Madras High Court
M/S.I.K.Construction vs M/S.Sathyam Educational Trust on 24 April, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
AS.(MD)Nos.53 of 2019 & 174 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 07.03.2025
Pronounced On : 24.04.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HON'BLE MR.JUSTICE M.JOTHIRAMAN
A.S.(MD)Nos.53 of 2019 & 174 of 2021
A.S.(MD)No.53 of 2019
M/s.I.K.Construction,
Rep.by its Proprietor,
I.Kezhson, S/o.Issac,
No.14/109-A, Azhagiapandiapuram,
Thadikkarankonam Village,
Thovalai Taluk,
Kanyakumari District ... Appellant/Plaintiff
Vs.
1.M/s.Sathyam Educational Trust,
Rep.by its Chairman,
A.Thinagar, S/o.Athisayaraja,
No.35/B5, Anitha Illam,
Saragunaveethi North,
Nagercoil, Nagercoil Village,
Agastheeswaram Taluk,
Kanyakumari District.
2.T.Athisayaraja
3.A.Thanalakshmi
4.A.Kanimozhy ... Respondents/Defendants
1/36
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
PRAYER : First Appeal filed under Section 96 of the Code of Civil
Procedure against the Judgement and Decree dated 28.04.2018 made in
O.S.No.124 of 2012 on the file of the District Judge, Kanyakumari
District at Nagercoil.
For Appellant : Mr.S.R.Rajagopal,
Senior Counsel,
for Mr.Puhzh Gandhi
For R1 : Mr.Veerakathiravan,
Senior Counsel,
for Mr.M.P.Senthil
For R2 & R3 : No Appearance
A.S.(MD)No.174 of 2021
1.M/s.Sathyam Educational Trust,
Rep.by its Chairman,
A.Thinagar,
S/o.Athisayaraja,
No.35/B5, Anitha Illam,
Saragunaveethi North,
Nagercoil, Nagercoil Village,
Agastheeswaram Taluk,
Kanyakumari District.
2.T.Athisayaraja
3.A.Thanalakshmi
4.A.Kanimozhy ... Appellants/Defendants
Vs.
2/36
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
M/s.I.K.Construction,
Rep.by its Proprietor,
I.Kezhson, S/o.Issac,
No.14/109-A, Azhagiapandiapuram,
Thadikkarankonam Village,
Thovalai Taluk,
Kanyakumari District. ... Respondent/Plaintiff
PRAYER : First Appeal filed under Section 96 of the Code of Civil
Procedure against the Judgement and Decree dated 28.04.2018 made in
O.S.No.124 of 2012 on the file of the District Judge, Kanyakumari
District at Nagercoil.
For Appellants : Mr.Veerakathiravan,
Senior Counsel,
for Mr.M.P.Senthil
For R1 : Mr.S.R.Rajagopal,
Senior Counsel,
for Mr.Puhazh Gandhi
COMMON JUDGMENT
(Judgment of this Court was delivered by M.JOTHIRAMAN J.)
The plaintiff preferred an appeal in AS.(MD)No.53 of 2019 to set
aside and modify the judgment and decree dated 28.04.2018 passed in
O.S.No.124 of 2012. Unsuccessful defendants have preferred an appeal
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
in AS.(MD)No.174 of 2021 to set aside the judgment and decree dated
28.04.2018 passed in O.S.No.124 of 2012.
2.For the sake of convenience, the parties are referred to as their
rank before the trial Court.
3.The plaintiff, ie., M/s.I.K.Construction, represented by its
Proprietor, I.Kezhon, has been filed a suit for recovery of money of
Rs.2,67,88,900/-, Rs.31,40,400/- and Rs.11,48,700/- with future interest
at the rate of 12% per annum from the date of last demand till the date of
realization and cost. The suit was decreed by the learned District Judge
vide judgment dated 28.04.2018 with cost and the defendant was directed
to pay a sum of Rs.3,10,78,000/- (less Rs.25,00,000/- which was paid as
per order of Hon'ble High Court) with future interest at the rate of 6% per
annum from the date of suit till the date of realization. Aggrieved over
the same, the plaintiff challenging the portion of the decree, in respect of
6% interest to the principal amount, appeal in AS.(MD)No.53 of 2019
has been filed. Aggrieved over the decree and judgment, the defendants
have preferred an appeal in AS.(MD)No.174 of 2021.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
4.The case of the plaintiff in brief as follows:-
The plaintiff is the proprietor of M/s.I.K.Construction and the first
defendant is the Chairman of the Sathyam Educational Trust. They
entered into three separate construction agreement dated 29.08.2008. As
per the agreement, the main building first block ground floor, first floor
and second floor at the rate of Rs.650/, Rs.700/- and Rs.800/- per square
feet respectively. Office building ground floor and first floor at the rate
of Rs.700/- and Rs.800/- per square feet respectively. Main building
second block ground floor, first floor and second floor at the rate of Rs.
