Shri Balwant Singh vs Dr.(Ms.) V.L.Bhargava And Anr.
2012 Latest Caselaw 4056 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Decision: 11.07.2012

+                              CS (OS) 1530 of 2003

Dr.(Ms.) V.L. Bhargava and Anr.                         ... Plaintiffs


                                        versus


Shri Balwant Singh and Anr.                             ... Defendants


Advocates who appeared in this case:

For the Plaintiffs        : Mr.Sudhanshu Batra, Sr. Advocate with
                            Mr.Bhuvan Gugnani, Advocate,

For the Defendants : Mr. Harish Gupta, Advocate


                                         AND


+                              CS (OS) 1173 of 2004

                 (Earlier suit No. 209 of 2003 before transfer)

Shri Balwant Singh                                              ...Plaintiff

                                        versus

Dr.(Ms.) V.L. Bhargava and Anr.                                 ...Defendants

Advocates who appeared in this case:

For the Plaintiff                : Mr. Harish Gupta, Advocate

For the Defendants                : Mr.Sudhanshu Batra, Sr. Advocate
                                   with Mr.Bhuvan Gugnani, Advocate,


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR


CS(OS) 1530/2003 and CS(OS) 1173/2004                             Page 1 of 35
 ANIL KUMAR, J.

*

This judgment shall dispose of the suit of Dr. Bhargava & Anr.,

hereinafter referred to as „owner's‟/Plaintiff; suit for recovery of

Rs.22,69,894.50 with pendente lite and future interest at the rate of

18% per annum and the cross suit of Balwant Singh, hereinafter

referred to as „Builder‟/Defendants for recovery of Rs.2,67,150/- with

pendent lite and future interest at the rate of 24 % per annum on the

principal amount from 1.5.2003 till the decision of the suit.

CS(OS) No.1530/2003

1. The owners contended that plaintiff No.1 is a well known

gynecologist and plaintiff No.2 is a retired Army Officer and brother of

plaintiff No.1. They jointly purchased a land measuring 743.15

sq.mtrs. bearing No.49 on Pine Drive in Malibu Town, District Gurgaon,

Haryana, by a registered sale deed dated 29th March, 2000. The

physical possession of the plot was handed over on 5th May, 2000.

After getting the possession, the plaintiffs contemplated the

construction of a residential house on the said plot and, therefore, they

arranged for a loan to the tune of Rs.27,00,000/- from HDFC Limited.

2. For the purposes of construction, a contractor was also required

and since defendant No.1, Shri Balwant Singh, had been doing contract

job for Sita Ram Bhartia Institute of Science and Research where

plaintiff No.1 was working as a Senior Consultant, he was asked to

quote his rates for material and labor, so that the construction could be

carried out. According to the owners, the builder/defendant No.1 gave

an item-wise list of rates for construction of structure of the proposed

house. The rates quoted by the defendant No.1 were accepted and he

also promised to complete the construction by April 2002. The

defendant No.2, is the son of defendant No.1 and he also works with

him and he also acted as an agent of defendant No.1, his father, from

time to time.

3. The plans for the construction of house were sanctioned on/or

about 19th June, 2000 and initial working drawings were handed over

to defendant No.1 on 27th June, 2000. On 17th July, 2000, the plaintiff

had requested for the advance payment for purchase of stores and,

therefore, a sum of Rs.4,00,000/- was paid by an account payee cheque

drawn on HDFC Bank, New Delhi. The structural drawings for the

basement were submitted to the defendants by M/s. Space Combine

on/or about 15th August, 2000 and excavation was completed by the

defendants for construction in the first week of October, 2000.

4. During the construction, defendant No.1 requested for more

funds and consequently the amounts were paid in three installments by

cheques dated 12th January, 2001; 18th January, 2001 and 20th

February, 2001 for Rs.2,00,000/-, Rs.3,00,000/- and Rs.4,00,000/-

respectively. The plaintiffs had already paid a sum of Rs.4,00,000/- on

17th July, 2000 and, therefore, by 20th February, 2001, the defendant

No.1 had been paid Rs.13,00,000/-.

5. In March 2001, the basement structure foundation walls and

pillars were near completion and, therefore, defendant No.1 demanded

more money and he was asked to submit a written bill. The defendant

No.1, therefore, submitted a bill of Rs.10,59,798/- for the work done till

March 2001. After the said bill, the defendant No.1 claimed a further

sum of Rs.2,00,000/- in advance towards the estimated costs for the

construction of a backside boundary wall. The defendants represented

that in case the advance demanded by them is not paid, they would be

unable to speed up the work. Consequently, in the interest of work and

without verifying the actual measurements at the site and in good faith,

the owners gave a sum of Rs.1,00,000/- in cash to defendant No.2 and

another sum of Rs.1,00,000/- was paid in cash to defendant No.2 on

9th April, 2001 as „on account‟ payment.

6. So that the work could be completed within time, the plaintiffs

continued to make payments from time to time and by 12th January,

2002, the plaintiffs had paid a sum of Rs.48,00,000/- though the

defendants had raised only outer walls of the first floor rear portion and

had laid the roof slab, while the plastering of the basement and the

ground floor was still under progress.

