Bangalore District Court
In Sri Pandurangan vs In 1. Smt. Shoba on 7 October, 2017
IN THE COURT OF THE X ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY (CCH-60)
Dated this the 7th day of October 2017
: PRESENT :
Sri B. B. Jakati, B.A., LL.B., (Spl.)
LIX ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY
O.S.Nos.7476/2015 & 9521/2015
PLAINTIFF IN Sri Pandurangan,
O.S.No.7476/15: S/o Sri M. Chinnappa Naidu,
Aged about 55 years,
R/at No.72,
2nd Floor, Sanjeevappa Layout,
Jai Bharath Nagar,
Bengaluru.
PLAINTIFF IN Sri Kuppuswamy,
O.S.No.9521/15: S/o Late Govindaswamy Naidu,
Aged about 70 years,
Working at No.12,
2nd Cross, 515 Colony,
New Thippasandra,
Bengaluru - 75.
DEFENDANTS IN 1. Smt. Shoba,
O.S.No.7476/15: W/o Subramani
Aged about 48 years,
R/at No.54/A,
1st Cross, Venkateshwara Colony,
New Thippasandra,
Bengaluru - 75.
2. Sri Kuppuswamy,
2 O.S.Nos.7476/15 & 9521/15
S/o Late Govindaswamy Naidu,
Aged about 70 years,
Working at No.12,
2nd Cross, 515 Colony,
New Thippasandra,
Bengaluru - 75.
DEFENDANT IN Sri Pandurangan,
O.S.No.9521/15: S/o Sri M. Chinnappa Naidu,
Aged about 55 years,
R/at No.72,
2nd Floor, Sanjeevappa Layout,
Jai Bharath Nagar,
Bengaluru.
IN O.S.No.7476/2015
Date of institution of the : 28.08.2015
suit
:
Nature of the suit Money suit
Date of commencement of : 05.02.2016
recording of the evidence
Date on which the : 07.10.2017
Judgment was pronounced.
: Year/s Month/s Day/s
Total duration
02 01 10
IN O.S.No.9521/2015
Date of institution of the : 23.11.2015
suit
:
Nature of the suit Money suit
3 O.S.Nos.7476/15 & 9521/15
Date of commencement of : ----
recording of the evidence
Date on which the : 07.10.2017
Judgment was pronounced.
: Year/s Month/s Day/s
Total duration
01 10 15
(B.B. Jakati)
LIX ACC & SJ
B'LORE.
COMMON JUDGMENT
The plaintiff in O.S.No.7476/2015 has filed the suit for
recovery of a sum of Rs.23,81,430/- from the defendants
along with interest. The plaintiff in O.S.No.9521/2015 has
filed the suit for recovery of Rs.5,00,000/- with interest from
the defendant. The plaintiff in O.S.No.7476/2015 is the
defendant in O.S.No.9521/15. The plaintiff in
O.S.No.9521/15 is the defendant No.2 in O.S.No.7476/2015.
The defendant No.1 Smt. Shobha in O.S.No.7476/2015 is the
daughter of the defendant No.2 in the same suit and she is
not party in O.S.No.9521/15.
4 O.S.Nos.7476/15 & 9521/15
2. The case of the plaintiff in O.S.No.7476/2015 in
brief is that, Smt. Shobha is the owner and in possession of
property bearing No.12 situated at 2nd cross, 515 colony, new
Thippasandra, Bengaluru. She entered into an agreement
with Nagaraj who is the civil contractor for construction of five
storied building in her property on 15.02.2012. Nagaraj
agreed to construct building @ Rs.1,20,000/- per sq.mtr. and
total amount of Rs.55,00,000/- was fixed under the
agreement. The plaintiff is the relative of defendant Nos.1
and 2 and through him the defendants entered into contract
with Nagaraj. Nagaraj constructed portion of the building in
the site of defendant No.1 and thereafter difference of opinion
arisen between the parties to the contract. Hence, Nagaraj
left the construction work in the middle. Then the defendant
No.1 and 2 approached the plaintiff/Pandurangan for further
construction who was also taking the work of construction of
buildings. There was oral agreement between the plaintiff
and the defendants for construction of remaining portion of
the building of the defendant No.1. The plaintiff agreed to
construct the building at Rs.1,25,000/- per sq.mtr. and
accordingly he has constructed in the ground floor and the
5 O.S.Nos.7476/15 & 9521/15
first floor. He has incurred expenses of Rs.17,23,300/-, he
has collected the raw material worth of Rs.1,40,000/-. The
defendant No.2 issued two cheques on 03.11.2014 and
05.11.2014 for Rs.3,00,000/- and Rs.2,00,000/- respectively
in the name of plaintiff towards price of the construction of
the house of the defendant No.1. The plaintiff received a sum
of Rs.5,00,000/- from the defendants through two cheques
towards price. Then also the defendants were required to pay
total amount of Rs.13,78,300/- and the interest. That
amount has been demanded. Inspite of demands the
defendants have not paid the money and therefore, the
plaintiff has charged the interest from 03.11.2014 till filing of
the suit. On these grounds the plaintiff has contended that
defendants are under liability to pay the total amount of
Rs.23,81,430/- and accordingly prayed to decree the suit.
