Bangalore District Court
M/S City Construction And Contractors vs Shariff Sait on 28 March, 2024
IN THE COURT OF LXXXIX ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU. (CCH-90)
PRESENT: Sri.S.J.Krishna, B.Sc., LL.B.,
LXXXIX Addl.City Civil &
Sessions Judge, Bengaluru.
Dated: 28th MARCH 2024
Com.O.S.No.7497/2018
PLAINTIFF : M/s.City Construction & Contractors,
A Proprietorship Concern,
having its Office at No.40,
Muneshwara Block,
Matadahalli, R.T.Nagar Main Road,
Bengaluru-560 032,
Represented by its Proprietor
Mr.Mohammed Saif,
Aged about 36 Years,
S/o Late Mohammed Ghouse,
(By Mr.Imtiaz Ahmed Khan, Advocate)
-Vs-
DEFENDANTS 01. Mr.Shariff Sait,
Aged about 56 years,
S/o Mr.Abdul Azeez,
Since Deceased by LR's
1(a) Sri.Shejan Sharif
Aged about 56 years,
S/o Late Shariff Sait
/2/
Com.OS.No.7497/2018
1(b) Sri.Faizan Sharif
Aged Major,
S/o Late Shariff Sait.
Both are Residing at
No.1, Srivaikunta Nilaya,
Opp.Hulimavu Gate,
(Padmini PG for Gents),
Near Matrushri Nursing Home,
3rd Lane Left Side,
Bannerghatta Main Road,
Thimappa Reddy Layout,
Omkar Nagar, Hulimavu,
Bengaluru-560 076.
02. Mrs.Javeria Shariff,
Aged about 50 years,
W/o Mr.Shariff Sait,
Both are R/at
No.1, Srivaikunta Nilay,
Opp.Hulimavu Gate,
(Padmini PG for Gents),
Near Matrushri Nursing Home,
3rd Lane Left Side,
Bannerghatta Main Road,
Thimappa Reddy Layout,
Omkar Nagar,
Hulimavu,
Bengaluru-560 076.
(By Sri.K.V.Venkatesh, Advocate)
`Date of Institution of : 12.10.2018
1suit
Nature of suit : Money Suit
(suit on pronote, suit for
declaration and
possession suit for
/3/
Com.OS.No.7497/2018
injunction, etc.,)
Date of commencement : 07.02.2020
of recording of evidence
Date of judgment : 28.03.2024
Total duration : Year/s Month/s Day/s
05 05 16
(S.J.KRISHNA)
LXXXIX ADDL.CITY CIVIL &
SESSIONS JUDGE, BENGALURU.
(CCH-90)
JUDGMENT
The plaintiff has filed this suit against the defendants praying the Court to pass a Judgment and decree in favor of the plaintiff and against the defendant directing
a) Declaring that the plaintiff is entitled for specific performance of that part of contract dated 15.07.2017 and it is entitled for a sum of ₹.40,02,804/- jointly and severally from defendants and to complete the construction as per agreed terms upon receipt of periodical payments from defendants as and when it is due from them.
b) In the alternative directing the defendants jointly and severally to pay plaintiff a sum of ₹.40,02,804/- along with interest on the aforesaid amount from the date of suit till its realization at the rate of 18% P.A. since the construction/transaction carried out is being commercial in nature.
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c) To pay the cost of plaintiff throughout by the defendant herein, including the advocate fee and junior advocate fee payable as per Civil Rules of Practice and
d) For such other relief or reliefs as this Hon'ble Court deems fit to grant under the facts and circumstances of the case, in favor of the plaintiff, in the interest of justice and equity.
The summary of the case of the plaintiff is as follows:
02. The plaintiff is a proprietary firm working in the field of civil constructions for the past several years and is running its business in the name and style of M/s.City Construction & Contractors. The plaintiff has executed several constructions in and around Bengaluru.
03. The defendants herein have approached plaintiff for construction of a commercial building with basement, ground, mezzanine plus three upper floors on the property Bg.Municipal No.69, PID No.65-46-69, situated at N.S.Palya, Rastrakavi Kuvemput Nagara, Bengaluru measuring East to West:18:29 Meters and North to South 12.19 Meters, totally measuring 2400 Square Feet.
/5/ Com.OS.No.7497/2018
04. After due negotiations on the construction works and payments, both plaintiff and defendants have come to a conclusion and the defendants have accepted the quotation to the plaintiff and both plaintiff and defendants have signed the contract agreement for construction of commercial building with basement, ground mezzanine plus three Upper Floors with specifications of constructions specifically written in the said contract for a total sum of ₹.1,33,20,000/- on 15.06.2017 and the structural drawing has been made by well qualified structural engineer and approved by the defendants.
05. In the aforesaid contract, plaintiff has specifically and categorically stated the nature of works to be executed by the plaintiff and also the mode of payments to be released by the defendant as per the payment terms specified in the aforesaid contract.
