Madras High Court
Mr.Rai Chand Daga vs Mr.G.Elumalai on 15 June, 2021
C.S.No.633 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.06.2021
CORAM
THE HONOURABLE MR. JUSTICE V.PARTHIBAN
C.S.No.633 of 2019
1.Mr.Rai Chand Daga
2.Mr.Pankaj Daga ... Plaintiffs
-Vs.-
Mr.G.Elumalai ... Defendant
Prayer: Civil Suit filed under Order IV Rule 2 of the Original Side Rules
read with Order VII Rule 1 of the Code of Civil Procedure, praying to pass
a judgment and decree in favour of the plaintiffs and as against the
defendant:
a) Directing the defendant to pay a sum of Rs.1,11,64,469/- (Rupees
One Crore Eleven Lakhs Sixty Four Thousands Four Hundred and Sixty
Nine only) together with future interest at the rate of 12% per annum on
Rs.1,11,64,469/- (Rupees One Crore Eleven Lakhs Sixty Four Thousands
Four Hundred and Sixty Nine Only) from the date of filing of this Suit (i.e)
14.10.2019 to till date of realization of the amount.
b) Directing the defendant to pay a sum of Rs.25,00,000/- damages
for mental and physical agony.
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C.S.No.633 of 2019
c) To direct the defendant to pay the cost of and incidental to the
suit.
For Plaintiffs : Mr.T.Karunakaran
For Defendant : No appearance
JUDGMENT
The present Civil Suit has been filed by the plaintiffs for Directing
the defendant to pay a sum of Rs.1,11,64,469/- (Rupees One Crore Eleven
Lakhs Sixty Four Thousands Four Hundred and Sixty Nine only) together
with future interest at the rate of 12% per annum on Rs.1,11,64,469/-
(Rupees One Crore Eleven Lakhs Sixty Four Thousand Four Hundred and
Sixty Nine Only) from the date of filing of this Suit (i.e) 14.10.2019 to till
date of realization of the amount and for directing the defendant to pay a
sum of Rs.25,00,000/- damages for mental and physical agony and to
direct the defendant to pay the cost of and incidental to the suit.
2. The case of the plaintiffs is as follows:
(i) The plaintiffs and the defendant have entered into a letter of
indent-contract agreement dated 01.02.2017, to build a residential house in
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C.S.No.633 of 2019
the plaintiffs' property. As per the agreement, the estimated cost of the
construction is Rs.96,09,905/- and the defendant has to start the
construction work on 01.02.2017 and complete the same within six months
from the date of signing of the agreement, failing which, the defendant
should pay liquidated damages of Rs.10,000/- per day, beyond the grace
period of 15 days. When the defendant started the construction work in
the building, the plaintiffs have paid the amount of Rs.1,12,02,495/- to the
defendant from time to time, which is more than the amount specified in
the Agreement dated 01.02.2017. After sometime, the defendant was not in
a position to complete the work within the stipulated time. Thus, the
defendant has stopped the construction work from September 2018.
(ii) Thereafter, when the plaintiffs have continued the construction
work on their own, the plaintiffs received a call from Adyar Police Station
based on the complaint given by the defendant that the plaintiffs have to
pay the remaining amount of Rs.40,99,770/- towards construction charges.
The Police officials closed the complaint as it was a civil case and advised
the plaintiffs to approach the Civil Court.
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C.S.No.633 of 2019
(iii) Thereafter, the plaintiffs filed a Caveat on 21.08.2019 against
the defendant. The defendant has issued a legal notice dated 09.09.2019 to
the plaintiffs, demanding the balance amount payable to the defendant.
After receiving the legal notice, the plaintiffs requested the defendant to
produce the documentary evidence for the amount that was claimed by him
and also the plaintiffs have counter claimed the defendant to pay a sum of
Rs.1,36,64,469/-. According to the plaintiffs, the defendant was trying to
interfere with the construction work of the plaintiffs which is completed
about 95% as on date. Hence the suit.
3. Despite notices served on the defendant and his name printed in
the cause list, he had neither appeared in person nor through a counsel on
his behalf. This Court vide order dated 20.12.2019, directed paper
publication in any Tamil Daily by specifying the next date of hearing as
03.02.2020. Despite paper publication effected on 04.01.2020, the
defendant has not represented the case. Hence, the defendant was set ex-
parte.
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C.S.No.633 of 2019
4. In order to prove his case, the second plaintiff filed proof affidavit
and he is examined as P.W.1 and got marked Exs.P1 to P6. Ex.P1 is the
original letter of Indent-contract agreement dated 01.02.2017. Ex.P2 is the
original valuation report dated 22.08.2019. Ex.P3 is the legal notice dated
09.09.2020 sent by the defendant to the plaintiff. Ex.P4 is the reply notice
dated 16.09.2019 with AD Card sent to the defendant. Ex.P5 is the Re-
joinder dated 26.09.2019 sent by the defendant to the plaintiff. Ex.P6 is the
computer generated copy of the Electricity Bill.
5. A perusal of the evidence of PW.1 coupled with the exhibits
would reveal that the plaintiffs have proved their case. Therefore, the
plaintiffs are entitled to the relief as prayed for.
6. Accordingly, the Civil Suit is decreed as prayed for with costs.
15.06.2021
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C.S.No.633 of 2019
Witnesses examined on
behalf of the Plaintiffs:
P.W.1 – Mr.Pankaj Daga
Witnesses examined on
behalf of the Defendant:
None
Exhibits marked on behalf
of the Plaintiffs :
Ex.P1/ dated 01.02.2017 - Original letter of Indent-contract
agreement;
Ex.P2/dated 22.08.2019 - Original valuation report;
Ex.P3/dated 09.09.2020 - Legal notice sent by the defendant to the
plaintiffs;
Ex.P4/ dated 16.09.2019 - Reply notice with AD card sent to the
defendant;
Ex.P5/dated 26.09.2019 - Rejoinder sent by the defendant to the
plaintiff;
Ex.P6 - Computer generated copy of the
Electricity Bill.
Exhibits marked on behalf
of the Defendant:
Nil
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C.S.No.633 of 2019
V.PARTHIBAN, J.
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C.S.No.633 of 2019
15.06.2021
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