Final Order 37

Order Details: COPY OF JUDGMENT
Pdf Text: CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 1
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
DLCT010019902025
IN THE COURT OF MS. NEELOFER ABIDA PERVEEN :
DISTRICT JUDGE (COMMERCIAL COURT)-01, CENTRAL /
THC / DELHI.
CS (Comm.) No.148/25
CNR NO.DLCT01-001990-2025
AND
COUNTER CLAIM NO.26/2025
CNR NO.DLCT01-008123-2025
In the matter of:
SH. ABDUL HAMEED
S/o ABDUL KHALIQUE
R/o H. No. 8, GALI No. 14,
A2 BLOCK, WEST SANT NAGAR,
BURARI, DELHI-110084.
….……...Plaintiff
VERSUS
RUDRA DEVELOPERS (Through)
Sh. AMIT BHARDWAJ
S/o Sh. BAL KISHAN BHARDWAJ,
R/o 163, NEAR SHIV MANDIR,
MAIN ROAD, DARYAPUR KALAN,
BAWANA, DELHI - 110039
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Geetanjali Dhir v. Abdul Hameed
GITANJALI ASSOCIATES (Through)
Sh. JITENDER DHIR
S/o Sh. SATISH KUMAR
R/o M1/21, MODEL TOWN MOHAN PARK,
PHASE III, DELHI-110009.
….……...Defendants
COUNTER CLAIM NO.26/2025
CNR NO.DLCT01-008123-2025
Ms. GITANJALI DHIR
PROPRIETOR
M/s. GITANJALI ASSOCIATES
W/o Sh. JITENDER DHIR
R/o M-1/21, MODEL TOWN,
MOHAN PARK, PHASE III,
DELHI-110009.
…………. Counter-Claimant
Versus
Sh. ABDUL HAMEED
S/o ABDUL KHALIQUE
R/o H. No. 8, GALI No. 14,
A2 BLOCK, WEST SANT NAGAR,
BURARI, DELHI-110084.
………… Non Counter-Claimant
COMMERCIAL SUIT FOR RECOVERY OF RS.14,47,825/-
ALONGWITH COUNTER-CLAIM OF RS.17,82,500/- WITH
PENDENT-LITE AND FUTURE INTEREST
Date of Institution : 01.02.2025
Date of reserving Judgment : 04.04.2026
Date of pronouncement : 29.05.2026
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Geetanjali Dhir v. Abdul Hameed
::- JUDGMENT -::
1. The plaintiff seeks to recover from the defendants, two in number,
jointly and severally, an amount of Rs.14,47,825/- (Rupees Fourteen
Lakh and forty thousand eight hundred and twenty-five rupees only)
along with interest, on a set of facts that the plaintiff desirous of
constructing a house on the plot of H.No. 53, Khasra No. 19/11, Gali
No. 20, Block A, West Sant Nagar, Burari, Delhi 110084, being its
absolute owner and possessor approached defendant No. 2, who is into
property dealing, and the defendant No.2 introduced the plaintiff with
defendant no. 1, a builder-contractor. That an agreement was entered
into by the plaintiff with the defendants on 25/07/2023 for the
construction of a house by the respondents over the plaintiffs above
property consisting of Stilt parking, Ground Floor, First, Second Floor
and Third Floor, for an amount of Rs.67,00,000/-(Rupees Sixty-Seven
Lakhs Rupees only).
(i) That the stipulated period for completion of construction as per
agreement was 12 to 15 Months from the date of commencement of
work, as the date of start of the work was 21.09.2023, the date of
completion of the construction work accordingly was on or before
21.12.2024. That the plaintiff in pursuance had disbursed to the
defendants a total amount of Rs. 24,50,000/-(Twenty-four Lakhs and
fifty thousand rupees only) by 19/10/2023, and had also paid to the
defendants an amount of Rs.81,200/- for the MCD connection and
police verification. That besides the defendants also usurped an amount
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of Rs.1,50,000/-, received on selling the remnants from the demolition
of the old structure on the mentioned plot.
(ii) That the plaintiff received a WhatsApp message on 9/01/2024
from the defendant no.2, requesting the plaintiff to grant NOC to
defendant no.1, and also on 10/01/2024, at which the plaintiff
approached the defendant no. 1, and was informed by defendant no.1
that the work of construction of the house on the plot is being carried
out in the absence of defendant no. 1, and that defendant no.2 has no
prior experience in construction, and also apprised him of the non-
cooperation on the part of defendant no. 2 in the disbursement of funds
received from the plaintiff for labor and raw materials, rendering the
work environment toxic and non-workable for defendant no.1.
(iii) That as the defendant no.2 was executing the construction
work without the active participation of the defendant no.1, contrary to
the agreement dated 25.7.2023, the plaintiff on 31/01/2024 conveyed to
the defendants via WhatsApp chat dated 31st January 2024 his desire
to terminate the Agreement dated 25th July 2023, and on 03.02.2024
served a notice on the defendants terminating the 'General Agreement
of Construction'.
(iv) That the plaintiff is entitled to recover from the
defendants jointly and severally, Rs.14,47,825/- (Rupees fourteen lakhs
and forty-seven thousand and eight hundred and twenty five rupees
only) from the Respondents, for the amount paid for the construction,
of Rs.24,50,000/-, plus the amount paid towards MCD of Rs.1,00,000/-,
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the amount received from demolition of Rs.1,50,000/-, besides an
amount of Rs. 4,86,000/-for losses on account of idle labour, machinery
and other miscellaneous charges @ 18%, and after adjusting the
expenses incurred by the defendants to the tune of Rs.17,38,175/-,
along-with interest @ 18% p.a. pendente lite and future.
2. The defendants appeared and filed their separate written
statements, defendant no.1 has admitted to the claim of the plaintiff and
offered to pay 20% of the amount claimed as a gesture of goodwill to
protect his reputation. Defendant no.2, on the other hand, while
disputing the plaintiffs claim has also raised a counter claim against the
plaintiff contending inter alia that the plaintiffs suit is a counterblast to
the legal notice issued by the defendant no.2 against the plaintiff on
03.09.2024, calling upon him to pay an amount of Rs.15,50,000/-
(Rupees Fifteen Lakh Fifty Thousand Only) payable towards stage-wise
payment of the construction activities done by the defendant No.2 and
Rs.5,00,000/- (Rupees Five Lakh Only) towards cost of the material
which was not utilised/ lying at the site at the time the defendant No.2
was thrown out of the construction site by the plaintiff.
(i) That the plaintiff instead of complying with the said notice, has put
an imaginary figure in the suit, that the agreement has been terminated
by the plaintiff without any rhyme or reason, that the defendant No.1
exited from the agreement with the consent of the plaintiff, that the
defendant No.2 used best quality material and manpower for the
construction of the house, that the defendant No.2 had completed the
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stage wise work before schedule. That the termination has been done
without any cause of action therefore the plaintiff is liable to
compensate the defendants for damages apart from the expenses
incurred by them.
3. By way of a counter claim the defendant no.2 seeks to recover from
the plaintiff an amount of Rs.15,50,000/- along with interest @ 12% per
annum from 31.01.2024 till date, out of which Rs.10,50,000/- is
claimed towards stage-wise payment and Rs.5,00,000/- is towards cost
of material which was not utilised and was lying at the site at the time
defendant no.2 was forcibly thrown out from the subject property along-
with an amount of Rs.2,32,500/- towards the interest calculated @12%
p.a., in total thereby a sum of Rs.17,82,500/- is claimed as due and
payable against the plaintiff.
4. Plaintiff filed replication and reply to the counter claim as well.
Upon completion of the pleadings the following issues were settled for
adjudication on 21.8.2025, in the main suit:
1. Whether suit is not properly valued for the purpose of Court
Fees and jurisdiction, in view of preliminary objection no.5 of the
written statement filed by defendant no.2 ? If so, to what effect?
OPD2
2. Whether suit is bad for mis-joinder of necessary parties, in
view of preliminary objection no.12 of the written statement filed
by defendant no.2 ? If so, to what effect? OPD2
3. Whether the plaintiff is entitled to recover Rs.14,47,825/- from
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the defendants? If yes, then from which of the defendants? OPP.
4. Whether the plaintiff is entitled to recover interest? If yes, then
at what rate, for which period and from which of the defendants?
OPP
5. Relief.
5. The following issues were settled the same date in respect of the
counter claim:
1.
Whether the counter claimant committed breach of construction
agreement dated 25.7.2023? Onus upon Non-counter claimant.
2.
Whether the counter claimant is entitled to recover
Rs.17,80,000/- including pre-suit interest from the non-counter
claimant? Onus upon counter claimant.
3. Whether the counter claimant is entitled to recover pendente-
lite and future interest? If yes, then at what rate, for which
period? Onus upon counter claimant.
4.
Relief.
6. Common evidence is lead in the main suit and the counter-claim.
The plaintiff stepped into the witness box as PW-1 and tendered his
evidence by way of affidavit as Ex. PW1/A along-with the following
documents: -
1. Certified copy of order dated 27.7.2024 passed in CS
No.164/2024 titled as Abdul vs. Rudra by the Court of Ld.
DJ-01 (Central), THC, Delhi as Ex. PW1/1.
2. Non starter report as Ex. PW1/2.
3. Copy of Aadhar card as Ex. PW1/3 (OSR).
4. Copy of agreement dated 21.9.2023 as Ex. PW1/4
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(exhibited as admitted) (mentioned in his affidavit as Mark
A).
5. Copy of relevant page No.5 of agreement of
construction dated 21.9.2023, showing disbursement of
amount on 19.10.2023 as Ex. PW1/5 (exhibited as
admitted) (mentioned in his affidavit as Mark B).
6. Printout of whatsapp chat dated 10.1.2024 by defendant
No.2 as Ex.PW1/6 (exhibited as admitted) (mentioned in
his affidavit as Mark C).
7. Printout of whatsapp chat dated 23.1.2024 by defendant
No.2 acknowledging receipt of payment as Mark D.
8. Printout of whatsapp chat dated 31.1.2024 as Ex. PW1/7
(exhibited as admitted) (mentioned in his affidavit as Mark
E).
9. Copy of letter dated 3.2.2024 as Mark F.
10. Copy of police complaint dated 7.2.2024 as Mark G.
11. Copy of plaint bearing CS DJ No. 164/2025 in the Court of
Ld. DJ, Central District, THC, Delhi as Ex. PW1/8
(exhibited as admitted) (mentioned in his affidavit as Mark
H).
12. Copy of expenditure incurred by defendant as Mark J
(mentioned in his affidavit as Mark I).
7. The defendant no.1 examined himself as D1W1 and tendered his
affidavit in evidence by way of examination in chief as Ex.D1W1/A.
D1W1 is cross examined by the plaintiff as well as the co-defendant.
Sh. Jitender Dhir the Power of attorney holder of the defendant no.2 is
examined on behalf of defendant no.2 as D2W1 and has tendered his
affidavit in evidence as EX.D2W1/A along-with the following
documents:
1.
Original Special Power of Attorney as EX.D2W1/1.
2.
Office copy of Legal notice dated 3.9.2024 along-with postal receipt
and tracking report as EX.D2W1/2.
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3.
Pen drive containing video as EX.D2W1/3.
4.
Affidavit cum certificate u/s63BSA as EX.D2W1/4.
5.
Police complaint dated 2.2.2024 as Ex.D2W1/5.
8. D2W1 has also been cross-examined by the plaintiff as well as the
co-defendant.
ARGUMENTS
9. Ld. Counsel for the plaintiff/ non-counter claimant submitted
that this is a straightforward case of pre-contractual fraud, fundamental
breach, and conspiracy by both defendants who fraudulently induced
the plaintiff to enter into a Construction Agreement dated 25.07.2023
for Rs.67,00,000/-, collected Rs.26,81,200/- from the plaintiff, the
defendant no.1 abandoned the project before commencement, the
defendant no.2 concealed this abandonment, and performed the works
who is inexperienced in the field as defendant no.2 is only a property
dealer and not a builder. That the actual builder defendant no.1 having
abandoned the project defendant no.2 systematically mismanaged the
project due to incompetence.
(i) That key admissions have been made by the defendants that
prove the case of the plaintiff. That defendant No. 1 during cross-
examination admitted that he had exited from the project even before
the commencement of the construction work at the project site, and that
Sh. Jitender Dhir who is D2W1 had received Rs. 25 Lacs from the
plaintiff behind his back and without his knowledge, and further that
his exit from the project was not consensual. D1W1 also admitted that
the defendant no.2 lacks the requisite experience to carry out the works.
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That defendant no.1 went so far as to admit that if the plaintiff would
have known that defendant no.1 would exit from the project prior to
commencement of construction work, the plaintiff would not have
entered into the agreement.
(ii) That defendant no.1 has offered to pay 20% of the claimed
amount, as explained by him in order to save his reputation and face
value as a builder in the market, that the defendant no.1 however is
liable for the entire amount claimed for the breach of contract. That
D2W1 during cross-examination made clear admissions qua his lack of
expertise and incompetence. That D2W1 has admitted that he has no
educational qualification in construction/civil engineering, no degree or
diploma in civil engineering, and even no license to act as a builder. He
has no idea of cost for construction on 100 sq. yards plot, or of the
material quantities required. That D2W1 admitted to have used wrong
cement grade, ie 53-grade for residential construction instead of 43-
grade. From his own pen drive he could not even identify the stage of
construction. That the pen drive shows only parking Lanter, not "second
floor shuttering" as claimed by the defendant no.2.
(iii) That only the onus qua issue no. 1 of the counter claim is on
the plaintiff. That so far as this issue is concerned, it has been
established by the plaintiff beyond doubt that the defendant No. 2 has
committed fundamental breach of construction agreement dated
25.07.2023 though the standard in civil proceedings is preponderance
of probabilities, not "beyond reasonable doubt". That the Construction
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Agreement dated 25.07.2023, Ex. P-1, created specific, unambiguous
obligations upon defendant No. 2 jointly with defendant No. 1 with
regard to the scope of work, timeline, statutory compliance, stage-wise
performance, quality standards. That as per Clause 1, the defendants
were to construct residential building comprising of stilt parking
Ground Floor + First Floor + Second Floor + Third Floor + 2 roof
terrace rooms on 100 sq. yards plot, as per Clause 4, construction was
to be completed within 12-15 months from commencement date
21.09.2023, with completion deadline of 21.12.2024.
(iv) That as per clause 5 of the Agreement, the defendants were to
ensure compliance with the provisions of laws, rules and by-laws for
the time being in force affecting the said works in the execution thereof
and were also required to give all necessary notices to the first party for
all fines, penalties and losses, incurred by reasons of breach of such
laws, by-laws and regulations and obtain necessary permissions,
connections, and approvals. The work was to be executed progressively
through defined milestones tied to payment schedule, the quality
standards were also prescribed. The defendants were to use M-20/M-25
grade concrete, specified brands (Rathi/Kamdhen/K2 steel, Shri Jung
Rohdhak cement), earthquake-proof RCC structure, first quality
materials. It was implied that the defendants shall exercise reasonable
skill, care, and diligence expected of construction contractors. That
these obligations were joint and several as both defendants signed as
"Second Party".
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(v) That the defendant no.1 had exited even before the date of
commencement ie 21.09.2023. That pre-contractual fraud on the part of
the defendants is established in as much as the defendant no.1 had
signed the Agreement on 25.07.2023 knowing that he would exit while
concealing his intention from the plaintiff. That Defendant no.1
represented that he would perform the contract and the plaintiff relied
оn such representation of the defendants. That the plaintiff would never
have entered into the contractual agreement with the defendants had the
plaintiff known that the defendant no.1 shall abandon the work.
(vi) That as per Section 19 of the Contract Act, 1872 where consent
is obtained by fraud, the agreement is voidable at the option of the party
whose consent was so caused and in the present case, the plaintiff has
validly rescinded the contract. That the defendant no.1 exited without
the consent of the plaintiff and this fact has been admitted by the
defendant no.1 himself. That this unauthorized abandonment on the part
of defendant no.1 is a fundamental breach going to the root of the
contract. That in the WhatsApp dated 10.01.2024 defendant no.2 called
upon the plaintiff to give NOC if the defendant no.1 is not willing to
work, this goes to show that the defendant no.1 had already abandoned
the work, as admitted by defendant no.1 never visited the construction
site from day one.
(vii) That defendant no.2 knew about the abandonment by defendant
no.1 since day one, the defendant No. 2 sought NOC because the joint
contract required joint performance and by January 2024, merely 3
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months after commencement, the contractual framework had collapsed.