7. The owners contended that they had asked their Architect, Mr.

Paschim Tiwari, to ascertain whether the payments made by the

plaintiffs commensurate with the actual work done by the builder, the

defendants. However, the Architect could not do so as the bills had not

been submitted by the defendants to him. The owners had to appoint

another Architect, Mr. Khushroo Kalyanwala, in the first week of

January 2002 as the earlier Architect of the plaintiff, Ms. Garela had to

leave for London. The subsequent Architect visited the premises on/or

about 14/15th January, 2002. The defendant No.1 was requested to be

present at the site and the Architect had asked the defendant No.1 to

prepare a bill of quantities for the floor-wise total structure constructed

untill then. However, the defendant No.1 did not prepare the bill till the

middle of February 2002, and rather he demanded another sum of

Rs.5,00,000/- from the plaintiffs. The defendant No.1 ultimately

handed over a bill to the Architect of the plaintiff, Mr.Khushroo, on 12th

February, 2002 in an essay form. The Architect of the plaintiffs,

therefore, asked the defendant No.1 to submit the bill in an appropriate

format. The defendant No.1 did not submit the bill in the appropriate

format and rather had showed lump sum charges, which were not in

consonance with the rates which had been quoted by the defendant

No.1 before the commencement of the construction.

8. In these circumstances, it is contended by the plaintiffs that they

appointed M/s. Inderjeet Maitra (hereinafter referred to as „IMA‟) as yet

another Architect for evaluating the construction of the building and to

prepare a bill of quantities. On perusing the bill prepared by IMA, it

transpired that the work executed at the site was only for the sum of

Rs.29,00,000/- though an amount of Rs.48,00,000/- had been paid to

the defendant No.1. Defendant No.1 was, therefore, contacted and the

plaintiffs had three meetings between March 2002 to June 2002 with

the representatives of IMA and two meetings at the site for joint

assessment of the quantity of work executed.

9. In the bill which was prepared by IMA at the instance of the

plaintiffs, defendant No.1 pointed out only the discrepancy about the

kota stone used. It is asserted that since the said item related to

execution of hidden items, IMA accepted the quantities proposed by

defendant No.1 of the said item and corrected his abstracts of the bill of

quantities. The plaintiffs contended that thereafter defendants

submitted fresh bills on 4th March, 2002; 9th May, 2002; 26th June,

2002 and 4th July, 2002. The bills submitted by the defendants were

an attempt to justify the excess payment received by the defendants

and the rates quoted in the bills were at variance with the rates which

were given by the defendant to the plaintiff. Even in these bills

submitted by the defendants, certain items were quoted on lump sum

basis. Therefore, plaintiff no.2 sent a letter to defendant No.2 to clarify

the discrepancies/hidden cost. The letter of 9th July, 2002 was replied

by defendant No.1 by letter dated 17th July, 2002, however, till August

2002 no response was given to the bill of quantities and cost prepared

by IMA despite various requests by the plaintiffs.

10. In order to minimize the disputes and resolve them, the plaintiffs

appointed yet another surveyor, Mr. Ankur Aggarwal, registered

Architect with Haryana Urban Development Authority to assess the

extent of construction carried out. The defendant No.1, however,

refused to be present at the time of joint inspection.

11. The plaintiffs contended that the assessment done by Mr. Ankur

Aggarwal, was almost the same as the bill of quantities which was

assessed by IMA.

12. On examining the bills of quantities that was prepared by

assessors appointed by the plaintiffs, it transpired that the defendants

had misappropriated about Rs.16,00,000/-.

13. According to the bill of Shri Ankur Aggarwal, a sum of

Rs.32,70,778/- was payable by the plaintiffs to the defendants for the

work done by the defendants, however, the defendants were paid a sum

of Rs.48,00,000/-. When defendant No.1 was confronted with the bill,

he represented to submit a fresh bill and consequently in October 2002

another bill was submitted which was, however, also based on per

sq.mtr. cost rather item-wise agreed upon at the time of awarding the

contract. In the end of November, it is asserted that another bill was

given which gave some details of quantities for the basement, however,

again the demand was for lump sum payment for the work of ground

floor and first floor executed by the defendants. The bills submitted by

the defendants also had glaring discrepancies as per the plaintiffs.

14. The plaintiffs also asserted that the defendants had constructed a

building only up to the first floor, with the work of plastering and

flooring still remaining incomplete and thereafter, he abandoned the

work, due to which reason the construction work had come to a

complete standstill. Therefore, the plaintiffs demanded the amount paid

in excess to the defendants by a legal notice dated 23rd November, 2002

and also the damages which were caused to the plaintiffs on account of

the non-execution of the work.

15. The plaintiff pleaded that defendant No.1, thereafter, filed a

fraudulent suit for recovery of Rs.2,67,150/- being suit No.209 of 2003

before in the District Court. The plaintiffs also contended that they

were left with no option but to engage another agency to complete the

construction of work at the risk and cost of the defendant and

thereafter, they too filed a suit for recovery, of the amount of

Rs.15,82,715/- with interest at the rate of 18% amounting to

Rs.4,74,814.50 and thus they filed the present suit for recovery of

Rs.22,69,894.50 along with pendente lite and future interest at the rate

of 18% per annum.

