Bangalore District Court
Sri. Dorababu vs Sri. C.V.Jagadish on 3 June, 2019
IN THE COURT OF XVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (C.C.H.16)
Dated this 3 rd Day of June, 2019
Present: Sri. R. Ravi,
B.Sc., LL.B.
XVII Addl. City Civil & Sessions Judge.
O.S.No. 4663/2010
Plaintiff/s : Sri. Dorababu
S/o V.Doraswamy
Aged about 35 years,
Proprietor of Raghavendra
Constructions,
No.22, Chowdappa Coconut Garden
Hoskerehalli, Banashankari II Stage
Bengaluru - 560 085.
[By Sri. H.N., Adv.]
-Vs-
Defendant/s : 1. Sri. C.V.Jagadish
S/o Late C.L.Venkat Rao
Aged about 49 years,
2. Smt. Saritha Jagadish
W/o C.V.Jagadish
Aged about 45 years,
Both Residing at No.12/1,
Old No.316, 12th 'A' Main,
6th Block, Rajajinagar,
Bengaluru - 560 010.
[By Sri. R.H., Adv.]
Date of institution of the suit 03.07.2010
Nature of the suit Money Suit
Date of commencement of 11.6.2014
recording the evidence
2 OS.No.4663/2010
Date on which the judgment 03.06.2019
was pronounced
Total duration Years Months Days
08 11 00
(R. Ravi),
XVII Addl. City Civil & Sessions Judge.
************
J UD GM E N T
This is a suit for recovery of money.
2. The case of the plaintiff is that, he is a contractor
who takes up works of constructing residential and
commercial buildings and he is doing the construction work
from the past 10 years. The defendants being the owners of
property bearing No.316, 12th 'A' Main, 6th Block, Rajajinagar,
Bengaluru measuring East to West 30 feet and North to
South 15 Feet, approached the plaintiff with the proposal to
construct a residential building on the basis of item rate
material contract and they mutually agreed on certain terms
and conditions and the same was reduced to writing as
agreement on 8.3.2007. Sri. Srikanta Murthy N., Proprietor of
Rachana the design studio, No.1999, 2 nd Floor, 23rd Cross,
Banashankari II Stage, Bengaluru was appointed as Architect
by the defendants and it was agreed that the payment shall
3 OS.No.4663/2010
be made as per stage wise after the bills being checked and
approved by the Architect. Initially as per the designs
finalized with the help of the Architect they had requested the
plaintiff to make provision for an internal steel staircase from
the 1st floor onwards for the building to have approach to the
upper floors and as per the request of the defendants, the
plaintiff after taking necessary drawing had left only cut out
space which suited installation of internal steel staircase and
the internal steel staircase usually will be installed at the end
of the project for the reason that if it is installed earlier, there
will be chances of the steel staircase being damaged and
alignment will change as lot of materials will be carried
through the staircase and as there are also chances of
damage at the time of removing centering for roof concrete
casted and other construction activity which takes place.
However, in the defendants property the entire materials was
being carried through the adjacent building with an idea of
putting the internal steel staircase in the last and this has
cost additional amount and labour for the plaintiff. The
defendants after completion of masonry works, in the first
week of April, 2008, the defendants requested the plaintiff
that they need a regular concrete staircase instead of a steel
4 OS.No.4663/2010
staircase, due to cost of steel being on higher side as on that
date, for which reason the plaintiff was forced to rework on
the entire work by sitting with the Architect and the plaintiff
in this regard many times advised that the present open
space left is suitable for steel staircase and not suitable for
regular concrete staircase, however the defendants did not
heed to the advise of the plaintiff and the Architect and
forced them to construct a regular concrete staircase, which
was constructed by the plaintiff with necessary head room
required for movement. As on the date the plaintiff has
constructed basement, ground, first, second and terrace floor
and the total cost of the construction is Rs.13,04.145. 81
which includes the cost of construction and escalation of
material cost. Out of the said sum of Rs.13,04,145.81 the
plaintiff as on the date has received a sum of Rs.11,13,019/-
including the mobilization amount and the defendants have
kept the balance amount payable to the plaintiff which is ten
times more than the retention amount, hence the defendants
on any ground cannot state that did not keep the retention
amount. As per the Fourth Pre-final bill, the Architect had
certified that the plaintiff was entitled for a sum of
Rs.2,34,180/- and as against the aforesaid bill, the
5 OS.No.4663/2010
defendants have made a payment of Rs.1,00,000/- by way of
cash and were due to pay the balance sum of Rs.1,34,180/-
and the plaintiff continuously demanded for the above said
