the<\/p>\n
appellant.\n<\/p>\n
14.          Ex.DW-1\/1 is a bill dated 7.2.1995.     It pertains to<\/p>\n
sanitary and plumbing work executed at Rajeshwar Farm<\/p>\n
House, Chattarpur.     It is on the letter-head of the appellant.<\/p>\n
RFA 559\/2004                                           Page No.4 of 9<\/span>
\n Like the previous bill, the bill has cuttings, evidencing<\/p>\n
settlement of the bill by the recipient. It records a full and final<\/p>\n
payment being received by the appellant under the bill.<\/p>\n
15.        The bill Ex.DW-1\/2, is dated 17.11.1995. It pertains<\/p>\n
to property No.A-139 Shivalik, New Delhi.         Like the previous<\/p>\n
bills it is on the letter-head of the appellant and has cuttings<\/p>\n
evidencing settlement of the bill by the recipient and receipt of<\/p>\n
full and final payment thereunder by the appellant.<\/p>\n
16.        Ex.DW-1\/4, Ex.DW-1\/5 and Ex.DW-1\/6 are vouchers<\/p>\n
of the sole proprietary firm of the respondent evidencing<\/p>\n
receipt of payment by the appellant on 3 different dates.<\/p>\n
17.        Learned counsel for the appellant urged that there<\/p>\n
was no reason to disbelieve the testimony of the appellant and<\/p>\n
his witnesses.\n<\/p>\n
18.        We are afraid, this argument which is more in the<\/p>\n
nature of a query, takes the cause of the appellant no further.<\/p>\n
19.        We note that learned counsel for the appellant drew<\/p>\n
our attention to the testimony of the appellant wherein he<\/p>\n
refuted his signatures on Ex.DW-1\/1, Ex.DW-1\/2, Ex.DW-1\/3,<\/p>\n
Ex.DW-1\/4, Ex.DW-1\/5, Ex.DW-1\/6 and Ex.PW-1\/D-1.<\/p>\n
20.        But,   when    questioned    as   to    what     was    the<\/p>\n
explanation of the appellant to Ex.PW-1\/D-1, Ex.DW-1\/1 and<\/p>\n
Ex.DW-1\/2, the 3 bills on the letter-head of the appellant,<\/p>\n
learned counsel for the appellant made a vague excuse that<\/p>\n
the possibility of the letter-heads of the appellant being<\/p>\n
RFA 559\/2004                                              Page No.5 of 9<\/span>
\n misused cannot be ruled out.\n<\/p>\n
21.            On what basis did the counsel urge that misuse<\/p>\n
cannot be ruled out, remains a question unanswered by<\/p>\n
learned counsel for the appellant.\n<\/p>\n
22.            Learned counsel for the appellant conceded that no<\/p>\n
suggestion has been put to the respondent when he appeared<\/p>\n
as his witness that the respondent had access to the office of<\/p>\n
the appellant and probably stole blank letter-heads to create<\/p>\n
the 3 bills.\n<\/p>\n
23.            The 3 bills on the letter-head of the appellant shows<\/p>\n
bills   raised    pertaining   to   Rameshwar    Farm    House     at<\/p>\n
Chattarpur, house bearing No.A-139, Shivalik, New Delhi and<\/p>\n
house bearing No.B-33, NDSE Part-II and being raised on<\/p>\n
7.2.1995, 17.11.1995 and 7.2.1995 respectively.         These bills<\/p>\n
run in the teeth of the corresponding bills stated to have been<\/p>\n
raised by the appellant pertaining to the 3 properties.<\/p>\n
24.            We find that the learned Trial Judge has analyzed<\/p>\n
the evidence in the following words:-\n<\/p>\n
        “The defendant, on the other hand, has given enough
\n        proof that he had made payments time to time to the
\n        plaintiff against the bills raised by him. The defendant
\n        has proved on record bills Ex.DW-1\/1 dt.7.2.95 in
\n        respect of Rajesh Farm House Chattar Pur, Bill
\n        Ex.DW1\/2 dated 17.11.95 in respect of A-139, Shivalik
\n        New Delhi and Bill Ex.PW-1\/D-1 dt. 7.2.95 in respect of
\n        B-33, NDSE Part-II, Ex.PW-1\/D-1 is purported to have
\n        been signed by the plaintiff at Point-A and
\n        acknowledges payment.            Likewise Ex.PW-1\/1 is
\n        purported to have been signed by the plaintiff at
\n        Point-A in acknowledgment of payment.                The
\n        defendant has also proved on record the payment
\n        vouchers Ex.DW1\/4 to DW1\/6 which are also<\/p>\n
RFA 559\/2004                                            Page No.6 of 9<\/span>
\n       purported to have been signed by the plaintiff in token
\n      of receipt of the payment on the dates on which they
\n      were prepared. Ex.DW1\/4 is dt.12.4.95 for a sum of
\n      Rs.8000\/- Ex.DW-1\/5 is dt. 11.9.95 and is for a sum of
\n      Rs.6400\/- whereas Ex.DW-1\/6 is dt.20.11.95 for a sum
\n      of Rs.7320\/-. Even though, the plaintiff has denied the
\n      signatures on all the aforesaid documents, the
\n      defendant has in his testimony asserted that the
\n      vouchers and the bills were signed in his presence by
\n      the plaintiff. He has also asserted that the plaintiff
\n      has signed these vouchers and bills at the time of
\n      receipt of payment from him. This assertion of the
\n      defendant is supported by DW-2 Unesh Choudhary
\n      who is an engineer working with the defendant. In his
\n      testimony, this witness has claimed that the plaintiff
\n      has raised bills Ex.DW-1\/1 to DW-1\/3 and has also
\n      signed vouchers Ex.DW1\/4 to DW1\/6. He has also
\n      asserted that the plaintiff has received payment in
\n      cash as well as through cheques. According to him,
\n      the last payment through cheque was made to the
\n      plaintiff on 17.5.95, whereas the last cash payment
\n      was made on 20.11.95. The payment through cheque
\n      has been proved on record through the statement of
\n      account proved on record by the defendant. As per
\n      the statement of account Ex.DW-1\/7 the plaintiff had
\n      received payment by cheque on 29.2.95, 17.4.95 and
\n      17.5.95 amounting to Rs.10,000\/-, Rs.10,000\/- and
\n      Rs.15,000\/- respectively. The plaintiff on his part has
\n      given no explanation at all in respect of the payments
\n      received by him through cheques even though he has
\n      denied payments in cash and has denied his
\n      signatures on the vouchers\/receipts. The plaintiff has
\n      also not explained bills Ex.PW-1\/D-1, DW-1\/1 and DW-
\n      1\/2 which are on his pad letters and appear to be in
\n      his own handwriting. I have myself compared the
\n      signatures of the plaintiff purported to have been
\n      made on the aforesaid vouchers\/bills with his admitted
\n      signatures on the record. They appear to be similar
\n      and I am convinced that the vouchers\/bills contain the
\n      signatures of the plaintiff which he is now denying
\n      with a view to negate the defendant’s defence. The
\n      falsity of the claim set up by the plaintiff is apparent.
