This is a suit for claiming damages from the defendant.
2. Broadly but briefly, narratively but precisely, the case of the plaintiff as stood exposited from the plaint could be portrayed thus:
The plaintiff is the owner of the property situated in Survey No.348/2, measuring an extent of 11,900 sq.ft with a super structure there on. On 17.04.1998, an agreement was emerged between the plaintiff and the defendant on certain terms and conditions set out therein, whereby the defendant was expected to construct flats and deliver possession of the same to the plaintiff within two years. It is also one of the clauses in the agreement that the plaintiff should hand over the old existing super structure over an extent of 2400 sq.ft in the said larger extent on or before 31.05.1998 so as to enable the builder to put up flats. Accordingly, the plaintiff handed over possession of the said property to the defendant on 31.05.1998; thereat the defendant demolished the said old super structure and removed the teak wood materials available in the said building. To the shock and surprise of the plaintiff, thereafter, there was no progress in making construction by the defendant, who as per the said agreement earlier agreed to pay also a sum of Rs.10,000/- p.m to the plaintiff till the defendant completes the construction and hands over possession. The conduct of the defendant, necessitated and propelled, actuated and accentuated the plaintiff to issue her notice dated 16.02.2001 terminating the said agreement and calling upon the defendant to pay a sum of Rs.5 lakhs as damages for the loss sustained by the plaintiff. After handing over possession of the said property to the defendant for effecting construction, the plaintiff was constrained to occupy a tenanted premises. The plaintiff after such termination of the said agreement, entered into a fresh agreement with one another builder and got the flats constructed and occupied the same by March 2003. Till then, the defendant's liability to pay the sum of Rs.10,000/- per month to the plaintiff accrued to an extent of 5,70,000/-. Had the defendant, as per the agreement performed her part of the contract and completed the construction of the flats, the plaintiff would not have sustained loss to the tune of Rs.10 lakhs. However, the plaintiff restricted her claim for damages to the tune of Rs.5 lakhs only under that count. The plaintiff therefore, filed the suit claiming a sum of Rs.5,70,000/- representing the arrears, which accrued due to non-payment of Rs.10,000/- every month from 01.06.1998 till 28.02.2003 and also for recovery of damages to the tune of Rs.5 lakhs totalling Rs.10,70,000/-.
3. Per contra, refuting and remonstrating, impugning and gain saying in toto the allegations/averments in the plaint, the defendant filed the written statement, the nitty gritty, the gist and kernel of them would run thus:
The defendant did not enter into such suit agreement at all with the plaintiff as alleged in the plaint and for that matter the suit property was not handed over to the defendant. The defendant did not remove the alleged teak wood materials available from the building concerned; she did not agree to pay a sum of Rs.10,000/- per month as alleged in the plaint; she was not in receipt of the plaintiff's alleged termination notice dated 16.02.2001. The plaintiff is not entitled to claim the sum of Rs.5,70,000/- on the alleged ground of arrears due to non-payment of a sum of Rs.10,000/- per month. The defendant is not liable to pay damages to the tune of Rs.5 lakhs also. The suit is barred by limitation. Accordingly, she prayed for the dismissal of the suit.
4. Based on the pleadings my learned predecessor framed the following issues:
1. Whether the plaintiff is entitled to a sum of Rs.10,70,000/- as prayed for in the plaint?
2. Whether the plaintiff is entitled to claim interest at the rate of 24% p.a on the principal sum of Rs.5,70,000/- from the date of the plaint till the date of realisation as prayed for?
3. Whether the agreement between the plaintiff and the defendant was terminated as alleged by the plaintiff?
4. Whether the defendant is liable to pay a sum of Rs.5,00,000/- towards damages?
5. To what relief the parties are entitled?
Gamut of the case:-
5. A 'resume' of facts, which are absolutely necessary and germane for the disposal of this suit would run thus:
(i) An agreement emerged between the plaintiff and the defendant whereby, the former agreed to place her property in the possession of the defendant, who is a builder to construct flats and hand over possession of the same to the plaintiff based on certain terms and conditions. According to the plaintiff, the original agreement was taken by the defendant and hence only a copy of it could be marked as Ex.P1 and inasmuch as the defendant committed default in adhering to letter and spirit of the agreement, this suit has been filed.
