R.Balasubramanian, J.; The plaintiff in O.S.No.2783 of 1985 on the file of the VIIIth City Civil Judge, Chennai, is the appellant in A.S.No.1220 of 1989. The defendant in the very same suit is the appellant in A.S.No.693 of 1990. In other words, both the appeals arise out of a judgment in one suit. 2. The plaintiff is a firm engaged in building constructions. It undertakes work given to it by architects and also directly from persons interested in putting up a building. At the request of the defendant and an architect M/s.Chitale & Sons, the plaintiff quoted his offer for construction of a bungalow for the defendant at Plot No.524-P, Anna Nagar East, Chennai-600 102. Under the terms of the contract, the defendant has to supply cement (then a controlled commodity) required for the work at the site and the cost of the cement so provided would be deducted from the plaintiff’s bill. This offer was accepted by the defendant and his architect. It was also agreed that fluctuation in the cost of cement was to be to the defendant’s account. As per the agreement bills have to be submitted by the plaintiff’s for the work done. The plaintiff has to submit his bills through the defendant’s architect M/s.Chitale & Sons. Once the architect approves the bill, which is after inspection of the work, payment could be effected. The acceptance of the plaintiff’s offer is as per the architect’s letter dated 8.10.1980. The foundation for the super structure has to be done under-reamed pile foundation, plinth beam and grade beam construction. That work was entrusted to another contractor by name M/s.Reviar Constructions. Engineers and Contractors. As the foundation work was in progress, M/s.Reviar Constructions, requested the plaintiff on 6.3.1981 to supply them cement for their under reamed piling work. On instructions of the architect, the plaintiff supplied 30 bags of cement to the foundation construction engineers from and out of the supply received by him. The plaintiff has to commence its work only after the foundation work is over. The foundation work was completed on 9.4.1981 as informed by the foundation construction engineer’s letter dated 11.4.1981. The plaintiff commenced its construction work thereafter. The construction was carried out as per the instructions given in the site and under the supervision of the architect and his engineer. The construction was fully completed by January, 1983. The foundation work was completed on 9.4.1981 as informed by the foundation construction engineer’s letter dated 11.4.1981. The plaintiff commenced its construction work thereafter. The construction was carried out as per the instructions given in the site and under the supervision of the architect and his engineer. The construction was fully completed by January, 1983. In fact, the defendant had occupied the building even earlier, namely, by 25.10.1982. The plaintiff used to send its bills through the architect. Though the architect certified the bills, the defendant made payments only belatedly. There was escalation in the cost of the materials and the work. The plaintiff sent its final bill, after completion of its work in January 1983, on 15.2.1983 to the architect. The architect after scrutinizing and checking it, certified it for payment by the defendant. As per that bill, the defendant is liable to pay a sum of Rs.49,971.96 to the plaintiff. In the final bill, the plaintiff had given credit to a sum of Rs.10,000 received from the defendant as advance. The defendant was evading payments and two years have elapsed since the submission of the final bill. The payment under the bill has to be paid within 15 days from the date of the bill failing which the defendant is liable to pay interest on the outstanding amount at the rate of 24% per annum as per the understanding between the plaintiff and the defendant and as per law and practice in the business. Since the defendant did not pay the money due, he is liable to pay interest as claimed from 1.3.1983 onwards and therefore, the suit. “ 3. The defendant filed a lengthy written statement contending in substance as follows: ”The suit is not maintainable. There is no privity of contract between the defendant and the plaintiff. The defendant engaged the services of the architect only namely M/s. Chitale and Sons. The architect is not made a party to the suit. The plaintiff cannot recover any money from the defendant as there is no cause of action against him. The plaintiff has not disclosed whether the pile foundation is part of the work to be done by the plaintiff and whether it was included in the quotation and accepted by the architect. The plaintiff cannot recover any money from the defendant as there is no cause of action against him. The plaintiff has not disclosed whether the pile foundation is part of the work to be done by the plaintiff and whether it was included in the quotation and accepted by the architect. There is nothing on record to show that what are the terms and conditions on which the pile foundation work was entrusted to a different contractor. From the letter dated 12.7.1982 it is seen that the plaintiff’s work was not satisfactory at all. The plaintiff had to dismantle a cantilever slab which developed a crack and construct a new slab. On the oral assurance given by the architect based on the guarantee by the plaintiff that the construction would be completed well before 15.6.1982, the defendant distributed invitations for