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2012 DIGILAW 4234 (MAD)

A. Vassou v. Arulmurugan

2012-10-11

G.RAJASURIA

body2012
JUDGMENT :- This appeal is focussed by the defendant as against the judgment and decree dated 24.06.2009 passed by the learned Additional District Judge, Pondicherry at Karaikal in O.S.No.10 of 2006. Whereas the Cross Objection has been filed by the plaintiff claiming enhanced amount in a sum of Rs.5,00,000/- over and above the decreetal sum. 2. The parties, for convenience sake, are referred to here under according to their litigative status before the trial Court. 3. Heard the learned counsel appearing for the parties. 4. Broadly but briefly, narratively but precisely, the germane facts absolutely necessary for the disposal of this appeal and Cross Objection would run thus: (i) The plaintiff filed the suit seeking the following reliefs: -To grant a decree and judgment in his favour and as against the defendant - directing the defendant to pay the amount Rs.9,74,161.00 - directing the defendant to pay subsequent interest at the rate 12% for the amount of Rs.9,74,161.00 from the date of plaint, till realization and all costs of the suit. (extracted as such) on various grounds, which could pithily and precisely be set out thus: An agreement emerged between the plaintiff and the defendant; whereupon the former agreed to raise a school building in the suit property concerned for a total sale consideration of Rs.43,50,000/-. It so happened that additional constructions were effected and certain ameliorative deviations were also effected by the plaintiff as detailed in the plaint para No.6, which were quantified in a sum of Rs.9,74,161/-. (ii) The defendant filed the written statement as well as the additional written statement, challenging and impugning the averments/allegations in the plaint, which could summarily and concisely be set out thus: The suit has been filed as against the defendant in his individual capacity; but in fact the trust for which, the construction was effected was not added as a party. There was absolutely no agreement or consensus between the parties relating to the alleged additional construction. In the absence of any such written agreement relating to the claim of the plaintiff, the question of the plaintiff seeking recovery of money would be a well-neigh impossibility. The defendant agreed to pay totally a sum of Rs.43,50,000/-for completing the entire construction of the school building and it is an out right contract. Wherefore, there is no question of the plaintiff claiming additional cost on the basis of the alleged additional construction. The defendant agreed to pay totally a sum of Rs.43,50,000/-for completing the entire construction of the school building and it is an out right contract. Wherefore, there is no question of the plaintiff claiming additional cost on the basis of the alleged additional construction. Accordingly he prayed for the dismissal of the suit. (iii) Reply statement was filed by the plaintiff that there was nothing wrong in the cause title; the school building belongs to one Sugam Priya Medical and Educational Trust; the plaintiff is also one of the trustees of the said trust; the Board of Trustees in the meeting dated 18.07.2004 passed a resolution constituting the Managing committee for the school also; the plaintiff also in his capacity as a parent of two daughters studying in the institution, happens to be one of the trustees and as such, absolutely, there is no case for the defendant. (iv) The trial court framed the issues. (v) Up went the trial, wherein the plaintiff examined himself as PW1 and marked Exs.A1 to A5 and the defendant examined himself as DW1 and marked Exs.B1 to B13 and the court witnesses C.Ws.1 and 2 were examined and Exs.C1 to C6 were also marked. (vi) Advocate Commissioner was appointed with a mission to visit the suit property with the assistance of an Engineer to assess the features and to submit a report in regard to the additional construction and its value. Whereupon, the Advocate Commissioner with the assistance of the PWD Engineer and staff visited seven times the suit property and submitted his report. (vi) Ultimately, the trial court accepting the Commissioner's report decreed the suit as under: "1. that the suit be and the same is partly decreed; 2. that the defendant shall pay to the plaintiff a sum of Rs.1,52,471/- with interest at 12% per annum from the date of handing over the possession of the building till the filing of the suit, i.e.13.04.06. 3. that the defendant shall pay to the plaintiff for future interest at 6% p.a from the date of plaint i.e.13.04.06 on the principal amount of Rs.1,52,471/- till the date of realization." (extracted as such) 5. Being aggrieved by and dissatisfied with the same, the defendant preferred this appeal seeking to get set aside the judgment and decree of the trial court and for the dismissal of the suit. Being aggrieved by and dissatisfied with the same, the defendant preferred this appeal seeking to get set aside the judgment and decree of the trial court and for the dismissal of the suit. Whereupon Cross Objection has been filed by the plaintiff claiming additionally a sum of Rs.5,00,000/-. 