G. Shakthivelu vs T.N. Raghuramaiah

C.R. Kumaraswamy, J.—This Regular First Appeal is filed under Section 96 of CPC against the judgment and decree dated 16.03.2009 passed in O.S. No. 9299/1997 on the file of the XIV Additional City Civil Judge, Bangalore, dismissing the suit for recovery of money.

The parties will be referred to with reference to the status in the trial Court.

The case of the plaintiff in the trial Court is as under:

The plaintiff is a K.P.W.D. Contractor undertaking Civil Construction work. His father Sri. V.M. Ganesh is also an experienced PWD contractor. The defendant approached the plaintiff and his father requesting them to build a residential building for him at site No. 30, Seetharamaiah Layout, Yeshwanthpura, for his self occupation. The plaintiff and his father agreed for the same. That on 16.06.1995, the defendant entered into a construction agreement with the plaintiff on the terms and conditions mutually discussed and agreed between them. The plaintiff states that in terms of the agreement, he started the work of construction. The defendant appointed an Engineer to oversee the work as and when it progressed and periodical bills for payment to be prepared by the Engineer, and payments were made periodically. Towards the cost of construction, the defendant had paid and the plaintiff had received the following amounts against the bills stated below on various dates:

The plaintiff states that when he had completed 80% of the construction work, house was ready for occupation even though some minor works were remaining. Hence, the defendant and his wife approached the plaintiff and his father requested them to allow the defendant to perform ''Pooja'' and ''Gruhapavesham'' ceremonies of the house, as the Ashada month was approaching. While making such request, the defendant assured the plaintiff that the bill towards balance work already done and the work to be done would be paid and the accounts would be settled as per final bill that would be presented later. On believing the representation of the defendant and his wife, the plaintiff allowed the defendant to perform ''Gruhapravesham'' ceremony. The plaintiff demanded for final payment, so that all the remaining work would be done soon. Believing that the defendant would settle the bill, the plaintiff completed all the remaining work including some additional works. By that time, the defendant informed the plaintiff that his daughter''s Betrothal Ceremony had been fixed in the month of November 1996 and as such both the defendant and his wife desired that the auspicious function should be held in the new house. In the mean time, the defendant gave a solemn assurance that the final bill would be settled without any further delay and without causing unnecessary inconvenience. The final bill was given during December, 1996. By that time, the defendant had changed his Engineer and as such, there was delay in settlement of the bill. The new engineer was given the task of finalizing the final bill for payment. As the marriage date was approaching, the defendant requested the plaintiff to bear with him till the marriage celebrations were over. Defendant celebrated his daughter''s marriage in the new house on 19.01.1997 and the plaintiff and his family members were also invited. Incidentally at the request of the defendant, the plaintiff permitted the defendant to occupy the house for performance of marriage.

The plaintiff states that as the defendant was postponing the payment, a date was fixed for settlement of the bill as 02.02.1997, in consultation with the Engineer. However, nothing could be done on that day. That on 09.02.1997, a cheque for a sum of Rs. 59,000/- was offered towards full and final settlement of the bill as against the bill amount of Rs. 2,61,015/-. The plaintiff refused the offer. Then a meeting was arranged with the Engineers, M/s. Shama Reddy, Mr. Shivashankar, Mr. Thimmarayappa, and other well-wishers of both the parties and the Panchayatdars arrived at a figure of Rs. 1,40,551/- towards full and final settlement of the claim which was accepted by the plaintiff. The defendant assured the panchayatdars that he would pay the said amount on the same day evening. Instead of paying the amount as agreed, the defendant offered a cheque for Rs. 59,000/- only and refused to honour the decision of the panchayatdars. The plaintiff again attempted for a settlement with the intervention of few local respectable persons known to both the parties, but it was also failed.

The plaintiff states that he was threatened with dire consequences when he went and demanded the money. The plaintiff was compelled to file a complaint before the local police against the defendant, since all his genuine attempts to get his money from the defendant failed. A complaint was registered in Crime No. 297/1997. As a counterblast to the genuine complaint, the defendant filed a complaint against the plaintiff before the police through his wife making false allegations. The complaint was registered in Crime No. 336/1997.

The plaintiff states that he is entitled to recover and the defendant is legally due in a sum of Rs. 2,61,015/- towards the final bill presented to the defendant. The plaintiff got issued a legal notice on 07.07.1997 calling upon the defendant to pay a sum of Rs. 2,61,015/- towards the balance of cost of construction. The defendant sent a reply on 04.08.1997 through his counsel denying the liability.

The cause of action for the suit arose when the construction agreement was executed between the parties and subsequently when the bills were presented and payments were made in part, and on 07.07.1997, when the final demand was made through legal notice and on 04.08.1997, when the claim of the plaintiff was denied through the reply notice, at Yeswanthpur, Bangalore.

The claim of the plaintiff is as under:

Therefore, the plaintiff sought for a judgment and decree against the defendant for a sum of Rs. 3,08,995/- together with interest on the principal amount of Rs. 2,61,015/- @ 18% p.a.

The defendant has filed written statement in the trial Court as under:

The defendant admits the allegation made in para-3 of the plaint stating that in terms of the agreement, the plaintiff started the work and he appointed the engineer to supervise the work and periodical bills were presented for payment and payments were made periodically. The defendant has paid a sum of Rs. 4,82,000/- (Four Lakhs and Eighty Two Thousand Only) and the plaintiff received the same. But the defendant states that apart, the plaintiff received a sum of Rs. 50,000/- towards the cost of construction without issuing a valid receipt for the same. In total, the plaintiff received a sum of Rs. 5,32,000/- from the defendant. This defendant further states that as per the agreement entered between himself and plaintiff, the rate of construction for one square is Rs. 28,000/- and the plaintiff constructed 15 square building. The construction cost comes to Rs. 4,20,000/-. The defendant states that he has paid Rs. 5,32,000/- to the plaintiff and it exceeds the agreed rate of construction.

