The plaintiff, who had partially succeeded in the suit for recovery of money due under the construction contract, is the appellant. The suit was filed for recovery of sum of Rs.6,04,312.24 with interest on 5,61,142.74 alleged to be due towards the cost construction made by the plaintiff for the defendant. According to the plaintiff, the defendant had engaged the plaintiff for constructing a commercial cum residential building in the land belonging to the defendant situated at Door No.6, Gulam Abbas Alikhan 7th Street, Thousand lights, Chennai-6. An agreement was entered into between the parties on 02.02.1998 setting out various caluses that would govern the relationship between the parties. The construction was completed and the plaintiff raised a final bill dated 27.03.1989, under which, he claimed a sum of Rs.5,47,669.26 as outstanding, from the defendant towards the cost of construction. Thereafter, a revised bill was also prepared on 24.06.1989 under Ex.A.3. Under the said revised bill, the claim was enhanced to Rs.5,61,142.74. Since the defendant did not pay the amount claimed under the revised bill dated 24.06.1989, the suit came to be filed.
2. The defendant resisted the said suit contenting that there is no formal agreement between the parties. It was also contended that since the father of the plaintiff and the father of the defendant were friends, he had entrusted the construction of the building with the plaintiff. According to the defendant, he agreed to pay a sum of Rs.180/-per sq.ft. and the total extent of construction was only 10,000 sq.ft. The surveyor engaged by him has fixed the value of the building constructed by the plaintiff at Rs.18,80,000/-. Therefore, the plaintiff's claim is unfounded. The defendant filed a counter claim to the tune of Rs.5,92,325.53. The counter claim was resisted by the plaintiff on the above pleadings.
3. The learned III Additional City Civil Judge, Chennai has framed the following issues :-
1.Whether the defendant is liable to pay the suit claim to the plaintiff along with the interest?
2.Whether the plaintiff is entitled to permanent injunction?
3.Whether the plaintiff is liable to pay the amount along with 18% interest p.m as claimed by the defendant in his counter claim?
4.Whether the plaintiff is liable to pay future damages?
5.Whether the agreement dated 02.02.1989 is fraudulent?
6.Whether the counter claim was made beyond limitation and if the same is sustainable?
7.To what other reliefs the parties are entitled to?
4. After considering all evidence and records, the learned Trial Judge came to the conclusion that the agreement dated 02.02.1989 is true and valid. The learned trail Judge also found that the defendant has not established his claim that value of the construction put up by the plaintiff was only Rs.18,82,624.47. It was also found that the final bill raised by the plaintiff is in accordance with the agreement dated 02.02.1989. Therefore, the learned trial Judge rejected the counter claim filed by the defendant. As regards the claim made by the plaintiff, the learned Judge in fact accepted the revised bill, Ex.A.3 dated 24.06.1989. However, the learned Judge found that the plaintiff hss not deducted a sum of Rs. 88,474.05, which was, in fact the admitted value of the materials supplied by the defendant during the course of the construction. On the above findings, the learned trial Judge decreed the suit of the plaintiff for the balance amount i.e., a sum of Rs. 4,74,583/- As against the dismissal of the suit with reference to the balance amount i.e., a sum of Rs.88,747.05, the plaintiff has preferred the above appeal.
5. I heard Mr.M.Balasubramanian, learned counsel appearing for the appellant and Mr.N.Gyanchand Jain, learned counsel appearing for the respondent.
6. Considering the limited scope of the appeal, the following points are framed for determination :-
1.Whether the trial Court was right in arriving at balance due under the agreement as Rs.4,71,583?
2.Whether the trial Court right in finding the plaintiff has not given credit to the sum of Rs. 88,747.05 which represented the value of the materials supplied by the defendant in the revised bill Ex.A.3 dated 24.06.1989?