payment, but the defendants went on postponing on one
pretext or the other and in the meanwhile under the hope of
getting the final amount, after house warming ceremony
carried further works to the tune of Rs.60,446 and hence in
all the defendants were due to a sum of Rs.1,94,626/-. The
plaintiff waited patiently for a year expecting the payment of
due amount from the defendants and during the said one
year the defendants did not raise the question of quality
constructions or any other defects against the plaintiff. The
plaintiff on 4.12.2009 issued a notice to the defendants
calling upon them to make payment of Rs.1,94,626 and in
response to the notice, the defendants sent an untenable
reply making false contention that the plaintiff did not
execute the work professionally and the work was not
completed and some of the works were completed by them
and further made a claim of Rs.9,00,000/- for deficiency of
service. If really, as alleged by the defendants if the quality of
constriction was not good, the defendants had remedy to
terminate the contract and if really the plaintiff had not
6 OS.No.4663/2010
completed the work then the defendants could have filed a
case for deficiency of service or could have called upon the
plaintiff to complete the work, which clearly establishes that
the defendants to avoid the payment due to the plaintiff have
caused such a reply making false allegation of deficiency of
service and have also filed a complaint before the Consumer
Forum thereby making it clear that the action of the
defendants is clearly an afterthought act to deny the claim of
the plaintiff. Hence, the plaintiff left with no other remedy is
constrained to file the present suit seeking recovery of the
amount due to him by the defendants.
3. On the other hand, the defendants have filed their
written statement and denied the averments of the plaint as
false and incorrect and further contended that as per
Defective Premises Act, 1972 the plaintiff is obliged to fulfill
all the terms of Articles of Agreement in toto and to take
utmost care and use his professional and technical skills in
executing the project properly and he has hopelessly failed in
this and hence his claim for money is not tenable. The
plaintiff's claim against these defendants without impleading
the Architect as necessary and proper party to the
proceedings must fail. The defendants never approached the
7 OS.No.4663/2010
plaintiff and it was one Srikanta Murthy N., the Architect
who introduced and appointed the plaintiff as Contractor to
build the house and in October 2006 the defendants first
approached the Architect Srikanta Murthy N. with a request
to design and construct residential building for them on their
ancestral property and their request was to construct 2
residential buildings on the site which was to be partitioned
between them and their sister-in-law/Co-sister
Mrs.J.N.Sandhya into two sites measuring 15 x 30 feet and
since they did not know anyone in the filed of construction
and requested the Architect to provide all the services right
from demolition of the old building till the completion of
newly built 2 residential houses. On 05.03.2007, the
defendants and Mrs.J.N.Sandhya entered into a Contract
Agreement with the Architect, who introduced them to the
plaintiff and the plaintiff had come to the office of the
Architect and on 8.3.2007 Bhoomi Pooja was performed for
both the projects and formally started the foundation work
and in the evening the Articles of Agreement was entered. In
respect of progress of work or quality of work, the plaintiff
had been telling the defendants that they should talk to the
Architect and initially an Engineer by name Krishnakumar
8 OS.No.4663/2010
was put incharge of their project who worked from the initial
stage of demolition of the building till some serious technical
error was committed by the Architect in their project and
once this error was committed the Engineer in charge
disowned both the projects. The defendants have discussed
in detail with the Architect about the rate contract, designing
of the building etc., and not with the plaintiff. The defendants
deny the completion of the project by the plaintiff. At no point
of time the defendants have agreed to have internal steel
staircase from the 1st floor onwards for the building to have
approach to the upper floor and that the same was not there
in the plan approved by the defendants and the installation of
the steel staircase was the outcome of the plaintiff's thought
to which the defendants never agreed upon. The plaintiff in
order to cover his faults in construction of the building, has
compelled them to accept internal steel staircase and when
this was not accepted by them, now he is throwing the
burden on these defendants. The plaintiff has spoiled the