06. As per the payment terms, the defendants have agreed to release the first payment of ₹.4,00,000/- at the time of execution of the basement, the second payment of ₹.5,00,000/- at the time of execution of ground floor work and the third payment of ₹.5,00,000/- at the time of Mezzanine moulding and subsequent payments proportionately released at the time of each slab moulding. Even though the defendants have agreed to release the payments stage wise, /6/ Com.OS.No.7497/2018 the defendants have released only a total sum of ₹.21,00,000/- on different dates, which is not as per the promise of the contract before Mezzanine moulding. The plaintiff has completed Mezzanine moulding of the commercial building and demanded the defendants to release the payments for further constructions, as promised in the contract but the defendants requested the plaintiff to go for the ground floor moulding of the premises by promising to release the payments. However, the defendants have not released any payments even thought the moulding of the basement completed and subsequently by giving one or the other reasons and convinced the plaintiff and expressed their difficulty in arranging the money and promised to release further payments immediately by availing security deposit for the ground and first floor premises before going further constructions and somehow plaintiff managed and constructed the ground floor moulding, first floor moulding without getting any further payments from defendants. That purely based on the trust and assurances given by the defendants, plaintiff has completed the construction up to the second floor of the commercial premises by investing huge money from his pocket and also managed the material contractors and laborers with a great hope that the defendants will release the funds immediately. That while doing excavation of the earth, plaintiff has noticed water bed /7/ Com.OS.No.7497/2018 on four feet depth from the ground and defendants were totally aware of the same, have not disclosed earlier to the plaintiff thereby plaintiff has undergone severe financial loss in construction even though he has constructed up to the second floor of the building.
07. As per the expenses worked out by the plaintiff, a total sum of ₹.60,99,804/- is the promised amount to be released to the plaintiff to construct up to the second floor moulding and out of which the defendants have paid a total sum of ₹.21,00,000/- and ₹.39,99,804/- is due to the plaintiff for the works completed. After completion of the said work and also during the pendency of the said work, plaintiff kept on requesting the defendants to release the balance amount which the plaintiff has spent for the construction of the commercial building out of his pocket and the plaintiff is liable to pay to the material suppliers and workers. The plaintiff is unable to continue the work in the said premises due to the non-release to funds by the defendants, thereby due to said delay, the plaintiff is loosing his precious time and also the salary of the watchman and workers and also the material dumped in the sites including electrical, plumbing and other materials are getting rusted due to the delay in construction and the plaintiff further submits that if the same is continuously kept idle, it cannot be reused for any /8/ Com.OS.No.7497/2018 construction purpose. Off late, when the demand of plaintiff for the payment was frequent and continuous, the defendants started acting indifferently and started avoiding phone calls and availability.
08. He has come to know through reliable source i.e., watchman and family occupied in the premises that the defendants are making hectic efforts to cheat the plaintiff and had over the work to the third party contractors to complete the work through them without paying the balance payment.
09. The overall conduct of the defendants in inducing the plaintiff to construct the building by investing huge sums and later defrauding him without performing the covenants of contract and the reluctance in not responding to plaintiff manifests the fact that the defendant would not return the money without the intervention of this Hon'ble Court. The defendant shall specifically perform their part of covenant of contract and the plaintiff is entitled for specific performance of the contract it entered with the defendants. Hence, this suit.
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10. As on the date the plaintiff is entitled from the defendants that the following amount, viz., Sl.No. Description Amount in ₹.
1. Total Cost of construction 60,99,804-00 made by plaintiff for the defendants in Schedule Property
2. Total payment made by 21,00,000-00 the defendants to plaintiff so far
3. Balance amount due to 39,99,804-00 the plaintiff to construct up to second floor moulding
4. Cost of Legal Notice 3,000-00
5. Total Balance payable 40,02,804-00 as on date
11. The plaintiff is always ready and willing to perform his part of contract provided that the defendants do ready and willing to comply with their part of performance of contract mutually agreed between them. However, the defendants are not coming forward to make periodical payment as agreed.
12. The plaintiff got issued by the legal notice to defendants informing the same and seeking immediate payment for the construction carried out by the plaintiff.
/10/ Com.OS.No.7497/2018
13. The legal notice sent by the plaintiff has been duly served on defendants but they have neither come forward to make payment nor comply with the demands made in the aforesaid legal notice.
14. The overall conduct of defendants clearly suggest that the defendant would not make payment for the construction so far made nor allow the plaintiff to complete the construction unless the intervention of this Court.
15. The cause of action to file the suit initially arose on 15.06.2017 and subsequently within the jurisdiction of this Court. Hence, the suit.
16. After the service of summons the defendants appeared through their advocate. The defendant No: 1 & 2 have filed their written statement. During the pendency of the suit the defendant No:1 passed away. His LRs were brought on record. The LRs of deceased defendant No;1 have filed their written statement. The averments made by the LRs of defendant No:1 and the averments made by defendant No;2 in her written statement are identical.
/11/ Com.OS.No.7497/2018 The summary of the case of defendants is as under:
17. The suit filed by the plaintiff is not maintainable either in law or on facts and liable to dismissed.
18. There is no cause of action against these defendants hence in view of the law laid down by the Honorable Apex court case, the suit against these defendants is liable to be dismissed at the threshold itself.