650/-, Rs.700/- and Rs.800/- per square feet respectively. The total
amount for construction of main building first block consisting of ground
floor, first floor and second floor is Rs.3,54,88,900/-. On 29.08.2008, a
sum of Rs.25,00,000/-, on 20.09.2008 a sum of Rs.15,00,000/- and on
09.01.2010, a sum of Rs.47,00,000/- was paid by the first defendant for
the main building. The balance amount is Rs.2,67,88,900/-. Similarly,
the first defendant paid cost of construction, ie., Rs.10,00,000/- for
constructing office building on 29.08.2008 and on 20.09.2008 a sum of
Rs.20,00,000/- was paid. Totally a sum of Rs.30,00,000/- was paid and
balance amount is Rs.31,40,400/-. The said balance amount to be paid
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
by the first defendant for construction of main building second block is
Rs.11,48,700/-. The first defendant issued three cheques dated
15.10.2009 and the same were dishonoured by the Bank. Subsequently
on 09.01.2010, the first defendant has paid a sum of Rs.47,00,000/-. The
plaintiff had completed the construction work for a sum of
Rs.4,53,03,000/-, but the first defendant has paid only a sum of
Rs.1,42,25,000/-. As such, an amount of Rs.3,10,78,000/- is illegally
retained by the defendant. The defendant attempted to complete the
construction work with the help of the third party. Hence, the plaintiff
initially filed a suit in O.S.No.392 of 2010 for the relief of permanent
injunction. In the above suit, status-quo was granted, challenging the
same, the first defendant had preferred a revision before this Hon'ble
Court in CRP.(MD)Nos.2734 & 2753 of 2010 to struck off the said
plaint. In the course of hearing of CRP, an Advoate Commissioner was
appointed to look into the construction work already finished by the
plaintiff. The Commissioner filed a report on 15.02.2011. In the earlier
suit, status-qua was granted and subsequently it was stayed by this
Hon'ble Court. Now, the plaintiff's construction work is stopped. Hence,
the present suit is not hit by Order II Rule 2 of the Code of Civil
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
Procedure. Therefore, the plaintiff is entitled for recovery, a sum of Rs.
3,10,78,000/- from the defendants with interest at the rate of 12% per
annum from the date of plaint till the date of realization. Hence, the suit.
5.Brief averments stated in the written statement filed by the first and
second defendants are as follows:-
The first defendant has admitted the agreements and as per the
terms of the agreements, entire construction work should be completed,
within six months, so as to enable the first defendant to commence the
educational activities from the academic year 2009-2010. The first
defendant has admitted that he has paid a sum of Rs.55,00,000/- on
29.08.2008 and a sum of Rs.40,00,000/- on 20.09.2008 respectively. The
plaintiff has not specifically mentioned the date of completion of the
construction work in the plaint averments. The plaintiff had failed to
complete the construction work within the time fixed in the construction
agreement and thereby committed breach of contract. Thereafter, the
first defendant engaged a new contractor to continue the construction
work and complete the work in respect of two buildings. The plaintiff
remained silent and while the first defendant has proceeded with
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
construction work by engaging new contractor. Moreover, the plaintiff
has also received a sum of Rs.47,00,000/- on 09.01.2010 towards full and
final settlement. After receipt of the above said amount plaintiff started
demanding huge lump sum towards settlement. The plaintiff filed
complaints under Section 138 of the Negotiable Instruments Act, 1881
against the first defendant in C.C.Nos.240, 241 and 242 of 2010. At the
instigation of the plaintiff, his friend one Boothalingam Pillai, also filed a
complaint under Section 138 NI Act in C.C.Nos.198 and 209 of 2010.
As per clause 6 of the construction agreement dated 29.08.2008, after the
completion of work, the contractor has to serve written notice to the
defendant to conduct joint survey. But the plaintiff did not make any
request to conduct joint survey. The plaintiff already filed a suit in
O.S.No.392 of 2010 seeking permanent injunction. The plaintiff failed to
claim the balance amount in the prior suit itself. Therefore, the
subsequent suit is hit by Order II Rule 2 of Code of Civil Procedure.
Hence, the suit is liable to be dismissed with costs.
6.Based on the above pleadings, the trial Court has framed the following
issues:-
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
1.Whether the plaintiff and defendant entered into
three agreements for construction of building for Satyam
College of Engineering at Kumarapuram, Aralvoimozhy?
2.Whether the defendant breached the contract and
failed to pay the payment periodically to the plaintiff?
3.Whether the plaintiff was lethargic and slow in
carrying of the construction work?
4.Whether the defendants have engaged new
contract to complete the construction work?
5.Whether he suit is barred under Order 2, Rule 2
of CPC?