6. The learned counsel for the defendant/appellant placing reliance on the grounds of appeal, would put forth and set forth her arguments, which could tersely and briefly be set out thus: (a) As per the agreement, the defendant was expected to pay only a sum of Rs.43,50,000/- totally and the said amount was paid. However, it was the plaintiff, who all of a sudden left some portion of the construction of the building unfinished and it was the defendant, who at his own cost completed the unfinished work and in such a case, it was the plaintiff who should have compensated the defendant. (ii) Even though no additional work or alterations were carried out by the plaintiff, the trial court simply passed the decree as aforesaid. In the absence of any supplementary agreement or alteration or addition to the plan, mutually agreed upon, the lower court was not justified in accepting the case of the plaintiff and partly decreeing the suit as above. (iii) Even assuming that there had been some additional construction put up by the plaintiff, still he was not entitled for any additional amount because he agreed for putting up the school building for the lump sum of Rs.43,50,000/-. (iv) The Commissioner's report was not reflecting the reality. The trial court simply accepted the report of the Advocate Commissioner and the particulars furnished by the Engineer. Without assigning any reason, the court valued the additional work done by the plaintiff in a sum of Rs.4,04,572/- and deducted a sum of Rs.2,52,101/- towards the work not done by the plaintiff as per the original plan and ultimately decreed the suit. (v) The trial court also failed to see that the agreement emerged only between the correspondent Cauvery Public School and the plaintiff's Contractor and the mere fact that the defendant singed the agreement as the Correspondent of the School will not personally make him liable. Accordingly, she would pray for setting aside the judgment and decree of the trial court. 7. Accordingly, she would pray for setting aside the judgment and decree of the trial court. 7. In a bid to torpedo and pulverise the arguments as put forth on the side of the appellant/defendant, the learned counsel for the respondent/plaintiff would pyramid his argument, which could succinctly and precisely be set out thus: (a) The court below failed to take into consideration the objection memo filed by the plaintiff, wherein the real cost relating to the items are found highlighted, which are different from the cost worked out in the Engineer's report. (b) The Advocate Commissioner and the Engineer concerned have not taken into account the actual cost incurred by the plaintiff towards additional construction. The total cost of additional construction arrived at by the Advocate Commissioner in a sum of Rs.4,04,572/- is on the lower side. (c) Exs.C1 to C6 were not considered in proper perspective and the oral evidence of the witnesses C.Ws.1 and 2 have not been considered properly. Accordingly he would pray for decreeing the suit additionally for a sum of Rs.5,00,000/-as claimed in the cross objection over and above what was decreed by the trial court. 8. The points for consideration are as under: 1. Whether the defendant could be construed as the one sued in his personal capacity by the plaintiff? 2. Whether the trial court was justified in placing reliance on the Commissioner's report and the Engineer's report enclosed with the Commissioner's report in decreeing the suit? 3. Whether the parties concerned adduced any additional evidence so as to torpedo the particulars found set out in the Commissioner's report and the Engineer's report? 4. Whether there is any perversity or illegality in the judgment and decree of the trial court? Point No.1: 9. I would like to point up and show up that Ex.A2, the agreement would unambiguously and unequivocally highlights and accentuates that the defendant-Vassou in his capacity as the Correspondent of the Cauveri Public School entered into Ex.A2 with the plaintiff and even prior to that he was the Managing Trustee of the Sugam Priya Medical and Educational Trust. I would like to point up and show up that Ex.A2, the agreement would unambiguously and unequivocally highlights and accentuates that the defendant-Vassou in his capacity as the Correspondent of the Cauveri Public School entered into Ex.A2 with the plaintiff and even prior to that he was the Managing Trustee of the Sugam Priya Medical and Educational Trust. The defendant would assume and presume to the effect that albeit he happened to be the Managing Trustee of Sugam Priya Medical and Educational Trust as well as the Correspondent of the Cauvery Public School, the plaintiff sued him in his personal capacity and not in his capacity as the Correspondent of the School or the Managing Trustee of the Sugam Priya Medical and Educational Trust. While adducing evidence on the defendant's side, Ex.B4 dated 15.07.2004 the certified copy of the deed of Trust, Ex.B5- the list of Board of Trustees, B6 dated 18.07.2004- the copy of resolution to constitute the managing committee for Cauvery Public school; Ex.B7 dated 06.08.2004- copy of the resolution to accept the resignation of Mousumi Karanjai, Principal Cauvery Public School and appointment of Subramanian as Principal and Ex.B8 dated 19.05.2006- Letter from Karaikal Planning authority to the Managing Trustee Sugam Priya Medical and Educational Trust, were marked. A mere perusal of those exhibits filed on the defendant's side itself would clearly evince and evidence that the defendant was the competent person to represent the trust as well as the school also. The learned counsel for the plaintiff would in fact stress upon the fact that his client sued the defendant in his capacity as the Managing Trustee of the Trust. In such a case, I am at a loss to understand and there is no knowing of the fact also, as to why, the defendant should develop such a doubt as against his own interest. The school building is not for the personal purpose of the defendant-Vassou and it is only for the school itself, which is a unit of Sugam Priya Medical and Educational Trust and at no point of time, the trust or the school could disown its liability to honour the decree passed as against the defendant-Vassou. 