Final Order 1

Order Details: Copy of Judgment
Pdf Text: Comm.Suit No. 255/19. 1 Judgment (Exh.27)
MHCC010130742019
Presented on : 16-04-2019
Registered on : 12-12-2019
Decided on : 22-11-2021
Duration : 2 Ys. 7 Mts. 7 Ds.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 255 OF 2019
Exh.
Mr. Ramesh S/o. Govind Thakur )
age 51 years of Mumbai, adult, Indian )
Inhabitant, residing at Shraddha House, )
Golfadevi Road, Near Datta Mandir, )
Worli Koliwada, Worli, Mumbai 400 040 ) ...Plaintiff
Versus
1. Mr. Yogesh Patil )
Age 45 years, )
2. Madhavi Yogesh Patil )
Age 40 years, )
3. Ms. Latika Yogesh Patil
Age 22 years )
Adults, Indian Inhabitants, )
residing at Room No.122/J, Amarprem )
Worli Koliwada, Worli, Mumbai 400 030 ) ...Defendants
SUIT FOR RECOVERY OF MONEY
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 22nd NOVEMBER, 2021.
Shri Ashok M. Saraogi Advocate for the plaintiff.
Shri Paresh Madkaikar Advocate for all defendants.
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Comm.Suit No. 255/19. 2 Judgment (Exh.27)
JUDGMENT
1. This is a suit for recovery of money.
2. Case of the plaintiff, in brief, is as under :
The plaintiff is in the business of construction and he is
having a good reputation in the society at large. Defendant No.1 is
husband of defendant No.2. Defendant No.3 is the daughter of
defendants No.1 and 2. Defendant No.1 is the owner of the premises
bearing House No.122J, Amarprem, Worli Koliwada, Worli, Mumbai
400 030 ( henceforth referred as “the suit property”). The plaintiff
further pleaded that the defendants are joint owners of the suit
property. The defendants represented to the plaintiff that since the suit
property is in dilapidated condition, they intend to get the same
repaired. The defendants asked the plaintiff to carry out necessary
repairs in the suit property. Accordingly, terms and conditions were
recorded in writing by way of an agreement dated 14.04.2016. The
plaintiff carried out necessary repairs in the suit property as per the
agreement without any objection or complaint of the defendants.
Though the plaintiff was entitled to receive necessary amounts during
the course of repairs to the suit property, defendant No..1 represented
that he is attached to the police department and as such, once the work
is completed, the entire payment will be made to the plaintiff.
Considering the status of defendants, the plaintiff did not doubt their
bona fide.
3. Despite of all efforts made by the plaintiff and promises
given by the defendants from time to time, the defendants failed to
make payment of Rs.9 lakhs to the plaintiff. One cheque of Rs.1 lakh
issued by the defendants came to be returned. The plaintiff sent legal
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Comm.Suit No. 255/19. 3 Judgment (Exh.27)
notice dated 23.03.2019 to the defendants. The defendants seems to
have received the notice, but they failed and neglected either to respond
the same or to make payment under the said notice. A cause of action to
file present suit accrued somewhere in the first week of April, 2019
when the defendants failed to make payment despite of receiving the
demand notice. The plaintiff had completed the work of repairs within
a span of two months from the date of agreement that is on or before
30.05.2016. Hence, the plaintiff filed the suit for recovery of Rs.9 lakhs
with interest of Rs.3,24,000/ at the rate of 12% p.a. He further
claimed future interest from the date of suit till the date of realization
with costs.
4. The defendants have filed written statement (Exh.4) in
which they have pleaded their case as under :
The defendants have admitted their interserelations. They
further admitted defendant No.1's ownership of the suit property.
According to them, the suit property consists of the ground and upper
floors.
5. The defendants pleaded that no cause of action has accrued
by filing the suit against them. Defendant Nos.2 and 3 are
unnecessarily dragged as parties to the suit without any cause of action
against them. The suit is bad in law for misjoinder of parties. The
plaintiff has suppressed material facts and made false statement on
oath. The plaintiff filed the suit in order to extort money from the
defendants.