6.Whether the plaintiff is entitled to recover a sum
of Rs.2,67,88,900/- with future interest at the rate of 12%
per annum in respect of the main building first block
ground floor, first floor and second floor?
7.Whether the plaintiff is entitled to recover a sum
of Rs.31,40,400/- with future interest at the rate of 12%
per annum in respect of the office building ground floor?
8.Whether the plaintiff is entitled to recover a sum
of Rs.11,48,700/- with future interest at the rate of 12%
per annum in respect of the main building second block
ground floor?
9.To what relief, if any, the plaintiff is entitled?
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
7.On the side of the plaintiff, plaintiff himself examined as P.W.1,
Thiru.Navaretnam was examined as P.W.2 and Thiru.R.Lingarajan was
examined as P.W.3 and Ex.A1 to Ex.A45 and Ex.X1 were marked. On
the side of the defendants, the first defendant himself examined as D.W.1
and Thiru.S.Murugan was examined as D.W.2 and Ex.B1 to Ex.B60 were
marked.
8.Findings of the trial Court:-
i)The suit is not barred under Order II Rule 2 CPC.
ii)The first defendant was defaulted to pay construction cost as per
terms of the construction agreements.
iii)The plaintiff was continued construction work till 09.04.2010
merely on basis of dishonoured cheques and the main building were fully
constructed by the plaintiff.
iv)The Commissioner's report filed in M.P.No.1 of 2011 in CRP.
(MD)No.2753 of 2010 is also supported to the case of the plaintiff.
v)The first defendant himself admitted the claim amount, as per
Ex.A33.
vi)The case of the plaintiff has been proved through the evidence
of P.W.2 and P.W.3.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
9.Points for determination arises in these appeals is that
i)Whether the plaintiff has put up the construction as claimed for?
ii)Whether the first defendant has put up the construction as
claimed for?
iii)Whether the plaintiff is breached the contract as per the
agreements in Ex.A1 to Ex.A3?
iv)Whether the defendant/trust breached the contract and failed to
pay the payment periodically to the plaintiff?
v)Whether the plaintiff is entitled to recover the money as prayed
for in the suit?
10.The learned Senior Counsel appearing for the
appellants/defendants in A.S.(MD)No.174 of 2021 and first respondent /
first defendant in A.S.(MD)No.53 of 2019 would submit that the initial
onus of proof was not discharged by the plaintiff on the basis of the
evidence. No bills or invoice for procuring materials have been
produced. No bank transactions have been produced to substantiate the
payments made to the dealers of cement, bricks, iron rods and other raw
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
materials. He would further submit that no documentary evidence were
produced to substantiate the payments made to the masons, labours and
other workmen for completion of the construction. The trial Court
completely failed to consider the core issue that who has put up the
construction, there is no issue has been framed to that effect. No
adequate evidence or materials placed before the Court to claim huge
amount of Rs.3,10,78,000/- and absolutely no breakups have been filed.
11.The learned Senior Counsel further would submit that with
regard to the first block in the main building, a huge claim of Rs.
1,31,65,300/- has been made as if the entire construction has been over in
the second floor, but the Commissioner's report marked as Ex.A18
completely falsifies the case of the plaintiff. With regard to the second
block in main building, ground floor itself has not been completed and
there is no basis for claiming a sum of Rs.36,73,700/-. There is
absolutely no material particulars in the plaint in O.S.No.392 of 2010 as
well as the subsequent suit in O.S.No.124 of 2012 relating to the date of
completion of the construction. In O.S.No.392 of 2010, the plaintiff has
taken a stand that the amount due from the first defendant is Rs.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
3,10,78,000/- and there is no specific averment relating to the stage of
the construction as well as the work done by the plaintiff. The plaintiff
has not come with clean hands and he has produced false evidence and
also made false claims. In spite of specific date stipulated to complete
the construction, the plaintiff has not discharged his part of performance
and he did not proceed with the construction as per the terms of the
contract. The plaintiff has not sent any notice to the first defendant as
per the Clause 5 of the terms and conditions of the construction contract.
The trial Court completely over-looked that the first defendant wanted to
start the Engineering College for the academic year 2009-2010. Only in
such circumstances, the time for completion of construction was fixed as
six months ie., on or before 01.03.2009. The plaintiff categorically
admitted that he did not complete the construction work as per the
construction agreement. The plaintiff has produced Ex.A26 to
substantiate as if the materials were transported through vehicles.
However, the said documents have been proved to be false and fabricated
one by production of Ex.B57. To strengthen his contention, he has relied
upon the following judgments reported in
(i)2019 (6) SCC 2 in Jagadish Prasad Patel (Dead) through
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
Legal representatives and another Vs. Shivnanth and others to show
the burden always lies on the plaintiff to make out and establish a clear
case for granting relief and the weakness, if any on the case set up by the
defendants would not be a ground to grant relief to the plaintiff.