the House Warming Ceremony on 16.6.1982. But that could not happen as the building was not completed. The architect sent a letter dated 29.6.1982 to the plaintiff pointing out that 31 items of work are still pending completion in the building and requested him to complete the work at the earliest. The plaintiff asked for six weeks time to complete the pending works by their letter dated 1.7.1982. Since there was a prom-ise to complete the construction by 15.6.1982, the defendant vacated the rented accommodation and having no other go, he moved into the house in October 1, 1982 without the construction itself being completed in all aspects. At that time, he found that the eastern side compound wall had collapsed which he brought to the notice of the architect on 20.10.1982. From the architect’s letter dated 9.3.1982, it is clear that the plaintiff could not have completed the construction work in all aspects in January 1983 since that letter shows that still 17 more items are pending completion in the building. The defendant had been paying the bills regularly as and when it was certified. The architect had not certified the final bill and therefore, there is no question of the defendant paying any amount claimed in the final bill. The plaintiff cannot unilaterally give credit to the sum of Rs.10,000 paid by the defendant as advance. The defendant is not liable to pay the amount claimed in the suit. The work done by the plaintiff was unsatisfactory. The building developed cracks. The plaintiff cannot unilaterally give credit to the sum of Rs.10,000 paid by the defendant as advance. The defendant is not liable to pay the amount claimed in the suit. The work done by the plaintiff was unsatisfactory. The building developed cracks. The defendant made repeated requests to the plaintiff to rectify those defects. The compound wall collapsing was also informed to the plaintiff. The plaintiff is taking advantage of its own wrongs and yet claiming the amount due under the final bill. If any claim of the plaintiff is permissible, it can be done only by the architect. As the defects pointed out by the architect had not been rectified by the plaintiff, which means the plaintiff has not discharged its contractual obligations, it is not entitled to any amount. The plaintiff is not entitled to claim interest at 24% per annum. There is no contract for payment of interest. The defendant is making arrangements to rectify the defects and his new contractor has asked for a sum of Rs.65,000 to carry out those repairs. As and when the defendant completes the work and pays the new contractor, he would reserve his right to institute appropriate proceedings against the plaintiff for recovery of money. The plaintiff is bound to refund a sum of Rs.10,000 given to him as advance and the plaintiff is not entitled to unilaterally give credit to it in its final bill and, therefore, the defendant is making a counter claim for a sum of Rs.10,000 by paying the Court fee due there on.“ 4. The plaintiff filed a reply statement raising the following points: ”It is denied that there is no privity of contract between the plaintiff and the defendant. The architect was acting and supervising the work for and on behalf of the defendant. Therefore, there is privity of contract between the plaintiff and the defendant. The bills drawn by the defendant are certified by the architect and then, the amount is paid by the defendant. The architect is not liable to pay any amount and, therefore, the architect is no a necessary party to the suit. After the foundation work was completed some time in April 1981, the plaintiff commenced the work sometime in the middle of 1981. The construction work was done to the knowledge of the defendant. The architect is not liable to pay any amount and, therefore, the architect is no a necessary party to the suit. After the foundation work was completed some time in April 1981, the plaintiff commenced the work sometime in the middle of 1981. The construction work was done to the knowledge of the defendant. The plaintiff never gave an assurance that the construction work would be completed before 15.6.1982. The defendant occupied the house in October, 1982 in a hurry for which the plaintiff is not responsible. The plaintiff completed the remaining small works within a few weeks. There is no deficiency in its work. The suit building is situated on the north of river Coovum. The compound wall which collapsed was in the land which is in a very low level. The adjacent land owner was cultivating it and he had dug up a drain channel abutting the eastern compound wall which exposed the full foundation of the eastern side compound wall. The compounded walls were built by lime motor as per the instructions of the architect and the defendant. There was a cyclonic rain in November, 1984 during which time, the said compound wall collapsed. The compound wall had not collapsed due to any structural or construction defects. It is denied that the final bill was not certified by the architect. The plaintiff is entitled to give credit to a sum of Rs.10,000 paid by the defendant as advance in his claims against the defendant. There are no cracks in the building as alleged. The defendant is liable to pay interest. The plaintiff is not liable to return the advance sum of Rs.10,000. 