Renjith vs P.P.Philip
2023 Latest Caselaw 8628 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MR. JUSTICE SATHISH NINAN
       WEDNESDAY, THE 9TH DAY OF AUGUST 2023 / 18TH SRAVANA, 1945
                           RFA NO. 165 OF 2012
    AGAINST THE JUDGMENT AND DECREE DATED 27.10.2011 IN OS 70/2010 OF
                             SUB COURT, PALA
                                  -----
APPELLANT/PLAINTIFF:

           RENJITH A.,
           AGED 32 YEARS, CIVIL ENGINEER, S/O.ARAVINDAKSHAN NAIR,
           PULIMOOTTIL HOUSE, ETTUMANOOR P.O., KIZHAKKUM BHAGAM KARA,
           ETTUMANOOR VILLAGE, KOTTAYAM TALUK, PROPRIETOR,
           "VASTHUKENDRA" BUILDING SOLUTIONS, KOLLAPPALLY P.O.,
           KADANADU VILLAGE

           BY ADVS.
           SRI.SANTHEEP ANKARATH
           SRI.SUMODH MADHAVAN NAIR



RESPONDENT/DEFENDANT:

           P.P.PHILIP,
           AGED 73 YEARS, S/O.PHILIPPOSE, POOVATHANIYIL HOUSE, KADANADU
           P.O., KADANADU VILLAGE, MEENACHIL TALUK, PIN - 686653.

           BY ADVS.
           SRI.FIROZ K.ROBIN
           SRI.J.JULIAN XAVIER
           SRI.K.C.THOMAS PALA




     THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 09.08.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                         SATHISH NINAN, J.
               = = = = = = = = = = = = = = = = = =
                     R. F. A. No.165 of 2012
               = = = = = = = = = = = = = = = = = =
              Dated this the 9th day of August, 2023

                              J U D G M E N T

The plaintiff in a suit for money under a

construction contract, is the appellant. The defendant

raised a counter claim for recovery of excess amounts

paid. The trial court dismissed the suit and decreed the

counter claim.

2. On 26.07.2008, Ext.A1 construction contract was

entered into between the plaintiff (builder) and the

defendant (owner) for construction of a commercial

building for the defendant. As per Ext.A1, the cost of

construction is 775 per sq. ft. for the built-up area of

3856 sq. ft. The total amount for construction is

` 29,88,400/-. The amount was to be paid in various

stages as specified in Ext.A1. According to the

plaintiff, in the course of the construction work, the

defendant required execution of additional construction. R. F. A. No.165 of 2012

The additional construction thus carried out is 346.4

sq. ft. The same was neither endorsed on the agreement

nor a separate agreement executed. It was done by an

oral agreement. Though 97% of the works are completed,

the payments due have not been made. The plaintiff

claims that an amount of ` 1,38,400/- is outstanding in

terms of the original agreement and an amount of

` 4,83,860/- for the additional work. Thus, the suit is

filed for realisation of a total amount of ` 6,22,260/-

with interest.

3. The defendant though admitted the Ext.A1

agreement, contended that page 3 of Ext.A1 is fabricated

one. The said page contains the specifications with

regard to construction. The original of page 3 was

replaced with a fabricated one and produced before the

court. As per the agreement the work to be done includes

electrification, plumbing, flooring etc. The said works

were not done by the plaintiff. The construction carried

out by the plaintiff is not as per the specifications R. F. A. No.165 of 2012

contained in the agreement. The materials used and the

workmanship are of inferior quality. The claim of the

plaintiff that 97% of the construction is over was

denied and it was contended that only 60% of the work

has been completed. The defendant claimed that he has

paid an amount of approximately ` 9 lakhs in excess of

the actual amount due to the plaintiff. The defendant

raised a counter claim limiting the amount to ` 8 lakhs.

4. The plaintiff filed a written statement to the

counter claim denying the averments and the claim in the

written statement.