7. Mr.M.Balasubramanian, learned counsel appearing for the appellant would contend that the trial Court was not justified in coming to the conclusion that a sum of Rs.88,747.05 which represented the value of the materials supplied by the defendant, has not been given credit to in Ex.A.3. According to the learned counsel, since the defendant raised a dispute regarding the claim made under Ex.A.2, the revised bill under Ex.A.3 was prepared and forwarded to the defendant. According to the learned counsel for the appellant, the failure on the part of the defendant to object to the calculation made under Ex.A.3 coupled with the failure to send a reply notice the the suit notice dated 07.07.1989, would show that the contents of Ex.A.3 have in fact been admitted by the defendant.
8. Per contra the learned counsel appearing for the respondent would contend that the fact that the sum of Rs. Rs.88,747.05 which was the value of the materials supplied by the defendants is admitted. The said amount was duly given credit while preparing Ex.A.2 namely the final bill dated 27.03.1989. However, while preparing the revised bill Ex.A.3 dated 24.06.1989 only a sum of Rs.9,167.68 has been given credit to. Therefore, the trial Court was justified in holding that the plaintiff has not given credit to the entire value of the materials supplied by the defendant during the construction. The trial Court after considering the exhibits in Ex.A.2 and A.3 has come to the conclusion that the cost of construction is Rs.30,45,330.42 and after deducting a sum of Rs. 24,75,000/- paid by the defendant and a sum of Rs. 88,747.05 being the value of the construction materials supplied by the defendant, has come to the conclusion that the defendant was liable to pay a sum of Rs.4,74,583/- to the plaintiff.
9. Though Mr.M.Balasubramaniam, the learned counsel appearing for the appellant would contend that the sum of Rs. 88,475.05 has already been deducted under Ex.A.2 and therefore it should not have been deducted again by the trial Court. I am unable to agree with the said contention. Ex.A.3 is not a continuation of Ex.A.2. A reading of the both documents namely Ex.A.2 and A.3 would show that Ex.A.3 is independent of Ex.A.2. A sum of Rs. 88,475.05, which has been given credit to under Ex.A.2 has not been reflected in Ex.A.3. Since both the documents are independent of each other, the contention of the learned counsel for the appellant that a sum of Rs.88,475.05 should not be deducted once again is not acceptable. Therefore, I do not find any infirmity in the conclusion of the learned trial Judge and the said conclusion and the amount arrived at by the trial Judge are confirmed.
10. It appears that pending appeal there were several interlocutory proceedings regarding the possession of the property between the parties which led to the proceedings in Special Leave Petition in S.L.P.No.10186 of 1990 before the Hon'ble Supreme Court. By an order dated 30.11.1990, the Hon'ble Supreme Court has directed the defendant/respondent to deposit a sum of Rs.5,61,142.74 being the suit claim to the credit of the suit and on such deposit the appellant/plaintiff was directed to deposit the key of the building in the Court. The respondent/defendant was allowed to take the key from the Court. The plaintiff was allowed to withdraw the amount of Rs.5,61,142.74 subject to filing of an undertaking to refund the amount back abiding by the decision of the suit with interest at the rate of 24% to be adjusted by the Court if the decree is passed. The plaintiff was also directed to give bank guarantee to the tune of Rs.7,00,000/-.
11. It is stated by both the counsel that pursuant to the order of the Hon'ble Supreme Court, the defendant/respondent had deposited a sum of Rs.5,61,143/- and the same has also been withdrawn by the appellant/plaintiff after filing an undertaking as directed by the Hon'ble Supreme Court. Therefore, the appellant/plaintiff will have to now repay the sum of Rs.89,580/- with interest at the rate of 24% per annum from 03.04.1991. It is also brought to my notice that pursuant to the interim order made in C.M.P.No. 15602 of 2005 in this appeal, the appellant had deposited a sum of Rs.45,000/- to the credit of the suit. It is also stated that on 06th January, 2006 the said amount have also been deposited in fixed deposit. In view of the same, the respondent/defendant is directed to with draw the said sum.
12. In the result, the appeal is dismissed and the judgement and decree of the trial Court are confirmed. There will be no orders as to cost in this appeal.
03.01.2017 Index : Yes/No rts To The III Additional Judge, City Civil Court, Chennai.
R.SUBRAMANIAN, J.
rts A.S.NO. 908 of 2005 03.01.2017 http://www.judis.nic.in