19. The averments made in para no, 3 of the plaint that are true, and further averments made in the para no,4 of the plaint that are denied as false and the plaintiff is strict proof of the same and it is very important note that the defendant 1 and 2 have never executed any registered agreement in favor of the plaintiff. It is true that initially the plaintiff who is a builder contractor approached the defendants that he would renovate and rebuild entire building by demolishing the existing building so that they could earn money. The defendants came to know about the plaintiff only through media (news paper) having the approached the defendants, the plaintiff persuaded defendants for getting the new plan for putting up a commercial building in place of existing building so that he could continue with the construction /12/ Com.OS.No.7497/2018 activity. The defendants have approached the BBMP and obtained sanctioned plan vide LP NO.AD, COM/SUT/ 0470/2017- 2018 dated 07-11-2017. The defendants also approached the Bengaluru City Co-operative Bank. Chamarajapete branch Bangalore and availed financial assistance to a tune of ₹.1,75,00,000-00 by mortgaging the original documents pertaining to the schedule property and that the said bank is the custodian of all the original documents. The defendants entrusted the construction work to the plaintiff and paid a sum of ₹.26,00,000=00 twenty six lakhs (₹.21.00,000 by way of RTGS and cheques and 5,00,000=00 by way of cash).
20. The averments made in the para no,5 are the denied as false, and the defendant no, 1 and 2 have never executed any registered agreement in favor of the plaintiff. The plaintiff has prepared an estimate in his letter head for the approval of the defendants. The plaintiff has to furnish his contract license copy to the defendants and after verifying the same the defendants were required to execute agreement on stamp paper as per agreed in terms and conditions of contract between them.
21. The averments made in the para no, 6 of the plaint that are specifically denied as false' and it is created truth and /13/ Com.OS.No.7497/2018 far from hence the plaintiff is strict to proof of the same and it is important true fact that the plaintiff has received the money more than the eligibility i,e, the plaintiff was eligible only for ₹.14,00,000/- till the completion mezzanine floor. However the plaintiff by demanding the further amount stopped construction during the first week of July 2018 itself, soon after finishing the slab work of the mezzanine floor, thus the contract/ quotation dated 15-06-2017 automatically stands terminated and the plaintiff is liable to pay the rents to the defendants which they were getting from the building before demolition, if the building is not completed within the outer limit from 5.06.2017. The defendants could not arrange the money as illegally demanded by the plaintiff since the bank which financed the defendants released only in part depending upon the progress of the construction that too in stages and on the quality of construction. During the first week of August, the officials of the bank visited the schedule premises and found that the construction of building may cause threat not only to the building but also the occupants, in future as steel used for the pillars are already started dropping since the steel used is of lower and cheep quality. The defendants got annoyed by this and when called upon the plaintiff instead of the rectifying his mistakes got issued frivolous notice dated 07-08-2018. He has spoiled construction. The plaintiff has made illegal demands made in /14/ Com.OS.No.7497/2018 the notice. The plaintiff is interfering with the prospective tenants who are visiting the premises in anticipation of the building to be let out. The plaintiff has no manner of right, title, or interest over the schedule property.
22. The averments made in the para no, 7 of the plaint that as per the expenses worked out by the plaintiff a total sum of Rs,60,00,000-00 is the promised amount to be released to the plaintiff to construct up to the second floor molding and out of which the defendants have paid a total sum of ₹.21,00 000/- and ₹.39,00,000/- is due to the plaintiff are denied as false and the plaintiff is trying suppress the true facts before this Court to get an unjustifiable order. The averments made in the same Para are all created one and far from the truth. Hence the plaintiff is put to strict proof of the same. Further, the defendants have paid ₹.21,00,000/- by way of RTGS and Cheque and also ₹.05,00,000/- in cash to the plaintiff. The plaintiff has refused to agreed receipt of 5,00,000/- from defendants by way of cash and other averments made in para no, 7, 8 and 9 of the plaint are denied as false and created by the plaintiff only to get Sympathy of this Hon'ble court. Hence the above suit is liable to be dismissed.
/15/ Com.OS.No.7497/2018
23. The averments made in para 10 of the plaint that as on the date the plaintiff is entitled from the defendants a total balance payable as an date is ₹.40,02,804/- is totally false and the plaintiff is strict proof of the same.
24. The averments made in para 11 of the plaint that the plaintiff is always ready and willing to perform his part of contract provided that the defendants are ready and willing to comply with their part performance of contract mutually agreed between them; however the defendants are not coming forward to make periodical payments as agreed, is totally denied as false and the plaintiff has received the money more than the eligibility i.e., the plaintiff was eligible only for the ₹.14,00,000/- till the completion of mezzanine floor however, the plaintiff demanding the further amount and stopped construction during the first week of July 2018 itself, soon after finishing the slab work of the mezzanine floor thus the contract/quotation dated 15/06/2017, automatically stands terminated and that the plaintiff is liable to pay rents to the defendants which they were getting from the building before demolition, if the building is not completed within the outer limit from the 15/06/2017 relevant to mention here that the defendants could not arrange the money as illegally demanded by the plaintiff since the bank which financed the defendants would release only in part depending upon the /16/ Com.OS.No.7497/2018 progress of the constructions that too in stages and the quality of the construction. During the first week of August, the bank visited the schedule promises and found that the construction of the building may cause threat not only to the building, but also to the occupants in future as steel used for the pillars are already started dropping since the steel used for the pillars are already started dropping, since the steel used is of a lower and cheep quality, hence the plaintiff has violated the conditions as agreed in quotation dated 15-06- 2017. Hence at this stage the liability of the defendant was to be terminated.