5. The plaintiff in support of its cause examined its proprietor as P.W.1 besides marking 24 exhibits as Exs.A-1 to A-24. The defendant examined himself as D.W.1 and examined anther witness as D.W.2. Exs.B-1 to B-30 were marked on his side as exhibits. The learned trial Judge, on the pleadings, framed the following issues: (a) Whether there is any privity of contract between the plaintiff and the defendant? (b) Whether there is any deficiency in the construction work undertaken and done by the plaintiff? (c) Whether the plaintiff is entitled to claim interest? (d) Whether the plaintiff is entitled to the amount claimed in the plaint? (e) Is not the counter claim permissible in law? (f) To what other reliefs the parties are entitled to? (b) Whether there is any deficiency in the construction work undertaken and done by the plaintiff? (c) Whether the plaintiff is entitled to claim interest? (d) Whether the plaintiff is entitled to the amount claimed in the plaint? (e) Is not the counter claim permissible in law? (f) To what other reliefs the parties are entitled to? 6. The learned trial judge took up issues 1 to 5 jointly for consideration. In conclusion he held that there is privity of contract between the plaintiff and the defendant (issue a); that there is no deficiency in the construction work done by the plaintiff (issue b); the plaintiff has no legal right to claim interest (issue c); the plaintiff is entitled to a sum of Rs.43,392.87 only (issue d) and the defendant is not entitled to the amount claimed by him in his counter claim (issue e) and ultimately a decree came to be passed for a sum of Rs.43,392.87 carrying interest at 6% per annum thereon from the date of judgment till the date of realisation and the counter claim is dismissed. It is this judgment that is under challenge in these two appeals one by the plaintiff challenging the refusal to grant interest up to the date of the decree and the other by the defendant challenging the decree itself in toto. 7. Mr.A.Murali Krishnan, learned counsel appearing for the defendant would submit the following points for acceptance“ ”In the contract between the parties, no provision is made to meet the escalation in cost. Therefore, the sum of Rs.19,723.54 claimed in the final bill as escalation amount should be disallowed. The compound wall put up by the plaintiff admittedly collapsed and the parties agreed that the cost of putting up a new compound wall should be bone equally between them. In Ex.B-17, the cost of constructing the compound wall is shown as Rs.10,025 and the plaintiff had given credit to a sum of Rs.5,000 as received from the defendant under this arrangement. If that is so, the balance sum of Rs.5,205 should not be claimed as amount due still from the defendant since it is the amount which is agreed to be borne by the plaintiff himself. Therefore, the sum of Rs.43,392.87 should be reduced by a sum of Rs.5,205.07. If that is so, the balance sum of Rs.5,205 should not be claimed as amount due still from the defendant since it is the amount which is agreed to be borne by the plaintiff himself. Therefore, the sum of Rs.43,392.87 should be reduced by a sum of Rs.5,205.07. If that is so, the plaintiff’s claim, if at all he is entitled to succeed, would be for a sum of Rs.43,392.87 minus the sum of Rs.19,723.54 (escalation amount) and a sum of Rs.5,205.07 being the cost to be borne by the plaintiff in putting up the compound wall. This comes to Rs.18,464.26. There are innumerable defects in the construction put up by the plaintiff for and on behalf of the defendant and the defendant had to incur a sum of Rs.65,000 as expenditure to set right those defects. The defects were established by the oral evidence of D.W.2 and therefore, the plaintiff is not entitled to any amount at all much less the amount claimed in the plaint. It is his further submission that in a claim based on a building contract any sum due under that contract would not be a debt or a certain sum payable under a certain time. If that is so, the plaintiff is not entitled to claim any interest at all." 8. Mr.N.Manoharan, learned counsel appearing for the plaintiff would admit that though the plaintiff may not be in a position to claim interest as prayed for from the date the money fell due, atleast the plaintiff is entitled to claim interest from the date of demand for the payment of money with interest and that demand having been made under Ex.A-1 dated 13.10.1984, this Court would be in a position to award interest at a rate as this Court may deem fit. So far as the escalation claim is concerned, the learned counsel would submit that the amount as claimed by way of escalation had been scrutinised and accepted by the architect and since the architect is the agent of the defendant, the act of the agent will bind the principal unless the principal (defendant) pleads ‘fraud’ or any other vitiating factors in law which would not make the principal bound by the act of his agent. In this case, there is neither pleading nor proof that the architect/agent has played any fraud on his principal/defendant and therefore, the escalation amount admitted by the architect is binding on the defendant. So far as meeting the expenditure of the construction of the compound wall is concerned, it is submitted by the learned counsel for construction of the compound wall is quantified at Rs.22,029.17. The construction of the new compound wall would naturally incur atleast the same amount if not higher. It is true that the plaintiff, as P.W.1 admitted that the expenditure to be incurred in constructing