The defendant states that he never requested the plaintiff to allow him for performing Gruhapravesham when the construction was at the stage of 80%. Actually, the defendant performed Gruhapravesham after he paid the entire construction amount to the plaintiff. According to his own statement, the plaintiff has received a sum of Rs. 4,82,000/- against four bills as per para-3 of the plaint. Apart from this, the defendant has paid a sum of Rs. 50,000/-. It exceeds the agreed rate of construction. So, the defendant denies that he performed Gruhapravesham when the construction was at the stage of 80%. The plaintiff has not completed the construction as per the agreement. The defendant paid excess amount to the plaintiff towards the construction for completing the same. The allegation that the defendant requested the plaintiff that the final bill will be settled either by mortgaging his old house or selling one of his house sites.

The defendant denies the allegation made in para-5 of the plaint that he was postponing the payment and a date was fixed for settlement on 02.02.1997 and a cheque for Rs. 59,000/- was offered towards full and final settlement as against the bill amount of Rs. 2,61,015/-. The meeting was arranged where engineers and other well-wishers were gathered. They arrived at a figure of Rs. 1,40,551/- in full and final settlement of the bill. He also denies about the arrangement of the panchayath. The defendant states that at any point of time, no meeting was arranged. Therefore, the question of the defendant agreeing to pay a sum of Rs. 1,40,551/- does not arise.

The defendant denies the allegation made in para-9 of the plaint that he is due in a sum of Rs. 2,61,015/- to the plaintiff towards cost of construction against the final bill and interest accrued on it. Therefore, the defendant prays to dismiss the suit of the plaintiff with cost.

Based on the above pleadings, the trial Court framed the following issues:

Does the plaintiff prove that he completed 80% of the construction work and allowed the defendant to perform "Gruhapravesham" without final settlement of bill as per para-4 of the plaint?

Does the plaintiff prove that the defendant did not settle the final bill inspite of talks meeting with defendant as per para-5 of the plaint?

Does the plaintiff prove that the defendant is liable for the suit claim amount as per para-7 and 8 of the pliant?

Does the defendant prove that he has paid Rs. 50,000/- more to plaintiff as per para-3 of the written statement?

Does the defendant prove that no meetings were arranged, no talks held as per para-5 of written statement?

Whether the plaintiff is entitled for the suit reliefs?

If so, under what order or decree?

The trial Court answered the above issues as under:

In the trial Court, the plaintiff examined himself as P.W. 1. On his behalf two witnesses were examined as P.W.s. 2 and 3 and got marked 27 documents as Exs. P1 to P27. On behalf of the defendant, his wife was examined as DW 1 and one more witness was examined as DW 2 and got marked General Power of Attorney as Ex. D1.

The finding of the trial Court is as under:

The defendant might have spent about Rs. 2,75,000/- for finishing the work left by the plaintiff. The defendants made payments directly to the labourers. His labourers have done the building work of the defendant for about one month. When he sent labourers to the building work of the defendant, the plaintiff had done about 80% of the work. The evidence is suffice to hold that the plaintiff has not completed the construction of the building as stated by him. The documents produced by the plaintiff are not sufficient to hold that he has completed the construction of the building. As per the agreement, bill has to be signed by the defendant''s engineer. Ex. P4 is a self serving bill of the plaintiff. According to it, the balance payable by the defendant is Rs. 2,61,015.29/-. Ex. P5 is the office copy of the legal notice. Ex. P6 is the reply notice of the defendant. Under the reply notice, the defendant has denied his liability to pay any amount to the plaintiff and it is stated that the defendant had made excess payment of Rs. 1,12,000/-. Ex. P7 is the wedding card. It goes to show that the defendant performed the marriage of his daughter Smt. Roopa on 19.01.1997 at Muniswamappa Kalyana Mantapa, Yeshwanthpura, Bangalore. Ex. P18 is the observation note made by P.W. 2-Ganesh at the time of inspection of the building. Ex. P19 is the typed copy of observation note of Commissioner P.W. 2-Ramesh. Ex. P20 is photostat copy of the agreement entered into between the plaintiff and the defendant. It is dated 16.06.1995. Exs. P. 23, 25 to 27-Bills are not suffice to hold that the plaintiff has constructed the building completely and the defendant is due to him in a sum of Rs. 2,61,015/-. In order to support the evidence of P.W. 1-Sri. Shakthivel and his father PW 3-Ganesh, absolutely there is no supporting evidence.

The trial Court at para-15 of the judgment observed that the evidence of P.W.s. 1 to 3 and Exs. P1 to P27 is not suffice to hold that the plaintiff completed the construction of the building of the defendant. As per the agreement, the plaintiff had to construct the 15 squares building at the rate of Rs. 28,000/- per square. For 15 squares, total cost would be Rs. 4,20,000/-. Admittedly, the defendant has paid a sum of Rs. 4,20,000/-. Therefore, the plaintiff is not entitled to claim a sum of Rs. 2,61,015/-. Therefore, the suit of the plaintiff was dismissed.

Feeling aggrieved by the same, the plaintiff has preferred this appeal.

I have heard the learned counsel for the appellant and learned counsel for the respondent. I have also perused the trial Court records.