entire construction of the defendants' building and has done
greater damage in construction of the building and those
damages of structure cannot be redone and thereby caused
huge monetary loss to these defendants and therefore, the
9 OS.No.4663/2010
defendants by way of counter claim and set off, making their
claim against the plaintiff for breach of contractual
agreement, deficiency of service, irreparable perennial
damage caused to the defendants' building. As per the
Contract Agreement and Articles of Agreement, the project
was to be completed within a period of 12 months from the
date of commencement. The plaintiff had completed the
adjacent project and raised final fill whereas the plaintiff had
abandoned the work of defendants' project. The plaintiff is
highly evasive and was not very precise as to the date of
completion of the project and he has not at all issued final
completion certificate of the building even as on today and
this itself makes it very clear that he had not at all completed
the project but abandoned in the middle which these
defendants were forced to complete by spending huge amount
of money, with mental agony. The fact that the regular
electrical domestic connection has been serviced to the
defendants' project only on 4.11.2008 proved that the
plaintiff is making a false claim that he has simultaneously
completed the adjacent project and their project. Through the
Architect, the plaintiff has committed to undertake the
pending works and rebuilding of faulty staircase which was
10 OS.No.4663/2010
demolished, a technical error, on account of which, the
project was left abandoned. This is the major and crucial part
of any building and the plaintiff cannot claim it as minor
works and apart from this, the following works were
abandoned which had been executed by these defendants:
a) Designing, selection and transportation of Main
Gate and designing, selection, transportation and fixing
of Canopy over grating to reduce the direct flow of rain
water which results in flooding of garage area. This has
resulted due to his grave technical error in planning
and execution of stilt level, including wrong side sloping
of chappadi stone.
b) Floor joinery in the garage, gratings, rain pit
cover, sump cover and chamber cover not provided by
him as per material contract.
c) Laying of stones to raiser, steps and railings of
external staircase.
d) Partial external wall cladding.
e) Fixing of main entrance door
f) Flooring of foyer area at the main entrance.
g) Laying of stones to raiser, slabs on steps,
skirting and MS railings of entire internal staircase
[from main door till head-roof level]
h) Kitchen : N/E Wall cladding, Granite Pooja Shelf,
tap and glazed tiles over cooking platform were selected,
purchased, transported and got fixed by defendants the
partial kitchen flooring, skirting for entire kitchen,
11 OS.No.4663/2010
plumbing and partial electrical work such as wiring and
fixing of switch boards.
i) Utility - Unfinished wall cladding, wash basin,
tap, commode with all accessories, plumbing and
electrical work, designing and fixing of door.
j) Living Room - partial flooring for demolished step
provided for entry to utility, skirting for entire living
room, shoddy work of hanging 'S' trap [which started
seeping and was got replaced and fixed decently by
them in November 2008 still when the project was not
complete, by hiring another plumber by paying double
the cost]. Gushing of water through electrical pipe when
the flush of II floor toilet was operated since the
concealed electrical pipe was cut open and left
unattended, not informed to the defendants nor it was
attended to by the plaintiff when it was brought to his
notice by the defendants. It was got repaired by
defendants during December 1st week of 2008. Partial
electrical work such as wiring and fixing of switch
boards.
k) Removal of clay brick wall which was obstructing
transparency of light [faulty planning and execution of
work without defendants consent -cost of material
borne by defendants].
l) Staircase north wall cladding from living room till
head roof.
m) II Floor : Study area : Partial flooring.
n) II Floor : Bed room : Partial flooring and skirting
of entire room, Balcony flooring and skirting,
12 OS.No.4663/2010
rectification of bathroom flooring toilet - rectification of
flush, removal of tiles due to breakage at the time of
repairing flush and replacement of 'S' trap with PVC
pipe, fixing of wash basin platform, wall tiles and wash
basin, taps, wall mixer, shower to bathroom and tap in
toilet.
o) Joinery of entire terrace tiles [which led to
seepage]
p) Water proofing to the over-head tank stand
resulted in heavy seepage of building on the entire N/W
and S/W portion undertaken by the defendants at their
own cost [disconnecting, shifting of 2000 ltrs capacity
water tank].
