Bangalore District Court
Manjula G vs Lingaraju on 21 February, 2024
KABC010169522019
IN THE COURT OF THE XX ADDL. CITY CIVIL
& SESSIONS JUDGE(CCH-32), BENGALURU CITY
Dated this the 21st day of February 2024
Present:
Sri.Sirajuddeen A., B.A., LL.B.,
XX Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.3787/2019
Plaintiffs: 1. Miss.Manjula G.,
D/o.G.Gurulingu,
Aged about 38 years;
2. Sri.Gurulingu G.,
S/o.Guthalagowda,
Aged about 72 years;
Both are residing at No.2536,
Sir M.Vishweshwaraiah Layout,
6th Block, Bengaluru.
Plaintiff No.1 is represented by
SPA Holder Gurulingu G.-
plaintiff No.2.
(By Sri.Girish, Advocate.)
/VS/
Defendant: Mr.Lingaraju,
Major,
K.K. Constructions,
R/at No.2216, 2nd Floor,
12th Main Road, 'A' Block,
Rajajinagar II Stage,
Bangalore-560 010.
(By Sri.M.M., Advocate.)
2 O.S.No.3787/2019
Date of Institution
of the suit : 29.05.2019
Nature of suit : Money Suit
Date of commencement of
recording of evidence : 09.01.2020
Date on which Judgment
pronounced : 21.02.2024
Total Duration : Years Months Days
04 08 22
(Sirajuddeen A.),
XX Addl. City Civil & Sessions Judge,
Bengaluru.
J U DG ME N T
Plaintiffs instituted this suit against the
defendant for recovery of money.
2. The case of the plaintiffs is that, plaintiff No.1
is the daughter of plaintiff No.2. The plaintiff No.1 has
executed the Special Power of Attorney in favour of
plaintiff No.2. Defendant is the Civil Engineer and
Contractor and was doing building construction work
under the name and style "K.K.Constructions" at
No.2892, 14th "E" Main Road, 2nd Stage, Rajajinager,
Bengaluru-10. Plaintiffs have entrusted the
construction work of their residential building to
thedefendant at site bearing No.2536, situated in Sir
M.Vishweshwaraiah Layout, 6th Block, Bengaluru. In
3 O.S.No.3787/2019
this regard, as per working plan defendant had issued
estimation for Rs.59,39,490/-. The plaintiffs and
defendant have signed to the estimation and Mutual
understanding Agreement dated 19.5.2014. As per the
said Mutual Understanding Agreement, defendant had
agreed to complete the building construction work
within one year from 19.5.2014. As per the agreed
terms, defendant had started building construction
work. Defendant has delayed and not completed the
building construction work and handed over the keys
within stipulated period of one year from the date of
Mutual Understanding Agreement dated 19.5.2014.
The construction work done by the defendant was very
poor quality and most of the walls are developed
cracks, stainless steel railings are rusted, not
completed most of the work, etc.
3. Plaintiffs further pleaded that, on 18.5.2017
the Vaibhava Nirmaan, Civil Engineers and
Contractors, No.50, 5th Cross, 6th Main,
Jnanabharathi, Bengaluru, inspected the building and
notified the defects and issued letter and valuation of
work done by the defendant. Plaintiffs requested the
defendant to complete the balance construction work
as they have fixed the House Warming function on
31.3.2016. Inspite of that, the defendant had totally
neglected and not completed the construction work.
Though defendant was assured that he will finish the
work after house warming function, but he has not
turned up to complete the work. As per estimation
4 O.S.No.3787/2019
point No.32, defendant has agreed to provide
impervious coat to RCC roof with water proof muddy
concrete with flat tiles with two coats of cement plaster
with fine rendering etc. For the said work, in the
second week of December 2015, defendant approached
the 2nd plaintiff to given an undated cheque in his
name, by showing the said cheque to Tiles Dealer
bring the flat tiles for RCC roof, thereafter he will
return the said cheque and after few days, he will pay
the amunt to the said dealer, believing the words of
defendant, the plaintiff No.2 had issued an undated
cheque bearing No.729490 for Rs.1,00,000/-, but the
defendant neither purchased flat tiles nor returned the
said undated cheque. Plaintiffs believed that at the
time of finalization of accounts, he will return the said
cheque. Defendant misused the said cheque for his
illegal gain. He presented the cheque for encashment
and after dishonour of the cheque, issued a legal
notice dated 13.1.2017 to plaintiff No.2 and after
receipt of the said legal notice, the plaintiff No.2 also
issued reply on 28.1.2017 to the said legal notice
dated 13.1.2017. Defendant filed a criminal case in
CC No.9982/2017 before 13th ACMM, Bengaluru. Said
case was dismissed on merits on 21.3.2019.
