Karnataka High Court
Sri Jayanth Balakrishna vs Sri B Pradeep on 29 May, 2025
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MAY, 2025
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE M.G.S.KAMAL
REGULAR FIRST APPEAL NO.1473 OF 2012
C/W
REGULAR FIRST APPEAL NO.1922 OF 2012
IN R.F.A. NO. 1473 OF 2012
BETWEEN:
SRI. JAYANTH BALAKRISHNA
S/O (LATE) JUSTICE H.G. BALAKRISHNA
RETD. JUDGE, HIGH COURT OF KARNATAKA
AGED ABOUT 54 YEARS
NOW R/O 1362, 3RD CROSS
JUDICIAL LAYOUT, GKVK POST
BANGALORE - 560 065.
... APPELLANT
(BY SRI. JAYANTH BALAKRISHNA PARTY-IN-PERSON-PH)
AND:
SRI. B. PRADEEP
AGED ABOUT 51 YEARS
PROPRIETOR OF POOJA CONSTRUCTIONS
R/O NO.9, 4TH MAIN ROAD
S.S. ASHRAM ROAD, HEBBAL
BANGALORE - 560 024.
... RESPONDENT
(BY SRI. VENKATESH R. BHAGAT., ADVOCATE-VC)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
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21.05.2012 PASSED IN O.S.NO.915/2002 ON THE FILE OF THE
XIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE
BANGALORE CITY, DISMISSING THE SUIT FILED FOR
RECOVERY OF MONEY.
R.F.A. NO.1922 OF 2012
BETWEEN:
SRI. B. PRADEEP
AGED ABOUT 52 YEARS
PROPRIETOR OF POOJA CONSTRUCTIONS,
R/O NO.9, 4TH MAIN ROAD,
S.S. ASHRAM ROAD, HEBBAL
BANGALORE-560 024.
... APPELLANT
(BY SRI. VENKATESH R. BHAGAT., ADVOCATE)
AND:
SRI. JAYANTH BALAKRISHNA
S/O LATE JUSTICE H.G. BALAKRISHNA,
RETD. JUDGE
AGED ABOUT 54 YEARS
R/AT NO.1411, 8TH MAIN,
JUDICIAL LAYOUT,
BANGALORE - 560 065.
... RESPONDENT
(BY SRI. JAYANTH BALAKRISHNA (PARTY-IN-PERSON)(PH)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED
21.05.2012 PASSED IN O.S.NO. 915/2002 ON THE FILE OF THE
XIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BANGALORE, DISMISSING THE SUIT FOR RECOVERY OF
MONEY.
THESE REGULAR FIRST APPEALS HAVING BEEN
RESERVED FOR JUDGMENT COMING ON FOR PRONOUNCEMENT
THIS DAY, M.G.S. KAMAL J., DELIVERED/PRONOUNCED THE
FOLLOWING:
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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
HON'BLE MR JUSTICE M.G.S.KAMAL
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL)
These regular first appeals are by the plaintiff as well as
by the defendant being aggrieved by the judgment and decree
dated 21.05.2012 passed in O.S.No.915/2002 on the file of XIX
Additional City Civil and Sessions Judge, Bangalore City
(hereinafter referred to as 'trial Court') by which the trial Court
has dismissed the suit of the plaintiff and has also rejected the
counterclaim set up by the defendant.
2. Parties are referred to as per their original rankings in
the suit.
3. Brief facts of the case of the plaintiff:
Plaintiff filed the above suit for judgment and decree
directing the defendant to pay Rs.17,48,000/- together with
the cost, current and future interest @ 18% per annum
contending inter-alia that;
(a). Plaintiff being desirous of putting up a residential
building on his property bearing No.1411, 8th main,
Judicial Layout, Opp. Jakkur Flying School,
Bangalore, had engaged services of one Mr.Suresh
Babu, Engineering Consultant as an architect for the
project, who as agreed had obtained and furnished
all engineering details, drawings, permissions and
sanctions from the Local Authority for the purpose of
construction of a residential building measuring
5,275 sq. ft.
(b). The said architect had floated tenders for
turnkey construction consisting of works. The
estimated cost of construction that was submitted by
the architect prior to the commencement of the
project was Rs.37,63,000/- while the total cost of
construction estimated by the architect including
plumbing and electrical work was Rs.42,43,000/.
(c). In response, three contractors had submitted
their tenders. That though one M/s.Rashmi
Construction was the lowest bidder, the architect
finally recommended defendant as a contractor on
the premise that the said M/s.Rashmi Construction
had withdrawn the tender and of the remaining two,
defendant was the lowest. Plaintiff accordingly
accepted the recommendation.
(d). That the defendant and the said architect had
earlier jointly worked on several other projects. The
plaintiff from the inception had found that there was
a collusion between the architect and the defendant
with an intention to defraud the Plaintiff.
(e). The plaintiff paid an advance of Rs.4,00,000/-
on 25.01.1999 to the defendant for the
commencement of the work. The defendant
presented the first bill dated 23.04.1999. The
architect had verified the measurement at the site
and had certified the same and on his certification,
the plaintiff made payment to avoid any delay in the
work.
(f). That the second bill dated 28.03.2000 was
presented after a gap of 11 months for a huge sum
of Rs.27,70,000/-. By this time, the plaintiff had
suspected the bonafides of both the architect and the
defendant. Prior to submission of second bill, the
plaintiff had requested the architect to physically
verify the said bill at the construction site making
necessary inspections, measurements and
discussions together with the plaintiff and until then
the said bill shall not be certified. The architect in
collusion with the defendant had certified the second
bill within 15 days for a sum of Rs.29,70,000/- while
the first bill which was only for a smaller sum of
Rs.4,80,000/-, had been certified after more than
one and a half months of its presentation. The
Plaintiff had no other option but to pay the said
second bill amount.
(g) Subsequently on a separate physical verification
of the measurements of the site, the plaintiff found
that the quantity of the work actually done was far
less than what was noted in the bill. The quality of
the work was inferior and contrary to the
specification. Upon being questioned by the plaintiff
about impropriety, the architect had asked the
plaintiff to engage the services of some other
architect. As such, the contract between the plaintiff
and the architect stood terminated during the month
of April 2000. Plaintiff had accordingly approached
another architect to execute the work.
(h). Defendant had raised the third bill dated
06.08.2000 for Rs.14,20,000. The plaintiff paid the
amount towards the said bill.
(i). Plaintiff terminated the service of defendant after
realizing the fraud that was played on him by the
defendant in collusion with the said Architect.
(j). Defendant had received a sum of Rs.13,10,000/-
in excess from the plaintiff compared to what the
defendant was legitimately entitled for the work
executed. That the defendant did not execute any
tender work with respect to woodwork, paving and
flooring, painting works. 50% of the miscellaneous
work were not performed by the defendant under the
miscellaneous category. The defendant had also
removed several tender item works and had billed
them at a higher rate as non-tender items without
the knowledge of the plaintiff. In addition, defendant
had also performed certain non-tender works which
he had submitted as a part of the bill.
(k). It was agreed between the plaintiff, defendant
and the architect that with regard to non-tender item
works site observation and rupee rate analysis based
on the prevailing market rate would be applied. That
the non-tender items claimed by the defendant in the
bill were not discussed by the plaintiff, architect and
defendant.
(l). Plaintiff had engaged the services of one
Mr.D.Ranganath, independent Civil and Structural
Consultant and Chartered Engineer and Valuer of
M/s.Ranganath and Associates to assess the quality
and quantity of the construction carried on by the
defendant. That since the said architect and the
defendant refused to co-operate with said
Mr.Ranganath, he proceeded to prepare the report
and submitted the same to the plaintiff, pointing out
the glaring examples of inferior quality of work
carried out by the defendant, such as incorrect
execution of the reinforced concrete slab casted on
the terrace to carry the overhead water tank;
introduction of a beam contrary to the design, which
was demolished and redone as per the revised
design with the architect's structural engineer and
was checked by M/s.Ranganath and Associates;
faulty waterproofing of the ceiling with more than
250 cement grouting holes drilled in an unsuccessful
attempt to rectify the leakage in the rooms; billing
for such quantities and 23 bags of cement which
were done only to correct his inferior quality of
workmanship.
(m). Plaintiff had taken up remainder of the
construction, repair and corrective work incurring
additional expenses.
(n). The plaintiff paid an aggregate sum of
Rs.47,18,000/- as against Rs.48,74,706/- raised by
the defendant. M/s.Ranganath and Associates in its
report had found that there was excess billing. The
plaintiff on receipt of said report had issued a legal
notice dated 15.03.2001 along with a summary of
the comparative statement calling upon the
defendant and the architect to make good atleast
Rs.15,40,000/-, which included interest on excess
payment amount of Rs.11,54,000/-, retention
amount of 2% of the final bill and the cost of
corrective repairs of Rs.70,500/-.
(o). In addition, plaintiff also sought for the
reimbursement of monthly rental of Rs.15,000/-
from the period between August 2000 and August
2001 aggregating in a sum of Rs.1,60,000/-.
Thus, in total, the claim of the plaintiff was
Rs.17,48,000/- with interest at 18% thereon.
4. Case of the defendant:
(a). Defendant filed written statement contending
that the suit was bad for non-joinder of necessary
party for not arraying the architect. It is contended
that it was the father of the plaintiff who being the
owner of the property and relative of the defendant
had persuaded the defendant to take up the
construction work and accordingly the defendant
filed his tender. Considering the track record of the
defendant and his quoted rates being the second
least, he was awarded the work.
