Karnataka High Court
Mrs. Sampada Ballal vs Mr. K Sooryanarayana on 11 January, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 1099 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 1099 OF 2018 (MON)
BETWEEN:
MRS. SAMPADA BALLAL
AGED ABOUT 48 YEARS,
W/O VRISHABHA ARIGA,
R/AT:NEAR NEERACHILUME
UJIRE VILLAGE & P.O.
BELTHANGADY TALUK, D.K. DISTRICT - 574 214.
...APPELLANT
(BY SRI. N. SUKUMAR JAIN, ADVOCATE)
AND:
MR. K SOORYANARAYANA
AGED ABOUT 53 YEARS,
S/O LATE H. SHRIDHAR,
PRO:M/s.GRAPHICS DESIGNER,
CIVIL ENGINEERS & CONTRACTORS,
Digitally signed
by SUMA B N MAIN ROAD, UJIRE VILLAGE & P.O.,
Location: High BELTHANGADY TLAUK, D.K. DISTRICT - 574 214.
Court of
Karnataka
...RESPONDENT
(BY SRI. K SHRIHARI, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT & DECREE DATED 03.03.2018
PASSED IN R.A.NO.23/2017 ON THE FILE OF THE PRINCIPAL
DISTIRCT JUDGE, D.K.MANGALURU, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE
DATED:07.03.2017 PASSED IN O.S.NO.62/2007 ON THE FILE
OF THE PRL.SENIOR CIVIL JUDGE AND JMFC., BELTHANGADY,
D.K.
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RSA No. 1099 of 2018
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the defendant aggrieved by the
Judgment and decree dated 07.03.2017 passed in
O.S.No.62/2007 on the file of the Principal Senior Civil
Judge and JMFC, Belthangady, (Trial Court) by which trial
court had decreed the suit directing the
appellant/defendant to pay Rs.2,04,567/- with interest at
8% p.a. from the date of suit till realisation. Aggrieved by
the same appellant/defendant preferred regular appeal in
R.A.No.23/2017 on the file of Principal District Judge, D.K.,
Mangaluru (First Appellate Court). The first appellate court
by its Judgment and order dated 03.03.2018 dismissed the
appeal confirming the Judgment and decree passed by the
trial court. Being aggrieved by the same,
appellant/defendant is before this Court.
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2. The above suit was filed in O.S.No.62/2007 by the
plaintiff seeking Judgment and decree in the nature of
direction to the defendant/appellant to pay Rs.2,04,567/-
towards the outstanding dues payable by the defendant for
plaintiff having constructed her house. It is the case of the
plaintiff that he is a building contractor by profession
carrying on the business in the name and style of
"M/s.Graphic Designers". That the defendant who owns a
house site at Ujire Village had instructed plaintiff to
construct a residential house on the said site which was
agreed by the plaintiff. There was no written agreement
between plaintiff and defendant with regard to rates and
other terms of the contract. However, defendant had
expressed that she would instruct the plaintiff of her
requirement as and when the construction work would
progress. Acting upon the representation of the defendant
plaintiff had commenced the construction and had
submitted first running account bill dated 24.07.2006 for
Rs.2,28,942/-. Plaintiff had continued the work and had
submitted second running account bill on 11.12.2006 for a
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sum of Rs.4,80,625/- and after completion of some works
plaintiff had raised third running account bill dated
04.04.2007 for Rs.1,95,000/-. Thus in aggregate plaintiff
submitted three bills amounting to Rs.9,04,567/-. That as
against the same defendant had paid a sum of
Rs.7,00,000/- and was due and liable to pay
Rs.2,04,567/-. It is further contended that defendant had
promised that she would arrange to pay the entire amount
and acting upon the promise made by the defendant,
plaintiff continued the work but when the plaintiff had
raised third running account bill defendant started evading
the payment and started to complain about the quality of
the work. It is contended that the plaintiff had completed
the work upon instructions of defendant and her husband.
He also effected changes during the course of work as
instructed by the defendant. Plaintiff had caused issue of
notice through his lawyer on 26.04.2007 calling upon the
defendant to make the payment. As there was no
compliance to the said demand notice, plaintiff filed a suit
for recovery of dues.
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3. On receipt of summons defendant appeared and
filed written statement contending that the estimation of
the work as on 03.05.2006 was for Rs.7,50,355/- for the
purpose of construction of the residential house and the
defendant had agreed for the said estimation and
accordingly entrusted the work to the plaintiff. That
plaintiff had not constructed the house as per the
specification furnished and undertaken by him through
estimate and that there was deficiency in construction of
work and that the plaintiff was paid Rs.7,00,000/- by
defendant which itself was on a higher side. That plaintiff
submitted false exaggerated bills and thereby cheated
defendant and induced her to make certain excess
payment. It is also contended value of the work
completed by the plaintiff was only worth Rs.5,00,000/-.
