Andhra Pradesh High Court - Amravati
Sri S.Mojaruddin S.Mansoor vs Syndicate Bank, Mani Branch, on 18 June, 2024
APHC010224302009
IN THE HIGH COURT OF ANDHRA
PRADESH
[3365]
AT AMARAVATI
(Special Original Jurisdiction)
TUESDAY ,THE EIGHTEENTH DAY OF JUNE
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR
FIRST APPEAL NO: 210/2009
Between:
Sri S.mojaruddin @ S.mansoor ...APPELLANT
AND
Syndicate Bank Mani Branch and Others ...RESPONDENT(S)
Counsel for the Appellant:
1. C PRAKASH REDDY
Counsel for the Respondent(S):
1. M V RAMANA
The Court made the following:
2
Dr. VRKS, J
A.S.No.210 of 2009
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
APPEAL SUIT No.210 of 2009
JUDGMENT:
1. Plaintiff lost his money claim before the trial court and
therefore preferred this appeal under section 96 CPC impugning
the judgement dated 06.01.2009 of learned Additional Senior Civil
Judge, Kurnool who dismissed his suit in O.S.No.288 of 2006.
Respondents herein are the defendants in the suit.
2. Syndicate Bank intended to open SSI branch of the bank. Sri
S.Mojaruddin alias S.Mansoor/ appellant owns plot nos. 1 and 2
situated in Survey Number 454/1, 453 of Kallur Village within
Municipal Corporation of Kurnool which is described in the plaint
schedule. It is undisputed that plaintiff expressed his readiness to
construct a building in his plaint schedule open site and the bank
agreed to take it on lease. Accordingly, Sri S.Mojaruddin/ plaintiff/
appellant commenced certain works in his plaint schedule vacant
site and thereafter the works were stopped allegedly at the
behest of the officers of the responding bank. It is in the context
of these facts the controversy erupted between the parties
3. In the plaint filled by this appellant he refers to two letters
addressed by the defendants (Ex.A1 dated 24.03.2005 and Ex.A2
dated 26.04.2005). It is pleaded that since by these letters he was
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requested by the defendant bank to commence the construction
of the building, he started construction work in the month of May,
2005. He continued the work till the end of October, 2005.
Thereafter, the defendants called upon him to express their
inability to open their branch in the building that was proposed to
be constructed by the plaintiff on the plaint schedule site. Till the
end of May, 2006, the defendants did not ask him to resume the
work. It is further pleaded that between May, 2005 and October,
2005 plaintiff consulted an architect, got the soil excavated by
digging it up to the depth of six feet. He dug a bore well and
installed an electric submersible motor in the plaint schedule site.
He stocked materials like sand, cement, iron and stone for the
purpose of construction of the building. He gave details of the
expenditure incurred by him.
4. It is specifically pleaded at paragraph No.4 of the plaint that
the plaintiff had to incur these expenditures by doing the works as
directed by the defendants through their plans and revised plans
which were to be approved by the Municipal Corporation,
Kurnool. Plaintiff had paid fees to get the approval of the plans
and did the further work. As the defendants committed breach of
contract it caused loss to the plaintiff in many ways which include
altering the nature of the property by digging the pits and by
expending money to carry on the construction and disruption of
the work caused damage to the reputation of the plaintiff. It is in
those circumstances, he claimed Rs.1,93,106/- towards the cost
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of construction, purchase of materials, payments made towards
the fees for approval of the plans. He claimed Rs.85,750/-
towards the estimated cost for filling up of the excavated pits so
as to restore its earlier shape. He claimed Rs.3,00,000/- towards
damages for loss of reputation because of breach of contract.
Accordingly, he sued the defendants for Rs.5,78,856/- with 18%
future interest over the said amount and for costs and such other
reliefs.
