Karnataka High Court
Smt. Vijayalakshmamma vs Sri.I.N Shanmugananda on 19 September, 2019
Equivalent citations: AIRONLINE 2019 KAR 1653
Author: H.B.Prabhakara Sastry
Bench: H.B. Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
®
DATED THIS THE 19TH DAY OF SEPTEMBER 2019
BEFORE
THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY
R.F.A. No.514 OF 2011
BETWEEN:
1. Smt. Vijayalakshmamma
W/o. Sri. Bheemasena Bankad,
Aged about 57 years.
2. Sri. Bheemasena Bankad
S/o. Late B. Janakiram,
Aged about 58 years.
Both are R/at No.16, 'Hanuma'
Venugopala Reddy Layout,
Arakere, Bannerghatta Road,
Bangalore-560 076.
...Appellants
(By Sri.A.Madhusudhana Rao, Advocate)
AND:
Sri. I.N.Shanmugananda
S/o. Sri. Nanjundappa,
Major, Civil Contractor,
Near Ashwatha Katte,
Himmadi Halli,
White Field,
Bangalore-560 066.
...Respondent
(By Sri. V.N.Kumar, Advocate)
R.F.A.No.514/2011
2
****
This Regular First Appeal is filed under Section 96 read
with Order XLI, Rule 1 of the Code of Civil Procedure, 1908,
against the judgment and decree dated 20-11-2010 passed in
O.S.No.15335/2002 on the file of the XXVI Additional City Civil
Judge, Mayo Hall, Bangalore, (CCH-20), dismissing the suit of
the plaintiffs for recovery of money.
This Regular First Appeal having been heard and
reserved on 27-08-2019, coming on for pronouncement of
judgment, this day, the Court delivered the following:
JUDGMENT
The appellants' suit filed against the present respondent arraigning him as a defendant in O.S.No.15335/2002 in the Court of XXVI Additional City Civil Judge, Mayo Hall, Bangalore, (CCH-20) (hereinafter for brevity referred to as "Trial Court") for recovery of a sum of `3,61,025/- with interest there upon came to be dismissed by the Trial Court by its judgment and decree dated 20-11-2010.
It is against the said judgment and decree, the plaintiffs have preferred this appeal. R.F.A.No.514/2011 3
2. The summary of the case of the plaintiffs in the Trial Court was that, they being the owners of the property bearing No.16, Khata No.267/230 situated at Arakere Village, Bommanahalli Municipality limits, Bangalore City, entrusted the construction work of a residential house thereupon to the defendant - contractor, agreeing to pay him the consideration at the rate of `71,000/- per square (100 sq.ft.) which included all the necessary provisions such as compound, wardrobe, kitchen cabinet, marble/granite floor etc. The defendant started the earth-work on 18-08-2010. During the period from 20-08-2010 to 25-08-2010, the plaintiffs paid him a sum of `1,50,000/-. The foundation work was completed on 18-09-2000 and plaintiffs paid the defendant a sum of `2,00,000/- to the defendant. In the month of October 2000, the defendant brought an agreement duly written and stating that it is a formality which is required to be signed by the plaintiffs, got the R.F.A.No.514/2011 4 signature on the said typed agreement on 19-10-2000. However, he stated that, some of the Clauses like the payment of 20% of the total estimated amount before commencement of the work can be ignored.
It is further the case of the plaintiffs that, the defendant was receiving money now and then on the pretext of his continued work on the site, thus in total, he has received from the plaintiffs a sum of `6,50,000/. However, he did not complete the work entrusted to him and also there were many defects in the work which had already been executed by him and that the workmanship was also extremely bad.
It is further the case of the plaintiffs that, they had delivered teakwood purchased by them to the defendant on 04-01-2001 itself and the defendant did not make use of them in preparing windows, doors and the frames within the agreed period. In the meanwhile, the defendant also abandoned the work. This made the R.F.A.No.514/2011 5 plaintiffs to issue a legal notice to him calling upon him to provide the particulars of the cost of the materials and stating that they are entitled for the refund of the excess amount paid and also for damages. The defendant gave an untenable reply to the said notice.
In the process of amicably settling the matter, one Mr. Salim Sharief, a reputed builder visited the spot and at his instance, one Mr. Suresh, a qualified Engineer took the measurement on 11-07-2001 in the presence of the defendant. However, due to unreasonable attitude of the defendant, the efforts of settlement also failed. Since the defendant did not return the teakwood given to him by the plaintiffs, a private complaint in PCR No.588/2001 was filed against him which resulted in the Police filing the First Information Report (FIR) in Crime No.157/2001 on 19-08-2001. Thereafter the defendant returned back the teakwood to the plaintiffs on 03-12-2001. The defendant by quoting higher charges for the samples also R.F.A.No.514/2011 6 defrauded the plaintiffs. He himself guided them on several aspects. Some of the structures which were not agreed to be put up were put up by the defendant and variations in work were done by him which all put the plaintiffs into difficulty. Since they have to be repaired, the plaintiffs got an estimation for repair and re-work from which they came to know that, they have to spend a minimum of `55,825/- for the said works. By getting valuation of the work done by the defendant through an approved valuer, the plaintiffs came to know that the defendant had completed the work only to an extent of a sum of `4,02,000/-, as such, the plaintiffs were convinced that they had paid a sum of `2,48,000/- in excess of the actual work done by the defendant on the site. Stating that since the defendant not only abandoned the work, but also did not complete the construction of the house within the agreed time, they were deprived of use and occupation of the house for all R.F.A.No.514/2011 7 those months, the plaintiffs claimed the damages at the rate of `2,000/- per month towards the loss of use and occupation of the premises from 20-04-2001 till the plaintiffs are in a position to complete the construction of the house and occupy the same. Thus, the plaintiffs claimed the amounts under the following heads from the defendant:-
Excess amount received i ` 2,48,000/-
by the Defendant from
the Plaintiffs
Interest at the rate of
ii ` 37,200/-
18% per annum from
20.4.2001 till 20.2.2002
The damages for loss
and use and occupation
iii at the rate of `2,000/- ` 20,000/-
per month from
20.4.2001 to 20.2.2002
(10 months)
The amount to be spent
by the plaintiffs for
iv ` 55,825/-
repairs and rework due
to defective work of the
Defendant
Total Amount payable ` 3,61,025/-
It is the said amount, the plaintiffs have sought for from the defendant in their plaint together with interest R.F.A.No.514/2011 8 there upon at the rate of `18% per annum on `2,48,000/- from the date of the suit till realisation.
3. In response to the summons served upon him, the defendant appeared through his counsel and filed his Written Statement. In his Written Statement, the defendant admitted of undertaking the work of putting up construction of the house at the desire of the plaintiffs and agreeing for a consideration at the rate of `71,000/- per square (100 Sq.ft.). However, he stated that the said agreement entered into between them did not include compound wall on the northern side. Though he stated that on 18-08-2000, 'Bhoomipooja' was performed and a draft copy of the terms and conditions was given to the plaintiffs for their approval on 20-08-2000 and an agreement was signed by them on 15-11-2000, but he also stated that the plaintiffs were non-co-operative and had mala fide intention in not getting the agreement signed in the earlier point of time. He stated that at no R.F.A.No.514/2011 9 point of time, he tried to go back from the agreement and the alleged deviations from the plan were all at the request of the plaintiffs. He denied that he had committed any breach of the agreement and denied his alleged liability towards the plaintiffs.
4. Based on the pleadings of the parties, the Trial Court framed the following issues for its consideration:
"1] Whether the plaintiffs prove that they have paid the excess amount of `2,48,000/- to the defendant?
2] Whether the plaintiffs prove that towards the repairs and re-work due to the defective work of the defendant, they have spent an amount of `55,825/-?
3] Whether the plaintiffs prove that they are entitled to recover interest at the rate of 18% per annum from the defendant?
4] Whether the plaintiffs prove that the defendant is liable to pay the damages for the loss R.F.A.No.514/2011 10 of use and occupation at the rate of `2,000/- per month for a period of 10 months?
5] Whether the plaintiffs prove that the defendant is illegally trying to interfere with their peaceful possession and enjoyment of the suit schedule property?
6] Whether the defendant proves that he has completed the 4th stage of the construction i.e. 81.20% of the construction and as such the plaintiffs are liable to pay a sum of `2,95,000/- to him?
7] To what reliefs the parties are entitled to?
8] What order or decree?"
5. The plaintiffs in their support, got examined plaintiff No.2 as PW-1 and two more witnesses as PW-2 and PW-3 and got marked documents at Exhibits P-1 to P-22. The defendant got himself examined as DW-1 and got examined two more witnesses as DW-2 and DW-3 R.F.A.No.514/2011 11 and got produced and marked documents from Exhibits D-1 to D-36.
6. After hearing both side, the Trial Court by its impugned judgment and decree dated 20-11-2010 while answering issues No.1 to 5 and 7 in the negative and issue No.6 partly in the affirmative, dismissed the suit of the plaintiffs. It is against the said judgment and decree passed by the Trial Court, the plaintiffs have preferred the present appeal.