16. The suit is contested by the defendants. The defendants

contended that the rate list filed by the plaintiffs is not the rate list

given by the defendants to the plaintiffs. According to them, the said

list was never prepared by the defendants and given to the plaintiffs. It

was contended that the rate list had been fabricated by the plaintiffs

and the defendants had not even signed the said rate list. The

defendants denied that they had represented to complete the work up to

2002. It was also contended that it was agreed with the plaintiffs that

that the defendants would carry out construction on the basis of lump

sum rates mutually agreed between the parties. The defendants

asserted that the Architects of the plaintiffs gave different drawings for

different works at different times and the plan was changed frequently.

It is contended that two different plans were given to the defendants of

the basement. The structure drawing prepared by M/s. Space Combine

which is filed in the court, was stated to be incorrect and fake than

what was given to the defendants. It was also asserted that the

plaintiffs and their Architects used to visit regularly and apprise the

work and only after proper appraisal, the demands were released by the

plaintiffs to the defendants from time to time. Defendants denied that

the demands were made "on account" basis or that the plaintiffs made

the payments without verifying the actual measurement and it was

instead contended that the demands were made only after physically

verifying the actual measurements. The defendants, however, admitted

that a total sum of Rs.48,00,000/- had been paid to the defendants by

the plaintiffs up to 12th January, 2002. It was also contended that Shri

Paschim Tiwari regularly visited the site and checked the construction

and that neither the plaintiffs nor Mr. Tiwari had ever asked for any

bills from the defendants.

17. The defendants further disclosed that they received Rs.33 lakhs

from 9th April, 2001 to 12th January, 2002 as claimed by the

petitioners. It is asserted that the payments were made only after seeing

the construction (both quality and quantity). The defendant asserted

that the payments were made by the plaintiffs on floor wise basis and

after finishing different phases of constructions which had been

mutually agreed between them. In the circumstances, it is contended

that the payments were after the plaintiff/architect/agent had visited

the site and had appraised the construction. Thus, it is urged that the

payments were directly co-related to the progress of work.

18. The defendant alleged that Mr. Khushroo Kalyanwala wanted to

make some illogical changes in the already constructed building against

the site plan. The defendant had not agreed to the changes suggested

by Mr.Khushroo Kalyanwala, since the proposed changes were in

complete violation of the site plan and Municipal bye-laws and also

since the changes proposed would have increased the cost of the

construction for which the plaintiff would have never agreed. The

defendants asserted that they refused to oblige Mr.Khushroo

Kalyanwala who wanted the cost of construction to increase as his fees

was based on the cost of construction. Suggestion given by

Mr.Khushroo Kalyanwala would have enhanced the cost of Rs.12/-

lakhs to Rs.15/- lakhs as per the defendants. As the defendants did not

agree to Mr.Khushroo Kalyanwala‟s proposal, it is contended that

perhaps at his instance the work was stopped and it was he who sowed

the seeds of discontents between the plaintiffs and the defendants.

19. The defendant contended that they had submitted a bill dated

12th February, 2002 which was based on the mutually agreed lump

sum rate floor wise and extra item/work/expenses which were incurred

by the defendant, on the oral assurance of the plaintiffs. Payments were

also received by the defendants on the basis of the said bill. Since, it

was not agreed to carry out the construction on the basis of the rate list

therefore, the bills submitted by the defendant could not be on the

basis of the same, but instead it was on the basis of mutually agreed

lump sum rate floor wise. The defendant denied the report of the valuer,

Ms.Inderjit Maitra, (IMA), since according to them the report was false

and on the basis of concocted measurements multiplied by impossible

and improper rate and the report was therefore, factually and

technically incorrect. According to the defendant the alleged report

takes the rate from a tender which does not exist. The defendant

emphasized that even according to the plaintiff the report had taken

wrong measurements with regard to the Kota stone and a wrong extract

of cost was made, which was later on corrected. The defendant also

denied the meeting between them and the valuer, Ms.Inderjit Maitra.

20. The defendants also denied that they had raised four different

bills dated 4th March, 2002, 9th May, 2002, 26th June, 2002 and 4th

July, 2002. According to the defendants they had raised bill dated 4th

March, 2002 which was with regard to the construction in the

basement and the ground floor and it was not with regard to the first

floor and certain other constructions and expenses, which had already

been incurred by the defendant and it was also argued that the

plaintiffs in principle had agreed to them to the defendant. According to

the defendant the bills produced by the plaintiffs are false and

fabricated/tempered. The defendant also highlighted the differences in

the revalue rate of the plaintiffs‟ valuer inasmuch Ms.Indrajit Maitra

had assessed the bill amounting to Rs.29/- lakhs, whereas, valuation

by Mr. Ankur Agarwal was of Rs.32,70,000/-. Thus, there was a

difference of more than Rs.3,70,000/-. The defendant had, however,

raised bills on the covered area basis i.e. per square fit and not per

square meter. The defendant also denied that they gave any

handwritten bill to the plaintiff. The defendant also contended that in

the construction business termite treatment is generally called

"Aldrine". According to the defendant 98% of the work entrusted to the

defendant was completed i.e. structural work. It was also urged that the

charges framed by the plaintiff is incorrect and that the rates taken by

the plaintiff are not according to the rate list supplied by the defendant

before starting the work. The defendant, however, agreed that the so far

as the covered area bill was concerned, the measurements agreed in the

site plan signed by both the parties on 29th March, 2003 is correct. In

the circumstances, the defendant denied that any amount is due to

plaintiff from the defendant. The defendant also denied that they are

liable to pay interest and the salary of Chowkidar, Electricity Bill, fees of

Architect, rent amount and cost of termite treatment.