(ii) The defendant totally denied the plaint averments by remonstrating and refuting all the allegations in the plaint and the defendant had gone to the extent of pleading that there was no privity of contract at all between the plaintiff and the defendant.
6. The learned counsel for the plaintiff would develop his argument to the effect that since the plaintiff happened to be an octogenarian lady she could not appear in person before the court and depose; consequently, one of the attestors of Ex.P1, who is none but the plaintiff's sister's daughter appeared before the court and deposed on behalf of the plaintiff; in such a case, her deposition could be accepted and there would be no legal embargo for this court to hold that there emerged an agreement between the plaintiff and the defendant as contained in Ex.P1.
7. The learned counsel for the plaintiff also would submit that the plaintiff being an old lady, waited in vain for a long time and on seeing that the defendant after taking possession of the suit property concerned simply demolished the old structure and took away the teak wood and thereafter did nothing, had chosen to issue notice as contained in Ex.P2, terminating the contract as the defendant cheated on the agreement and virtually sold down the river. The plaint according to him, even though presented on 31.03.2003, is well within time because the limitation period has to be calculated from the date of cancellation of the contract as per Ex.P2, the notice dated 16.02.2001 and even assuming that after expiry of 2 years' period, specified in the Ex.P1, i.e., by 17.04.2000, the cause of action has arisen, nevertheless the plaint presented on 31.03.2003 is well within time. It is also his contention that inasmuch as the defendant failed to honour the agreement by paying every month a sum of Rs.10,000/- and that she waited for the completion of the constructed building, which she undertook with the help of one another builder, she was perfectly justified in claiming a sum of Rs.10,000/- per month ever since 17.04.1998 till 31.03.2003, i.e., for 57 months. He would also set forth that the claim for Rs.5 lakhs as compensation on flat rate basis is once again maintainable for the reason that any reasonable man could visualize that an extent of four grounds and odd in Chennai area would very easily fetch an income of Rs.5 lakhs over a period of 57 months. Accordingly, he prayed for decreeing the suit.
8. By way of torpedoing and pulverising the argument of the learned counsel for the plaintiff, the learned counsel for the defendant would advance his argument to the effect that the plaintiff at the first instance failed to prove that there was an agreement between the plaintiff and the defendant as the original itself has not been filed; the court cannot be called upon to assume and presume as though there was an agreement; no man having head over shoulder would ever part with such a valuable piece of land without retaining the original agreement; there is absolutely no reason found spelt out as to why the plaintiff should refrain from taking any other earlier action till the filing of the suit; the alleged termination notice purported to have been issued by the plaintiff to the defendant bears only a wrong address as well as wrong description of the defendant; on mere conjectures and surmises the plaintiff cannot try to obtain a decree as prayed for; even as per the plaintiff, the contract contemplates a payment of Rs.3 lakhs by the defendant to the plaintiff as security deposit and simply by denying such receipt of money from the defendant to the plaintiff, the plaintiff would not be able to canvass her case that even without receipt of such deposit of Rs.3 lakhs, she parted with such a valuable property. As such, according to the learned counsel for the defendant, the plaintiff's case, is virtually to the effect that the original agreement was not with the plaintiff and she was also not in receipt of Rs.3 lakhs as contemplated in the agreement and even then, she parted with the land and that she alleged that the defendant committed default; the plaintiff also has not established as to how after parting with the possession of the property in favour of the defendant, she regained possession and with the help of one other builder, put up the construction; there is no iota or shred of evidence to demonstrate and display as to what type of construction was put up in the suit property and what would have been the income the property if constructed by the defendant and handed over the same to the plaintiff would have fetched etc. and in such a case, absolutely, there is no rhyme or reason on the part of the plaintiff in making such a huge claim in the plaint. Ultimately, the learned counsel for the defendant prayed for the dismissal of the suit.