(b). That the tender furnished by the defendant
towards the cost of construction of 5,275 sq. ft. of
building in respect of the items mentioned in
paragraph No.3 of the plaint was for Rs.37,12,662/-
and it did not cover the construction of swimming
pool, servant quarters and high compound wall of
3.5 meters.
(c). The plaintiff had agreed that he would take care
and that it would be his responsibility to co-ordinate
with the agencies with regard to the supply of
materials for wood work, paving and flooring and
Painting. The responsibility of the defendant was to
supply the steel grills for the window frames as per
the necessary designs. In respect of paving and
flooring, necessary materials like sand, cement and
white cement were to be supplied by the defendant
and the cost in respect of which would be
reimbursed by the plaintiff.
(d). The allegation of defendant earlier working with
the architect has been denied. Allegation of collusion
and fraud are specifically denied. It is contended
that the Plaintiff who himself is a civil Engineer was
personally supervising the construction of the
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proposed residential building and was issuing
instructions during the entire process of
construction.
(e). Receipt of Rs.4,00,000/- on 28.01.1999
towards mobilization advance to be deducted in the
running bills in the prorata basis of 10% of each
running bills is admitted.
(f). That the architect had given the working plan to
the defendant on 28.01.1999. That the defendant
had taken up the earthwork for the foundation and
had completed 50% of the bed concrete work.
Plaintiff, architect and the owner of the building had
instructed the defendant to stop the ongoing work
abruptly, as the City Municipal Authorities had
declined to approve the plans submitted. That the
plaintiff and his architect had issued fresh
excavation drawings prepared as per the approved
plan. As such, excavation work that had already
been done had to be filled and the ground required
to be cleared for fresh marking. Due to change in
the excavation drawing placement of column, the
excavation of foundation carried earlier got
displaced and the bed concrete could not be
retrieved. Defendant had brought this to the notice
of the Plaintiff, his father and also the architect who
had assured of reimbursement of the cost of the
work to be carried out.
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(g). Plaintiff and the architect went on changing the
designs and drawings after execution of the work at
their convenience. The floor levels in the living
rooms and adjacent area were changed twice after
plinth and later again after the brickwork. The
defendant had dismantled the construction portion
and reconstructed from the lower level to the
foundation as instructed. In view of this, defendant
had prepared a detailed list of work carried out due
to the necessary changes in the specification and
drawings duly measured and noted by the architect
in the presence of the plaintiff and acknowledged by
the architect. In addition to the above, there were
major deviation and changes in excavation, bed
concrete for foundation and flooring, foundation,
basement, flints and brickwork.
(h). That the defendant had explained to the
architect and the plaintiff at the time of joint
measurement about the increase in the quantity due
to the above-mentioned changes and also due to
the changes in the drawings and both of them had
agreed to approve the cost of minor changes
affected which are mentioned in the running bills
and agreed to reimburse the cost of major changes
at a later date.
(i). The first bill was submitted on 23.04.1999 for
Rs.4,80,000/-. The architect had certified the said
bill on 15.06.1999. The plaintiff was making
payment after assessment of the value the work
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carried out after necessary consultation with the
architect.
(j). The allegation that defendant presented the
second bill on 28.03.2000 for Rs.29,70,000/- is
incorrect. Defendant had submitted the bill for
Rs.34,58,696/- to the architect which comprised the
cost of civil work to the extent of Rs.32,33,426/-
which is inclusive of the first running bill amount of
Rs.4,81,175/-. Second bill amount of
Rs.27,51,700/- and Rs.2,25,270/-, amount spent or
given on instruction of the plaintiff.
(k). That the architect on receipt of second bill had
passed Rs.32,27,847/- which is inclusive of first bill
certified earlier. The plaintiff was liable to pay
Rs.29,71,351/- towards certification of second bill
towards the civil work and other payments as
detailed.
(l). The allegation of plaintiff suspecting the
bonafides of the defendant and the architect are
denied. That the plaintiff himself was personally
supervising the entire project all through and the
detailed verification of the second bill was carried
out in the presence of the plaintiff, architect and his
assistant and the engineers of M/s. Pooja
Construction. Only after proper measurements,
inspection, verification and discussion of the
architect and the plaintiff, the bill was certified by
the architect with a clear direction of certification for
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making payments. Allegations that the architect had
certified the bill for Rs.29,70,000/- sitting in the
office and in collusion with the defendant is denied
as false.
(m). Delay in certifying the first bill after a period of
one and a half month was due to change in the
excavation, foundation and basement, change in the
level of the floor and change in the height of the
compound wall which were done pursuant to the
instruction given by the architect and the plaintiff.
(n). Second bill presented and it was passed for the
payment after following all the procedures in the
presence of the plaintiff. That the bill amount was
paid by the plaintiff without raising any objection as
the defendant had executed the work to the fullest
satisfaction of the plaintiff, the owner and the
architect.
(o). That the plaintiff had collected the third and
final bill on 06.08.2000 for Rs.14,21,629/- along
with necessary enclosure from the defendant's office
and 08.08.2000 along with architect's copy stating
that he would hand over the third and final bill to
the architect for necessary verification. Plaintiff did
not inform regarding the termination of service of
the architect. The third and final bill presented by
the defendant was for Rs.14,21,629/- which
included Rs.92,189/- amount spent or given on the
instructional plaintiff.
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(p). The total amount payable by the plaintiff to the
defendant after deducting necessary advance and
2% security deposit was Rs.11,60,283/-. The
plaintiff paid Rs.10,55,000/- towards the balance
amount pending which is inclusive of sale of his car
to the defendant for Rs.3,50,000/-. The plaintiff was
liable to pay the balance of Rs.2,28,706/- which he
assured to the defendant to clear it by the earliest
date possible.
(q). The plaintiff requested the defendant in the
month of September, 2000 to construct the eastern
side compound wall and requirement for installation
of computerized electronic gate and reconstruction
of platform for water tank to hold 3,000 liters.
(r). As per the details provided, the said work for
construction of the compound wall and the concrete
platform was carried out in the month of
September, 2000. The plaintiff is liable to pay in all
Rs.4,88,255/-. Inspite of repeated requests and
demands, the same was not paid. Surprisingly the
plaintiff issued a letter dated 06.03.2001 after the
lapse of 7 months intimating termination of the
contract, only with an intention to deprive the
legitimate amount payable by him. There were no
work pending as on the date of closing of contract
and while issuing final bill.
(s). The defendant has sent a reply along with the
additional bill as detailed above.
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(t). All the works have been executed as per the
instructions of the plaintiff and the architect. The
non-tender item works carried out after necessary
approval of the architect and only after acceptance
of the rate analysis given by the defendant the work
has been done and bills were raised. Construction of
swimming pool was taken up along with
construction of servants quarters though they were
not part of the tender. The said works were taken
up as per the details provided by the architect in the
presence of the plaintiff with an understanding that
the defendant is going to execute the works on the
basis of unit rate submitted and as per the rate
analysis. The final bill was raised after entire work of
construction was over. The last payment made by
the plaintiff was on 02.11.2000 for Rs.2,00,000/-.
Instead of making the balance payment, the plaintiff
got issued a termination notice on 06.03.2001 that
the contract was closed on 08.08.2000 by
submitting the final bill.
(u). The defendant came to know about the
consultation with M/s. Ranganath and Associates
only when he received a notice from the plaintiff on
06.3.2001. The said M/s. Ranganath and Associates
has neither consulted nor sought any clarification
from the defendant till this date.
(v). The allegations regarding 250 grouting is
denied. The plaintiff instead of following the design
given by the consultant, he himself adopted his own
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method resulting leakage in the sloping slabs.
Therefore, at the request of the plaintiff and the
architect grouting was done at that area to prevent
leakage. Hence the bill has been raised for those
works. The comparative statement as stated in the
plaint is not based on the actual facts and only to
oblige the plaintiff, M/s. Ranganath & Associates
have prepared the report. Hence, defendant is not
liable to pay any amount as claimed. On the other
hand, the plaintiff himself is due to this defendant
as narrated above.
Thus, apart from seeking dismissal of suit, had also
sought for allowing of the counterclaim of
Rs.4,88,255/- to be made by the Plaintiff with cost
and interest at 18% per annum from the date of
counterclaim till realization.
5. Based on the aforesaid pleading the trial court
framed the following issues:
ISSUES:
'' 1. Whether the plaintiff proves that the defendants
are liable to pay a sum of Rs.17,48,000/- along with
interest at 18% p.a. from the date of suit till the date
of realization?
2. Whether the plaintiff further proves that there is
cause of action as alleged?
3. Whether the defendant proves that the plaintiff is
liable to pay a sum of Rs.4,88,255.24 paise as counter
claim?
4. Whether the plaintiff is entitled for the decree
sought?
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5. Whether the defendant is entitled for the counter
claim sought?
6. What decree or order?''
Evidence and witnesses:
6. Plaintiff examined himself as PW.1 and four additional
witnesses as PW.2 to PW.5 and exhibited 62 documents as
Ex.P1 to Ex.P62.
7. The defendant examined three witnesses including the
architect as DW1 to DW3 and exhibited 41 documents, marked
as Ex.D1 to Ex.D41.