10. I would like to extract here under the relevant portion of Ex.B4: "VI. 10. I would like to extract here under the relevant portion of Ex.B4: "VI. POWERS OF THE TRUSTEE: The Managing Trustee shall execute the objects of the Trust and shall have the power to supply the whole or any part of the Trust property or fund whether capital or income in or towards payments of any expenditure of the Trust or towards all or any of the objects of the Trust, namely: a) To determine from time to time to commence to take up the object and purposes for which the funds of the trust shall be used and allot and allocate to each of the objects such portion of the funds as they deem fit; b) to purchase and acquire any immovable property of any kind for this object of the Trust or as a source of income for the turst; c) to sell lease, mortgage, or dispose of any immovable property/properties belonging to the Trust; d) to incur all expenditure necessary as in his own opinion useful for carrying out the objects and administration of the Trust ......................" (emphasis supplied) The aforesaid clause is the raison d' etre of the Managing Trustee. A mere running of the eye over those excerpts including the whole of Ex.B4 would unequivocally and pellucidly, display and demonstrate that the defendant-Vassou was fully competent to enter into such contract with the plaintiff for getting the school building constructed for the said school, which is the unit of the Trust and it is an unassailable and incontrovertible fact that at the relevant time, he was the Correspondent of that school. 11. As such, the plea of the defendant is totally untenable and unwholesome, which deserves to be rejected and the trial court on that aspect committed error by simply holding the additional issue as though Ex.A2 was the agreement between the plaintiff and the defendant in his individual capacity. There is no knowing of the fact as to how ignoring the aforesaid salient features, the trial court blindly held as though the defendant entered into contract under Ex.A1 with the plaintiff in his individual capacity and such a finding has to be expunged and set aside. There is no knowing of the fact as to how ignoring the aforesaid salient features, the trial court blindly held as though the defendant entered into contract under Ex.A1 with the plaintiff in his individual capacity and such a finding has to be expunged and set aside. The trial court blithe disregard of the maxim, mala grammatica non vitiat chartam; sed in expositione instrumentorum mala grammatica quoad fieri possit evitanda est Bad grammar does not vitiate a deed; but in the construction of instruments, bad grammar, as far as possible, is to be avoided, decided the additional issue. 12. Order 31 Rule 1 of the Code of Civil Procedure also could be extracted here under for ready reference: "ORDER XXXI Suits by or against trustees, executors and administrators (1) Representation of beneficiaries in suits concerning property vested in trustees, etc. -In all suits concerning property vested in a trustee, executor or administrator, where the contention is between the persons beneficially interested in such property and a third person, the trustee, executor or administrator shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties to the suit. But the Court may, if it thinks fit, order them or any of them to be made parties." Not to put too fine a point on it, a cue can be taken from Order 31 Rule 1 of the Code of Civil Procedure coupled with the clauses in Ex.A1 that the managing trustee could sue or be sued on behalf of the Trust. No doubt, in the short cause title of the plaint, there is no elaboration; but in the long cause title, it is found clearly spelt out that the defendant was sued only in his capacity as the Correspondent of the school and ultimately as the Managing Trustee of the Trust of which the school is a unit and in no way, the defendant can be made to face the decree in his individual capacity. 13. Accordingly, Point No.1 is decided to the effect that the defendant cannot be construed as the one sued in his personal capacity by the plaintiff and that much portion of the finding under the additional issue of the trial court in the judgment and decree is expunged and it is set aside. Point Nos.2 to 4: 14. 13. Accordingly, Point No.1 is decided to the effect that the defendant cannot be construed as the one sued in his personal capacity by the plaintiff and that much portion of the finding under the additional issue of the trial court in the judgment and decree is expunged and it is set aside. Point Nos.2 to 4: 14. All these points are taken together for discussion as they are inter-linked and interwoven, inter-connected and entwined with one another. 