(ii)2013 (15) SCC 161 in Sebastiao Luis Fernandes (Dead)
through Lrs & Ors. Vs. K.V.P.Shashtri (Dead) through Lrs & Ors to
show that in terms of Section 102 of the Indian Evidence Act, the initial
onus is always on the plaintiff and if he discharges that onus and makes
out a case which entitles him to a relief, the onus shifts to the defendant
to prove those circumstances, if any which would disentitle the plaintiff
to the same.
(iii)1998 (4) SCC 539 in Panjab Urban Planning &
Development Authority Vs M/S Shiv Saraswati Iron & Steel Re-Rolling
Mills to show that the plaintiff must succeed or fail on his own case and
cannot take advantage of weakness in the defendant/respondent's case to
get a decree.
12.Per contra, the learned Senior Counsel appearing for the
appellant / plaintiff in A.S.(MD)No.53 of 2019 and respondent / plaintiff
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
in A.S.(MD)No.174 of 2021 would submit that the plaintiff had
originally filed a suit in O.S.No.392 of 2010 for bare injunction
restraining the defendant trust from engaging any other contractor to
carry out remaining construction work unless balance amount due to the
plaintiff is duly settled. Thereafter, based on the cause of action for
recovery of dues under Ex.A1 to Ex.A3 and for damages, suit in O.S.No.
124 of 2012 has been filed. The cause of action in the suit O.S.No.124 of
2012 is independent and there is no question of O.S.No.124 of 2012
being hit by Order II Rule 2 of the Code of Civil Procedure. The
defendant had filed an Interlocutory Application in I.A.No.546 of 2012
in O.S.No.124 of 2012 to reject the plaint on the very same ground that
the suit is hit by Order II Rule 2 CPC and the said application was
dismissed by an order dated 15.12.2013 and the same was become final.
13.It is an admitted fact that the plaintiff and the first defendant
have entered into three agreements dated 29.08.2008 under Ex.A1 to
Ex.A3. The first defendant has also admitted that he had paid a sum of
Rs.55,00,000/- on 29.08.2008 and Rs.40,00,000/- on 20.09.2008. Ex.A1
to Ex.A3 agreements entered between the parties for construction of
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
three buildings namely main building-first block, consisting ground
floor, first floor and second floor and office building consisting ground
floor and main building-second block, consisting ground floor, first floor
and second floor. In clause 5 of Ex.A1 to Ex.A3, it has been clearly set
out that the construction will be completed in six months with the terms
and conditions set out there. Clause 5 clearly states that 20% payment
shall be made on commencement of work and thereafter 20% at each
stage of progress in construction work. There is no whisper anywhere in
the written statement that the first defendant has paid the amounts as per
Ex.A1 to Ex.A3. Following table is the break-up of amounts:
Exhibit Total Amount (in Rs.) 20% (in Rs.)
A1 3,54,88,900 70,97,780
A2 3,54,88,900 70,97,780
A3 1,31,58,000 26,31,600
Total 8,41,35,800 1,68,27,160
D.W.1 admits that 20% advance amount is payable under Ex.A1 to
Ex.A3 and that only a sum of Rs.55,00,000/- has been paid by him to the
plaintiff on the date of agreements. Admittedly, the first defendant has
not paid the amount of Rs.1,68,27,160/-
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
14.According to the plaintiff, balance amount payable to him as
mentioned in the plaint is as follows:-
A.Main Building First Block
Ground Floor 16536 sq.ft*650 - Rs.1,07,48,400.00
First Floor 16536 sq.ft*700 - Rs.1,15,75,200.00
Second Floor 16536 sq.ft*800 - Rs.1,31,65,300.00
Main Building Payment:
29.08.2008- Rs.25,00,000.00
20.09.2008- Rs.15,00,000.00
09.01.2010- Rs.47,00,000.00
Total Rs.87,00,000.00
----------------------
Balance Rs.2,67,88,900.00
-----------------------
B.Office Building works completed
Ground Floor 8772 sq.ft * 700 -Rs.61,40,400.00
Advanced of payment in different date
29.08.2008 Rs.10,00,000/-
20.09.2008 Rs.20,00,000/- -Rs.30,00,000.00
---------------------
Balance -Rs.31,40,400.00
---------------------
C.Main Building Second Block
Ground Floor on construction
work not yet completed -Rs.36,73,700.00
Advanced of payment in different date
29.08.2008 Rs.20,00,000/-
20.09.2008 Rs.5,25,000/- -Rs.25,25,000.00
--------------------
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
Balance Rs.11,48,700.00
---------------------
Balance Payment
A) Main Building First Block Rs.2,67,88,900.00
B) Office Building Rs. 31,40,400.00
C) Main Building Second Block Rs. 11,48,700.00
----------------------
Total Rs.3,10,78,000.00
----------------------
It is also the case of the plaintiff that against the balance payable, the
defendant made partial payments by the below mentioned cheques.