7. Lower Court records were called for and the same are placed before this Court.
8. Heard the arguments of the learned counsels from both side and perused the material placed before this Court including the memorandum of appeal and the impugned judgment.
9. For the sake of convenience, the parties would be henceforth referred to with the ranks they were holding before the Trial Court respectively. R.F.A.No.514/2011 12
10. Learned counsel for the appellants/plaintiffs in his arguments, submitted that the Trial Court did not consider the first Commissioner's report which is at Ex.P-21 and which report is very clear, correct and in detail. The additional works said to have been done by the defendant were to cure the defects committed by him in the construction, as such, it need not be paid. The other Commissioner appointed by and at the instance of the defendant since was not examined, his report does not deserve to be considered. He also submitted that the cost of construction mentioned in Ex.P-21 includes the cost of construction of non-agreed work like pergolas also.
However, learned counsel submitted that there is no difference between two Commissioners' reports with respect to the works done and the works which have not been done. The only difference is with respect to its valuation. He further submitted that, the second R.F.A.No.514/2011 13 Commissioner's report has lot of discrepancies and as such, is not acceptable. He also submitted that, as observed by both the Commissioners, several of the works have resulted into defects since either they were not asked to be done or they have been done in a manner which was not agreed to be done so in the manner.
He also submitted that in order to prove their case, the plaintiffs have filed the Commissioner's report and led cogent evidence. Whereas the defendant has not produced any material to show that he has done the work equivalent to the amounts received by him. The Trial Court failed to observe this. The Trial Court ought to have considered the work done and might have varied the entitlement of the plaintiffs, but should not have dismissed the suit.
11. Learned counsel for the respondent/defendant in his arguments submitted that, the agreement entered R.F.A.No.514/2011 14 into between the parties as per Ex.P-16, the Memorandum of Understanding as per Ex.P-17, the rate agreed to between the parties which was at `71,000/- per square (100 sq.ft.) and the defendant in total receiving a sum of `6,50,000/- from the plaintiffs, are all not disputed.
The learned counsel stated that, however, the plaintiffs have committed a breach of the agreement by not paying the amount agreed as per the agreement where under, before commencement of the work itself, the plaintiffs ought to have paid 20% of the total value which was later to be adjusted in the payment to be made in future.
Learned counsel submitted that the plaintiffs have failed to show that there was any defect in the work executed by the defendant. On the other hand, PW-2 himself in his cross-examination has admitted that every work executed by the defendant was of quality and as per R.F.A.No.514/2011 15 the agreed specifications. Construction of pergolas and stucco plastering were additional works which cannot be termed as defects. He also submitted that the rates referred to by the plaintiffs to assess the work done were not agreed rates.
Learned counsel stated that as per the agreement at Ex.P-16, the plaintiffs were required to visit the spot within three days of completion of the work at each stage, however, the plaintiffs have not objected for pergolas and stucco plastering even after visiting the site of construction. As such, now they cannot contend that there was any deviation from the specified work or any defects in the work. It is considering all these works and noticing that the defendant has done more work than what was agreed, the Trial Court has rightly dismissed the suit which does not warrant any interference at the hands of this Court.
R.F.A.No.514/201116
12. In the light of the materials placed and the arguments addressed by the parties, the points that arise for my consideration in this appeal are:
1] Whether the plaintiffs have proved that they have paid excess amount of `2,48,000/- to the defendant?
2] Whether the plaintiffs have proved that they are required to spend an amount of `55,825/- towards the alleged repairs and re-work to be undertaken by them due to the alleged defective work of the defendant in the construction?
3] Whether the plaintiffs are entitled for the relief of permanent injunction as prayed for?
4] Whether the judgment and decree warrants an interference at the hands of this Court?"
13. It is not in dispute that the plaintiffs and defendant had entered into an agreement for R.F.A.No.514/2011 17 construction of a house over suit property bearing No.16, Khata No.267/230, situated at Arakere village, Bommanahalli Municipal Limits, Bangalore City, which the plaintiffs claim that they are the owners whereof. It is also not in dispute that it was agreed to between the parties that the house structure which according to them approximately comes to Fourteen (14) squares was to be put up by the defendant as per the specifications agreed to between the parties and in return, the plaintiffs to pay him a sum of `71,000/- per square (100 sq.ft.). It is also not in dispute that in that regard, they had entered into an agreement as per Ex.P-16. Further, it is not in dispute that towards the construction work, the defendant had received in total a sum of `6,50,000/- from the plaintiffs. However, it is the case of the plaintiffs that the defendant had abandoned the work and even the extent of the work done by him is of poor quality and with several defects which the defendant has denied.
R.F.A.No.514/201118
14. The first witness who was examined by the plaintiffs in support of their suit is, plaintiff No.2 - Sri. Bheemasena Bankad himself, who in his Examination-in-chief in the form of Affidavit evidence has reiterated the contentions taken up by the plaintiffs in their plaint. He has stated that it was agreed to between the plaintiffs and the defendant that the defendant should carry on the work of construction by himself taking the entire responsibility of the material and also the work in return of the plaintiffs paying him a sum of `71,000/- per square (100 sq.ft.) constructed by him which would include all necessary provisions such as the compound, wardrobe, kitchen cabinet, marble/granite flooring etc. The plaintiffs who were essentially ignorant of the building construction activities had reposed immense faith in the defendant. The defendant started jotting down the so-called specifications in the diary of plaintiff No.2 and in these specifications, the defendant has not R.F.A.No.514/2011 19 given all the particulars such as the quality of materials to be used in respect of several items of work. The witness has got produced and marked said document at Ex.P-12. He has also stated that periodically, the defendant was demanding and receiving money from them. Thus, in total at the end, the defendant had received a sum of `6,50,000/- from them.
PW-1 has also stated that the defendant made the plaintiffs to sign an agreement with respect to the construction work. A photo copy of the said agreement he got marked at Ex.P-16. He further stated that the defendant quoted double the value of the marble purchased by him for the construction. When the actual rate of marble was `40/- per sq.ft., he quoted the price at the rate of `80/- per sq.ft. as its purchase price. The defendant also started disputing that he had not agreed to provide the kitchen cabinet above the lintel level when in fact he had promised to provide such a cabinet. He R.F.A.No.514/2011 20 also stated that the quality of work carried out by the defendant was also very bad and the plastering was shabby. Though a meeting was held where the defendant agreed to complete the work within time as per the specifications, but he failed to keep up his promise. Thereafter the defendant completely abandoned the work and did not bother to complete the same in accordance with what was agreed.
PW-1 has further stated that after the defendant abandoned the work, the plaintiffs requested one Sri. Chenna Narasimhaiah, an approved valuer to inspect the spot and to assess the value of the work that was carried out by the defendant. Accordingly, Sri. Chenna Narasimhaiah visited the spot on 11-05-2001 and after conducting an inspection, he prepared an estimate about the total value of construction which he assessed at `4,02,000/-. The witness got marked the said valuation at Ex.P-10. The witness has stated for the work worth R.F.A.No.514/2011 21 `4,02,000/- done by the defendant, he had received a total sum of `6,50,000/- from them.
PW-1 has further stated that the plaintiffs had delivered teak wood purchased by them to the defendant on 04-01-2001 itself and the defendant had promised to get the window and door and frames ready within three weeks. However, he did not bother to execute the work nor returned the teak wood collected by him. This made the plaintiffs to issue a legal notice dated 09-06-2001 to the defendant for which he gave an untenable reply dated 18-06-2001. The plaintiffs have got marked the said copy of the legal notice issued by them at Ex.P-13 and reply to the said notice at Ex.P-15.
PW-1 has further stated that after the exchange of legal notices, an attempt was made to settle the matter amicably. Accordingly, one Sri. Salim Sharief, a reputed builder visited the spot and at his instance, Mr. Suresh, a qualified Engineer had taken the measurements on R.F.A.No.514/2011 22 11-07-2001 in the presence of the defendant. On that day, the defendant had agreed to abide by the measurements taken and the valuation of the construction to be made by said Sri. Salim Sharief. On 24-07-2001, a meeting was arranged in the office of the said Sri. Salim Sharief, which was attended to by him, the defendant, his brother-in-law and Sri. Suresh, who had taken the measurements. In the said meeting, the defendant refused to agree for the valuation of the construction that was being made on the basis of prevailing rates and went out of the meeting, as a result, the settlement effort also failed.
PW-1 has further stated that since the defendant who had collected teakwood from the plaintiffs did not make use of the same in the construction of the building nor returned the teakwood to the plaintiffs, they were constrained to approach the Police to lodge a complaint. Since the Police refused to receive any such complaint, R.F.A.No.514/2011 23 they filed a private complaint in PCR No.588/2001 in the Court of the IV Additional Chief Metropolitan Magistrate, at Bangalore City. The matter was investigated by the Police who registered a First Information Report (FIR) in Crime No.157/2001 on 19-08-2001. When the Police started investigation, the defendant returned the teakwood to the plaintiffs on 03-09-2001. PW-1 also stated that the defendant had tampered the bills of purchase of articles made by him.