5. 1st defendant filed its written statement and 2nd dependent
filed a memo adopting the same. After making specific denials of
assertions made in the plaint, it is pleaded by defendants that the
plaintiff had suppressed certain material facts. It is stated that it
was in response to the tenders floated by it, plaintiff had
approached it and it accepted the bids and accordingly agreed for
the building to be constructed by the plaintiff. It is specifically
pleaded that plaintiff executed requisite documents wherein he
agreed to confirm the offer of the defendants to construct the
building at the earliest by strictly adhering to the terms and
conditions imposed by the bank and that the construction should
be in terms of the specifications and norms of the Reserve Bank
of India with a provision for strong room. Defendants handed over
specific drawings and plans to the plaintiff and the plaintiff
assured them that he would embark upon the construction only
after obtaining due approval from the competent authority,
namely, Municipal Corporation. It is pleaded that the construction
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shall be only with the prior approval of the Municipal Corporation
and the construction should be in accordance with the guidelines
prescribed by the Reserve Bank of India and any irregular or
unathorised or illegal construction would cause threat of
demolition at any time at the hands of the Municipal Corporation
and any such eventuality would cause irreparable loss to the
functioning and reputation of the defendant Bank. It is specifically
pleaded in the written statement that even the plans submitted by
plaintiff to Municipal Corporation never confirmed to the required
and stipulated plans sought by defendants and the plaintiff failed
to carry necessary amendment to the plans despite persistent
request by the defendants. That the defendants were in a hurry to
open their SSI branch but the plaintiff was recalcitrant and was
not getting necessary approvals from the Municipal Corporation
within the required time. The plaint averred expenditure and the
damages are denied as incorrect and false. If the plaintiff had
incurred any expenditure without fulfilling the statutory
obligations, it would be at his risk only and he could not blame the
defendant Bank. The technical bid signed by the plaintiff endorse
the same stand point. Plaintiff committed default with the full
knowledge of the facts and consequences and he is not entitled
for any part of the suit claim. He is not entitled to claim damages
for breach of contract and cannot mix it up with his claim for
compensation for loss of alleged reputation. The valuation and
the court fee paid is incorrect. They sought dismissal of the suit.
Dr. VRKS, J
6. Based on the rival pleadings, the learned trial court settled
the following issues for trial: -
1. Whether the plaintiff is entitled for suit amount of
Rs.5,78,856/- from defendants 1 and 2?
2. Whether the plaintiff is entitled for interest as claimed?
3. To what relief?
In proof of the respective contentions, plaintiff testified as
PW.1 and got examined PW.2 and 3 and got marked Exs.A1 to
A17. A branch manager of Syndicate Bank, Kurnool testified as
DW.1 and Exs.B1 to B2 were marked.
7. The learned trial court considered the evidence adduced on
both sides and considered the arguments advanced on both
sides and held that plaint contained false averments when it
stated that the defendant bank approached him. In fact, the
defendant bank floated tenders and plaintiff approached them
and tendered his bids which were accepted by the bank. It
observed that though the plaintiff was alleging that he had
submitted for sanction of building plans by the municipal
corporation, he did not file copies of those plans and did not file
any written approvals from the Municipal Corporation permitting
him to proceed with the construction. Though he examined PW.2/
the engineer, who also said that there were completed drawings
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of building, they were never filed in the court. It recorded that from
the evidence it could not see anything to say that plaintiff had
applied for approval of the plans to the municipality. That, the
plaintiff seems to have started the construction without obtaining
necessary permission from the Municipal Corporation. It recorded
a finding that it is for that reason, the bank insisted not to go
further with the construction and asked him to stop the work. It
observed that there was breach of contract and that breach was
committed by the plaintiff and not by the defendant Bank. It found
from the pleadings and evidence on both sides that the plaintiff
had sold out the plaint schedule property and PW.3 purchased
the same under registered sale deed dated 27.09.2006 and
thereafter he also sold out the property to others. After
assessment of the evidence, it is stated that excavation and other
works that were carried out on the plaint schedule site by the
plaintiff did not result in any damage to the plaint schedule site
and the plaintiff did not suffer any loss and he had sold out his
property without suffering any loss. With reference to the
expenditure stated to have been incurred by the plaintiff, after
furnishing reasons, it recorded that the evidence adduced was
not satisfactory. The damage claimed is incorrect. Thus, it held
that plaintiff failed to prove loss and the damages sustained by
him. Accordingly, it dismissed the suit. Aggrieved by it, plaintiff
preferred this appeal. In the memorandum of grounds of appeal, it
is urged that: -
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• The impugned judgement failed to weigh the evidence
appropriately and failed to appreciate proper probabilities in
accordance with the law.