3. The defendants No.1 and 2 jointly filed the
written-statement. The defence taken to O.S.No.7476/2015
and the claim made in O.S.No.9521/15 are similar in nature.
The defendants have denied the oral agreement between
themselves and the plaintiff for construction of the house of
the defendant No.1 and even denied the construction work of
6 O.S.Nos.7476/15 & 9521/15
the plaintiff in the site of defendant No.1. The defendants
have totally denied their liability for payment of the claim
made in the suit. It is the defence of the defendants that
defendant No.2 who is the father of defendant No.1 was in
need of residential premises on rent. The plaintiff was having
residential premises and he agreed to let his premises to the
defendant on rent. Therefore, the plaintiff demanded advance
amount of Rs.5,00,000/- from the defendant No.2. In order
to get rented house, the defendant No.2 paid Rs.5,00,000/- to
the plaintiff by issuing two cheques dated 05.11.2014, one for
Rs.3,00,000/- and another for Rs.2,00,000/-. The plaintiff
got realized those two cheques and received Rs.5,00,000/-
from the defendant No.2. Thereafter, the plaintiff not handed
over the premises for the occupation of the defendant No.2.
Even the plaintiff not refunded the advance amount.
Therefore, the defendant No.2 is entitled to receive back the
advance amount of Rs.5,00,000/-. It has been contended
that when the defendant No.2 demanded the advance
amount, plaintiff has filed the false suit in order to dupe the
amount of Rs.5,00,000/- taken from the defendant No.2. On
7 O.S.Nos.7476/15 & 9521/15
these main grounds both defendants sought for dismissal of
O.S.No.7476/2015 and prayed to decree O.S.No.9521/15.
4. The plaintiff in O.S.No.7476/2015 who is the
defendant in other suit has filed the written-statement in
O.S.No.9521/15 by denying his liability. He has taken the
defence which has been pleaded in his suit. Therefore, there
is no necessity to reproduce such defence.
5. Based on these pleadings of the parties, separate and
distinct issues have been framed in both suits which are as
under:
ISSUES IN O.S.No.7476/2015
(1) Whether the plaintiff proves that
the defendants are liable to pay
Rs.23,81,430/- to him with
interest at the rate of 24% per
annum in respect of construction
work done by him?
(2) Whether the defendants prove that
the suit is barred by limitation?
(3) Whether the plaintiff is entitled for
the relief sought for in the suit?
(4) What order or decree?
8 O.S.Nos.7476/15 & 9521/15
ISSUES IN O.S.No.9521/2015
1. Whether the plaintiff proves that he
has paid an amount of Rs.5,00,000/-
on 05.11.2014 to the defendant for
taking the schedule property on lease
from the defendant?
2. Whether the plaintiff is entitled for
the suit claim?
3. What order or decree?
6. Since the matter in controversy is between the
same parties in respect of the same contract/negotiation, in
order to save the time of the court and to enable the parties to
adduce evidence in one suit, O.S.No.9521/15 has been
clubbed in O.S.No.7476/15. Common evidence has been
recorded. Henceforth, the ranks assigned to parties in
O.S.No.7476/15 would be referred to for the sake of
convenience.
7. In order to prove the case, the plaintiff examined
himself as P.W.1 and got marked documents at Ex.P.1 to
P.33. Both defendants examined themselves as D.W.1 and 2
and got marked documents at Ex.D.1 to Ex.D.15 in support
of their defence.
9 O.S.Nos.7476/15 & 9521/15
8. Both parties filed their written argument. I have
gone through the written argument along with the material
evidence placed on record.
9. My findings on the above issues are as under:
FINDINGS ON ISSUES IN O.S.No.7476/2015
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : As per final order,
FINDINGS ON ISSUES IN O.S.No.9521/2015
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : As per final order,
for the following:
REASONS
10. ISSUE NOs.1 & 3 IN O.S.No.7476/2015 AND
ISSUE NOs.1 & 2 IN O.S.No.9521/2015 : -
The parties have admitted that defendant
No.1/Smt.Shobha is the owner of residential and commercial
site bearing No.12, situated at 2nd cross, 515 colony, new
Thippasandra, Bengaluru and she entered into contract with
10 O.S.Nos.7476/15 & 9521/15
M/s. Radha Construction, represented by its Proprietor/M.
Nagaraj for construction of five storied building in the said
site through agreement dated 15.02.2012. The defendant
No.2/Kuppuswamy is the father of defendant No.1.