PW-1 apart from stating that the quality of work done by the defendant was extremely poor, has also given details of the defects which he claims to have noticed in the construction, which are reproduced below:-
"[i] the four columns supporting the canopy which is o.9" thick is not properly aligned with the wall during construction. Hence, to rectify the defect the thickness of the column has been increased to 1"0" after finish by increasing the plastering thickness.
R.F.A.No.514/201124 [ii] the paragola openings will usually have grid beam of 4" average thickness for aesthetic, however it was observed at site the average thickness was about 1"0" after finish which makes an ugly look. Also the openings provided in the roof slab at the stair case entrance to first floor has to be closed for safety reasons.
[iii] the wall between the dining hall/kitchen and bed room's in not aligned properly. Which is very clearly visible and to
rectify the same a projection at the kitchen door frame has been constructed, where a groove like finish appears which makes it look ugly.
[iv] The lintel beam cast between the dining hall and kitchen is also not aligned
properly, hence to rectify the same the wall constructed above the lintel beam projects out where a step has been formed, which makes the wall look ugly.
[v] the rough pebble dashed plastering provided above the lintel level in living room, dining hall and verandah looks very ugly and such plastering is usually not provided inside, since it attracts dust and cleaning is difficult.
[vi] Since many windows, doors and ventilators have not been fixed and also the R.F.A.No.514/2011 25 glazed tiles have not yet been fixed the plastering is incomplete.
[vii] The thickness of the Facia drop is not of uniform size and thickness and is of inferior workmanship.
[viii] The construction of the wire cut brick wall inside the hall is not fo uniform level at one end, it touches the roof ceiling under the other end, there is a gap of more than 2" which looks very ugly."
PW-1 also has stated that the electrical work was incomplete and the materials used were of poor quality. Though the defendant had agreed to furnish drawings and plan of work, he had failed to furnish any of them and the specifications furnished in the diary are not in regular engineering standard form.
He also stated that they got the estimate of the repair and re-work that had to be carried on in the suit schedule property as per which estimation, the plaintiffs have to spend a sum of `55,825/- for the said works. R.F.A.No.514/2011 26 They were forced to spend the same only on account of the defective work carried on by the defendant. With this, PW-1 has stated that for the work worth `4,02,000/-, since the defendant had collected `6,50,000/-, there is an excess amount received by him which is `2,48,000/-.
PW-1 has also stated that defendant is liable to pay interest on the said amount at `18% per annum from 20-04-2001 till 20-02-2002 which comes to `37,200/-. Towards the damages for loss of use and occupation of the house at the rate of `2,000/- per month from 20-04-2001 to 20-02-2002 (for ten months), the defendant is liable to pay a sum of `20,000/-. Towards the amount required to be spent by the plaintiffs for repairs and re-work due to defective work of the defendant, a sum of `55,825/- is claimed. Thus in total, the plaintiffs have said that the defendant is liable to pay them the aforesaid sum.
R.F.A.No.514/201127
PW-1 has further stated that upon the application for appointment of a Commissioner for local inspection, the Court appointed two Commissioners by names Sri.K.V. Srinivasan and Sri.R. Jayaram Singh who had conducted a joint local inspection and have submitted their separate reports before the Court.
While the Commissioner - Sri. K.V. Srinivasan has in his report stated that, the construction carried on by the defendant suffers from several defects and the amount spent by the defendant is far less than the amount received by him from the plaintiffs and the total value of the work done by him would come to `4,26,030/- only, however, the second Commissioner - Sri. R. Jayaram Singh who was suggested by the defendant has valued the construction at an exorbitant figure of `9,47,792/-.
PW-1 says that the said valuation has been made without any basis and the same is more than 100% of the valuation of the other Commissioner. Further, stating R.F.A.No.514/2011 28 that in addition to the suit claim, the plaintiffs are also entitled to receive damages at the rate of `2,000/- per month from 20-04-2001 till November 2004, when they could finally complete the construction of the house and occupy the same and in that regard, they are entitled to receive a sum of `86,000/- from the defendant. Thus, in all, as on the date of his evidence, the witness stated that they were entitled to receive a sum of `3,65,795/- with interest thereupon.
PW-1 also got marked Court Commissioner - Sri.K.V. Srinivasan's report at Ex.P-21 and another Court Commissioner - Sri.R. Jayaram Singh's report at Ex.P-22.
The witness was subjected to a detailed cross- examination wherein he adhered to his original version.
15. The Court Commissioner - Sri.K.V. Srinivasan appointed at the instance of the plaintiffs was examined as PW-2. The said witness who claims himself to be a R.F.A.No.514/2011 29 Chartered Engineer and Registered Valuer has stated that as per the instructions given, he has conducted the Commissioner's work and has submitted his report as per Ex.P-21.
He was subjected to a detailed cross-examination from the defendant's side wherein he has given few more details of his work and also the basis on which his findings were arrived at in the report.
16. The plaintiffs got examined Sri. Channanarasimhaiah, a retired Superintending Engineer in the Department of Public Works and Irrigation as PW-3. The said witness has stated that at the request of the plaintiffs, he inspected the suit schedule property on 11-05-2001 and has taken the measurements of the construction as it stood then. He has also examined the quality and nature of construction on the basis of measurements and his observations. He has prepared the estimate and also the abstract estimate. He has R.F.A.No.514/2011 30 identified the said estimate cost of the building at Ex.P-11 and detailed quantity estimate existing on the particular day at Ex.P-10.
In his brief cross-examination, he has given some more details of his alleged work done in this case.
17. The defendant who got himself examined as DW-1 in his Examination-in-chief in the form of Affidavit evidence has reiterated the contentions taken up by him in his Written Statement. He has stated that with respect to the agreement which he entered into with the plaintiffs wherein he had agreed to put up construction of a residential structure in the site of the plaintiffs, it was agreed that plaintiffs had to pay him a sum of `71,000/- per square (100 sq.ft.). In that regard, an agreement dated 20-08-2000 came to be signed by both side. The details of the materials that were agreed to be used in the construction were also recorded in a diary of the second plaintiff. The construction work began on R.F.A.No.514/2011 31 18-08-2000, two days earlier to the date of agreement and the foundation work was completed on 08-09-2000. However, the plaintiffs did not comply the payment schedule though agreed in the agreement.
The witness has further stated that at no point of time, he chose to compromise with the quality of the material used or with the workmanship employed. He stated that though Water Proof Course (WPC) was not done in the building, because the said work was required to be carried out after the construction of parapet wall and installation of rain water drain pipes. The non- completion of the said work cannot be classified as a defect in the work. He also stated that at each stage of construction, he was completing the work within time and as per specifications. The plaintiffs were regularly visiting the site and verifying the quality of the material used and the workmanship employed.
R.F.A.No.514/201132
The witness also stated that on 06-04-2001 the plaintiffs conveyed that there were some alterations/deviations from the plan and he agreed to carry out the same. In that regard, a memorandum was arrived at between the parties before the witnesses present and also a joint measurement was taken by the plaintiffs and himself. He has stated that at no point of time the plaintiffs whispered of either any poorness in the quality of the work or the material used.
He further stated that, at the request of the plaintiffs, a stucco finish was done above the lintel level in the building which incurs more material and labour. He alleged that it was the plaintiffs who forcibly stopped his work on 21-04-2001. Though he stated that he received a legal notice issued to him on behalf of the plaintiffs, he also stated that he got it suitably replied through his counsel. He admitted that the plaintiffs had filed a private complaint against him. However, he R.F.A.No.514/2011 33 termed it as with false and frivolous allegations made against him. He further stated that though the building was initially planned to be measuring in total fourteen (14) squares in extent, but subsequently, it was increased with two more squares. He also stated that he had already invested `9,22,432/- in construction of the building. He stated that there were no technical defects whatsoever in the building. He used the quality materials. He further stated that the building as it is requires no alterations or re-work. He has not executed any shabby or sub-standard work, but stated that he has completed 81.20% construction and has put up sixteen (16) squares construction amounting to `9,22,432/-, whereas he has received only a sum of `6,50,000/- from the plaintiffs.
In his support, he got marked copy of legal notice received by him at Ex.D-1 and his reply to the same at Ex.D-2, Certificate Of Posting (COP) and the postal R.F.A.No.514/2011 34 receipt at Exs.D-3 and D-4 and 28 colour photographs from Exs.D-5 to D-32.
In his detailed cross-examination, he adhered to his original version.