• It committed grave errors in dismissing the suit.
• The impugned judgement of the trial court clearly shows
discussion of unnecessary aspects by the trial court and
clearly missing out in addressing actual dispute between
the parties.
• It failed to consider Exs.A1 to A17 appropriately.
• That the evidence on record indicates that the bank officer
visited the work site and observed that the appellant/
plaintiff had carried out certain works for digging the pits.
• For digging pits, approved municipal plan was not required.
The pits were dug, submersible water motor was installed
for the purpose of carrying out the works of the construction
of the building and all that works did not require any
approved municipal plans but the trial court negatived the
claim of the petitioner on the erroneous assumption of want
of approved municipal plans.
Dr. VRKS, J
• Under Ex.A7 and A8, plaintiff had paid fees to the
municipality for obtaining sanctioned plans and the trial
court failed to consider them.
• That the trail court while appreciating the evidence of PW.2
wrongly stated that his evidence did not support the case of
the plaintiff while it supported the case of defendants.
• Trial court ought to have accepted the evidence of PW.1
and 2 and the various bills and receipts filed by appellant/
plaintiff and should have awarded the money claimed in the
plaint but it erroneously dismissed the suit.
• That the trial court invented new facts which were not part
of the pleadings and it referred to certain documents which
were never filed by the parties before the court.
For all these reasons, it is seeks to upset the impugned
judgement
8. Sri C.Prakash Reddy, the learned counsel for appellant
submits that the appellant/ plaintiff applied for sanctioned plans.
In terms of section 437 of the Hyderabad Municipal Corporation
Act, 1955 if the sanction was not accorded within 30 days and if
the plans were not returned, it can be deemed that the sanction
was granted and in such an event the appellant was fully within
his competence to proceed further with the construction of the
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proposed building. Learned counsel for appellant cited for this
contention, the law laid down by this Court in BOC India Limited
V. Municipal Corporation of Hyderabad1.
9. Respondent-Bank made appearance through its learned
counsel. Despite several chances, no arguments were advanced
for respondents.
The points that fall for consideration: -
1. Whether there was breach of contract between the
parties and if so, who was at fault?
2. Whether the appellant/ plaintiff, through evidence
disclosed the loss sustained by him and whether the
respondents are liable to pay the suit claimed
amounts?
3. Whether the impugned judgement of the trial court is
erroneous on facts or law?
POINT Nos.1, 2 and 3: -
10. Plaintiff claims to own the plaint schedule property. Ex.A11
is certified copy of registered sale deed dated 04.09.2000.
Ex.A16 is the certified copy of registered sale deed dated
Manu/AP/0782/1996/1996(1) ALT 185
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17.08.1998. It is under these two documents, he acquired
ownership over the plaint schedule property. On this aspect
defendants have not raised any contest.
11. In the plaint, it is stated that the defendant Bank intended to
establish SSI branch and was looking forward for a premises and
the written statement of the defendant also admits of the same.
12. Between the plaintiff and the defendant there were
negotiations and the essence of it was that the plaintiff would
construct a building in his own plaint schedule property and the
defendant agreed to take it on lease. In proof of it t, there is Ex.B1
filed by the defendant. Under this document, plaintiff laid his
financial bid in the format provided by the bank whereunder rate
per square feet on the carpet area was fixed at Rs.10/-. The other
terms of the lease are also available there. There is also Ex.B2
whereunder a technical bid was filed by the plaintiff with the
defendant. This refers to the details and the quality of the
premises that was to be offered by the plaintiff to the defendant.