Learned counsel for the appellant, Sri. S. Shaker Shetty submits as under:

It is undisputed fact that the parties have entered into an agreement as per Ex. P20. It is also undisputed that the defendant occupied the premises after completion of the building. The construction rate per square as per the agreement is admitted. The charges for extra work should be separately paid by the defendant. As per the admission of the defendant himself in the reply notice at Ex. P6, he had occupied the premises after completion of the building. The trial Court ought to have taken into account this piece of evidence. Therefore, as per final bill, the defendant is liable to pay a sum of Rs. 2,61,015/-. The trial Court ought to have noticed that the respondent who dealt with the matter did not enter into the witness box and gave evidence. Therefore, the trial Court should have drawn adverse inference. The question of completing the building work through D.W. 2-Electrical Contractor would not arise. Besides, D.W. 2 did not produce a piece of paper before the Court below to show that he has done the work nor he has received any amount from the defendant. Therefore, his evidence should have been rejected.

Learned counsel for the appellant further submits that the Court Commissioner was appointed by the trial Court. The Commissioner, after notice to the parties, has measured and given a report. When the Commissioner entered into the witness box, the respondent did not cross-examine him. The Court below ought to have drawn adverse inference against the defendant for non-examination of the Engineer who has prepared the bill and non-production of the agreement on which they have taken endorsement for payment.

Learned counsel for the appellant also submits that Ex. P20 is the agreement. There is admission in the reply notice about the completion of the building. Para-7 of the reply notice indicates that the defendant took possession after entire construction is finished and after paying full construction amount as per the agreement. As per the agreement, amount paid is Rs. 4,82,000/- and the amount to be paid is Rs. 2,61,015/- with interest.

Learned counsel for the respondent supports the impugned judgment and decree. She has also filed the written arguments. She made submission as under:

The Trial Court dismissed the suit after appreciating both oral and documentary evidence. The Trial Court has come to a conclusion that there is a breach of contract. As per Section 120 of the Indian Evidence Act, 1872, husband and wife are competent to give evidence. The appellant has raised the objection regarding the examination of D.W. 1 as Power of Attorney holder in the Trial Court and his objections were overruled. He has not specifically challenged this aspect in this appeal proceedings i.e. not mentioning the same in the appeal memo. The Engineer concerned was not working at the time of preparing the final bill. P.W. 2 - the Court Commissioner was not examined. The Trial Court ignored his report because the plaintiff omitted to examine the Engineer. In other words, even if Commissioner and Engineer were examined, the conclusion reached by the Trial Court will not vary. The Trial Court after appreciating oral and documentary evidence, dismissed the suit. The appellant though contended in reply notice - Ex. P6, the defendant admitted that he took possession of the house after construction is completed, this admission is not confronted to D.W. 1. With regard to termination of the agreement, there is no stipulation mentioned in Ex. P20 - Photostat copy of the agreement.

In this appeal, the point that arises for my consideration is that-

"Whether the impugned judgment calls for any interference?"

My answer to the above point is as under for the following reasons:

The plaintiff has filed his evidence by way of affidavit. He has stated that he is a PWD contractor carrying out Civil Construction work and his father is also an experienced P.W.D. contractor. They know the defendant for a long time. The defendant is also an Engineer in Bharat Electronics Ltd., Bangalore. He states that the defendant approached him and his father in 1995 and requested them to build a residential house on his site No. 30, Seetharamaiah Layout, Yeshwanthpur, Bangalore-560 022, for his personal occupation. After the terms were discussed, they have agreed for construction of the house. A construction agreement was entered into between the plaintiff and the defendant on 16.06.1995. The original agreement is with the defendant and a copy of the same is retained by him.

The plaintiff further states that as per the agreement, he started the work and the defendant appointed an Engineer to supervise and observe the progress of the work at regular intervals and he used to prepare the bills for payment and accordingly the payments were made to him. The defendant had paid the following amounts as per bills:

He states that after completion of about 80% of the work, the house could be occupied, though some minor work was remaining. The defendant and his wife approached him and his father requesting to allow the defendant to perform "Pooja" and Gruhapravesham" ceremonies on 13.06.1996 in the new house, as the "Ashada" month was approaching. However, the defendant assured him that the Bill amounts towards the balance work done and also the works to be done would be paid. The defendant requested him somehow or the other to finish all the remaining works and the final bill would be settled either by mortgaging his old house or by selling one of his house sites. Believing the version of the defendant, he completed the remaining works including additional works not included in the agreement spending his own money. At that time, the defendant informed the plaintiff that his daughter''s "Betrothal Ceremony" was fixed in November, 1996 and as such, both the defendant and his wife desired that the auspicious function should be held in the new house. The defendant gave a solemn assurance stating that the final bill would be settled without any further delay. The final bill was submitted during December, 1996, by that time, the defendant changed his Engineer and there was a delay in settlement of the Bill as the new Engineer was given the task of finalizing the final bill for payment. As the marriage of his daughter was fixed, the defendant requested the plaintiff to wait till the marriage celebrations were over. The marriage was celebrated on 19.01.1997 in the new house and the plaintiff was also an invitee to the same.

That on 09.02.1997, a cheque for Rs. 59,000/- was offered to the plaintiff towards full and final settlement as against the bill for Rs. 2,61,015/-, which he refused. Thereafter, a meeting was arranged with Engineers, M/s. Shama Reddy, Mr. Shivashankar, Mr. Thimmarayappa and other well wishers of both the parties. In that panchayath, the final figure towards full and final settlement was arrived at Rs. 1,40,551/- which was accepted by the plaintiff. However, the defendant agreed before the Panchayathdars that he would pay the amount on the same evening. Instead of paying the same, the defendant offered a cheque of Rs. 59,000/- only against the decision of Panchayathdars. His subsequent effort for a settlement through local respectable persons failed. He got issued a legal notice on 07.07.1997 demanding payment, but the claim was denied.

He states that he is entitled to get a sum of Rs. 2,61,015/- towards the final bill. He got issued a legal notice on 07.07.1997 demanding payment, but the claim was denied. He got appointed a Commissioner for the purpose of ascertaining the additional works done. He has submitted his report. The defendant has not submitted any objections to the same. Therefore, he sought for a judgment and decree against the defendant for a sum of Rs. 3,08,995/-.