Subramni is the husband of defendant No.1 and after
construction of the building Subramni died. It is suffice to
say that husband of defendant No.1 was alive when the
contract at Ex.D.1 came into existence and when the entire
construction of building of defendant No.1 was completed,
which is relevant in these cases.
11. The plaintiff has pleaded that he is close relative of
defendants and such contention has been denied by the
defendants. In the evidence P.W.1 has deposed that he is
close relative of defendants and such evidence is also denied
by the defendants. In the cross-examination of D.W.1 the
plaintiff has suggested that Sulochana and mother of the
defendants are the sisters, Jayalakshmi is the daughter of
Sulochana and said Jayalakshmi is the wife of plaintiff. The
D.W.1 not denied these suggestions, but she has stated that
she has no idea of such relationship. The D.W.1 has pleaded
her ignorance. In that answer of D.W.1 there is implied
11 O.S.Nos.7476/15 & 9521/15
admission. The plaintiff has suggested that his wife and the
mother of wife of defendant No.1 are the sisters. Such
relationship has been denied by D.W.2. There are no other
documentary evidence to prove the relationship. However, in
the pleadings and also in the evidence of defendants it has
been stated that plaintiff was known to their family and
therefore, even at the time of entering into contract at Ex.D.1,
the defendants called the plaintiff and the plaintiff is one of
the signatories to Ex.D.1. The parties have admitted that the
plaintiff is contractor who undertakes the construction of
buildings. The defendants have stated that because the
plaintiff had special knowledge in construction work, they
have taken the assistance of plaintiff and that was the reason
for his signing on Ex.D.1. Considering these evidence on
record I am of the opinion that the evidence placed on record
is sufficient to hold that the plaintiff and the defendants were
knowing each other prior to the contract at Ex.D.1 and the
plaintiff is the nearest relative of the defendants.
12. The parties to the suit admitted that agreement at
Ex.D.1 was entered into by the defendant No.1 with M/s
Radha Construction, represented by its Propreitor/M. Nagaraj
12 O.S.Nos.7476/15 & 9521/15
for construction of building in site of defendant No.1 on
15.02.2012. The terms and conditions in Ex.D.1 are not
disputed. The plaintiff is one of the signatories to Ex.D.1.
Therefore, the admission in pleadings and also Ex.D.1 are
sufficient to hold that for the purpose of construction of five
storied building in her property, the defendant No.1 entered
into contract with M. Nagaraj and M. Nagaraj undertaken
some construction work as agreed. The parties have admitted
that entire construction work of the building of the defendant
No.1 has been completed. Who has completed and when it
was completed is in dispute.
13. It is the specific contention of the plaintiff that M.
Nagaraj who entered into agreement with defendant No.1
under Ex.D.1 stopped his construction work because of
difference of opinion between himself and the defendant No.1
and thereafter, the defendants approached the plaintiff for
completion of construction work. Because of this reason he
being the contractor entered into oral agreement with the
defendants and constructed ground floor and first floor in the
property of defendant No.1, the defendants have agreed to pay
an amount of Rs.1,25,000/- per sq.mtr. for such
13 O.S.Nos.7476/15 & 9521/15
construction. This allegation has been categorically denied by
the defendants. Therefore, whether M. Nagaraj not
constructed the building of defendant No.1 fully and whether
the plaintiff entered into oral agreement for construction of
building with the defendant No.1 and thereby constructed the
ground and first floor of the building is the matter which has
to be addressed.
14. The plaintiff himself has admitted that there is no
written contract between himself and the defendants, for
construction of ground floor and first floor of the house of
defendant No.1, according to him there is oral contract. If
there is proposal and acceptance in the oral contract between
the parties, such contract is permissible under law and the
oral contract can be proved before the court of law.
Therefore, the plaintiff can establish the oral contract entered
into between himself and the defendants for construction
work.
15. In order to prove the oral contract the plaintiff has
deposed that the defendants made proposal for construction
of the house of defendant No.1 and such proposal as been
accepted by him and he agreed to construct a building at
14 O.S.Nos.7476/15 & 9521/15
Rs.1,25,000/- per sq.mtr. This statement of P.W.1 has been
categorically denied in the cross-examination and also in the
evidence of D.W.1 an 2. The plaintiff in his pleading or in his
evidence not stated the date of oral contract and other terms
of the oral contract. Even he has not stated the names of the
persons in whose presence the oral agreement was entered
into. Further, the plaintiff has not examined any witness who
was present at the time of contract or who saw the execution
of construction work by the plaintiff in the property of
defendant No1. Therefore, the oral evidence of P.W.1 which
has been denied by the defendants has not been corroborated
by any other witness including the documents. Therefore, it
is very hard to believe the oral statement of P.W.1 regarding
the contract.
16. The plaintiff has produced the copy of notice dated
01.09.2012 at Ex.P.8 along with postal receipts to show that
through his Advocate he issued notices to the defendants and
Subramani narrating the oral contract and execution of
construction work including the demand of price of the work
done by him. In the notice the plaintiff has disclosed the oral
contract, execution of the work and balance to be payable by
15 O.S.Nos.7476/15 & 9521/15
the defendants to him to the extent of Rs.18,63,300/-. It is
on record that defendants and Subramani were residing in
the house of defendant No.1 when that notice was issued.