Defendant no.2 however concealed the exit of defendant no.1 and
collected Rs. 25 lakh anyways, and continued with the work in which
defendant no.2 lacked expertise. That this constitutes fraud under
Section 17, Contract Act. That though defendant No. 2 has claimed
business operations "since 2018", but the GST Registration Certificate
irrefutably shows registration on 11.03.2023-merely 4 months before
the Agreement. That the building to be constructed was up to fourth
floor, it was not a minor project, it required construction expertise
which the defendant no.2 lacked completely.
(viii) That the defendant no.1 who is an experienced builder with
defendant no.2 made a good team, and the plaintiff had invested under
this impression to secure best services for himself, and would certainly
not have entered into an agreement with defendant no.2 alone to
construct his house up to four floors who was not competent enough in
the field. That the defendant no.2 falsely claimed five-years experience
to induce the plaintiff and then had deliberately concealed the exit from
the project of defendant no.1 and collected payment and actively played
fraud with the plaintiff. That there has also been gross mismanagement
and operational breach on behalf of the defendants as defendant No.2
filed police complaint against its own contractor Sambhu Thekedar
alleging theft of material.
(ix) That this complaint demolishes defendant No. 2's defense that
"best quality material and manpower" was used. How can one
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simultaneously claim excellent project management while filing police
complaints against one's own "best manpower" for theft of material?
That D2W1 admitted in cross-examination that he did not inform the
plaintiff about the theft and contractor problems. This concealment of
material facts constitutes breach of fiduciary duty, and amounts to
active concealment under Section 17(2), Contract Act. That the work
was to commence on 21.09.2023, and defendant no.1 had exited even
prior to 21.09.2023, while the plaintiff terminated the contract on
31.01.2024, ie approximately 4 months into the agreement. That Clause
12 provided for stage-wise payment schedule and that the plaintiff had
paid Rs. 24.5 lakh, besides Rs.2,31,200/-, in addition which covered
Demolition amount admitted by both the defendants, yet upper ground
floor shuttering was never completed, as per the record of videos and
photographs in pen-drive submitted by defendant No.2 let alone second
floor or beyond.
(x) That it was confirmed by D2W1 during cross-examination that
the pen-drive, Ex. D2W1/3, showed only "parking lanter", not even
ground floor completion, certainly not "second floor shuttering" as set
up in the Counter Claim. That D2W1 in cross-examination admitted
using 53-grade cement for residential construction, whereas 43-grade
cement is standard for residential buildings and 53-grade is for
commercial/industrial structures which demonstrates ignorance of basic
construction norms and direct violation of "first quality materials"
specification. That no quality certificates, engineer's reports, or
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compliance documentation were filed, suggesting systematic quality
failures. That there is failure to obtain statutory permissions and
regulatory breach which is clear from the police complaint Ex.
D2W1/5.
(xi) That the counter-claim of Rs.17,38,175/- raised by defendant
no.2 is baseless and conjectural with no material to support the same.
That it has been brought forth in the cross-examination of D2W1 that
no records of actual expenses incurred was maintained, D2W1 could
not even specify material usage. That the claim regarding unutilised
material at the site is preposterous and absurd to say the least besides it
is a physical impossibility that the defendant no.2 could have
accumulated at any one time Rs.20 lac worth of material at the site
measuring only 100sq.mts., which only exposes the falsity of the
defendants claim. That the defendants on the other hand cannot dispute
plaintiff's calculation ie. Rs. 26,81,200 (Paid) - Rs. 17,38,175 (Work
Done) = Rs. 9,43,025 (Balance Due).
(xii) That this amount of Rs.9,43,025 is the advance payment for
work never performed and is in the nature of Money extracted through
fraudulent inducement amounts to unjust enrichment of defendants.
That due to acts and omissions on the part of the defendants, the plaintiff
was forced to search for and engage a new contractor mid-project and
pay premium rates as contractors charge more for
incomplete/problematic projects. That the plaintiff for no fault of his
had to bear costs of new contractor's site survey and assessment and the
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estimated additional cost over fresh project rates of Rs.1,95,650/-. That
the plaintiff's Rs.9,43,025 (balance due) has been blocked/wrongfully
retained by defendants from 31.01.2024, that the plaintiff is entitled to
interest on the same. That interest claimed @ 18% per annum is not
unreasonable in such circumstances as it is reasonable commercial rate
that compensates for time value of money and opportunity cost.
10. Ld. Counsel for the plaintiff has relied upon various judicial
pronouncements cited as:
a. Gulab Chand v. Kubi Lal, AIR 1966 SC 1734
b. Vathsalsa Manickavasagam & Ors. v. N. Ganesan & Anr.,
(2013) 9 SCC 152
c. Bharat Singh & Anr. v. Bhagirathi, 1996 AIR 405, 1966 SCR
(1) 606
d. Krishan Dayal v. Chandu Ram, ILR 1969 Delhi 1090
e. Hadley v. Baxendala (1843-60) ALL ER Rep.460
f. Delhi Airport Metro Express Pvt. Ltd. v. Caf India Pvt. Ltd.
& Anr.
g. Deepa Bhargava & Anr. v. Mahesh Bhargava & Ors., CA
Nos.7310-7311 of 2008
h. Chhanga Lal & Ors. v. MCD, 149 (2008) DLT 460
i. Delhi State Industrial Infrastructure v. M/s. PNC Delhi
Industrial Infra Pvt. Ltd., FAO (OS)(COMM) 107/2019
j. Maula Bux v. Union of India, AIR 1970 SC 1955
k. General Manager, Kerala SRTC v. Susamma Thomas,
1994 AIR 1631
l. S. Parameswaran v. S. Sarveswaran & Ors., (1960) 1 MLJ
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468.
m. M/s. Tomorrowland Limited v. Housing and Urban
Development Corporation Limited and Anr., SLP (C)
No.43338 of 2016
n. Ghaziabad Development Authority v. Balbir Singh, Civil
Appeal No.7173 of 2002
11. As already noted the defendant no.1 has come out in full
support of the plaintiff, defendant no.2 having contested the suit and
raised a counter claim, Ld. Counsel for defendant no.2 contended that
the plaintiffs claim is baseless and a figment of his imagination. That
all the figures projected have no basis in any material or evidence. That
this goes to show that the plaintiff’s suit is nothing but a counterblast to
the plaintiff’s legal notice. That the plaintiff as an arm twisting device
also lodged a misguided criminal complaint in which due to lack of
substance no action was taken as none was warranted. That the plaintiff
and the defendant no.1 have joined hands to harass and pressurize the
defendant no.2, that the defendant no.2 has initiated criminal and civil
action against the defendant no.1 who is a defaulter and there is a
cheque bounce case also going on against him.
(I). That the plaintiff colluded with the defendant no.1 to
pressurize the defendant no.2 into withdrawing the said proceedings
against the plaintiff. That a bare reading of the affidavit in evidence of
defendant no1 would go to show that the same has been prepared at the
instance and dictation of the plaintiff, as it is along the same lines as the
plaint, the same counsel who drafted the plaint seems to have prepared
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the affidavit in evidence of the defendant no.1 also, defendant no.1 has
deposed in respect of those facts of which the plaintiff had personal
knowledge not defendant no.1. That the affidavit of defendant no.1 and
his all statements therefore are liable to be disregarded. That the
collusive understanding between the Plaintiff and Defendant No.1 has
surfaced explicitly during trial, and not merely from pleadings or
conduct.
(ii). A particularly telling instance arose during the cross-
examination of Defendant No.1, when learned counsel for Defendant
No.2 specifically questioned him regarding the quantum of
compensation allegedly payable by Defendant No.1 to the Plaintiff. In
response, Defendant No.1 stated that he would pay only 20% of the
alleged compensation. Crucially, this assertion was not supported by
any contractual clause, document, settlement, or pleading on record.
When further questioned by counsel for Defendant No.2 to identify any
document forming the basis of this so-called 20% liability, Defendant
No.1 candidly admitted that he had no document whatsoever to support
such a claim and that the figure of 20% had been stated "for the sake of
it". That this admission is of great significance, as it exposes that the
alleged apportionment of liability between the Plaintiff and Defendant
No.1 is not founded on any legal or contractual framework, but is
entirely arbitrary and self-serving.
(iii). The Plaintiff's silence and acquiescence to such an
unsupported stance, coupled with his failure to seriously pursue any
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determinative relief against Defendant No.1, reinforces the inference
that Defendant No.1 is being used as a convenient ally rather than a
genuine adversary, and that both are acting in concert to shift the entire
burden onto Defendant No.2. Such conduct strikes at the root of
adversarial fairness, seriously undermines the credibility of the
Plaintiff's case, and constitutes a clear instance of collusion and abuse
of the judicial process, warranting strict adverse scrutiny by this Court.
(iv). That the plaintiff’s suit is absolutely without any cause of action
against the defendant no.2. That the defendant no.1 with the consent of
the plaintiff had exited the agreement. That the plaintiff was fully
satisfied with the quality of the construction being raised by the
defendant no.2, otherwise the plaintiff would not have made the
stagewise payment. That the plaintiff even after coming to know of the
exit of the defendant no.1 had transferred amounts as is evident from
the whatsapp messages relied upon by the plaintiff himself. The
plaintiff’s acquiescence is writ large in his conduct, he infact had no
problem in the execution of the works by the defendant no.2 without
the participation of the defendant no.1. That upon execution of the
agreement and handing over of the site, defendant no.2 immediately
mobilized skilled and unskilled labour, Construction machinery and
shuttering material and Building material including cement, steel,
aggregates and allied items.
(v). That defendant no.2 completed construction work up to second
floor shuttering, and this fact is supported by defendant no.2’s evidence,
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is corroborated by video recordings exhibited on record, and has been
admitted by the plaintiff himself during cross-examination. That the
plaintiff was fully aware that the construction was being raised by the
defendant no.2 and the defendant no.2 only to ensure that later there are
no such issues arising from the agreement had called upon the plaintiff
to grant NOC to the defendant no.1 as to the knowledge of the plaintiff
defendant no.1 was not contributing at his site. That the defendant no.1
time and again was insisting upon an NOC from the plaintiff as he was
not finding it convenient to devote time and energy to the plaintiff's site.
That the plaintiff alleges that the construction was delayed by a month
but has failed to show how.
(vi). That despite completion of major construction stages, the
plaintiff failed to adhere to his contractual obligation of releasing stage-
wise payments. Payments were either delayed or not released at all,
compelling defendant no.2 to continue work by arranging funds from
personal resources and market credit.That defendant no.2 repeatedly
requested the plaintiff to clear outstanding dues so that construction
could proceed smoothly. However, instead of settling accounts, the
plaintiff began creating obstructions at the site and withholding
payments without any contractual jurisdiction.
(vii). That in complete violation of the agreement and settled
principles governing construction contracts, the plaintiff unilaterally
and illegally terminated the agreement, without issuing any valid show-
cause notice, conducting any joint inspection, measurement, or
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assessment of work done. That thereafter, the plaintiff forcibly
restrained defendant no.2 from entering the site, effectively the site,
effectively dispossessing him and preventing him from completing the
remaining work, removing his construction material lying at the site and
reconciling accounts or preparing an inventory.
(viii). That the plaintiff himself is not sure what amounts he has paid
and what amounts he is claiming towards what. That at one place he
says that he paid Rs.24 Lacs at another place he say he paid Rs.24.50
Lacs and still another place he claims to have paid Rs.26.50 Lacs.
Further for the MCD charges somewhere as per his convenience he
claims to have paid Rs. One Lac at another place Rs.81,200/-. That the
amount claimed towards remanents of demolition material is nowhere
mentioned in the legal notice. That the plaintiff earlier had instituted
suit for recovery on the same cause of action ie. CS 164/2025 for
Rs.4,93,025/- and has failed to explain how this amount of around Rs.
Four Lacs has become Rs. Fourteen Lacs after the return of the plaint.
That all figures are mere estimates based on pure assumptions. That the
conduct of the plaintiff in relation to the earlier suit claiming an amount
of Rs.4,93,025/- itself demonstrates that the present proceedings are
founded on fabrication, arbitrariness, and abuse of process of law.
(ix). That the said earlier suit was instituted on the very same cause
of action, arising out of the same construction agreement and alleged
grievances, yet the Plaintiff had then quantified his claim at
Rs.4,93,025/- without any cogent computation, supporting documents,
-- 21 of 97 --
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or contractual basis. The Plaintiff failed in that suit as well to produce
GST-compliant invoices, E-Way Bills. measurement books, expert
reports, or any contemporaneous record substantiating the alleged loss
or excess payment. The figure of Rs.4,93,025/- was not derived from
any stage-wise reconciliation, contractual clause, or audit exercise, but
was merely a self-serving and arbitrary number, seemingly invented to
create a colourable cause of action. Significantly, after abandoning the
said proceedings, the Plaintiff has now approached this Court with a
dramatically inflated claim of Rs.14,47,825/-, without explaining how
the earlier figure was erroneous, withdrawn, or superseded, thereby
exposing that the initial claim itself was false and speculative in the first
place.
(x). The absence of any explanation as to how the alleged loss
magically escalated from Rs.4,93,025/- to nearly three times that
amount conclusively establishes that the earlier suit was frivolous,
vexatious, and fabricated, filed only as a pressure tactic against
Defendant No.2. Such conduct squarely attracts the doctrine of abuse
of judicial process, disentitles the Plaintiff to equitable relief, and
seriously impeaches his credibility, rendering both the earlier and the
present claims legally untenable.
(xi). That the Plaintiff's claim is riddled with self-contradictions. In
the earlier suit (since withdrawn), the plaintiff claimed Rs.4,93,025/- on
the same cause of action. In the present suit, the claim is inexplicably
enhanced to Rs.14,47,825/-, without any explanation or calculation.
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The plaintiff has deliberately suppressed Annexure P-6, which formed
the basis of the earlier suit, thereby violating the doctrine of clean hands.
Such suppression and inconsistent pleadings render the plaintiff’s case
liable to be dismissed on this ground alone.
(xii) That defendant no.2 incurred expenses amounting to
approximately Rs.22,00,000/- towards procurement of construction
material including cement, steel, shuttering material and aggregates,
engagement and payment of skilled and unskilled labour and site-
related logistical expenses. That the plaintiff thereafter continued
construction on the very structure raised by defendant no.2, which
clearly establishes that the work executed by defendant no.2 was
structurally sound, the plaintiff derived direct benefit from the labour
and material invested by defendant no.2 and the plaintiff cannot
approbate and reprobate by using the work and simultaneously refusing
to pay for it.
(xiii) That in view of the plaintiff's persistent default, defendant no.2
was constrained to issue a legal notice dated 03.09.2024, calling upon
the plaintiff to clear outstanding stage-wise payments, compensate for
material lying at site and settle accounts amicably. That the plaintiff
deliberately chose not to reply to the said legal notice, nor did he make
any effort to resolve the dispute, thereby compelling defendant no.2 to
invoke his legal remedies. That defendant no.2 has filed a counter-claim
seeking recovery of Rs.17,82,500/- which comprises of Rs.10,50,000/-
towards unpaid stage-wise construction work, Rs.5,00,000/- towards
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cost of construction material purchased and lying unused at the site
when defendant no.2 was forcibly dispossessed and Rs.2,32,500/-
towards interest @ 12% p.a. That the plaintiff infact is liable to pay
Rs.10,00,000/- for the construction raised by the defendant no.2 as the
construction was complete till the second floor shuttering.
(xiv) That the plaintiff, in order to escape his liability under the
agreement had unlawfully without any rhyme or reason rescinded the
contract unilaterally when under the agreement, the plaintiff had no
power to cancel the Construction Agreement midway unilaterally. That
the plaintiff has admitted to have paid Rs.24,50,000/- only against
Rs.25 Lacs required to be said as per agreement. That the plaintiff used
best quality material and the construction being raised was as per the
terms of the agreement and to the satisfaction of the plaintiff. For such
reasons, it is the plaintiff despite alleging so had not been able to pin
point as to how the construction was sub-standard. That the plaintiff is
also liable to pay for the cost of the material lying at the site that the
defendant no.2 could not remove as he was forcibly ousted and was
wrongly utilised by the plaintiff in the construction.
(xv) That the counter-claim is supported by oral testimony of
defendant no.2, documentary evidence including invoices, bills, and
site videos and admissions made by the plaintiff during cross-
examination regarding completion of construction stages and
continuation of work on the same structure. The defendant no.2 has
filed the video of the construction site and the construction done by the
-- 24 of 97 --
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defendant no.2 which has been recorded in a pen-drive which is already
on record as Ex.D2-W1/3 and the Affidavit-cum-Certificate under
Sec.63 BNS as Ex.D2-W1/4. That permitting the plaintiff to escape
liability despite enjoying the fruits of defendant no.2’s labour and
material would amount to unjust enrichment, which is impermissible in
law and equity, especially in a commercial dispute governed by strict
contractual discipline.