4. Plaintiffs further pleaded that, defendant
almost finished the building construction work and
few work are kept pending to complete, which may
cost to the tune of Rs.1,92,280/-. The defects in the
construction work may cost around Rs.2,00,000/-.
5 O.S.No.3787/2019
Thus, still the work is pending for worth of
Rs.3,92,280/- (Rs.1,92,280/- + R.2,00,000/-).
Plaintiffs have already paid Rs.64,86,000/- by way of
cash and cheques on different dates to defendant. The
plaintiffs and Smt.Malathi G., she is another daughter
of plaintiff No.2 have issued a cheque in favour of
defendant. Accordingly, the defendant has received an
excess amount of Rs.9,38,790/-. Due to the delay in
construction work, plaintiffs suffered loss of
Rs.1,35,000/- towards payment of nine months rents
@ Rs.15,000/- p.m. Since defendant has not
completed the work and rectified the defects in the
construction work, plaintiffs have filed the Consumer
complaint before the IV Additional District Consumer
Disputes Redressal Forum, Bengaluru in
C.C.No.628/2017. Said complaint was dismissed on
28.3.2019 and the Hon'ble Forum has given liberty to
file suit before competent court of law to redress their
remedy.
5. Plaintiffs further also pleaded that, the cause
of action for the suit arose on 19.5.2014 when the
defendant had issued Estimation and entered into
Mutual Agreement and lastly on 28.3.2019 when the
Forum passed an order within the jurisdiction of this
court. Accordingly, plaintiffs prayed to decree the suit.
6. This court issued the summons to the
defendant and the said summons was served on
defendant. Defendant appeared before the court
6 O.S.No.3787/2019
through his counsel and defended the suit by filing his
written statement contending inter-alia that, the suit of
the plaintiff is not maintainable. Suit of the plaintiffs
is a misconceived, false, frivolous and misleading.
There was delay for starting the construction work.
Plaintiffs have made changes to the sanctioned plan.
In the later stage, plaintiffs wanted to construct the
house without leaving the set back area as per the
BDA bye law norms. Whenever he was progressing
towards the work entrusted, the plaintiffs interfered
each and every time and they wanted to change the
construction line and again the defendant was forced
to make changes again and again. Plaintiffs delayed
the payments to defendant, for which he had to suffer
irreparable damages due to which he was not able to
make payments to the material suppliers and workers
due to which the workers also refused to do work.
The construction work carried out by the defendant is
of high quality and used all high quality materials
such as stainless steels, cements, pipes etc. There is
no cracks or defects as stated in the complaint.
7. Defendant contended that, after completition
of the work, till handing over the keys to the plaintiffs,
the defendant has received only a part payment
towards the construction work. Plaintiffs have made
payments to an extent of Rs.44,34,000/- and they are
still due of payment to defendant to an extent of
Rs.15,05,490/-. It is false to state that there is still
work pending for worth of Rs.3,15,480/-. It is false to
7 O.S.No.3787/2019
state that plaintiffs have paid the amount to an extent
of Rs.64,86,000/- to the defendants.
8. Defendant submits that whenever he received
the cash payments, he acknowledge the same by
putting his signatures on the date of receipt of amount
which clearly goes to show that he has received only a
sum of Rs.13,94,000/- by way of cash and a sum of
Rs.28,40,000/- by way of account payee cheques,
totally a sum of Rs.44,34,000/- including the advance
amount received at the time of agreement. He has not
received any excess payment from the plaintiffs and in
turn the plaintiffs are the defaulters to the defendant,
who still have not paid the balance amount. It is false
to state that plaintiffs have suffered loss of
Rs.1,35,000/- towards the payment of nine months
rents. The rental receipts and the agreement are the
created documents. Plaintiffs have not approached the
court with clean hands and they have suppressed the
real facts. He has not committed any deficiency of
service in discharging his duties and there is no
defects in construction work. Accordingly, defendant
prayed to dismiss the suit with exemplary costs.