The notice was issued to the proper address of the defendants
through registered post. The plaintiff has produced the postal
acknowledgements at Ex.P.9 and Ex.P.10 which show that
notice at Ex.P.8 has been received by the defendant No.1 and
her husband Subramani on 04.09.2012. The plaintiff has
produced the postal cover at Ex.P.11 addressed to defendant
No.2 which shows that notice has not been served. When the
notice at Ex.P.8 has been served upon the defendant No.1
and her husband, an inference can be drawn that defendant
No.2 being the father of defendant No.1 was within the
knowledge of the notice at Ex.P.8 and its contents. Therefore,
based on Ex.P.8 to Ex.P.11 and the evidence of P.W.1, I hold
that the plaintiff in writing disclosed his oral contract with the
defendants, disclosed the work done by him and demanded
an amount of Rs.18,63,300/- for construction work and such
notice has been within the knowledge of the defendants.
17. The defendants have denied the issuance of reply
to the notice at Ex.P.8. However, the plaintiff has stated that
16 O.S.Nos.7476/15 & 9521/15
the defendants including Subramani given reply on
21.09.2012 through B.M. Shyam Prasad & Associates and
such reply has been produced at Ex.P.12 including the
photographs. The plaintiff has stated that the photographs
annexed to Ex.P.12 were also sent by the Advocates
appointed by the defendants. These allegations have been
denied by the defendants. In the reply notice at Ex.P.12 it
has been shown that on the instructions given by the
defendants and Subramni, B.M. Shyam Prasad & Associates
issued reply notice to the Advocate of the plaintiff on
21.09.2012. There is no signature of any of the defendants
on Ex.P.12. The plaintiff has stated that the defendant No.2
has put his signature on the photographs sent with Ex.P.12.
In the photographs there appears signature of Advocate who
has issued reply at Ex.P.12 and in the name of defendant
No.2/Kuppuswamy. This signature has been denied by
D.W.2. If these signatures are taken with the signatures of
D.W.2 in the deposition, there appears similarity. When the
defendant No.2 has denied his signature only because there is
similarity in the signatures, in the absence of expert evidence,
it is not possible for the court to give opinion on these
17 O.S.Nos.7476/15 & 9521/15
signatures by exercising power under Section 73 of Evidence
Act. The plaintiff has not taken any expert opinion on these
signatures and therefore, I hold that the plaintiff has not
established that these signatures are the signatures of
defendant No.2. From Ex.P.12 one thing is clear that for the
notice at Ex.P.8, B.M. Shyam Prasad & Associates given reply
notice at Ex.P.12.
18. In Ex.P.12 there is admission about the oral
contract between the plaintiff and the defendant for
construction of building of defendant No.1, admission of part
payment made by the defendants to the plaintiff and even
there is admission of execution of construction work by the
plaintiff including the liability of the defendants to pay certain
amount. In other words in Ex.P.12 there are vital admissions
said to be given by the defendants to the claim of the plaintiff.
If Ex.P.12 is accepted in evidence and believed, the entire
defence taken by the defendants falls to the ground.
Therefore, Ex.P.12 is the important document relied upon by
the plaintiff to prove his case against the defendants. When
Ex.P.12 is having so much of importance, the plaintiff is
18 O.S.Nos.7476/15 & 9521/15
required to prove this document in accordance with Section
67 of Evidence Act.
19. The plaintiff in the cross-examination of D.W.1
and 2 suggested that defendants through their Advocate sent
reply at Ex.P.12 and such evidence has been categorically
denied by the witnesses. The plaintiff has not produced the
postal cover to show the mode of sending of notice at Ex.P.12
by Advocate to him. Therefore, there are no records to show
that the plaintiff received Ex.P.12 through post, courier or by
hand. When the defendants have denied their authorization
to B.M. Shyam Prasad & Associates for issuance of reply
notice at Ex.P.12, it was for the plaintiff to call the Advocate
to give evidence on Ex.P.12. Unfortunately the plaintiff has
not called B.M. Shyam Prasad & Associates who has issued
the notice. The burden to prove Ex.P.12 is on the plaintiff
and not the defendants. It has been argued by the plaintiff
that the defendants have not taken any action against the
B.M. Shyam Prasad & Associates for issuance of Ex.P.12
without authority. Such submission cannot be accepted as
the burden is on the plaintiff and not on the defendants to
prove Ex.P.12. For these reasons I hold that the plaintiff has
19 O.S.Nos.7476/15 & 9521/15
not proved Ex.P.12 in accordance with Section 67 of Evidence
Act.
