Madras High Court
Tiruchirappalli Thanjavur Diocese vs Sudalayandi on 13 March, 2018
Author: S.Ramathilagam
Bench: S.Ramathilagam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATE: 13.03.2018 CORAM THE HONOURABLE MRs. JUSTICE S.RAMATHILAGAM S.A.No.1572 of 2002 and C.M.P.No.12876 of 2004 Tiruchirappalli Thanjavur Diocese Diocesan Office, Tiruchirappalli Tiruchirappalli ? 628 017. .. Appellant/Appellant/Defendant Vs. Sudalayandi .. Respondent/Respondent/Plaintiff PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure Code, against the judgment and decree passed in A.S.No.105 of 2001, dated 02.04.2002 on the file of the Principal District Judge, Karur confirming the judgment and decree passed in O.S.No.351 of 1995, dated 31.08.2001, on the file of the Subordinate Judge, Karur. !For Appellant : Mr.S.K.Mani ^For Respondent : Mr.P.Thiagarajan :JUDGMENT
Challenging the judgment and decree in A.S.No.105 of 2001, dated 02.04.2002, on the file of the Principal District Judge, Karur confirming the judgment and decree in O.S.No.351 of 1995, dated 31.08.2001, on the file of the Subordinate Judge, Karur, this Second Appeal has been filed.
2.For the sake of convenience both the parties will be referred to what they are before the trial court.
3.The brief case of the plaintiff is that the plaintiff is a contractor. The defendant has entrusted the work of constructing a shopping complex in CSI School premises, Karur. The plaintiff has to complete the construction by spending his own funds and he has to recover the same by submitting bills. The plaintiff has spent Rs.2,53,080/-. As per the agreement, the defendant had paid a sum of Rs.2,23,000/-. There is a balance of Rs.30,080/- due from the defendant. The plaintiff has also been entrusted with another work for a value of Rs.17,850/- and in aggregation, the defendant is liable to pay Rs.47,930/- to the plaintiff. Despite repeated demands, the defendant has failed to settle the amount to the plaintiff. Therefore, the plaintiff is constrained to file the present suit for the relief as indicated above.
4.The brief averments of the written statement filed by the defendant are that there is no privity of contract between the defendant and the plaintiff. The alleged construction has been done without the concurrence of the defendant. It is false to say that the defendant was liable to pay Rs.2,53,080/- and out of the said amount, the defendant has paid a sum of Rs.2,23,000/-. It is also equally false to say that the defendant is liable to pay the suit amount to the plaintiff. The defendant is not a jurisdic person and therefore, the present suit deserves dismissal.
5.On the above said pleadings, the Trial Court has framed the following issues.
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6.In order to prove the case of the plaintiff, on the side of the plaintiff, he himself was examined as P.W.1 and Ex.A-1 and Ex.A-2 were marked. On the side of the defendant, one independent witness was examined as D.W.1 and Ex.B-1 was marked. After trial, the Trial Court decreed the suit in favour of the plaintiff. Aggrieved against the said judgment and decree passed by the Trial Court, the defendant filed an appeal in A.S.No.105 of 2001 on the file of the Principal District Judge, Karur. After hearing the appeal, the First Appellate Court confirmed the decree and judgment passed by the Trial Court and dismissed the first appeal.
7.At the time of admitting the Second Appeal, this court has formulated the following substantial question of law for consideration:-
1.Whether both the Courts below were correct in granting a decree in favour of the plaintiff/respondent in the absence of necessary proof as to the privity of contract between the parties?
8.Heard both sides.
9.This second appeal has been preferred against the judgment and decree passed in A.S.No.105/2001, on the file of the Principal District Court, Karur confirming the judgment and decree, dated 31.08.2001 made in O.S.No.351/1995.