(xvi) Ld. Counsel for the defendant, on the other hand, relied upon
the following cases:
a. Alopi Parshad & Sons Ltd. v. Union of India AIR 1960 SC
588; 1960 SCR (2) 793.
b. Mahanagar Telephone Nigam Limited v. Tata
Communications Limited (2019) 5 SCC 341.
c. State of Rajasthan v. Associated Stone Industries AIR 1998
SC 2014.
d. Associate Builders v. Delhi Development Authority (2015)
3 SCC 49.
e. Air India Ltd. v. GATI Ltd. 2015 SCC OnLine Del 10220
f. Sudhir Kumar @ S. Baliyan v. Vinay Kumar G.B. 2021 SCC
Online SC 734; (2021) INSC 484.
DISCUSSION
13. The plaintiff and the two defendants entered into a
‘Construction Agreement’ on 25.7.2023 for raising of construction over
the plaintiff’s property after demolishing the existing structure, the
-- 25 of 97 --
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Page No. 26
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plaintiff rescinded the agreement vide whatsapp message on 31.1.2024
alleging material breach of its terms on the part of the defendants and
has claimed compensation/damages in the amount of Rs. 14,47,825/-, in
total, under different heads after accommodating for the estimated
expenditure incurred on the construction raised till date, from both the
defendants, jointly and severally. The defendant no.1 one of the parties
to the agreement acknowledges the breach and concedes to his liability
to the extent of 20% of the amount claimed. The defendant no.2 for
wrongful termination of the agreement by the plaintiff on the other hand
raises a counter claim of Rs.17,82,500/- with interest ie against the
plaintiff by way of damages for the loss occasioned also under two
heads in the main. This in a nutshell is the scope of the controversy
involved.
14. The execution of the Construction Agreement, the parties
thereto, the terms and conditions thereof, all are admitted facts. The
claim of the plaintiff is founded on alleged material breach of its terms
at the hands of the defendants, while the defendant no.2 seeks damages
for its wrongful termination, issue no.1 in the counter claim on such
alleged material breach of the terms of the Construction Agreement is
framed in this regard as follows:
1.
Whether the counter claimant committed breach of construction
agreement dated 25.7.2023? Onus upon Non-counter claimant.
15. It would be most apt if the discussion were to commence with
the above issue as findings thereon would have consequential bearing
-- 26 of 97 --
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on all other issues framed, in the main suit as well as the counter claim
of defendant no.2. To appreciate the contours of the allegations, the
exact reason behind the rescinding of the contract by the plaintiff, the
discussion must necessarily commence with the testimony of the
plaintiff for the onus is placed on the plaintiff qua this issue as it is the
plaintiff whose cause of action is premised on alleged breach of the
Construction Agreement. It is in his statement as PW-1 that the
defendants no.1 and 2 are Contractors (Builders) and property dealers,
who provide their services in the construction of infrastructure i.e.,
buildings.
16. That the defendant No. 1, Sh. Amit Bhardwaj, proprietor of Rudra
Developers, is experienced and expert in construction of houses and
villas, whereas defendant No. 2, Smt. Geetanjali Dhir, Proprietor M/s.
Gitanjali Associates, with no prior experience in construction business
was there to assist defendant No. 1. That he was desirous of constructing
a house on the plot of H.No. 53, Khasra No.19/11, Gali No. 20, 110084,
Block A, West Sant Nagar, Burari, Delhi, and had approached
defendant No.2 who is into property dealing and the defendant No.2
introduced him with defendant No.1, who is into the construction and
building of houses.
17. That before engaging the services of the defendants, he
requested the defendants to show some house constructed by the
defendant No.1 and to boost his confidence he was taken to show one
newly constructed house by the defendant No.1. That he expressed
-- 27 of 97 --
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desire to defendants that the house on the above-mentioned plot would
be constructed by defendant No. 1, therefore he hired the defendants for
their services to construct a house on his above-mentioned plot. That he
and defendants signed an agreement on 21/09/2023 wherein he entered
into a contract with the defendants for the construction of a House
consisting of Stilt parking, Ground Floor, First, Second Floor and Third
Floor. That he had already disbursed a sum of Rs.24,50,000/- (Twenty-
four Lakhs and fifty thousand rupees only) to the defendants by
19/10/2023. PW-1 identified the signatures of the defendant no. 2 in
token of receipt of the payments of Rs.14,50,000/- & Rs. 10,00,000/- at
point 'E' & 'F' on page 5 of the Agreement.
18. That he had received a WhatsApp message on 10/01/2024 on
his mobile No.9899984395 from the defendant No.2's mobile
No.8860268124, thereby requesting him to grant NOC to defendant
No.1 for resiling from the contract agreement. That the defendant No.2
with no prior experience was desirous of constructing his house all
alone at his above referred plot. That he had also paid to the defendants
an amount of Rs.81,200/- for the MCD connection and police
verification. That the defendants also usurped the amount of
Rs.1,50,000/-, which the defendants received from selling the remnants
from the demolition of the old structure on the mentioned plot, which is
clear from printout of the WhatsApp Chat dated 23.01.2025 by the
defendant no.2 acknowledging the receipt of the said payment.
19. That as per the agreement for execution of the work, the
-- 28 of 97 --
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tentative cost of the construction was calculated at Rs.67,00,000/-
(Rupees Sixty-Seven Lakhs Rupees only), the stipulated period for
completion was 12 to 15 months from the date of commencement of
work. That as the stipulated date of commencement of the work was
21.09.2023, the date of completion of the construction work was on or
before 21.12.2024. That though he had performed all the formalities
and technicalities well in time for completion/execution of the tendered
work but the defendants were unable to provide the necessary co-
operation vis-a-vis constructing the house and, the defendant no.2 had
approached him from time to time to execute a NOC in favour of
defendant No.1. That he approached the defendant No. 1 in regard to
the NOC request by defendant No. 2, wherein the defendant No.1
informed that the work of construction of the house on the above-
mentioned plot was being carried out in his absence.
20. That the defendant No.1 affirmed that the defendant No. 2 had
no prior experience of construction and hence forth any mishap at
construction site would be attributed to defendant No. 2. That the
defendant No.1 admitted non-co-operation on the part of defendant
No.2 with defendant No.1 regarding disbursement of funds received
from him for the labour and raw materials, the work environment
thereby had been rendered toxic and non-workable. That the defendant
No.2 had requested him to issue NOC to defendant No. 1 but the
defendant No.1 had not issued any letter/communication for NOC to
him directly, which clearly shows the fact that the defendant No.2 was
-- 29 of 97 --
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executing the construction work without the active participation of
defendant No. 1 making the defendants liable to pay damages to him
for causing negligence in execution of the tendered work as per the
contract agreement.
21. That on 31/01/2024, he intimated to the defendants via
WhatsApp chat about his desire to terminate the Agreement dated
21.09.2023, on the ground that the defendant No.1 was not actively
engaged in the construction of the plaintiff's building on the above-
mentioned plot. That there were major irregularities in making the
payments by the defendants to the stake holders i.e., thekedars,
suppliers of raw materials etc, which delayed the construction of the
house by one month. That on 03.02.2024, he had served notice in
writing to the defendants intimating the defendants regarding
termination of the 'General Agreement of Construction' on the grounds
of breach of contract and fraud played by the defendants. That he tried
his best again and again by approaching the defendants to hand over the
remaining amount.
22. That defendant No.1 was willing and accepting the fact that a
breach of contract has taken place and was ready to settle the dispute
amicably, but defendant No. 2 remained adamant about not resolving
the disputes. That he had filed a police complaint against the defendants
on 07/02/2024 in the Burari Police Station for cheating under Sections
415, 418 and 420 IPC received in the police station under DD No.104
dated 07.02.2024. That he had given the defendants the complete details
-- 30 of 97 --
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of claims as to the remaining amount to be returned to him and loss &
damage suffered by him due to delay in execution of the work attributed
to the defendants.
23. That he is entitled to recover Rs.14,47,825/- (Rupees fourteen
lakhs and forty-seven thousand and eight hundred and twenty-five
rupees only) from the defendants on account of the amount due and the
damages as per following details:
Amount paid for construction +24,00,000/-
Amount paid towards MCD +1,00,000/-
Amount received from demolition +1,50,000/-
Payment due for losses on account +4,86,000/-
of idle labour machinery and other misc. charges
Expenses incurred by the defendants -17,38,175
TOTAL +14,47,825
24. That he had earlier filed suit bearing CS DJ/164/2025 for
Recovery on 15/02/2024 in the Court of Ld. District Judge, Central
District, Tis Hazari, Delhi, which was returned for presenting the same
before the appropriate Ld. Commercial Court having the jurisdiction
vide order dated 27.07.2024. That on 12.08.2024, he had filed an
Application for Pre-Institution Mediation before the Mediation/
DLSA/Central Delhi, Tis Hazari Courts, Delhi against the defendants.
That the defendants despite service of notice chose not to appear for
mediation and the Non-Starter Report to this effect is EX.PW1/2. That
the expenditure incurred by the defendant is to the tune of
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Rs.17,38,175/- as per Mark -I. That the defendant no.1 has sought to
shift the liability upon defendant no.2 whereas both the defendants
acted in concert.
25. That the defendant no.1’s offer to pay 20% of the amount is a
tacit admission of their guilt but is insufficient as they are required to
pay the whole amount as claimed. That the Written Statement and
counter-claim filed by defendant No. 2 are frivolous and baseless.
defendant No. 2's claim of Rs. 15,50,000/- (Rs. 10,50,000/- for stage-
wise payments and Rs. 5,00,000/-for unutilized materials) is
unsubstantiated, as no material were left at the site, and work was
incomplete/substandard. That their legal notice, dated 03.09.2024 is a
counterblast to his suit filed on 27.02.2024, is belated and an
afterthought. That the GST registration of defendant no.2 is dated
11.03.2023, contradicting the claim of experience since 2018. That the
counter claim is devoid of merits and without any material in support.
26. The plaintiff alleges, in the main, in the exit of defendant no.1
from the contract a material breach of agreement dated 25.7.2023,
EX.PW1/4, that justifies its termination, though delay in the stagewise
construction has also been raked, whether the exit of defendant no.1 is
such a material breach of the terms of the Construction Agreement as
would justify its termination can best be deduced from an examination
of the specific terms and conditions thereof which otherwise are not in
dispute. Agreement dated 25.7.2023, EX.PW1/4, is styled as an
“AGREEMENT OF CONSTRUCTION” executed between the plaintiff, as
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the
first party, and Gitanjali Associates through its Authorized
Representative, Sh. Jitender, with Rudra Developers through its
proprietor, Sh. Amit Bhardwaj, called as the
Second party/Contractors.
27. It is documented thereunder that the
first party is the owner in
possession of H. No. 53 Khasra No. 19/11, Gali no. 20, Block A-2,
West Sant Nagar, Village Kamalpur, and intends to construct the same
as per the prescribed plan and has engaged the services of the
second
party for the said purposes being contractors engaged in the
construction work and were willing to undertake the job of construction
in accordance with
terms plan and specifications, as consented to by the
first party, in accordance with
terms and conditions prescribed
thereunder. It transpires that the parties had verbally agreed to certain
terms and conditions governing their rights and obligations during and
after the construction of the said property which were agreed to be
reduced into writing by way of the construction agreement in question.
28. Some of the relevant terms of the agreement are extracted herein
below:
1. That the first party is the absolute and sole owner of the above said
property and has approached the second party for getting constructed the
100% area of the total land measuring 100 sq. mtrs. for better use and benefit
of the family and to which the second party has agreed to construct the
building consisting of stilt parking, Ground floor, First Floor, Second Floor
and Third Floor and two rooms on the roof of the Third Floor.
2. That the first party shall allow the second party for the purpose of
carrying out construction/ development of the above said property/ plot
immediately and after the possession is delivered to the second party.
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3. That the Second party shall be authorized in the name of the first party
in so far as necessary for the construction of the building and similarly to
apply for and obtain temporary or permanent connections of water,
electricity, poser and sewerage to the building and other input and
facilities required for the constructions or enjoyment of the building for
which purpose the first party authorized to the second party and shall sign
all such applications and other documents as be required for the purpose or
otherwise for or in connection with the construction of the building. It is
also agreed and undertake by the second party that second party shall be
responsible and liable to pay and discharge all the liabilities for purchasing
the materials for building construction/finishing, labour charges and other
incidental costs and expenses.
4. That the second party shall complete the construction and finishing of
the said building on or before completion 12 to 15 months from the date of
handing over the possession for the demolition of the property in question
to the second party.
7. The first party shall also pay general expenses/charges including water
& electricity charges of local authorities etc., etc., out of his own costs the
second party shall have no liabilities under any circumstances. That the
necessary water and electricity connections shall be obtained by the first
party out of his own efforts.
9. That the second party shall carry out the construction work on the said
plot as agreed between both the parties and prescribed in the Annexure-A.
10. That the cost of construction in lump sum has been decided between the
parties @ Rs. 67,00,000/-. That the first party shall be liable to pay the
difference amount / costs out of his own pocket to the second party, other
than the agreed terms laid down in the annexure.
12. That the cost of the construction as agreed shall be paid by the first party
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to the second party in the following manner:
Rs. 15,00,000/- at the time of demolition of present structure.
Rs. 10,00,000/- at the time of upper ground floor shuttering.
Rs. 10,00,000/- at the time of second floor shuttering.
Rs. 10,00,000/- at the time of third floor shuttering.
Rs. 10,00,000/- at the time of plaster work.
Rs. 12,00,000/- at the time of finishing work.
29. There is an endorsement made in hand against paragraph
no.12, Rs.14,50,000/- is acknowledged to have been received till date
ie the date of the agreement itself and Rs. 10 Lacs is reflected to have
been received on 19.10.2023, the signatures there against of defendant
no.2 are identified by the plaintiff in his deposition. The plaintiff had
entered into the construction agreement with both the defendants as his
joint promisors who together had undertaken to raise the construction,
of the nature and for the price as agreed. The date of start being,
21.09.2023, and not being a disputed fact, the plaintiff aggrieved by the
non-involvement of defendant no.1 in the project, some four months
after the commencement of the construction had rescinded the
Construction Agreement vide a message sent on Whatsapp to the
defendant no.2 on 31.1.2021.
30. PW-1 vide Whatsapp message sent on 31.1.2021, EX.PW1/7,
terminated the services advanced from Jitender Dhir (D2W1) and Meet
Bhardwaj (D1W1), for the construction of his building, citing lack of
interest on the part of defendant no.1 as the main reason amongst others
though he was shown built up sites of defendant no.1 to gain the
-- 35 of 97 --
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Page No. 36
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
contract who later declined to construct which fact was brought to his
notice three months after the construction had started. Defendant no.1
has admitted to his non-involvement in the construction since inception
following the execution of the agreement. Defendant no.1 as D1W1
testified to the effect that he is the proprietor of Rudra Developers and
is an experienced and expert in construction of houses and villas.
31. That the defendant no. 2 Smt. Geetanjali Dhir, Proprietor M/s
Gitanjali Associates, with no prior experience in construction business,
deals in sale/purchase/rent of property. That the plaintiff desirous of
constructing a house on his plot ie. H.No. 53, Khasra No. 19/11, Gali
No. 20, Block A, West Sant Nagar, Burari, Delhi-110084, approached
defendant No. 2, defendant No. 2 introduced him with the plaintiff. That
the plaintiff requested the defendant no.2 to show some house
constructed by him. That he was informed by the defendant no. 2 that
to satisfy the plaintiff as well as in order to boost the confidence of the
plaintiff, the defendant no. 2 took the plaintiff to show one house newly
constructed by him.
32. That the plaintiff expressed his desire that the house on the
plaintiff’s plot would be constructed by him and the defendant no. 2
jointly. That on 25/07/2023 an Agreement was executed between the
plaintiff and the defendants for construction of a House consisting of
Stilt parking, Ground Floor, First, Second Floor and Third Floor. That
the plaintiff disbursed a sum of Rs.24,50,000/- (Twenty-four Lakhs and
fifty thousand rupees only) to defendant no. 2 on 19/10/2023 under
-- 36 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 37
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
proper acknowledgment. That the plaintiff had also paid an amount of
Rs.81,200/- to defendant no. 2 for the MCD connection and police
verification, and the defendant no. 2 also received an amount of Rs.
1,50,000/- from selling the remnants from the demolition of an old
structure on the mentioned plot. Defendant no. 2 acknowledged the
receipt of the said amount by sending WhatsApp message to plaintiff
on 23.01.2025.
33. That as per the agreement the tentative cost of the construction
for execution of the work, was calculated at Rs.67,00,000/- (Rupees
Sixty-Seven Lakhs Rupees only), and the stipulated period for
completion as per Contract Agreement was 12 to 15 Months from the
date of commencement of work. That as the stipulated date of
commencement of the work was 21.09.2023, the date of completion of
the construction work was on or before 21.12.2024. That all the
payments were received by the defendant no. 2 out of which not even a
single penny was paid to him at any moment of time. That he came to
know that on 10/01/2024 the defendant no. 2 sent a Whatsapp message
to the plaintiff thereby requesting the plaintiff to issue a NOC in his
favour for resiling from the contract agreement.