8. A Court Commissioner, namely Dr. B.R.Srinivasamurthy
has been examined as CW.1 and three documents have been
marked as Ex.C1 to Ex.C3.
9. The Trial Court on appreciation of the pleadings,
evidence and the documents dismissed the suit of the plaintiff
and also rejected the counterclaim of the defendant. Being
aggrieved by the same, plaintiff is before this Court in
RFA No.1473/2012, while the Defendant is before this Court in
RFA No.1922/2012.
10. Plaintiff has filed three applications in I.A.Nos.1/2022,
2/2022, 1/2023 under Order 41 Rule 27 seeking to produce
additional documents. He has also filed an application in
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I.A.No.1/2024 under Section 151 of CPC seeking restitution.
Objection statements have been filed by the defendant to
I.A.No.1/2024.
Submissions of the plaintiff:
11. The plaintiff-party-in-person, apart from reiterating
the contents of the appeal memo, synopsis, revised synopsis
and citations, submitted;
(a). That the Trial Court has failed to appreciate the
opinion and report of the Court Commissioner and
Engineer. Since, the nature of the work entrusted to
the Court Commissioner involved, technical
specialization and competence in the field of
construction and since the trial Court lacked the
competence and expertise, it ought not to have
declined to accept the ''expert's opinion''.
(b). That the Court Commissioner in his report has
referred to the memo of instructions issued by the
parties, tender documents, working drawings, bills,
field book, physical measurements, meetings and
discussions made by the parties and their respective
counsel and only thereafter he has determined
excess bills on certain disputed items of civil works in
a sum of Rs.13,15,729/-.
(c). The Trial Court failed to apply the law laid down
by this Court while rejecting the report of the Court
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Commissioner. In that, as held in the case of
Ashwatthamma Vs. Ramakka reported in 2011
(1) KCCR 387 ''if Court has not been satisfied with
the expert's opinion, it was incumbent on the Court
to have appointed another Commissioner in a serious
dispute, such as this''.
(d). That PW.2, who is an independent civil and
structural consultant and chartered engineer and
valuer appointed by the plaintiff had sought
information from defendant and the architect through
written communications by the plaintiff as per Ex.P24
and Ex.P24A, Ex.P25 and Ex.P25A before
independently assessing estimated quantities and
amount for civil constructions which show excess
billing of Rs.14,66,980/- together with cost of repair
work in a sum of Rs.70,500/-. That the defendant
refused to participate in the measurement of the
work, despite he having been intimated regarding
the scheduling of the meetings for the said purpose.
That the trial Court grossly erred in not relying upon
his evidence.
(e). PW.3, who supplied carpentry wood material and
fabricators for window frames has deposed that
delay in defendant supplying the metal grills as
agreed which resulted in delay in completion of
construction. That the trial Court has not taken his
evidence into consideration.
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(f). PW.4 is a neighbor who has deposed that the
plaintiff was absent from the construction site and he
had at the request of the plaintiff initially rendered
assistance in the construction activities.
(g). PW.5 is the power of attorney holder of landlord
of the house in which the plaintiff and the family
members resided during the period of construction.
Thus the trial Court has failed to appreciate the
evidence of these two witnesses.
(h). That the plaintiff had sought enforcement of his
rights by terminating the agreement which was
tainted by fraud and misrepresentation on the part of
the defendant which could not be discovered by the
plaintiff with ordinary diligence. The trial Court
ought to have awarded un-liquidated damages which
the plaintiff had suffered on account of fraud and
misrepresentation played by the defendant during
the performance of the contract. That since the
contract was rendered void by the plaintiff by his
communication as per Ex.P34(b) which is admitted
by the defendant, the plaintiff is liable to pay only for
the work which is satisfactorily executed and
properly accounted for as determined by
independent agency as that of PW-2.
(i). That as per the Judgment of the Apex Court in
the case of Avital Post Studioz Limited and
others Vs HSBC PI Holdings (Mauritius) Ltd.,
and others reported in (2021) 4 SCC 713, it has
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been held that "thus the fraud that is practiced
during the performance of the contract, may be
governed by the tort of deceit which would lead to
damages but not rescission (cancellation of contract
itself)."
(j). That the trial Court failed to apply the aforesaid
principles of law while dismissing the suit.
(k). That the defendant has used lower inferior
quality of material but however billed at the tender
quality and price as seen at Ex.P27(a) and Ex.P31(a)
and the defendant has admitted in his deposition to
this effect. That though the defendant claims
escalation in price of cement during construction and
had sought for reimbursement, cost of cement had
actually fallen below the tender price as evidenced at
Ex.P27(a) and Ex.P42 and Ex.P45.
(l). That the defendant had billed in excess for other
item works, non existent 2000 sq. ft. of 5.5" thick
ceiling slab, non existent 1300 running feet of typical
RCC beam and non existent 180 running feet of 9"
thick brick solid wall. The said findings have been
brought on record by the Engineering consultant
which has not been appreciated by the trial Court.
(m). That trial Judge had expressed his displeasure
in the open Court as he was directed by this Court to
dispose of the matter within two months by an order
passed in W.P.No.41347/2011, filed by the plaintiff.
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(n). The Trial Court failed to appreciate the facts and
circumstances of the case and conduct of the
defendant during the process of performance of
contract.
(o). That though the defendant had made a counter
claim, he has not discharged his burden of proof in
respect thereof thereby disentitling him for any
relief. Hence, sought for allowing of the appeal of
the plaintiff and dismissal of the appeal filed by the
defendant.
Submission on behalf of defendant:
12. Per contra, Sri. Venkatesh Bhagat, learned counsel
appearing for defendant who is appellant in RFA No.1922/2022
justifying the dismissal of the suit submitted:
(a). That the plaintiff has not produced the terms of
the contract which he had allegedly entered into with
the defendant.
(b). That the entire basis of the case of the plaintiff is
the report which he had got prepared and obtained
through PW-2 prior to filing of the suit. The said
report was prepared behind the back of the
defendant. That the same cannot be the basis for
the suit.
(c). That PW-2 and the Court Commissioner-CW-1
both admitted regarding conducting of inspection and
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submitting the report without notifying the
defendant.
(d). That the trial Court erred in coming to the
conclusion of defendant not making out a case for
consideration of counter claim only on the ground
that the defendant had not specified the amount due
in respect of each bill and that he had received full
payment against the said bills. That the said finding
of the trial Court is contrary to the records made
available.
(e). That the trial Court though had taken note of the
fact that a sum of Rs.1,23,423/- being retention
amount at the rate of 3% of the running bills and 2%
of the final bills were retained by the plaintiff in
terms of the tender condition, however has lost sight
of the fact the same had to be refunded after lapse
of six months from the date of submission of final bill
or the first monsoon whichever was earlier.
(f). That though the trial Court had taken note of
the fact that a sum of Rs.22,736/- had not been paid
by the plaintiff towards the cost of execution of base
slab and eastern side compound wall, erred in
rejecting the said claim. That the trial Court erred
in concluding that the said amount was covered in
the final bill.
(g). The trial Court erred in denying the claim of
Rs.2,36,842/- being the charges in respect of the
works pertaining to alteration, addition and
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reconstruction on the premise that the claim in
respect of the said work had been submitted to the
architect instead of submitting the same to the
plaintiff which is contrary to the terms of the
agreement. Hence, sought for dismissal of appeal
filed by the plaintiff and allowing of the appeal filed
by the defendant.
13. Heard and perused the records.
14. Plaintiff has filed the above suit seeking recovery of
a sum of Rs.17,48,000/- together with current and future
interest @ 18% per annum, alleging and claiming;
(a) "Fraud and misrepresentation" by the
architect and the defendant from the inception
and during the continuance of the contract;
(b) "Excess billing" in sum of Rs.13.10 lakhs by the
defendant compared to what he is entitled for the
work he has executed;
(c) "Inferior quality of construction" by the
defendant in introducing a beam on his own which
was demolished and redone. Faulty waterproofing
of ceiling, by drilling more than 250 cement
grouting holes and billing for such quantities
including cost of 23 bags of cements.
(d) "Reimbursement of additional cost" incurred
by the plaintiff towards corrective remedial work
in a sum of Rs.70,500/-.
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(e) "Reimbursement of monthly rentals" paid by
the plaintiff in respect of rented premises
occupied by him due to delay in completing the
work between the period August 2000 and
August 2001 amounting to a sum of
Rs.1,65,000/- together with interest at 18%
thereon.
Defendant on the other hand has sought for a
counterclaim in a sum of Rs.4,88,255/- together with interest @
18% per annum towards refund of retention amount, cost of
construction of base slab and eastern side compound walls,
charges towards alteration, addition and reconstruction.
16. Points that arise for consideration are:
"1. Whether the applications in I.A.Nos.1/2022, 2/2022 and
1/2023 filed by the Plaintiff deserves to be allowed?
2. Whether the Plaintiff has proved that the contract has been
rendered void on account of fraud on the part of the Architect
and the Defendant by wrongly certifying first and second bills?
3. Whether the Plaintiff has proved that there is excess billing
by the Defendant in respect of quantities, and as such he is
entitled for refund of Rs.13.10 lakhs with interest at 18% p.a.?
4. Whether the Plaintiff has proved that he is entitled for
Rs.70,500/ towards reimbursement cost of repair work?
5. Whether the Plaintiff has proved that he is entitled for
Rs.1,65,000 together with interest at 18% p.a. towards
reimbursement of rental for delay in completion of work by the
Defendant?