Since there was incomplete and deficiency of work
defendant requested plaintiff to complete the work which
was refused by the plaintiff. Based on these pleadings
defendant sought dismissal of the suit.
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4. Based on the pleadings trial Court framed
following issues:
"1. Whether plaintiff proves that as per the oral
understanding with the defendant they have
completed the construction work of defendant's
house and in respect of such construct
defendant is due to pay Rs.2,04,567/- as
contended?
2. Do they further proves that in view of
unilateral reputation of contract by the
defendant they have been forced to file this
suit for recovery of alleged due amount of their
bills?
3. Whether the plaintiff is entitled for a decree
for recovery of the suit claim from the
defendant as prayed?
4. Does the defendant proves that due to
deficiencies in the construction work by the
plaintiff she has suffered irreparable injury and
great loss and nothing is due by her to the
plaintiff?
5. Is the defendant entitled for compensatory
costs from the plaintiff?
6. To what reliefs the parties are entitled?
7. What Order or Decree?".
5. Plaintiff examined himself as PW-1 and got
marked exhibits P1 to P-25 and defendant examined
herself as DW-1 and witnesses DW-2 to DW-6 and got
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marked exhibits D-1 to D-39. On appreciation of
pleadings, oral and documentary evidence, the trial court
answered issues 1 to 3 in the affirmative and issues 4 and
5 in the negative and consequently decreed the suit as
sought for. Aggrieved by the same, defendant preferred
regular appeal in R.A.No.23/2017. Considering the grounds
urged in the memorandum of appeal first appellate court
framed following points for its consideration:
"1.Whether the impugned Judgment/Decree is
not tenable under law?
2. Whether the impugned Judgment/Decree
requires interference?
3. What Order?".
6. On re-appreciation of the pleadings and evidence,
the first appellate Court answered point Nos.1 and 2 in the
negative and dismissed the appeal confirming the
Judgment and decree passed by the trial court. Being
aggrieved by the same defendant/appellant is before this
Court.
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7. This Court by order dated 10.01.2019 admitted
the appeal for consideration of the following substantial
question of law:
"i) Whether both the Courts below have rightly
appreciated the work contract document, based
on which the Suit claim is made?
ii) Whether both the Courts below have rightly
appreciated the defence raised by the appellant
herein with reference to excess payment said
to have been made by him?".
8. Learned counsel for appellant reiterating the
grounds urged in the memorandum of appeal submits that
the trial court and first appellate court have adopted the
wrong approach in appreciating pleadings and evidence.
He submits that though issues have been framed casting
burden on the plaintiff to prove his claim, while dealing
with said issue trial court as well as first appellate court
burdened the defendant to prove her case. He submits
that such approach is illegal and erroneous in as much as
it is plaintiff to have proved his case in justification of his
claim for money. He submits that the defendant had
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specifically averred in the written statement regarding
deficiencies in the work committed by the plaintiff.
However, merely because plaintiff had lost before the
Consumer Disputes Redressal Forum. The first appellate
court has taken the same as a reason to negate the
defence set up by the defendant. He further submits that
the plaintiff ought to have independently established his
case for a claim of Rs.9,04,567/- while admittedly
defendant had already paid Rs.7,00,000/-. Trial court and
first appellate court failed to appreciate that the plaintiff
has not produced any evidence to justify his claim for
additional claim of Rs.2,04,567/-. Learned counsel
referring to deposition of DW-2 to DW-6 submits trial court
and first appellate court have not appreciated the evidence
in the nature of deposition of these witnesses. Had the trial
court and first appellate court taken into consideration
their deposition they would have dismissed the suit of the
plaintiff. Thus he submits substantial question of law
raised by this Court needs to be answered in favour of the
defendant.
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8. Per contra, Sri.Srihari K., learned counsel
appearing for plaintiff/respondent submits that the trial
court has framed appropriate issues casting the burden on
the plaintiff to prove and establish his case for recovery of
Rs.2,04,567/-. He submits that the plaintiff apart from
making averment in the plaint had also produced three
running account bills aggregating a sum of Rs.9,04,567/-
giving minute details of the claim being made by him. It is
his further submission that the said bills were made
available by the plaintiff much ahead of filing of the suit.
Instead of complying the said bills, the defendant had
opted to have the dispute adjudicated before the District
Consumer Disputes Redressal Forum and same having met
with dismissal, the plaintiff had filed the suit for recovery.
Nothing prevented the defendant from specifically denying
the claim of the plaintiff in the written statement. That
having not been done defendant cannot be heard to say
that the burden was casted on the defendant to prove the
case. He submits that the trial court and first appellate
court have appreciated the material evidence produced by
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the plaintiff and rightly come to the conclusion of
defendant being due and liable to make payment to the
plaintiff. He submits that substantial question needs to be
answered in favour of the plaintiff/respondent and hence
seeks for dismissal of the appeal.