He has produced the Photostat copy of construction agreement. The trial Court did not mark the same, since it was a Photostat copy. He has issued a notice as per Ex. P9 to the defendant and his advocate for producing the original agreement. The defendant has not produced the same.

During the cross-examination, he states that Raghuramaiah entered into an agreement with his father. In the agreement, Raghuramaiah agreed to pay a sum of Rs. 280/- per sq.ft. for the construction of plinth area. Later, Raghuramaiah produced a rough plan to his father. As per the working plan, plinth area is 15 Sqs. Time for completion of the building is not mentioned in the agreement. He admits that agreed rate of construction for one Square is Rs. 28,000/-. He denies the suggestion put to him that 10 months'' time is stipulated in the agreement for construction of building. On the backside of the original agreement, he has signed and mentioned the amount taken from Raghuramaiah. The amount mentioned in para-3 of the plaint is written on the backside of original agreement. A suggestion was put to him that he has received a total sum of Rs. 5,32,000/-, for that, he has stated that he has received a total sum of Rs. 4,82,000/-. Without seeing the original agreement, he cannot say the dates of receipt of amount. After completion of 80% of the work, the defendant and his wife came to him and asked to complete the construction work before Ashada. In the year 1996, he has completed the construction of the building. He has produced running bills and final bills. Exs. P23, P25, P26 and P27 do not bear his signature and the signature of the defendant. On Ex. P24, he has not obtained the signature of the defendant. In the year 1996, in the settlement, the defendant had agreed to pay a sum of Rs. 1,41,000/- and on that date, he offered a cheque for Rs. 59,000/-. He refused it and asked him to pay Rs. 1,41,000/-. This dispute was brought before the Panchayatdars. The panchayatdars had not made any observation in writing. It is true to suggest that when the Commissioner visited the house, the defendant was residing in that house.

PW 2-Sri K.G. Ramesh is an Engineer and a Government approved Valuer of immovable properties. He was running a office under the name and style of ''Sri. Eshwar Associates'', at No. 32 (old No. 47) Lalbagh Main Road, Bangalore-560027. Memo of instructions was filed by both the parties. After he was served with the commission warrant, he visited the schedule property on 28.03.2002 after issuing notices to both the parties and their respective advocates. Both the parties and their advocates were present at the schedule property on that day at about 3.30 P.M. Necessary measurements were taken as per memo of instructions and he has taken the signatures of all the parties on the spot mahazar drawn by him after conclusion of the commission work at about 5.30 P.M. He states that on 29.05.2002, he submitted his report to the Court. This witness was not cross-examined by the defence counsel.

PW 3-Sri V.M. Ganesh is the father of the plaintiff. He has deposed that he is a PWD contractor. The construction agreement was executed between the defendant and the plaintiff. The original agreement was retained by the defendant and photostat copy of the same was given to the plaintiff. He has deposed that the defendant had appointed an Engineer of his own to oversee the work during construction and payments used to be made periodically to the plaintiff as and when the work progressed. All the payment details were entered on the original construction agreement. He also used to go frequently to the site and supervise the construction work. To his knowledge, the defendant had paid total sum of Rs. 4,82,000/- on various dates. He has further deposed that when 80% of the work was over and certain additional works were remaining, the defendant and his wife approached the plaintiff and requested him to allow them to occupy the newly constructed house to perform ''Pooja'' and ''Gruhapravesham'' as the ''Ashada'' month was approaching and assured that the bill amount for the work already done and the work to be done would be settled as per the bill that would be submitted later. Believing the representation of the defendant and his wife, the plaintiff allowed them to perform "Gruhapravesham". The defendant agreed to make payment on 02.02.1997 after consulting his engineer. As against the final bill of Rs. 2,61,015/-, the defendant offered a cheque for a sum of Rs. 59,000/- which the plaintiff refused. Then a meeting was arranged with defendant''s engineers, M/s. Shama Reddy and Shivashankar. Along with them, he was also present with the plaintiff. The bill was scrutinized by the engineer and others and all of them agreed, to a sum of Rs. 1,40,551/- towards full and final settlement of the bill. The defendant offered the same cheque for Rs. 59,000/-, but it was refused by the plaintiff. In the agreement, the period of construction has been mentioned as 10 months. In the agreement, construction area is mentioned as 14. 3/4th squares. Construction of one square costs about Rs. 28,000/-. In the agreement, there is a provision for payment of money stage by stage in 5 installments. The plaintiff received the money from the defendant on four occasions. The defendant has paid a total sum of Rs. 4,82,000/-. He does not remember how much amount he paid in 1st, 2nd, 3rd and 4th installments. He has got bills to show that he has constructed 80% of the work. He has purchased the building materials and he has got receipts for having purchased the same. He had agreed to receive a sum of Rs. 1,40,000/- instead of 2,60,000/-.

DW 1-Smt. Shanthamma is the Power of Attorney Holder of the defendant. She has deposed in her evidence that the defendant is her husband and he is not keeping well and he is not able to come to the Court. The plaintiff is a Contractor undertaking civil construction works. His father is also a Contractor. The plaintiff and his father are known to the defendant for many years. The defendant is also an Engineer working in Bharath Electronics Limited, Jalahalli, Bangalore. The defendant entered into a construction agreement with the plaintiff on the terms and conditions mentioned in the agreement. The plaintiff agreed that he would receive a sum of Rs. 4,82,000/-, but the defendant paid another sum of Rs. 50,000/-. The plaintiff has not issued any valid receipt towards the same nor endorsed in the said agreement dated 16.06.1995.