Both these documents contain the signatures of plaintiff. During
cross-examination, plaintiff as PW.1 verified them and admitted
that they bear his signatures. Then there is Ex.A1. This is a letter
dated 24.03.2005 addressed by the defendant bank to the
plaintiff/ appellant. Subject matter of the letter is about
construction of new premises for SSI branch at Kallur. It reads
that the bank is pleased to consider the bid laid by the plaintiff for
construction of new premises and for leasing out the same to the
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bank for housing its SSI branch. It then refers to the terms and
conditions. It specified that this lease period would be for a period
of 10 years from the date of taking over possession. It further
mentions that Rs.7/- per square feet per month for first 5 years
would be the rent. For the next 5 years, it would be enhanced by
20%. It mentioned that the owner of the premises had to execute
construction agreement and for that purpose a copy was also
enclosed. Be it noted, the copy of the format is not annexed to
this document. In paragraph No.6 at page 3 of the written
statement of the defendant it is averred "the plaintiff executed the
requisite documents to confirm the offer of the defendants to
construct the building.....". This was spoken to by DW.1 also.
Thus, in accordance with what is mentioned in Ex.A1 letter of the
bank the needed construction agreement was entered into
between the parties. It is a matter of importance to note that
neither party filed the said construction agreement before the trial
court or here. Be that as it may. Ex.A1 further refers that the lease
deed would be executed and registered at the time Bank takes
over the possession. It also states that the premises and strong
room shall be constructed as per Bank specifications and as per
the approved plan of the municipality. Then it is mentioned that
furnishing works at new premises is to be taken up early so that
minimum time is spent to occupy the premises after taking
possession. This Ex.A1 makes clear that between the parties the
necessary details stood settled and the contract stood executed.
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13. A month thereafter, defendant Bank issued Ex.A2 letter
dated 26.04.2005 to the plaintiff. Under this letter the bank
mentioned that they enclosed the drawings and layout plan and
specifications for the proposed SSI branch and advised the
plaintiff to start the construction of the building at the earliest
complying to the specifications and the plan layout enclosed
therewith. Though, it is mentioned in Ex.A2 that it is annexed to
Ex.A2, they are not exhibited as they are not annexed to Ex.A2.
Be it noted that neither party produced copies of those drawings
and layout plan and the specifications. Be that as it may. This
letter in Ex.A2 gives clear instruction to the plaintiff to start the
construction. It goes without saying that the construction should
be in accordance with the needs of the bank which include that
the proposed construction should be completed in accordance
with the specifications and drawings given by the defendant.
14. Having received Ex.A2 letter dated 26.04.2005, it is averred
in the plaint and PW.1 deposed that he commenced his work of
construction from May, 2005. That he embarked upon this project
is a fact that is seen through the evidence of PW.1. Further, there
is evidence of a civil engineer who testified as PW.2 and he said
that plaintiff approached him telling him that he agreed to
construct a building enabling the defendant Bank to establish its
branch thereon and requisitioned his services. PW.2 said that in
accordance with the request made by the plaintiff, he started
looking after the construction works which commenced from May,
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2005. Both witnesses/ PW.1 and 2 said that the plaint schedule
site consists of black soil and had to be dug up and accordingly
they dug it up to a depth of 6 feet. They further deposed that as
the water is required for the purpose of construction, they dug a
borewell and installed an electric submersible motor. They also
said that the required sand, cement, iron and stones were
procured and stocked at the site. They further said that the
excavation work was done till October, 2005. Ex.A3 is a cash bill
dated 08.10.2005 issued by authorized dealer for Texmo
industries indicating that plaintiff purchased submersible motor
worth Rs.12,026/-. Ex.A4 is a cash bill dated 08.10.2005 issued
by Sree Vasavi Agencies showing purchase of pipes and certain
items by the plaintiff worth Rs.45,100/-. There is Ex.A5 dated
16.08.2005 issued by V.J. Associates, Architects, Interior
Designers and Engineers. It is a cash bill given for excavation
work done in the plaint schedule property and it listed out seven
works carried by it and put together their worth is Rs.1,57,180/-. It
stated that the said money was received by them from the
plaintiff. All this evidence go to show that certain works on the
plaint schedule property were done by the plaintiff in pursuance of
Ex.A2 request of the defendant to commence the construction of
the building.