6. Whether the Defendant has proved that he is entitled for
counter claim of Rs.4,88,255/- together with interest at 18%
p.a.?
7. Whether the trial Court is justified in dismissing the suit of
the Plaintiff and counter claim of the Defendant?"
8. Whether I.A.No.1/2024 deserves to be allowed?"
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ANALYSIS:
Regarding Point No.1:
17. Plaintiff has filed I.A.No.1/2022 under Order 41 Rule
27(1) (aa) of Code of Civil Procedure seeking to produce certain
documents namely:
(a). A letter dated 04.07.1996 issued by one
Mr.Syed Noorul Ameen to one Mr.R.Chaitanya
Kumar.
(b). A letter dated 04.07.1996 issued by one
Mr.Syed Noorul Ameen to one Mr.R.Chaitanya
Kumar.
(c). A receipt dated 10.12.1999 executed by one
Mr.R.Chaitanya Kumar.
(d). Lease Agreement dated 04.07.1996 entered into
between Mr.Syed Noorul Ameen and Mr.R.Chaitanya
Kumar.
18. In the affidavit accompanying the application the
plaintiff has deposed that since he is seeking costs and
damages from the defendant towards the rental amount paid
by him in respect of rented premises occupied by him during
the construction period, the aforesaid documents now sought to
be produced are necessary to prove and justify his claim. That
- 27 -
since he was away from India during 2009 to 2014 and his
personal belongings including all documents were kept in
separate storage, he could not have access to the same.
Hence, seeks for allowing of the said application for production
of the aforesaid additional documents.
19. I.A.No.2/2022 is filed by the plaintiff under Order 41
Rule 27 CPC seeking to produce:
(i) Postal receipts
(ii) True copy of the communication dated
09.04.2012 addressed to the Hon'ble Chief Justice,
High Court of Karnataka, complaining against the
Presiding Officer of the CCH-18, Bangalore City Civil
Court.
(iii) True copy of the communication dated
09.04.2012 addressed to the Administrative Judge,
High Court of Karnataka, complaining against the
Presiding Officer of the CCH-18, Bangalore City Civil
Court.
(iv) Petition under Section 24 of CPC.
20. In the affidavit accompanying the application the
plaintiff has deposed that at paragraph Nos.42 and 43 of the
appeal memo he has stated regarding inexplicable delay caused
by the Presiding Officer of XIX Additional City Civil and Sessions
- 28 -
Judge, Bangalore in passing the Judgment and decree in the
suit and also regarding he being infuriated on receiving
direction from this Court to expedite the disposal of the case
and that he had declared in the open Court that he would pass
adverse Judgment against the plaintiff for having sought the
direction. That though the plaintiff had offered to have the
building re-measured by the joint inspection of both the plaintiff
and defendant, the same was declined. That upon the advice
of his counsel on record he had communicated to the Chief
Justice and Administrative Judge of this Court appraising them
about the abuse of Court process. That upon the further advice
of his another counsel he had prepared a transfer petition
under Section 24 of Code of Civil Procedure. However, the
same could not be filed during April-May 2012 Court Holidays.
That before he could file the said application the suit had been
dismissed. Hence, the said documents are necessary to
support and justify his allegations of abuse of court process and
mal-administration and miscarriage of justice.
21. I.A.No.1/2023 is filed by the plaintiff under Order 41
Rule 27 read with Section 151 CPC seeking permission to
produce following documents:
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(a) Notice dated 22.09.2007 issued by Assistant
Commissioner, Commercial Taxes, (Transition)-2,
Bangalore under Section 11 of the Right to
Information Act, 2005 addressed to M/s.Pooja
Constructions.
(b) Order dated 18.10.2007 passed by the Assistant
Commissioner, Commercial Taxes, under Section 7
of the Right to Information Act, 2005.
(c) Notice dated 21.07.2008 issued by Assistant
Commissioner, Commercial Taxes, (Transition)-2,
Bangalore under Section 11 of the Right to
Information Act, 2005 addressed to B.Pradeep,
M/s.Pooja Constructions.
(d) Order dated 02.08.2008 passed by the
Assistant Commissioner, Commercial Taxes, under
Section 7 of the Right to Information Act, 2005.
(e) "True reproduction" of the extract of KST records
pertaining to M/s.Pooja Constructions.
22. In the affidavit accompanying the aforesaid
application it is contended that the excess bill raised by the
defendant included work allegedly executed beneath and above
the ground in the course of erecting the foundation for the
house construction during February-March 1999. That the
defendant has pleaded to have completed entire earth
excavation for the foundation and had laid 50% of the bed
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concrete which had to be demolished and re-laid during 15
days following 28.01.1999. Therefore to find out the aforesaid
unjustified billing, the Plaintiff had written to the Commercial
Tax Department seeking records submitted by the defendant
for the financial years 1998-1999 and 1999-2000 which are the
relevant years for construction, claim and counter claim and
plaintiff found that the defendant was not registered as a
contractor to the Karnataka State Commercial Tax Department
at the time of construction of his residence. That the
Karnataka State Commercial Tax Department declined to issue
the documents as sought for on the objections of the defendant
regarding matter being sub-judice. That subsequently plaintiff
was permitted to inspect the records in person. That during
the inspection plaintiff learnt that there were no relevant
documents regarding expenditure of labour, material
purchased, demolition etc., in respect of which inflated claims
were made. That though defendant during his cross
examination as DW-1 had admitted that he had no difficulty in
producing the records, he had failed to do so. As such, the
aforesaid documents were required to strengthen the case of
the appellant.
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23. It is settled law that production of additional evidence
can be permitted only if party seeking production satisfies the
requirement contemplated under Order 41 Rule 27 CPC which
are extracted hereunder:
27. Production of additional evidence in
Appellate Court.--(1) The parties to an appeal
shall not be entitled to produce additional
evidence, whether oral or documentary, in the
Appellate Court. But if --
(a) the Court from whose decree the appeal is
preferred has refused to admit evidence which ought
to have been admitted, or
1(aa) the party seeking to produce additional
evidence, establishes that notwithstanding the
exercise of due diligence, such evidence was not
within his knowledge or could not, after the exercise
of due diligence, be produced by him at the time
when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be
produced or any witness to be examined to enable it
to pronounce judgment, or for any other substantial
cause,
the Appellate Court may allow such evidence or
document to be produced, or witness to be
examined.
(2) Wherever additional evidence is allowed to be
produced by an Appellate Court, the Court shall
record the reason for its admission.
24. The reasons assigned at paragraph No.4 of the
affidavit accompanying the application in I.A.No.1/2022 seeking
to produce documents pertaining to rental arrangements reveal
that the said documents were not known and available to the
- 32 -
plaintiff during the course of the trial and before passing of the
Judgment and decree. At paragraph No.6 of the affidavit it is
deposed that subsequent to the year 2015-16 when he made
enquiry with PW-5, he was able to procure the originals of the
said documents. No where in the affidavit is there a mention
as to any effort having been made by the plaintiff or PW-5
regarding search made by them of the aforesaid documents. No
details as to the specific period when the plaintiff was away
from India is provided either. That apart perusal of the said
document would only indicate that by a letter dated 04.07.1996
one Mr.Syed Noorul Ameen has given his consent for use of his
rented premises and fixtures by the guests of one
Mr.R.Chaitanya Kumar. However, it states that the liability of
payment of rents would be of the said Mr.Chaitanya Kumar.
The rental agreement dated 04.07.1996 is though between the
said Mr.Noorul Ameen and Mr.Chaitanya Kumar, it is signed
only by Mr.R.Chaitanya Kumar and there is no signature of the
lessor. The reasons assigned in the affidavit apart from being
not satisfactory, the documents now sought to be produced are
not be required for adjudication of the lis between the parties.
25. Application in I.A.No.2/2022 is seeking production of
communications dated 09.04.2012 by the plaintiff to the Chief
- 33 -
Justice and the Administrative Judge of this Court and the
application along with the affidavit filed under Section 24 of the
CPC. As already noted above, additional evidence/documents
are expected to be pertaining to the dispute between the
parties. Documents sought to be produced under this
application in I.A.No.2/2022 are with regard to the allegations
made against the Presiding Officers of the trial Court. Even
those complaints/petitions were not personal to apply logical
conclusion. Therefore are not germane to the merits of the
appeal.
26. I.A.No.1/2023 is seeking to produce certain notices
issued under section 11 of the Right to Information Act and the
order under Section 7 of the said Act declining to issue the
information sought for by the Plaintiff. The ''true reproduction''
statement produced as document No.2 to the said application
neither being a certified nor an authenticated copy issued by
the Authority, cannot be taken on record.
27. For the reasons assigned in this judgment concerning
the issue on merits of the case, the said documents sought to
be produced are of no avail for the purpose determination of
the actual dispute between the parties. Hence, the applications
- 34 -
in I.A.Nos.1/2022, 2/2022 and 1/2023 are rejected, point No.1
is answered accordingly.
Regarding Point No.2:
28. Genesis of the case of the plaintiff is excess billing
tainted with elements fraud allegedly played on him by the
architect and Defendant from the inception and during the
performance of the contract and that such fraud has rendered
the contract void entitling the plaintiff for damages.
29. Necessary therefore to refer to relevant provision of
law in this regard before proceeding on the merits of case.