a new compound wall would be equally borne by the parties in the suit. Only in that context, the plaintiff under Ex.B-17 had fixed the expenditure for construction of the compound wall at Rs.10,205.07 being 50% of the defendant’s liability to be contributed and had given credit to a sum of Rs.5,000 paid by the defendant towards that. Therefore, it is his submission that the plaintiff is not guilty of making any excess claim. So far as the defects pointed out in the super structure, the learned counsel for the plaintiff would argue that there is no satisfactory proof before Court that the defects, assuming they exist, are due to any deficiency in the service of the plaintiff. On the other hand, the learned counsel would submit that the defects in the super structure, assuming they are there, is only a chain re-action to the cracks developed in the foundation which was laid by another party. Therefore, the plaintiff cannot be held responsible for such defects. In any event, there is no evidence to show, in the form of letters sent by the architect, that the defects pointed out by the defendant have been rectified. Therefore, if really there are defects, which remain unattended, the architect would not have certified the final bill. The plaintiff is entitled for the amount under the final, as per the certificate given by the architect, less the amount given credit to in Ex.B-17, and for that amount only the decree had been passed. As far as the claim for interest on the amount due till the date of the decree, which stands disallowed, the learned counsel for the plaintiff would submit that his client is entitled to interest atleast from the date of demand namely 18.3.1984 Ex.A-1 notice. 9. As far as the claim for interest on the amount due till the date of the decree, which stands disallowed, the learned counsel for the plaintiff would submit that his client is entitled to interest atleast from the date of demand namely 18.3.1984 Ex.A-1 notice. 9. On the pleadings available in this case and in the light of the arguments advanced by the learned counsel on either side, the following issues arise for consideration in these appeals: (1) What is the relationship of the architect M/s.Chitale & Sons with the defendant? (2) Is the plaintiff guilty of deficiency in service in carrying out the construction work undertaken by him for and on behalf of the defendant? (3) Whether the plaintiff is entitled to the amount claimed by him? (4) Is not the defendant entitled to the amount claimed by way of counter claim? (5) To what other relief the parties are entitled to? 10. We will take up issue No.1 first for our consideration M/s.Chitale & Sons is the architect in this case. D.W.2 is a civil engineer of an established repute. He would admit that M/s. Chitale & Sons is a leading architect in the City of Chennai and without their involvement there cannot be any huge constructions in the city. The defendant does not dispute it and it is evidenced that he approached M/s.Chitale & Sons to help him in putting up his constructions and that he chose M/s.Chitale & Sons as his architect on the advice of his friends. It is M/s.Chitale &Sons, who processed the various quotations submitted by different builders to undertake the construction work of the defendant and it is they, who under Ex.A-4 accepted the quotation of the plaintiff. It is also on record that running bills 1 to 6 submitted by the plaintiff for the work done by him upto each bill had been certified for payment by the architect and the same was honoured by the defendant. Therefore, there cannot be any difficulty in holding that M/s.Chitale & Sons is the agent of the defendant and all their acts, which do not exceed their authority, would be binding on the defendant unless the defendant is in a position to plead and prove that his architect/agent had either exceeded the authority given to him or acted in fraud. Therefore, there cannot be any difficulty in holding that M/s.Chitale & Sons is the agent of the defendant and all their acts, which do not exceed their authority, would be binding on the defendant unless the defendant is in a position to plead and prove that his architect/agent had either exceeded the authority given to him or acted in fraud. That is not the case of the defendant in this case at any stage and therefore, without any hesitation we hold that M/s.Chitale & Sons/architect is the agent of the defendant and so long as the acts of the agent are not in excess of the authority of an agent, they are binding on the defendant. Issue No.1 stands answered accordingly. 11. We will take up issue Nos.2 and 3 together for our consideration. Ex.A-3 dated 14.8.1980 is the quotation submitted by the plaintiff to the defendant. The quotation is in respect of the proposed bungalow for the defendant to be constructed at Plot No.524, Anna Nagar, Chennai. The quotation gives details of the various works to be undertaken for the purpose of construction and it also contains a general abstract. The plaintiff had claimed a grand total of Rs.2,81,648.70 in that quotation. It may be noticed here that the plaintiff had also quoted for earth work excacvation in foundations treaches; filling in basement etc. Under Ex.A-4 dated 8.10.1980 the architect had accepted the quotation of the plaintiff or and on behalf of their claimant/defendant. But, however, the amount quoted by the plaintiff in Ex.A-3 stands reduced to Rs.2,17,148. There is no