q) Fixing of glass to all the windows of the house,
fixing of door shutters of entire house with all
accessories, selection, purchase, transportation and
fixing of aluminum frames to window of bachelor suit,
to ground floor room ventilation and to ventilation for
utility has been executed by defendants at their cost
contrary to para-4 of Articles of Agreement dated
8.3.2007.
r) Acid wash of flooring of the entire project was got
done by the defendants.
s) Water proofing of external wall, patti of internal
building of entire house, painting of bachelor suit and
ground floor, painting of all the windows in the
building, main gates, gratings, water pit cover, sump
tank cover, safety grill in the lumbar room, safety grill
to the main door with redoxide primer which works, the
13 OS.No.4663/2010
plaintiff blatantly refused to undertake in spite of
earnest requests by the defendants.
t) Internal plastering of RCC M20 top cover slab of
sump tank has not been undertaken.
u) As per clause 13 of Articles of Agreement dated
8.3.2007, the plaintiff was under obligation to bear all
the electrical charges till the completion of the project
and handing over the possession to the defendants in
completed stage. Contrarily, he has not only not borne
the charges, but also not handed over the bill of
temporary meter connection. The defendants had to pay
a penalty of Rs.252/-for non-payment. Further the
plaintiff is illegally holding the deposit of temporary
connection got at the time of starting the project.
The selection, purchase, transporting of all the (a) doors, (b)
windows, (c) glasses, (d) replacement of defective/damaged
plumbing materials (e) sanitary materials (f) electrical wire for
rectification and rewiring of faulty wiring done by the plaintiff
(g) all sanitary fittings (h) joinery materials (i) Fabrication
materials and work undertaken by the defendants at their
cost and there is a clear breach of agreement. The above
grave damages caused by the plaintiff to their building still
stand as they are, because irreparable and irreversible
damage has been caused by him. The staircase part of the
problem is the major crux of the issue which has led to
14 OS.No.4663/2010
inordinate delay in completion of the project which led to
escalation of the project cost which has been shifted on to the
defendants and the plaintiff himself is wholly responsible and
liable for the technical and processional error and there is a
case of failure on his part to meet the professional standard
to build the staircase according to the accepted trade
standards for good and workmanlike construction. The
plaintiff has failed in his workmanship and has breached the
defendants' utmost trust reposed in his profession. The
plaintiff is solely responsible and liable to bear all the
additional cost of labour and everything for the defendants
had never asked him commit technical error and construct
the structure of the building without providing for internal
staircase systematically floor by floor. The defendants filed a
case in the Consumer Forum in CC.No.1196/2010 and the
plaintiff in order to overcome the positive results in favour of
the defendants had filed the present suit as a counter blast
and since the Hon'ble Forum expressed its desire that since
the civil suit is pending it is tied by the jurisdiction of the civil
Court, with no other option, the defendants, with liberty to
raise all contentions raised therein withdrew the complaint
on 19.10.2010 to adjudicate before this Court. For all the
15 OS.No.4663/2010
existing damages to the building, negligence in executing the
defendants project without due care and in professional
manner, and for irreparable and irreversible damages, the
defendants are claiming a sum of Rs.2,00,000/- by way of
damages.
4. And whereas the plaintiff has filed the written
statement to the Counter claim of the defendants and denied
the averments of the same and further contended that if
there was really any such short comings or defect in his
construction work then the defendants had all rights to
initiate proceedings, issue notice or to initiate proceedings to
stop the work or to rectify the defects as claimed, but the
defendants have accepted the works done by the plaintiff and
on seeking payment of the balance amount due to the
plaintiff the defendants suddenly make false allegations and
filed complaint before the Consumer Forum seeking
compensation of Rs.9,00,000/- and on dismissal of the said
complaint, the damages immediately scaled down to
Rs.2,00,000/- knowing well that paying court fees for
Rs.9,00,000/- will not yield any benefit. There was no errors
as alleged by the defendants and just to avoid the payment
the defendants are blaming the entire work of the plaintiff
16 OS.No.4663/2010
and since there is no error in his construction work then he
prayed for rejection of the counter claim.
5. On the basis of the pleadings, one of my learned
predecessors have framed the following issues and additional
issue : -
1) Whether the plaintiff proves that he has
completed the building work of the
defendants as per the agreement dated
8.3.2007 and made modifications as per
the directions of the defendant and his
architect by doing quality work?