5. The trial court held that the construction

carried out by the plaintiff was not in accordance with

the specifications. It was held that the rate of ` 775/-

per sq.ft could not be for construction of the structure

alone. The Court adopted the PWD rate towards the cost

of construction of the structure, and held that the

total cost of construction is ` 16,18,925/-. Admittedly

the plaintiff was paid an amount of ` 28,50,000/-. R. F. A. No.165 of 2012

Accordingly, the counter claim was decreed for return of

` 8 lakhs as claimed by the defendant and the plaint

claim was dismissed.

6. I have heard Sri.Santheep Ankarath on behalf of

the appellant-plaintiff and Sri.J.Julian Xavier, the

learned counsel for the respondent-defendant.

7. According to the plaintiff, by the time disputes

arose between the parties, 97% of the construction was

completed. However, according to the defendant only 60%

of the work was completed. The state of the construction

obtaining at that time was reported by a Commissioner

with the assistance of an expert who were deputed in

another suit that was filed by the plaintiff as OS

228/2010, before the Munsiff's Court, Pala. That was a

suit filed by the plaintiff for prohibitory injunction

to restrain the defendant from entrusting the work to

others. Therein, the Commissioner originally filed a

report stating the value of construction at ` 16 lakhs

(approximately). The Commissioner's report was set aside R. F. A. No.165 of 2012

and the very same commission was reissued. Thereafter,

the Commissioner submitted a report, marked as Ext.A8 in

the present suit, wherein the cost of construction at

the rate as specified in Ext.A1 agreement was reported

as, ` 36,53,149/-.

8. The main dispute between the parties is, whether

the rate fixed in Ext.A1 agreement includes the

electrical, plumbing and other works, or is it only for

the structure. In Ext.A1 agreement, the rate fixed for

construction is ` 775/- per sq. ft. for the built-up

area. According to the defendant, the rate includes

expenses for electrification, plumbing, flooring etc.

According to the plaintiff, the rate is only for the

structure of the building to be completed in terms of

the specifications in the agreement and the plan. The

plans are marked as Exts.B1 and B2.

9. Clause 1 of Ext.A1 agreement provide that, the

work will be executed in accordance with the plan,

specification attached to the agreement and the rates R. F. A. No.165 of 2012

mutually agreed by the parties. The specifications were

contained at page 3 of Ext.A1. Going by page 3 in

Ext.A1, electrical, plumbing and wood work are not

included. The genuineness of page 3 of Ext.A1 is stoutly

disputed by the defendant, including his signature

therein. It is his case that the original of page 3 has

been replaced by the plaintiff with a fabricated one.

The trial court found that, in spite of the specific

denial, the plaintiff did not take any steps to prove

the genuineness of the disputed signature. Further, on a

perusal of the signatures, the court noticed the

differences at page 3 with the signatures at the other

pages. The court has observed the details of such

differences. On a perusal of page 3 of Ext.A1, it is

seen that the observations of the trial court with

regard to the signatures found at the disputed page are

justified. The trial court was right in having refused

to consider page 3 of Ext.A1.

R. F. A. No.165 of 2012

10. Though the genuineness of page 3 of Ext.A1

agreement is disputed, the defendant has not produced a

copy of the authentic Ext.A1 agreement. In the

replication filed by the plaintiff at paragraph 4, it is

contended that a copy of Ext.A1 was given to the

defendant. As DW1, the defendant would deny the same.

However, it is not probable that he would not have

retained even a copy of the agreement. Though in the

written statement the defendant contended that the

original page of Ext.A1 was replaced with a fabricated

one, as DW1, he would in cross-examination say that the

original did not contain the specification. His

deposition reads thus :-

"Exhibit A1 ð hm-Zn ]-d-ªn-«m-Wv H-¸n-«Xv. sI«n-S ]-Wn-bp- sS I-cmÀ BtWm F-óv a-\-Ên-em-¡nbm-tWm H-¸n«Xv (Q). AsX, hm-Zn ]-dª-Xv A-\p-k-cn-¨m-Wv H-¸n«Xv (A). H-¸n«¸w specification Dï-m-bn-cptóm (Q). Cñm-bn- cpóp. ]n-óo-Sv A-hÀ H-sc-®w Xóp. (A)"