1.Cheque No.105869 dated 15.10.2009 -Rs.25,78,000.00
2.Cheque No.105870 dated 15.10.2009 -Rs.20,00,000.00
3.Cheque No.105871 dated 15.10.2009 -Rs.20,00,000.00
15.As per terms of the agreement, entire building, ie., three
buildings are to be constructed within six months from the date of
agreement dated 29.08.2008, which means it has to be completed by
28.02.2009. According to the plaintiff, aforesaid three cheques were
dishonored and the defendant requested the plaintiff to continue the
construction work and subsequently, on 09.01.2010, the defendant has
paid a sum of Rs.47,00,000/- to the plaintiff for which a separate receipt
issued wherein both plaintiff and the defendant had signed. On the other
hand, there is no denial in the written statement. However, it was argued
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
that the payment of Rs.47,00,000/- was made towards full and final
settlement. To prove the said fact, there is no pleadings and evidence and
the same is not acceptable one.
16.A perusal of Ex.A1 to Ex.A3 agreements reveals that there is no
mention about the total area to be constructed or even there is no mention
about the approximate total area to be constructed. Ex.A7 is the legal
notice issued by the plaintiff to the first defendant dated 17.04.2010
wherein it has been stated that the cheque dated 15.10.2009 bearing No.
105869 for a sum of Rs.25,78,000/- has been dishonoured. Ex.A7 to
Ex.A9 are the legal notices issued by the plaintiff to the first defendant
for the issuance of above said three cheques, which have been
dishonoured and calling upon the first defendant to pay the amount.
Ex.A13 is the copy of the plaint in O.S.No.392 of 2010 on the file of the
Subordinate Court, Nagercoil wherein it has been stated that the plaintiff
completed the main building first block ground floor work having area of
16536 sq.ft of construction and 16530 sq.ft of construction in the first
floor and 16536 sq.ft of second floor. It is also stated that the plaintiff
completed construction work in the main building second block and area
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
of 16530 sq.ft and the plaintiff completed and as such a sum of Rs.
3,10,78,000/- is illegally retained by the defendant. Further, it has also
been stated about the aforesaid three cheques issued by the first
defendant and all three cheques were dishonoured and the proceedings
under Section 138 of the Negotiable Instruments Acts is also pending
before the Judicial Magistrate No.2, Nagercoil. In Ex.A13, there is no
whisper about the fact narrated in the plaint in O.S.No.124 of 2012 and
on 09.01.2010, the defendant has paid Rs.47,00,000/- to the plaintiff, for
which, separate receipt obtained and both were signed on it. Similarly in
the plaint in O.S.No.124 of 2012, it has been pleaded that the plaintiff
completed the construction work for a sum of Rs.4,53,03,000/- and the
defendant has paid only Rs.42,22,000/- and remaining balance of Rs.
3,10,78,000/-, whereas in Ex.A13, there is no mention about the
aforesaid facts.
17.The learned Senior Counsel appearing for the respondent /
plaintiff in A.S.No.174 of 2021 and the appellant / plaintiff in A.S.
(MD)No.53 of 2019 would submit that the important document is
Ex.A33 agreement of settlement dated 02.06.2014 wherein the defendant
has admitted his liability. The execution and attestation of Ex.A33 has
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
been proved in a manner known to law. There is no pleading denying
Ex.A33 and nothing has been elicited in cross examination regaring
Ex.A33.
18.The Notary Public, who notarized the document in Ex.A33,
namely, Mr.Navaratnam has been examined as P.W.2. P.W.2 speaks
about the execution of Ex.A33 and another document signed by D.W.1
for some other transaction on the same day as Ex.A33, which document
has been marked as Ex.X1. To prove the execution of the document,
P.W.3 one R.Lingarajan attesting witness has also been examined.
19.The learned Senior Counsel appearing for the defendant would
submit that the alleged Ex.A33 compromise deed dated 02.06.2014 was
obtained by way of coercion. The plaintiff with an intention to
criminally intimidate the first defendant, lodged a false complaint dated
09.04.2014, which resulted in registering case in Cr.No.22 of 2014 by the
Anti-Land Grabbing Special Cell/DCB, Nagercoil. Based on the said
complaint, the Police authorities arrested the appellant/defendant and he
came out on bail on 16.05.2014 and appeared before the jurisdictional
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
police station regularly from 27.05.2014 till 02.07.2014. During that
period, the plaintiff with an aid of Police authorities coerced the
defendant and obtained his signature. He would submit that the plaintiff
has not taken steps to amend the plaint to incorporate the subsequent
events in the pleadings. Therefore, in the absence of any pleadings, the
alleged compromise agreement cannot be looked into for any purpose.