6. It is case of the defendants that defendant No.1 was willing
to carry out repairs, renovation and interior work of the suit property.
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Comm.Suit No. 255/19. 4 Judgment (Exh.27)
The plaintiff approached defendant No.1 in MarchApril 2016 and made
representation that he has the requisite knowledge, expertise and
experience in undertaking such job of repairs, renovation etc.. By
believing representation of the plaintiff, defendant No.1 agreed to
permit the plaintiff to carry out repairs work of the suit property subject
to terms and conditions as mutually, orally agreed by them.
Accordingly, agreement dated 16.04.2016 was prepared by the plaintiff
and it was shown to defendant No.1. Defendant No.1 signed the
agreement dated 16.04.2016 as per which total consideration of Rs.2
lakh was determined for repairing work. The plaintiff had agreed to
carry out the work as per oral terms and conditions. The plaintiff had
demanded two cheques of Rs.1 lakh each to defendant No.1 without
putting dates therein. The defendants have further pleaded that the
first cheque shall be deposited upon commencement of repair work and
the second cheque shall be deposited after completion of repair work.
By stating about these terms of agreement, the defendants further
pleaded that the plaintiff did not commence repair work for reasons
best known to him and willfully delayed execution of the same. Then,
defendant No.1 constrained to orally cancel, revoke and terminate the
agreement in the third week of June, 2017.
7. As the plaintiff did not commence the repair work,
defendant No.1 asked him not to deposit the cheques in his account and
requested him to deliver those cheques back to him (defendant No.1).
However, the plaintiff avoided to return the cheques to defendant No.1.
Then, the defendants suspected ill motives of the plaintiff and issued
stop payment notice to the bank as a matter of abandon precaution.
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Comm.Suit No. 255/19. 5 Judgment (Exh.27)
8. Ultimately, defendant No.1 carried out repair work of the
suit property himself at his own costs and expenses. He bore expenses
of material and hiring labours for the said work. He has bills of
building material etc. purchased by him.
9. After receipt of notice dated 23.03.2019, defendant No.1
approached the plaintiff to ask his explanation regarding demand of
Rs.9 lakhs. At that time, the plaintiff apologized defendant No.1 for
making false claim in his legal notice and assured that the said legal
notice may be ignored. As the plaintiff tendered apology, defendant
No.1 did not give reply to the notice dated 23.03.2019.
10. It is contention of the defendants that above mentioned
terms were agreed between the parties, but the plaintiff illegally
tampered page 2 of the said agreement by removing original page No.2
and by substituting a different new page No.2 therein. New page does
not bear initials or signatures of the parties. Defendant No.1 is always
very cautious and in the habit of putting his initials on each page of
such agreements. He had signed each page of the agreement dated
16.04.2016. His signature on page No.2 is missing.
11. The defendants have specifically denied that the plaintiff
carried out repair work within two months and they are liable to pay
Rs.9 lakhs with interest at the rate of 12% per annum. By denying case
of the plaintiff and after putting forth their own case as stated above,
the defendants prayed that the suit may be dismissed with heavy
compensatory costs.
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Comm.Suit No. 255/19. 6 Judgment (Exh.27)
12. My learned predecessor framed issues at Exh.5 on
05/01/2021. Then, the plaintiff filed his evidence affidavit as PW 1
(Exh.6) and list of documents (Exh.7) on 04/02/2021. He proved the
agreement dated 16.04.2016 (Exh.8), the cheque dated 25.12.2017
(Exh.9), office copy of notice dated 23.03.2019 (Exh.10), postal receipt
(Exh.11) and acknowledgement (Exh.12). The plaintiff closed evidence
vide pursis Exh.13. Defendant No.1 examined himself as DW1 at
Exh.15. He also examined DW2 Melvin, a plumber (Exh.22), DW3
Ravindra, a painter (Exh.23) and DW4 Haresh, an electrician (Exh.24).