25. The averments made in para no, 12, 13 and 14 of the plaint are partly true that the plaintiff has sent a legal notice to the defendants. All other averments which are not specifically denied herein are denied as false and incorrect and the plaintiff is put to strict proof of the same. The defendants are in the absolute possession and enjoyment of the schedule property without any sort of interference from anybody.
26. There is no cause of action arise to file this case and the plaintiff has not paid proper court fees. Hence the claim of the plaintiff is fraudulent and is liable to be dismissed with costs.
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27. Based on the rival pleadings the following ISSUES are framed:
ISSUES
1. Whether the plaintiff proves that plaintiff is entitled for specific performance of contract dated 15.06.2017?
2. Whether the plaintiff further proves that plaintiff is entitled for a sum of ₹.40,02,804/- jointly and severally from the defendants?
3. Whether the plaintiff further proves that plaintiff is entitled to seek directions to complete the construction as per the agreed terms upon receipt of periodical payments from the defendants as and when it is due from them?
4. Whether plaintiff further proves that plaintiff is entitled for an alternative relief for a sum of ₹.40,02,804/- along with 18% interest per annum from the date of suit till its realization?
5. Whether plaintiff is always ready and willing to perform his part of contract?
6. Whether the defendants prove that, this suit is hit by the provisions of res-judicata in view of O.S.No.6241/2018 pending before City Civil Sessions Judge, Bengaluru, CCH-27?
7. Whether plaintiff is entitled for the reliefs sought for?
8. What Order/decree?
28. The Plaintiff Mr. Mohammed Saif adduced his evidence as PW1. He has exhibited Ex.P1 to Ex.P47. The Defendant No.2 Mrs.Zaveria Sheriff adduced her evidence as DW1. She has not exhibited any documents.
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29. After the conclusion of the trial I have heard the arguments addressed by the learned Advocates for the Plaintiff and defendants.
30. I have gone through the materials available on record.
31. My findings on the above ISSUES are as under:
ISSUE No.1 to 7 : IN THE NEGATIVE ISSUE No.8 : AS PER FINAL ORDER FOR THE FOLLOWING REASONS
32. ISSUE No.1 to 5: The plaintiff has filed this suit against the defendants praying the Court to pass a Judgment and decree in favor of the plaintiff and against the defendant directing
a) Declaring that the plaintiff is entitled for specific performance of that part of contract dated 15.07.2017 and it is entitled for a sum of ₹.40,02,804/- jointly and severally from defendants and to complete the construction as per agreed terms upon receipt of periodical payments from defendants as and when it is due from them.
b) In the alternative directing the defendants jointly and severally to pay plaintiff a sum of ₹.40,02,804/- along with /19/ Com.OS.No.7497/2018 interest on the aforesaid amount from the date of suit till its realization at the rate of 18% P.A. since the construction/transaction carried out is being commercial in nature.
c) To pay the cost of plaintiff throughout by the defendant herein, including the advocate fee and junior advocate fee payable as per Civil Rules of Practice and
d) For such other relief or reliefs as this Hon'ble Court deems fit to grant under the facts and circumstances of the case, in favor of the plaintiff, in the interest of justice and equity.
33. The Plaintiff Mr. Mohammed Saif adduced his evidence as PW1. He has exhibited Ex.P1 to Ex.P47. The Defendant No.2 Mrs.Zaveria Sheriff adduced her evidence as DW1. She has not exhibited any documents.
34. The PW1 has reiterated the plaint averments in his affidavit evidence. The DW1 has reiterated the written statement averments in her affidavit evidence.
35. The Plaintiff has filed this suit seeking the relief of specific Performance of Contract dated:15.06.2017 to direct the defendants to make periodic payments to the plaintiff so as to enable the plaintiff to complete the construction in the /20/ Com.OS.No.7497/2018 suit schedule property; in the alternate to direct the defendants to pay ₹.40,02,804/- towards the expenses incurred by the plaintiff for the partial construction of the commercial building along with interest at 18% p.a. from the date of suit till the date of its realization.
36. The Plaintiff is relying on Ex.P8 dated:15.06.2017. The plaintiff is contending that the plaintiff and defendants have entered into an agreement for construction of a commercial building in the schedule property. The plaintiff has agreed to undertake the construction work at an estimated cost of ₹.1,33,20,000/- subject to payments made by the defendants periodically in tune with the progress of the construction work.
37. The Plaintiff is contending that he has constructed the commercial building up to the second floor. The defendants have paid ₹.21,00,000/- only. In spite of repeated requests and demands made by the plaintiff they have failed to release the payments as agreed by them. The plaintiff has spent his funds to construct the building up to second floor. He has incurred a total expenses of ₹.60,99,804/- The defendants have paid only ₹.21,00,000/-. The plaintiff is entitled to and the defendants are liable to pay ₹.39,99,804/-. The defendants have failed to pay the balance amount in spite of repeated /21/ Com.OS.No.7497/2018 requests and demands made by the plaintiff. Hence, the plaintiff has filed this suit.