Section 17 in the Indian Contract Act, 1872
17. 'Fraud' defined.--
'Fraud' means and includes any of the following acts
committed by a party to a contract, or with his
connivance, or by his agent', with intent to deceive
another party thereto or his agent, or to induce him to
enter into the contract:--
(1) the suggestion, as a fact, of that which is not true, by
one who does not believe it to be true;
(2) the active concealment of a fact by one having
knowledge or belief of the fact;
(3) a promise made without any intention of performing
it;
(4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares
to be fraudulent.
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Explanation.--Mere silence as to facts likely to affect the
willingness of a person to enter into a contract is not
fraud, unless the circumstances of the case are such that,
regard being had to them, it is the duty of the person
keeping silence to speaks, or unless his silence, is, in
itself, equivalent to speech.
30. It is a settled position of law that Fraud like any other
charge of a criminal offence whether made in civil or criminal
proceedings must be established beyond reasonable doubt. It
cannot be based on suspicion and conjuncture. (ALN
Narayanan Chettiyar V. Official Assignee reported in AIR
1941 P.C.93)
31. Except making general allegation of `collusion' and
`fraud' between the architect and the defendant there is no
specific details provided by the plaintiff. The said architect has
not been made party to the suit.
32. Fraud and it's particulars are required to be pleaded
in terms of order VI Rule 4 CPC which reads as follows:
4. Particulars to be given where
necessary.- In all cases in which the party
pleading relies on any misrepresentation,
fraud, breach of trust, wilful default, or undue
influence, and in all other cases in which
particulars may be necessary beyond such as
are exemplified in the forms aforesaid,
particulars (with dates and items if necessary)
shall be stated in the pleading.
- 36 -
32. Admittedly plaintiff himself is a Civil Engineering
graduate. Defendant -Pradeep, admittedly is his cousin and
they know each other since their childhood. In the cross
examination the plaintiff has categorically deposed that he has
selected the contractor and there was no say of Architect in
selection process of the contractor and that he had the final say
in the matter. This deposition completely rules out any element
of inducement or deceit in plaintiff awarding the contract to the
defendant. In the light of this admitted aspect of the matter the
averments made in the plaintiff to make believe that the
selection of contractor-defendant was at the sole choice of the
architect and that the plaintiff had no role to play runs contrary
to his own deposition.
33. Further admittedly there is no written agreement
between the Plaintiff and the Defendant providing the details of
the terms and conditions of the contract. From the contents of
the plaint and written statement, the undisputed facts which
emanate are that the Plaintiff had initially engaged the services
of Architect namely Mr.Suresh Babu, who was required to
obtain and provide all required clearances, detailed estimation,
specifications apart from negotiating the price and finalizing the
drawings. He was also required to supervise the contractor,
- 37 -
check on the quality and quantity of work being executed,
check the bills against the work executed and provide
certification. There is no dispute of the fact the construction
work was commenced upon the designs, drawings,
specifications and plans drawn, approved and cleared by the
said Architect. The rates were specified in respect of tender
items. There is also no dispute of the fact that apart from
tender items there were also certain non-tender items within
the scope of the contract. Rates in respect of non-tender items
were however subject to discussion.
34. Exhibit P27 (A) - " Schedule of Quantities " submitted
by the Defendant and accepted by the Plaintiff showing the
quotations for civil construction. The other admitted documents
which are part the transactions are:
1. Exhibit P1 original sanction plan prepared by the
Architect.
2. Exhibit P3 ground floor working plan dated
12.02.1999.
3. Exhibit P4 central line column footing excavation
plan and foundation details dated 09.02 .1999.
4. Exhibit P5 electrical layout for ground floor plan
dated 25.02.1999.
5. Exhibit P6 toilet details.
6. Exhibit P7 east side and north side elevation
cornice and pilaster details dated February 1999.
- 38 -
7. Exhibit P8 west side south side details-A and B
dated February 1999.
8. Exhibit P9 plan for front portion and steps.
9. Exhibit P10 ground floor plan for workers
quarters dated 25.07.1999.
10. Exhibit P11 first floor plan for workers quarters
dated 25.07.1999.
11. Exhibit P12 drawings of underground storage
tanks.
12. Exhibit P13 sectional drawings for swimming pool
retaining wall.
13. Exhibit P14 ground floor ceiling slab and beam
reinforcement details dated 10.05.1999.
14. Exhibit P15 first floor working plan.
15. Exhibit P16 first floor lintel details.
16. Exhibit P17 first floor roof slab beam and
reinforcement details dated 01.09.1999 Exhibit
P18 electrical layouts for the first floor plan dated
30.03.1999.
17. Exhibit P19 terrace floor plan.
18. Exhibit P20 water tank bottom slab details dated
23.05.2000.
19. Exhibit P21 staircase plan dated 08.07.1999
20. Exhibit P22 carpentry detail 1 dated 29.03.2000
21. Exhibit P23 Carpentry Details 1 dated
03.03.2000.
- 39 -
35. It is not the case of the plaintiff that these suit
documents were either created or thrusted upon him by the
architect and the defendant.
36. There is no dispute of the fact that plaintiff had
initially paid Rs.4,00,000/- towards the mobilization funds
enabling the defendant to commence the construction. There is
also no dispute of the fact that the first bill dated 23.04.1999
was raised by the defendant for Rs.4,88,086/- of which a sum
of Rs.4,81,725/- was certified by the architect after inspection
and measurement of the work at the site and that upon such
certification the plaintiff paid the said sum of Rs.4,81,725/-.
37. The second bill dated 28.03.2000 was raised for
Rs.29,07,000/- which was also certified by the said architect
and the same has been paid by the plaintiff.
38. It is during this period the plaintiff again has
apparently entertained suspicion about the architect and the
defendant having played fraud on the plaintiff resulting in
plaintiff terminating the services of said architect.
39. The third and the Final Bill dated 06.08.2000 has been
raised by the defendant for a sum of Rs.14,21,629.25 and
- 40 -
submitted directly to the plaintiff of which plaintiff has paid a
sum of Rs.11,28,000/- without even reference of the architect.
40. The plaintiff claimed to have terminated the services
of the Defendant after payment of the third bill. The plaintiff
has provided the details of payments made to the defendant
which are as under:
Sl. Details Date Amount
No.
a. Advance paid before 25.01.1999 Rs.4,00,000/-
commencement of
work
b. First Bill 23.04.1999 Rs.3,55,000/-
c. Second Bill 28.03.2000 Rs.25,20,000/-
d. Third Bill 06.08.2000 Rs.5,48,000/-
e. Subsequent to - Rs.5,80,000/-
06.08.2000 up to
02.11.2000
Total amount paid Rs.47,53,000/-
41. The aforesaid amount apparently included value of
personal car of the plaintiff which was given to the defendant
during the year 1999 in a sum of Rs.3,50,000/-.
42. Thus, essentially an approximate sum of
Rs.48,15,000/- being the aggregate of first, second and third
(final) bill amounts has been paid by the plaintiff as on August,
2000 and it is only thereafter the plaintiff in furtherance to his
suspicion of the architect and the defendant playing fraud on
- 41 -
him terminated the services of the architect and the defendant
and has sought the services of independent engineer
Sri.D.Ranganath to assess the quantity and quality of the work
carried out by the defendant. There is specific admission by the
plaintiff, that except for a brief period of 60 days, he was in
India and he being a Civil Engineer was often visiting the site.
Thus when he had purportedly entertained the doubt, suspicion
about the bonafides of the defendant and the architect, and
when he already being advised by an independent Consultant
and Engineer, he cannot be heard to say that he did not
supervise and inspect the work by himself and that he was the
victim of collusion and fraud played on him by the architect and
defendant.
43. Another aspect of the matter is that in terms of
Section 19 of the Indian Contract Act, 1872 a contract which is
induced by fraud is not void but only voidable at the option of
the party defrauded. It merely gives an option to the party
defrauded to avoid the contract on he discovering the fraud.
Defrauded party being entitled to rescind the contract on the
allegation of fraud cannot rescind it in part, it has to rescinded
in its entirety. If he elects to continue the contract even after
noticing the fraud, his election determines his right. In the
- 42 -
instant case plaintiff was allegedly being suspicious from the
inception. He claims to have terminated the services of the
architect after clearing of the Second bill. But continued the
work and the contract with the defendant thereafter. He
purportedly terminated the contract with defendant after
payment of third and final bill.
44. When the plaintiff has neither specifically pleaded nor
proved the elements of fraud as contemplated under Section 17
of the Contract Act allegedly noticed by him from the
"inception" and "during the performance of the contract", and
he having elected to allow the defendant to complete the work
by purportedly extending the time, his contention of he being
entitling for damages on rescission the contract on account of
Fraud cannot be countenanced.
45. Point No.2 is answered accordingly.
Regarding Point No.3:
46. Plaintiff after terminating the services of both the
architect and the defendant, engaged the services of an
Engineering Consultant namely Mr.D.Ranganath of
M/s.Ranganath and Associates, independent Engineering
Consultants a Chartered Engineers and Registered Valuer to
- 43 -
assess and assist in determining the "quantity" and "quality" of
the work executed by the defendant. The said consultant stated
to have prepared report dated 15.03.2001 and the revised
summary of comparative statement dated 30.04.2001
produced as Ex.P33. In terms of which the said consultant
stated to have found that the defendant had raised "Excess
Billing" and the plaintiff had made "excess payment" in a sum
of Rs.13,10,274/.
