Delhi High Court
The Srijan School vs Harvinder Singh on 21 March, 2016
Author: Ashutosh Kumar
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 79/2016
Date of Decision: 21.03.2016
THE SRIJAN SCHOOL ..... Appellant
Through: Mr.Praveen Mahajan, Advocate.
versus
HARVINDER SINGH ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
ASHUTOSH KUMAR, J. (ORAL)
CM Appln. 10473/2016
Exemption allowed, subject to all just exceptions.
The application stands disposed of.
RSA 79/2016
1. The appellant is aggrieved by the judgment dated 22.12.2015
passed by the learned Additional District Judge-01 (West), Delhi in
RAC No.57/2011 whereby the judgment of the Trial Court dated
27.08.2011 passed in suit No.627/2006, dismissing the suit, was
upheld and affirmed.
2. The respondent/plaintiff brought the suit seeking recovery of
Rs.2,46,230/- along with interest as the balance payment for the work
of construction done by him and his father Kartar Singh, were not
made.
3. The appellant had entrusted the work of construction of the
school premises to the respondent/plaintiff and an agreement to that
effect was signed and executed on 10.08.2012. The work was carried
out as per the specifications and to the satisfaction of the
appellant/defendant. The bills were paid but the balance amount of
Rs.1,81,051/- remained pending and was not paid.
4. Hence the suit by the respondent.
5. The contention of the appellant before both the Courts below
had been that the contract had been entered with Kartar Singh and not
with the respondent who, though, is the son of Kartar Singh. The work
also was carried out by Kartar Singh, which fact was also admitted by
the respondent/plaintiff in his cross examination. Thus what was
argued by the appellant was that in the absence of any privity of
contract between the appellant school and the respondent/plaintiff,
respondent did not have the locus to file the suit. The further ground
taken by the appellant before both the Courts was that the entire
payment had been made to Kartar Singh and that the
respondent/plaintiff could not prove even one instance of any payment
having been made to him. Learned counsel for the appellant drew the
attention of this Court to the evidence of the respondent/plaintiff who
had examined himself as PW-1 before the Trial Court wherein he has
admitted that TDS was deducted on the payments made to Kartar
Singh and him but the same was not filed before the Court. The
respondent/plaintiff was directed to bring the TDS certificate on the
next date. The TDS certificate, referred to above, was never produced
and the respondent took the lame plea that it was in possession of his
father who had expired on 15.07.2007. Learned counsel for the
appellant submits that the suit was filed much before the death of the
father of the respondent/plaintiff on 06.07.2005 whereas Kartar Singh
died on 15.07.20007. In that view of the matter, an adverse inference
ought to have been drawn against the respondent/plaintiff in terms of
Section 114(g) of the Indian Evidence Act, 1872.
6. The appellants had also challenged the final bill (Exh.PW-1/4)
as being forged and fabricated document. But one of the witness
appearing on behalf of the appellant namely Sh.Ashish Jain, DW-1
admitted that the school had engaged Mr.S.P.Garg, as an architect and
that the final bill bears the signature of aforesaid Sh.S.P.Garg. Thus
the ground of the final bill against which part payments were made,
being forged and fabricated was not accepted by both the Courts.
7. The Trial Court, taking into account the evidence of
respondent/plaintiff (PW-1) and documents namely Exh.PW-1/1 to
PW-1/8 which was the agreement dated 10.08.2002, carbon copy of
the bill dated 15.05.2003, bills sent to the school, legal notice dated
29.03.2005 and the postal proofs of the same, came to the conclusion
that the suit was maintainable at the instance of the
respondent/plaintiff and as against the appellant/defendant.
8. The Trial Court as well as the Appellate Court took note of the
fact that Exh.PW-1/1 which is an agreement between the school and
the respondent/plaintiff dated 10.08.2002 bears the signature of two of
the trustees of the school. In that event, it was an admission on the part
of the defendant that the agreement in question was entered into with
the respondent/plaintiff. The agreement also does not mention the
name of Kartar Singh as a contractor but has been signed by the two of
the trustees of the appellant school and the respondent/plaintiff.
9. The issue regarding the agreement not being properly stamped
for any implicit reliance on the same was also discarded by the Trial
Court as Article 5 of Schedule 1 of the Stamp Act, 1989 mandates
stamp duty on an agreement relating to sale of bill of exchange or sale
of Government security of shares. Any agreement or memorandum of
agreement for or relating to the sale of goods or merchandise is
exempted from the stamp duty. Ex.PW-1/1 was, justifiably, found to
be an agreement relating to labour rate for contract of building works,
which fall under the exemptions. Thus there was no requirement of
paying any stamp duty. In the absence of anything contrary shown by
the appellant/defendant, the aforesaid issue whether the unstamped
agreement between the parties could have been relied upon, was also
answered in the affirmative.
10. There is no denial of the appellant/defendant that the building
was not constructed or that complete work was not executed. As has
been noted earlier, the only bone of contention between the parties is
that the work was executed by Kartar Singh and for the same, he was
paid the entire dues.
11. From the evidence adduced on behalf of the parties, both the
Courts below were of the opinion that the respondent/plaintiff and his
father used to work together. It is always not necessary for a father and
son to enter into a partnership agreement for carrying out the work.
Certain contradictions in the deposition of the respondent/plaintiff
(PW-1) with regard to payments is not of any vital importance for a
decision in the aforesaid matter.
12. The First Appellate Court has also taken note of the fact that if
the respondent/defendant did not furnish the TDS certificate despite
directions of the Trial Court, it was upon the appellant/defendant to
have placed it on record. It further took note of the fact that the
appellant sought to place on record copy of Form 16A under Order 41
Rule 27 of the CPC to show payment, against construction work, to
Kartar Singh. The TDS certificate which was placed on record on
behalf of the appellant referred to payment of Rs.26,34,665/- in favour
of Kartar Singh. This obviously was no evidence for the entire
payment of Rs.28,15,716/-. If at all, the claim of the
respondent/defendant had to be rebutted, it was for the appellant to
have brought on record evidence with regard to payment of the entire
amount i.e. Rs.28,15,716/- to either the respondent /plaintiff or to his
father, Sh.Kartar Singh. Thus this Court does not find any anomaly
with the findings returned by the Trial Court as well as by the First
Appellate Court.
13. The proposed substantial question of law by the appellant
namely (i) whether the onus probandi of bringing on record the TDS
certificate was on the respondent/plaintiff; (ii) whether adverse
inference ought to have been taken against the respondent/plaintiff for
not bringing the TDS, in terms of the provisions of Section 114(g) of
the Indian Evidence Act and (iii) whether the respondent/plaintiff had
no locus to file the suit are definitely not the questions of law which
would arise in the present second appeal. The reasons for the same
have already been discussed in this order.
14. Thus in the absence of any substantial question of law, the
present second appeal is dismissed.
CM Appln. No.10472/2016
1. In view of the appeal having been dismissed, this application
has become infructuous.
2. This application is disposed of accordingly.
MARCH 21, 2016 ASHUTOSH KUMAR, J
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