Issue Nos.1 to 4:
9. These issues are taken together for discussion as they are inter-linked and interwoven, entwined and inter-connected with one another:
At the outset, I would like to observe that peculiarly in this case, neither the plaintiff nor the defendant has chosen to examine herself as a witness. It is a trite proposition of law that the facts which are exclusively within the knowledge of a party to the lis should necessarily appear before the court and speak about it as otherwise, adverse inference could be drawn.
10. The learned counsel for the plaintiff would convincingly submit that the plaintiff being an octogenarian lady was not in a position to appear before the Court and depose and hence, she authorised her sister's daughter P.W1, who happened to be one of the attesting witnesses to Ex.P1 to depose before court and the court cannot look askance at it.
11. Whereas the learned counsel for the defendant would try to torpedo such an argument by setting forth that the plaintiff could have got herself examined on commission. Axiomatically, no attempt was made to examine the plaintiff on commission. The core question arises as to whether such non examination of the plaintiff is fatal to her case. But for PW1, being one of the attesting witnesses to Ex.P1, such non-examination of the plaintiff would have been fatal to her case. Here PW1, in her chief examination affidavit placing reliance on Ex.P1, the photo copy of the said agreement would depose to the effect that she along with her father (PW1's father) signed as witnesses and in such a case, she knew the terms and conditions of the agreement. During cross examination of PW1, even though various suggestions had been put, nothing had been elicited out significantly so as to discredit her deposition and the court cannot simply look askance at her evidence with suspicious eye.
12. It is a well settled proposition of law that preponderance of probabilities would govern the adjudication in civil cases and proof beyond all reasonable doubts as required in a criminal case is not warranted. There is nothing to indicate or exemplify, demonstrate or display, that the plaintiff, being an old lady with the help of her sister's daughter plotted as against the defendant who is also a lady, so as to mulct her with undue responsibility by weaving out a false case in the form of the plaint herein.
13. Witnesses might lie but the circumstances would not do so. Here, considering the over all circumstances and the ipse dixit of this case, I am of the considered opinion that the plaintiff's filing of the photo copy of the agreement, ie., Ex.P1, on the ground that the original is not available with her, does not require to be doubted. In fact, burking of such original document will be detrimental only to the plaintiff; even then, the plaintiff has come forward with a clear case that such a document is not available with the plaintiff; wherefore, I am of the view that her contention that the original agreement is not available with her need not be doubted by this court.
14. Accordingly, with this finding I proceed to refer to Ex.P1 and it would exemplify and evince that the plaintiff and the defendant entered into an agreement whereby the defendant took possession of the immovable property referred to therein for the purpose of constructing flats. However, that did not fructify. No doubt, there is some inaction on the part of the plaintiff as Ex.P2, the termination notice itself was sent on 16.02.2001 to the defendant, setting out the fact that the security deposit of Rs.3 lakhs as contemplated under clause 13 (iii) of the said agreement was not complied with and that the defendant also did not adhere to the payment of Rs.10,000/- per month to the plaintiff as per clause 13 (iv) of the said agreement. The fact remains that the said notice was not served on the defendant in person, for which the learned counsel for the plaintiff would expound and explain placing reliance on Ex.P3, the returned RPAD cover bearing the post man's endorsement to the effect that intimation was given but not claimed, that much endorsement would amount to proper service.
15. Whereas the learned counsel for the defendant would took pains to draw the attention of this court that the very description of the defendant in Ex.P3 is not in order for the reason that in the agreement, the defendant was described as Kalpaka Builders, whereas in Ex.P3, the RPAD cover, the address is found specified as Karpaga Builders; the door Number also is not found typed in Ex.P3, even though the door number is mentioned as No.1 in Ex.P1 and wherefore the presumption of service of notice based on the postal endorsement "not available intimation given" would not get attracted in this case.
