Chitambaresh, J.
The court below has granted a decree in favour of the plaintiff contractor against the defendant Board in respect of the construction of a twin kalyana mandapam as follows:-
i) Final bill = ` 50,000/-
ii) Security deposit = ` 81,500/-
iii)Retention amount = ` 32,000/- The above amounts are to carry interest at 12% per annum till realisation and the claim for ` 2,25,000/- towards damages for idling machines and labour has however been disallowed.
2. There is paucity of evidence to hold that a sum of ` 50,000/- is due towards the final bill (which is not produced) nor any data available for the extent of work done. Ext.B3 file produced by the defendant in fact shows overdrawing and the AS.No.513/1999 2 final bill therein has not been accepted by the court below for want of signature of the plaintiff. The plaintiff does not stick to the unsigned bill contained in Ext.B3 file and it was his bounden duty to establish the plaint claim with reference to the work completed. No commission was taken out to identify the work completed upto the fourth bill and the work remaining to the paid by the fifth and final bill allegedly submitted. We have no other course except to disallow the claim for ` 50,000/- put in by the plaintiff towards the final bill and the impugned judgment is modified accordingly.
3. It is in evidence that the defendant did not make available the requisite site to the plaintiff for the work by the demolition of existing structures and cutting coconut trees. This is notwithstanding the fact that a supplemental agreement was entered into extending the time for performance of the contract and the rates had also gone up steeply. The failure to AS.No.513/1999 3 have the electric posts removed also contributed to the delay and the plaintiff eventually discontinued the work after completing about 75%. The finding of the court below that the work could not be completed even within the extended time due to the omission by the defendant cannot be faulted. There is therefore no justification on the part of the defendant to withhold the security deposit or the retention amount. The decree for ` 81,500/- towards security deposit and ` 32,000/- towards the retention amount granted by the court below calls for no interference in this appeal.
4. The defendant has a case that amounts if any due to the plaintiff has to be set off from the sum of ` 1,83,000/- due towards the value of the steel removed from the spot. Firstly, no such plea of set off has been set up in the written statement and secondly, no counter claim has been raised by the defendant for the ascertained sum. There is no case of adjustment even before the suit and the AS.No.513/1999 4 plea of the defendant has become barred by limitation even if allowed to be raised now. A total non application of mind by the court below is evident by merely stating that the sum of ` 1,83,000/- is set off towards 'general damages'. Neither is there a case for set off nor is there a case for general damages (which the plaintiff has not succeeded in proving) on account of the breach of the contract. The defendant cannot absolve itself of the liability to return the security deposit and retention amount with interest at the rate mentioned in the judgment impugned.
The Appeal Suit is allowed in part. No costs.
Sd/-
V.CHITAMBARESH, JUDGE Sd/-
SATHISH NINAN, JUDGE nj/01.02.2017 //True copy// P.S. to Judge.