38. The defendants are contending that the Ex.P8 relied on by the plaintiff is only an Estimate/Quotation. The Ex.P8 cannot be considered as an agreement for construction entered in to between the plaintiff and defendant. The Ex.P8 is prepared on the letter head of the plaintiff and the document is not at all stamped. It is an unstamped unregistered document as such the plaintiff cannot be allowed to rely on Ex.P8 to enforce his alleged rights.
39. The defendants have admitted that they had entrusted the work of construction of Commercial Building in the schedule property to the plaintiff. The plaintiff has constructed the building up to mezzanine floor and was entitled for payment of ₹.14,00,000/-. However, the defendants have paid ₹.21,00,000/- through RTGS and cheques and ₹.5,00,000/- in cash.
40. The quality of construction made by the plaintiff is very poor, and he has used sub standard materials for construction. Soon after the completion of slab work of mezzanine floor the plaintiff demanded further amount and stopped the construction work during first week of July 2018 /22/ Com.OS.No.7497/2018 itself. Hence, the contract/quotation dated:15.06.2017 stands terminated. The plaintiff is liable to pay the rents to the defendants who they were getting form the building before demolition, if the building is not completed within the outer limit from 15.06.2017. The plaintiff is not entitled for any of the reliefs prayed in the plaint.
41. The PW1 in his cross examination deposed that the agreement for construction between the plaintiff and defendants is not engrossed on stamp paper. The Ex.P.8 is signed by him, defendant No.1, 2 and their son Shezan Sheriff. He denied that Ex.P.8 is not an agreement but only a company letter. He denied that Ex.P.8 has no nexus with the present suit.
42. In Ex.P.8 the address of defendant No.1 Mr. Sheriff Sait and defendant No.2 Smt. Javeria Sheriff are not mentioned. In Ex.P.8 the address of the place where the construction work was proposed is not shown. He has constructed the Commercial Building at BTM layout, 2nd stage, Opp. Home Needs Super Market and besides Airtel office. In Ex.P.8 the description of the property is not shown, as per the usual practice followed in construction projects. He denied that Ex.P.8 is an incomplete agreement for want of description of property; that Ex.P.8 has no nexus to the case on hand. He has /23/ Com.OS.No.7497/2018 filed the suit on the basis of Ex.P.8 and other materials like Photographs, videos and all kinds of bills, invoices which have been already submitted before the Court.
43. He has issued Ex.P.8 to Mr. Sheriff Sait Saheb. In Ex.P.8 it is shown that 'To The Client Mr. Sheriff Sait Saheb, Ms.Javeria Sharif construction work for Commercial building'. He denied that Ex.P.8 is a letter addressed to the client. Ex.P.8 was signed by Mr. Sheriff Sait Saheb and Ms. Javeria Sheriff in their residence. The PW1 voluntarily deposed that that Ex.P.8 is a construction contract. The address of Mr. Sheriff Sait Saheb and Ms. Javeria Sheriff is not mentioned in Ex.P.8. In Ex.P.8 the details of schedule property are not mentioned. In Ex.P.8 it is disclosed that the approximate construction work will be completed in a span of 6 to 8 months. The construction work was delayed beyond the stipulated period in Ex.P.8. He has voluntarily deposed that the delay was due to nonpayment of expenses by defendants in time.
44. The contract was for a total sum of ₹.1,33,20,000/-In Ex.P.8 the total payment option is shown at ₹.40,00,000/-, ₹.50,00,000/-, and ₹.50,00,000/-. He has shown ₹.1,33,20,000/- in Ex.P.8 under the heading payment terms. In the plaint also he has shown the value of total construction at ₹.1,33,20,000/- He has got records regarding the payment of /24/ Com.OS.No.7497/2018 ₹.21,00,000/- made by the defendants as detailed in Para 6 of the plaint. He denied that he was doing piece work only and not a full-fledged contract work.
45. DW1 in her cross examination deposed that Ex.P.8 is not a contract or a agreement it is only a quotation. She has her signature as Ex.P8(a) and the signature of defendant No.1 Sheriff Sait as Ex.P8(b). She is not aware of the signature of the witnesses.
46. She denied that after furnishing quotation as per Ex.P.8 defendants have obtained loan from the Bank even before, they have availed loan from the Bank. She has not furnished any documents before the Court. They have obtained loan from Bangalore City Co-operative Bank approximately by the year 2016 or 2017. She does not remember the loan account number. They have availed loan of ₹.1,75,00,000/- for the purpose of construction.
47. They have paid the amount to the plaintiff and they have not followed the schedule shown in Ex.P.8. They have paid ₹.26,00,000/- to the plaintiff through RTGS/Cheques /Cash. She has paid ₹.5,00,000/- in cash. She has (not) furnished any receipt for having paid ₹.5,00,000/- in cash to the plaintiff. She has been paying ₹.2,00,000/- towards EMI to the Bank.
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48. From the materials available on record it is evident that the plaintiff is contending that the Ex.P8 dated:15.06.2017 is an agreement entered into by the plaintiff and the defendants for the construction of commercial building in the schedule property.