2) Whether the defendant proves that the
plaintiff did not execute the work
properly taking utmost care and using
his professional and technical skills?
3) Whether the plaintiff is entitled to
recover an amount of Rs.1,94,626/-
from the defendant with interest at 21%
p.a.?
4) What decree or order?
Additional issue :
1) Whether the defendants are entitled for
the counter claim as prayed?
6. In order to prove the above issues, the plaintiff got
himself examined as PW.1 and got marked the documents at
Ex.P1 & P2 and also got examined one witness as PW.2. On
the other hand, the defendant No.2 got herself examined as
17 OS.No.4663/2010
DW.1 and got marked the documents at Ex.D1 to D76 and
also got examined one witness as DW.2 and thereafter the
matter was posted for arguments.
7. And I have heard the arguments of both sides and
perused the entire materials placed on record.
8. And my findings on the above issues are as
under:-
Issue No.1: In the negative
Issue No.2: In the negative
Issue No.3: In the negative
Addl. Issue No.1: In the negative
Issue No.4: As per final order, for the following:
R E A SON S
9. Issue No.1 to 3 & Addl. Issue No.1:- Since
these issues are inter-related then they are hereby discussed
commonly in order to avoid repetition of facts.
10. It is the specific case of the plaintiff that he has
completed the building work of the defendants as per the
Articles of Agreement dated 8.3.2007 and as on the date he
has constructed the basement, ground, first, second and
terrace floor of the defendants and the total cost of the
18 OS.No.4663/2010
construction was Rs.13,04,145.81 and as against the above
amount, the plaintiff has received a sum of Rs.11,13,019/-
from the defendants and as per the fourth pre-final bill one
certified by the concerned Architect, the plaintiff was entitled
for Rs.2,34,180/- and as against the aforesaid bill the
defendants have made a payment of Rs.1,00,000/- and as
such the defendants were liable to pay the balance amount of
Rs.1,34,180/- and inspite of the same the after the house
warming ceremony also the plaintiff has carried further
construction work to the tune of Rs.60,446/- and in all the
defendants were due to pay the total sum of Rs.1,94,626/-.
11. In order to prove the above material facts though
the plaintiff got himself examined as PW.1 and got marked
the documents at Ex.P1 and P2 and further examined one
more witness at PW.2, the same do not hold any water as
there is a lot of variance in the pleadings and proof of the
plaintiff that are placed on record. Now let me examine it.
12. First of all though the plaintiff has specifically
pleaded that he has completed the building work of the
defendants as per the Articles of Agreement dated 8.3.2007
and as on the date he has constructed the basement, ground,
19 OS.No.4663/2010
first, second and terrace floor of the defendants and the total
cost of the construction was Rs.13,04,145.81, the same once
again do not hold any water as the above facts are not at all
proved by the plaintiff with cogent documentary evidence.
13. And in fact though the plaintiff at para-20 of his
examination-in-chief affidavit has deposed that he has
produced (a) Articles and Agreement dated 8.3.2007, (b)
Agreed rate list, c) Pre-final bill, d) Final bill, e) Abstract of
payments, f) Architect certified bill dated 9.5.2008, g) Notice
dated 4.12.2009, h) Reply notice dated 23.12.2009 for
corroboration of the above material facts, the same once
again do not hold any water because except the Notice dated
4.12.2009 & Reply notice dated 23.12.2009 the plaintiff has
not at all produced the above said remaining material
documents from (a) to (f) and so in the absence of the same it
cannot be said that the defendants are liable to pay the suit
amount of Rs.1,94,626/-.
14. And even the notice of Ex.P1 one issued by the
plaintiff to the defendants dated 4.12.2009 is also of no help
to the case of the plaintiff as in terms of the above notice the
plaintiff has neither produced the Article of Agreement dated
20 OS.No.4663/2010
8.3.2007 nor even produced the Architect certified bill dated
9.5.2008 to prove that the the defendants are liable to pay
the suit amount of Rs.1,94,626/-.
15. And moreover contrary to the contents of Ex.P1,
the defendants through the reply notice of Ex.P2 have clearly
denied the terms of the above notice and further contended
that the plaintiff himself is liable to pay a sum of
Rs.9,00,000/- towards the compensation for negligence,
deficiency of service and for mental agony caused to the
defendants.