9. In the light of the above said rival pleadings
of both parties, my learned predecessor framed the
following issues:
1. Whether plaintiffs prove that they paid
excess amount of Rs.9,38,790/- to the
8 O.S.No.3787/2019
defendant in respect of construction
work of their house?
2. Whether plaintiffs are entitle for the
damages?
3. Whether plaintiffs are entitle for the
reliefs claimed?
4. What order or decree?
10. The burden of proof of issue No.1 and 2 is on
plaintiffs. In order to discharge the burden of proof,
plaintiffs adduced oral evidence and also produced the
documentary evidence. Plaintiff No.2 himself examined
as P.W.1 and got marked the documentary evidence at
Ex.P.1 to P.22.
11. Ex.P.1 is the Diary for the year 2008,
Ex.P.1(a) is the entries on pages bearing No.8 and 9 of
Ex.P.1, Ex.P.2 is the SPA dated 24.5.2019, Ex.P.3 is
the certified copy of sale deed dated 17.1.2011, Ex.P.4
is the approved plan issued by BDA, Ex.P.5 is the
estimation of proposed construction, Ex.P.6 is the
Mutual Understanding Agreement, Ex.P.7 is the 9
Rental receipts, Ex.P.8 is the 38 photographs,
Ex.P.8(a) is the CD of photographs, Ex.P.9 is the letter
dated 18.5.2017, Ex.P.10 is the Invitation card of
house warming ceremony with envelope, Ex.P.11 is the
legal notice issued by defendant, Ex.P.12 is the office
copy of reply notice dated 28.1.2017, Ex.P.13 is the
certified copy of the order passed in CC
No.9982/2017, Ex.P.14 to 17 are the 4 statement of
bank accounts, Ex.P.18 is the certified copy of the
9 O.S.No.3787/2019
order passed in C.C.No.628/2017 of IV Addl. DCGRF,
Ex.P.19 is the certified copy of evidence of defendant in
CC No.9982/2017, Ex.P.20 is the certified copy of the
plaintiff evidence in CC No.9982/2017, Ex.P.21 is the
certified copy of version of defendant in consumer
complaint No.628/2017 and Ex.P.22 is the letter dated
3.8.2017.
12. Defendant in order to discharge his onus
cross-examined P.W.1 and he himself got examined as
D.W.1 and got marked the documentary evidence i.e.
the Bank statement as Ex.D.1.
13. I carefully perused the pleadings of both
parties, oral evidence adduced and documentary
evidence produced by both the parties. Heard the
arguments of learned counsels appearing for both
parties.
14. My answers and findings to the above issues
are as follows:
Issue No.1- In the Affirmative;
Issue No.2- In the Affirmative;
Issue No.3- In the Affirmative;
Issue No.4- As per the order passed for the
following
REASONS
15. ISSUE NO.1: It is the case of the plaintiffs
that they have entrusted the construction work of their
10 O.S.No.3787/2019
residential house to the defendant. The defendant
being the Engineer and contractor, issued estimation
for Rs.59,39,490/- and after acceptance, plaintiff No.2
and defendant signed the Mutual Understanding
Agreement dated 19.5.2014. As per the said agreement,
defendant has agreed to complete the construction
work within one year from 19.5.2014. But defendant
not completed the work within stipulated period and
due to delay in completing the building construction
work, plaintiffs have burdened in paying 9 months
additional rent of Rs.15,000/- p.m. i.e. totally
Rs.1,35,000/- for rented house.
16. Plaintiffs in order to prove their case
produced the documentary evidence. The documentary
evidence produced at Ex.P.6 is the Mutual
Understanding Agreement dated 19.5.2014. As per the
said document, defendant was asked to complete the
construction work within one year and hand over the
keys, for that, it is stated that both of us agreed to the
same and attested the signature. It means that
defendant had agreed to complete the construction
work within one year and it further reveals that
plaintiffs paid the advance amount of Rs.2,00,000/- to
the defendant. The documentary evidence produced at
Ex.P.5, i.e. estimation given by the defendant reveals
that defendant had issued estimation for
Rs.59,39,490.30.
11 O.S.No.3787/2019
17. It is the further case of the plaintiffs that,
they have entrusted the building construction work to
the defendant as per estimation for Rs.59,39,490/- to
complete entire building, but the defendant has
received a sum of Rs.64,86,000/-, but still the work is
pending and defect in work for worth of Rs.3,92,280/-.