dispute in this case that for laying the foundation, pile foundation method was resorted to and it had been done by a construction engineer called Reviar Constructions, Engineers and Contractors. Even at this stage we must state that it is not clear, as to who entrusted he foundation work to Reviar Constructions, Engineers & Contractors, either from the pleading or from the oral evidence or from the documentary evidence. But one aspect stands clear namely, the requirement of cement for Reviar Constructions had been met by the plaintiff, as could be seen from Exs.A-5 and A-6. Admittedly pile foundation was over on 9.4.1981, as could be seen from Ex.A-9 dated 11.4.1981, written by Reviar Constructions to the architect with a copy marked to the plaintiff. Therefore, we take it that the foundation work was over by 9.4.1981. Admittedly pile foundation was over on 9.4.1981, as could be seen from Ex.A-9 dated 11.4.1981, written by Reviar Constructions to the architect with a copy marked to the plaintiff. Therefore, we take it that the foundation work was over by 9.4.1981. The plaintiff himself admits that he took up the construction work in the middle of April, 1981. Therefore, we conclude that the construction activities, namely the superstructure on the foundation already laid in the plot stands commenced by the plaintiff some time in the middle of 1981. 12. There is no dispute that the plaintiff had put up the construction. The first bill and the running bills submitted by the plaintiff, marked as Exs.A-10 to 13 and 15, after the claim was certified by the architect, was honoured by the defendant, Ex.A-20 is the final bill dated 15.2.1983 submitted by the plaintiff to the defendant’s architect. After giving credit to the various payments already received under the earlier running bills, the plaintiff under that last bill claimed a sum of Rs.49,917.96. The architect, at the foot of the bill, had made an endorsement as hereunder: Certified bill. With due: 3,25,592.22 Now due: 49,917.96 We also record at this stage itself that the defendant occupied the premises on 25.10.1982. The final bill referred to above and certified by the architect was not paid by the defendant for vari- ous reasons about which we would refer a little later in the judgment. Between the final bill under Ex.A-20 dated 15.12.1983 and Ex.A-21 dated 17.5.1983 a number of correspondence appear to have been exchanged between the defendant and his architect and between the architect and the plaintiff. Ex.A-21 stands addressed by the architect to the defendant. In this letter the architect refers to the various stands taken by the defendant in his letter dated 12.5.1983 Ex.B-11 and concludes that the plamtiff is entitled to a sum of Rs.49,917.96 as claimed by him under the final bill and the amount stands certified by the architect. If this certificate given under Ex.A-21 is final, then we have no difficulty at all in holding that the defendant is bound by the act of his agent namely, the architect. We have already noted that the defendant neither pleaded nor proved that his agent/architect has ever exceeded the authority given to him or he is guilty of fraud. If this certificate given under Ex.A-21 is final, then we have no difficulty at all in holding that the defendant is bound by the act of his agent namely, the architect. We have already noted that the defendant neither pleaded nor proved that his agent/architect has ever exceeded the authority given to him or he is guilty of fraud. Therefore, at the risk of repetition we once again reiterate that if Ex.A-21 had reached a finality, then the plaintiff is entitled to the amount claimed by him. But that does not appear to be the case here. 13. We now apply our mind to the various other materials, which may throw some light on the entitlement of the plaintiff to the amount claimed by him in the plaint. We are inclined to note the date of Ex.A-21 as 17.5.1983 for a proper analysis of the other materials on which we are going to reflect our mind. Ex.B-11 is dated 12.5.1983, which is hardly five days prior to Ex. A-21. This letter is by the defendant to his architect, with a copy marked to the plaintiff. Among other things the defendant had complained in this letter that the building had developed cracks in three places across the full width of the wall and this has been shown to the contractor. He had also mentioned therein that the full effect of these cracks would be evident after the ensuing monsoon settles down. It also refers to the other defects noticed in the building. As already stated, the defendant occupied the premises in question on 25.10.1982 and within a period of seven months these defects have come to be noticed in the building and immediately the defendant had put the same on notice to his architect and to the plaintiff. This is followed by Ex.B-14 dated 9.6.1983 once again written by the defendant to his architect with a copy to the plaintiff as well as to Reviar Constructions. This letter discloses that different types of cracks in different places have occurred in the building and by putting the architect and the plaintiff on notice about it, he requested them to take immediate remedial action. Ex.B-15 is the other letter dated 16.6.1983 written by the defendant to the architect with a copy to the plaintiff. This letter discloses that different types of cracks in different places have occurred in the building and by putting the architect and