21. The plaintiff filed the replication dated 17th December, 2003 and

denied the pleas and contentions of the defendant and the allegations

made by the defendant against the plaintiff.

CS(OS) 1173 of 2004

22. Before the plaintiffs had filed their suit for recovery of Rs.22,

69,894.50/-, the defendant, Sh. Balwant Singh had filed a suit for

recovery of Rs.2, 67,150/- in the Court of District Judge on 27th May,

2003 contending, inter-alia that 98% of the total work of structural

construction had been completed by the defendant and the work was

stopped on account of Mr.Khushroo Kalyanwala, employed by the

plaintiff, who had wanted to enhance the cost of construction as his

fees was based on percentage basis on the total cost of construction,

which is why, he also wanted to bring his own contractors.

23. The defendant, Sh.Balwant Singh, contended in his suit that as

he had completed 98% of the work, he raised a bill of Rs.53,05000/- as

on 11th February, 2002. According to the said defendant an amount of

Rs.5,05,000/- is outstanding and as the matter could not be resolved

and the plaintiff asked for a bill only for the basement, ground floor,

Chhajja and boundary wall, therefore, the defendant raised a new bill

dated 4th March, 2002 which did not include the construction on the

first floor and certain other construction/work.

24. According to the defendant, Sh. Balwant Singh in October, 2002,

a meeting was held at the residence of the Colonel S.N.Bhargava,

plaintiff No.2, and it was decided that the defendants would raise a bill

on the basis of the covered area and rate per square ft. Consequently a

bill dated 19th October, 2002 for Rs.50,67,150/- only was raised out of

which Rs.2,67,150/- has remained due to the defendants. Since the

plaintiffs/owners failed to pay the amount, a notice was given and

thereafter, the suit for recovery of Rs.2,67,150/- was filed. The

plaintiffs/owners filed the written statement dated 9th September, 2003

in the suit filed by the defendant/builder, reiterating all the pleas and

contentions which were raised by them later on in the suits filed by the

owners against the builder for recovery of Rs.22,69,894.50/-.

25. The suit of the defendant-Sh.Balwant Singh for recovery of

Rs.2,67,150/- was transferred from the District Court to High Court

and was renumbered as CS(OS) No.1173/2004.

26. On the basis of the pleadings the following issues were framed on

18th November, 2004:-

1. Whether the suit is barred by limitation? OPP

2. Whether the contract between the parties was on item wise/lump sum basis and/or rate list? OP Parties

3. Whether the parties had exchanged any rate list and if so which one? OP Parties

4. Whether excess payments have been made by the Plaintiffs for work down by the Defendants? OPP

5. Whether the Defendant is entitled to recover a sum of Rs.2,67,150/-? OPD

6. Whether the Defendant had given the Bill for Rs.10,59,798/- for the basement? OPP

7. Whether the Defendant had completed 98 per cent of the contracted work? OPD

8. Whether Dr. V.L. Bhargav had agreed to pay Shri Balwant Singh Bill dated 19.10.2002? OPD (Balwant Singh)

9. Relief?

27. Later on an additional issue was also framed by this Court on

15th December, 2004.

Whether the plaintiffs are entitled to recover a sum of Rs.22,69,894.50/- together with interest and at what rate? OPP.

28. During the trial, the plaintiff examined Dr.(Mrs.)

V.L.Bhargava, PW1; Sh.Satindra Nath Bhargava, PW2; Ms.Veena

Garella, PW3; Sh.Arvind Deshraj, PW4; Sh.Ankur Aggarwal, PW5;

Sh.Khushroo Kalyanwala, PW6; Sh.Anil Kumar Joshi, PW7 and Sh.Brij

Pal, PW8.

29. The builder/contractor examined Sh.Hardeep Singh, DW1;

Sh.Balwant Singh, DW2 and Sh.Dhanwant Singh, DW3.

30. This Court has heard the learned counsel for the parties and has

perused the pleadings, documents and evidence produced by both the

parties. For adjudicating the controversies the findings on different

issues are as under:

Issue No.1

31. The contract for the house was awarded to the contractor/builder

allegedly on the basis of the photocopy of the rate list on 3rd May, 2000

and the contractor had commenced the work on or after 27th June,

2000, when, according to the owners, the initial work drawings were

submitted to the builder, for excavation through their architect. A sum

of Rs.4/- lakhs was given as advance on 17th July, 2000. The structural

drawings were given to the builder/contractor on 15th August, 2000,

thereafter, the amounts were paid to the builder/contractor from time

to time and by 12th January, 2002 the builder/contractor were paid a

sum of Rs.48/- lakhs. According to the owners, since the

builder/contractor had not raised any bill of the work done, they had

demanded to submit a bill, pursuant to which a handwritten bill for

Rs.10,59,798/- for the work done till March, 2001 (Ex. PW1/31) was

given.