16. I could see considerable force in the submission made by the learned counsel for the defendant as the plaintiff had not taken proper care to see that Ex.P2 notice was addressed properly to the defendant. The question arises as to what is the effect of such defect on the case of the plaintiff. In my opinion, such termination notice is not statutorily contemplated. As per Ex.P1, two years' period from the date of handing over of the property for completing the performance of the contract was contemplated. According to the plaintiff, the property was handed over by her to the defendant on 31.05.1998, which means that by the end of May 2000, the defendant should have completed the construction and handed over possession, but she did not do so. As such, by the end of May 2000, there resulted breach of the contract, which paved the way for the plaintiff to file the suit for damages. The three years period of limitation as per
Article 55 of the Limitation Act, 1963 should be calculated from 01.06.2000 only. Hence, non issuance of notice specifying the proper address is not fatal to the case of the plaintiff.
17. Even though, there is no specific issue framed by my learned Predecessor, nonetheless at the time of entertaining the suit itself, the Registry raised the limitation point for which the learned counsel for the plaintiff replied setting out the following:
"1 & 2 returns complied with:
* 9A incorporated in clean copy of the plaint.
3 & 4 : As per the suit agreement, the defendants have to pay a sum of Rs.10,000/- a month, from 1.6.98, which they have not paid, till 31.5.2000, the date on which the contract should have been completed, by the defendants delivering 40% of the constructed super structure.
From 1.6.98 to 31.5.2000, for 24 months and from 1.6.2000 to 28.2.2003, for 33 months, subsequent to determined date of completion of contract, totally 57 months, the defendants have to make payment @ Rs.10,000/- which works to Rs.5,70,000/- claimed in the plaint. Memo of valuation has been filed.
The determined date for completion of contract is 31.5.2000, upto which dated Rs.10,000/- pm also is payable (from 1.6.98). The cause of action for damages Rs.5,00,000/- and for 24 monthly payments @ Rs.10,000/- starts on 31.5.2000. For 33 months of subsequent arrears from the date of determined date for completion of contract also, the limitation starts on 31.5.2000. As such the suit filed on 31.3.2003 is within the limitation period."
(extracted as such from the docket of the plaint) For the purpose of filing the suit based on breach of contract, three years' limitation period should be calculated with effect from 01.06.2000 as set out supra and as such, the present suit filed on 31.03.2003 should be taken as one filed within the limitation period subject to further scrutiny as to the claim of arrears for 57 months, which is for more than three years.
18. The prayer in the plaint claiming a sum of Rs.5,70,000/- towards non-payment of arrears of 57 months', agreed amount at the rate of Rs.10,000/- per month, should at once be held to the effect that only for 36 months at the most the plaintiff could claim and not for 57 months.
19. Articles 54 and 55 of The Limitation Act, 1963 are reproduced here under for ready reference.
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A cumulative reading of both the aforesaid Articles would at once indicate and exemplify that the claim for 57 months arrears in payment of Rs.10,000/- p.m by the defendant in favour of the plaintiff is not sustainable and it should be restricted only to 36 months' period anterior to the presentation of the plaint.
20. Whereas the learned counsel for the plaintiff would try to fortify and buttress the claim for 57 months' on the ground that after the breach of contract by the defendant, the suit was filed not merely by claiming 57 months' arrears but also claiming damages of Rs.5 lakhs totalling Rs.10,70,000/-. I cannot countenance and uphold such an argument of the learned counsel for the plaintiff that the plaintiff could claim arrears for 57 months.
21. I would like to take a cue from a hypothetical case, where a wife, who filed a suit against her husband, claiming maintenance arrears for 57 months. It is obvious and axiomatic that even such a wife cannot claim maintenance for a period of 57 months as legally, she should restrict her claim only to 36 months' period anterior to the filing of the suit. Here, the plaintiff, who is one of the parties to the contract, who claimed arrears for 57 months, can claim a fortiori arrears for 36 months only and not more than that as per law.
22. The question arises as to whether the plaintiff is entitled to claim Rs.10,000/- per month from the defendant for such 36 months. In view of my discussion supra, it is quite clear that the plaintiff and the defendant entered into an agreement as in Ex.P1 and the defendant committed breach of it and that alone made the plaintiff to engage some other builder and get the work done. The plaintiff, in fact engaged one other builder and got the flats constructed. This Court is concerned only in respect of the breach of contract made by the defendant. It is a peculiar case, in which the defendant by taking such extreme plea of total denial of any privity of contract between the plaintiff and herself, she disentitled herself from pleading anything further regarding the plaintiff's alleged inaction or breach of contract. Hence, this court has to believe the version of PW1 coupled with the versions as set out in the plaint that the defendant committed breach and in such a case, the defendant should necessarily pay a sum of Rs.10,000/- per month as per Ex.P1 for 36 months.