the plaintiff on notice about it, he requested them to take immediate remedial action. Ex.B-15 is the other letter dated 16.6.1983 written by the defendant to the architect with a copy to the plaintiff. In this letter the defendant made it clear that unless the defects, pointed out earlier by him namely, the cracks in the wall and other defects, are sorted out, they would not make any further payment. Under Ex.B-16 dated 25.10.1983 the architect wrote to the plaintiff, with the copy to the defendant, bringing to their notice the various defects brought to the notice of the architect by the defendant and the architect ended that letter by directing the plaintiff/ builder to rectify those defects and report rectification early. It is also indicated therein that on 17.5.1983 itself the architect had already addressed the plaintiff in this regard. Ex.B-17, in our opinion, is an import letter. It is dated 18.1.1984 and it is written by the plaintiff to the defendant with a copy to the architect. In this letter the plaintiff had stated that a soil expert inspected the site in the month of September and November and investigated the cracks. According to this letter, the soil expert concluded that the defects were due to heavy drought and water table having gone down below the average level. This letter further discloses that the soil expert suggested to start repairing the cracks and with that view in mind, before starting the repairing works, the plaintiff’s representative met the defendant in person and explained to him the intended action and at that time the defendant did not agree to it and wanted to have the details in that regard from the architect. The plaintiff has further stated in this letter that they are prepared to rectify the cracks based on the architect’s advice. They made a demand for the settlement of the money due stating that it is unreasonable to withhold the payment since the cracks developed under to unnatural developments in the ground. The plaintiff has further stated in this letter that they are prepared to rectify the cracks based on the architect’s advice. They made a demand for the settlement of the money due stating that it is unreasonable to withhold the payment since the cracks developed under to unnatural developments in the ground. In our opinion, Ex.B-17 contains a categorical admission that even at the end of December 1983, when the building was inspected, it was found to have developed cracks; soil expert examined the site; gave his opinion and the plaintiff had decided to take remedial measures. Therefore, there cannot be any dispute that in the building put up by the plaintiff for and on behalf of the defendant cracks have developed. 14. Ex.B-18 dated 28.1.1984 is another letter written by the defendant to his architect with a copy to the plaintiff, wherein again the defendant complained about the noticing of cracks developing. This letter is replied to by the architect under Ex.B-19 dated 9.3.1984 with a copy marked to the plaintiff suggesting remedial action to arrest the cracks, which is capable of being arrested. This is as late as 9.3.1984. Ex.B-20 dated 4.5.1984 is the letter written by the defendant to the architect with a copy to the plaintiff, wherein it is stated that a meeting was held in the site on 31.3.1984 between the defendant, the architect’s representative and the plaintiff’s representative and as a consequence of that meeting requested the architect to organize the rectification of the various defects in the building during the second week of May, 1984. Ex.B-21 dated 8.6.1984 is the letter written by the defendant to his architect with a copy marked to the plaintiff complaining that the contractor/plaintiff had not carried out any of the repairs till that date. The defects noted earlier and remaining unattended to are mentioned at the foot of the letter namely, cracks and other repairs. Ex.B-22 is he letter dated 19.6.1984 sent by the plaintiff to the architect with a copy marked to the defendant. In this letter the plaintiff had no where stated that the defects already pointed out have been attended to and the developing cracks have been arrested. On the other hand, his intention appears to be that unless the remaining huge amount is paid to him there is no question of carrying out the minor rectification works free of cost. In this letter the plaintiff had no where stated that the defects already pointed out have been attended to and the developing cracks have been arrested. On the other hand, his intention appears to be that unless the remaining huge amount is paid to him there is no question of carrying out the minor rectification works free of cost. The plaintiff is that letter had stated as follows: “When such huge amount is pending payment by the client, his demanding carrying out some minor rectification works free of cost is not justifiable.” From a perusal of the records we could see that the defendant was insisting that apart from repairing minor works, cracks already developed must be cured and further development of cracks should be arrested and complaint about cracks cannot be minor work as stated by the plaintiff in the above referred to letter. The voluminous documentary evidence in the form of correspondence definitely show that among the various defects pointed ‘out, the major defect of cracks occurring in the building have not been attended to and repaired by the plaintiff at least till 8.6.1984-Ex.B-21, on