32. According to the plaintiffs though the work done till March, 2001

was worth Rs.10/- lakhs, however, the builder/contractor had been

paid Rs.13/-lakhs and since the builder/contractor had pleaded for

more amount, more advance was given up till 12th January, 2002

amounting to Rs.48/-lakhs. Since the builder/contractor delayed in

preparing the bill of quantity and had allegedly submitted a bill dated

12th February, 2002 in SA form (Ex. PW4) which was also incorrect and

showed the rate on lump sum basis which was not agreed to by the

parties, therefore, Mr.Khushroo Kalyanwala had given a format for

preparation of bill to the builder/contractor which is Ex. PW3, however,

the builder/contractor did not prepare the bill in the said format.

33. According to the plaintiffs, the disputes arose between the parties

in relation to the work done and excess payment made in January,

2002, and thereafter a notice was sent by plaintiffs/owners dated 23rd

November, 2002 and the reply was received from the defendants

through their lawyer dated 10th December, 2002.

34. Relying on AIR 1996 Delhi 198 titled as „State of Haryana v.

Bharat Steel Tube Ltd.‟, learned counsel for the plaintiffs has contended

that the time for suit will begin to run from when the opposite party

refused to pay the claim. In this case, since the claim was declined by

the builder/contractor by their lawyer‟s reply dated 10th December,

2002, therefore, the time will start from that point and as the suit was

filed in July, 2003, and the limitation started running from 10th

December, 2002, therefore, the suit is well within the time. The issue

No.1 is, therefore, decided in favor of the plaintiffs and against the

defendants. It is held that the suit is within time.

Issue No.2.

35. This is the most crucial and relevant issue. The plea of the

learned counsel for the defendants is that the plaintiffs ought to have

mentioned in the plaint that the rate list which was allegedly given by

the defendants to the plaintiffs was in fact a photocopy of the rate list

and not the original rate list. Learned counsel has contended that a

photocopy of the alleged rate list, which was marked as X-1 and later on

exhibited as Ex. PW1/31 was annexed with a list of documents filed

with the plaint, however, this document was described as original at the

time of filing of documents in the said list of documents. Learned

counsel for the defendants relied on Order 7 Rule 14 read with Order 13

Rule 1 of Code of Civil Procedure to contend that it was incumbent

upon the plaintiffs to have stated either in the plaint or in the list of

documents filed along with the plaint in compliance of Rule 14 of CPC

that the plaintiffs had not filed the original rate list, but a photocopy of

the rate list.

36. Learned counsel for the defendants has relied on Delhi High

Court (Original Side) Rules, 1997, specially, Chapter-II dealing with

Institution of Suits, Rule 8 Sub rule (x) contemplates that when a party

sues on the basis of documents in his possession or powers then the

documents must be produced along with the plaint with a proper list

thereof. Rule 8 Sub rule (x) is as under:-

"(x) Whether the document or documents on which the plaintiff sues or the documents in his possession or powers are produced along with the plaintiff and with a per list thereof."

37. Learned counsel has also relied on Rule 9 of Chapter II

stipulating that it was necessary for the plaintiffs to verify the list of

documents produced along with the plaint. Chapter II Rule 9 of the

Delhi High Court (Original Side) Rules, 1967 is as under:-

"9. While examining the plaint, it is also necessary to (a) verify the list of documents produced along with the plaint;

(b) ascertain the correctness of the concise statements, if any, (Order VII, Rule 9); (c) whether a copy of the plaint has been filed for the purpose of drawing up of a decree at the relevant stage; (d) check whether as many copies of the plaint or concise statements on plain paper as there are

defendants have been furnished (Order VII, rule 9); (e) compare with the original any copy of account book produced under Order VII, rule 17 and mark the relevant entries therein; (f) get a true copy of the entry together with its translation either in English or in the language of the Court, supported by an affidavit of the person who translated it where such entry is in a language other than English or the language of the Court; and (g) check whether the plaintiff has paid the requisite fee for the service of summons on the defendants, (Order VII, rule 9).

The officer should also see that for every India date mentioned in the plaint, the corresponding date according to the Gregorian Calendar has been given."

38. Learned counsel has further relied on Part-C Direction regarding

the examination of the plaint (Part-C 1(vii) & (x) and 2(e)) to contend

that the plaintiffs ought to have disclosed that they are filing the

photocopy of the rate list and not the original rate list. Part C Direction,

regarding examination of the plaint as relied on by the defendant is as

under:-

"1. (vii) Whether the documents attached to the plaint (if any) are accompanied by lists in the prescribed form and are in order;

(x) Whether the plaintiff has stated in his plaint regarding the documents, on which he relates his claim and, are not in his possession and a statement in whose possession or power they are:

2. (e) It is not necessary to set out the whole or any part of a document unless the precise words thereof are necessary. It is sufficient to state the effect of the document as briefly as possible (Order VI, Rule 9)."

39. Learned counsel referred to the statement of PW1, Dr. Ms. V.L.

Bhargava, wherein she admitted that rough estimate was given of the

total Electricity, Wood Work, etc. which amounted to Rs.17 Lakh for

basement, Rs.20 Lakh for ground floor and Rs.11 Lakh for first floor

and the statement given by the PW2 Satyendra Nath Bhargava wherein

he stated that he had the rate list so he did not ask the defendants

about the rough estimate of the total cost of construction before

awarding the contract and contended that both the witnesses have

contradicted themselves as PW1 had categorically submitted that rough

cost of construction was given to him while, PW2 has deposed that a

rough estimate of total cost of construction was not disclosed before

awarding the contract or before commencement of the construction.