She states that as per the agreement, the rate of construction for one square is Rs. 28,000/-, including extra outside and inside constructions to be made. The agreement itself clearly shows that the agreed rate of construction is Rs. 28,000/- per square. The total construction area is 15 squares and the plaintiff had to construct 15 square building as agreed. When completed, the cost of construction would be Rs. 4,20,000/-. The defendant paid a sum of Rs. 5,32,000/- to the plaintiff and it exceeds the agreed rate of construction. The plaintiff himself agreed that he has received a sum of Rs. 4,82,000/- against four bills. The plaintiff received a total sum of Rs. 4,82,000/- on different dates apart from a sum of Rs. 50,000/-. In all, the plaintiff received a sum of Rs. 5,32,000/- which exceeds the agreed rate of construction by the plaintiff.

She further states that the plaintiff has not completed the construction as per the agreement, though the defendant has paid excess amount to the plaintiff towards construction. The defendant is not liable to pay any amount to the plaintiff. At any point of time, no meeting was held at the instance of the plaintiff before any Panchayat members and the question of settling the matter by the Panchayat members in a sum of Rs. 1,40,551/- did not arise at all. At any point of time, the defendant never agreed to pay the said amount towards full and final settlement to the plaintiff. The defendant paid excess amount to the plaintiff towards in-complete construction made by him. The defendant is not legally due any amount to the plaintiff as claimed in the legal notice dated 07.07.1987. The defendant is not liable to pay any interest at Rs. 46,980/-.

She further states that apart from Rs. 4,82,000/-, the plaintiff received another sum of Rs. 50,000/- on 24.01.1996. But the same is not endorsed in the said agreement by the plaintiff. Inspite of requests made by the defendant to the plaintiff to come forward and finish the remaining works, he has utterly failed to do so. The defendant completed the construction work by spending further amount and made Gruhapravesham before Ashada month in 1996.

She further states that as the plaintiff failed to finish the remaining construction work and complete the same, the defendant himself completed the construction work at his cost. The Court Commissioner visited the property on 28.02.2002 and gave his report. But prior to 2002, the defendant got completed the remaining construction work by spending his own amount in the year 1996 itself. So, the Commissioner report is not applicable in the above said case in any manner.

During the cross-examination, she has stated that mental condition of her husband is not good. It is true that her Site number is 30 and its extent is 60 x 34 feet. She denies the suggestion put to her that her site was in a low level. She appointed one Mr. Shyama Reddy, who is a Consultation Engineer, for the construction of their house. On 16.06.1995, the construction agreement took place between her husband and the plaintiff. Original agreement is with the plaintiff and its copy is with them. One Photostat copy of the agreement is given to them. The plaintiff made endorsement regarding receipt of amount and put his signature. In the agreement, it is mentioned the area in which the construction has to be made and the cost of construction. She does not know as to whether there is a provision in the agreement regarding extra construction and the amount payable towards it. She admits that for the extra work, they had to bear the expenses. They have made total payment of Rs. 5,32,000/-. On 24.06.1996, she personally paid a sum of Rs. 50,000/- to the plaintiff.

In order to complete the balance work, she appointed one Mr. Eshwar, Contractor, who completed the construction. There is no written agreement between Eshwar and her husband. He completed the construction work within two months. They have made payment for it.

DW 2-Sri. Eshwar, Electrical Contractor, has deposed that in the month of June 1995, the defendant and his wife approached him and they wanted to construct a residential building to the extent of 15 squares. He has deposed that the plaintiff received a total sum of Rs. 5,32,000/- from the defendant from time to time, but he stopped the construction work from February, 1996. At that time, 60% of the construction work was completed and 40% of the work was not completed. The defendant engaged the labourers and completed the construction work in the month of May 1996.

During his cross-examination, he admits that the plaintiff and his father are PWD licensed Civil Contractors. He states that he has not seen the construction agreement entered into between the plaintiff and defendant. He is a licensed civil and electrical PWD Contractor. As per the request of the defendant, he sent his labourers for doing civil work. The plaintiff had taken power service order. DW 2 had not deposited any amount to KPTCL and he has not maintained any account in respect of work of the defendant. The defendant might have spent about Rs. 2,75,000/- for finishing the work. The defendant directly made payment to the labourers. DW 2 was not involved in it. His labourers have done the work for about 4 months. When DW 2 sent his labourers, 80% of the work was completed.

Ex. P4 is the final bill dated 19.02.1997. Ex. P5 is the copy of legal notice dated 07.07.1997 issued by the plaintiff. Ex. P6 is the reply to the legal notice. Ex. P9 is the notice requesting to produce original construction agreement dated 16.06.1995 executed between the plaintiff and defendant which was in possession of the defendant. Ex. P10 is the order for having appointed the Commissioner for inspection of the house. Exs. P11, P12 and P13 are the notices issued by the Commissioner to the parties. Ex. P18 is the Commissioner report. Ex. P. 20 is the photostat copy of the construction agreement.

Ex. P. 23 is the bill dated 14.11.1995 which reads as under:

Bill Dated 14.11.1995

Construction of building in site No. 30 at Seetharamaiah Layout, Yeshwanthapur, Bangalore-22.

Payment schedule 20% for 1459.37 sq.ft. @ Rs. 56/- per sq.ft.