Hence, defendant is liable to refund the excess amount
of Rs.9,38,790/- to the plaintiffs.
18. In this regard plaintiffs have produced
Ex.P.1-Diary. On perusal of the said Diary, it reveals
that the total amount is Rs.64,86,000/-, payments
made through cheques amounts to Rs.59,90,000/- and
payments made by cash is Rs.13,96,000/-. Said
entries are marked as Ex.P.1(a). Defendant during his
cross-examination, deposed that,
"It is true to suggest that when I used to
complete the construction work by stage by
stage, the plaintiffs used to make the
payment by way of cash and also through
cheque. It is true to suggest that when I
used to receive the payment amount, I used
to put signature to the dairy maintained by
the plaintiff. It is true to suggest that I have
received total sum of Rs.13,94,000/- from
the plaintiff by way of cash. It is true to
suggest that after making the payment of
said amount of Rs.13,94,000/-, I put my
signature to Ex.P.1".
12 O.S.No.3787/2019
19. It is to be noted that on perusal of Ex.P.1(a)
for some of the entries, defendant has not put his
signature, but during his cross-examination he has
admitted that he had received cash payments of
Rs.13,94,000/-. Plaintiff has produced the bank
statements i.e. Ex.P.14 to Ex.P.17. Defendant has
produced his bank statement at Ex.D.1. On perusal of
the said bank statements i.e. Ex.P-14 to P-17 and
Ex.D.1, they clearly reveal that payments received by
the defendant through cheques for a sum of
Rs.50,90,000/-. Plaintiffs by producing the
documentary evidence and also adducing the oral
evidence, proved that, defendant has received a total
sum of Rs.64,86,000/- from the plaintiffs.
20. Plaintiffs in para No.10 of their plaint pleaded
that, defendant almost finished the building
construction work and few work are kept pending to
complete and few defects in construction has to rectify,
the defendant also agreed to finish the balance building
construction work and rectify defects in construction
due to poor quality of construction after house warming
function dated 31.3.2016. The pending construction
work is calculated for Rs.1,92,280/- and the defects in
construction work is calculated for Rs.2,00,000/-, in all
it comes to Rs.3,92 280/-. Therefore, the defendant is
liable to refund the excess amount of Rs.9,38,790/- to
the plaintiffs. The calculation made by the plaintiffs is
as mentioned below:
13 O.S.No.3787/2019
Amount received by the defendant is Rs.64,86,000-00
Completed construction work Rs.55,47,210-00
worth for ....
(Estimated cost - pending work=
completed work)
Rs.59,39,490/- - Rs.3,92,280/-=
Rs.55,47,210/-
Excess amount received by the Rs.9,38,790/-
defendant:
21. Plaintiffs in order to prove the same, on
18.5.2017 they got inspected the building by the Civil
Engineers and Contractors i.e. through Vaibhava
Nirmaan, Civil Engineers and Contractors, No.50, 5 th
Cross, 6th Main, Jnanabharathi, Bengaluru. After
inspecting the building, they notified the defects and
issued letter and valuation of work done by the
defendant. Said Engineers estimated the total cost of
pending works at Rs.3,29,353/-. As per their Report,
the final value of contract is Rs.56,37,769.00. In their
report they have mentioned that cracks found on both
inside and outside surfaces of building indicates bad
technical supervision and unskilled workmen-ship.
Thereby the said report clearly reflects the poor quality
of work done by the defendant. Thus, in this case
plaintiffs by adducing oral evidence and also
producing documentary evidence proved that, they
paid excess amount of Rs.9,38,790/- to the defendant
in respect of construction work of their house.
14 O.S.No.3787/2019
Accordingly, my answer to Issue No.1 is in
Affirmative.
22. ISSUE NO.2: Plaintiffs in their plaint para
No.6 pleaded that, as per the agreed terms, defendant
had started building construction work in their site, but
he has delayed and not completed the building
construction work and handed over the keys within the
stipulated period of one year from the date of Mutual
Understanding agreement dated 19.5.2014. Due to
said delay in completing the building construction work
and hand over the keys, the plaintiffs have burdened in
paying 9 months additional rent at Rs.15,000/- p.m.,
totally Rs.1,35,000/- for rented house.