47. Appointing and engaging the services of the aforesaid
engineering consultant by the plaintiff is after the alleged
termination of services of the architect and the defendant. It is
an unilateral act. The inspection and verification by the said
Consultant was in absence of any participation either of the
architect or the defendant and based only on the information
and instruction of the plaintiff. Except the Comparative
Statement of Bills as per Ex.P33 there is no other material
produced to support and justify the calculation made by the
said engineering consultant. Thus the entire basis of the claim
under the said heading is the report of the said consultant.
48. Said Mr.D.Ranganath has been examined by the
plaintiff as PW2. The said witness has deposed that he had
accompanied the plaintiff to the site during the year 1999 and
- 44 -
had suggested for an RCC beam to be introduced connecting
two extremes of the flat roof area above the first floor roof. The
said witness has stated that he had observed structural
deficiency in the roof slab provided over the staircase leading to
second floor. He has further deposed that again during June
2000, plaintiff had approached him seeking his assistance in
assessing and arriving at a quantum of work executed and
billed by the defendant as he had suspected correctness of
quantities and the quality. He stated to have visited the site for
actual measurement and assessment of work executed. The
basis of assessment and quantification are working drawings,
site log book that were made available to him by the plaintiff
and the actual measurement of work taken by him at the site.
49. In the cross-examination the said witness has
admitted that he has valued the building as per the
methodology prescribed in Bureau of Indian Standard and on
inspecting the same at the spot. He has further deposed that all
the information was given to him by the plaintiff in the absence
of the contractor and the architect. With reference to Ex.D7
which is a document pertaining first floor slab and
reinforcement details, he has admitted that the structural
engineer has made endorsement on the said document
- 45 -
regarding excess reinforcement and that if there was any
excess reinforcement of steel, the same was not brought to his
knowledge and he has not referred to the same in his report.
He has further deposed that he has taken into consideration
only the drawings that were made available and if at all there
was any excess steel used he has not taken the same into
account.
50. Admittedly the defendant had no say in the statement
prepared by the PW2. When the contract was awarded by the
plaintiff to the defendant based on the tender document and bill
of quantities as per Ex.P27(a) there is no justification for
Plaintiff to have relied upon the report of the consultant
prepared on the basis of specification given by the Bureau of
Indian Standard, Architectural working drawings, structural
drawings and site book/log book that too in the absence of any
participation in the said process either by the defendant or the
architect. In the absence of any other material evidence being
produced by the plaintiff or by the said PW2 regarding basis on
which the comparative statement of bills, quantities and rates
were prepared the evidence in this regard is hardly of any use
to the plaintiff.
- 46 -
51. The Trial Court by order dated 26.11.2005 had
appointed one Dr. B. R. Srinivas Murthy, Professor Emeritus
Indian Institute of Science, Department of Civil Engineering, as
the Court Commissioner, who has been examined as CW.1
plaintiff and the defendants had furnished their memo of
instructions. Three documents have been marked through the
commissioner, viz., covering letter Ex.C1, report Ex.C2 and
detailed estimates, preparation and comparative statement of
bill of quantities Ex.C3.
52. The plaintiff had furnished a memo with following
points/instructions for the consideration of the court
commissioner ;
(a) to inspect evaluate and report as to the condition,
status, quality of work done and quantities of the
work done in the pond called swimming pool on the
south side of the building site and the extent of work
yet to be done to complete the same;
(b) to inspect evaluate and report as to the condition,
status, quality of work done and quantities of the
work done in sump tank on the north south east and
west side of the building;
(c) to inspect evaluate and report as to the condition,
status, quality of work done and quantities of the
work done for the entire residential building and
appurtenances within the confines of the compound
wall (compound wall inclusive) in the said property;
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53. While answering the point (a) the Commissioner
has found that though there is no tender specification with
regard the finishing of the swimming pool, since the work
of swimming pool is incomplete and all the executed items
have directly applicable tender rates, to the extent of the
work completed tender rates have been directly applied to
compensate the partially completed work.
54. While answering the point (b) the commissioner
has found that sump with brick masonry wall is a tender
item and the quoted rate is cost per litre. The rate for
sump with RCC wall with all other specification remaining
the same no different estimation of quantities was
required. However as regards reinforced concrete (RCC)
sump tank on the north, east and west side of the building,
the commissioner has found that the data rate derived and
applied by the defendant to be erroneous and the
commissioner has worked on the same based on the
tender rates for the brick masonry and cost per litre.
55. While answering the point (c) the commissioner
has found that in the first meeting it was agreed upon to
consider only the disputed items and the detailed
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estimation has been made by the commissioner in respect
of all the disputed items.
56. The defendant had given the following eleven points
in his memo of instructions;
a) To verify and quantify the cost due to stoppage of
work, rectification and removal of the earlier
completed work as per the working drawing dated
28.01.1999 with regard to the center line marking,
excavation, column footing and foundation and later
repetition of the same work based on working
drawings dated 09.02.1999 which were a mirror
image of the earlier working drawing mentioned;
b) To verify and quantify the cost due to the repetitive
change in floor level of the living room after
completion of necessary work at each level and
compare the existing level of flooring to the working
drawings.
c) To quantify the cost due to change in the specification
of the compound wall after bed concrete in relation to
tender items.
d) To verify and quantify the cost due to the
alteration and removal. and construction of T.
MBmasonry of 9" and 4.5" brick wall like cancellation
of niches, removal of reconstruction of wall at various
parts of building and changing the clear height after
necessary construction
e) Verification of the working plan with the existing
structure in relation to volume of alteration being
carried out quantifying the value of work, which was
carried out earlier as per the working drawings and
later removed or altered on the instruction of the
owner and the Architect.
f) Verify the rate analysis for non-tendered items which
is based on practiced principle of deriving the rates
for non-tendered item from the rate of similar class of
- 49 -
work specified in the tender and approved by the
Architect and owner before execution.
g) To verify the thickness of RCC slab, quantity of
beams/ lintel, concealed beam at various level and
points as mentioned in the working drawings and
quantify the value.
h) to verify the causes of delay due to non-completion
of work with the different agency or non-supply of
material and uncertain on the part of the owner in
finalizing the brand for the works, which is in the
scope of the owner like plumbing, woodwork, flooring,
front gate, finishing and electrical work etc.
i) To verify items which was decided at the later stage
of construction, by the owner and his Architect like
sloping slab, double height slab, providing skylight,
servant quarters, window elevation design, and other
various special works etc., neither mentioned in the
tender schedule nor furnished the said drawings or
specification at the time of tender which is executed
and categorized under the non-tender item
considered under the non-tender items or tender
items
j) To verify and quantify the value of the work carried
out on the instructions of the owner and his Architect
and which is not in the drawings, like top room on the
II floor, additional beam providing attic at office room
and providing secret Godrej locks in the walls of the
bedrooms, which is evident in its existence.
k) To verify and quantify the building materials
supplied to owner of the work comes under his spare
of activities like flooring and painting etc
57. In response to the points (a) and (b), the
Commissioner has found that cost due to stoppage of work
could not be assessed as no evidence in that regard was
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produced by the defendant. However, the Commissioner has
found that by the time the first bill that was produced by the
defendant, entire foundation work for the main building was
complete along with the completion of majority of the
compound wall foundation work and that the first bill had
included items of alterations and additions up to that level.
Similarly, the second and the final bill included items for
alteration additions. As such, the claim for the said work that is
alteration, addition etc., after the final bill which the defendant
could not explain for non inclusion in the earlier bills and the
work done/losses/cost claimed after issuance of the third bill
and final were not acceptable.
58. In response to the point (c), the Commissioner has
found that since the tender document contains the rate for
change specification item, the derived rate to the defendant for
this item has been allowed by the Commissioner.
59. The commissioner in response to the points (d) and
(e) has found that there are minor deviation in construction of
various items from the working drawings such quantities ought
to have been included in the running bills since the defendant
had billed several such items in the three running bills it was
construed that all such items have been covered. No specific
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quantity of item involved was brought to the notice of the
Commissioner;
60. In response to the point (f) the Commissioner has
stated that non-tender quantities rate analysis has been
examined and the same has been furnished in the enclosure
and have been included in the estimate prepared by him.
61. In response to point (g) the Commissioner has stated
that the estimate prepared by him covers all the items as per
the drawing site notes etc. Commissioner has found no
justifiable records are furnished to claim the delay and hence
no comments on point No.(h)
62. In response to point (i) and (j) the Commissioner has
found that it is normal in the building construction practice
wherein changes are made during the construction from the
tender drawings and even from the working drawings to suit
the site conditions and impact of the same were covered in the
running bills by the defendants. Relevant items have been
covered in the detailed estimate prepared by the commissioner.
The Commissioner has not advert to point (k) holding the same
to be not relevant for his action.
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63. In conclusion, the Commissioner has found that the
Defendant had made materially significant tabulation errors
such as double billing of some items, lesser deduction of
quantities of beams and lintels in pertinent items and use of
non-tender rates for tender rates in certain instances. Thus, the
commissioner has found that there has been a total excess
billing for the disputed items. In which the defendant has billed
an amount of Rs.37,46,250/-, while according to the
Commissioner's estimate it ought to have been Rs.24,30,522/-.
Thereby there is an excess billing of Rs.13,15,729/-.