40. The learned counsel for the plaintiffs has contended that the

writer of the bill Exhibit PW-1/3 is the same as the writer of exhibit PW-

7/2 which is a bill dated 5th November, 2002 which was submitted by

Sh.Balwant Singh to Sita Ram Bhartia Institute. According to him

Exhibit PW-1/3 though has been denied by the defendants, however,

comparison of the handwriting especially some of the characteristics of

some of the letters demonstrates unequivocally that the writer of these

two bills is the same person namely Sh.Hardeep Singh. Learned counsel

has also relied on the testimony of Sh.Balwant Singh as DW-2, who

deposed that PW-7/2 is in the handwriting of his son Sh.Hardeep

Singh, however, the said bill is signed by him and he did not identify

the handwriting of the bill Exhibit PW1/3 which was allegedly given to

the plaintiffs. On behalf of plaintiffs‟ a specific suggestion was also given

that PW1/3 is not being identified by him deliberately and intentionally

and in fact it is in the handwriting of Sh.Hardeep Singh. The learned

counsel has also pointed out the testimony of DW-1 Sh.Hardeep Singh

who has rather deposed that PW7/2 is in the handwriting of

Sh.Balwant Singh. The said witness DW1 rather denied the suggestion

that the writer of documents exhibit PW1/3 and PW7/2 are the same.

The learned counsel has emphatically contended that there can be no

dispute as to in whose handwriting PW7/1, PW7/2 and PW1/3 are

written, since if one takes into consideration the signatures on PW7/1

to PW7/5 which are admitted by DW2 Sh.Balwant Singh to be in his

handwriting and if the said signatures on PW7/1 to PW7/5 are

compared with the photocopies of the signatures on PW1/31, it would

be apparent that the signatures on PW1/31 are by the same person

who has signed the Exhibit PW7/1 to PW7/5 i.e. Mr.Balwant Singh.

The learned counsel has also drawn the attention of this Court to the

signatures of Sh. Balwant Singh on exhibit PW4, the bill dated 12th

February, 2002. It was also allegedly submitted by the defendants to

the plaintiff, Sh.V.L.Bhargava that the bill dated 4th March, 2002 is also

a bill which is signed by Sh.Balwant Singh, DW2 which is Exhibited as

PW.5 and the signatures on exhibit PW5 are the same as the signatures

on PW7/1 to PW7/5. Similarly, Exhibit P7 bears the signatures of

Sh.Balwant Singh at point D6 which is admitted by DW2, which is

same as the signatures on Exhibit P8 which is a bill dated 19th October,

2002 submitted to the plaintiff.

41. The learned counsel has contended that though the bills which

were submitted by the defendants were not signed, however, the letters

written by the plaintiff in respect of those bills were acknowledged by

the defendants. Attention has been drawn to the letter dated 9th July,

2002 which was addressed to Sh.Balwant Singh on behalf of the

plaintiff by Sh.Satyendra Nath Bhargava which has been exhibited as

P6 which were admitted by the defendants as well. In reply to letter

dated 9th July, 2002 the defendant had sent a letter dated 17th July,

2002 which has also been admitted by the defendants and is marked as

Exhibit P7.

42. The learned counsel for the plaintiff has contended that in reply

to communication dated 9th July, 2002 on behalf of plaintiffs, a reply

dated 17th July, 2002 was received which refers to the surveyor‟s

reports exhibit PW1/4 and PW1/4A. In the cross examination of DW2,

Sh.Balwant Singh it was admitted by him that Exhibit P6 letter dated

9th July, 2002 was received by him after an abstract cost which are

exhibits PW1/4 and PW1/4A. In the circumstances it is asserted that

even if it has not been categorically admitted by the defendants that

PW1/4 and PW1/4A were received by them, however, a conjoint reading

of P6 and P7 will make it amply clear that the defendants have

acknowledged the knowledge of PW1/4 and PW1/4A which were the

cost of the surveyor. The learned senior counsel, Mr.Batra has

contended that the rates which were given as abstract cost by Smt.

Madhuri Shah of M/s. Inderjeet Maitra were not denied by the

defendants in their response to the letter, Exhibit P6, which is exhibit

P7. The learned counsel for the plaintiff has also relied on the

deposition of plaintiff No.1 by way of affidavit dated 13th December,

2004 specifically stipulating the rates which according to her were

agreed with the defendants. It is submitted on behalf of plaintiff that the

rates which were disclosed in the deposition have not been categorically

denied by the defendants in their depositions by way of affidavits. He

contended that on perusal of the deposition of defendant No.2

Mr.Hardeep Singh on affidavit dated 27th January, 2005 and of

defendant No.1 dated 27th January, 2005 it is apparent that the rates

deposed by the plaintiffs have not been specifically denied by either of

the defendants. He contends that even in the cross examination no

suggestion has been given to the plaintiff No.1 that the rates given by

her in deposition were incorrect or were not the rates which were agreed

between the plaintiff and the defendants. The learned counsel in the

circumstances contended that the rates deposed by the plaintiff no.1 in

her affidavit, are the rates which tally with the rate list given by the

defendants, a photocopy of which is produced by the plaintiffs which is

Exhibit PW1/31. On behalf of the plaintiffs, reliance has also been

placed on the deposition of Mrs.Veena Garella, PW3 who was the earlier

architect of plaintiffs who had deposed that the rate list, a photocopy of

which is PW1/31 is the rate list which was given to the plaintiff no.1,

Dr. Bharagva in her presence by the defendants. Even no suggestion

has been given to Mrs.Garella in the cross examination that the rate list

exhibit PW1/31 was not given to the plaintiffs by the defendants in her

presence.