Claiming to be the detailed specification with regard to

the construction as given by the plaintiff, the R. F. A. No.165 of 2012

defendant produced Ext.B3. According to the plaintiff,

Ext.B3 happened to be issued as claimed by the defendant

to enable availing of a loan from Bank. When PW1 is

cross-examined, a suggestion is made by the learned

counsel for the defendant with regard to availing of

loan from the Bank. That Ext.B3 was not prepared along

with Ext.A1 agreement and Exts.B1 and B2 plan is evident

for the reason, Ext.B3 contains provisions for

"handrails" for balcony whereas going by Exts.B1 and B2

plan what is provided for is "parapet". Therefore, the

case of the plaintiff that Ext.B3 does not reflect the

specifications agreed between the parties cannot be

brushed aside. Relying on Ext.B3, the trial court

concluded that the rate agreed to between the parties

under Ext.A1 agreement was for the works of the building

to be made in a 'ready to occupy' condition. Here it is

to be noticed that, at the undisputed pages of Ext.A1

agreement what is provided for is "for the construction

of structure of the building". At pages 1 and 2 it has R. F. A. No.165 of 2012

been repeatedly mentioned as "construction of structure"

of the building. At the opening part of the agreement it

is recited thus "Agreement entered into on this ... as

one part (..... the contractor) and ... as second part

(..... the owner) by entering into an agreement with the

following conditions for construction of structure of

the building for the owner ...". The terms mentioned at

clause 4, page 2 of Ext.A1 agreement reads thus: -

"Payments will be strictly in accordance with the stages mentioned below.

Total amount of construction of the Structure @ 775/- (Seven Hundred and Seventy Five Only) per square feet of the built up area i.e. 3856 x 775 = 29,88,400.00 a. Advance 10% of the total construction cost mutually agreed by both the parties i.e. Rs.2,98,840.00 b. 10% of the total amount after the completion of plinth level i.e. Rs.2,98,840.00 c. 20% of the total amount after the completion of ground floor columns i.e. Rs.5,97,680.00 d. 15% of the total amount after Floor Concrete i.e. Rs.4,48,260.00"

e. 15% of the total amount after the completion of first R. F. A. No.165 of 2012

floor columns i.e. Rs.4,48,260.00 f. 10% of the total amount after Roof Concrete i.e. Rs.2,98,840.00 g. 10% of the total amount after hollow blocks masonry i.e. Rs.2,98,840.00 h. 5% of the total amount after plastering i.e. Rs.1,49,420.00 i. 5% of the total amount after the completion i.e. Rs.1,49,420.00 j. Rate for the construction of structure of the commercial building as per the plan specification in this agreement is Rs.775/-"

11. Noticeably, at clause (4) what is stated is

total amount for construction of the "structure".

Clause-(j) provides the rate of construction of the

structure of the commercial building as per the plan

specification. Sub-clauses (a) to (i) in clause No.4

above refers to the stage-wise payments. The stages

mentioned are only "plinth level" "completion of ground

floor columns", "floor concrete", "completion of first

floor columns", "completion of roof concrete", "hollow R. F. A. No.165 of 2012

blocks", "masonry and plastering". The stage-wise

payment of the total amount as above does not make any

reference to electrical, plumbing, sanitary works etc.

There is nothing to indicate that other works like

sanitation, plumbing, electrical etc. are included in

the stages mentioned therein. Therefore, the disputed

document Ext.B3, alone cannot made the basis to find

that the rate mentioned in Ext.A1 agreement included the

cost of electrical, sanitary and other works. On the

other hand, pages 1 and 2 of Ext.A1 which are

undisputed, suggest that the rate agreed is only for the

structure of the building.