20. The plaintiff in order to show that he undertaken
construction work of defendant No,1 relied upon the copy of
the first information at Ex.P.1 dated 27.06.2012 filed before
Commissioner of Police, Bengaluru city, along with Ex.P.1 the
plaintiff has produced the postal receipts which show that on
27.06.2012 the plaintiff has given complaint to Police
Commissioner against the defendants making allegation that
the defendants have not paid the agreed amount for
construction of the building. Ex.P.13 is copy of the complaint
dated 10.10.2012 given by the plaintiff to the Commissioner
of Police which was sent through registered post. The postal
receipts have also been produced. In this complaint also the
plaintiff has alleged the construction work made by him and
amount due from the defendants. Ex.P.3 is another notice
dated 27.05.2012 issued by the plaintiff to the defendant
No.2 through registered post. The receipt has been produced.
In this notice also the plaintiff has stated that he has
undertaken construction work and demanded total amount of
Rs.17,38,300/- from the defendant No.2. This notice has
20 O.S.Nos.7476/15 & 9521/15
been served upon the defendant No.1 and Subramani which
can be seen from postal acknowledgements at Ex.P.4 and P.5.
No reply has been given to this notice. Ex.P.7 is the
endorsement given by Police Inspector, J.B. Nagar Police
Station to the plaintiff for having received the complaint
produced at Ex.P.1. Under Ex.P.7 Police not taken any action
against the defendants as the dispute was civil in nature.
Ex.P.6 is the alleged statement of defendant No.2 given before
the Police Inspector, J.B. Nagar Police Station after receipt of
complaint at Ex.P.1. In this statement the defendant No.2
has admitted the construction work made by the plaintiff and
the liability of the defendants to pay the amount of
Rs.17,23,300/-. But this statement is given before the Police
and defendant No.2 has stated that with threat his signature
has been obtained on Ex.P.6. When the statement is
recorded by the Police Officer in respect of civil dispute, no
evidentiary value can be attached to such statement.
Therefore, Ex.P.6 has not been received in evidence.
21. The complaint lodged by the plaintiff against the
defendants and the other records referred above indicate that
plaintiff before filing of the suit approached the Police for
21 O.S.Nos.7476/15 & 9521/15
settlement of his claim. The Police not taken any action
against the defendants as the matter involved was civil in
nature. These are the evidentiary values which are to be
attached to the various correspondences referred in previous
paragraph. These records at the most indicate that the
plaintiff has undertaken certain construction in the building
of defendant No.1 and he has demanded money from the
defendants.
22. Ex.P.14 is the copy of the notice dated 27.11.2014
given by the plaintiff to the defendant No.2. This notice is
also issued through registered post on 01.12.2014. The
receipt of this notice is denied by defendant No.2. However,
the postal receipts indicate that notice was sent to the proper
address of the defendant No.2 and therefore, there is deemed
service.
23. In Ex.P.14 the plaintiff has stated that towards the
cost of construction made by him an amount of
Rs.5,00,000/- has been paid by issuing two cheques on
05.11.2014. In the notice he demanded further amount of
Rs.14,00,000/- for settlement of his dues. Ex.P.15 and P.16
are the copies of cheque issued in the name of plaintiff by the
22 O.S.Nos.7476/15 & 9521/15
defendant No2 for Rs.2,00,000/- and Rs.3,00,000/- on
05.11.2014. The defendants have produced the extract of
statement of account maintained by the Canara Bank
regarding account of defendant No.2 at Ex.D.10. This
statement shows that defendant No.2 issued the cheque in
favour of the plaintiff for Rs.3,00,000/- and Rs.2,00,000/- on
05.11.2014 and those cheques have been realized. Therefore,
both parties have admitted that defendant No.2 paid an
amount of Rs.5,00,000/- to the plaintiff by issuing two
cheques on 05.11.2014. According to the plaintiff this
amount has been received towards construction work done by
him and according to the defendants this amount has been
paid towards amount of lease of the property owned by the
plaintiff in favour of defendant No.2. For what purpose this
amount has been received by the plaintiff will be decided
later.
24. In Ex.P.29 to P.33 there are telephone bills for the
year 2012. These bills are relating to mobile No.9343529969
which is belongs to the plaintiff. In these bills there are list of
calls. On perusal of these bills and call details, it is found
that there are many calls made by the plaintiff to mobile
23 O.S.Nos.7476/15 & 9521/15
No.9902919791 and list also indicates receipt of many calls
from the same number by the plaintiff. In the evidence the
D.W.2 has admitted that mobile No.9902919791 belongs to
him. He has further admitted that he had conversation with
plaintiff over phone. Therefore, the evidence of P.W., D.W.2
and the call details in Ex.P.29 to P.33 indicate that during the
construction work of the building of defendant No.1 there was
conversation between the plaintiff and the defendant No.2
over phone. Which subject has been discussed by the
plaintiff and the defendant No.1 cannot be ascertained from
the call list.