23. As has been already highlighted supra by me, by 17.04.2000 itself, the breach of contract occurred. After the breach, the plaintiff would not be entitled to claim that Rs.10,000/- based on the contract Ex.P1, but the plaintiff could claim only damages, based on the general principle, more specifically based on
Section 73 of the Indian Contract Act, 1872. In view of the fact that already the plaintiff and the defendant agreed and quantified that per month the defendant should pay Rs.10,000/- to the plaintiff, the same formula can be applied for awarding damages also, even after such breach of contract, ever since 17.04.2000 till the filing of the suit.
24. It is also the case of the plaintiff that even before filing of the suit, the construction was got completed with the help of one other builder. As such, I would like to hold that the plaintiff is entitled to claim Rs.10,000/- per month for 36 months during the period between 31.03.2000 and 31.03.2003. Accordingly, the plaintiff is entitled to recover a sum of Rs.3,60,000/- from the defendant.
25. The learned counsel for the plaintiff would submit that even though no specific evidence has been adduced in respect of the claim for Rs.5 lakhs towards damages, it is anybody's guess that an area of 4 grounds and odd in Chennai would fetch an income of Rs.5 lakhs for the period commencing from 01.06.2000 till the filing of the suit. Whereas the learned counsel for the defendant would submit that awarding of damages cannot be treated as a matter of course. He would invite the attention of this Court to
Section 21 of the Specific Relief Act,1963 and more specifically Sub-section 5 of it and develop his argument to the effect that in the absence of any clause in Ex.P1 for payment of damages, the plaintiff is not justified in claiming the same. He would also invite the attention of this Court to the point that even though in sub-section 5 the term plaint is contemplated, here, in this case, the plaint is nothing but a reflection of Ex.P1 and once in Ex.P1 there is no clause for damages enabling the plaintiff to claim, the plaintiff for the first time is not justified in making such a claim in the plaint. Even though, the learned counsel for the defendant would put forth such an argument, nevertheless, I cannot countenance it for the reason that Sub-section 5 of
Section 21 of the Act is on the point that when the plaintiff, being the dominus litus, does not make any specific claim for damages or compensation in the plaint, the Court shall not grant the same. Such objections and challenges as put forth on the side of the defendant are nihil and rem.
26. At this juncture, I recollect fruitfully the following maxims:
i) Nullus commodum capere potest de injuria sua propria - No one can take advantage by his own wrong.
ii) Nul prendra advantage de son tort demesne - No one shall take advantage of his own wrong.
As such the defendant cannot try to capitalize her own breach and try to stall the claim for compensation by the plaintiff. I have no reason to assume or presume that the plaintiff is not in need of compensation whereas it should be awarded. Under the general law of the land, even though there is no clause in the contract for claiming damages by the party, against the party, who committed breach, nonetheless, the party, who is aggrieved by the breach of the other party to the contract, can claim damages as per
Section 73 of the Indian Contract Act, 1872.
27.
Section 73 of the Indian Contract Act, 1872 has to be read as a clause in all contracts entered into in India and there cannot be any second thought over it. I would like to refer to illustration (l) to
Section 73 and it is reproduced here under:
"Illustration -(l):- A, a builder, contracts to erect and finish a house by the first of January, in order that B may give possession of it at that time to C, to whom B has contracted to let it. A is informed of the contract between B and C. A builds the house so badly that, before the first of January, it falls down and has to be rebuilt by B, who, in consequence, loses the rent which he was to have received from C, and is obliged to make compensation to C for the breach of his contract. A must make compensation to B for the cost of rebuilding the house, for the rent lost, and for the compensation made to C."