34. That the plaintiff contacted him and informed him that the
defendant no. 2 had requested the plaintiff to issue NOC to the effect
that construction of the house on the above-mentioned plot is being
carried out in the absence of defendant no. 1. That he informed the
plaintiff that since the defendant No. 2 has no prior experience of
-- 37 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 38
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
construction, hence forth any mishap at construction site would be
attributed to defendant No. 2. That the defendant No. 2 never co-
operated with him with regards to the disbursement of funds received
from the plaintiff to him and even did not make timely payment to labor
and sub-contractor. That the defendant no. 2 took undue advantage of
him in the market and purchased construction material in his name and
failed to make payments for the same.
35. That as per his knowledge as on date there is about
Rs.7,50,000/-outstanding against purchase of construction material by
the defendant no. 2 for construction of the plaintiff's house. That on
31/01/2024 the plaintiff informed him through WhatsApp chat that the
plaintiff is willing to terminate the Agreement dated 25th July 2023, on
the ground that he was not actively engaged in the construction of the
plaintiff's building. That there were major irregularities in making the
payments by the defendant no. 2 to the stake holders i.e. contractors,
suppliers of raw materials etc, which delayed the construction of the
house by one month. That on 03.02.2024 the plaintiff sent a written
communication to him as well as to defendant no.2 thereby terminating
the 'General Agreement of Construction' on the grounds of breach of
contract and fraud played by the defendants.
36. That he came to know that the plaintiff had filed a police
complaint against him and the defendant no. 2 on 07/02/2024 in the
Burari Police Station for cheating. The defendant no.1 in large part has
deposed along the lines of the plaint fortifying the plaintiffs claim,
-- 38 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 39
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
admitting that he was not associated with the construction being raised
at the site of the plaintiff since the very beginning, his grouse being that
the payments received by the defendant no.2 from the plaintiff in
pursuance to the agreement were not shared with the defendant no.1 by
the defendant no.2, he being the builder in whose name and on whose
reputation the construction agreement was secured in the first place.
Defendant no.1 having signed the construction agreement as the second
party contractor/builder, himself had not sought any NOC from the
plaintiff.
37. What prompted the plaintiff into terminating the agreement is the
whatsapp message received on 10.1.2024 on his mobile number from
defendant no.2 requesting the plaintiff to grant NOC to defendant no.1
if the defendant no.1 is not willing to work as it is defendant no.2 who
is putting efforts and doing all. If the defendant no.1 has conceded that
he was not involved in the construction of the plaintiff's house though
he signed the Construction Agreement as the contractor/builder
alongside defendant no.2 as the second party having undertaken along-
with defendant no.2 to raise the construction as described in the
Agreement and within such time frame as stipulated therein, it has not
been disputed by defendant no.2 also that the defendant no.1 was not
associated with the construction that came to be raised on the plaintiff’s
plot till the termination of the agreement by the plaintiff.
38. The defendant no.2 however alleges that this non-involvement
of the defendant no.1 with the plaintiff’s site was well within the
-- 39 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 40
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
knowledge of the plaintiff from the very beginning and had the
plaintiffs consent. The SPA holder of defendant no.2 examined as
D2W1 in such defence while affirming that he is well conversant with
the facts and circumstances of the matter testified to the effect that the
plaintiff had earlier filed suit for recovery on 13.2.2024, ie CS No.
164/2024, for Rs.4,93,025/- on the same cause of action which was
subsequently withdrawn as it was not in accordance with the provisions
of the Commercial Courts Act, 2013.
39. That in paragraph 11 of the said suit it had been mentioned
that the said suit is based on the total expenditure incurred in the
construction of the building also with the monthly expenditure of the
respondent upto 24.1.2024 minus total amount paid to the respondents
and a copy of the detailed material and expenditure was also annexed
along-with the plaint as Annexure P6. That the present suit is silent as
to how an amount of Rs. 4,93,025/- became Rs. 14,47,825/-. That the
plaintiff intentionally has not filed the said Annexure P6 in the present
suit.
40. That the present suit is a counterblast to the legal notice issued
by the defendant no.2 against the plaintiff. That on 3.9.2024, the
defendant No. 2 issued a legal notice to the plaintiff calling upon him
to pay an amount of Rs. 15,50,000/- due and payable to the defendant
No. 2 towards stage wise payment of the construction activities done by
the defendant No. 2 and Rs. 5,00,000/- towards cost of the material
which was not utilized / lying at the site at the time the defendant No. 2
-- 40 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 41
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
was thrown out of the construction site by the plaintiff. That the plaintiff
instead of complying with the said notice, put an imaginary figure and
filed the present suit without any basis. That the present suit is not
valued properly and no required Court fees has been filed along-with
the present suit.
41. That the agreement has been terminated by the plaintiff
without any rhyme or reason as the defendant No.2 has used best quality
material and manpower for the construction of the house. That there is
not even a whisper in the entire suit regarding the quality of the
construction of the building, that as termination has been done without
any cause of action, therefore the plaintiff is liable to compensate the
defendants for damages apart from the expenses incurred by them for
which the defendant No. 2 has filed a counter claim against the plaintiff.
That the entire allegations of the plaintiff as to the non-involvement of
defendant No. 1 in the construction activities are false, and are raised
with malafide intention.
42. That the defendant No. 1 exited from the agreement immediately
after the construction activities were started at the site with the consent
of the plaintiff. That the plaintiff with malafide intention terminated the
agreement on the basis of false allegation in order to deprive the
defendant no.2 of their legitimate dues and filed the present suit as a
precautionary measure to put pressure on the defendant No. 2 to accept
their illegal demands. That the plaintiff and defendant No. 1 are hand in
glove with each other as the defendant No. 2 has filed two complaints
-- 41 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 42
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
under Section 138 NI Act, 1881, against M/s. Rudra Developers and its
proprietor Sh. Amit Bhardwaj and the same is pending for disposal in
Rohini Court, Delhi.
43. That the defendant No. 1 in connivance with the plaintiff is
trying to pressurize the defendant No. 2 to withdraw those pending
cases and thereby make illegal gains at the cost of the defendant no.2.
That it has been alleged by the plaintiff that the defendant No. 2 was
negligent and inexperienced in construction activities and therefore the
plaintiff has rightfully terminated the agreement of construction.
However, after termination and throwing the defendant No. 2 from the
site forcibly, the plaintiff himself took over the site and continued to
construct and raise the building on the same structure. If the defendant
No. 2 was negligent in construction, then the plaintiff would not have
raised the construction on the same structure constructed by defendant
No. 2.
44. That the plaintiff did not comply with the provision of Order
XI of CPC as amended and applied to commercial disputes under the
Commercial Courts Act 2015 thereby not filed the mandatory affidavit
regarding disclosure, discovery and inspection of documents along-with
a declaration on oath. That the suit is bad for misjoinder of necessary
parties as the deponent is not the proprietor of Gitanjali Associates. Ms.
Gitanjali Dhir is the proprietor of Gitanjali Associates and the plaintiff
has, with malafide intention, made him a party and therefore, the
present suit is liable to be dismissed. That the defendant No. 2 is
-- 42 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 43
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
engaged in the business of property dealing and real estate construction
since the year 2018.
45. That under an agreement dated 21.9.2023 for construction of a
building entered into between the plaintiff and defendants, the
defendants agreed to construct a four storey residential building on a
plot bearing No. 53, Khasra No. 19/11, Gali No. 20, Block A2, West
Sant Nagar, Village Kamalpur Mazra, Burari, Delhi – 110084, area
measuring 100 Sq. Yds. belonging to the plaintiff. The copy of the
agreement is not in dispute. That immediately after entering into the
said agreement, defendant No. 1 exited from the said agreement which
was in concurrence with the plaintiff and the plaintiff has approved the
same. That the defendant No. 2 started construction on the said plot of
land and has completed the construction till second floor shuttering and
has claimed the amount from the plaintiff as per the agreement.
46. However, with malafide intention the plaintiff did not release
the payment as agreed by the plaintiff in violation of clause 12 of the
said agreement. That clause 12 mandates that the payment should be
given once stage wise construction is completed. Since time was the
essence of the agreement defendant No. 2 purchased entire building
material for completion of the project which cost the defendant No. 2
Rs. 22,00,000/-. Some of the material has been utilized and some were
lying at the site when the defendant No. 2 was forcibly thrown out of
the construction done by the defendant No. 2 which has been recorded
in a pen-drive. That since the defendant No. 2 completed the
-- 43 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 44
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
construction till the second floor shuttering, the defendant no.2
demanded the payment upto that stage as per the agreement. However,
the plaintiff has forcibly thrown the defendant No. 2 out of the subject
property and threatened him of dire consequences if he dared to ask for
the payment.
47. That the plaintiff also sent a whatsapp message to the
defendant No. 2 stating that the plaintiff has terminated the contract and
he has debarred the defendant No. 2 from entering into the subject
property. In this regard a complaint has been filed by the defendant No.
2 against the plaintiff in the PS Burari, Delhi which has been registered
as DD No. 82 dated 2.2.2024 and the police is investigating the same.
That an amount of Rs. 15,50,000/- is due and payable to the defendant
No. 2 by the plaintiff as on 31.1.2024 out of which Rs. 10,50,000/- is
towards stage wise payment and Rs. 5,00,000/- is towards cost of
material which was not utilized and was lying at the site at the time
defendant No. 2 was forcibly thrown out from the subject property.
48. That inspite of repeated request on the part of the defendant
No. 2, the plaintiff failed to pay the said dues and ultimately on 3.9.2024
the defendant No. 2 issued a legal notice to the plaintiff calling upon
the plaintiff to pay an amount of Rs. 15,50,000/ along-with interest @
12% per annum from 31.1.2024 till date, besides cost of notice of Rs.
15,000/-, but the plaintiff failed to comply. That the defendant No. 2 is
entitled to the following claim against the plaintiff under the counter
claim and the same is sought to be recovered from the plaintiff together
-- 44 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 45
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
with the cost and interest, as follows :-
Stage wise payment Rs. 10,50,000/-
Cost of material which was not utilized and lying
at the site when the defendant No. 2 was thrown
out of the site on 31.1.2024
Rs. 5,00,000/-
Interest @ 12% per annum from 31.1.2024 till the
filing of counter claim
Rs. 2,32,500/-
Total Rs. 17,82,500/-
49. D2W1 acknowledged that the defendant no.1 exited from the
agreement immediately after the construction activities were started at
the site while maintaining that this was with the consent, concurrence
and approval of the plaintiff, no effort however is betrayed to confront
the plaintiff with its such defence during his cross examination, though
the plaintiff is cross-examined extensively by the defendant no.2. On
the contrary, the plaintiff even during cross-examination steadfastly
maintained that both the defendants were responsible for the
construction of his house. It has come in the cross examination of PW-1
on behalf of defendant no.2 that he knew D2W1 since 2022 when he
purchased the flat situated in Sant Nagar Burari, Delhi.
50. When the defendant no.2 in cross examination asked the
plaintiff that who was responsible for day to day construction activities
at the project site in terms of agreement Ex. PW1/4, the plaintiff
reaffirmed that as per agreement Ex. PW1/4, both the defendants being
second party to the agreement were responsible for the same. PW-1
admitted the suggestion that as per scope of the said agreement Ex.
-- 45 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 46
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
PW1/4, both the defendants were responsible for deployment of labour
concerning construction activity at the site. That he had handed over the
possession of project site to the defendants in the month of September,
2023, as per terms of said agreement, the construction work was to be
completed within a period of 12-14 months from the date of its
commencement.
51. PW-1 first stated that there were terms providing for
completion of particular work within specified time in phases during
such period, but immediately clarified that such was only a verbal
understanding between the parties, while maintaining that the same is
also mentioned in clause No. 12 of the agreement Ex. PW1/4. When
clause 12 was shown to the witness, PW-1 conceded that clause No. 12
speaks about cost of construction as agreed between the parties and not
about the time during which constructions were to be carried out in
phases, while maintaining that there was an oral understanding between
the parties but was not reduced in writing and denied that there was no
such oral understanding between the parties in this regard. PW-1 also
accepted that to his knowledge, there was no notice or challan received
from any Government agency regarding violation of any rule or
provision while raising the construction at the site.
52. PW-1 emphasised that as per agreement Ex. PW1/4, the total
cost of construction as agreed between the parties, was Rs. 67,00,000/-,
that there was no other extra cost whatsoever stipulated therein to be
paid by him. PW-1 however yielded that as per clause 7 of the said
-- 46 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 47
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
agreement, he was also supposed to pay general expenses / charges
including water and electricity charges of local authorities etc. PW-1
stated that the first payment of Rs. 15,00,000/- was made by him in the
month of September, 2023. By that time, foundation had been laid
down. Though he did not remember the exact date of payment of second
installment however, it was made within one month from the date of
payment of first installment. That by the time of payment of said second
installment, the construction of stilt parking was undergoing at the site.
As and when he used to visit the construction site, he found one
Thekedar and 2-3 labourers working over there.
53. Sometimes he used to visit the construction site on bi-weekly
basis and sometimes, he was there on Saturday and Sunday, as and
when Saturday used to be holiday for him. That there was no fixed time
of his such visits, sometimes he used to go there in the morning hours
and sometimes in the later hours of the day. That he had sent the said
whatsapp message, EX.PW1/7, to defendant No. 2, from his whatsapp
No. 9899984395, from his house. That by that time, the construction
work got stopped somewhere in the 3rd week of January, 2024. That
though he did not remember the exact date, however, he had lastly
visited the site in the first week of January, 2024, before sending
whatsapp communication, Ex. PW1/7, to defendant No. 2, and again
stated that he had lastly visited the site in the last week of January,
2024.
54. That he got the measurement done through some other Thekedar
-- 47 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 48
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
and came to know that work accomplished was until 5 ft. for the second
floor, as stated in Ex. PW1/7. The name of said Thekedar he was unable
to remember, however, he is based in Sant Nagar, Burari and his name
and mobile number is available in his mobile phone and he can tell the
same after checking his phone. That so far as he remembered, there was
a clause in the agreement Ex. PW1/4 on the basis of which he could
terminate the said agreement. After going through the agreement, PW-1
stated that clause No. 13 thereof is the relevant clause for this purpose,
and denied that clause No. 13 nowhere authorizes him to terminate the
said agreement.
55. PW-1 affirmed that the notice dated 3.2.2024, was sent by him
to both the defendants, which is Ex. PW1/D-2A(Mark-F). He explained
that the amount of Rs.4,50,000/- claimed by him in the said notice is on
account of arrears of general agreement of construction and represented
the actual cost of construction incurred in raising construction and the
amount already paid by him by that time and admitted that he has not
filed the calculation of amount so arrived at. That the amount of
Rs.72,000/- claimed in notice Ex. PW1/D-2A on account of
compensation for loss of mental peace is based on his rough estimation.
That no written communication was exchanged between him and
defendant No. 2 after 3.2.2024 and no contractual relationship survived
between them after said date.
56. That the amount of Rs.4,93,025/- as was claimed by him in
previously instituted suit against defendant No. 2 was primarily based
-- 48 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 49
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
on notice Ex. PW1/D2A. That the defendants had demanded a sum of
Rs. 1,00,000/- from him on the pretext that such amount was payable to
concerned officials of MCD department while raising construction at
the site, though the agreement Ex. PW1/4 is silent in this regard. The
said agreement is also silent on the amount of Rs. 1,50,000/- received
from demolition as claimed by me in para No. 23 of the plaint. When
the plaintiff is questioned on any loss suffered on account of idle labour,
machinery and other miscellaneous charges concerning agreement Ex.
PW1/4, the plaintiff's answer was a non-hesitant ‘No’.
57. PW-1 acknowledged that there is no stipulation in the
agreement, Ex. PW1/4, regarding payment @ 18% for losses on
account of idle labour, machinery and other miscellaneous charges.
When questioned on the expenditure estimate, PW-1 explicated that he
has arrived at the amount of Rs. 17,38,175/- as stated in para No. 23 of
the plaint, on the basis of suggestions taken by him from several persons
having experience in the line of construction. That there was no such
written suggestion in this regard, some of the names of those persons
from whom suggestions were taken are Sh. Pervez Alam of Perwez
Builders, Harit Vihar, Sant Nagar and Sh. Sonu Khanna of Khanna
Builders, A-2 Block, Sant Nagar, Burari, Delhi, they however were
never involved in construction work at the site in question.