49. The Ex.P8 is prepared on the letterhead of the plaintiff. The recitals made in Ex.P8 shows that it is not an agreement entered into between the plaintiff and defendants. It is a Quotation or estimate prepared by the plaintiff giving a broad outline of the proposed construction project. It does not contain reciprocal promises except giving details regarding the project to be undertaken in a phased manner and the defendants were required to pay the plaintiff in tune with the progress of the work undertaken by the plaintiff. There is no recital in Ex.P8 that the parties i.e. the plaintiff and the defendants are entitled for specific performance of the obligations under Ex.P8. It is pertinent to note that there is no covenant in Ex.P8 that the plaintiff is entitled for the relief of specific performance i.e. in the event of defendants' failure to pay the amount in a phased manner the plaintiff is entitled to undertake further construction work at his cost and the defendants are liable to pay the expenses incurred by the plaintiff. In this case the plaintiff is contending that the defendants were obliged to pay the amount to the plaintiff in a /26/ Com.OS.No.7497/2018 phased manner depending on the work carried out by the plaintiff.
50. The Plaintiff is contending that he has constructed the building up to second floor. The defendants are contending that the plaintiff had stopped the construction work after the construction of mezzanine floor. The DW1 has deposed that on account of poor quality of construction and usage of sub standard materials they have stopped the plaintiff from undertaking further construction.
51. The Plaintiff has not issued any notice to the defendants notifying them that he is ready and willing to go on with the construction and they are liable to pay the amount in the phased manner as estimated in Ex.P8. Ex.P1 is the notice issued by the plaintiff after abandoning the construction work demanding payment of ₹.39,99,804/- along with interest. Hence, Ex.P1 cannot be construed as a notice issued by the plaintiff expressing his readiness and willingness to continue the work.
52. The Ex.P8 has no characteristic of an agreement between the builder and the land owner. Ex.P8 is not prepared on the stamp paper. In such circumstances the plaintiff is not entitled to canvass that Ex.P8 is an agreement entered in to /27/ Com.OS.No.7497/2018 between the plaintiff and defendants in the sense the common man understands an agreement. The Ex.P8 is an estimate or quotation. The plaintiff has failed to establish that he has been ready and willing to perform his part of the obligation as contended by him.
53. From the materials available on record particularly the cross examination of DW1 shows that the construction of the commercial building was completed. The defendant No:2 has let out the property to tenants and is collecting rents to the tune of ₹.3,00,000/- PM. In such circumstances the prayer of the plaintiff that the defendants be directed to allow the plaintiff to go on with construction and make periodical payments in terms of Ex.P8 does not survive for consideration.
54. The Plaintiff has sought for alternate relief of payment of ₹.40,02,804/-along with interest at 18% p.a. from the date of suit till the date of realization.
55. The Plaintiff is contending that he has spent a sum of ₹.60,99,804/- towards the construction up to second floor of the building in the schedule property. He has admitted that he has received ₹.21,00,000/- through RTGS and Cheques from the defendants. The defendants are liable to pay Balance ₹.39,99,804- and ₹.3,000/- towards cost of legal notice in all /28/ Com.OS.No.7497/2018 ₹.40,02,804/-. The plaintiff is also seeking interest at 18% p.a. on ₹.40,02,804/- from the date of suit till the date of realization of entire dues.
56. The defendants are contending that they have paid ₹.21,00,000/- through RTGS and Cheques and ₹.5,00,000/- in cash in all ₹.26,00,000/- though the plaintiff was entitled for payment of ₹.14,00,000/-.
57. The defendants have not placed any materials on record to show that they have paid ₹.5,00,000/- in cash to the plaintiff. Thus, it is held that the plaintiff has received ₹.21,00,000/- only from defendants towards construction work.
58. In the plaint the plaintiff has not disclosed the date of commencement and the date of completion of the work. In order to know the extent of construction undertaken by the plaintiff he has not placed any materials on record. The plaintiff has not furnished any construction plan before the Court.
59. The plaintiff has deposed that he has got a report from an Engineer regarding the construction work taken up by him and the expenses incurred there in, he is able to furnish the same before the Court. He has not disclosed the estimated /29/ Com.OS.No.7497/2018 cost, the actual cost incurred, the extent of construction undertaken by him, the date of commencement and the date of completion of the work in the plaint. He denied that he has not undertaken any construction work in suit schedule property. He has not shown the suit schedule property in Ex.P.1 and Ex.P.8.
60. The Plaintiff has exhibited valuation report issued by Paneetha Consulting Engineers as per Ex.P29. A perusal of Ex.P29 shows that it is undated. It is written in Ex.P29 that it is an abstract of quantities for the construction of commercial building at Site No:69, 7th Main Road, BTM Layout, Bengaluru- 560 007. Nowhere in the Ex.P29 there is any recital that the Consultant has conducted local inspection and informed the defendants about his inspection. In such circumstances it could be safely concluded that Ex.P29 was secured by the plaintiff to suit his convenience. No reliance could be placed on Ex.P29 to hold that the plaintiff has undertaken construction work up to second floor of the building.
61. In Ex.P.1/Notice or Ex.P8/Estimate/Quotation, the date of commencement of construction and date of completion of work is not shown.