Plinth wall of thick wall - 264.98 sq.ft. @ 38/- per sq.ft. - Rs. 10,069.24

Plastering for Parafoot wall - 609.47 sq.ft. @ 5.50 per sq.ft. - Rs. 3,352.08

1/2" thick Parafoot wall - 28.75 sq.ft. @ 24.00 per sq.ft. - Rs. 730.00

Plastering for 4 1/2" thick wall - 63.25 sq.ft. @ 5.50 per sq.ft. - Rs. 347.87

Head Room brick wall - 249.56 sq.ft. @ 38.00 per sq.ft. - Rs. 9,483.28

Land Room plastering outside with - 527.72 sq.ft. @ 5.00 per sq.ft. - Rs. 2,902.73

AC sheet roofing for hard room - 97.50 sq.ft. @ 18.00 per sq.ft. - Rs. 1,755.00

L Angle 2" X 2" X 1/4" 10 sq.ft. - L.S. - Rs. 375.00

Earth work for compound wall and sump tank - 1081.99 or 1082 sq.ft. @ 10.00 per sq.ft. - Rs. 1,082.00

Soiling with round filling - 79.37 sq.ft. @ 14.00 per sq.ft. - Rs. 1,111.18

Monitoring and laying plain concrete (1:4:8) - 320.99 sq.ft. @ 14.00 per sq.ft. - Rs. 4,493.86

S.S. Masonry formulation - 701.99 sq.ft. @ 21.00 per sq.ft. - Rs. 14,741.79

Monitoring and laying plinth concrete (1:2:4) - 163.87 sq.ft. @ 14.00 per sq.ft. - Rs. 6,554.80

Monitoring and constructing partition walls:

Sump water tank - 124.00 sq.ft. @ 24.00 per sq.ft. Rs. 2,976.00

Mesh wall to tank - 162.18 sq.ft. @ 38.00 per sq.ft. - 6,162.84

Taper mesh paint - 163.87 sq.ft. @ 42.00 per sq.ft. - Rs. 6,882.54

Providing and fixing balcony etc.,-228.74 sq.ft. @ 50.00 per sq.ft. - Rs. 11,437.00

Providing and constructing partition wall, store room racks, fixing providing -L.S.-Rs.2,500.00

IV AND PART BILL DATED 3.12.1995

Mosaic tiles flooring deductions and labour charge flooring Area: 798.40 sq.ft. @ 10.50 per sq. ft.-Rs.

Mosaic tiles area - 200.00 sq.ft.-10.50 per sq.ft. -Rs.

Ex. P. 24 is the bill for laying of soiling and foundation with plinth slab which reads as under:

BILLS FOR LAYING SOILING AND FOUNDATION WITH PLINTH SLAB

As per the payment schedule payment given at Rs. 25/- of plinth area basis - 1459.37 X 70.00 = Rs. 1,02,155.90

Extra item of work done to building is as follows:

1) For foundation, laying of soiling in granite with sand filling and watering

2) Extra two courses of size stone masonry foundation filling in (M1:8)

R.C.C. Plinth Slab with c.c. (1:2:4) steel required for plinth slab for 12 mm and 6 mm including steel for curtain, binding work and transportation

Ex. P. 25 is the second part of the bill which reads as under:

II PART BILL

1 plinth area as per 1st bill area 15% of

The amount up to plinth level:

1,459.37 sq.ft. @ 42.00 - Rs. 61,293.54

Two courses of size stone masonry foundation:

RCC plinth slab difference thickness 2" thickness

Ex. P. 26 is the bill for plinth Slab fabrication, binding wall partition, which reads as under:

Plinth Slab fabrication, binding wall partition

RCC atta with RCC 1:2:4 including steel 10 mm and 6 mm in passage

RCC staircase with concrete 1:2:4 including Waist slab 5" thickness including landing Main bar 12 mm distribution 6 mm at 8" c/c

Deduction area of Chejjauh Atta

Ex. P. 27 is the description of construction of building in Seetharamaiah Layout, near LIC Colony, Yeshwanthapur, Bangalore-22, which reads as under:

Ex. P. 20 is the agreement for construction of the building entered between Sri. T.N. Raghuramaiah-owner and Shakthivel-Contractor, which reads as under:

The Owner has agreed to give the contractor, the proposed building on contract consisting of Ground Floor and Total plinth area is ...........Sq. ft. at the rate of Rs. 280/- (Rs. Two Hundred and Eighty only) per sq.ft. Total amount of plinth are of building to be Rs. .......... (Note - The plinth area will be measured after the completion of the building work and payable for actual executed.

The proposed building of the house to be carried out as per the following estimate for the construction of ground floor given by the Contractor along with the specifications is enclosing in agreement

a) Building plan as per owner''s approval and prepared by Owner as per his directions.

b) The Ground Floor of building-consists of One Verandah, Hall, Dining Hall, Two bedrooms with attached bath, kitchen, Bath and Toilet.

Earthwork-3 width - 3 depth.

Proving and laying 40 mm and downsize jelly for foundation laid in 15 cms. Thick including curing in cement concrete 1:4:8 (6'' thick)

Providing and constructing size stone masonry hammer dressed in course not less than 20 cms. High with bond stones. Including curing 1:8 cement mortar for foundation, 2 1/2" width 8" height-1 course, 2'' width, 8" height-2 courses, 1 1/2 "width, 8" height-1 course, basement size stone masonry in dressed stones using 1 1/2" W X 8" H per course-two courses.

Providing and laying plinth concrete using 1:3:6 proportion size 1 1/2" width, 4" height only plain concrete, without steel.

Brick wall-9" thick brick wall and height average 10" feet (Plinth level upto roof slab bottom) providing and constructing with table moulded bricks of 1:8 Committee including curing etc., and wherever necessary 4 1/2 thick inside partition wall will be construction.

RCC works-a) Providing and constructing of RCC through lintel 6" thick of proportion 1:2:4. The steels details are bottom laying-2 Nos. 10 mm crank bar of 1 No. and 6 mm of strips of 6" c/c in open space and 8" above the wall.

a) Providing and constructing of RCC cut chejjas average 3" thick of proportion 1:2:4 including plastering 1:4 10 mm-6" distance (main-6mm-8" distance (distribution).

b) Providing and constructing of RCC atta 3" thick of proportion 1:2:4 including plastering both side atta for bedroom 1 1/2" width and for bathroom top full area.

c) Providing and constructing of RC roof slab 5" thickness of proportion 1:2:4 including centering curing etc., 10 mm at 6" distance (main rod) 6 mm at 8" distance (distribution).