18. DW-2 - Sri. Krishnamurthy has stated that it was he who introduced the defendant to the plaintiffs in the first week of August 2000 and he has also signed in the document on 20-08-2000 which reduced the entire terms and conditions along with specifications that was agreed to between the parties. He has further stated that subsequent to the approval of the draft agreement by the plaintiffs, the said agreement dated 20-08-2000 came to be signed on 20-10-2000 wherein also he has signed as one of the witnesses. He stated that the defendant had agreed to construct a residential building in the suit schedule property for the plaintiffs by using the materials as stated in the specifications, at the rate of `71,000/- per square (100 sq.ft.). The plaintiffs had R.F.A.No.514/2011 35 agreed to pay the amount to the defendant as per the schedule of payment mentioned at para.5 of the said construction agreement. He also stated that he visited the schedule property many a time and found that the defendant was carrying out the work strictly in accordance with the agreed specifications.
DW-2 has further stated that as a dispute arose between the parties with regard to the measurements of the existing construction then, himself along with the parties to the suit in the presence of other elders measured the building and both the parties to the suit agreed to carry forward the construction work as per the principal agreement. Fresh terms and conditions were agreed by the parties which came to be reduced into writing on 06-04-2001. He has signed the minutes of meeting as one of the witnesses. Further, he stated that when the plaintiffs ousted out the defendant contractor, then about 80% of the construction work was completed R.F.A.No.514/2011 36 by the defendant. He stated that plaintiffs are liable to pay the defendant at the rate of `71,000/- per square (100 sq.ft.) calculating 80% completed work. Stating that he has attested the agreement entered into between the plaintiffs and the defendant, he identified the said document as a diary at Ex.P-12. He has identified his signature in Ex.P-16 at Ex.P-16(a) and the Memorandum of Understanding at Ex.P-17 and his signature therein at Ex.P-17(b).
In his cross-examination, DW-2 gave further details regarding the construction contract between the parties and stated that as per the agreement, the period agreed for completion of the construction work was eight months.
19. DW-3 - Sri. Srinivasaiah - the brother-in-law of the defendant has stated that the parties to the suit entered into construction agreement on 20-08-2000 wherein the defendant agreed to put up a construction of R.F.A.No.514/2011 37 a house for the plaintiffs at the rate of `71,000/- per square (100 sq.ft.). He stated that on 06-04-2001, a meeting was convened between the parties and himself and a Memorandum of Association was signed with regard to the extra work to be done on the schedule property. He has signed the said document at Ex.P-17.
DW-3 further stated that as on 21-04-2001, the defendant had totally completed 80% of the construction work. The plaintiffs are liable to pay total sum of `9,45,700/- for having completed 80% of the work by the defendant in an area of 16.66 square feet. He stated that he was also present on 27-10-2002 when the Commissioner visited the spot. He further stated that quality of work executed by the defendant was of good quality. The witness has identified Ex.P-12 and his signature therein at Ex.P12(c). He admitted in his cross- examination that as per Ex.P-16, the defendant was required to complete all construction works within April R.F.A.No.514/2011 38 2001. However, he volunteered to say that there was some delay due to non-payment of the amount.
20. The plaintiffs in order to show the alleged defects in the construction of the building, have produced five coloured photographs of the building at Exs.P-2 to P-6. Similarly, in support of their contention that the work was completed as per specifications, the defendant got produced and marked 28 colour photographs at Exs.D-5 to D-32. However, by looking at these photographs and without any explanation attached to them in the oral evidence, nothing can be inferred regarding the completion of the work or quality of the work. Similarly, copy of the architectural drawing of the building at Ex.D-34, electrical drawing of the building at Ex.D-35 and joinery details of doors and windows drawing in a pictorial format on a single sheet also would not help in any manner to assess the truthfulness in the pleadings of the parties.
R.F.A.No.514/201139
21. Therefore, the first document which may be considered to assess the case of the parties would be Ex.P-12 which admittedly is a diary note book in which certain details showing them as specifications have been written. The said writing is confined only to three and a half pages in the diary note book which with respect to superstructure mentions about the brick wall and stone cladd and about plastering. It mentions that c.m.1:6 and 1:3 for walls and ceiling respectively. No where, it mentions about the stucco plastering or pebble finishing or even putting up of pergolas.
22. Similarly the construction agreement said to have been entered into between the parties, a copy of which is marked at Ex.P-16 is also silent about these construction specifications or details, rather the said agreement is more confined about the terms of the payment agreed to be made by the plaintiffs to the defendant in six stages. However, it mentions that those R.F.A.No.514/2011 40 payments if not made as per the terms and conditions, the contractor would not be held responsible for the delay in execution of the work. As such the contention of the defendant that the plaintiffs did not make the payment as per the terms agreed in the agreement and the same has resulted in delay would find a place in Ex.P-16, provided it is established that there was alleged delay in the payment made by the plaintiffs. Thus, even Ex.P-16 also does not help in any manner to ascertain as to the alleged defects or variations or incompleteness in the execution of work by the defendant.
23. However, Ex.P-17 is the Memorandum of Understanding which DW-2 and DW-3 have stated that it was signed by the parties in their presence wherein they have also put their signatures as witnesses. Even PW-1 has also produced the said document and got it marked, but called it as an agreement entered into between the R.F.A.No.514/2011 41 parties to compromise the matter between them. Thus, Ex.P-17 stands as an undisputed document.
In the said document at Sl.No.3, it is mentioned that portico, pergola construction, and other extensions if any, excluding chajjas should be taken as 65% of a square area covered. This goes to show that even though construction of pergolas was alleged to be a defect by the plaintiffs and as an additional work by the defendant, but Ex.P-17 shows that the plaintiffs had agreed to treat the said construction as a part of the work in considering the percentage of the work done. However, the said document is silent about the liability of the plaintiffs to pay any amount towards the said pergolas, to the defendant.
As extracted above, PW-1 has given the details of the alleged defects said to have been made by the defendant in the construction work. But, PW-1 nowhere has stated as to what he meant by the term 'defect' so R.F.A.No.514/2011 42 far as construction of a building is concerned. However, PW-2 in his cross-examination has stated that according to civil engineering, non-completion of any work is termed as 'defective'. He has also stated that stucco plastering since was not agreed between the parties is also to be termed as a 'defect'. However, the defendant has not agreed to the said explanation as to what the term 'defect' means. No endurance is made by either side to explain as to what the term 'defect' means in the building construction.
In order to understand as to what is meant by the term 'defect' with respect to building and engineering contracts, the Court referred to a book titled G.T. Gajria's "Law Relating to Building and Engineering Contracts in India", a Butterworths Publication, New Delhi, Fourth Edition. This Book was placed for reference by the learned counsel for the appellants/plaintiffs. R.F.A.No.514/2011 43
In the said Book, in chapter 9 with the title "Defective Work and its Consequences" the author at page.661 writes as below:-
"The word 'defects' indicates any deficiency in the quality of the work, whether structural or otherwise, whether due to faulty material or workmanship, or even in design or performance, if that is a part of the contractor's obligation. In some cases, the making good or repair obligation may be limited expressly to cases of breach of contract on the part of the contractor, but the modern tendency is to require making good or repair whatever the cause of the defect, but with full compensation to the contractor in cases where he is not in breach of contract. In some cases, the obligation to repair the defective work may be absolute, ie, the contractor may have to make good the defects without levying any burden of additional cost on the owner, whether or not he is at fault".
The details about the alleged defects said to have been committed by the defendant in the construction of the building which was narrated by PW-1 in his R.F.A.No.514/2011 44 Examination-in-chief have not been categorically, specifically and individually denied in his cross- examination. However, several suggestions were made to the witness from the defendant's side that there was no defect in the commission of work by the defendant and that all the constructions were of quality, complying with the specifications agreed to between the parties. However, the witness has not admitted those suggestions as true. On the other hand in his cross- examination, PW-1 continued to say that the defendant has committed the defects in the execution of the work. He has reiterated that from time to time, he was informing the defendant regarding the low quality of materials and also that he noticed some more defects and asked the defendant to rectify those defects. In this way, the fact remains that the alleged 'defects' contended by the plaintiffs in their plaint as well PW-1 in his Examination- in-chief has remained specifically undenied. R.F.A.No.514/2011 45
24. Admittedly, PW-1 or the plaintiffs are not experts in construction. They themselves have claimed that they were ignorant of the construction activities. Therefore, whether the alleged 'defects' averred by the plaintiffs and stated by PW-1 in his evidence are really the deviations from the work agreed to between the parties and/or they were 'defects', have to be assessed in the light of other available materials and the evidence.
25. In that regard, it is the two Commissioners' Reports which would be of some help. Those two reports are marked as Exhibits P-21 and P-22 by the plaintiffs.
Two Commissioners, one by name Sri K.V. Srinivasan, a Chartered Engineer and an Approved Valuer was suggested by the plaintiffs and another Commissioner by name Sri. R. Jayaram Singh, whose report does not depict his qualification and who was suggested by the defendant were appointed as the Court Commissioners. Though both of them visited the R.F.A.No.514/2011 46 spot and inspected the building on 27-10-2002 in the presence of parties to the litigation and also their respective counsels, but, both the Commissioners have filed their separate reports. The Memo of instructions was filed by both the plaintiffs and the defendant. The instructions given by the parties to the litigation to the Commissioners find their place as a part of Ex.P-21. The Memo of instructions given by the plaintiffs to the Commissioner - Sri.K.V. Srinivasan reads as below:-
"1. The Commissioner to inspect the Suit Schedule Property and to report the present stage of construction.