which date the defendant wrote his letter reiterating the demand for rectifying the defects and 19.6.1984, the date on which the plaintiff wrote his letter Ex.B-22. The fact remains and it cannot be disputed that in the building put up by the plaintiff for and on behalf of the defendant, major cracks developed. The defendant cannot be blamed for it. The plaintiff basing reliance on Ex.A-24, the soil expert’s report, would try to take a stand that the development of cracks in the building (superstructure) is only due to the defective foundation laid down by Reviar Constructions. It is not doubt true that Ex.A-24, the soil expert’s report, would show that cracks have developed due to settlement of clay layer that is present below the under reamed piles and the settlement has occurred due to lowering of the water table and the subsequent reduction in the volume of the clay layer. Ex.A-24 is not a substantive evidence. It is only the opinion of an expert. But, since the plaintiff is relying upon Ex.A-24 to wriggle out of the tight corner in which he is placed, a legal duty is cast upon him to prove Ex.A-24 by examining the expert, who is the author of the same. Ex.A-24 is not a substantive evidence. It is only the opinion of an expert. But, since the plaintiff is relying upon Ex.A-24 to wriggle out of the tight corner in which he is placed, a legal duty is cast upon him to prove Ex.A-24 by examining the expert, who is the author of the same. If that has been done, the defendant would have been in a position to cross examine that witness and elicit answers, which may go to discredit the report itself or the expert would have substantiated his report. But the plaintiff has not chosen to examine the expert on his side. The argument put forward before this Court by the learned counsel for the appellant that it is the defendant who has to examine the expert since it is he who is trying to avoid the liability, does not appeal to us at all. The defendant is not relying upon Ex.A-24 and consistently he is saying that the construction put up by the plaintiff is defective and in support of his case he had also examined D.W.2, another civil engineer of substantial standing. We will come to that later. Therefore, at this stage, we hold that due to the failure on the part of the plaintiff in examining the soil export, who claims to be the author of Ex.A-24, we are not inclined to attach any eviden tiary value to Ex.A-24 and we accordingly reject it. 15. Now, let us see the oral evidence of P.W. 1 We have already noted that the voluminous documentary evidence referred to by us earliei undoubtedly show existence of cracks in the building. A perusal of the evidence of P.W.I, both in chief and cross would show that he denies in toto about any cracks in the building. He admits receipt of Exs.B-14 to B-16, which undoubtedly brings out the presence of cracks in the building. We have already referred to one of the letters written by the architect to the plaintiff directing him to attend to the repairs and send a compliance report to him. In his evidence in cross the plaintiff would state that all the defects pointed out in Exs.B-15 and B-16 had been attended to by them and that they have not communicated to the architect that they have so attended to the repairs and rectified the same. In his evidence in cross the plaintiff would state that all the defects pointed out in Exs.B-15 and B-16 had been attended to by them and that they have not communicated to the architect that they have so attended to the repairs and rectified the same. When the payment to the plaintiff depends upon the final certificate to be given by the architect and rightly the architect asked for compliance report, a duty is cast upon the plaintiff to inform the architect about the compliance of the defects pointed out by the defendant, which he has failed to do. As we have already stated, the plaintiff in his evidence as P.W.1 went on disputing presence of the cracks in the building, which is contrary to the voluminous documentary evidence, which are available on record. Therefore, we have no doubt at all to hold that the plaintiff is not inclined to speak the truth about the presence of cracks in the building put up by him. In this context we refer to the oral evidence of D.W.1, whom we have already referred as an engineering graduate from I..I.T., Karagpur and working as a senior executive in one of the leading private companies in India namely, M/s.Lucas TVS Limited. His evidence is consistent throughout namely, that the building developed cracks, the cracks remain unattended to though the plaintiff was informed by his architect several times and that the defects continued to be there even after the suit. D.W.1 had proved the exhibits namely, Exs.B-3, B-4, B-7, B-8 and B-28, in which complaints of defective nature of construction have been made out. D.W.1 had also proved Exs.B-14 to B-16. Nothing worth mentioning had been elicited in the evidence in cross of this witness to discredit his evidence in chief about the defective nature of construction of the building and those defects remain unattended to even on the date when he gave evidence. From the details of the evidence available namely, both oral and documentary, we have no hesitation at all in holding that in the construction put up by the plaintiff for and on behalf of the defendant, enough number of cracks have developed, which are likely to affect the very