/30/ Com.OS.No.7497/2018
62. The Plaintiff has exhibited Ex.P15/JCB Payment bill; Advance Payment Bill as per Ex.P16(1) to (8); Water Pumping Payment Bills/Ex.P17; Electrical Payment details/Ex.P18; Electrical Payment details/Ex.P19(1) to (5); M-sand and P Sand and Gelly payment/Ex.P20, M-sand and P Sand and Gelly payment/Ex.P21(1) to (15), Labor payment details as per Ex.P22, Advance payment slips as per Ex.P23(1) to (61), Blocks payment details/Ex.P24(1) to (13); M-sand and P-sand and gelly payment details/Ex.P26(1) to Ex.P(15); Cement Payment details/Ex.P27(1) to (18), Steel and ready mix concrete invoices Ex.P28(1) to (43), Tax Invoice Cash Credit No:112 dated:25.08.2017/Ex.P27(19); ITRs Ex.30 to Ex.P32; Statement of summary account Ex.P33 to Ex.P47 to show that he has incurred expenses towards construction of the building in the suit schedule property.
63. On a careful perusal of the documents produced by the plaintiff it is evident that none of the bills show that the same were raised in respect of the construction undertaken by the plaintiff in the suit schedule property. The bills furnished by the plaintiff show the GST numbers in some of the bills that were raised even before the advent of GST Act (01.07.2017), which creates doubt regarding the genuineness of the documents. The PW1 has deposed that since the authority has not demanded the filing of returns he has not submitted GST /31/ Com.OS.No.7497/2018 Returns.
64. All the bills are raised in the name of plaintiff company 'City Constructions and Contracts'. In Ex.P.21(8) and 21(13) GST Number are not shown. The plaintiff has deposed that he has paid Labor bills exceeding ₹.20,000/- in cash as per the demand made by the Laborers. However, as per IT Rules, the plaintiff was precluded from making payment in cash in excess of ₹.20,000/-. The mere exhibiting of certain bills standing in the name of the plaintiff in respect of construction materials does not establish that the said materials were utilized for the construction of the building in the schedule property.
65. The Plaintiff has not furnished any materials to show that he has notified the defendants as and when he had purchased the construction materials to be utilized for the construction of building in the schedule property. Mere exhibiting of photographs does not enure to the benefit of the plaintiff that he has utilized all the materials under the bills exhibited by him were utilized for the construction of building in the schedule property. The plaintiff has failed to furnish the detailed break-up of the amount spent by him in stages for the construction of the building up to second floor. The plaintiff being a construction contractor might have purchased the /32/ Com.OS.No.7497/2018 construction materials for his other projects. The bills exhibited by the plaintiff do not guarantee these materials were utilized for the purpose of construction of building in the schedule property for want of counter signature by the defendants. The plaintiff has failed to establish that he has spent ₹.60,99,804/- towards the construction of building in the schedule property and is entitled to recover ₹.39,99,804/-. When the plaintiff has failed to prove his entitlement to recover ₹.39,99,804/- from the defendants the question of awarding interest does not arise at all. In view of the above discussion it is evident that the plaintiff has failed to prove ISSUE No.1 to 5. Accordingly, ISSUE No.1 to 5 are answered in the NEGATIVE.
66. ISSUE No.6 : The defendants are contending that the suit filed by the plaintiff is barred by res-judicata in view of O.S.No.6241/2018 pending before City Civil & Sessions Judge, Bengaluru CCH-27.
67. The Plaintiff or the defendants have not furnished copies of order sheet, plaint pertaining to O.S.No:6241/2018. However, there is no dispute that the defendants had filed O.S.No:6241/2018.
68. The DW2 deposed in her cross examination that 'When the police warned the plaintiff not to interfere with their property, She has withdrawn O.S.6241/2018. The defendant /33/ Com.OS.No.7497/2018 No.1 was looking after the suit and police proceeding. Her husband had filed a complaint against the plaintiff complaining that he was pressurizing the defendants to reimburse the alleged expenses incurred by him. She denied that she is falsely deposing that her husband had filed a police complaint against the plaintiff. She has not furnished any documents pertaining to O.S.6241/2018 or police complaint.'
69. It appears from the above evidence that probably the defendants had filed O.S.No:6241/2018 seeking relief of permanent injunction against the plaintiff herein. In the absence of proper materials to examine whether the principles of res-judicata is attracted to the present case, the contention of the defendants deserve to be dismissed without further discussion. Accordingly, ISSUE No.6 is answered in the NEGATIVE.
70. ISSUE No.7 : In view of above discussion and findings on Issue No:1 to 6, the plaintiff is not entitled for the suit reliefs. Accordingly, ISSUE No.7 is answered in the NEGATIVE.
/34/ Com.OS.No.7497/2018
71. Issue No.8: In view of my findings on Issue No:1 to 7, I pass the following:
ORDER The suit filed by plaintiff is hereby dismissed with costs.
Draw decree accordingly.
The office is hereby directed to send a copy of the judgment to the plaintiff and the defendants through e-mail as per Order XX Rule 1 CPC as amended by Section 16 of Commercial Courts Act, 2015.