58. That the police did not take any action on his complaint dated
7.2.2024 as per his knowledge. There was no sanction plan issued by
MCD for raising construction on the site in question. That after
-- 49 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 50
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
termination of the agreement, Ex. PW1/4, he got the construction raised
at the site uptil 3rd floor through some other contractor, whose name he
was unable to recollect. That no inventory was prepared at the time of
taking back the possession of the site from defendant No. 2 as there was
no such inventory lying at the site at that time. That he had got the audit
regarding the quality of construction material etc. of the construction
work done at that time, though he had not filed any such audit report on
record of the present suit, clarifying that it was an oral audit.
59. PW-1 asserted that the account of defendant No. 2 was already
settled at the time when possession of the site was handed back to him.
Such account was settled on whatsapp message. Same is already filed
on record. PW-1 pointed out portion A to A-1 of whatsapp message
already Ex. PW1/7 in this regard, and denied that said portion A to A-1
of Ex. PW1/7 nowhere reflects that any account was settled between
him and defendant No. 2. PW-1 further explained that he has stated in
para 29 of evidence affidavit Ex. PW1/A that “work was incomplete /
substandard” on the basis of oral audit regarding quality of construction
material used by defendants at the site, and that no scientific
examination of construction material was got done by him in this
regard.
60. PW-1 admitted that he got the further construction raised at
the site on the already existing structure, and that Sh. Shambhu was the
Thekedar of defendant No. 2, but denied that same Thekedar namely
Sh. Shambhu had carried out the remaining construction raised at the
-- 50 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 51
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
said site even after termination of the agreement. PW-1 denied that the
agreement, Ex. PW1/4, was terminated in order to avoid making
payment to defendant No. 2 or that the agreement was terminated
illegally in collusion or connivance with defendant No. 1. PW-1 was
not aware if the proprietor of defendant No. 2 and her sister in law have
filed multiple cases against defendant No. 1, and denied that on account
of those multiple cases, defendant No. 1 joined hands with him in order
to pressurize the defendant No. 2 and her sister in law to withdraw those
cases.
61. He did not remember the exact telephonic conversation which
took place between him and defendant No. 2 and that is why was unable
to admit or deny the suggestion that he had told defendant No. 2 during
such conversation that he was happy with the construction or that the
defendant No. 2 should continue with such construction. PW-1
disclosed that he incurred a total sum of Rs. 10,00,000/- approximately
in purchase of construction material while raising the remaining
construction at the site. He produced 21 invoices / receipts regarding
purchase of said construction material, collectively exhibited as Ex.
PW1/D2B (Colly.). From these receipts / invoices he explained that the
material shown in page Nos. 1 and 2 of Ex. PW1/D2B (Colly.) is used
for the purpose of fittings of electric wires etc. while laying down lanter
when the construction is in progress.
62. He further revealed that the material mentioned at page Nos. 3
and 4 of Ex. PW1/D2B (Colly.) were used on second floor and roof of
-- 51 of 97 --
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Page No. 52
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
the property. That the said property which was got constructed by him
after termination of agreement, now consists of stilt, ground floor, first
floor, second floor and one room on the roof. That the material
mentioned in page No. 7 of Ex. PW1/D2B (Colly.) was delivered
through cycle goods rickshaw, as the place of supplier was situated at a
distance of about 150 footsteps from his house. He was not aware about
the relevant legal position governing issuance of e-way bill as per GST
law. The distance between Holi Chowk, West Sant Nagar as mentioned
in page Nos. 8 to 10 of Ex. PW1/D2B (Colly.) is at a distance of about
250 footsteps from his house. The material shown therein was
transported through goods rickshaw by the supplier to his place.
63. It is further stated by PW-1 that the material shown in page
Nos. 11 to 21 of Ex. PW1/D2B (Colly.) were transported by concerned
supplier through tractor(s) to his place. PW-1 denied that all the pages
put to him of Ex. PW1/D2B (Colly.) including the cash memos are
forged or fabricated as no e-way bills in respect thereof were generated,
and no GST number is mentioned in most of these invoices / receipts.
That PW-1 denied that agreement Ex. PW1/4 is silent about raising of
any construction on roof of second floor. He also denied that whatever
material are mentioned in Ex. PW1/D2B (Colly.) were already lying at
the site or that he had used said material by claiming the same to have
been purchased by him for the purpose of raising the construction
through some other contractor.
64. Apropos, when the plaintiff is squarely and pointedly asked as
-- 52 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 53
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
to who was responsible for day to day construction activity at the project
site in terms of the agreement, EX.PW1/4, the plaintiff was resolute that
as per agreement both the defendants being second party to the
agreement were responsible. PW-1 again asserted as correct that as per
scope of the agreement both the defendants were responsible for
deployment of labour concerning construction activity at the site. In the
course of cross examination PW-1 is questioned about a telephonic
conversation with defendant no.2 the exact details of which he could
not remember if he had told defendant no.2during such telephonic
conversation that he was happy with the construction and that the
defendant no.2 should continue with such construction.
65. Not once is it suggested to the plaintiff during the entire cross-
examination by the defendant no.2 that the defendant no.1 had exited
the contract since its inception with the consent of the plaintiff or that
the plaintiff was well aware of the fact that the defendant no.1 has not
been participating in the construction at his site since commencement
of the construction. Pertinently, there is no communication in this
regard exchanged prior to the Whatsapp message dated 10.1.2024 relied
in evidence by PW-1 as EX.PW1/6. Defendant no.2 despite having
cross-examined the plaintiff on his conversation with the defendant
no.2 expressing his satisfaction over the quality and standard of
construction coming up, could not gather the conviction to also put to
the plaintiff that during and such conversations the defendant no.2 had
informed the plaintiff of the exit of defendant no.1 from the contract.
-- 53 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 54
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
66. There is no material adduced by defendant no.2 to show that
this significant development post the execution of the Construction
Agreement was communicated to the plaintiff by the defendant no.2 at
any time prior to 10.1.2024. The plaintiff when cross-examined by the
defendant no.1 strenuously reaffirmed that he came to know on
10.1.2024 that the defendant no.1 was not participating in the
construction being raised at the construction site. When cross-examined
on behalf of defendant no.1, PW-1 steadily maintained that he met Sh.
Amit Bhardwaj / defendant No.1, through defendant No. 2. Initially, the
total consideration amount as agreed between the parties was Rs.67
Lacs pursuant to construction agreement Ex. PW1/4. That he had
already paid a sum of Rs.26 Lacs in total to defendant No. 2 till the time
when construction was got stopped in the property in question. PW-1
acknowledged that he did not pay any amount to defendant No.1. That
he had been visiting the construction site from time to time in order to
find out the progress in the construction being raised over there.
67. That on 10.1.2024, he came to know that the defendant No.1
was not participating in the construction being raised at the construction
site. Then, he had made a telephonic call to defendant No. 1 and the
defendant no.1 told him that he (defendant No. 1) was not aware of the
fact that construction activity had commenced at the site. That he did
not issue any written letter or notice to the defendant No. 1 after
10.1.2024, but added that he had terminated the construction agreement
on 31.1.2024. That he had suffered loss of Rs.15 Lacs approx. due to
-- 54 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 55
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Geetanjali Dhir v. Abdul Hameed
inaction on the part of defendant No. 1. That he was not aware about
the internal arrangement if any between defendant No.1 and defendant
No. 2 and that is why, he cannot admit or deny the suggestion that
defendant No. 1 opted out of the agreement as he did not make any
payment whatsoever to defendant No.1 qua the said construction
agreement.
68. The defendant no. 1 also never disclosed to the plaintiff orally
or in writing that as the plaintiff has not made any payment to him
therefore he has opted out of the agreement. What thus emerges is that
the plaintiff on the date of execution of the agreement itself had paid
Rs.14,50,000/- required to be disbursed at the time of demolition, and
further payment of Rs. 10,00,000/- that was prescribed to be made at
the time of upper ground floor shuttering is also cleared by the plaintiff
within a month on 19.10.2024. The plaintiff some three months
thereafter is informed by the defendant no.2 on 10.1.2024, as follows:
HAMEED JI, KINDLY GIVE NOC TO MEET TODAY. I AM PUTTING
EFFORTS FOR BUILDING N DOING ALL, ATLEAST YOU CAN GIVE
NOC TO AMIT BHARDWAJ IF HE IS NOT WILLING TO WORK.
69. There is nothing to show that the plaintiff was aware of the exit
of the defendant no.1, or his lack of willingness to work at the site of
the plaintiff at any time prior to this message of the defendant no.2.
There is no material relied upon by the defendant no.2 to show that the
plaintiff was aware of the admitted exit of the defendant no.1 since from
the very inception. If the defendant no.1 had not been participating and
was not interested in the project at the plaintiffs site, and the plaintiff
-- 55 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 56
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Geetanjali Dhir v. Abdul Hameed
was in concurrence of his such exit, what was preventing the defendant
no.2 from raising such concern in writing earlier, and or from seeking a
modification of the written terms and conditions of the Construction
Agreement signed by D2W1 with the defendant no.1 jointly as the
second party. In this particular message also defendant no.2 has not
explicitly indicated that it is with the approval of the plaintiff that the
defendant no.2 has been raising the construction without the
participation of defendant no.1.
70. The plaintiff while cross-examining the defendant no.2 did
corner the defendant no.2 qua this incongruity on what is conveyed in
the Whatsapp message and the pleaded defence of the defendant no.2
that the defendant no.1 exited with the consent and concurrence of the
plaintiff. I shall at this stage be touching upon the entire cross-
examination even on aspects not necessarily concerned with the issue
under discussion, more than anything to maintain the integrity of the
admission without diluting the context by resorting to references to
portions thereof. Defendant no.2 when cross examined by the plaintiff
admitted that he is not qualified in Civil engineering work, that they do
not have any license or written permission to act as a Contractor for
raising construction issued by any government authority but maintained
that they started doing business of raising construction somewhere in
the year 2023, and before that he was doing such business in partnership
with some other person since the year 2018.
71. That he had sent legal notice to the plaintiff but he could not
-- 56 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 57
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Geetanjali Dhir v. Abdul Hameed
remember the exact date, and for the same reason D2W1 neither
admitted nor denied the suggestion that the suit against him was
instituted on 27.2.204 i.e. prior in time to legal notice dated 3.9.2024.
The complaint, Ex.D2W1/5 as per D2W1 was against the contractor
for theft. D2W1 conceded that no document has been filed on record to
show that he has been in the construction business during the period
from 2018 till 2023.
72. The defendant no.2 during cross-examination on his such
defence that the exit of defendant no.1 was with the approval of the
plaintiff and in the knowledge of the plaintiff, is squarely called upon
to explain the contradiction in its such defence and the contents of the
Whatsapp message Ex.PW1/6 which question and answer is verbatim
reproduced hereunder.
Question : I put it to you that on the one hand you have stated
in para no.7 of the written statement that defendant no.1 exited
from the agreement immediately after the construction
activities were started at the site with the consent of the plaintiff,
and on the other hand in the Whatsapp Message sent by you to
the plaintiff which is already exhibited as Ex.1/6 and admitted
by, you yourself have requested the plaintiff to give NOC to Mr.
Amit Bhardwaj as he was not willing to work. Please explain
your these two contradictory statements.
Answer : The contract was between myself and the plaintiff.
There were two more sites on which I was raising the
construction at that time. Mr. Amit Bhardwaj, defendant no.1,
was looking after his site at Dwarka and I was not able to oversee
-- 57 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 58
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
on a daily basis the construction at the Dwarka site and he used
to come to the site of the plaintiff to receive payment from me
for the said construction site and I also used to ask him to remain
present at the site of the plaintiff so that I myself could devote
some time to the other site. Initially, he had come to the plaintiff
site on a few occasions and thereafter he stopped coming to the
plaintiff site. Thereafter, the defendant no.1/ Mr. Amit Bhardwaj
had sought NOC for himself for the plaintiff site stating that he
does not wish to carry out the work at the site of the plaintiff. It
is in this context that I had sent the Whatsapp Message
Ex.PW1/6.
73. In this entire explanation not once it is alleged that the plaintiff
was aware or was made aware orally or in writing, about the non
participation and lack of willingness of defendant no.1 to continue
being associated with the construction on the plaintiff’s site at any time
prior to Ex. PW-1/6. It is nowhere postulated in the entire explanation
that the plaintiff had consented to the exit of defendant no.1, nor has the
plaintiff alleged acquiescence in the construction being raised single
handedly by the defendant no.2 without any contribution on the part of
the defendant no.1 been harped upon. The defendant no. 2 claims that
the agreement was between him and the plaintiff, whereas the defendant
no.2 signed the Construction Agreement jointly with defendant no.1 as
the
second party and the Agreement recognizes defendant no.1 and 2
both together as the Contractor / builder
74. D2W1 is further questioned on the aspect of the NOC that has
-- 58 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 59
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
been requisitioned in the message Ex.PW1/6, the question and the
answer being particularly poignant for the purposes of the issue no.1
under discussion has been extracted hereunder as follows:
Question : Do you have any document to show that the
plaintiff has given NOC to the defendant no.1/ Mr. Amit
Bhardwaj as has been claimed by you in the counter claim.
Answer : Mr. Bhardwaj was repeatedly asking me to request
the plaintiff to give him NOC. I had a meeting with the
plaintiff in this regard at the resident of the plaintiff and
the plaintiff had assured that he will look into the matter
concerning Mr. Amit Bhardwaj. So far as documentary
evidence is concerned, I have the call details to show that
Mr. Amit Bhardwaj was repeatedly calling me in this
connection.
75. It is the defendant no.1 who was repeatedly asking the
defendant no.2 to request the plaintiff for NOC, the plaintiff told
defendant no.2 that he will look into the matter concerning defendant
no.1 when such a request is made vide Ex. PW-1/6 for the first time,
there is no such assertion made in cross-examination yet again that the
plaintiff had approved the exit of defendant no.2 from the contract or
had accepted the performance of the contract by defendant no.2 alone
in the absence of defendant no.1. It can also not be gathered from these
explanation s that the plaintiff at any stage prior was in the know of the
exit of the defendant no.1 from the contract, much less to have
consented/approved his such exit. The plaintiff also was completely in
the dark about the inter-se arrangements, discussions, any escalation, or
fallout of any kind, he had no inkling whatsoever that the two
contractors/ builders engaged by him jointly to execute the work for
-- 59 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 60
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Geetanjali Dhir v. Abdul Hameed
him were finding it difficult to work together at his site.
76. The defendant no.2 thereafter has been questioned regarding the
nature, status of construction and the material used to underline his want
of expertise. It is further in his cross examination that the cost of
construction of the structure of one floor with 3 BHK on 100 sq. yard
plot would be around Rs. 6 to 7 Lacs and he spent 6 to 7 Lacs
approximately for such construction. He had no idea as to the cost of
single lanter on a 100 sq.yards plot and required to refer to his ledger
book to ascertain the correct figure of the amount. That he used
Shuttering boards, 8, 12, 16, 20, 25
Saria, Balli, Fattey, Wire, Cement,
Rodi, Dust, Mixture, Water Tank etc, for the construction of
lanter. That
95 to 100 Bags of Cement, 6 to 8 Trolley Dust, 6 to 7 Trolley of Rodi,
would be used in the construction of single
lanter, in regards to other
material he had no idea and could provide correct figure only after
referring to his ledger book and added that RKG Pipes were used for
the electrical purpose 2.5 inch and sanitary pipes 8 inches for parking
and 4 inches for per floor at the time of construction of
lanter.
77. D2W1 further explained that Bricks,
Chaukhat, switch boards,
window
chaukhat, exhaust
chaukhat, profile lighting arrangement
lamps, are some other material used in the construction of one floor
structure other than
lanter, the quantities thereof however he had no idea
which he could only ascertain from his ledger. That so far as labour cost
for the construction of one floor is concerned Rs.2 Lac to 2.5 Lacs was
the approximate cost for the construction of structure of single floor.
-- 60 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 61
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Geetanjali Dhir v. Abdul Hameed
That he used 53 grade of cement for the construction of the house of
plaintiff. When asked why did he use 53 grade of cement for the
construction, defendant no.1 replied that he did so for the stability and
strength purpose.
78. D2W1 denied that Amit Bhardwaj and him were friends since
2014, and added that Amit Bhardwaj was member of his Gym, which
was closed by him in the year 2017. He also divulged that the NI Act
case against Amit Bhardwaj was filed by him may be in the Month of
February 2024 before Rohini Court, Delhi. D2W1 asserted that the pen-
drive video Ex-D2W1/3 shows construction upto the fourth lanter when
asked if the pen drive video shows construction upto second floor
lanter. When the pen-drive videos Ex-D2W1/3 were played before him
and he was called upon to identify the construction upto fourth lanter,
he was unable to identify the video even after being shown the videos
in the pen-drive Ex-D2W1/3, and insisted that he can ascertain only
after going through his records.