The defendants have relied upon documents filed with list Exh.16 i.e.
original bill No.8 and 9 dated 17.10.2019 issued by Mr. Haresh Patil
(Exh.17 and 18), original tenancy agreement dated 04.12.2013
(Exh.19) and photo copies of Order No.61 and 62 dated 19.12.2019
issued by Asha Sanitary Ware, Dadar (Exh.20 and 21). The defendants
closed evidence by filing pursis Exh.25.
13. Learned counsel Shri Ashok Saraogi for the plaintiff filed
written submission Exh.26 and I have gone through the same. I have
also gone through the pleadings, documents, oral evidence and citations
placed on record. Ld. Counsel Shri Paresh Madkaikar for the
defendants advanced oral arguments.
14. Sum and substance of written submission Exh.26 of the
plaintiff is that the suit property was consisted of only ground plus one
storied building and the plaintiff constructed the second floor as per the
agreement. The defendants failed to produce any document to show
that the original premises was consisted of ground plus two floors. The
defendants have not filed necessary counterclaim challenging the
validity of the said agreement. The defendants have failed to demolish
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Comm.Suit No. 255/19. 7 Judgment (Exh.27)
the case of the plaintiff and to establish their case as to page No.2 of the
agreement Exh.8 having fabricated document. The plaintiff has
reproduced terms in the agreement Exh.8 in his written submission.
The defendants have taken on record the things in crossexamination
which had remained to be incorporated in examinationinchief. At the
end it is prayed to decree the suit with costs.
15. Ld. Counsel Shri Paresh Madkaikar for the defendants
reiterated their case in the written statement and submitted that
original agreement was pertaining to repairing work of the suit property
for Rs.2 lakhs and defendant No.1 had issued two cheques of Rs.1 lakh
each. He further submitted that the second page of the agreement
Exh.8 is replaced. In order to substantiate his contention, he relied
upon admissions given by PW1 Ramesh in his crossexamination. He
further submitted that the defendants carried out necessary repair work
of the suit property with the help of DW2 Melvin, DW3 Ravindra and
DW4 Haresh on failure of the plaintiff to discharge his liability as per
agreement. Ld. Counsel Shri Paresh Madkakare relied upon para 4 in
the case of Bhika Cullianji and Company, Bombay V/s. Avon Electric
Company, Bombay and others 1995 (1) Bom.C.R.377 and submitted
that failure to put the essential material setting out the case in cross
examination would have to be regarded virtually as an admission. He
has given stress on failure of the plaintiff to produce necessary
documents i.e. estimate and quotation on record and submitted that
withholding of vital documents relevant to litigation is fraud on the
court as per observations of the Hon'ble Supreme Court in paras 7 and 8
in the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. V/s.
Jagannath (dead) by L.Rs. and others, AIR 1994 Supreme Court
853. He submitted that the plaintiff failed to prove his case and the
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Comm.Suit No. 255/19. 8 Judgment (Exh.27)
suit is liable to be dismissed with costs.
16. My learned predecessor had framed issues at Exh.5 and I
reproduce the same and record the findings against them for reasons to
follow :
SR.NO. ISSUES FINDINGS
1. Whether plaintiff proves that he
has performed and carried out
any alleged work in pursuance
of the agreement dated
16.04.2016 ?
In the negative.
2. Whether defendants prove that
suit is bad for nonjoinder of
necessary parties ? In the negative.
3. Whether defendants prove that
repair works was completed by
defendants? In the affirmative.
4. Whether defendants prove that
page No.2 of agreement dated
16.04.2016 is tampered by
plaintiff ? In the affirmative.
5. Whether defendant No.2 proves
that total consideration of
Rs.2,00,000/ was fixed for
repair work In the affirmative.
6. Whether plaintiff is entitled for
recovery as prayed with
interest ?
In the negative.