64. It is settled position of law that report and the
evidence collected by the Commissioner form part of the record
of the suit. It is also settled position of law that Commissioner's
report does not automatically become ipso facto evidence but
merely a piece of evidence required to be considered and
assessed by the court by taking into account the totality of
circumstances and other material evidence on record rather
than placing undue reliance thereon. [Praga Tools
Corporation Limited Vs. Mahboobunnissa Begum (2001)
6 SCC 238].
65. Except Ex.C1 to Ex.C3, the Court Commissioner has
not produced any other documents. The Court Commissioner in
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his deposition has admitted that he has checked the
measurement according to the drawings that were made
available. He has also admitted that when he checked the
measurement defendant was not there. He has also admitted
that he has not given any notice to the defendant. He has
admitted that he has not recorded measurement on any of the
papers. He also admitted neither of the parties has given list of
the disputed items. He has admitted that Ex.D1 consisting of
11 pages was prepared at the instruction of plaintiff by
independent Engineer. He has further admitted that he has not
produced the details given by the plaintiff to the Court and that
Ex.D1 is only the list of disputed items and that he has not
prepared list of disputed items. In other words the even the
Court Commissioner has proceeded to assess the quantity and
quality based on the unilateral report of PW-2.
66. He has further admitted that the thickness of the bed
concrete is taken from the drawings and that he has not
excavated the section to verify the thickness of the bed
concrete. That, for ascertaining the thickness of the plinth
concrete one has to measure it by cutting the section physically
which he has not done. He has also admitted that the thickness
of the plinth concrete and the bed concrete are not designed
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parameters. Though the court commissioner has admitted that
the contractor has to execute the work as per the designs and
instructions given by the architect and the structural engineer,
has however pleaded his ignorance if in the instant case there
was any change in the plan. He has also pleaded his ignorance
regarding change of plan of position of the columns. He has
admitted that he prepared Ex.C3 after comparing the running
bill and the final bill. He has admitted that he has not included
the bed concrete which was destroyed in view of change of plan
as it was not brought to his notice that there was a change of
plan and there was already a bed concrete and it was removed
by placing the new bed concrete.
67. He admits that the running bills were approved by the
architect but he has not been able to seek clarification from the
architect in this regard. He also admits that he has not
measured the entire constructed area of the building he also
not able to say the total constructed area of the said building.
He admits that he has not mentioned the thickness of the plinth
concrete used in the building as well as the plinth concrete of
the compound wall thickness. He has deposed that he has
taken into account the footing of the column concrete as per
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the drawings, but he is not aware if the architect had advised
to change the footing of the column concrete thickness.
68. He has also deposed that as the building was already
constructed and that to know about the measurement referred
to it was required to be opened and that he has not randomly
checked the thickness of the lintel concrete used in the
building. He has also not measured the thickness of sajja. He
cannot exactly say the thickness of sajja and he has not
measured the thickness of sajjas as the finished worked are
required to be demolished. He admits that he has not
mentioned the thickness of attice. He also admits the arches
constructed are in steel covered by concrete. He has pleaded
his ignorance with regard to the thickness of the attice. He has
also pleaded his ignorance that there was a change in the
drawing from 3 thickness to 5 thickness of attice and he has
not measured the thickness of attice. He admits that in all there
are 11 projections given to outside wall, thickness of which is
18 X 5.5 inches and the set 11 projections are not in the
drawings and that he has not mentioned the said 11 projections
in his calculations.
69. Though he admits that there is a gutter around the
building, he cannot say if there is an all-round steel used for
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construction of gutter, but he has prepared his report based on
the drawings but he has not mentioned the change in the
design of drawings.
70. He is unable to say that as per the instruction of the
structural Engineer there are concealed beams in the roof and
he cannot say that there is no drawing of concealed beams with
him. He admits that in the drawings there is no mention of
thickness of plinths and that he has not mentioned the plinth
thickness as executed by the contractor.
71. He has admitted that he was expected to carry out
factual aspect of constructed area, however he has done
wherever it was possible and wherever it was not possible he
has taken the assistance of general principles. He has admitted
that whenever there was a deviation in construction at the
instance of the owner, that amount was to be paid by the
owner to the contractor. He also admits that in the running bill
the work executed by the contractor as per the instructions of
the owner deviating from the original plan has been calculated
and approved by the Architect. He also admits that at the time
of executing non-tendered items rate analysis is prepared and
allowed. He also admits that after verifying the rate analysis
and the running bills the owner has made the payment of first
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and second bill. He has deposed that he has taken the steel
reinforcement as per the drawings. He also admits in the
document there is no specific quantity mentioned. He admits
that he has not given the calculation sheet regarding plastering
work. He further admits that item number 31A was prepared by
his student on his instruction. That his students assisted him in
programming the C schedule work.
72. From the aforesaid deposition of the CW1 it is clear
that he has merely relied upon the document such as plans,
drawings and designs and the comparative statement prepared
by the PW2 to arrive at his report. He did not physically
measure all the items personally. In that view of the matter
commissioners report cannot be accepted as the substantial
piece of evidence justifying the claim of the plaintiff.
74. PW1 in his evidence has admitted that the defendant
had executed non-tender item works namely, swimming pool,
sump tank, spiral staircase, sloping roof, double height slab,
waterproof plastering, screed finishing, compound wall, window
grill, arch beam, curved slab, fixing of window and door frames,
different types of cornices, providing and laying of terracotta
tiles. He has also admitted that the defendant has executed
the work as per the direction of the architect. He has further
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admitted that through the said architect he got appointed one
structural engineer. He has also admitted that his building is
having built up area of 6,166 square feet as against 5,275
square feet. He has admitted grouting of slope roofing was
done by the defendant as per the direction of the architect,
though he had suggested that it should be done at the cost of
the defendant. He admits that he has not produced the list
before the court showing the items of inferior quality in entire
building. He also admits that in the tender notification there
was no mention of time stipulation but it was a verbal
agreement. He admits exhibit P13 is the sketch pertaining to
the swimming pool and the entire reinforcement of exhibit P13
is changed. He further admits Sajja is not the same form as
shown in Exhibit P16 (a) and the design is changed pertaining
to the Sajja.
75. Though in the plaint as well as in the evidence the
Plaintiff has made efforts to contend that it was obvious from
the architect's certification of the bills raised by the defendant
with regard to non-existent huge quantities of brick, steel etc.,
there is no acceptable reasons assigned by the plaintiff to have
proceeded to clear the first and second bill upon the
certification made by the architect. Further, when even
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according to the plaintiff he had terminated the services of the
Architect, there is no whisper as to what prompted him to clear
the third and final bill during August 2000 when the defendant
had submitted the third bill directly to the plaintiff. This is
under the teeth of allegation of plaintiff having found excess
billing quantity and inferior quality with the aid of third party
consultant. Nothing prevented the plaintiff to withhold the third
bill for Rs.14,20,000/- until he ascertained quantity and quality
of the work. The third bill was admittedly raised after
completion of all the work and paid of. It is paid after
purported termination of contract with the defendant.
76. This conduct of the plaintiff would only indicate that
the Plaintiff had been satisfied himself with regard to the work
carried out by the defendant and only thereafter had made the
payment. This is in the absence of any compelling
circumstances even as pleaded by the plaintiff to make the
payment of the first and second bill raised by the defendant.
Also pertinent to note that even according to the deposition of
the plaintiff, defendant had refused to continue to work on and
after August, 2000 and had vacated the site with lock, stock
and barrel.
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77. Defendant on the other hand has examined himself
as DW-1 reiterating the contents of the written statement. He
has produced documents marked as Ex.D9 to Ex.D35. In the
cross examination though pointed questions have been asked
with reference to the contents of paragraph 37 of the affidavit
evidence of the plaintiff, nothing has been elicited to indicate
incompletion of the work as sought to be made out. Though in
the cross examination plaintiff himself has admitted, that
swimming pool amongst others was a non-tender item work,
defendant has been posed questions to suggest that he has
claimed Rs.7,54,730/- while the cost of construction of the
swimming pool was Rs.2,91,250/- thereby the defendant had
charged an excess of Rs.5,00,000/-. Defendant has
categorically deposed that he has constructed the swimming
pool as per the design and instructions given by the Architect of
the plaintiff and as per the rate analysis approved by the
architect of the plaintiff. Though it is suggested that as per the
Commissioner's report the defendant has added extra work
done in the bills than the actual same has been specifically
denied by the witness. Thus, nothing significant has been
elicited from the said witness to sustain the suit claim. Also
pertinent to note that there has been no suggestions denying
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the change in the designs, specifications, alteration, demolition
of the work.
78. Architect -Suresh Babu has been examined as DW-3.
In his affidavit evidence the said witness has deposed in detail
regarding his role and involvement in the process of
construction. He has specifically deposed that though he had
suggested the owner of the property to appoint an Engineer to
supervise the day-to-day construction activities as per the
construction practice, the plaintiff had agreed to supervise the
day-to-day work as he was a qualified Engineer and did not
have any other work and to concentrate on the work by
himself. He has also deposed that he had prepared a plan for
submission of obtaining sanction and grant of licence but the
owner and the plaintiff had insisted to change the plan as per
requirement which was rejected. The defendant had
commenced the work as per the working plan on 28.01.1999.
