Shri Bigneswar Rout vs Ramesh Kumar Kashyap
2008 Latest Caselaw 1610 Del

*                 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:-

          (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

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,

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.

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

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 also

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 the

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

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