(Dictated to the Stenographer, corrected, signed and then pronounced by me in the open court on 28th day of MARCH 2024) (S.J.KRISHNA) LXXXIX ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU.
(CCH-90) /35/ Com.OS.No.7497/2018 ANNEXURES List of witnesses examined for the plaintiff:
P.W.1 : Mr.Mohammed Saif List of documents exhibited on behalf of the plaintiff:
Sl. Particulars of Documents Ex.P.
No.
01. Office Copy of legal notice dated 07.08.2018 Ex.P.1
02. Two RPAD Receipts Ex.P.1(a) &
(b)
03. RPAD Acknowledgment Ex.P1(c)
04. Signature of the wife of defendant Ex.P.1(d)
05. RPAD Acknowledgment Ex.P1(e)
06. Signature of the Wise of defendant Ex.P.1(f)
07. Five Photos Ex.P.2 to 6
08. CD Ex.P.7
09. Contract agreement for commercial building EX.P.8
dated 15.06.2017
10. GST registration certificate Ex.P.9
11. VAT Certificate Ex.P.10
12. Pass book ICICI Ex.P.11
13. Udyog Aadhar Memorandum (MSME Ex.P.12
certificate)
14. Udyog registration certificate Ex.P.13
15. Form-C Ex.P.14
16. JCB payment bill Ex.P.15
17. Advance payment bill 8 no's Ex.P.16(1)
/36/
Com.OS.No.7497/2018
to (8)
18. Water pumping payment bills Ex.P.17
19. Electrical payment details(city Construction Ex.P.18 and contract)
20. Electrical payment details(city Construction Ex.P.19(1) and contract)-advance payment slips 5 no's to (5)
21. M-sand, and P-sand and Gelly payment Ex.P.20 (city Construction and contract)
22. M-sand, and P-sand and Gelly payment Ex.P.21(1) (city Construction and contract)-payment to (15) vouchers 15 no's
23. Labour payment details (city Construction Ex.P.22 and contract)
24. Advance payment slips (city Construction Ex.P.23(1) and contract) 61 no's to (61)
25. Blocks payment details (city Construction Ex.P.24(1) and contract)-Tax invoices 13 no's to (13)
26. Cement payment details (city Construction Ex.P.25(1) and contract)-Tax invoices 19 no's to (19)
27. M-sand and P-sand and gelly payment Ex.P.26(1) details (city Construction and contract)-12 to (12) no's
28. Cement payment details (city Construction Ex.P.27(1) and contract)-Voucher 19 no's to (18)
29. Tax Invoice Cash credit No. 112 dt Ex.P.27(19) 25.08.2017 for ₹. 27,000/-
30. Steel and ready mix concrete invoices 43 Ex.P.28(1) no's to (43) /37/ Com.OS.No.7497/2018
31. Estimation report issued by Paneetha Ex.P.29 Consulting Engineers
32. Acknowledgment for having filed ITR-2016- Ex.P.30 17 along with statement of Income
33. Acknowledgment for having filed ITR-2018- Ex.P.31 19 along with profit and loss account, Balance sheet
34. Acknowledgment for having filed ITR-2019- Ex.P.32 20 along with statement of Income, Profit and loss account and Balance sheet
35. Statement of summary account as on Ex.P.33 30.06.2017
36. Statement of summary account as on Ex.P.34 31.07.2017
37. Statement of summary account as on Ex.P.35 31.08.2017
38. Statement of summary account as on Ex.P.36 30.09.2017
39. Statement of summary account as on Ex.P.37 31.10.2017
40. Statement of summary account as on Ex.P.38 30.11.2017
41. Statement of summary account as on Ex.P.39 31.12.2017
42. Statement of summary account as on Ex.P.40 31.01.2018
43. Statement of summary account as on Ex.P.41 28.02.2018
44. Statement of summary account as on Ex.P.42 31.03.2018
45. Statement of summary account as on Ex.P.43 30.04.2018 /38/ Com.OS.No.7497/2018
46. Statement of summary account as on Ex.P.44 31.05.2018
47. Statement of summary account as on Ex.P.45 30.06.2018
48. Statement of summary account as on Ex.P.46 31.07.2018
49. Statement of summary account as on Ex.P.47 31.08.2018 Note: It is notice that while marking exhibits on behalf of plaintiff due to inadvertent mistake it is recorded Ex.P25(1) to Ex.P25(19) though the said documents are into exhibited by PW1; likewise while marking Ex.P26(1) to Ex.P26(15) and Ex.P27(1) to Ex.P27(19) they are typed as Ex.P26(1) to Ex.P26(12) and Ex.P27(1) to Ex.P27(18). After hearing the learned counsel on record the said mistakes are rectified and for the sake of convenience the Sl.No. given to the exhibits are maintained and it shall be treated that no exhibit is marked in Ex.P25(1) to Ex.P25(19).[Order dated:05.11.2022] List of witnesses examined for the defendant/s:
Mrs.Javeria Sheriff List of documents marked for the defendant/s: NIL (S.J.KRISHNA) LXXXIX ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU.
(CCH-90)
****
Digitally signed
SJ by S J KRISHNA
KRISHNA Date: 2024.04.04
03:04:49 -0400