10.O.S.No.351/1995 was filed by the plaintiff for recovery of amount due to him from the defendant for the construction of work completed by the plaintiff. The brief facts of the case of the plaintiff is that he himself is a Contractor doing Civil, Mechanical and Technical work. Based on the letter written by the defendant, the plaintiff was entrusted with the work of constructing a shopping complex in the CSI school premises and he had completed the work of construction at the cost of Rs.2,53,080/-. Out of the said amount, the defendant has paid a sum of Rs.2,23,000/- and for the balance amount, the plaintiff has filed the suit. The contention raised by the defendant school is that denying the liability of the defendant for the balance amount of Rs.30,080/- and the defendant also denied the payment made by the plaintiff and the cause of action also very much denied by the defendant. The plaintiff has also asking for an additional sum of Rs.17,850/- for the additional work done on the request of the defendant / school and produced the bills for the said work.
11.The plaintiff who has deposed before the trial Court stating that he has entrusted with the work of constructing 6 shops in the school campus as per the letter, dated 05.05.1992 and stated that he has paid with an amount of Rs.2,23,000/- by the defendant's school. For the balance amount and the amount for the additional work done by the plaintiff, he has sent the bill to the defendant. But the defendant had not paid that amount. The defendant was cross examined the plaintiff regarding the entrustment of the contract work and also the part payment to the construction work. Simply he was cross examined whether there could be an entry in the bank account of the plaintiff for the receipt of the cheque for the part payment. But nothing has been elucidated by the defendant regarding the entrustment of work given to the plaintiff and also for the huge portion of the amount paid to him by the defendant.
12.On the side of the defendant, the Treasurer was examined before the trial court who denied the contract made between the plaintiff and the school and he also totally denied the fact that the place wherein the construction were made not belonged to the school and he also disowned the liability of paying balance amount to the plaintiff. But during the cross examination, the witness has deposed that the land covering west of Nagapattinam and east of Uthagamandalam and the land belonged to the defendant diocese and the buildings are all belonged to the defendant. He has also further deposed that there are five institutions in Karur which belonged to the defendant. He also admitted the letter dated 05.05.1992, which was signed by one Anbudayan, who was the Treasurer at that time.
13.The written statement was filed by one Treasurer of the defendant, in which, he has stated that there is no privity of contract between the defendant and the plaintiff and at no point of time, the plaintiff was entrusted with the work of said construction. Further, the construction of the shopping complex was undertaken only by the authorities of the CSI Industrial School without any concurrence of the defendant, and the part payment of Rs.2,23,000/- out of the amount of Rs.2,53,080/- was denied by the defendant. Further, he has deposed before the trial court that he does not know anything about where the constructions were made.
14.Ex.A1 is the letter written by the plaintiff, who is the contractor addressing the diocesan Treasurer for the payment of the bill amount, in which the plaintiff has stated that the said construction work of shopping complex was entrusted to him under the Technical Supervision and Guidance of Devadasan Edward, Technical Adviser and former Principal of Karur Industrial school during 1992-1993 vide Treasurer's letter, dated 05.05.1992. Ex.A2 is also the letter written by the contractor to the correspondent of CSI Boys Elementary school, Karur, for the reimbursement of the amount that he has incurred for the shed works of the shopping complex.
15.In the plaint the plaintiff has made a mention about the letter written by the defendant on 05.05.1992 entrusting the plaintiff with the work of construction of shopping complex. The xerox copy of the said letter is available on record. The defendant has not stated anything about the said letter in his the written statement or in his evidence. The said letter dated 05.05.1992 is written by the diocean's Treasurer Anbudayan, in which, it has been stated that ?to speed up the construction work, E.Edward Devadasan and K.Sadayandi, the contractor who are already engaged in construction work as KTS compound are requested to take up the construction work?. It is also further stated that ?the construction cost must be deposited with the diocese and you are requested to supervise the work. The funds will be released only after you give a report about the work?. The xerox copy of the said letter was filed by the plaintiff. And since the original letter is with the defendant diocese the said document could not be marked before the trial court. Though it is a xerox copy of the document the contents of the document reveals that the funds will be released only after the report produced to the diocese Treasurer Anbudayan.