79. He did not remember how many switch board points he provided
at the time of construction of single floor, for which he required to go
through his ledger. He however has admitted that he failed to inform
the plaintiff about the theft of construction material by Thekedar
Shambhu. He had no idea as to the types of grade cement in the
construction business. That on an average 25 switch boards are used on
the single floor with 3 BHK kitchen, bathroom and drawing room on an
area of 100 sq.yards. D2W1 has also been cross examined by the
-- 61 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 62
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Geetanjali Dhir v. Abdul Hameed
defendant no.1 though briefly, D2W1 when cross examined by
defendant no.1 denied that he introduced the plaintiff with defendant
no.1, or that he had shown two properties of the defendant no.1 to the
plaintiff one at Burari and another at Dwarka.
80. D2W1 also explicated that there was no agreement regarding
profit sharing ratio between the defendant no.1 and defendant no.2. He
also admitted that neither plaintiff nor the defendant no.2 had paid any
amount to Sh. Amit Bhardwaj and that no complaint was lodged with
any government authority against Amit Bhardwaj. Having traversed the
length and breadth of the oral accounts rendered on both sides, that of
the plaintiff as the first party to the agreement and the two defendants
as the second party to the Agreement in question, when viewed in the
light of the explanation rendered by the D2W1 in cross examination, it
transpires that the plaintiff at the time of execution of the agreement and
thereafter by 19.10.2023 in total had disbursed an amount of
Rs.24,50,000/- as per the agreement towards the construction on his
plot after demolition of the existing structure which amounts were
received by the defendant no.2, while the defendant no.1 and 2 together
had undertaken to raise the construction as per the terms of the
Construction Agreement.
81. The defendant no. 1 and 2 who together constituted the second
party contractor/builder besides the plaintiff’s site were also working
together on another project at Dwarka. The defendant no.2 had handed
out to the defendant no.1 payments for the Dwarka project, but for the
-- 62 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 63
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
plaintiff’s project as the defendant no.2 did not apportion the amounts
received from the plaintiff with the defendant no.1, the defendant no.1
who initially did evince the desired interest in the plaintiff’s project by
making visits to the plaintiff s site, thereafter distanced himself from
the project, he became disinterested for lack of monetary incentive and
it is defendant no.1 who insisted that the defendant no.2 should secure
NOC from the plaintiff if the defendant no. 2 wished to continue with
the project without him.
82. Under such circumstances, the defendant no.2 had sent the
message Ex.PW1/6 to the plaintiff soliciting NOC for defendant no.1,
professing that he was doing everything for the construction at the
plaintiff's site. There is nothing to show that the plaintiff had any
knowledge of what was brewing between the
second party contractors.
So far as the plaintiff is concerned the payments made were being
utilised in the construction as per agreement by the defendant no.1 and
2 jointly, what if any was the inter-se agreement between the defendants
qua compensation, the plaintiff was not privy to the same, and was not
expected to be so. Even the defendants have not enunciated any such
inter-se terms of engagement for doing business together.
83. In fact the defendant no.2 when cross-examined on behalf of
defendant no.1 did acknowledge that there was no profit-sharing
agreement entered into between the two defendants. This failure to
explicitly lay out the terms on which they shall be executing works
jointly, so that there is no gap in the expectation of either party turned
-- 63 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 64
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Geetanjali Dhir v. Abdul Hameed
out to be their undoing. Even if it was understood between them that
the defendant no.1 shall focus primarily on the Dwarka site and the
defendant no.2 shall concentrate on the plaintiff’s site, and it is the
defendant no.2 who alone since inception was running the project at the
plaintiff’s site with minimal and / or no participation on the part of
defendant no.1, the plaintiff was not necessarily kept in the loop.
84. When such developments concerning the execution of works at
the site and the negligible contribution on the part of defendant no.1
were not brought to the knowledge of the plaintiff by either of the
defendants the plaintiff cannot be said to have approved this distancing
of the defendant no.1 from the plaintiff’s project nor can any
acquiescence be raised against the plaintiff in the construction being
manned solely by the defendant no.2 in the absence of defendant no.1.
The plaintiff for the first time is notified of the actual scenario only vide
EX.PW1/6 when he is apprised in writing of the situation on the ground.
The plaintiff even after the receipt of this message conveying the
unwillingness of the defendant no.1 did not consent to the same but as
per the D2W1 himself told him that he will look into the matter.
85. The plaintiff first had a word with the defendant no.1 to seek
confirmation of the information imparted by the defendant no.2 as also
an explanation for his lack of participation and unwillingness to
continue with the project, after having willingly signed the Construction
Agreement as a joint promisor with defendant no.2. The defendant no.1
disclosed to him that the construction has been commenced by the
-- 64 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 65
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
defendant no.2 without his knowledge, that the defendant no.2 without
much expertise in the field was raising the construction in his absence
and he did not want to be held responsible for any untoward incident in
the future at the site. The defendant no.1 also did not hide from the
plaintiff the real reason behind his loss of interest, which is purely
financial, as the plaintiff had made the entire payment to the defendant
no.2 and the defendant no.2 had not given him anything as his share he
being the lead builder of the duo.
86. The plaintiff and the defendant no.2 following the receipt of
the message EX.PW1/6, have been in communication with each other,
there were calls made and messages exchanged. The plaintiff was not
in favour of allowing the defendant no.2 to execute the work at his site
alone without the active involvement and participation as promised of
the defendant no.1. The plaintiff on 31.1.2024 at 9:09 hrs. sent the
following message to the defendant no.2
You don’t raise your voice unnecessarily. I don’t need your service
anymore. I want you to give me the calculation and take what’s yours and
return what’s mine and if you are planning to misguide me with these
useless logic, its not gonna happen. I have the right to stop the services
and anyways you guys never abided by the contract cause your second
partner never wanted to be a part of it so anyways you were never honouring
the contract…..
87. From the tenor of the above admitted communication it is
palpable that the plaintiff and the defendant no.2 were not on the same
page following the message received on 10.1.2024, the plaintiff here
has alleged to have been misguided by the defendant no.2. Though the
plaintiff and the defendant no.2 following the message from the
-- 65 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 66
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
defendant no.2 calling upon the plaintiff to give NOC to the defendant
no.1 continued to be interacting and in discussion with each other but
were not necessarily seeing eye to eye. The plaintiff was not finding it
acceptable that the defendant no.2 should continue with the
construction in the complete absence of defendant no.1 who had jointly
agreed to perform the contract with the defendant no.2 as per agreement
dated 20.9.2023, though D2W1 was attempting to impress upon him to
agree to the continuation of the construction by him.
88. The plaintiff thereafter dispatched legal notice dated
03.02.2024, receipt whereof is not disputed by the defendants, formally
terminating the Construction Agreement based on “fraud”
‘misrepresentation’ and ‘failure to perform point 3 of the Agreement’.
In this notice the alleged fraud and misrepresentation has not been
explicitly etched, outlines of which are discernable though in the
detailed Whatsapp message sent on 31.1.2024 at 4:54 pm. The first two
issues highlighted read as follow:
1) Two partners decided to build the premises and it occurred to
me one of them (Meet Bhardwaj) was never interested.
2) I was shown with the build up sites of Meet Bhardwaj just to gain
the contract but it appeared to me later that the same declined to
construct which was brought to my attention 3 months later when
the construction begun.
89. Though the defendant no.2 alleged during cross examination
that the agreement was between him and the plaintiff, however the
plaintiff had executed the Construction Agreement with both the
-- 66 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 67
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Geetanjali Dhir v. Abdul Hameed
defendants jointly acting as the Contractor/builder for him. Parties to a
contract are obligated, under section 37 of the Contract Act,1872, to
perform or offer to perform their respective reciprocal promises.
Section 40 of the Contract Act, 1872 identifies the person by whom the
promise is to be performed as follows:
Sec. 40. Person by whom promise is to be performed-
If it appears from the
nature of the case that it was the intention of the parties to any contract
that any promise contained in it should be performed by the promisor
himself, such promise must be performed by the promisor. In other cases,
the promisor or his representative may employ a competent person to
perform it.
90. When a party to a contract has refused to perform, or disabled
himself from performing, his promise in its entirety, the promisee may
put an end to the contract, unless he has signified by words or conduct
his acquiescence in its continuance under S.39 of the Contract Act. S.42
of the Act, 1872, on devolution of joint liabilities lays down that when
two or more persons make a joint promise, then all such persons, during
their joint lives and after their death, their representatives jointly, must
fulfill the promise. Section 43 of the Indian Contract Act,1872 vests the
promisee with the option to compel performance from any one of the
joint promisors, and even to release any one of the joint promisors from
the performance of the promise. It enables as follows:
Sec. 43. Any one of joint promisors may be compelled to perform.- When
two or more persons make a joint promise, the promisee may, in the absence
of express agreement to the contrary, compel any [one or more] of such joint
promisors to perform the whole of the promise.
-- 67 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 68
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Geetanjali Dhir v. Abdul Hameed
Each promisor may compel contribution.- Each of two or more joint
promisors may compel every other joint promisor to contribute equally with
himself to the performance of the promise, unless a contrary intention
appears from the contract.
Sharing of loss by default in contribution.- If any one of two or more joint
promisors makes default in such contribution, the remaining joint promisors
must bear the loss arising from such default in equal shares.
Explanation.- Nothing in this section shall prevent a surety from recovering,
from his principal, payments made by the surety on behalf of the principal,
or entitle the principal to recover anything from the surety on account of
payment made by the principal.
91. A joint promise made by two or more persons, must be fulfilled
jointly by all such persons unless a contrary intention appears by the
contract though the promisee may in the absence of an express
agreement to the contrary compel any one or more of such joint
promisors to perform the whole of the promise. Any one of the joint
promisors may be released of the promise by the promisee, for the
performance of any promise may be made in any manner or at any time
which the promisee prescribes or sanctions. The exit of the defendant
no.1, without the consent and approval of the plaintiff, the consequent
release sought vide EX.PW1/6, and the performance of the promise by
the defendant no.2 in the absence of defendant no.1, could constitute an
act in material breach of the terms of the Construction Agreement if the
presence of defendant no.1 as joint promisor is shown to be a
fundamental term of the Agreement a violation whereof could justify
the termination of the agreement by the plaintiff.
92. Undisputedly, the plaintiff had entered into the Construction
-- 68 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 69
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Geetanjali Dhir v. Abdul Hameed
Agreement with both the defendants, as the Second Party, contractor/
builder, from the facts and circumstances under which the Agreement
came into being, it does appear that the defendant no.2 is retained as a
contractor/builder with the defendant no.1, to execute the works jointly
with the defendant no.1, not in his absence, in the face of his
unwillingness. The plaintiff has categorically asserted that
he expressed
desire to defendants that the house on the above-mentioned plot
would be constructed by defendant No. 1, therefore he hired the
defendants for their services to construct a house on his above-
mentioned plot. The defendant no.1 has also lent due support to the
plaintiffs such assertion.
93. Manifestly, out of the two persons who had jointly undertaken
to execute the construction agreement as
second party it is the defendant
no.1 who is the builder/contractor and the defendant no.2, as affirmed
by the plaintiff and supported by the defendant no.1, was mainly into
property dealing. PW-1 has asserted, duly supported by defendant no.1,
though it has been so denied by the defendant no.2, that before the
execution of the agreement the plaintiff had been shown sample
constructions raised by the defendant no.1. So far as this denial
emerging only in the cross-examination of D2W1 by defendant no.1 is
concerned, it cannot escape notice that the plaintiff in the whatsapp
message dated 31.1.2024 sent at 4.54 p.m. at point no.2 highlighted that
he was shown built up sites of Meet Bhardwaj to gain the contract, there
is no corresponding revert forwarded by defendant no.2 in denial. It can
-- 69 of 97 --
CS (Comm.) No.148/25 and Counter Claim no.26/25
Page No. 70
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Geetanjali Dhir v. Abdul Hameed
therefore be safely inferred that it is the sample buildings of defendant
no.1 that convinced the plaintiff into engaging the services of the
defendants for raising the construction over his plot.
94. In such circumstances then, so far as the plaintiff is concerned,
the involvement of defendant no.1 in the construction of his house was
a material aspect of the agreement, for the consent of the plaintiff was
founded on the promise of participation of defendant no.1, and it is his
expertise that clinched the deal. Though the defendant no.2 in cross
examination denied that the plaintiff was introduced to defendant no.1
by defendant no.2, it has also been brought forth in their depositions
that the plaintiff became acquainted with defendant no.2 somewhere in
2018, while the defendant no.1 and defendant no.2 were known to each
other since prior to 2017, in which year, the gym of defendant no.2 was
closed if not from 2014 as suggested to D2W1 during cross-
examination.
95. The defendants as per the own explanation rendered by defendant
no.2 were working together in the year 2023 on another project at
Dwarka, it is therefore only possible under such circumstances that the
defendant no.1 was introduced to the plaintiff by the defendant no.2.
Though the defendant no.2 was previously known to the plaintiff but
the plaintiff was not willing to assign the construction over his plot to
the defendant no.2 alone. The plaintiff knew defendant no.2 as a
property dealer in the main, though the defendant no.2 claims that he
has been in the field of construction since 2018 atleast, but himself
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acknowledges that only in 2023, defendant no.2 independently started
handling construction projects.
96. D2W1 however has not disclosed any projects that the defendant
no.2 had undertaken independently in the year 2023, for in the year
2023 also as per his own explanation he was raising construction
alongwith defendant no.1 at two different sites in Dwarka and the
plaintiffs site, not independently. Defendant no.1 on the other hand in
the year 2023 was an established builder, being in the line of
construction since 2010. Even if defendant no.2 had acquired some
experience in the construction of residential houses, the plaintiff was
not willing to engage the services of defendant no.2 alone for building
his house on the strength of his professed expertise, otherwise there
would have been no need for the defendant no.2 to introduce the
plaintiff with defendant no.1 a builder of considerable repute and take
him on board as the second party builder contractor with it for raising
the construction over the plaintiff’s site jointly as per the Construction
Agreement in question.
97. The plaintiff even after being introduced with the defendant
no.1 established in the line of business for quite some time, had not
straightaway proceeded to engage their services, he first assured
himself that the defendant no.1 possesses the kind of expertise and skill
that he was looking for in his builder by inspecting specimen houses
built by defendant no.1. This is the minimum due diligence expected of
a prudent person in such kind of agreements, it is always a labored
-- 71 of 97 --
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decision involving parleys with multiple persons sifting of pros and
cons, such a vital decision is generally not taken in a huff, for ordinarily
building one’s house tends to be a once in a lifetime endeavour for most.
98. The plaintiff in the main desired the construction to be raised by
defendant no.1 and had agreed to engage the services of the defendants
as defendant no.2 was previously known to him and the defendant no.1
who had the necessary skill and expertise in the field as desired by the
plaintiff was ready to work with the defendant no.2 for raising the
construction of his house. The plaintiff in order to ensure that he secures
best quality construction, did not leave out even the nitty-gritties for the
future, he was so clear in his mind of the quality that he desired that the
material to be used in the construction was specified in the agreement
in black and white.
99. D2W1 could very well have offered the plaintiff to raise the
construction on his own without adding any other person as a joint
promisor with him, but D2W1 despite being acquainted with the
plaintiff could not persuade the plaintiff into assigning the work to the
defendant no.2 Firm exclusively. The plaintiff was looking for a
particular level of skill and expertise which he found in defendant no.1.
The defendant no.2 could succeed in securing the plaintiff’s acceptance
only with defendant no.1 as a joint promisor with him, the plaintiff
ensured himself of the due participation and involvement of defendant
no.1 in his project by signing him as a joint promisor alongside the
defendant no.2.
-- 72 of 97 --
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100. If the plaintiff would not have agreed to engage defendant no.2
as the Builder for his site in the absence of defendant no.1 then the
involvement and participation of defendant no.1 since inception in the
construction at his site was a material condition of the agreement for his
consent is premised on the promise of participation of defendant no.1
jointly with the defendant no.2. The plaintiff infact put this pointed
querry to defendant no.1 in his cross examination as follows:
Q. I put it to you that in case plaintiff would have already
known that you would exit from the project prior to
commencement of construction work, the plaintiff would
not have entered into the agreement Ex. PW-1/4. What do
you have to say?
Ans. It is correct.
101. The plaintiffs consent being founded on the participation of
defendant no.1, the involvement of defendant no.1 in the construction
of his house was fundamental to the agreement, and his absence
therefore a material breach of the essential terms of the Construction
Agreement. His absence goes to the root of the matter for lest it is
forgotten, without him on board, there was no such Construction
Agreement as Ex. PW-1/4 coming into being between the plaintiff and
the defendant no.2. The defendant no.2 obtained the plaintiff’s consent
only on the promise of willingness of defendant no.1 to act as the
Contractor and joint promisor with him. The plaintiff alleges fraud and
misrepresentation, imputing that the defendant no.1 never intended to
participate in the project and became a party only to obtain the plaintiff's
-- 73 of 97 --
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consent.