25. According to the plaintiff the conversion over
phone was relating to construction of building of the
defendant No.1. Such evidence has been denied by the
defendants. According to the defendants the conversion was
with regard to lease of property by the plaintiff in favour of
the defendant No.2. This defence is denied by the plaintiff. If
really there was conversion between the parties in respect of
lease of the property, the number of calls shown in Ex.P.29 to
P33 may not be made in ordinary course. But if there was a
building construction work, the number of calls as shown in
24 O.S.Nos.7476/15 & 9521/15
Ex.P.29 to P.33 probabilize the case made out by the plaintiff.
In other words it appears that many calls shown in Ex.P.29 to
P.33 were made and received with regard to construction
work and not in respect of lease. The defendants have
admitted that defendant No.2 being the father of the
defendant No.1 was looking after the construction work on
the site. This admission further supports the case of the
plaintiff that on behalf of defendant No.1, the defendant No.2
was discussing with the plaintiff the work of construction
under progress.
26. The defendants have pleaded that M. Nagaraj has
completed entire building but in order to establish such fact
the defendants have not called M. Nagaraj to give his
evidence. The photographs at Ex.P.26 & 27 are the
photographs annexed to Ex.P.12 which show that after
making part of the construction there was some delay to
complete the construction work. The evidence of P.W.1 shows
that he being the contractor also undertaken certain
construction work in the property of the defendant No.1. The
complaint and other records referred above indicate that the
contractor under Ex.D.1 not fully completed the construction
25 O.S.Nos.7476/15 & 9521/15
work. Therefore, I hold that the defendants have not
discharged their onus to prove that entire building has been
completed by M.Nagaraj which supports the case of the
plaintiff that some work has been done by the plaintiff.
27. The plaintiff has produced the receipt at Ex.P.17
for s.37,000/-. It has been shown that an amount of
Rs.37,000/- has been received by him on 27.05.2012. In the
receipt it has been shown that this amount has been received
towards construction work of the building of the defendant
No.1. But in this receipt there is no signature of any of the
defendants or Subramani.
28. The plaintiff has produced the receipts at Ex.P.18
to P25 dated 26.05.2012, 05.03.2012 (Ex.P.22 and Ex.P.24
have no dates) issued by Deepam Enterprises. In these
receipts it has been shown that raw materials for
construction of the building have been supplied by Deepam
Enterprises and the construction site is property No.12, 2nd
cross, 515 colony, new Thippasandra, Bengaluru owned by
the defendant No.1. It has been shown that the amount of
Rs.1,35,000/-, 78,000/-, 1,78,000/-, 1,02,900/-, 48,000/-
90,000/-, 64,000/- and Rs.52,000/- respectively paid by
26 O.S.Nos.7476/15 & 9521/15
plaintiff. Under these receipts huge amount has been paid.
The defendants have denied the payment of amount shown in
these receipts by the plaintiff and secondly they have denied
the fact of supply of various raw materials by Deepam
Enterprises for the construction of house in the site owned by
the defendant No.1. Therefore, the plaintiff is required to
prove all these receipts and payment. The plaintiff is required
to establish that all the payments in Ex.P.18 to P.25 were
relating to raw materials utilized for the construction of house
of the defendant No.1.
29. To prove these receipts excluding the evidence of
P.W.1, there is no other evidence. The signatories for these
receipts have not been examined. The Proprietor of Deepam
Enterprises is the best person to speak on these receipts. The
plaintiff has not called the said Proprietor. Even the plaintiff
has not proved that these receipts bear the signature of
Proprietor of Deepam Enterprises. If the Proprietor of
Deepam Enterprises is examined, the court would be in a
position to see whether the material supplied under these
receipts were utilized for the construction of the house in the
site of the defendant No.1. Such evidence has been withheld
27 O.S.Nos.7476/15 & 9521/15
by the plaintiff. Therefore, I hold that receipts at Ex.P.18 to
Ex.P.25 have not been proved. Thus, I hold that through
these receipts the plaintiff not established that he made
construction in the site of defendant No.1 by paying huge
amount shown in Ex.P.18 to Ex.P.25.
30. The payment of Rs.5,00,000/- by the defendant
No.2 in favour of the plaintiff through two cheques is
admitted and for what purpose such amount has been paid is
to be addressed now. The defendants have produced the
Khatha extract at Ex.D.11 and encumbrance certificate at
Ex.P.12. Ex.D.11 indicates that property No.28/3-3 situated
in 7th Cross, Jai Bharath Nagar, Maruthi Seva Nagar is owned
by the plaintiff. The defendants have produced the
photographs at Ex.D.9 to show the building owned by the
plaintiff. The plaintiff not denied his ownership over the
building. Therefore, these records and the evidence of
defendant are sufficient to hold that the plaintiff was having
the house in property No.28/3-3 when the cheques issued by
the defendant No.2 were encashed. The evidence on record
also indicates that there were tenants in the property owned
by the plaintiff which probabilize that premises was available
28 O.S.Nos.7476/15 & 9521/15
on lease in the property of the plaintiff. The D.W.s 1 and 2
have stated that in order to take the premises of the plaintiff o
lease, the defendant No.2 paid Rs.5,00,000/- towards
advance amount. This statement has been denied by the
plaintiff. The defendants not produced any lease deed
entered into between the plaintiff and the defendant No.2. If
really there was lease agreement for lease of the house of the
plaintiff, the defendant No.2 would have obtained the lease
agreement. When there is no lease agreement, there creates
doubt about the agreement between the parties about lease of
the property. Therefore, on this ground the defence of the
defendants about the lease is not acceptable.