9. Heard. Perused the records.
10. The admitted facts in the matter are that plaintiff
had agreed to put up construction of a residential house
for the defendant and said agreement was an oral
agreement. However, plaintiff appears to have raised
three running account bills which are produced by plaintiff
at Ex.P-3 to P-5 (Ex.D32 to Ex.D34). The plaintiff has also
produced Ex.P-6 to P-17 in justification of his claim of he
purchasing materials for purpose of putting up
construction. Contents of the bills at Ex.P-3 to P-5 reveal
that the plaintiff has given details of items of the work,
extent of work and cost of the work. Ex.P-3 is dated
24.07.2006 which broadly consists of nine (9) items of
work with all details provided thereunder. The value of the
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said bill is Rs.2,28,942/-. EX.P-4 is the second running
account bill dated 11.12.2006 which consists of thirteen
(13) items of work with all details provided there under.
The value of the said bill is Rs.4,80,625/-. Ex.P5 is the
third running account bill dated 04.04.2007 consisting of
six(6) items of work with all details contained thereunder
aggregating at Rs.1,95,000/-. There is also an
endorsement on the said bill with regard to intermittent
payments made by the defendant between 30.04.2006 to
27.06.2007 aggregating to sum of Rs.7,00,000/-.
11. It is also an admitted fact that these bills were
received by the defendant. Admittedly defendant being
dissatisfied with the work carried out by the plaintiff had
preferred a complaint before the District Consumer
Disputes Redressal Forum, Mangaluru in complaint
No.159/2007 as per Ex.P-22 and the said complaint
resulted in dismissal. There upon the plaintiff had filed the
above suit for recovery.
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12. In her written statement the defendant has
made ground denial of the claim made by the plaintiff.
The trial court has taken note of the contents of the
written statement filed by the defendant as seen at
paragraph 10 while answering issue Nos.1 to 4, that there
is no specific denial made by the defendant. The trial
court has also taken note of the requirement of law namely
provisions of Order VIII Rule 3 of CPC and Order VIII Rule
4 adverting to `denial in specific' and `evasive reply'. The
trial court has taken note of the fact that despite
defendant having opportunity to set forth her case
specifically has not chosen to do so. Rightly so more
particularly, when the defendant had opted to file
complaint before the District Consumer Disputes Redressal
Forum. Upon receipt of the three running account bills
cannot be heard to say that she was not aware of the
contents of Ex.P-3 to P-5. If at all defendant was clear in
her defence that the plaintiff had made excess billing and
had claimed amount in respect of the work not carried out
the defendant ought to come clear in pointing out details
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of work which according to the defendant were not carried
out by plaintiff. It is this lack of specific denial and
pleading by the defendant has been considered by the trial
court and first appellate court as inadequate defence which
is now construed and argued by learned counsel for
appellant as casting burden on the defendant. The said
submission cannot be countenanced. It is not the case of
the defendant that the plaintiff has not given details of the
work carried out by him. It is the case of the defendant
that the plaintiff is making excess claim. Therefore the
defendant ought to have specifically dealt with each item
of work in respect of which the plaintiff has claimed and
demanded the payment as per Ex.P-3 to P-5 running
account bills. Defendant not having met with this basic
and elementary requirement cannot contend that trial
court and first appellate court has casted burden on the
defendant to prove the case of the plaintiff.
13. Another aspect of the matter to be looked at is
that defendant do not deny payment of Rs.7,00,000/- but
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does not give details as to the nature and extent of work
to which the said Rs.7,00,000/- has been paid. Merely
saying that defendant has made payment of Rs.7,00,000/-
and the claim of Rs.2,04,567/- as excess demand without
providing any details thereof would not be sufficient. In
that view of the matter, the reasoning and finding
recorded by the trial court and first appellate court cannot
be found fault with. It is another aspect that the defendant
got certain work done and completed through a third party
contractor. But not having adverted to the claim of the
plaintiff defendant cannot seek to contend that the said
additional work carried out by the third party contractor
was because of excess claim made by the plaintiff or
because of the work not done by the plaintiff. Necessary
to mention that the defendant has not filed any counter
claim regarding purported work got executed by her
through a third party contractor and witnesses DW-2 to 5
who are apparently got examined by the defendant in
justification of her case of she getting the work done
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through a third party, the said evidence hardly met the
requirement of denying claim of the plaintiff.
14. The trial court and first appellate court have taken
these aspects of the matter into consideration and have
come to the just and right conclusion. As such substantial
question of law raised for consideration as noted above are
answered in the affirmative in favour of the plaintiff and
appeal is accordingly dismissed confirming the Judgment
and decree passed by the first appellate court and trial
court.
The amount deposited by the appellant be transmitted
to the Executing Court.
Sd/-
JUDGE
SBN