7. What order and decree ? The suit is dismissed.
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Comm.Suit No. 255/19. 9 Judgment (Exh.27)
REASONS
AS TO ISSUES NOS.1, 3, 4, 5 AND 6 :
17. On perusal of rival pleadings, it is explicit that the plaintiff
is relying upon the agreement dated 16.04.2016 (Exh.8). On the
contrary, defendant No.1 has admitted execution of the said agreement,
but he is claiming replacement of the second page of the said
agreement. With this regard, PW1 Ramesh has admitted in his cross
examination that, point (bZ) is repeated twice in clause (6) of the
agreement. If this repeated point at the end of the second page and in
the beginning of the third page is read together, it is clear that five
points are mentioned on the second page and 3.5 points are mentioned
on the third page. Had the point (bZ) been copied and pasted on the
third page in the course of typing the matter on computer, contents in
the said line would have remained same. This variation in the last line
of the second page and the first line of the third page in the agreement
suggests that the second page is replaced by making variation in terms
of the agreement.
18. In addition to it, PW1 Ramesh has admitted in his cross
examination that the first and the third page of the agreement are
signed by him and defendant No.1. He could not explain the reason for
absence of their signatures on page No.2 in answer to the question put
to him in his crossexamination. He further admitted that the
agreement Exh.8 is in his custody from the date of execution of the
same. He has also admitted variation in alignment of the second and
the third pages of the agreement Exh.8. In addition to it, PW1 Ramesh
further stated in his crossexamination that there is variation in
thickness of letters typed on the second and third page. In short, the
plaintiff could not plausibly explain the circumstances which are
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Comm.Suit No. 255/19. 10 Judgment (Exh.27)
pointing towards abnormal situation with regard to authenticity of the
second page of the agreement.
19. It is pertinent to note that, DW1 Yogesh has not been
confronted with the agreement Exh.8 and contents therein in the course
of his crossexamination. Plane suggestion is given to him that some
agreement was entered into between himself and the plaintiff. DW1
Yogesh has placed on record original tenency agreement dated
04.12.2013 (Exh.19) in order to prove that he is in habit of signing each
page of the agreement. In short, the agreement Exh.8 seems to
apparently manipulated documents.
20. PW1 Ramesh deposed that he carried out construction
work for the sum of Rs.9 lakhs as desired by the defendants as per the
terms of the agreement dated 16.04.2016. Contents in the agreement
Exh.8 speaks about renovation of the second floor of the suit property
and there is reference of construction of two rooms on the second floor
of the suit property. Crossexamination of DW1 Yogesh shows that the
suit property consisted of only ground floor in the year 1996 and
construction of the first and the second floor is carried out in the year
1996. In crossexamination of DW1 Yogesh, it is not suggested that
two rooms were constructed on the second floor of the suit property by
the plaintiff.
21. PW1 Ramesh has pleaded that he completed the work
within span of two months i.e. on or before 30.05.2016. He has stated
in his crossexamination that box construction (pillars) was over in
December, 2016 and interior work was completed in March, 2017 and
he finished the work including colouring. This evidence of the plaintiff
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Comm.Suit No. 255/19. 11 Judgment (Exh.27)
is contrary to his case of completion of the work on or before
30.05.2016. He has also not brought on record particulars of expenses
incurred for the construction work. He stated in his crossexamination
that generally estimate and quotation have to be given regarding
expenses. After making this statement, he proceeded to state that he
tore the estimate and quotation after the agreement Exh. 8. In short,
the plaintiff has failed to substantiate the details of material work
carried out by him in accordance with alleged agreement Exh.8.
22. On the contrary, DW1 Yogesh has deposed about issuance
of two undated cheques of Rs.1 lakh each to the plaintiff for repairing
work of the suit property and his failure in discharging the obligation.
He further deposed in para 8 of his evidence affidavit about hiring
services of DW2 Melvin, DW3 Ravindra and DW4 Haresh for
plumbing, painting and electric work respectively. When DW1 Yogesh
was subjected to crossexamination, bills relating to purchase of
material (Exh.20 and 21) are referred to him. Ld. Counsel Shri Ashok
Saraogi brought in his crossexamination that those are the quotations.