A plain reading of it would clearly exemplify and convey that if a builder commits breach in performing his part of the contract, the owner of the land is entitled to claim compensation. As such the said illustration is squarely applicable to the facts and circumstances of this case. Even though there is no clause in Ex.P1 itself to claim damages by the aggrieved party concerned, nonetheless the aggrieved party could claim damages.
28. It is a trite proposition of law that the plaintiff claiming damages should establish that in fact he/she sustained damage to a certain extent. Here, the plaintiff has not chosen to examine any other builder to demonstrate as to what would have been the income derived by the plaintiff during the relevant period but for the breach of the contract by the defendant. To the risk of repetition, without being tautologous, I would like to point out that that the plaintiff au fait with law has not chosen to establish clearly that she in fact, engaged one other builder and got the flats built and got possession of them well before the filing of the suit and the subsequent agreement also has not been filed here. Even though the construction was alleged to have been started during the year 2000 and it was completed in the year 2003, nothing has been placed before this court to indicate as to what amount of income the lady actually gained during the year 2004 etc. so as to visualize as to what would have been the income anterior to the filing of the suit. Damages should be based on estimate and not on guesstimate. Hence, considering all these facts, I am of the view that only notional damages could be awarded in view of the breach of contract committed by the defendant and in my considered opinion since the defendant resiled from the contract without any reason, awarding a sum of Rs.1 lakh under that caption would meet the ends of justice. Even though there were allegations that the defendant took away the teak wood etc, nevertheless, no claim is specifically made on that ground.
29. The defendant would raise an argument that after allegedly parting with the property of the plaintiff in favour of the defendant, there is nothing to indicate as to how and when without taking recourse to law, the plaintiff regained possession of the land and engaged one other builder and got the flats built, for which, the learned counsel for the plaintiff would appositely and convincingly, correctly and appropriately point out that after the defendant having committed breach and abandoned the land, the plaintiff with the help of one other builder got the flats constructed.
30. En passant, I would like to point out that so far this case is concerned, even though both parties did not appear and examined themselves as witnesses, nonetheless on behalf of the plaintiff, PW1 appeared and on behalf of the defendant her husband DW1 appeared and deposed and the court could see the true facts and arrive at a conclusion. An argument has been advanced on the side of the plaintiff that the defendant's husband DW1 has not chosen to produce even authentic authorisation from his wife. Be that as it may, it is between husband and wife and there is nothing to indicate that the wife is having any grievance against her husband and in such a case, this point also loses its significance.
31. Ex facie and prima facie, apparently and glaringly, there are a few typographical errors in recording the deposition of P.W.1, which both sides attempted to press into service as against each other so to gain advantage to the detriment of the other. It is better not to wash dirty linen in the public. The Master under whose supervision, the deposition was recorded and the Advocates on both sides in addition to the typist, who committed such errors, should bear the brunt. I recollect fruitfully the maxim "Actus curiae neminem gravabit : The act of the court harms no one. "
32. Accordingly,
(i) the Issue Nos.1 and 4 are partly decided in favour of the plaintiff that she is entitled to recover a sum of Rs.4,60,000/- (Rupees four lakhs and sixty thousand only) in total.
(ii) Issue No.2 is decided to the effect that the plaintiff could claim 6% interest from the date of numbering of the suit till payment and
(iii) Issue No.3 is decided to the effect that the agreement as in Ex.P1 got terminated automatically by defendant's conduct and inaction.
35. Issue No.5:
In view of the ratiocination adhered to in deciding the aforesaid issues, the suit is decreed as under:
(i) The defendant is ordered to pay a sum of Rs.3,60,000/- (Rupees three lakhs and sixty thousand only) towards 36 months arrears to the plaintiff with 6% interest per annum from the date of numbering of the suit, i.e.,from 27.07.2005 till realisation.
(ii) The defendant is ordered to pay a sum of Rs.1 lakh (Rupees one lakh only) towards damages to the plaintiff from the defendant and if the said sum of Rs.1 lakh is not paid within a period of three months, it shall also carry 6% interest from this date.
(iii) The defendant shall also pay proportionate cost to the plaintiff.
36. With the above direction, this civil suit is disposed of.
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