\n      He has set up a plea that despite raising bills, the
\n      defendant had failed to pay even a single penny to
\n      him. Yet he has not explained the payments received
\n      by him through cheques on various dates as has been
\n      proved above. He has also admitted in his cross-
\n      examination that he had received payment in
\n      November 1995 from the defendant. Ex.DW-1\/6 is
\n      dt.20.11.95 which records payment of Rs.7320\/- to the<\/p>\n
RFA 559\/2004                                          Page No.7 of 9<\/span>
\n       plaintiff as full and final payment. This lends credence
\n      to the case set up by the defendant that the final
\n      payment was made to the plaintiff on 20.11.95 and
\n      nothing had remained due. Ex.DW-1\/6 clinches the
\n      issue in favour of the defendant.\n<\/p><\/blockquote>\n
      It is pertinent to point out that according to the case
\n      set up by the plaintiff he had carried on sanitary work
\n      from June 1996 to August 1997. The plaintiff has
\n      admitted that he had not written any letter to the
\n      defendant seeking payment of the aforesaid bills. It is
\n      admitted on record that the plaintiff had entered into
\n      a transaction of sale in respect of property No.B-71,
\n      Paryawaran Complex, N.D. with the wife of the
\n      defendant on 30.4.98. The parties are in litigation
\n      over possession of the said property. The wife of the
\n      defendant has filed a suit for declaration\/injunction as
\n      well as for possession against the present plaintiff.
\n      This suit was filed prior to the filing of the present suit
\n      by the present plaintiff. In the said suit, the plaintiff
\n      herein had filed a written statement wherein there is
\n      not an iota of averment that an amount of
\n      Rs.2,77,712\/- was due and payable by the defendant.
\n      This betrays the behavior of a normal human being. It
\n      was the first opportunity with the plaintiff herein to
\n      raise the issue of payment of a sum of Rs,2,77,712\/-
\n      by the defendant. Yet the plaintiff kept silent and did
\n      not make any allegation in that regard. Conspicuously
\n      enough, he did not make these allegations until he
\n      allegedly sent a notice dt. 10.3.99. It appears that the
\n      claim set up by the plaintiff is an afterthought and is
\n      as a sequel or counter blast to the case filed against
\n      the plaintiff by the wife of the defendant. I, therefore,
\n      hold that the plaintiff has failed to prove that he is
\n      entitled to recover the suit amount as well as interest
\n      from the defendant. In fact, he has failed to prove any
\n      cause of action for filing the present suit. Issue Nos.1
\n      and 3 are decided against the plaintiff and in favour of
\n      the defendant.”\n<\/p><\/blockquote>\n
25.        We have no hesitation to concur with the view taken<\/p>\n
by the learned Trial Judge by additionally noting that Ex.PW-<\/p>\n
1\/D-1, Ex.DW-1\/1 and Ex.DW-1\/2 being on the letter-head of<\/p>\n
the appellant are good evidence to non-suit the appellant if for<\/p>\n
no other reason, the sole reason, that the appellant has failed<\/p>\n
RFA 559\/2004                                            Page No.8 of 9<\/span>
\n to explain as to how his letter-heads were used to raise the<\/p>\n
bills.\n<\/p>\n
26.        The appeal is dismissed with costs.\n<\/p>\n<\/p>\n
                                PRADEEP NANDRAJOG, J.\n<\/p>\n
                                J.R. MIDHA, J.\n<\/p>\n
September 17, 2008
\ndk<\/p>\n
RFA 559\/2004                                     Page No.9 of 9<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Shri Bigneswar Rout vs Ramesh Kumar Kashyap on 11 September, 2008 Author: Pradeep Nandrajog * 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: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-173520","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nShri Bigneswar Rout vs Ramesh Kumar Kashyap on 11 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shri-bigneswar-rout-vs-ramesh-kumar-kashyap-on-11-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shri Bigneswar Rout vs Ramesh Kumar Kashyap on 11 September, 2008 - 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