43. The primary dispute on which all the issues will also depend is

whether the parties had been in ad-idem in respect of the construction

of the house, to be calculated on the rate wise basis or on the lump sum

basis. The plaintiff has produced a photocopy of the rate list which was

allegedly handed over to plaintiff No.1, Dr.(Ms.) V.L.Bhargava by

Sh.Balwant Singh, DW2. Later on, that document was exhibited as Ex.

PW1/31. PW2 has also deposed that Ex. PW1/31 was given by

Sh.Balwant Singh to Dr.(Mrs.) V.L.Bhargava. Though Mr.Garella, who

was examined as PW3 has also deposed that a photocopy of the rate list

was given by Sh.Balwant Singh, DW2 to Dr.(Ms.)V.L.Bhargava, PW1

and the original of the rate list was not supplied, however, considering

the testimonies of the various witnesses it cannot be inferred on the

basis of even preponderance of probability that the photocopy of the

rate list Ex. PW1/31 was given by Sh.Balwant Singh to plaintiff-

Dr.(Ms.) V.L.Bhargava. This is more so because the parties have failed

to discharge their respective onus to prove or disprove the hand writing

on the alleged photocopy of the rate list Ex. PW1/31. Learned counsel

for the plaintiffs has also not been able to explain specifically as to why

the measurements were carried out, if the work was awarded according

to the builder/contractor on lump sum basis.

44. In the plaint which was filed by the owners, it was not disclosed

that they were only given a photocopy of the rate list and the original

was not given to them, rather what was stated was that they had been

given the price list submitted by the builder/contractor. This is not in

consonance with the various provision noted hereinabove. PW1,

Dr.(Ms.) V.L.Bhargava rather deposed that she does know the

differences between the quotation and the rate list. She also admitted

that the alleged rate list Ex. PW1/31 does not bear the property number

of the owner or their name.

45. The said witness had admitted that earlier they had planned to

add a small basement and later on it was decided to extend the same,

therefore, two plans were given to the builder/contractor. In her cross-

examination the said witness had admitted that she was given a rough

estimate which included the electricity, wood work, etc. which was

around Rs.17/- lakhs for basement, Rs.20/- lakhs for ground floor and

Rs.11/-lakhs for the first floor. She also agreed that the alleged rate list

Ex.PW1/31 did not specify the rate for the wood work and sanitary and

the alleged rate list is only for the basic structure including the door

frames. Learned counsel for the builder/contractor has pointed out

that this fact is also corroborated by the reply to the notice dated 10th

December, 2002.

46. Though the alleged rate list, allegedly given by the

builder/contractor to the plaintiff/owners is on a plain paper, however

PW6, Sh.Khushroo Kalyawala had rather deposed in his cross-

examination that the rate list which was given to the plaintiffs was on

the letter head of the builder/contractor and was also signed by the

builder/contractor. The plaintiffs witness has thus refuted their own

plea that the rate list was given on a plain paper which is also the

photocopy. The plaintiffs have not explained as to why the photocopy

was accepted by them and they did not insist for rate list duly signed by

the defendants. The plaintiffs have not even explained the

circumstances under which they accepted only a photocopy of the rate

list not duly signed by the defendants especially since no written

agreement stipulating the terms of construction of the building was

executed between the parties. It is unbelievable that for construction of

a house involving lakhs of rupees, the plaintiffs would not insist for a

proper rate list duly signed by the defendants.

47. In the circumstances, in order to prove whether the rate list

produced by the plaintiffs which has been exhibited as Ex.PW1/31

incorporates the rates which were agreed between the parties, it was

incumbent upon the owners to have proved the rates stipulated in the

alleged rate list, as the whole basis for the transaction seems to be that

the builder/contractor had carried out the construction in the hospital

where the plaintiff Dr.(Ms.) V.L.Bhargava was working. Though the

record was summoned from Sita Ram Bhartia Institute and Mr.Anil

Kumar, Account In-charge, had produced the documents, for

contending that the signatures and the writing of the defendants which

were exhibited as Ex.PW7/1 and PW7/5, which is alleged to be the

same as the signature on Ex PW1/31, however, the said witness also

deposed that he could not identify the handwriting of the defendants

even on PW1/3, which is allegedly in the handwriting of the defendants.

In the circumstances the plaintiffs should have got the expert opinion of

a handwriting expert whether the signatures on PW 1/3 are of the same

person who had signed the letters PW 7/1 and Pw 7/5. The plaintiffs

have failed to discharge their onus properly in the facts and

circumstances.