31. The defendant No.2 has issued legal notice to the
plaintiff on 20.09.2015 produced at Ex.D.13, Ex.D.14 is the
postal receipt, Ex.D.15 is the postal acknowledgement. This
notice has not been received by the plaintiff and therefore, it
has been returned to defendant No.2. There is deemed
service of the notice. In Ex.D.13 it has been shown that
defendant No.2 has paid Rs.5,00,000/- to the plaintiff
towards advance of the lease and the defendant No.2
29 O.S.Nos.7476/15 & 9521/15
demanded refund of such advance amount. Only because no
reply has been given to the notice, adverse inference cannot
be drawn. It cannot be drawn inference that the plaintiff has
admitted demand made in Ex.D.13 unless other evidence is
brought on record. This notice has been issued only after
institution of O.S.No.7476/2015. Therefore, inference can be
drawn that after filing of the suit by the plaintiff, afterthought
the defendants have issued notice at Ex.D.13. On this
ground also I hold that no evidentiary value shall be given to
the demand made in Ex.D.13.
32. The defendants in order to prove that there was
agreement between the plaintiff and defendant No.2 for lease
of property not examined any other witnesses. Even the
defendants have not disclosed the date of lease agreement.
Therefore, on this count also the defence of the defendants
cannot be accepted.
33. After appreciating the entire evidence on record it
is found by the court that initially the defendants entered into
contract with M. Nagaraj for construction of building in site
owned by the defendant No.1 under Ex.D.1. After
30 O.S.Nos.7476/15 & 9521/15
commencement of the construction there was difference of
opinion between contractor and the defendants and therefore,
M. Nagaraj not completed the construction work. It is found
that the defendants being the nearest relatives of the plaintiff,
called the plaintiff to make construction work in their site.
Therefore, the plaintiff has made some construction work in
the site of the defendant No.1. Because of this construction
work, the defendant No.1 through her father paid an amount
of Rs.5,00,000/- under two cheques to the plaintiff.
Therefore, it is evident on record that Rs.5,00,000/- shown in
Ex.D.10 is paid by the defendant No.2 in favour of the
plaintiff towards expense of the construction work and not
advance amount for the lease. Therefore, I hold that the
defendant No.2 is not entitled for refund of such
Rs.5,00,000/- from the plaintiff.
34. Even though it is found in evidence that the
plaintiff has made certain construction work in the property
of the defendant No.1, the exact amount spent by the plaintiff
for construction and agreement for payment of price is not
proved. In the absence of these important aspects, the claim
31 O.S.Nos.7476/15 & 9521/15
of the plaintiff for Rs.23,81,430/- is not sustainable under
law. Even there is no evidence on record that after payment
of Rs.5,00,000/- by the defendants to the plaintiff, the
defendants are under liability to pay an amount of
Rs.23,81,430/- as claimed by the plaintiff in the suit. In
order to grant decree in favour of the plaintiff, the plaintiff
has to establish the agreement relating to rate fixed for
construction. Thereafter, he has to prove the work done by
him by giving the measurement and material used by him
including the value of the material. No such evidence is
produced by the plaintiff. Therefore, I hold that the plaintiff
is not entitled for the amount claimed in his suit from the
defendants. Hence, the suit must fail. Even the suit of the
defendant No.2 shall have to be dismissed. With these
observations I answer Issue No.1 and 3 in
O.S.No.7476/2015 and Issue No.1 and 2 in
O.S.No.9521/2015 in the Negative.
35. ISSUE No.2 IN O.S.No.7476/2015 : - The
plaintiff has filed this suit for recovery of price of the
construction of house met by him for the defendant No.1. He
32 O.S.Nos.7476/15 & 9521/15
has claimed price of Rs.18,78,300/- which was due as on
26.05.2012. The plaintiff has claimed interest on such
amount. The plaintiff has also shown in the plaint that
defendants have paid pat of the amount to the extent of
Rs.5,00,000/- on 03.11.2014. The defendants have totally
denied the work done by the plaintiff. While deciding other
issues it has been held that the plaintiff is not entitled for the
relief claimed in the suit. However, the court is required to
give finding on this issue also.