2. The Commissioner to report as to the quality of construction work carried on by the Defendant in the Suit Schedule Property.
3. The Commissioner to inspect the construction and also to submit the valuation of the construction on the basis of the standard rates prevailing in the market.R.F.A.No.514/2011 47
4. The Commissioner also to report as to whether there are any defects in the construction in the Suit Schedule Property.
5. The Commissioner to report the approximate value and the quality of the construction materials which are used in the Suit Schedule Property."
The Memo of instructions given by the defendant to the Commissioner - Sri.R. Jayaram Singh reads as below:-
"1. The Court Commissioner to visit the suit schedule property and take the measurement of the actual construction (plinth area) executed by the Defendant.
2. To verify the roof of the building and to give his opinion with regard to the quality of the material and the workmanship engaged and further to specifically verify whether the roof has been casted properly according to technical specifications.R.F.A.No.514/2011 48
3. To verify the Plastering work in the building and give opinion regarding the quality of the material used for the plastering work and also to verify whether the plastering work has been executed SCIENTIFICALLY (in accordance with technical specifications).
4. To specifically verify the so called various defects (i.e.8 in number) as stated by the plaintiff at Para No.26 of the plaint and give his opinion with regard to the alleged so called defects.
5. To verify the water lines running in the building and give report regarding the pipes used for the water supply.
6. To verify the grill work that is provided for the windows in the building and to verify whether the material used thereupon is the standard and the same is made up of quality material.
7. To verify the electrical work executed and to make a note with regard to the quality of the material used.R.F.A.No.514/2011 49
8. To inspect the entire structure that is being put up by the defendant and to give his opinion whether any repair work is necessary in the building.
9. The court commissioner to inspect the entire building and to give his general opinion with regard to the quality of the material used in the building and workmanship employed in the construction work.
10. The court commissioner to estimate the total percentage of work executed by the defendant (in accordance with technical hand book for Civil Engineers (ISRO) and subsequently to calculate the amount that has to be paid by the plaintiffs at the rate of Rs.71,000/-(Rupees Seventy one thousand only) per Square."
The commonness that can be found in the memo of instructions filed by both side is that, the Commissioners should inspect the suit schedule property/spot and verify about the alleged 'defects' averred by the plaintiffs. R.F.A.No.514/2011 50 Though both the parties have requested the Commissioners even to submit the valuation of the construction, but, the plaintiffs have requested the Commissioner to submit the valuation on the basis of the standard rates prevailing in the market, whereas, the defendant instructed the Commissioner to estimate the total percentage of work executed by the defendant in accordance with the Technical Hand Book of Civil Engineers (ISRO) and subsequently to calculate the amount that has to be paid by the plaintiffs at the rate of `71,000/- per square (100 sq.ft.).
Both the Commissioners have submitted their detailed separate reports running into several pages.
26. A perusal of the Commissioner's report (Ex.P-22) submitted by Sri.R. Jayaram Singh would go to show that, he has viewed the matter from the angle of the instructions given to him by the defendant. Regarding the quality of the construction work, he has R.F.A.No.514/2011 51 certified that the materials used were of good quality and the plastering was done with good quality of sand and cement with good workmanship.
Regarding the wood work, he has stated that the wooden frames, window and doors have been done with good teakwood and satisfactory carpentry work has been executed in that regard.
However, with respect to pergolas, he has mentioned that, the column size was bigger than the usual practice, still, he called it as not of sub-standard or inferior quality. He has observed that, very few minor items were found which were not in accordance with the known specifications. He has noticed that the RCC column was a bit thick than what normally it ought to be. He has noticed it was 12"x12" instead of 9"X12". However, he has stated that the same does not render the columns weak. He has stated that though pergolas look thicker, but the same cannot be classified as a R.F.A.No.514/2011 52 'defect'. With respect to the alleged 'defects' canvassed by the plaintiffs in their pleading, the Commissioner has stated that, canopy columns were properly aligned and there is no any iron-jacket rule that the pergolas opening must be 4" in thickness only. Though he noticed that the pebble plastering inside the house will not be normally done, but he stated that the same depends upon the taste of the parties. He has stated that, pebble plastering involves more material and workmanship than doing ordinary plastering. He stated that there was difference of ¾" in the top alignment in the wire-cut brick masonry work. However, he observed that, wire-cut bricks have been properly aligned and the grooves have been cut uniformly and the work is done properly.
With respect to the alleged defects in the construction which was one of the point in the Memo of instructions given by the defendant in his memo of R.F.A.No.514/2011 53 instructions at Sl.No.4, the Commissioner has mentioned in his report which is extracted herein below:-
"4. To specifically verify the so-called various defects (i.e. 8 in number) as stated by the plaintiff at para No.26 of the plaint and give his opinion with regard to the alleged so-called defects.
I verified personally inspected all the various defects (8 in nos.) as stated in para No.26 of the plaint and I proceed to give my opinion as hereunder:
"i. The thickness of the 4 supporting canopy columns is one foot in thickness and it is properly aligned. Just because the thickness of the column is one foot the same cannot be classified as the defect.
ii. The Pergola beams is found one foot in thickness and there is no any iron jacket rule that the pergola opening must be 4" in thickness and the same depends on the designing and likings of the parties and the concerned engineer hence this cannot be classified as the defect.R.F.A.No.514/2011 54
iii. The walls between the dining halls, kitchen, bedroom is properly designed as noticed as mentioned in the plaint as point No.3.
iv. The lintel has been casted perfectly and properly aligned and no defect was found.
v. The pebble plastering has been done above the lintel level, dining hall, verandah.
The same looks neat and beautiful, the pebble plastering inside the house is normally not done but once again the same depends upon the taste of the parties. In fact to get the pebble plastering done more material and workmanship is involved than doing the ordinary plastering.
vi. This has been duly answered as per Annexure-A. vii. No un uniform size of facia drop is noticed and the workmanship is in fact is excellent. There is difference of 3/4th an inch in the top alignment in the wire cut brick masonry work. The wire cut bricks have R.F.A.No.514/2011 55 been properly aligned and the grooves have been cut uniformly and the work is done properly."
With the said details, he arrived at a conclusion that the total percentage of construction work done on the site was 81% and the total cost of work done by the defendant (all inclusive) as per the Technical Hand Book for the Civil Engineers (ISRO) would come to `9,47,792/-.
27. Sri. K.V. Srinivasan, the other Commissioner who had also inspected the same premises/construction site along with Sri. R. Jayaram Singh, the other Commissioner, however, has not concurred with several of the aspects. Even though with respect to the details of the work which are said to be completed, both of them appear to have concurred, but has observed that some of the aspects have not been attended to or done by the contractor. According to this Commissioner, plastering R.F.A.No.514/2011 56 was yet to be done, flagging concrete was not done, M.B.R., B.S. Slab and hardware fitting, wardrobe, kitchen cabinet, compound wall and gate were not done. This Commissioner, for the purpose of cost of the work done, relied upon the Karnataka Public Works Department Schedule of Rates, Bangalore Circle, Bangalore, 1999-2000, which according to him was in vogue at that point of time and arrived at a valuation of `4,42,005/-.
The Commissioner also listed the non-agreement items like pergola concrete, stucco plastering, cornice for roof slab, parapet, chajjas and has calculated their cost also which according to him comes to a total of `49,152/-. Thus, the total value of the work done was `4,42,005/- + `49,152/- = 4,91,157/-. After deducting 13.26% towards costing done on overall variations for nine items which according to him comes to `65,127/-, R.F.A.No.514/2011 57 he arrived at a conclusion that the actual cost of work done as on 27-10-2002 was `4,26,030/-.
The Commissioner - Sri. K.V. Srinivasan in his report has also given a detailed observation as to the quality of construction work carried on by the defendant in the suit schedule property, the summary of which is that the quality of work was not good. In his report at point No.13.2, he has given details to arrive at such an opinion.