15. Plaintiff as PW.1 said that the officers of the defendant had
even inspected the site and noticed the progress of the work. It
further said that all of a sudden in October, 2005, the defendant
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called upon the plaintiff and told him that they could not open their
branch in the proposed building. Therefore, he stopped further
work. Thus, after October, 2005, he did not carry out further work.
According to plaintiff, he had to stop the work because of
defendant who said that it would not open its branch in the said
building. It is here the controversy has erupted. In paragraph No.7
at page 4 of its written statement defendant denied these
allegations. In the preceding and subsequent paragraphs
defendant pleaded that the plaintiff failed to obtain approved
municipal plans and the defendant was not prepared to occupy a
building that do not conform to the standards prescribed by the
RBI and that do not conform to approved building plan. Thus, by
inference, it admits that in October, 2005, plaintiff stopped his
work and he had to stop his work because an objection was
raised by the defendant that he was trying to construct a building
without approved municipal plans and without adhering to the
specifications prescribed by the defendant Bank. DW.1/ the
branch manager of the bank testified on behalf of defendant
Bank. He said that he was not a witness to any of the facts and
he was giving his evidence based on the record. In his cross-
examination, he said that he never visited the plaint schedule site
and never verified what was the work carried out there. He also
said that he had no personal knowledge of the terms and
conditions between the parties about construction of this building.
He further said that he never verified Ex.A series bills and
challans exhibited by the plaintiff in his evidence. He admitted the
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truthfulness and correctness of Ex.A1 and A2 letters addressed
by the bank to the plaintiff. He further said that except Ex.B1 and
B2, he had no other record to say anything in support of the
contentions raised by the defendant. He further said that he does
not know the date on which bank gave instructions to the plaintiff
and asked him not to proceed with further construction. The
sworn evidence of PW.1 and 2 that they did certain works on the
plaint schedule site and the plaintiff incurred certain expenditure
remained undisputed through the evidence of DW.1 as he did not
know anything about it and he did not verify on ground whether
there was any work done or not and he did not even verify the
evidence presented in the court through bills etc., so as to say
whether they were genuine or not. In that view, the plaintiff
through evidence demonstrated his case as true making it clear
that the plaintiff incurred expenditure that was referred in the
plaint.
16. The fact that the work was done for some time and was
stopped thereafter is a proved and established fact. Plaintiff
commenced his work only after he received Ex.A1 and A2. Thus,
on written instructions he commenced his work. Defendant
alleges certain violations on part of the plaintiff. Therefore, it had
to inform him to conform to the standard or to dissolve the
contract entered into between the parties. Section 66 of Indian
Contract Act, 1872, states that revocation or recession of a
contract has to be communicated to the opposite party in the
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same manner as the law demands for communication of
proposals. When the defendant, in writing, instructed the plaintiff
to commence the work, it is expected to do the same by a written
communication when it wanted the plaintiff not to go further with
the work. From the pleadings and evidence on both sides, it is
crystal clear that the defendant Bank never issued any letter to
the plaintiff explaining its stand with a request to the plaintiff not to
go further with the construction in the plaint schedule site.
Defendant did not produce the contract between the parties so as
to enable the court to know the method of communication of any
such revocation and therefore the revocation has to be in the
same manner as the proposal and acceptance took place. In the
case at hand, proposal and acceptance occurred in the form of
letters and law expects similar form of communication through
letters asking to stop the work. It is in this context, one had to
necessarily agree to what the plaintiff had stated that orally
defendant requested to stop the work and he accordingly stopped
the work. Thus, the stoppage of work was at the instance of
defendant.
17. According to defendants, plaintiff failed to obtain approved
building plan and the defendant Bank would not occupy a building
that does not conform the needs specified by them and approved
municipal building plan. Then the question comes up, whether the
plaintiff had applied for approved building plans or not. Ex.A7
dated 16.08.2005 and Ex.A8 dated 06.01.2006 are the challans
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under which requisite fees was paid by the appellant to the
Municipal authorities. PW.1 stated that time was consumed by the
defendant in furnishing plans and thereafter canceling them and
giving him revised plans. He said that he submitted necessary
fees to the Municipality and applied for sanction. It has to be
recorded that by the time the suit was initiated until the conclusion
of the trial nothing was brought on record as to what had
happened to the plans submitted by the plaintiff to the
Municipality. In the written statement, there is a specific assertion
on part of the defendant that its technical officers visited the site
and found that the construction was not in accordance with the
sanctioned plans. It states that obtaining sanctioned plans is a
pre-requisite for commencement of the work. But none of the
technical officer who allegedly visited the site testified before this
court. DW.1 who deposed at the trial did not even visit the site.