16.Already, a CRP has been preferred by the plaintiff against the order passed in C.M.P.No.6101/01 which was dismissed by giving a finding that ?the revision petitioner can also call upon the author of the document to produce the original document? and it also stated that ?in as much as the defendant has taken a stand that it is not in a position to produce the document it is open to the revision petitioner to require the court to draw adverse inference against the respondent in the course of the proceedings for non production of the original document.? Though the written statement is filed by the Treasurer of the defendant / school and he has also authorised to give evidence in this case he simply denied the signature of the one Treasurer Anbudayan who has given the letter dated 05.05.1992. Hence this witness cannot disown the liability of payment of the said amount which has been incurred by the plaintiff.
17.It is also observed from the document that the six shops were constructed in the campus of Karur CSI Boys school which is under the Administration of the defendant. On a perusal of the xerox copy of the document filed by the plaintiff regarding the construction of the work that has been entrusted to the plaintiff, it is observed that the defendant cannot disown the liability as the correspondent himself cannot entrusted the contract work without the permission of the diocese. It is also admitted by DW1 that the during time of the construction work, one Chandra Sekaran was the correspondent. It is also observed that even in the plaint averments the plaintiff has made a mention about the letter, dated 05.05.1992, but nothing has been stated by the defendant in the written statement. Hence even in the absence of the original letter that the defendant is bound to produce the same before the court, but he has not produced. The xerox copy of the letter filed on the side of the plaintiff has to be considered. Though the defendant deposed that he knows the signature of Anbudayan, the then Treasurer, his denial of the signature in the letter dated 05.05.1992, proves that purposely he is making a false evidence before the court. Hence from the evidence and the documents filed before the trial court it is observed that the shops are constructed in the Karur CSI Boys school and the building everything belongs to the school and that the said building was constructed with the permission of the defendant and further a portion of the amount has also been paid and the defendant is liable to pay the balance amount to the plaintiff. The appellate court after analysing the evidence and the documents and finding given by the trial court confirmed the judgment of the trial court.
18.In view of the documents and evidence placed by both parties, it is observed that the CSI school as well as the buildings within the said District are under the control of the defendant. It is also proved from the xerox copy of the letter that the plaintiff is entrusted with the construction work in the CSI school complex, Karur. Hence the arguments advanced by the appellant counsel based on the case laws
1.P.Subramania Chetty Vs. P.N.Narayana reported in 2015 (1) CTC 750,
2.(Thirumulu) Subbu Chetti Vs. Arunachalam Chettiar reported in A.I.R 1930 Madras 382,
3.The Karnal Distillery Co.(P) Ltd., Vs. Union of India etc., reported in AIR 1977 SUPREME COURT 509,
4.Union of India Vs.Millenium Mumbai Broadcast (P) Ltd., reported in (2006) 10 Supreme Court Cases 510,
5.Commercial Auto Sales Private Limited Vs. Auto Sales (Properties) reported in (2009) 9 Supreme Court Cases 620,
6.Nandganj Sihori Sugar Co.Ltd., Rae Bareli and another Vs. Badri Nath Dixit and others reported in AIR 1991 SUPREME COURT 1525.
that there is no privity of contract between the plaintiff and the defendant is not acceptable one. Regarding the claim of the plaintiff no specific denial has been made by the defendant either in the statement or during the evidence. Hence from the evidence and documents, it is clearly observed that the defendant is liable to pay the balance amount of the construction work done by the plaintiff.
S.RAMATHILAGAM, J.
TM
13.Hence it cannot be said that there is no necessary proof as to the privity of contract, since the defendant has failed to produce the original letter dated 05.05.1992 filed by the plaintiff. Hence it cannot be stated that there is no privity of contract . It cannot be said that there is no privity of contract between the parties since the defendant has not made any denial about the letter dated 05.05.1992. Hence granting of decree in favour of the plaintiff is not liable to be interfered with.
14.Hence, this Second Appeal is dismissed. The judgment and decree passed in A.S.No.105 of 2001, dated 02.04.2002 on the file of the Principal District Court, Karur is confirmed. No Costs. Consequently, connected miscellaneous petition is closed.
To
1.The Principal District Judge, Karur.
2.The Subordinate Judge, Karur.
3.The Section Officer, E.R.Section/V.R.Section, Madurai Bench of Madras High Court, Madurai.
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