The Commissioner - Sri. K.V. Srinivasan in his report at point No.13.4 has given a detailed description as to what is a 'defect' according to him in the construction of a building and what defects he noticed in the site. The same is extracted herein below:-
"13.4 The Commissioner also to report as to whether there are any defects in the construction in the Suit Schedule Property.R.F.A.No.514/2011 58
13.4.1 The word 'Defects' is used in engineering contracts to indicate such works as are not carried out as per agreed specifications. For Example, in case cement concrete of ratio 1:4:8 (i.e. 1 part of cement, 4 parts of stone aggregate and 8 parts of sand) is carried out while the agreement specifies cement concrete of ratio 1:5:10 (i.e. 1 part of cement, 5 parts of stone aggregate and 10 parts of sand), even though the former specification (i.e.1:4:8) is richer compared to latter (i.e.1:5:10), it will be termed as 'defect'. Similarly the use of PVC pipes for plumbing lines against the GI pipes as per agreement can be termed 'defect'. Similarly, the use of larger thickness of cement plaster on walls in the interior (20mm thick against 12mm thick) and on the exterior (25 mm thick against 20mm thick) and column plaster (38 mm thick against 12mm thick), can all be termed as 'defect'. Further, where 'defect' is noticed, the contractor will not be liable to claim the agreed rates. It will be open to the client to accept the 'defect' at reduced rates or reject it totally without paying any rate for such 'defective' work.R.F.A.No.514/2011 59
13.4.2. Based on the definition of 'Defects' in engineering contracts, namely, "the item of work that is not carried out according to agreed specification," following items executed in the suit schedule property, are termed as 'defects'.
13.4.2.1. The reinforced cement concrete columns, which are of size 9"x9" are plastered with 1½" thickness (38mm) against the standard ½"
(12mm) plaster. In fact, the K.P.W.D., S.R. and I.S.I do not provide for any extra thickness of plaster on reinforced cement concrete (R.C.C.) work, but, it mentions 'including smooth finish in cement mortar 1:3' over the R.C.C. works, which implies that even 12mm thick plaster is not required.
13.4.2.2 The pergola has been provided with beam size 9"*12", pergola size is 9"*12" and pergola opening is 2'0"x2'3". The construction of pergola is not covered in the agreement between the Defendant and Plaintiff.
13.4.2.3 The plastering for internal wall is 20mm thick, while it is normally 12mm thick, an excess by 8 mm thickness. The plastering for R.F.A.No.514/2011 60 External wall is 25mm thick, while it is normally 20 mm, an excess by 5 mm thickness.
13.4.2.4 PVC pipes have been used for plumbing lines while only GI pipes have been specified in the agreement between the Defendant and Plaintiff. 13.4.2.5 Electric conduits of size ¾" and 1" of PVC has been used throughout with modular type plastic boxes. There is no specific mention in the agreement as to the type of conduits to be used. However, the agreement provides for 'Crab tree modular switches and fenolex cables', which apparently means use of metal conduits and metal switch boxes and not PVC conduits and plastic boxes.
13.4.2.6 Stucco plaster has been carried out in dining room, living room and verandah and its thickness is more than 2"(50mm). This item is not covered in the agreement between the parties. 13.4.2.7 Cornice for roof slab (3 Nos), parapet (2 Nos), chajjas (3 Nos.) has been done, which is not covered in the agreement between the parties. R.F.A.No.514/2011 61
13.4.2.8 The wire cut bricks used in living room show 3/4" difference in the top alignment. Even though the quality of wire cut bricks and the mortar used for laying it in the living room is in order, the difference of 3/4" in top alignment shows improper laying pattern.
From point No.13.5.2.4 to point No.13.5.2.6, after giving reduction for interior and exterior plastering and deduction towards overall variation at 13.26%, he has valued the work that was executed by the defendant for agreed items at `3,80,173/-. He also opined that the plinth area (built-up area) which was proposed as per the agreement was 1,353-44 sq.ft. whereas the plinth area (or built-up area) constructed at site was 1,450-86 sq.ft.
The Commissioner - Sri. K.V. Srinivasan has also given his finding to point No.4 in the memo of instructions given by the defendant which was with respect to the defects (eight in numbers) as stated by the R.F.A.No.514/2011 62 plaintiffs in their plaint and had given his report as below:-
SO-CALLED OPINION
DEFECTS
(i) The four columns (i) The four columns, without
supporting the canopy plaster, measure 9"x9" and with
which is 0'9" thick is plaster, it measures 12"x12" that
not properly aligned is plaster thickness is 1½" (38
with the wall during mm) against normal thickness of
construction. Hence, 12mm or ½". In fact, both
to rectify the defect, K.P.W.D., S.R., and C.P.W.D., do
the thickness of the not provide for additional plaster
column has been over Reinforced Cement Concrete
increased to 1'0" after (R.C.C) columns. The additional
finish by increasing thickness of plaster, which is
the plastering against the standards, is a 'defect'
thickness. in engineering contracts. It is a
fact, that additional thickness of
plaster has been carried out to
bring the columns in alignment to
the wall in front of it. This
position has also been explained
under Para-13.2.3.1 above.
(ii) The paragola (ii) There is no standard size of
openings will usually pergola to be provided in any
have grid beam of 4" building. The size of pergola
average thickness for depends upon the size of the main
aesthetic, however, it building, because, pergola forms a
was observed at site part of the main building. In the
the average thickness present case, the size of pergola
was about 1'0" after provided is with beams of size
finish which makes an 9"x12", pergola size 9"x12" and
ugly look. Also, the the pergola opening is 2'0"x2'3",
opening provided in which is too large and hence dis-
the roof slab at the proportionate to the Size of the
R.F.A.No.514/2011
63
staircase entrance to residential building at the rear. As
first floor has to be matter of safety, pergolas are not
closed for safety made accessible, while, in the
reasons. present case, it is directly
accessible from ground floor
terrace and too dangerous
because of its opening which is
2'0" x 2'3". Hence, it has to be
necessarily made in-accessible
from the terrace of ground floor or
should be fully covered. Further,
the construction of pergola is not
an item that is agreed upon by the
parties and hence is a 'defect' as
opined in Para -13.4.2.2. above.
(iii) The wall between (iii) This is factually correct. Even
the dinning though the quality of plaster is in
hall/kitchen and bed order, the extra thickness has
rooms is not aligned been provided to make up for the
properly. Which is alignment. Structurally, this is not
very clearly visible dangerous, but look-wise, it is
and to rectify the rather ugly, because, the
same, a projection at additional thickness of plaster is
the kitchen door clearly visible in the dining hall.
frame has been The additional thickness to make
constructed, where a up for the alignment is also a
groove like finish 'defect' in the engineering
appears which makes contracts.
it look ugly.
(iv) The lintel beam (iv) This is factually correct. Even
cast between the though the quality of work is in
dining hall and kitchen order, and structurally safe, it
is also not aligned looks ugly and it is also a 'defect'
properly, hence to in engineering contracts due to
rectify the same, the distorted alignment.
wall constructed
above the lintel beam
projects out where a
R.F.A.No.514/2011
64
step has been formed,
which makes the wall
look ugly.
(v) The rough pebble (v) Rough pebble dash plaster (or
dashed plastering stucco plaster) have been carried
provided above the out in living room, dining room
lintel level in living and verandah. Its thickness is
room, dining hall and around 2½" (63.5mm). The
verandah looks very quality of plaster is in order.
ugly and such However, stucco plaster is not
plastering is usually carried out inside the buildings. It
not provided inside, is carried out on the exterior to
since it attracts dust project a better elevation to the
and cleaning is building and also to reduce
difficult. maintenance cost of the building
on its exterior. This item does not
appear in the agreement executed
between the parties and hence it
is termed a 'defect' as per
engineering contracts.
(vi) Since many (vi) This is factually correct. The
windows, doors and position of construction as on the
ventilators have not date of inspection (i.e., as on 27-
been fixed, and also 10-2002) is detailed under Para -
the glazed tiles have 9.1 to 9.17 above. Regarding
not been fixed, the plastering, it is given under Para
plastering is 9.8 above, namely, "Plastering is
incomplete. yet to be done in portico wall
facing left and front face; 2
toilets; pooja room; two walls of
staircase room; exterior front
covered portion between wire cut
brick pillars." It is a fact that
glazed tiles have not been fixed.
However non -completion of
plaster and non-fixing of glazed
tiles shows that the work is
incomplete. Such non-completion
R.F.A.No.514/2011
65
also come under the definition of
'defects' because the definition of
'defects' is "work which is not
completed or carried out as per
agreed specifications."
(vii) The thickness of (vii) it is a fact that the thickness
facia drop is not of of facia drop is not of uniform size
uniform size and and thickness, and hence, it is an
thickness and is of indication of inferior workmanship.
inferior workmanship.
(viii) The construction (viii) This is factually correct. As of the wire cut brick already stated in Para -13.2.3.8 wall inside the hall is above wire cut bricks have been not of uniform level at used in the living room. Even one end, it touches though the bricks are of correct the roof ceiling and at quality, the construction shows a the other end, there is difference of ¾" in the top a gap of more than 2" alignment. It is not suddenly which looks ugly. visible as one enters the living room, but is will be visible as one discreetly looks around the walls of the living room on the window-
side. The ¾" difference in the
alignment comes under definition
of 'defects' in engineering
contracts.