16. And even otherwise for argument sake if it were to
be held that as per the Articles of Agreement dated 8.3.2007
and as on the date he has constructed the basement, ground,
first, second and terrace floor of the defendants and the total
cost of the construction was Rs.13,04,145.81, the same is of
no help to the case of the plaintiff as the plaintiff himself in
his plaint and so also in his examination-in-chief affidavit
has clearly pleaded/deposed and admitted that as on the
date he has received a sum of Rs.11,13,109 and so also a
sum of Rs.1,00,000/- by way of cash from the defendants.
21 OS.No.4663/2010
17. And since the plaintiff has not at all produced any
cogent documentary evidence to prove the construction cost
of Rs.13,04,145/- and also not at all produced any
documentary evidence to prove that after house warming
ceremony he has further made work to the tune of
Rs.60,446/- and since the plaintiff/PW.1 himself at page-9 of
his cross-examination has clearly admitted that he has not at
all done the painting work as agreed and further admitted at
para-10 of his cross-examination that he has not at all
constructed the outside staircase and so also not at all built
the entire building with the 230 mm burnt bricks and since
the plaintiff/PW.1 himself at page-9 & 10 of his cross-
examination has clearly admitted that he has not at all
produced the original agreement dated 8.3.2007, architect
plan and bills regarding the purchase of materials and since
there is nothing on record to evaluate the work and the cost
incurred for construction of the defendants' house then it has
to be held that the plaintiff has failed to prove that the
defendants are liable to pay the suit amount of Rs.1,94,626/-
to him.
18. Secondly though the plaintiff has lead the oral
evidence of the alleged Architect at PW.2, his version is also
22 OS.No.4663/2010
of no help to the case of the plaintiff as in his examination-in-
chief affidavit itself the above said PW.2 has not at all
deposed specifically that he has certified for the release of
such and such an amount to the plaintiff.
19. Even though the above said PW.2 has further
deposed that he has checked the entire bills and so also the
measurements and found the same to be correct, the same
once again do not hold any water as the said bills or the
measurements are not at all produced either by the plaintiff
or by the said PW.2 for corroboration of the above facts.
20. And in fact contrary to his examination-in-chief
affidavit the above said PW.2 at page-3 of his cross-
examination has clearly admitted that he has not at all
produced any documents to show that he is an Architect.
21. And moreover since the above said PW.2 at page-6
of his cross-examination has clearly admitted that he do not
remember the estimated bill and further admitted at page-7
of his cross-examination that the plaintiff has not at all done
the work as per his design and since the plaintiff & the said
PW.2 have not at all produced the approved plan and since
the defendants themselves at para-21 of their written
23 OS.No.4663/2010
statement have clearly admitted that they have paid a sum of
Rs.12,43,682/- as against the work one done by the plaintiff
then it has to be held in unequivocal terms that the
defendants are not at all liable to pay the suit amount of
Rs.1,94,626/- to the plaintiff.
22. On the other hand though the defendants have
specifically contended that the plaintiff has not at all
executed the construction work properly taking utmost care
and using his professional and technical skills and as such
he is liable to pay a counter claim of Rs.2,00,000/- for breach
of the contractual agreement dated 8.3.2007, the same do
not hold any water as the above facts are also not at all
proved by the defendants with cogent material documentary
evidence.
23. And since the defendants are admittedly claiming
the counter claim amount of Rs.2,00,000/- for breach of the
contractual agreement dated 8.3.2007 and since the
defendants have also not at all produced the said agreement
dated 8.3.2007 for corroboration of the above facts and since
the defendants have not at all sought the above relief of
counter claim within 3 years from 8.3.2007, but have
24 OS.No.4663/2010
admittedly claimed the above counter claim on 25.10.2010
then it has to be held in unequivocal terms that the relief of
counter claim one claimed by the defendants is rather time
barred.