DW1 Yogesh further stated about purchase of the material as per
Exh.20 and 21 in presence of the plumber. DW2 Melvin has also stated
in his crossexamination that he and Yogesh Patil had gone to the
market for purchasing material for plumbing work. It is suggested to
him that Yogesh Patil had made payment in respect of material
purchased for plumbing work. This part of evidence in cross
examination of DW2 Melvin fortifies to the case of the defendants
regarding use of services of this witness for carrying out the repair work
in the suit property. Crossexamination of DW3 Ravindra is mainly
devoted to notarisation of his affidavit and his failure to identify the
concern Notary namely Shri V.R.Tripathi. It does not affect to his
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Comm.Suit No. 255/19. 12 Judgment (Exh.27)
evidence in the affidavit.
23. All three witnesses of the defendants stated about work
carried out by them in the suit property. Crossexamination of these
witnesses is mostly relating to specifications of the suit property. It is
attempted to bring on record in their crossexamination that they were
not conversant with the site of the suit property. The person visiting a
particular constructed property for a particular purpose cannot be
expected to have attention towards minute details of that property. It is
general practice that concern labour or worker pays attention towards
his work instead of noticing surrounding area of the particular site.
Therefore, details in crossexamination of these witnesses are not
sufficient to disbelieve their evidence.
24. In short, the plaintiff could not substantiate his case with
the help of evidence regarding work done by him. On the contrary, the
plaintiff had received two cheques of Rs.1 lakh each from the
defendants and it lends support to the case of the defendants that the
agreement was restricted to repair work worth Rs.2 lakhs. The
agreement Exh.8 was executed on 16.04.2016. The plaintiff placed on
record one cheque (Exh.9) issued by defendant No.1. The said cheque
is issued on 25.07.2017, but the plaintiff has not clarified the details of
presentation of the cheque and subsequent developments in respect of
the said cheque. The plaintiff issued the notice (Exh.10) to the
defendants for the first time on 23.03.2019. Notice Exh.10 does not
have details of the cheque. Had the plaintiff carried out the work of
Rs.9 lakhs, he would not have preferred to pass the time of two years
and 10 months before initiating the action by issuing notice to the
defendants. In addition to it, the plaintiff would not have wasted the
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Comm.Suit No. 255/19. 13 Judgment (Exh.27)
opportunity of encashing the cheques by presenting to his bank before
last date for presentation Therefore, the plaintiff could not explain his
silence for about three years after allegedly bearing expenses of Rs.9
lakhs. Case of the plaintiff regarding expenses of such huge amount is
not made out on the basis of preponderance of probabilities. The
plaintiff failed to prove authenticity of the second page of the
agreement Exh.8 and discharging of duties in accordance with it. In the
light of all above discussion, I record my findings as to issues No.1 and
6 in the negative and as to issues No. 3, 4 and 5 in the affirmative.
As to Issue No.2 :
25. On perusal of evidence on record, it appears that the
plaintiff and defendant No.1 are the parties to the agreement Exh.8 and
there is no reference of defendants No.2 and 3 in it. The plaintiff has
not brought on record any material to show that defendants No.2 and 3
alongwith defendant No.1 are coowners of the suit property. In such
circumstances, defendants No.2 and 3 are not liable to discharge
liabilities of defendant No.1 arising out of the said agreement.
Therefore, there is misjoinder of parties in the suit. There is nothing
on record to demonstrate nonjoinder of necessary parties. Accordingly,
I record my findings as to issue No.2 in the negative.
As to Issue No.7 :
26. Considering my findings as to Issues No.1 to 6, the suit is
liable to be dismissed. In the light of transaction between the parties, it
would be appropriate allow both sides to bear their own costs. Hence, I
pass the following order
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Comm.Suit No. 255/19. 14 Judgment (Exh.27)
ORDER
1. Commercial Suit No. 255/2019 is dismissed.
2. Both sides shall bear their own costs.
3. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 22/11/2021. Mumbai.
1. Dictated online on : 22/11/2021.
2. Signed on : 23/11/2021.
3. Delivered to Certified :
Copy Section on
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Comm.Suit No. 255/19. 15 Judgment (Exh.27)
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
23/11/2021. 3.25 p.m. Mr. S.S. Bathe
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 22/11/2021.
Judgment/Order signed by P.O. on 23/11/2021.
Judgment/Order uploaded on 23/11/2021.
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