20.If the above submission advanced by the learned Senior
Counsel is accepted, then the plaintiff ought to have file a petition to
record the compromise before the trial Court. Admittedly, no step was
taken by the parties to settle the issue. More over, Ex.A33 came to be
existence after filing of this suit. In such circumstances, there cannot be
a full relience on the document alone. According to the plaintiff, with
regard to the first block in main building claim a sum of Rs.1,31,65,300/-
has been made, as if the entire construction has been completed in second
floor. However, in Commissioner report Ex.A18, it has been mentioned
that compared to ground and first floor portions in main building first
block, the second floor constitution is on recent origin.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
21.It is not stated in the plaint about the date of completion of
construction work either in the plaint in O.S.No.124 of 2012 or in the
plaint in O.S.No.392 of 2010 or in the notice issued by the plaintiff in
Ex.A7 to Ex.A9. However, Ex.A33 compromise agreement dated
02.06.2014 it has been mentioned that the plaintiff has completed his
work on 10.04.2010. It is not stated on which date each stage of the
construction has been completed in respect of three buildings. Ex.A26
has been relied upon to show that he transported materials in those
vehicles. The said documents have been proved as false by Ex.B 57 by
the defendant's side. There is no material placed to prove the
procurement of materials, amount spent for the purchase of materials as
well as the amount spent for labour charges. There is no explanation on
the part of the plaintiff for completing entire construction work with
respect to the main building first block without receiving payment for
completing each level of construction. As per clause 5 of the
construction agreement dated 29.08.2008, which itself shows that the
plaintiff failed to complete the construction work as per the agreement.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
22.It is not the case of the plaintiff that he has sent notice to the
first defendant to clear payment on completion of each level described in
clause 5 of the terms of the construction contract. It is the case of the
plaintiff that he has completed construction work in main building first
block and office building. However, the plaintiff did not issue notice to
the first defendant to conduct joint survey within 7 days as per clause six
of the construction agreement. A perusal of the Ex.A19, copy of the
building plan which has been relied by the plaintiff, would show that the
plaintiff has not completed the construction work as per the construction
agreement. The plaintiff has not pleaded anything about Ex.A26 which
consists book maintained by the plaintiff regarding money transaction
with the defendant and various bills.
23.The plaintiff had originally filed a suit in O.S.No.392 of 2010
on the file of the Subordinate Court, Nagercoil for bare injunction,
restraining the defendant/trust from engaging any other contractor to
carry out remaining construction work unless balance amount due to the
plaintiff is duly settled or until contract is lawfully cancelled. It is
relevant to extract Order II Rule 2 CPC as hereunder:-
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
(2)Relinquishment of part of claim.—Where a plaintiff
omits to sue in respect of, or intentionally relinquishes, any
portion of his claim, he shall not afterwards sue in respect of
the portion so omitted or relinquished.
It is pertinent to mention that based on the cause of action for dues under
Ex.A1 to Ex.A3 agreements, the plaintiff has chosen to file a suit
O.S.No.124 of 2012. The cause of action for the suit in O.S.No.124 of
2012 is independent and there is no question of O.S.No.124 of 2012 is
being hit by the Order II and Rule 2 of the Civil Procedure Code. It is
also pertinent to mention that the defendant has filed I.A.No.546 of 2012
in O.S.No.124 of 2012 to reject the plaint on the very same ground that
the suit is hit by the Order II Rule 2 CPC and the said application was
dismissed by the trial Court by an order dated 15.12.2013.
24.The college was opened by the first defendant on 24.08.2009.
As per Ex.A41, the plaintiff had caused a paper advertisement in Daily
Thanthi newspaper. It is the specific case of the plaintiff that after the
college opening function, the first defendant had handed over three
cheques Ex.A4 to Ex.A6 for a sum of Rs.65,78,000/- dated 15.10.2009
and had requested to present the cheques after his instructions.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
According to the plaintiff, on 09.01.2010, the first defendant paid a sum
of Rs.47,00,000/- to the plaintiff and the same is pleaded in the plaint.
There is no denial in the written statement. The cheque issued by the
first defendant under Ex.A4 to Ex.A6 were returned upaid and the
plaintiff chosen to file a criminal cases before the learned Judicial
Magistrate, Nagercoil under Ex.A10 to Ex.A12.