102. However, no such suggestion is put either to D1W1 or to D2W1
that the defendant no. 1 from the beginning was never interested in the
project and was taken on board only to procure the plaintiff's consent
on the false promise of his participation in the project. The defendant
no.1 exited the construction project due to internal mismanagement and
non-co-operation from the side of the defendant no.2, as alleged by
DW-1 in cross-examination, which appears to be the case emerging in
the testimonies of the two defendants. While the plaintiff would never
have consented to entrust the defendant no.2 the construction of his
house, the defendants were working together on another project, the
plaintiffs project also was bona fide accepted as a joint venture, but their
failure to clearly set the terms of collaboration mutually caused them to
part ways very early in the project.
103. Both the defendants as joint promisors owed to the plaintiff
the duty to inform the plaintiff at the earliest that the defendant no.1 is
not being involved in the construction of his site, for it was material for
the plaintiff that the construction be raised in the presence of defendant
no.1 who was an experienced builder. The exit of defendant no.1
violates the Construction Agreement and strikes at the very root of the
matter for the consent of the plaintiff is premised on the promise of his
participation. The defendants had jointly undertaken to raise the
construction, the plaintiff cannot be compelled to accept the
performance of the promise by the defendant no.2 alone, when the
-- 74 of 97 --
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Page No. 75
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participation of the defendant no. 1, the other joint promisor, was
integral to the Agreement.
104. The defendant no.2 by calling upon the plaintiff vide Ex.
PW-1/6 to release the defendant no.1 from the performance of the
promise and consequently permit him to continue with the construction
in the absence of defendant no.1 and his acknowledgement that he had
been raising the construction over the plaintiff's site without any
participation from the side of the other joint promisor, defendant no.1,
thereby is in material breach of the terms of the Agreement Ex. PW-1/4.
This proposed reconstitution of the parties to the agreement violates the
contractual framework under which the work was assigned, the
modification proposed is infact in the nature of a novation. The plaintiff
was not bound to and infact was well within his rights not to take up the
defendant no.2 on its offer of raising the construction on its own, in the
absence of defendant no.1.
105. It is upto the promisee to release anyone of his joint promisors
of the performance of the promise, the demand of release by anyone of
the joint promisors midway the execution of the agreement is in
violation of the contract that entitles the promisee to terminate the
contract, the plaintiff therefore cannot be faulted for having rescinded
the construction agreement vide Ex. PW1/7, issue no.1 consequently is
liable to be determined against the defendant no.2/counter claimant and
in favour of the plaintiff, even though the plaintiff has not been able to
establish that there was any delay in the stage-wise execution of the
-- 75 of 97 --
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Page No. 76
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project as per any purported oral understanding between the parties, the
time frame for the completion of each of the stages not having been
etched in the Construction Agreement which is so elaborate as to
schedule the nature and make of the material to be employed in the
building.
Issues No.3 and 4 of the main suit and issue no.2 and 3 of the counter
claim:
3. Whether the plaintiff is entitled to recover Rs.14,47,825/- from the
defendants? If yes, then from which of the defendants? OPP.
4. Whether the plaintiff is entitled to recover interest? If yes, then at what
rate, for which period and from which of the defendants ? OPP
COUNTER CLAIM
1.Whether the counter claimant is entitled to recover Rs.17,80,000/-
including pre-suit interest from the non-counter claimant? Onus upon
counter claimant.
2.Whether the counter claimant is entitled to recover pendente-lite and
future interest? If yes, then at what rate, for which period? Onus upon
counter claimant.
106. Issue no.1 of the counter claim as decided above has direct
bearing on the above issues which are next taken up for discussion
hence. The plaintiff due to such breach of the material terms of the
Construction Agreement has sought to recover from the defendants,
jointly and severally, an amount of Rs.14,47,825/- computed in
paragraph 23 of the plaint as follows:
-- 76 of 97 --
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Page No. 77
Abdul Hameed Vs. Amit Bhardwaj & Anr.
Geetanjali Dhir v. Abdul Hameed
Amount paid for construction +24,00,000/-
Amount paid towards MCD +1,00,000/-
Amount received from demolition +1,50,000/-
Payment due for losses on account +4,86,000/-
of idle labour machinery and other misc. charges
Expenses incurred by the defendants -17,38,175
TOTAL +14,47,825
107. The defendant no.2 counter claimant on the other hand seeks to
recover an amount of Rs.10,50,000/- as the balance against the stage-
wise payment claiming that the defendant no.2 had raised the
construction up to the stage of second floor shuttering and a sum of
Rs.10 Lacs the plaintiff therefore is liable to pay for the same alongwith
the balance Rs.50,000/- for the very first stage of demolition as the
plaintiff had paid Rs.24,50,000/- at the time of the execution of the
agreement against the requisite amount of Rs.25 Lacs. A sum of Rs.5
Lacs the defendant no.2 seeks to recover for the construction material
lying unutilized at the site which the defendant no.2 could not remove
as he was shunted from the site by the plaintiff and was wrongfully
applied by the plaintiff in the construction of the remaining structure
through third party. After adding to this principal sum of
Rs.15,50,000/-, a sum of Rs.2,32,500/-the interest computed @12%
p.a., the defendant no.2 has raised a counter claim in total of
Rs.17,82,500/-.
-- 77 of 97 --
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Page No. 78
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Geetanjali Dhir v. Abdul Hameed
108. Starting first with the plaintiffs above computation certainly the
figures don’t add up, Rs.24,00,000 + Rs.1,00,000/- + Rs.1,50,000/- +
Rs.4,86,000/- when deducted from Rs.17,38,175/-, gives us
Rs.13,97,825 and not the suit amount as computed above. The plaintiffs
claim cannot be thrown away for bad mathematics though. A
typographical error may have been made in this computation
consolidated above, for the plaintiff admittedly has paid an amount of
Rs.14,50,000/- at the time of the execution of the agreement in question
stipulated to be paid at the time of demolition, and thereafter on
19.10.2023 had made the payment due as per the agreement at the stage
of upper ground floor shuttering of Rs.10,00,000/-, a sum of Rs.
24,50,000/- in aggregate though in the computation of the suit amount
under the different heads in paragraph 23 of the plaint this figure is
wrongly quoted as Rs.24,00,000/-. The correction however is made in
the affidavit in evidence where the amount is quoted correctly as
Rs.24,50,000/- only.
109. This has consistently been maintained by the plaintiff except at
this one place where the suit amount is computed with such
permutations and combinations. This infact is the endorsement to be
found in the hand of defendant no.2 on the agreement itself and is the
admitted case of the parties. The defendant no.2 himself has raised a
counter-claim for Rs.10,50,000/- towards stage-wise payment as the
defendant no.2 claims to have completed the construction till the stage
of second floor shuttering, and the Agreement stipulates for an
-- 78 of 97 --
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Page No. 79
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Geetanjali Dhir v. Abdul Hameed
installment of Rs.10 Lacs to be released at the said stage, adding to it
Rs.50,000/- towards the deficit amount qua the first stage of demolition.
Undeniably then the stage wise payment received in pursuance to the
Agreement and in terms thereof is in the sum of Rs.24,50,000/-. When
the amounts are thus computed, the suit amount is duly reached.
110. The plaintiff has added to the amounts received from the
plaintiff in pursuance to the agreement by the defendants, besides the
stagewise payments duly acknowledged, a sum of Rs. One Lac paid for
MCD charges and an amount of Rs.1,50,000/- from the sale of the
demolition material of the existing structure obtained by the defendant
no.2, from this total a sum of Rs.17,38,175/- is subtracted which
according to the plaintiff is the actual expenditure incurred in the
construction till termination. Both the parties have disputed the stage
of construction as on the date when the construction was stopped at the
site, the defendant no.2 claims to have completed the construction upto
the stage of second floor shuttering, and has founded its counter-claim
on such premise.
111. The plaintiff alleges that the construction being delayed by a
month had only reached upto five feet of the second floor, ie to say that
it was five feet short of the second floor lanter and has assessed the
estimated expenditure for the construction therefore as around
Rs.17,82,175/- as against the Rs.24.50 Lacs received in pursuance to
the agreement for the purposes. The defendants, had admittedly,
undertaken to raise construction over the plaintiff’s site consisting of
-- 79 of 97 --
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Page No. 80
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Geetanjali Dhir v. Abdul Hameed
Stilt parking, ground floor, first floor, second floor and third floor with
two rooms on the third floor, in terms of the Agreement signed on
25.7.2023, the construction was commenced on 21.9.2023, and was to
be completed within 12/15 months, however the plaintiff terminated the
Agreement midway on 31.1.2024.
112. The total cost of the construction was settled at Rs. 67 Lacs to
be paid by the plaintiff to the defendants besides difference amount /
cost out of his own pocket, as per agreed schedule, with Rs.15 Lacs to
be paid at the time of demolition of the structure, Rs.10 Lacs to be paid
at the time of upper ground shuttering, Rs.10 Lacs at the time of second
floor shuttering, Rs.10 Lacs at the time of third floor shuttering, Rs.10
Lacs at the time of plaster work and Rs.12 Lacs at the time of finishing
work, out of which Rs. 14,50,000/- was paid by the plaintiff for the first
stage and Rs. 10 Lacs were received by the defendant on 19.10.2023
stipulated to be paid at the stage of upper ground shuttering.
113. The construction activity at the site, as is asserted by the
plaintiff during cross examination and not disputed by the defendant
no.2, came to a standstill in the third week of January itself i.e. within
four months of its commencement. Till then, according to the plaintiff
the defendant no.2 had raised the construction until 5ft. for the second
floor. This is the status of construction conveyed in Ex. PW1/7 vide the
message sent at 4.54 pm on 31.1.2024 as follows :
“… As on 30th of Jan 2024, the work accomplished was
until 5 foot for the second floor at the same premises…”.
-- 80 of 97 --
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Page No. 81
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Geetanjali Dhir v. Abdul Hameed
114. The defendant No. 2 prior to the filing of written statement and
counter claim in writing had set forth that the defendant No. 2 has
completed the construction of the second floor shuttering and not until
5 feet for the second floor only in its legal notice dated 3.9.2024. Had
the plaintiffs such contention been false as propounded in the whatsapp
message dated 31.1.2024 receipt of which has been admitted, and the
defendant No. 2 indeed had raised the construction upto the second
floor shuttering, the defendant No. 2 immediately would have reverted
to set the record straight. The defendant No. 2 on its part filed a pen
drive to depict the construction made and the surplus construction
material lying at the plaintiff’s site. D2W1 while cross examining the
plaintiff did not confront the plaintiff with the contents of the pen-drive
to draw the attention of the plaintiff to the status of the construction
depicted therein.
115. D2W1 during cross examination proclaimed that the pen drive
shows the construction upto fourth lanter, but when the pen drive was
played before him, he was unable to point out the stage of construction
being claimed as accomplished. The relevant portion of the cross
examination of D2W1 is extracted below :
“
Q. Does the pen drive video Ex. D2W1/3 shows construction
upto the plaintiff second floor lanter?
Objected by the Ld. Counsel for the defendant o. 2 that this question
is leading question.
Ans. The pen-drive videos Ex. D2W1/3 shows the construction
upto the fourth lanter.
-- 81 of 97 --
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Page No. 82
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Geetanjali Dhir v. Abdul Hameed
The L.C. is requested by the counsel of the plaintiff to play the
pen-drive videos Ex. D2W1/3.
Objected by the Ld. Counsel for the defendant No. 2 being
irrelevant.
Allowed.
Q. Could you show the construction upto the fourth lanter in
the video filed by a pen drive Ex. D2W1/3?
Ans. I could not identify the video even after being shown the
videos in the pen-drive Ex. D2W1/3. I can ascertain only after going
through my records”.
116. D2W1 never confronted the plaintiff with the status of the
construction on display in any of the videos by playing the pen drive
during the plaintiff's cross-examination, and when during his own cross
examination, the videos relied upon by him are played before him
which according to him shows the status of the construction he was
unable to pinpoint the fourth lintel in the video. This fourth lintel is the
second floor lintel, the lintel of the parking area being the first, the
ground floor being the second, the first floor lintel being the third and
the second floor’s being the fourth thus. The plaintiff at the very first
opportunity set the record straight on the status of the construction as
on the date of the termination of the Agreement by him, ie in January
2024.
117. Defendant no.2 came to dispute the extent of the construction
in September, 2024 only, even after the return of the plaint of the suit
in CS DJ 164/2024 filed on 15.2.2024 in which suit the defendant no.2
put in appearance on 24.5.2024, and which plaint was returned vide
-- 82 of 97 --
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Page No. 83
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Geetanjali Dhir v. Abdul Hameed
order dated 27.7.2024. The defendant’s own witness was unable to
identify the extent of the construction as claimed by it from the single
documentary piece of evidence relied upon by the defendant no.2 for
the purposes, leading to the only logical conclusion that the status of the
construction as claimed by the plaintiff as on the date of the termination
of the Agreement was not in dispute, it is after the filing of the suit for
recovery that the defendant no.2 began disputing the same. From the
videos in the pen drive lintel is shown being laid but which lintel is it
cannot be made out, the status of the construction has not been captured,
only part of the construction process is visible. There should have been
three lintels clearly visible for the construction to reach the stage of
shuttering for the second floor
118. Besides, the videos show ongoing construction, which signifies
that the videos were taken prior to the period that the construction
stopped at the site, therefore could not have been depicting the status of
the construction as on the date that the Contract is terminated, for from
this date onwards as declared on oath by D2W1, he was not permitted
to proceed with the construction. The defendant having failed to
establish that as on the date of the termination of the Agreement the
defendant no.2 had completed the stage of second floor shuttering, the
defendant has lost its premise to claim the amount of Rs.10,00,000/-
towards the stage-wise payment stipulated as payable at the stage of
second floor shuttering under the Agreement in respect of issue no.2 of
the counter-claim.
-- 83 of 97 --
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Page No. 84
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Geetanjali Dhir v. Abdul Hameed
119. It is not that it having been so adjudged in favour of the
plaintiff that the plaintiff had rightfully rescinded the Agreement, the
defendants per se are not entitled to recover any amounts or that the
counter-claim of the defendant no.2 for recovery of any sum of money
was not maintainable. The plaintiff even in the event of rightful
termination is required to restitute the benefits if any received under the
Agreement which would amount to unjust enrichment. In case the
plaintiff having paid for the first two stages of the agreement was shown
to have benefitted from the performance by one of the joint promisors
in excess of the payment made, the plaintiff could have been asked to
make further corresponding payments as per the terms of the
Agreement. The defendant no.2 neither agitated this issue at any stage
before the filing of the first suit for recovery by the plaintiff, nor was
able to demonstrate from the single piece of documentary evidence
relied on its behalf that indeed the stagewise payment for second floor
shuttering had become due and payable when the Agreement is
terminated on 30.1.2024 by the plaintiff.
120. The plaintiff, on the contrary, stead fastly maintained that the
defendants as on the date of termination of the agreement had
completed the construction until five feet of the second floor, ie. five
feet short of the second floor, which stance was taken at the very first
opportunity available by the plaintiff. The plaintiff on his part however
has not been able to substantiate that the defendants incurred an
expenditure in total of Rs.17,38,175/- only in the construction that had
-- 84 of 97 --
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Page No. 85
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Geetanjali Dhir v. Abdul Hameed
come up on the site till the termination/ when the work came to a
standstill. This is an estimate that the plaintiff had obtained from a
valuer of properties orally but has not examined any such valuer in
support of this estimate. This estimate is also suspect as in the previous
suit a different figure had been set up by the plaintiff which it can be
presumed, must have been through the same valuer.
121. The said suit was for recovery CS DJ 164/2024 is for an amount
of Rs.4,93,025/-, out of which Rs.45,00,000/- was being claimed as due
against the agreement arrived at based on the total expenditure incurred
in the construction of the building along-with monthly expenditure of
the defendants minus the total amount paid to the respondents which as
per the plaint was Rs.24,50,000/- + Rs.81,200 + Rs.100000/-. Here then
the plaintiff had computed the expenses as at Rs.21,81,200/-. Such mere
guesswork of the plaintiff and variations in own calculations lends no
credence to the estimate of the cost of construction held forth. The
plaintiff had paid the amount due to be paid at the second stage, the
construction to reach the said stage was short by five feet. The payment
made by the plaintiff towards the first two stages was good till the third
stage is reached when further payments became due and payable from
out of the sale consideration. The plaintiff, to lay a claim for any amount
compensating the plaintiff, for the plaintiff having paid the
contractor/builder till the stage of second floor shuttering and the
construction being five feet short of the said stage, what the plaintiff
was required to show was the expenditure that would go into raising of
-- 85 of 97 --
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Page No. 86
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Geetanjali Dhir v. Abdul Hameed
this five feet to reach the stage of second floor shuttering.