The Commissioner Sri. K.V. Srinivasan in his report has also calculated the valuation of the building in case the building had been completed as per the agreed items at `10,30,111/-. This according to him was total sum payable by the plaintiffs to the defendant provided the R.F.A.No.514/2011 66 work as agreed in all respects was completed with hundred per cent by the defendant. The same can be noticed at point No.14.10.4.1 to point No.14.10.4.7 in his report. He has also calculated the quantum of deduction required to be made towards incomplete works and partially completed works at point No.14.10.4.8 to 14.10.4.11 which in total comes to `4,55,943/-. After adding a sum of `49,152/- towards non-agreement items and thereafter deducting 13.26% towards over all variation at point No.11.9, which according to him is `69,617, he has opined that the total value of the work executed by the defendant comes to a sum of `4,55,399/-. Thus, he has evaluated the cost of construction from two angles.
From the first angle, which was based on the actual quantity of work executed at site and priced on the basis of the rates of certain items agreed between the parties, R.F.A.No.514/2011 67 both for agreed and non-agreed items, he evaluated them at `4,26,030/-.
In the second approach, which was based on agreed rate at `71,000/- per square (100 sq.ft.) for the entire building and deducting the cost of incomplete works and partially completed works both for agreed and non-
agreed items, he has evaluated them at
`4,55,399/-.
When these two Commissioners' reports are
considered, there is a great variation in the valuation of the work done as assessed by both the Commissioners.
28. As already observed, the Commissioner Sri. R. Jayaram Singh has evaluated the work only from one angle, taking the Technical Hand Book of ISRO as the basis and arrived at the total value of the total work done at `9,47,792/-. Whereas the other Commissioner Sri. K.V. Srinivasan evaluated the same work based on R.F.A.No.514/2011 68 the actual quantity of work executed relying upon the PWD guidelines and arrived at a valuation of `4,26,030/-. Thus, there is a difference of `5,21,762/- between these two Commissioners' total valuation of the total work done by the defendant.
The Commissioner - Sri. K.V. Srinivasan's valuation of the work done by the defendant in the site based on the agreed rate of `71,000/- per square has evaluated the total work at `4,55,399/-. Still, there is a difference of `4,92,393/- between these two Commissioners' evaluation of the same work.
29. For these differences, what can be noticed is that, the Commissioner - Sri. R. Jayaram Singh has not thought it proper to consider the value of the remaining work/part-work to be done, whereas, the Commissioner - Sri.K.V. Srinivasan has taken the same into consideration while evaluating the work based on the agreed rate at R.F.A.No.514/2011 69 `71,000/- per hundred square foot. Still, in his first approach, to the valuation based on the actual quantity of work also, there is a difference at `5,21,762/- in the valuation made by both these Commissioners.
30. In the background of the above, what is now required to be considered is about the principles of assessment of damages.
31. Learned counsel for the appellants/plaintiffs in his argument vehemently submitted that what are all the work that have been done have to be valued and only so much is required to be paid or compensated to the plaintiffs.
32. Learned counsel for the respondent/defendant in his argument submitted that since major portion of the work has already been completed by the defendant, the percentage of work done and its equivalent value of construction is to be considered.
R.F.A.No.514/201170
He further submitted that according to his Commissioner's report at Ex.P-22, 81% of the work has already been completed and the valuation of the said work according to the said Commissioner is `9,47,792/-, which goes to show that the defendant has spent `2,97,792/- more than what amount he has already received from the plaintiffs.
33. PW-1 has not stated in his Examination-in-chief as to what percentage of work has been completed by the defendant. On the other hand giving a list of the defects and contending regarding the uncompleted work, he has claimed that he has paid `2,48,000/- in excess than what the defendant deserves for the work done by him. For the said purpose, he relied upon the other Commissioner's report at Ex.P-21.
Though it was contended by the defendant that 81% of the work has been completed by him, but no R.F.A.No.514/2011 71 suggestion in that regard was made to PW-1 in his cross- examination. On the other hand, continuous attempts were made to show that the plaintiffs have not kept up their promise under the agreement and that they have committed breach of the agreement by themselves. It was also tried to elicit that the plaintiffs have not paid the amount to the defendant in the staged manner as agreed between the parties under the agreement. However, in the cross-examination of PW-2, who is the other Commissioner - Sri. K.V. Srinivasan, it was suggested to the witness that at the time of inspection of the building, 81.20% of the work was completed. However, the witness has not admitted the said suggestion, but only stated that he does not know about it. On the other hand, the witness stated that he cannot say any percentage of completion of work as on the date of inspection. Therefore, since the calculation of the work based on the alleged percentage of its completion was R.F.A.No.514/2011 72 not put to PW-1 in his cross-examination and as PW-2 has not admitted the suggested percentage of 81.20% as the quantum of the work done, then, it is for the defendant to establish that the percentage of work done was 81.20.
34. In that regard, though DW-1 in his Examination-in- chief has stated that he has completed 81.20% of construction, but he has not produced any documentary evidence from his side in that regard. However, the defendant relied upon his Commissioner's report which is at Ex.P-22. The said Commissioner in his report has stated that the percentage of work completed by him was 81%, which could be seen at page 14 of his report. However, his basis for calculation to arrive at such a percentage as prescribed basis which was not to the acceptance of the plaintiffs. In such a circumstance, when the plaintiffs have not accepted the Commissioner's report at Ex.P-22, the said Commissioner was required to R.F.A.No.514/2011 73 offer himself for cross-examination of the plaintiffs as done by the other Commissioner who tendered himself for cross-examination of the defendant as PW-2.
35. In the instant case, admittedly, Sri. R. Jayaram Singh, the other Commissioner nominated by the defendant did not enter the witness box at all. In that view of the matter, when the methodology to calculate the completion of work in percentage was not agreed to between the parties and when PW-1 was not suggested in his cross-examination from the defendant's side that, the percentage of work completed by the defendant would amount to 81.20%, further, when PW-2 who is also an Engineer and a Registered Valuer has specifically stated that he cannot say any percentage of completion of work as on the date of inspection, then, considering the alleged percentage of work as the criteria to fix the valuation of the completed work, would not be a correct method in the facts and circumstances of this case. R.F.A.No.514/2011 74
36. The appellant's/plaintiffs' contention is to fix the valuation of the work that has been completed and to adjust the amount paid proportionately. However, there is one more view which may also not be ignored in this situation.
37. The said view is deducting the valuation of the remaining works which are either in full or in part and considering the expenses that may be expected to be incurred for rectifying the defects, if their rectification is necessary in the circumstances of the case in the total amount which the plaintiffs might have required to pay had the defendant completed the work as per specifications and in hundred percent.
38. It is in this regard, once again, a reference can be made to G.T. Gajria's Book on "Law Relating to Building and Engineering Contracts in India"(supra) wherein, in Chapter-9, titled 'Defective Work and its Consequences' at page 694 para-37, it is observed that, R.F.A.No.514/2011 75 "37. BASIC PRINCIPLES OF ASSESSMENT OF DAMAGES IN CASES OF DEFECTIVE WORK In cases involving building contracts, where complaint is made at defects, the application of the basic principles of the common law (ie that where a party suffers loss by reason of a breach of contract, he is, so far money can do it, to be placed in the same position as if the contract had been performed) generally requires damages to be measured by ascertaining the amount required to rectify the defects complained of, and so to give to the building owner the equivalent of a building which is substantially in accordance with the contract..."
In the same paragraph, the author has referred to a case (not mentioned the case citation) and observed that the Court of appeal in the said case was pleased to hold as below:-
"The Court of appeal held:
(i) that the company (ie the owner) was entitled to be put into a position it would have been in had the contract been performed;R.F.A.No.514/2011 76
(ii) that in building cases, the loss should prima facie be measured by ascertaining the amount required to rectify the defects complained of and so give to the building owner the equivalent of a building on his land substantially in accordance with the contract;
(iii) that this rule was adopted unless the court was satisfied that some lesser basis of compensation could in all the circumstances be fairly employed;
(iv) that since the only practicable action in the case was to complete according to the modified design, the cost of so doing was then reasonable measure of damages;
(v) that in calculating those damages:
(a) to avoid an element of betterment,
credit should be given for the
hypothetical additional cost of a proper initial design;
(b) the assessment should be computed at the date of trial, either because of the principle that damages were to be R.F.A.No.514/2011 77 assessed by reference to the date when the reinstatement works could be reasonably carried out and, on the facts, it was reasonable to postpone the work until the issues of the liability and damages were settled, or because such damage was not too remote in that it was foreseeable that the company might be unable to complete the works until a trial if the appellant failed to exercise the skill required of him."
The above view of the author which is based upon a case law appears to be more practical and functional to me, in the facts and circumstances of the case.
39. The method of evaluating the work done by a contractor and arriving at a valuation amount and to pay or to compensate only to such an extent of the valuation, though would not be an uncommon procedure, still, to do such an evaluation, generally there will be an agreement between the parties as to the criteria of evaluation, more R.F.A.No.514/2011 78 particularly, the agreed rate or price which would be in the form of item-wise, material-wise, work-wise etc., covering the over all work done by the contractor. Further such a methodology may also be suggestive in the cases where the completed work will be very much less in its proportion to that of the unfinished or balance work.