23. Plaintiffs in order to prove the same, plaintiff
No.2 deposed in his examination-in-chief and also
produced the documentary evidence. Defendant has
given the estimation on 19.5.2014. P.W.1 in his
examination-in-chief pleaded that, as per working plan,
the defendant has issued estimation, after accepting
the estimation, plaintiff and defendant have signed the
Mutual Understanding Agreement dated 19.5.2014. As
per the said Mutual Understanding Agreement,
defendant has agreed to complete the building
construction work within one year from 19.5.2014. As
per plaintiffs, the defendant has to complete the house
within 19.5.2015. Plaintiffs have performed the house
warming ceremony on 31.3.2016 as per Ex.P.10.
Ex.P.10 is the Invitation for House Warming Ceremony.
15 O.S.No.3787/2019
The documentary evidence produced at Ex.P.7 i.e. rent
receipts for 9 months for the period from June, 2015 to
March 2016. Under such circumstances,
considering the materials placed on record and the
evidence of the P.W.1, I am of the opinion that
plaintiffs are entitled for Rs.1,35,000/- by way of
damages. Accordingly, my answer to Issue No.2
is in Affirmative.
24. ISSUE NO.3: In view of answer of this Court
to Issue No.1 and 2 as above, this Court holds that the
plaintiffs are entitled to recover a sum of Rs.9,38,790/-
and also damages of Rs.1,35,000/-. Hence, Issue No.3
is answered in the Affirmative.
25. ISSUE NO.4: In view of my findings on
Issue No.1 to 3 and discussions made thereon, I
proceed to pass the following
ORDER
Suit of the plaintiffs is hereby decreed with costs.
Defendant is hereby directed to pay Rs.9,38,790/- to the plaintiffs.
Defendant is also directed to pay the damages of Rs.1,35,000/- to the plaintiffs.
16 O.S.No.3787/2019Draw decree accordingly.
(Dictated to the Judgment Writer on computer, computerized by her, corrected and then pronounced by me in open court on the 21 st day of February 2024.) (Sirajuddeen A.), XX ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
ANNEXURE List of witnesses examined for the Plaintiffs:
P.W.1: Sri.Gurulingu G. List of documents marked for the Plaintiffs:
Ex.P.1 Diary.
Ex.P.1(a) Entries on page No.8 and 9. Ex.P.2 SPA dated 24.5.2019. Ex.P.3 Certified copy of sale deed dated 17.1.2011.
Ex.P.4 Approved plan issued by BDA. Ex.P.5 Estimation of proposed construction. Ex.P.6 Mutual Understanding Agreement. Ex.P.7 9 Rental receipts.
Ex.P.8 38 photographs.
Ex.P.8(a) CD of photographs. Ex.P.9 Letter dated 18.5.2017. Ex.P.10 Invitation card of house warming ceremony with envelope.
Ex.P.11 Legal notice issued by defendant. Ex.P.12 Office copy of reply notice dated 28.1.2017.
17 O.S.No.3787/2019Ex.P.13 Certified copy of the order passed in CC No.9982/2017.
Ex.P.14 4 statement of bank accounts. to 17 Ex.P.18 Certified copy of the order passed in C.C.No.628/2017 of IV Addl. DCGRF. Ex.P.19 Certified copy of evidence of defendant in C.C. No.9982/2017. Ex.P.20 Certified copy of the plaintiff evidence in CC No.9982/2017.
Ex.P.21 Certified copy of version of defendant in consumer complaint No.628/2017. Ex.P.22 Letter dated 3.8.2017.
List of Witnesses examined for the defendant:
D.W.1: Sri.Lingaraju.
List of documents marked for defendant:
Ex.D.1: Statement of account from Union Bank of India for the period from 1.3.2014 to 28.2.2015 of D.W.1 (Sirajuddeen A.), XX ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.18 O.S.No.3787/2019
Judgment pronounced in the open court (vide separate judgment).
ORDER Suit of the plaintiffs is hereby decreed with costs.
Defendant is hereby directed to pay Rs.9,38,790/- to the plaintiffs.
Defendant is also directed to pay the damages of Rs.1,35,000/- to the plaintiffs.
Draw decree accordingly.
XX Addl.C.C. & S.J., Bengaluru.19 O.S.No.3787/2019