How did anyone say that only by looking at a pit that was dug it
could be said that it is not in accordance with the required
building plan. The contention of the defendant is that the work
should not be commenced without an approved building plan.
Having taken such a contention, it is for the bank to demonstrate
the same through the contractual terms entered into between it
and the plaintiff. It failed to do it. That omission to produce the
contractual terms shall lead to an adverse inference to the effect
that to commence the excavation of the site and installing a
borewell there was no condition precedent for obtaining approved
building plan. Therefore, the entire defence raised by the
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defendant Bank has no strength to stand on a fact. Therefore, the
contentions of defendants have to be rejected. The activities
carried on by the plaintiff are merely digging the soil and installing
a bore well. In essence, the activities so rendered are not
forbidden by law. He did all that only acting upon the promise of
the bank that it would occupy the building that was to be
constructed by the plaintiff. Further, by a written letter or notice,
defendant never notified the plaintiff to stop the work despite its
pleaded case that its technical officer visited the premises. It
indulged in a communication only after it received Ex.A12 notice
dated 03.06.2006 from the plaintiff. It gave Ex.A13 reply notice
dated 02.07.2006. It does not behove well with the bank.
18. From the record, one would notice a contention on part of
the bank that the appellant/ plaintiff failed to carryout the
promised work within time. It shall be noticed the pleadings and
evidence on both sides are totally silent about any agreed
timelines for completion of the work. The written contract between
parties was not made part of the evidence by either side so as to
notice whether it stipulated any time frame. In such
circumstances, it has to be necessarily recorded as provided in
Section 46 of the Indian Contract Act, 1872 that the engagement
must be performed within a reasonable time. One who contends
has to prove. Defendant bank contended violation of timelines.
Therefore, it was its obligation to prove it. It failed in proving that.
It also failed in showing that the necessary work was not
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commenced by plaintiff within reasonable time. It further failed to
show that the work that was done by the appellant/ plaintiff was
done beyond reasonable period. Therefore, the impugned
judgment of the trial court in finding fault with the plaintiff in
complying the timelines is erroneous.
19. The discussion made above make it very clear that it is at
the behest of the defendant Bank the plaintiff commenced to
construct a building and accordingly he dug up the land and
installed a borewell and stocked some material for progressing
with the construction and thereafter the defendant stopped him
from proceeding further and that was done without any proved or
acceptable reason. Since the work was done by the plaintiff, as
requested under the contract and since there is breach of
contract and since this breach occurred because of the defendant
the plaintiff laid his claim for the damages and compensation.
Between the contracting parties, the contract work had to be
stopped only because of the defendant and since the dependent
failed to demonstrate the lawfulness of such stopping on its part,
the other party to the contractor/ plaintiff/ appellant is entitled to
compensation for the loss it sustained. That is the law as one
could see from section 73 of the Indian Contract Act, 1872.
20. From the evidence, one would see, the appellant spent
Rs.1,93,106/- towards the works that were done. That claim is
proved through the evidence of PW.1 and 2 and Exs.A3, A4 and
A5. PW.1 and 2 deposed that since the work was stopped there
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was no further purpose to construct a building to be utilised by the
bank and therefore the pit has to be refilled. It is in this regard,
there is evidence of PW.3 and also Ex.A6 dated 16.08.2005 to
the affect that for filling up the excavated trench it would cost
about Rs.85,750/-. Plaintiff also produced Ex.A17/ stamped
receipts showing that he had to expend Rs.1,00,000/- for closing
the pit. In the plaint, he claimed Rs.85,750/- for this purpose.