48. Though, the learned counsel for the plaintiffs had emphatically

emphasized that if Ex.PW1/3 is read with PW1/31 it would be evident

that the builder/contractor had agreed to carry out the work on the

basis of the rate list, which is the photocopy, Ex.PW1/31. However, it is

apparent that Ex.PW1/3 has not been proved. The Account Official of

the Sita Ram Bhartia Institute has not proved Ex.PW1/3, nor has the

plaintiffs taken any steps to take a specimen of the signatures of the

defendant and got them compared with the disputed signatures of the

defendant on Ex.PW1/3.

49. The learned counsel for the plaintiff has tried to draw inferences

on the basis of the other documents i.e. the valuation report prepared

by the plaintiffs‟ valuer, however, that will not establish the fact that

Ex.PW1/31, the photocopy of the rate list which is not signed, and

which does not bear the name of the plaintiff, or any address, was given

by the builder/contractor and that these rates were agreed to by the

defendants.

50. The learned counsel for the defendants had argued that there was

no written agreement between the parties for the construction by

builder/contractor. However, it is not necessary to have a written

agreement on which the parties should have put their signatures to the

documents, which embodied the terms of the agreement. What is to be

seen and inferred is as to on what term the parties were ad-idem in

respect of the terms of the construction which was to be carried out by

the defendants at the plot of the plaintiffs. Primary dispute, therefore,

remains whether the rate list Ex.PW1/31 was given by the

builder/contractor to plaintiffs or not and the construction had to be

carried out on the basis of those rates? On perusal of the entire

evidence and on the basis of the preponderance of probability, it cannot

be inferred that the rate list Ex.PW1/31 was given by the defendants to

the plaintiffs and the parties had agreed to construction of the building

of the plaintiffs on those rates.

51. On the basis of the evidence led by the parties even the

builder/contractor has failed to establish by reliable evidence that he is

entitled for Rs.2,67,150/- and he had agreed to construct the building

of the owners on lump sum basis.

52. The onus of issue No.2 was on both the parties to prove

respectively that agreement for construction of building was on rate

basis or on lump sum basis. On the basis of preponderance of

probability, it cannot be inferred that the parties have been able to

establish whether agreed rates were on ratewise basis or on lump sum

basis. Consequently, the issue is decided against the owners and the

builder/contractor.

Issue No.3.

53. On the basis of the evidence led by the parties and as has been

discussed in issue No.2, both the parties have failed to establish as to

which rate lists had been exchanged between the parties on the basis of

which the construction was carried out by the builder/contractor. The

onus of the said issue was on both the parties and consequently, the

said issue is also decided against both the parties.

Issue No.4

54. The onus of this issue was on the plaintiff. The plaintiffs could

have established that the excess payments have been made by the

plaintiffs to the defendants. Had the plaintiffs established that the

agreement between the parties was on ratewise basis? Since the

plaintiffs have failed to establish that the agreement was on the

ratewise basis, which is the basis of the plaintiffs to claim that the

excess payments have been made by the plaintiffs to the defendants.

Therefore, this has not been established that the plaintiffs made excess

payments to the defendants for the work done by them. Issue, therefore,

is decided against the plaintiffs.

Issue No.5

55. Since the defendant-Balwant Singh also failed to establish that

the agreement was on the lump sum basis and therefore, on the said

basis he is entitled for Rs.2,67,150/-. The defendant therefore, is also

not entitled for Rs.2,67,150/- in the facts and circumstances, and issue

is decided against the defendant accordingly.

Issue No.6

56. On the basis of the evidence led by the parties and as has been

discussed in detail while deciding the issue No.2, it is apparent that the

plaintiffs have failed to establish that the defendant had given the bill

for Rs.10,59,798/- for the work done. The issue is accordingly decided

against the plaintiff.

Issue No.7

57. The onus of this issue was on the contractor/builder that they

had completed 98% of the work. What was exact term for the

construction of the building has not been established by both the

parties. Consequently, it has also not been established that the

defendant had completed 98% of the contracted work because the terms

and conditions and the extent of work which was to carried out by the

defendants has not been established. The issue is therefore, decided

against the defendant.

Issue No.8

58. The Onus of this issue was on the defendant. From the evidence

led by the parties, the defendant-Balwant Singh has failed to lead

cogent evidence on the basis of which the inferences can be drawn that

the plaintiff had agreed to pay Sh.Balwant Singh his alleged bill dated

19th October, 2002. The said issue is therefore, also decided against the

defendant-Sh.Balwant Singh.

Additional Issue and Relief

59. In the circumstances, neither the owners are entitled for a decree

for a sum of Rs.22,69,894.50/- and interest 80% per annum on the

said amount in suit CS(OS) No.1530/2003 against the

defendants/builder/contractor, nor the builder/contractor Sh.Balwant

Singh is entitled for Rs.2,67,150/- claimed by the builder/contractor in

suit CS(OS) No.1173/2004 against the owner of the building.

60. Consequently, the suit CS(OS) No.1530/2003 of the plaintiffs-

Dr.(Mrs.) V.L.Bhargava & Anr. v. Balwant Singh & Anr. is dismissed.

The suit CS(OS) No.1173/2004 of the defendant, Sh.Balwant Singh v.

Dr.(Ms.) V.L.Bhargava and Anr. is also dismissed. The parties are,

however, left to bear their own costs in the facts and circumstances.

July      11, 2012                                        ANIL KUMAR, J.
'k/vk'