25.The learned Senior Counsel appearing for the plaintiff would
submit that the plaintiff continued the work without any payment from
the defendant. The learned Senior Counsel to strengthen his contention,
he has relied upon the judgment reported in 2006 5 SCC 588 in a case of
Anil Rishi Vs. Gurbaksh Singh to show that in terms of Section 102 of
the Indian Evidence Act, the initial onus is always on the plaintiff and if
he discharges that onus and makes out a case which entitles him to a
relief, the onus shifts to the defendant to prove those circumstances, if
any, which would disentitle the plaintiff to the same. The learned Senior
Counsel would further submit that any amount of evidence without
pleadings is inadmissible. To strengthen his contention, he has relied
upon the decision of the Hon'ble Supreme Court reported in (2018) 11
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
SCC 119 in a case of Ratanlal Vs. Sundarabai Govardhandas
Samusuka to show that the parties to a suit are always govern by their
pleadings, any amount of evidence or proof adduced without there being
proper pleadings, is had no and will not come rescue of the parties.
26.According to the plaintiff, the 1st defendant admits non-payment
and the plaintiff and the first defendant have had earlier transactions.
The plaintiff has assisted the defendant by purchasing lands as and when
requested by D.W.1 and the same is evident from Ex.A36 to Ex.A40. It
is seen from the Ex.A17-CRP(MD)No.2753 of 2010 filed by the first
defendant wherein it has been alleged that “it is submitted that
subsequently, we commenced construction work for six buildings in our
College campus to a total extent of 76000 sq.ft., so as to satisfy AICTE
norms”. Whereas in the written statement, the defendants have stated
that they have engaged new contractor to continue work and complete
the work in respect of two buildings, within the stipulated time. The first
defendant claims that he had engaged third party for alleged completion
of construction of the three buildings covered under Ex.A1 to Ex.A3,
which according to the defendant was abandoned by the plaintiff.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
Admittedly, the date of alleged abandonment has not been stated
anywhere. In the written statement, there is no mention about any name
of the contractor, who is said to have completed the construction.
27.In order to support the case of the first defendant with regard to
third party contractor, one Murugesan has been examined as D.W.2.
However, whose name has not been mentioned in the written statement.
In the chief examination of D.W.2, he states that he was given the job of
mason and centering related work between last week of November 2008
and 30.12.2010. The allegation that the so called third party contractor,
said to be D.W.2, completed construction before the approval in 2009
itself is not accepted one. D.W.2 deposed that the construction materials
would be purchased and given to him. D.W.2 admits that he has no
juniors or engineer and he does not know what is the extent of building
constructed by him in square feet. In support of construction said to
have been carried out through D.W.2, Ex.B1 to Ex.B56 have been
marked. It is seen from the records that those documents were not filed
along with written statement. A report of the Advocate Commissioner
filed in CRP.(MD)No.2734 of 2010 has been marked as Ex.A18. The
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
defendant has not filed any objection to the Advocate Commissioner's
report. A perusal of Ex.A18 shows details of construction made in the
building. According to the plaintiff, as per Ex.A18 clearly records the
construction made by the plaintiff. D.W.1 in his cross-examination,
admits that the contents of Advocate Commissioner's report are correct.
The first defendant trust has admitted breach of payment of 20% advance
even as on date of Ex.A1 to Ex.A3. The defendant cannot take
advantage of their own wrong. On the other hand, the plaintiff has
completed its part of obligation under Ex.A1 to Ex.A3.
28.It is pertinent to mention that Ex.A1 to Ex.A3 agreements are
admitted by the defendants. The plaintiff had originally filed the suit in
O.S.No.392 of 2010 on the file of the Sub Court, Nagercoil, for bare
injunction, restraining the defendant Trust from engaging any other
contractor. Thereafter, based on the cause of action for recovery of dues
under Ex.A1 to Ex.A3, the suit in O.S.No.124 of 2012 has been filed.
Admittedly, the first defendant has not paid the amount of Rs.
1,68,27,160/- as on date of Ex.A1 to Ex.A3, as on 29.08.2008 with
regard to 20% of payment shall be made at commencement of
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
construction work. In cross examination, D.W.1 states that the plaintiff
had agreed that Rs.55,00,000/- as advance is sufficient. In this regard,
D.W.1 has not placed any material before the trial Court. An argument
was made as to why the plaintiff continued work without any payment
from the first defendant. D.W.1 admits the non-payment of 20% of
advance amount and the plaintiff has marked documents to show that the
plaintiff and the first defendant had earlier transaction in Ex.A36 to
Ex.A40 and the plaintiff had no reason to doubt the bonofides of the first
defendant at that time.
29.In view of the above, it is clear that the plaintiff has proved the
claim of the money under Ex.A1 to Ex.A3, on the other hand, the first
defendant trust, who claims that he engaged third party to complete the
construction, failed to prove the same. The initial burden lies on the
plaintiff is proved. The defendant has not proved the specific allegation
of completion of construction only till plinth level.
30.The learned Senior Counsel appearing for the plaintiff would
submit that the plaintiff specifically pleaded that he is entitled to the suit
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
claim along with interest under “doctrine of unjust enrichment”. The
transaction covered under Ex.A1 to Ex.A3 is a commercial transaction of
construction, therefore, the interest rate may be enhanced at the rate of
12% per annum. The learned Senior Counsel to strengthen his
contentions has relied upon the judgement of Hon'ble Supreme Court of
India reported in 1997 (10) SCC 681 in Mahesh Chandra Bansal Vs.