24. And even otherwise since there is a lot of variance
in the pleadings of the defendants and that of the
examination-in-chief affidavit of defendant No.2/DW.1 and
since the documentary evidence one produced by the
defendants at Ex.D2 to D75 does not show the alleged
negligence of the plaintiff in executing the contractual terms
of the agreement dated 8.3.2007 and since the said
defendant No.2/DW.1 at page-15 of her cross-examination
has clearly admitted that they have not at all obtained any
certificate from a different contractor with regard to the
negligent construction work of the plaintiff and since the
defendants have not at all produced any cogent documentary
evidence to prove that they have completed the remaining
construction work one left by the plaintiff through such and
such a contractor then it has to be held that the defendants
have failed to prove that the plaintiff has not at all executed
the work properly and as such they are not at all entitled to
claim any counter claim amount.
25 OS.No.4663/2010
25. In support of their contention though the
defendants have lead the oral evidence of a Chartered Civil
Engineer at DW.2 and though he has produced a technical
investigation report at Ex.D76 to prove the deficient work of
the plaintiff in completion of the defendants' house, the same
is of no help to the case of the defendants as contrary to his
oral evidence and so also the contents of Ex.D76 the said
DW.2 at page-7 of his cross-examination has clearly admitted
that "He has not at all conducted any examination with
regard to the quality of the construction work and usually
rebound hammer test and concrete core test are conducted
for checking the quality of the constructed work and in the
present case building he has not at all conducted the above
said two tests".
26. And moreover since the above said DW.2 has
further deposed at the end of page-7 of his cross-examination
that on seeing the working plan of the defendants' house he
has prepared the report of Ex.D76 and since the said working
plan itself is not at all produced by the defendants and since
the said DW.2 at page-6 of his cross-examination has clearly
admitted that he has not at all seen the corporation plan and
license of the alleged defendants' house and since the
26 OS.No.4663/2010
defendants have also not at all produced the said corporation
plan and license of their building then it has to be once again
held that the defendants have failed to prove the facts of
issue No.2 and as such they are not at all entitled to any
counter claim as sought by them.
27. So in view of the discussion made above I am of
the opinion that since the plaintiff has failed to prove the
facts of issue No.1 that he has completed the building work of
the defendants as per the agreement dated 8.3.2007 and
made modifications as per the directions of the defendants
and his Architect by quality work and as such he is entitled
to recover the remaining amount of Rs.1,94,626/- from the
defendants with interest at 21% p.a. with cogent material
evidence and since the defendants have also failed to prove
the facts of issue No.2 that the plaintiff did not execute the
work properly taking utmost care and using his professional
and technical skills with cogent material evidence then they
are also not at all entitled to claim the counter claim amount
of rs.2,00,000/- from the plaintiff and accordingly, I have
answered the above issue No.1 to 3 and additional issue No.1
in the negative.
27 OS.No.4663/2010
28. Issue No.4:- In view of the discussion made on
issue No.1 to 3 and additional issue No.1 and further holding
them in the negative, proceed to pass the following order:-
ORDER
The suit of the plaintiff for recovery of money and so also the counter claim of the defendants are hereby dismissed.
In view of the peculiar circumstances the parties are directed to bear their own cost.
Draw a decree accordingly.
(Dictated to the judgment writer on the Computer, corrected and then pronounced by me in the open court, on this the 3rd day of June, 2019).
(R. Ravi), XVII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for plaintiff:
P.W.1 Dorababu PW.2 Srikantamurthy N.
List of documents exhibited for plaintiff:
Ex.P1 Copy of legal notice Ex.P2 Reply noitce List of witnesses examined for defendants:
DW.1 Saritha Jagadish
DW.2 A.G.Shivaprasad
28 OS.No.4663/2010
List of documents exhibited for defendants:
Ex.D1 Letter
Ex.D2 to 64 Tax invoices & bills
Ex.D65 to 69 Letters
Ex.D70 Certified copy of order passed in
CC.No.1196/2010
Ex.D71 & 72 2 Photographs
Ex.D73 C.D.
Ex.D74 & 75 2 Receipts of BESCOM
Ex.D76 Technical investigation report
XVII Addl. City Civil & Sessions Judge, Bengaluru.Digitally signed by R RAVI DN: cn=R RAVI,ou=HIGH COURT
R RAVI OF KARNATAKA,o=GOVERNMENT OF KARNATAKA,st=Karnataka,c=IN Date: 2019.06.15 12:49:42 IST