Wood works

a) Front door will be provided with teakwood size - 3'' X 7'' X 1 No. frame section - 5'' X 2 1/2", Shutters - 5" X 1 1/4" thick by planks will be 1" thickness.

b) Pooja room will be provided with teak wood-size 2 1/2" X 7" - 1 No. frame section 4" X 2 1/4" - shutter - 4" X 1 1/4" thick by planks will be 3/4" thickness.

c) The remaining door sand window frames and shutters will be provided with mathi and hone wood.

Bedroom - 3'' X 7'' X 2 Nos. Section 5" X 2 1/2" mathi wood.

Bedroom - 2 1/2'' X 7'' X 2 Nos. Section 4" X 2 1/2" mathi wood.

For door hone wood railings 4" X 1 1/4" thick and planks will be 3/4" thickness.

Window frame size as per drawing consists of mathi wood frame section 4" X 2 1/2" hone wood, shutter will be 3" X 1 1/4" and 1" X 1/4" flat and dia 100 mm bar with pin headed glass (the cost for grills for windows will be borne by owner if selected).

d) Two bedroom consists of each ordinary only one wardrobes clear inside size 3'' X 6'' consisting of 3/4" commercial board ordinary shelf. Including teakwood frames on the outer edge. Enamel painting for inner sides and outer doors.

e) Hall consists of only one showcase with teakwood frames and required sliding glasses with necessary fittings. Inside design partitions in 6 mm glass or 12 measurement ply wood (Commercial). Showcase-6'' X 4 - 1 No.

Plastering: Providing plastering Committee 1:6 to internal wall smooth and rough for outside walls including sponge finishing curing etc., complete plastering to ceiling with Committee 1:3 necessary scaffolding curing etc.,

Flooring: providing and laying grey coloured mosaic tiles (Proved colour by owner) to flooring of Jayanthi factory over 1:8 Committee including three coats of machine polish - one coat of wax polish, current to be provided by the owner. (Colour other than grey the difference of cost to be paid by the owner)

a) Providing kitchen cooking platform with cuddapah stone (if granite stone wanted the cost have to be borne by the owner) providing glazed tiles plain up to 2 1/2" height above platform (Western company)

b) Providing glazed plain colour tiles western company approved colour by owner to 1 No. bathroom upto 5'' height and for one no toilet upto 3'' height (if design the charges cost have to be borne by the owner).

Water supply and sanitary: providing water supply 3/4" GI pipe concreting from sump tank or main line (any one) to tank and delivery line 3/4" from tank to kitchen - 1 No. bathroom-2 Nos. lavatory - 1 No. wash basin - 1 No. connection (wash basin will be provided by the owner only). Gully drop or Nany drop 2 Nos., including all necessary materials and fittings provided by contractor for internal works in building up to.............at compound end.

Electrical - 1. Lighting points - 16 Nos.

Wall pug points - 6 Nos.

Heating points - 2 Nos.

Fan points - 4 Nos. including all necessary fitting will be provided.

Painting and distemper works-

a) Providing two coats of distemper of water base out inside wall over one coat of wall primer including patti, etc.,

b) Providing two cots of snowcem to outside walls over one coat of lovelycem including curing.

c) Painting to all wood works for door and windows with two coats of paint and over one coat of wood primer.

d) Polishing to teakwood works for main door and pooja room doors.

The cost of plinth area for one square is Rs. 28,000/- (Rupees Twenty Eight Thousand Only) which includes all the items mentioned above.

Note:

Extra works of cost will have to be borne by owner. Outside plinth area works like KEB deposits, Sanitary and water supply connection and supplying charges have to be paid by the owner only.

EXTRA WORKS

EXTRA WORKS

If undertaken any extra work. The payments have to be made against completion of the extra works stage by stage, as building work stages.

Sump tank, 2. over tank, 3. Compound and flagging - the cost will be borne by the owner at prevailing market rate (Note: if any extra items, other than the above mentioned, market rates should be given)

The building will be handed over, only after clearing the payment and final settlement.

On careful perusal of Ex. P. 20, it is clear that the parties have agreed that for extra work, extra payment has to be made stage by stage. D.W. 1 has clearly admitted in her cross-examination that for extra construction, they have to bear the expenses. She deposed that she does not know as to whether any rate is prescribed in the agreement for extra work. She admits that extra payment has to be made by them stage by stage. There is also positive evidence to the effect that there is no written agreement between the Eshwar, the Contractor and her husband.

DW. 2 has clearly admitted in his cross-examination that as per the request of the defendant, he sent labourers for doing civil work. The plaintiff had taken power service order. DW. 2 had not deposited any amount to KPTCL. DW. 2 was not involved in the construction work and the defendant made payment to the labourers. When he sent labourers, already 80% of the work was over. He does not know as to how many plug points, lighting points and fan points were there in the house.

Ex. P. 5 is the legal notice dated 7.7.1997 issued to the defendant by the plaintiff. The plaintiff has stated in his notice that the defendant has deliberately held the money payable to him. In reply to this notice, the defendant states that he took possession of the building after entire construction is finished and after paying full construction amount as per the agreement. From this, it is clear that, in the reply notice, the defendant has taken the possession of the house after it was fully constructed. He also asserts that he has paid full construction amount. As per the agreement, the plaintiff had to construct 15 square building and he is entitled to receive a sum of Rs. 4,20,000/-. But Ex. P. 20-agreement reveals that several items of extra work namely earth work, size stone masonry, concrete works, brick wall, parapet wall, balcony, staircase, steps, plastering (outside rough), grill work, flagging concrete use, roof top water proof muddy, mesh work including steel and soiling with sand filling for foundation have been done. The defendant has clearly admitted in his reply notice that after completion of the construction work, he has occupied the said premises.