That since the earlier plan was rejected, he prepared modified
plan in conformity with the CMC Regulations. By the said time
defendant had carried out certain portion of work which
required to be stopped, cleared and redone involving
duplication and modification of work of bed concrete. He has
affirmed that he thoroughly and properly verified the physical
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measurements taking proper care and caution which has been
cross checked by the plaintiff. He has also deposed that during
the construction lot of changes in the working drawings were
effected as per the requirement of owner and the Plaintiff
deviated from the working drawings. At paragraph No.11 of his
affidavit evidence said witness has given the list of
modifications affected with regard to working drawings.
79. The witness has also deposed that as and when the
defendant submitted rate analysis for work that were not
mentioned in the tender or for items modified due to change in
the specification he had detailed discussion with the plaintiff
and finally the rates were approved after effecting certain
reductions. He has also deposed that plaintiff along with the
defendant and the Engineer were involved in the process of
measurement of each item and gave clarifications for certain
items in the bill as mentioned in paragraph No.15 of his
affidavit. He has also deposed regarding certain arithmetical
errors found in second bill in a sum of Rs.14,000/-, which was
informed to the plaintiff. He has deposed regarding the
inclusion of claim for reimbursement of cost incurred by the
defendant due to change in the design and specification,
particularly with regard to roof slab, double height roof slab
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which after consultation with the Plaintiff were cleared for
payment.
80. He has also deposed that construction of swimming
pool was neither mentioned in the tender nor drawn in the
working plans issued to the defendant. Owner and the plaintiff
had insisted of getting the work done by defendant. The
defendant had submitted rate analysis and after negotiation
involving the plaintiff, it was approved for Rs.5.25 per litre.
The swimming pool was constructed for Rs.1,26,090/- litre
capacity. Nothing significant has been elicited in the cross
examination of the said witness discrediting his deposition.
81. From the deposition of Plaintiff, PW1, PW2 and the
Commissioner-CW1 as well as the depositions of DW1 and
DW3, it is clear that there have been changes and variations in
the designs, drawings and the actual construction. It is also
brought on record that the actual constructed area is more than
what was initially conceptualized. PW2 and the Commissioner
have deposed that they were neither informed by the Plaintiff
regarding particulars of changed designs/drawings nor they
have physically verified the actual constructed area by the
Defendant.
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82. In the absence of specific details as to the excess
quantities allegedly billed by the defendant specifically with
reference to changed actual contractual area, merely based on
the comparative calculation made by the PW2 and the
Commissioner CW1, admittedly on the basis of designs and
drawings and the information provided by the plaintiff without
measuring the actual constructed area, it cannot be accepted
that defendant has made excess billing of the quantities.
83. The evidence of defendant examined as DW1 and the
evidence of architect examined as DW2 has stood the test of
cross examination and would indicate that the plaintiff was
throughout involved in the process of construction, change,
modification, alteration, discussion and finalisation of the rate
analysis.
84. Plaintiff has thus failed to prove that there was
excess billing of quantities by the defendant resulting in plaintiff
being entitled for refund of Rs.13.10 lakhs with interest at
18%. Point Nos.2 and 3 are answered accordingly.
Regarding point No.4:
85. The plaintiff has claimed a sum of Rs.70,500/-
towards reimbursement of cost incurred by him for carrying out
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remedial work. At paragraph No.37 of his affidavit evidence he
has enlisted 15 items of work allegedly remained incomplete as
on the date of closing of the contract and issue of final bill
requiring remedial work. He has however not given the details
of the contractor or the person through whom he caused
execution of such remedial/repair work. Though the plaintiff
has produced photographs to indicate unfinished work as on
the date when the defendant had vacated the site the same is
not sufficient enough to come to the conclusion that it required
repair/remedial work as alleged. Ex.P29 and P29(a) are the
quotations purportedly received by the plaintiff from other
contractor for implementing corrective civil work. However,
nothing is brought on record regarding plaintiff actually having
got the work executed through the said contractor. In the
absence of acceptable evidence in this regard the claim of the
plaintiff under this head cannot be accepted.
Regarding point No.5:
86. The plaintiff has sought reimbursement of
Rs.1,65,000/- with interest at 18% p.a. being the rental paid
by him to the landlord of the premises occupied by the plaintiff
during the period of construction and delayed period. Plaintiff
has got examined one Syed Mohiuddin PW-5 in support of his
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claim. Necessary to note that admittedly there was no
agreement between the plaintiff and the defendant regarding
stipulation of time for completion of the construction or the
time was the essence of contract. The final bill was raised by
the defendant during August 2000 which has been received
directly by the plaintiff. Plaintiff has admittedly paid the
substantial portion of the said bill between August and
November 2000. The plaintiff has neither indicated nor
produced any acceptable evidence regarding any agreement or
understanding requiring the defendant to pay and reimburse
the rentals on and after September 2000 to the end of August
2001. In the absence of any agreement in that regard and in
the absence of plaintiff producing acceptable evidence of he
having carried out the repair work after August 2000 when he
terminated the service of the defendant, there is no basis for
plaintiff to claim reimbursement of the monthly rentals. The
claim of the plaintiff under the said head is therefore rejected.
Regarding point No.6:
87. Defendant in his counter claim has claimed
Rs.4,88,255.24 to be payable by the plaintiff. The said amount
includes a sum of Rs.1,05,283.28 being balance payment
against first, second and third/final bill; a sum of
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Rs.1,23,423.02 towards accumulated security deposit which
was deducted as per the tender details; Rs.22,736.74 towards
additional bill for construction of base lab and east side
compound wall; Rs.2,36,812.20 being cost of correction,
demolition, construction due to the changes in specification and
design etc., as per the representation given to the architect.
Admittedly first and second bill were certified for payment by
the architect and were paid accordingly by the plaintiff. In
other words the certification of bill has been made after
carrying out the verification and measurement of the work
done. The third and final bill was submitted by the defendant
directly to the plaintiff which has been paid by the plaintiff.
There is nothing on record brought in by the defendant to show
that there was any agreement or assurance by the plaintiff to
pay sum of Rs.1,05,283.28 being the balance amount payable
in respect of the said three bills. The defendant has received
the certified amount in respect of first and second bill and the
amount paid by the plaintiff in respect of third and final bill
without any protest or demur. As regards Rs.1,23,423.02
being purported accumulated security deposit as per the tender
details no evidence is produced in this regard. There is no
mention regarding this aspect of the matter in the bills that
were certified by the architect.
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88. Once the defendant admittedly completed the
construction and submitted his final bill during August 2000
which even according to him included tender and non-tendered
items of work as well as reimbursement of cost of construction
due to change in specification and design it cannot be accepted
that plaintiff was due and liable to pay Rs.22,736.74/- and
Rs.2,36,812/- towards construction of base slab and east side
compound wall and the cost of correction and demolition and
reconstruction etc. Nothing prevented the defendant to include
the said items in the final bill if at all there were any such dues.
The claim/demand for the aforesaid amounts has been raised
by the defendant admittedly after issuance of notice by the
plaintiff. As such, the defendant is not entitled for the counter
claim raised in the written statement.
Regarding Point No.7:
89. The trial Court on appreciation of oral and
documentary evidence has declined to accept the case of the
plaintiff. The trial Court has extensively adverted to the
deposition of the Court Commissioner examined as CW-1 and
his report at Ex.C1 to C3. It has taken note of the fact that the
Court Commissioner had carried out the work assigned to him
without notice to the defendant and in his absence. It has also
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taken note of the fact the defendant was not given fair
opportunity by the Commissioner during the process of
verifying and examining the work. It has taken into
consideration the admitted errors committed by the
Commissioner in not carrying out the measurement of certain
items physically and also causing certain measurements to be
carried out, calculation sheet to be prepared by the
Commissioner through his students. Thus, the trial Court has
found several discrepancies in the estimate made by the
Commissioner and has thus declined to rely upon his evidence.
90. As regards the evidence of PW2 the trial Court has
found that the said witness had followed the specifications
given by Bureau of Indian Standards without providing any
further details. The trial Court has also found that the said
witness had not referred to all the relevant documents but had
relied upon only few drawings and designs to prepare the
comparative statement. Even the said witness has admitted to
have prepared the report without any notice to the defendant.
As such, the trial Court has declined to accept the evidence of
PW2. Since the only evidence was of PW1, the trial Court has
found the same to be self serving oral testimony containing
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several admissions on the issues and equally controverted by
the evidence of DW1.
91. Similarly the trial Court has declined to accept the
counter claim raised by the defendant for want of evidence and
also in view of defendant personally collecting the amounts in
respect of three bills indicating he either having given up or
adjusting the claim for balance amount.
92. This Court does not find any fault or irregularity in
the trial Court appreciating the evidence and declining claim of
both the plaintiff and the defendant and consequently
dismissing the suit and rejecting the counter claim. Point No.7
is answered accordingly.
93. For the aforesaid reasons and analysis this Court is of
the considered view that no grounds are made out by the
Plaintiff as well as the Defendant warranting interference by
this Court. Consequently the appeal filed by the Plaintiff in RFA
No.1473/2012 as well as appeal filed by the Defendant in RFA
No.1922/2012 are dismissed. Judgment and decree dated
21.05.2012 passed in O.S.No.915/2002 is confirmed.
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POINT No.8:
I.A.No.1/2024 filed under Section 151 CPC seeking
restitution. In view of the conclusion arrived at on point Nos.2
to 5 in the negative, I.A.No.1/2024 does not survive for
consideration and same is rejected.
Sd/-
(K.S.MUDAGAL)
JUDGE
Sd/-
(M.G.S. KAMAL)
JUDGE
SBN/RL/RU