Therefore, put together, towards actual expenditure incurred,
appellant is entitled to recover Rs.2,78,856/- (1,93,106/-
+85,750/). Be it noted that the plaintiff did what all he could do to
mitigate the loss consequent on the breach. He said that the
sand, cement, iron that he stocked up for this work were
expended by him for some other works. Therefore, one shall not
say that plaintiff is avarice.
21. Appellant also seeks Rs.3,00,000/- as compensation for
loss of reputation. Be it noted that plaintiff has not laid a claim for
compensation for breach of contract on the ground he suffered
loss in his earnings because of breach committed by defendant.
He only claims damages for loss of reputation as he had to stop
the construction of the building for the bank. It has to be said that
a builder's reputation would be affected adversely if building is not
constructed is hardly a reason in the facts and circumstances of
this case. He is a contractor by profession and does real-estate
business. As per his own statements given in the court as PW.1,
the property did not suffer any further loss is clear from the fact
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that he had sold it to PW.3 without any loss and PW.3 further sold
it to others. It is not the case of the plaintiff that there was any
deterioration in the value of the property because of the work he
carried out on it. Section 73 of the Indian Contract Act provides
that in estimating loss or damage arising from a breach of
contract the means which existed of remedying the
inconvenience caused by the non-performance of the contract
must be taken into account. It further states that compensation is
not to be given for any remote and indirect loss or damage
sustained by reason of the breach. Tested by those principles,
the loss of reputation and damages claimed has to be held as
remote and indirect loss. Therefore, appellant is not entitled for
such unsubstantiated and unsustainable part of the claim.
22. The view taken by the trail court is erroneous on the facts
established before it. It is a civil case and the disputed facts are to
be proved or disproved through evidence. Preponderance of
probabilities is based on evidence. Despite the fact that the
defendant did not produce any worthwhile evidence demolishing
the facts demonstrated by the plaintiff through his evidence, the
trial court refused to grant even those expenses actually incurred.
Its conclusions are against the facts and the contentions available
on record. The reason that impelled the trial court to disallow the
suit claim was hinged on absence of municipal plans. Be it noted
that the evidence produced and the challans filed in the form of
Exs.A7 and A8 do indicate plaintiff applying for approved plans.
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Municipality could either approve them or disapprove them. There
is nothing on record showing that it disapproved them. There is
also nothing on record that it approved them. If neither of them
happened one would go by what the law says. In the ruling that is
referred earlier, it was laid down that after lapse of 30 days, it is
deemed that plans were approved. Nothing contrary is shown
either to the trial court or to this court in that regard. Moreover,
defendant failed to demonstrate at the trial that by looking at a
trench or a pit in a site, it is able to say that the proposed
construction is not in accordance with the standard specified by it
to the plaintiff. Therefore, there was no material before the trial
court to hold that the works that were done by the plaintiff were
against contractual terms or against the submitted plans. It is
seen that the contention of the defendant that obtaining approved
municipal plans is a pre-requisite even to dig up the site and
install a bore well is not proved. In such circumstances, there was
no justification for the trial court in not granting that expenditure to
the plaintiff. This Court cannot sustain the impugned judgment to
the extent of its failure to grant the actual expenditure incurred.
Trial court is right in not granting damages for loss of reputation
as it failed to approach the dispute in proper perspective.
23. In summation, it has to be said that there was a breach of
contract and that the breach was on part of defendant/respondent
and the appellant/ plaintiff is entitled to a part of the suit claim
only. Accordingly, all these points are answered.
Dr. VRKS, J
24. In the result, this appeal is allowed. Consequently,
judgment dated 06.01.2009 of learned Additional Senior Civil
Judge, Kurnool in O.S.No.288 of 2006 is set aside. The claim of
the appellant/ plaintiff in O.S.No.288 of 2006 is allowed in part.
The plaintiff/ appellant is entitled for Rs.2,78,856/- with 12%
interest per annum over the said sum from the date of suit till the
date of this judgment and thereafter at 6% interest per annum till
realization. Appellant is entitled to proportionate costs all
throughout.
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
_____________________________
Dr. V.R.K.KRUPA SAGAR, J
Date: 18.06.2024
Dvs
Dr. VRKS, J
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
Date: 18.06.2024
Dvs