Ex. P. 18 is the observation made by the Commissioner in the presence of the parties and their advocates, which reads as under:

Extra works are also mentioned in the report, which reads as under:

These are the extra works that has been carried out as per Ex. P. 18.

The rate of construction as per the agreement is Rs. 28,000/- per square i.e., Rs. 280/- per sq.ft. Though DW. 1 has stated in her evidence that the rate specified in the agreement is inclusive of extra works, on perusal of the agreement, it is not so. For extra work, extra payment has to be made by the defendant as agreed between the parties. The observation of the Commissioner indicates that there are many extra works that are carried out by the plaintiff/contractor. Though it is the case of the defendant that he carried out the extra works, none of the persons have been examined to substantiate the same. D.W. 2 simply states that he provided labour. No labourers have been examined in this case. No plausible explanation is forthcoming as to why the defendant has not entered into the witness box, on the other hand, his wife has entered into the witness box to give evidence. Therefore, it is the contention of the learned counsel for the appellant that since the defendant has not entered into the witness box, an adverse inference has to be drawn against him.

In support of his contention, he has relied on the decision of the Supreme Court in the case of Vidhyadhar Vs. Manikrao and Another, AIR 1999 SC 1441 : (1999) 2 JT 183 : (1999) 2 SCALE 93 : (1999) 3 SCC 573 : (1999) 1 SCR 1168 : (1999) 1 UJ 665 : (1999) AIRSCW 1129 : (1999) 3 Supreme 102 , wherein Head Note (A) reads as under:

(A) Evidence Act (1 of 1872), S. 114-Adverse inference-Party to suit-Not entering the witness box - Give rise to inference adverse against him.

Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct. In the instant case defendant No. 1 alleged that the sale deed executed by defendant No. 2 in favour of the plaintiff, was fictitious and the whole transaction was a bogus transaction as only Rs. 500/- were paid as sale consideration to defendant No. 2. But this plea was not supported by defendant No. 1 as he did not enter into the witness box. He did not state the facts pleaded in the written statement on oath in the trial court and avoided the witness box so that he may not be cross examined. This, by itself, is enough to reject the claim that the transaction of sale between defendant No. 2 and the plaintiff was a bogus transaction."

I have carefully examined Ex. P. 20-construction agreement entered between the plaintiff and the defendant and also Ex. P. 18-observation of the Commissioner. The defendant has clearly admitted in the reply notice that he took possession of the building after entire construction was finished and after paying full construction amount as per the agreement. It is contended by the learned counsel for the appellant that the wife has given evidence instead of her husband, therefore, an adverse inference has to be drawn. It is contended by the learned counsel for the respondent that in view of Section 120 of the Evidence Act, neither husband nor wife can give evidence. Husbands and wives are competent witnesses for or against each other in Civil as well as the Criminal proceedings. Decision cited supra is not applicable to the present case. Therefore, there is a merit in the submission of the learned counsel for the respondent. Since the trial Court has ignored the report of the Commissioner, decision rendered by the trial Court is not valid. Admission in the reply notice has not been confronted to DW. 1. Having failed to examine the Commissioner and also making a clear admission in the reply and admission being a substantive piece of evidence and it is best evidence against the party making it and the party failing to show that it is not true, learned counsel for the respondent taking up a contention that admission was not confronted to DW. 1 has no merit. Though notice was issued to the defendant to produce the original agreement, wherein the details of the agreement have been indicated, the same has been withheld by the defendant. No plausible explanation is offered as to why the same was withheld. On the other hand, photostat copy of the agreement was marked through plaintiff, after the defendant declined to produce the same. Though the defendant asserts in the reply notice that he has paid a sum of Rs. 5,32,000/- to the plaintiff, in the notice issued by the plaintiff, it is indicated that a sum of Rs. 4,82,000/- was paid by the defendant. The rate of construction agreed between the parties is Rs. 28,000/- per square. Construction is about 15 squares. So far as the payment made by him regarding extra work is concerned, there is no documentary evidence or proof produced by the defendant. Several extra works have been carried out by the plaintiff as indicated in the observation report of the Commissioner. The trial Court erred in not appreciating the evidence in respect of extra work, viz. masonary, RCC, plinth, slab, atta for passage, staircase, RCC steps, roof, balcony, extra roof, reinforcement, steel, outhouse, brick wall, parapet wall, headroom with AC roofing, sump-tank, mess-work, front balcony, balcony with railings, cudappa rack for storeroom. The plaintiff has stated in his evidence that there was a settlement and the defendants agreed to pay Rs. 1,41,000/-. The defendant has denied this. He has also deposed that defendant offered a cheque for Rs. 59,000/- and he declined to receive the same. There is an escalation in the rates of the construction materials. The materials and evidence placed on record reveals that the plaintiff has performed some extra work. The plaintiff has stated that there was a full and final settlement for a sum of Rs. 1,41,000/-. Out of the claim of Rs. 1,41,000/-, there is some exaggeration. If we remove cost incurred to extra work greater than true, then the plaintiff is entitled for a sum of Rs. 1,00,000/- with interest at 6% p.a. from the date of the suit till the date of realization. Accordingly, the above mentioned point is answered.

In view of the above discussion, I pass the following:

This Regular First appeal is allowed.

The judgment and decree dated 16.3.2009 passed in O.S. No. 9299/1997 by the XIV Additional City Civil Judge, Bangalore, is hereby set aside.

The suit is decreed in part. The plaintiff is entitled to recover a sum of Rs. 1,00,000/- from the defendant with interest at the rate of 6% per annum from the date of the suit till the date of realisation with costs.