36. Looking to the allegation made in the plaint it is
very clear that the suit of the plaintiff is regulated by Article
18 of the Limitation Act which provides period of three years
to file the suit for price of work done by the plaintiff for the
defendants at his request where no time has been fixed for
payment. Such time of three years commences from the date
when the work is done. Therefore, the plaintiff is required to
institute the suit within three years for the date when he has
done the work of the defendants.
37. I Par Nos.7 and 8 the plaintiff has specifically
stated that before 28.05.2012 he has completed his work in
33 O.S.Nos.7476/15 & 9521/15
the site of the defendant No.1 for an amount of
Rs.18,78,300/-. Therefore, these pleadings are sufficient to
hold that the price claimed in the suit was relating to the
work done by the plaintiff prior to 28.05.2012. Therefore, the
limitation under Article 18 starts from 28.05.2012. The
present suit was filed on 28.08.2014. Therefore, the suit is
filed after three years.
38. Section 19 of Limitation Act provides that where
payment of amount of debt or of interest of a legacye is made
before expiration of the prescribed period by the person liable
to pay the debt or legacy or by his agent duly authorized in
this behalf, a fresh period of limitation shall be computed
from the time when the payment was made. In the present
case it is already concluded that the defendant No.2 is the
father of defendant No.1 and defendant No.2 was looking after
the construction work. In other words it is on record that
defendant No2 was acting as an agent of the defendant No.1
while constructing the building. It has been held that
defendant No.2 has paid a sum of Rs.5,00,000/- to the
plaintiff through two cheques dated 05.11.2014 towards price
34 O.S.Nos.7476/15 & 9521/15
of the work done by the plaintiff by legitimating the claim of
the defendant No.2. Therefore, there is part payment out of
total amount claimed by the plaintiff by the agent of the
defendant No.1 within expiration of period prescribed under
Article 18 of Limitation Act. Such payment is in writing.
Therefore, under Section 19 of Limitation Act, fresh limitation
has been commenced from 05.11.2014. The suit was filed on
28.08.2014. Thus, Section 19 of the Limitation Act comes to
the aid of the plaintiff to file this suit. For these reasons, I
hold that suit filed by the plaintiff for the price of work done
by him is in time. Accordingly, I answer this point in the
Negative.
39. ISSUE No.4 IN O.S.No.7476/2015 & ISSUE No.3
IN O.S.No.9521/2015: - In view of the discussion made
above, I proceed to pass the following:
ORDER
Both suits are hereby
dismissed.
The parties to bear their own costs.
35 O.S.Nos.7476/15 & 9521/15Draw decree accordingly.
[Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me, in the Open Court on this the 7th day of October 2017].
(B. B. JAKATI) LIX ADDL. C.C. & SESSIONS JUDGE, BENGALURU CITY.
ANNEXURE
1. List of witnesses examined on behalf of the plaintiff/s:
P.W.1 Sri Pandurangan
2. List of witnesses examined on behalf of the Defendant/s:
D.W.1 Smt. Shobha Subramani D.W.2 Sri Kuppuswamy
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P.1 Complaint
Ex.P.2 Particulars of construction
Ex.P.3 Copy of letter dated 27.5.12
Ex.P.4 & 5 Postal acknowledgements
Ex.P.6 Statement by defendant No.2
before J.B. Nagar P.S. Ex.P.7 Endorsement Ex.P.8 Copy of legal notice Ex.P.9,10 Postal acknowledgements Ex.P.11 Unclaimed postal cover 36 O.S.Nos.7476/15 & 9521/15 Ex.P.12 Reply notice Ex.P.13 Police complaint Ex.P.14 Letter Ex.P.15,16 Copy of cheques issued Ex.P.17 to 25 Receipts of payment Ex.P.26,27 Photographs of schedule property Ex.P.28 C.D. Ex.P.29 to 33 Reliance Calls lists
4.List of documents marked on behalf of the defendant/s:Nil Ex.D.1 Construction agreement Ex.D.2 & 3 photographs Ex.D.4 Acknowledgement by BBMP Ex.D.5 Tax paid receipt Ex.D.6 Sanctioned plan Ex.D.7,8 Photographs Ex.D.9 C.D Ex.D.10 Statement of account Ex.D.11 Khatha extract Ex.D.12 Form No.16 Ex.D.13 Legal notice Ex.D.14 Postal receipt Ex.D.15 Unserved postal cover (B. B. JAKATI) LIX ADDL. C.C. & SESSIONS JUDGE, BENGALURU CITY.
37 O.S.Nos.7476/15 & 9521/15 38 O.S.Nos.7476/15 & 9521/1507.10.2017:
Common Judgment pronounced in the Open Court (Vide separate detailed judgment) ORDER Both suits are hereby dismissed.
The parties to bear their own costs.
Draw decree accordingly.
(B. B. JAKATI) LIX ADDL. C.C. & SESSIONS JUDGE, BENGALURU CITY.39 O.S.Nos.7476/15 & 9521/15