12. Deliberating on the rate of construction, the

trial court has proceeded observing that "nobody will

agree to construct structures at the rate of ` 775/- per

sq.ft." There was no material before the Court, oral or

documentary, to arrive at the said conclusion. There was

no plea for the defendant that the rate, ` 775/- per

sq.ft. for construction of the structure was an R. F. A. No.165 of 2012

exorbitant rate which was not prevalent at that time. No

evidence was adduced by the defendant that such rate for

structure was exorbitant during that period. If the rate

was so excessive, then evidence regarding the same could

have been adduced. It is pertinent to note that, even

when the expert was examined as PW3 or when the Advocate

Commissioner was examined as CW1, not even a suggestion

is made to them that the rate of ` 775/- per sq. ft. for

structure alone is an exorbitant rate and that under

normal circumstances a contract would not be entered

into at that rate for the construction of structural

works alone. In the absence of any such evidence, the

conclusions arrived at by the trial court that, the rate

agreed to between the parties was inclusive of all works

to make the building in a ready to occupy condition,

including electrical, sanitary and other works, cannot

be sustained.

13. Thus, I find that the rate of ` 775/- per sq.

ft. agreed to in Ext.A1 is only for construction of the R. F. A. No.165 of 2012

structure, for a built-up area of 3856 sq. ft.

14. Though the plaintiff would allege that the

construction carried out by the defendant was using low

quality materials and that the foundation does not

conform to the required specifications, such aspects

were not ascertained by the defendant through the expert

Commissioner. He having not been asked to report

regarding the same, it could only be found that the said

allegations have no substance. There is no claim for

damages alleging that the defendant had to do any extra

work to make the committed work in accordance with the

standards.

15. It is the case of the defendant that the

extra/additional works were done by the plaintiff on an

agreement that it will be in lieu of the cost of the

wood work which had to be replaced at the cost of the

defendant since the work done by the plaintiff was found

to be of inferior quality. However, but for such a

contention to be subsist there is no evidence regarding R. F. A. No.165 of 2012

the same. Hence such contention is only to be negatived.

The plaintiff is thus entitled to the value of

extra/additional works also.

16. The stage up to which the plaintiff carried out

construction is evident from Ext.A8 the Commissioner's

Report prepared in OS 228/2010. The Commissioner was

examined as CW1 and the expert who accompanied the

Commissioner was examined as PW3. There is no dispute

with regard to the stage of construction as reported

therein. The value/cost of such construction based on

the rate as agreed in Ext.A1 viz. ` 775/- per sq.ft.,

has been reported to be ` 36,53,149/-. The value of such

construction at the PWD rate has been assessed and

reported by the very same Commissioner and expert, who

were deputed in the present case, through Ext.C1 and

C1(a) as ` 16,18,925/-. Incidentally it is also to be

noted that, though the difference is ` 20,34,224/-, and

even the defendant does not have a case that he has paid

so much excess amount. According to him the excess R. F. A. No.165 of 2012

payment made is only ` 9 lakhs (approximately).

17. Having found that the agreed rate for

construction is ` 775/- per sq. ft., the plaintiff is

entitled to get ` 36,53,149/- towards the work carried

out by him. It is not in dispute that only an amount of

` 28,50,000/- was paid to him. Therefore, he is entitled

for the balance amount of ` 6,22,260/-. The claim of the

defendant that he has paid amounts in excess of that due

to the plaintiff, is thus incorrect. The finding of the

trial court to the contrary is thus liable to be

interfered with and I do so.

18. With regard to the entitlement of interest,

considering the conduct of the plaintiff in having

tampered with page 3 of Ext.A1 agreement, I deem it

appropriate to decline interest till the date of decree

and also the costs. From the date of decree the

plaintiff shall be entitled for interest at the rate of

6% per annum.

R. F. A. No.165 of 2012

Resultantly, the appeal is allowed. The decree and

judgment of the trial court are set aside. The suit is

decreed allowing the plaintiff to realise an amount of

` 6,22,260/- with interest at the rate of 6% per annum

from the date of decree till realisation, from the

defendant and his assets. Costs disallowed.

Sd/-

SATHISH NINAN JUDGE

kns/-

//True Copy// P.S. to Judge