40. Whereas in the case on hand, though the plaintiffs do not specifically say as to what was the percentage of work completed by the contractor, but the plaintiffs' contention as well the evidence of PW-2 would go to show that though not 81.20%, but a substantial portion of the work is already found to be completed by the contractor. Therefore, the method of calculating the value of the remaining work to be done and the cost that may be incurred in rectifying the defective work and any other cost or expenses which may be incurred in putting the promissee (plaintiffs) in a position they would have R.F.A.No.514/2011 79 been in, had the contract been performed fully appears to be a just and appropriate method to be adopted in the case. As such, what are the works that have remained not done and the rectification of the defective work are to be considered in the present case.
41. It is already observed in the previous paragraph that the Commissioner - Sri. K.V. Srinivasan in his report at Ex.P-21 has given the details as to what are all the works that have not been done and also the defective work and further of those works which were not agreed to by the parties. Similarly, the other Commissioner - Sri. R. Jayaram Singh in his report at Ex.P-22 has also stated that there were several of the works which have not been done which according to him were painting, portion of the electrical works, a small portion of wardrobe work, plastering, flagging concrete, B.S. Slab, hardware fitting, kitchen cabinet, compound wall and gate. Even the other Commissioner (PW-2) - R.F.A.No.514/2011 80 Sri.K.V. Srinivasan has also mentioned the very same works as not done. In order to complete those works which are not done, the Commissioner's report at Ex.P-21 mentions that it requires a sum of `4,55,943/- as mentioned in point No.14.10.4.8 to point No. 14.10.4.11 at Ex.P-21. Such a calculation has not been given by the other Commissioner in his report at Ex.P-22. In view of the fact that no such calculation has been given by the other Commissioner - Sri. R. Jayaram Singh in his report at Ex.P-22 and also in view of the fact that the other Commissioner - Sri. K.V. Srinivasan apart from giving such a detailed calculation in his report at Ex.P-21, has also faced the cross-examination upon his report from the defendant's side and his valuation made towards undone work since had remained undisputed, the said amount of `4,55,943/- can be considered as the amount expected to be spent by the plaintiffs to complete the construction of the building as per the agreement. R.F.A.No.514/2011 81
42. PW-2 - Sri.K.V. Srinivasan - the Commissioner, as observed already, has evaluated the total value of construction of the building at `10,30,111/- (at point No.14.10.4.7 in Ex.P-21), when the building is complete with 100% completion. The deduction of the amount of `4,55,943/- towards the expected expenditure to complete the construction is to be deducted in the total cost of construction of the building. Thus, after such a deduction, i.e. `10,30,111/- (-) 4,55,943/-, the remaining sum, i.e. `5,74,168/- can be considered as the value of the work done by the defendant when he abandoned the work. Admittedly the defendant has received in total a sum of `6,50,000/- from the plaintiffs till they instituted the suit. There is an excess payment of a sum of `75,832 [i.e. `6,50,000/- (-) `5,74,168/-= `75,832/-]. It is the said amount the plaintiffs have paid in excess to the defendant for the work done by him. Thus, towards the excess amount received by the R.F.A.No.514/2011 82 defendant from the plaintiffs, the plaintiffs are not entitled for a sum of `2,48,000/- as claimed by them, but they are entitled for a sum of `75,832/- payable to them by the defendant.
43. Since the said excess amount has been withheld by the defendant till date, the plaintiffs are also entitled for an interest at the rate of `6% per annum on the said amount from the date of the suit till its realisation, but not at the rate of `18% per annum as claimed by them.
44. The plaintiffs have also claimed a sum of `20,000/- as damages for loss of use and occupation of the house since it was not completed within time which they have calculated at the rate of `2,000/- per month for a period of ten months. The same is not supported with any corroborative evidence. In view of the fact that in the present agreement, there is nothing to hold that R.F.A.No.514/2011 83 time was the essence of the contract and that a marginal delay in completion of the construction of a building is not an uncommon phenomenon, I am of the view that the plaintiffs are not entitled for damages under the said head.
45. The plaintiffs have also claimed a sum of `55,825/- alleging that they have spent the said mount towards repair and re-work due to defective work of the defendant.
46. According to Commissioner - Sri. R. Jayaram Singh's report, the alleged eight defects listed by the plaintiffs are not at all the defects going to the root of the agreement. According to him, though there is thickness of 4" supporting the canopy columns, it cannot be called as a 'defect' and excess thickness of pergola beams and their size is also not a 'defect'. According to him, the walls between the dining hall, kitchen, bed room were R.F.A.No.514/2011 84 properly designed and in the lintel also, no defect was found. Though he admits that, pebble plastering inside the house will not be normally done, but has stated that it depends upon the taste of the parties. In this way, though the said Commissioner has not denied the deviation made by the defendant in the execution of the work on those eight counts but has admitted to justify them as not a considerable defect. On the other hand, the other Commissioner in his report at Ex.P-21 has called each of them as a 'defect'. According to him, even variation in size of a pergola than the normal size and an additional thickness of the wall in its plastering is also a 'defect'. However, no where the said Commissioner (as PW-2 also) has stated that, due to the alleged defect, the building has either lost its strength or become unusable or that it has caused breach of the material aspects of the contract between the parties. He has also nowhere R.F.A.No.514/2011 85 stated that rectification of those defects is very much necessary or essential.
47. No doubt whenever a contractor does not complete the work according to plan and specifications, he makes himself liable to pay damages for breach of contract. The measure of damages will, however, depend upon the nature of breach. In cases where the work done by him is found to be defective, either a reduced price is payable or damages for his breach of contract may be recoverable. If the work done by the contractor is defective or below the specifications, then, the employer has a right to reject it and the contractor is not entitled to claim any payment for it, unlike the contract for the sale of goods. The cases where the work done can be rejected by the employer in building works, will be very rare as it will not be possible for the contractor to remove the work done by him. But he can be asked to execute it properly and as per the specifications or he may be paid R.F.A.No.514/2011 86 the reduced rates or the defective work may be rectified by the employer and the damages may be claimed from the contractor. However, every alleged defective work cannot by itself make the contractor liable to pay damages. In such a case, the employer may have to show that the alleged defect is of such a nature that the same would come in his possession and enjoyment of the property or the strength and durability of construction is compromised or the alleged defects are necessarily required to be rectified and cured, otherwise, the building cannot be made use of for the purpose for which it is built or the very elevation or the look of the structure which was shown to be very important and material to the contractor is required to be compromised with.
48. In the instant case, none of these criteria has been fulfilled by the plaintiffs. Merely because there appears to be some variation in the size of pergolas or a marginal excess in the thickness of the plastering of R.F.A.No.514/2011 87 some walls or non-alignment of four (4) columns (which according to the Commissioner was not externally visible) cannot be considered a serious defect as such which necessarily require their repair and re-work. As such, the plaintiffs are not entitled for the amount claimed under the head of repair and re-work of the alleged defective work.
Thus in total the plaintiffs are entitled for a sum of `75,832/- with interest as observed thereupon.
49. The plaintiffs have also prayed for the relief of permanent injunction. However, except the plaint averment, there is nothing on record in the form of evidence to show that the defendant or his men or agents are, in any manner, interfering with the plaintiffs' peaceful possession and enjoyment of the suit schedule property. As such, the plaintiffs are not entitled for the relief of permanent injunction.
R.F.A.No.514/201188
50. The Trial Court in the impugned judgment has not considered these aspects. On the other hand, without appreciating the evidence placed before it in its proper perspective, including the Commissioners' reports at Exs.P-21 and P-22, picking up some of the stray admissions shown to have been made by the plaintiffs' witnesses in their cross-examination, the Trial Court arrived at the conclusion that, the plaintiffs have failed to prove their case.
51. Since the above analysis of evidence in the case is now proved otherwise and shown that the plaintiffs are entitled for a decree in part of their suit, the finding given by the Trial Court proves to be erroneous, as such, the same deserves to be set aside.
Accordingly, I proceed to pass the following:
ORDER [i] The appeal is allowed in part with costs;R.F.A.No.514/2011 89
[ii] The judgment and decree dated 20-11-2010 passed in O.S.No.15335/2002 on the file of the XXVI Additional City Civil Judge, Mayo Hall, Bangalore, (CCH-20), is hereby set aside;
[iii] The suit of the plaintiffs in O.S.No.15335/2002 is decreed in part with costs;
[iv] The plaintiffs are entitled for a sum of `75,832/- (Rupees Seventy Five Thousand Eight Hundred and Thirty Two Only) with interest there upon at the rate of `6% per annum from the date of suit till the date of realisation from the defendant;
[v] Draw the modified decree accordingly.R.F.A.No.514/2011 90
Registry to transmit a copy of this judgment along with the Lower Court records to the concerned Trial Court, without delay.
Sd/-
JUDGE BMV*