stability for the construction itself. From the details of the evidence available namely, both oral and documentary, we have no hesitation at all in holding that in the construction put up by the plaintiff for and on behalf of the defendant, enough number of cracks have developed, which are likely to affect the very stability for the construction itself. In addition to the oral evidence of P.W.1 and D.W.1 speaking for and against on the existence of the cracks in the building, we have the evidence of D.W.2. He is an engineer of repute with substantial experience. He has no axe to grind against the plaintiff. He had given his report Ex.B-30. Ex.B-30 is a contemporaneous record prepared by him at the time of his inspection. His evidence shows that on 20.2.1985, when he inspected the house, he found various defects in the building as noted by him in Ex.B-30. He had stated in his evidence that the soil in Anna Nagar, where the superstructure has been put up, is a bad soil and that generally cracks would develop in the buildings put up there. He had also stated that some times cracks would develop even in the foundation. But nowhere in his evidence he has stated that in the building in question cracks have developed in the foundation. Since it is the case of the plaintiff that cracks have developed in the foundation for which he is not responsible and that has resulted in the cracks in the building, for which he relies upon Ex. A-24, as we have already held, he ought to have examined the expert namely, the author of Ex.A-24, which he has failed to do so. Therefore, for valid reasons we reject Ex.A-24 as it has no evidentiary value. If Ex.A-24 is eliminated, then we have the oral evidence of P.W.1 on the one hand and D.Ws.l and 2 on the other hand and various correspondence, which we have referred to, exhibited on the side of the defendant, which undoubtedly show that the building had developed cracks. If Ex.A-24 is eliminated, then we have the oral evidence of P.W.1 on the one hand and D.Ws.l and 2 on the other hand and various correspondence, which we have referred to, exhibited on the side of the defendant, which undoubtedly show that the building had developed cracks. Though the plaintiff had given evidence that he had already attended to the repairs and rectified the defects, yet he had failed to establish the same and that he informed the architect about the same which he has a duty to inform him which alone would enable the architect to inspect the building to find out whether the repairs have been attended to and then certify the bill for payment. It may be true that the architect had certified the claim at the foot of the bill Ex.A-20 followed by Ex.A-21. But in view of the correspondence subsequent to Ex.A-20 and A-21 which prima facie show that the building had several defects and in the absence of proof that the plaintiff had rectified those defects, we have no doubt at all to hold that the plaintiff would not be entitled to the amount as claimed by him in the plaint till he completes the work done. It may be noticed here that the defendant as D.W.1 had given evidence that to set right the defects, which remain unattended to by the plaintiff, a sum of Rs.65,000 is stated to be the estimate, D.W.2, an expert had given the estimate. However, the defendant had not pleaded either set off or adjustment of the said sum from the claim of the plaintiff. He had made a counter claim for Rs.10,000 only paid by him as advance which stand credited to the plaintiff’s account in Ex.A-20. Even though the defendant had not pleaded set off or adjustment of the loss, we have no doubt at all to hold that unless the plaintiff is shown to have completed the work in all aspects and his bill is certified by the architect, the plaintiff is not entitled to any amount as claimed in the plaint. The judgment in this case is solely on Ex.A-21 only. Accordingly, we answer issues 2 and 3 against the plaintiff. 16. Let us now take up issue No.4, namely, rejecting the counter claim made by the defendant. The judgment in this case is solely on Ex.A-21 only. Accordingly, we answer issues 2 and 3 against the plaintiff. 16. Let us now take up issue No.4, namely, rejecting the counter claim made by the defendant. The learned trial judge had rejected the counter claim on the ground that the amount stands already credited to the defendant’s account in Ex.A-20 for which a decree is passed. Since we have held that the plaintiff is not entitled to any amount claimed by him in the suit, there cannot be any difficulty in holding that the defendant should get refund of the advance paid, since it was received by the plaintiff only as advance. Consequently, issue No.4 framed by him is answered in favour of the defendant. ‘ 17. The learned trial judges was inclined to grant interest on the amount decreed only from the date of the decree. As already stated, the plaintiff is claiming interest from the date of the suit in A.S.No.1220 of 1989. The defendant is challenging the decree in toto in A.S.No.693 of 1990. 18. In the light of our discussions as referred to above, we are inclined to dispose of the two appeals as hereunder: A.S.No.693 of 1990 stands allowed with costs throughout. Consequently O.S.No.2783 of 1985 would stand dismissed with costs as far as the plaintiff’s claim is concerned. The counter claim in that suit stand decreed as prayed for with costs. A.S.No.1220 of 1989 would stand dismissed with costs.