122. The plaintiff has cross-examined D2W1 on the cost of
construction of one floor with 3 BHK, cost for the single lintel. The
plaintiff, however, has not formulated before the D2W1 that the D2W1
for the construction that had come up on his site till the termination of
the agreement had incurred expenses only of Rs.17,38,175/- or that
around Rs.8 Lakhs would be the cost in raising the five feet to reach the
second floor lintel that remained for if Rs.17,38,175/- were expended
in the raising of the construction five feet short of the second floor
shuttering then as per the plaintiff, the cost of raising this five feet to
reach the stage of second floor shuttering would be around Rs.8 Lacs
for the stagewise payment stipulated can certainly be taken to be good
till the next stage when payment becomes due.
123. The plaintiff in his cross-examination disclosed that he got
raised the remaining construction on the existing structure by incurring
expenses of around Rs.10 Lakhs towards the construction material. It is
not the case of the plaintiff that the plaintiff incurred amounts over and
above the consideration agreed under the Construction Agreement, or
that the plaintiff had to get the work completed through another
contractor for a consideration over and above what was agreed with the
defendants. In the written arguments, this ground has been sought to be
raked, however this is not the pleaded case of the plaintiff. The plaintiff
would have been entitled to recover any additional cost incurred in the
raising of the remaining construction over and above the agreed
-- 86 of 97 --
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Page No. 87
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Geetanjali Dhir v. Abdul Hameed
construction under the agreement with the defendant after the
termination of the Agreement for acts and omissions attributable to the
defendants.
124. Such an exposition however has not been rendered by the
plaintiff at any stage, either in the pleadings or in the affidavit in
evidence nor has any such allegation cropped up in the cross-
examination when the plaintiff is asked to reveal the cost of the
construction material while raising the remaining construction at the
site for which he even produced the bills. Also for the first two stages
the plaintiff had paid Rs.24,50,000/- whereas a sum of Rs.25,00,000/-
was required to be paid as per the Agreement against the stagewise
schedule in clause 12. None of the parties have explained under what
circumstances instead of Rs. 25 Lacs a sum of Rs.24.50 Lacs was
disbursed by the plaintiff, the defendant no.2 has claimed this short
amount but has not bothered to shed any light that why this short tender
was accepted from the plaintiff in the first place. Moreover the plaintiff
himself as PW-1 stressed during his cross-examination that the accounts
had been settled with the defendant no.2.
125. The stage-wise payment is short by Rs.50,000/-, the
construction was short by five feet for the next stage when further
payment became due, the plaintiff has come up with this figure of
Rs.17,38,175/- as the total expenditure incurred by the defendant
without any basis, and had himself computed the expenses differently
in the previous suit, to the tune of around Rs. 21 lacs. The plaintiff
-- 87 of 97 --
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Page No. 88
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Geetanjali Dhir v. Abdul Hameed
himself asserted to have settled the accounts with the defendant no.2 at
the time of the termination of the Agreement. It can then be inferred
against the plaintiff that the account qua stage-wise payment for the
extent of construction raised by defendant no.2 was settled with the
defendant no.2. In the absence of any credible evidence, it would only
be conjectural to estimate the expenses incurred, besides, it is not the
plaintiff's case that the plaintiff has sustained any loss incurred any
additional costs in the raising of the remaining structure or had to shell
out any unreasonable amount by engaging any other contractor/builder
for the purposes. There is no basis for the plaintiff to lay any claim to
the amounts paid stagewise as per the Agreement.
126. The plaintiff did allege that sub-standard material was used
and that the construction was delayed by a month. However, the
plaintiff has failed to show in what manner for the parties have agreed
on the kind of material to be used described in the Annexure to the
Agreement. D2W1 admitted to have used commercial grade cement in
the structure, it is not suggested to the D2W1 that commercial grade
cement is any way inferior to Grade 43 cement ordinarily used in
residential buildings. It is not set forth by the plaintiff himself that
inferior quality cement was used in the construction. Though the
agreement has stipulated the stage at which the payments are to be
realized, however has nowhere delineated the time frame for
completion of each individual stage, there then could arise no question
of any delay when the Agreement is terminated within four months of
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the commencement of the construction and the construction was to be
completed within 12-15 months.
127. The plaintiff has added a sum of Rs.1.50 Lacs to the amount of
Rs.24.50 Lacs, as the amount obtained from the sale of demolition
material at the site by the defendant no.2. The defendant no.2 in the
written statement did deny that the defendant no.2 has usurped the
amount of Rs.1,50,000/- received from selling the remnants of the
demolition of the old structure in the subject plot, the defendant no.2
however has not asserted that no amounts were received from the sale
of the demolition malba or that whatever amount was received was kept
by the plaintiff himself. When the plaintiff is cross examined the
defendant no.2 only suggested to him that there is nothing mentioned in
the Construction Agreement regarding the receipt of any amount from
sale of demolition malba.
128. Pertinently D2W1 in his affidavit in evidence has not stated
anything regarding this sum of Rs. 1.50 Lacs that the plaintiff has
attributed as sale proceeds of demolition material retained by the
defendants. The defendant no.2 during the cross examination of PW-1
did not confront the plaintiff on the plaintiffs such assertion that the sale
proceeds of demolition material were retained by the defendant no.2 in
the sum of Rs.1.50 Lacs or any other amount, but has only underscored
that there is nothing mentioned in this regard in the Construction
Agreement. In the absence of any agreement to the contrary, anything
accruing out of the existing structure belonged to the plaintiff and not
-- 89 of 97 --
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to the second party Contractors who were entitled to their stage-wise
payment for the construction at the site alone.
129. The sale proceeds of the remnants of the demolition material
could therefore rightfully have been claimed by the plaintiff. While the
defendant no.2 may not have come forward to dispute the quantum of
this amount alleged by the plaintiff, however it cannot escape notice
that the plaintiff in the previous suit ie CS DJ no.164/2024 filed on the
basis of the legal notice dated 3.2.2024 had claimed a sum of Rs. One
Lac alone as towards demolition material. This demolition amount has
not been claimed in the legal notice as such. Under the legal notice
dated 3.2.2024, the plaintiff claims an amount of Rs.4,50,000/- as
arrears of the Agreement and Rs.72,000/- for loss of mental peace.
Pertinently however the plaintiff has claimed in the notice to have
expended Rs.25.50 Lacs in total in terms of clause 12 of the Agreement
which amount is Rs.One Lac more than what had admittedly been paid.
130. From the own case set up at the first instance by the plaintiff that
the proceeds of Rs.1 lac of the demolition material was retained by the
defendants, and in the absence of any explanation having been rendered
by the plaintiff as to how this amount in the plaint presented
subsequently on the same cause of action has risen from Rs. One Lac to
Rs.1.50 Lacs it can only be determined that this amount received from
the demolition material was Rs. One Lac and not Rs.1.50 Lacs. The
defendant no.2 had no right to retain any portion of this amount
obtained from sale of the demolition material unless this was so
-- 90 of 97 --
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specifically provided in the Agreement. This amount of Rs.10,000/- as
a consequence is the plaintiff’s entitlement which the plaintiff may have
opted to adjust against the total sale consideration upon the completion
of the Agreement, and on the termination of the Agreement by the
plaintiff for material breach of its terms, becomes recoverable therefore.
131. The amount that the plaintiff has added towards MCD charges,
in the sum of Rs.1 Lac in the computation in paragraph 23 of the plaint
but affirmed on oath to be Rs.81,200/-, as per clause 7 of the Agreement
and conceded by him in cross-examination was required to be borne by
the plaintiff. Unless the plaintiff could show that the charges to be paid
were less and the defendants had obtained amounts on such pretext in
excess of the charges due and payable to MCD, the plaintiff has no right
to claim the amounts expended towards MCD charges. The plaintiff has
added to this computation a sum of Rs.4,86,000/- for idle labour,
machinery, and other miscellaneous charges. The plaintiff however has
not lead any evidence to show that the plaintiff had paid the labour at
the site, or that the plaintiff had procured and paid for the machinery
deployed in the construction.
132. Defendant no.1 may have brooked such a grievance and has
voiced his concern in his affidavit in evidence, that the defendant no.2
purchased material in the name of the defendant no.1 without making
any payment, but on what basis the plaintiff has claimed any amount
under such head as recoverable from the defendants contractors as loss
suffered from the breach of the terms of the Agreement escapes
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comprehension. PW-1 when cross-examined on the aspect could not
justify this amount and conceded that he did not incur any loss on
account of idle machinery and other miscellaneous charges concerning
the agreement and also that there is no clause in the agreement regarding
payment @18% for losses on account of idle labour, machinery and
other expenses.
133. If the plaintiffs such claim of Rs.4,86,000/- towards idle labour
etc. has no legs to stand, the defendants counter-claim that material
worth Rs.5 Lacs was lying at the site that was consumed by the plaintiff
in the remaining construction after the termination of the Agreement
also holds no water. The defendant no.2 claims to have purchased
material worth Rs.22 Lacs and utilized in the construction at the
plaintiffs site by the time the construction came to a standstill material
worth Rs.17 Lacs, material worth Rs.5 Lacs therefore was lying at the
site according to the defendant No. 2 when the defendant no.2 came to
be ousted from the site.
134. The defendant no.2 however in the counter-claim has not
specified what this material was, no bills have been produced in
support, there is no evidence adduced to assess this value being claimed
except for the bald statement of defendant no.2. From the videos in the
pen-drive relied in evidence on behalf of defendant no.2 also it could
not be deduced that material worth Rs.5 Lacs was lying unutilized at
the plaintiff's site as on 31.1.2024. During his examination in chief
defendant no.2 did not mention the details of the specific video/s that
-- 92 of 97 --
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would show any inventory at the site for the pen-drive comprises of
multiple files of short videos. No such video was shown to the plaintiff
for his confirmation/denial/ explanation of any material present at the
site.
135. In the absence thereof the videos in the pen-drive on the
aspect of unutilized construction material carry no evidentiary value.
So far as the short payment for stage of demolition in the amount of
Rs.50,000/- is concerned, the defendant no.2 / counter-claimant has not
been able to refute that the construction that had come up till the date
of termination of the agreement was five feet short of the second floor,
the payment till stage 2 was good till the construction reached stage 3.
As the construction was five feet short of reaching the third stage, the
defendant no.2 in order to substantiate its claim to the balance amount
of Rs.50,000/- was required to demonstrate that the cost of construction
that stood achieved by the date of its termination exceeded the
consideration received by at least Rs.50,000/-. The defendant No. 2 has
made no efforts in the directions and has failed to establish that the
defendant No. 2 had reached the stage of second floor shuttering from
the videos as relied.
136. As a consequence of the above discussion, I find that the
plaintiff has been able to substantiate his entitlement to the amount
claimed towards the value of the demolition material ie. a sum of Rs.
One Lac. It has been clinched undeniably that all the amounts were
received/retained in respect of the plaintiff's site by the defendant no.2
-- 93 of 97 --
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alone and no amount was handed over / received by the defendant No.
1, though both the defendants signed the Agreement as Contractor, joint
promisor. There was no provision made in the Construction Agreement
in respect of the demolition material, this amount therefore is retained
by the defendant No. 2 outside the terms of the Agreement to which the
defendant No. 1 signed as the joint promisor. The defendant No. 1 as a
joint promisor for any amount adjusted as payable in tunes of the
Agreement of by way of damages for its breach, would certainly be
liable jointly and severally alongwith defendant No. 2 however,
defendant No. 1 as a joint promisor cannot be held liable to any amount
retained by defendant No. 2 beyond the scope of the Agreement. The
amount towards the value of the demolition material not being the
subject matter of the Construction Agreement, the amount having been
retained by defendant No. 2, the plaintiff can only recover this amount
from the defendant no.2. Accordingly, the plaintiff is held entitled to
recover from the defendant no.2, an amount of Rs. One Lac towards the
value of the demolition material. This amount having been retained by
defendant No. 2 without any express provisions in the construction
agreement to this effect, the plaintiff is held entitled to recover this
amount from the defendant No. 2 along-with pendent-lite and future
interest @ 8% p.a. Issues no.3 & 4 are answered accordingly.
137. So far as Issues No.1 & 2 of the counter-claim are concerned,
the defendant no.2/counter-claimant has failed to demonstrate that the
defendant no.2 had completed the construction till the stage of second
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floor shuttering and had reached the third stage as per the clause 12 of
the Construction Agreement. The defendant no.2/counter-claimant has
also failed to show that the unutilized material worth Rs.5 Lacs was
lying at the plaintiff's site. The plaintiff having successfully established
that the defendant has raised the construction until 5 feet of 2nd floor,
the counter claimant is held not entitled to the amount of Rs. 50,000/-
balance against the stagewise payment for the first two stages, as the
counter claimant made no efforts to show that the cost of the
construction as on 31.1.2024 had exceeded the consideration received
till the said date, the counter-claim of the defendant no.2 fails. The
Issues no.1 & 2 of the counter-claim are accordingly answered against
the defendant no.2 and in favour of the plaintiff.
138. Issue No.1:
1. Whether suit is not properly valued for the purpose of Court Fees and
jurisdiction, in view of preliminary objection no.5 of the written statement
filed by defendant no.2 ? If so, to what effect? OPD2
139. This issue had been framed in view of preliminary objection
no.5 of the Written Statement filed by the defendant no.2. The
defendant simply alleged that the suit is not valued properly and
required Court Fees has not been filed without elaborating as to what
should have been the correct valuation, in what manner, the suit ought
to have been valued and what was the Court Fees that was required to
have been affixed and how is the Court Fees affixed deficient. The
plaintiff in total has affixed Court Fees of Rs.16,496/- and for the
-- 95 of 97 --
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purposes of Court Fees and jurisdiction has valued this suit at
Rs.11,47,825/-.
140. D2W1, in the affidavit of evidence also reiterated in paragraph
no.6 that the suit is not valued property and no required Court Fees has
been filed, rhetorically along the lines of the plaint without asserting
how and in what manner and demonstrating the correct valuation and
the Court Fees required to be paid thereon. This issue is, therefore,
liable to be answered against the defendant no.2 as no evidence has
been led by the defendant no.2 in support.
141. Issue No.2
2. Whether suit is bad for mis-joinder of necessary parties, in view of
preliminary objection no.12 of the written statement filed by defendant
no.2 ? If so, to what effect? OPD2
142. The plaintiff initially instituted the present suit arraigning
defendant no.2 Geetanjali Associates through Sh. Jitender Dhir,
amended memo of parties thereafter was filed on 2.6.2025, whereby
defendant no.2 has correctly been impleaded as Smt. Geetanjali Dhir
(Proprietor of Geetanjali Associates) wife of Sh. Jitender Dhir. The
defendant no.2 had filed the Written Statement on 6.5.2025 raising the
preliminary issue no.12 regarding mis-joinder of the parties contending
that Sh. Jitender Dhir is not the proprietor of Gitanjali Associates and
Smt. Gitanjali Dhir is the proprietor of Gitanjali Associates, and that the
plaintiff, with malafide intentions, has made him a party.
(i) The issue thereon was framed on 21.5.2025, however, in the
meanwhile, in the light of the preliminary objection raised by the
-- 96 of 97 --
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Page No. 97
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defendant no.2, amended memo of parties was filed by the plaintiff on
2.6.2025 along-with an application u/o VI Rule 17 CPC for amendment
of the memo of parties, that was allowed on 2.6.2025 itself. In the wake
of the amendment made to the memo of parties, the objection no longer
is sustainable. The Issue no.2, therefore, is infact required to be deleted
but instead is being answered in favour of the plaintiff and against the
defendant no.2.
RELIEF
143. As a consequence of the discussion above and in
accordance with the issue-wise findings returned, the plaintiff's suit is
decreed in favour of the plaintiff and against the defendant no.2 to the
extent and in the terms that the plaintiff is held entitled to recover from
the defendant no.2, a sum of Rs.1,00,000/- along-with pendent-lite and
future interest @ 8% p.a. and the counter-claim of the defendant no.2 is
dismissed. Parties are left to their own costs.
The plaintiff's suit and the counter-claim of defendant
no.2 are accordingly disposed of. Separate decree-sheets be prepared in
the main suit and the counter-claim.
This Judgment be also placed under the seal of the Court
in the counter-claim file. Both suit and counter-claim be consigned to
record room after due compliance.
Announced in the open court on (Neelofer Abida Perveen)
29th May, 2026. DJ (Commercial Court)-01
Central District/THC/Delhi.
-- 97 of 97 --