Krishna Swardoop Singhal to show that as regards interest pendent lite
the main part of sub Section (1) of Section 34 of the Code of Civil
Procedure prescribes that interest has to be awarded at a reasonable rate.
At this juncture, it is relevant to refer the Section 34 of the Code of Civil
Procedure, which reads as follows:-
34. Interest— (1) Where and in so far as a decree is
for the payment of money, the Court may, in the decree,
order interest at such rate as the Court deems reasonable to
be paid on the principal sum adjudged, from the date of the
suit to the date of the decree, in addition to any interest
adjudged on such principal sum for any period prior to the
institution of the suit, with further interest at such rate not
exceeding six per cent, per annum as the Court deems
reasonable on such principal sum from the date of the
decree to the date of payment, or to such earlier date as the
Court thinks fit :
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
[Provided that where the liability in relation to the
sum so adjudged had arisen out of a commercial
transaction, the rate of such further interest may exceed six
per cent, per annum, but shall not exceed the contractual
rate of interest or where there is no contractual rate, the
rate at which moneys are lent or advanced by nationalised
banks in relation to commercial transactions.
Explanation I.—In this sub-section, "nationalised
bank" means a corresponding new bank as defined in the
Banking Companies (Acquisition and Transfer of
Undertakings) Act 1970 (5 of 1970).
Explanation II.—For the purposes of this section, a
transaction is a commercial transaction, if it is connected
with the industry, trade or business of the party incurring
the liability.]
(2) Where such a decree is silent with respect to the
payment of further interest on such principal sum from the
date of the decree to the date of payment or other earlier
date, the Court shall be deemed to have refused such
interest, and a separate suit therefore shall not lie.
31.It is relevant to cite judgment of the Hon'ble Supreme Court of
India reported in (2009) 11 SCC 60 in C.K.Sasankan Vs. Dhanalakshmi
Bank Ltd., wherein it has been held about the scope and application of
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
Section 34 of the Code of Civil Procedure, according tot he provisions of
Section 34, interest is to be awarded at a reasonable rate and on the
principle amount. Although amount of interest from the date of filing of
the suit, till the date of decree and thereafter, till realization is in the
discretion of Court, as is confirmed by use of the word “may” in Section
32, but such discretion has to be exercised by Court properly, reasonably
and on sound legal principles and not arbitrarily and while doing so the
Court is also to consider the parameters, scope and ambit of Section 34
CPC. The Hon'ble Supreme Court, in a case of Rampur Fertiliser Ltd
Vs. Vigyan Chemicals Industries, reported in (2009) 12 SCC 324, has
held that “in absence of any agreement or statutory provision or a
mercantile usage, interest payable can be only at the market rate and such
interest is payable upon establishment of totality of circumstances
justifying exercise of such equitable jurisdiction. In ascertaining the rate
of interest the Court of law can take judicial notice both inflation as also
fall in bank rate of interest. The bank rate of interest both for
commercial purposes and other purposes has been the subject matter of
statutory provisions”.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
32.In Ex.A1 to Ex.A3 construction agreements, there is no clause
mention about if any party violates the terms of agreement, then, the
party aggrieved would entitle the commercial rate of interest at 12% or
more, where there is no specific clause in the agreement, the plaintiff is
not entitled for 12% interest as claimed in his plaint. The reasonable rate
of interest for the period the suit was pending and subsequent interest at
6% per annum has been decreed by the Court below, on considering the
entire evidence on the case, does not require any interference by this
Court.
33.In view of the above discussions, we are of the view that there
is no reason to interfere in the impugned judgment and decree passed by
the Court below. There is no merit in these appeals and the same are
liable to be dismissed. The points are answered accordingly.
34.In the result,
i)first appeal in A.S.(MD)No.53 of 2019 is dismissed,
ii)first appeal in A.S.(MD)No.174 of 2021 is also dismissed and
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
iii)the judgment and decree dated 28.04.2018 passed in O.S.
No.124 of 2012 on the file of the District Judge, Kanyakumari District at
Nagercoil is hereby confirmed. There shall be no order as to costs.
(G.R.S., J.) & (M.J.R., J.)
24.04.2025
NCC : Yes / No
Index : Yes / No
gns
To
The District Judge, Kanyakumari District at Nagercoil.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
AS.(MD)Nos.53 of 2019 & 174 of 2021
G.R.SWAMINATHAN,J.
and
M.JOTHIRAMAN, J.
gns
Pre-Delivery Judgement made in
A.S.(MD)Nos.53 of 2019 &
174 of 2021
24.04.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 03:23:24 pm )