15. Albeit, both sides strained themselves extremely in convincing this court with their respective cases to the effect that the Commissioner's report was not reflecting the reality, yet they have not chosen to examine any expert on their side so as to torpedo and pulverise, extirpate or challenge the particulars furnished in the Commissioner's report as well as in the Engineer's report. The court cannot simply assume and presume as though the Commissioner's report and the Engineer's report are fraught with unnecessary details or that they are nothing but a load of baloney. C.W1 the Commissioner and C.W2 the Engineer concerned were examined and cross-examined in extenso. The parties should have been as keen as mustard in understanding the factual scenario involved in the case and in adducing evidence. Simply by putting suggestions denying the chief examination of the witnesses, the party concerned cannot be held to have succeeded in torpedoing successfully the report of the Engineer as well as the Commissioner. It is the plaintiff, who approached the court with certain pleas, which ought to have been invigorated by adducing evidence at his instance but in respect of that, the Engineer in his report gave details. In order to contradict such report, the evidence should have been produced in an agreeable and acceptable manner; but that was not done so. Similarly, the defendant, who claims to have performed certain unfinished works also has not placed even itsy-bitsy evidence. The respective contentions turned out to be their ipsi dixit and nothing more. 16. Ex.C5 the Engineer's report, contains two parts. Part-I is captioned as "item wise abstract of assessment of deviated quantities". In that ultimately, the Engineer pointed out that the "net deviation amount" is Rs.4,04,572/-, which means as per the Commissioner's report and the Engineer's report, the amount spent relating to additional items, which were not covered under the original plan. 16. Ex.C5 the Engineer's report, contains two parts. Part-I is captioned as "item wise abstract of assessment of deviated quantities". In that ultimately, the Engineer pointed out that the "net deviation amount" is Rs.4,04,572/-, which means as per the Commissioner's report and the Engineer's report, the amount spent relating to additional items, which were not covered under the original plan. In Ex.C5, it is also found specified that a sum of Rs.2,52,101/-represents the value of the item remained unperformed as per the original plan; accordingly, the Engineer and the Commissioner deducted that amount from the total sum of Rs.4,04,572/-and arrived at the figure as Rs.1,52,471/-, which is liable to be paid by the defendant to the plaintiff. 17. The Engineer also in Part II listed out as many as seven items and pointed out that the total value of them comes to Rs.4,05,477/-. However, the Engineer would clearly point out that there is dispute as to who actually, executed such works. Only the parties should have adduced clinching evidence as to who performed such work. In the absence of it, the suit could not be decreed for that amount. 18. Now in the cross objection, the plaintiff claimed a sum of Rs.5,00,000/-; because out of the suit claim of Rs.9,74,161/- only Rs.1,52,471/-was awarded by the trial court in favour of the plaintiff. 19. The Engineer and the Commissioner pointed out under Part II of the report in Ex.C5 that there was no clarity as to who executed the work. The relevant portion of the Engineer's report is extracted here under for ready reference: "Part II consists of work in existence claimed by both plaintiff and defendant and hence it is listed out in the part separately as the case in doubt of its executors. The assessed value of these items works out to Rs.4,05,477/-. The fact may be ascertained by the competent authority." 20. It is quite obvious and explicit that neither the plaintiff nor the defendant maintained any day to day performance of the work carried out concerning the construction of the school building or at least periodically there were no notings signed by both in that connection. In the absence of such evidence, certainly, it would be impossible to convince the court relating to the items referred in Part II of the report as to who performed those works. 21. In the absence of such evidence, certainly, it would be impossible to convince the court relating to the items referred in Part II of the report as to who performed those works. 21. As such, the court below correctly did not take into account the said Part II for awarding the amount concerned in favour of the plaintiff, warranting no interference in appeal. 22. Relating to the fact as to the objection filed by the plaintiff, my discussion above would answer it fittingly. Unless there is any clinching expert evidence coupled with periodical inspection, notes, etc., there is no legal probability of proving the said fact. Mere filing of objection would not in any way enure to the benefit of the plaintiff to seek for additional awarding of a sum of Rs.5,00,000/-. 23. Accordingly, the Cross Objection is dismissed and the appeal is partly allowed with the observation that the finding of the trial court under the additional issue relating to liability of the defendant, is expunged and set aside and the defendant is presumed to be the one, who was sued by the plaintiff in his representative capacity as the Correspondent of the School and ultimately the School as well as the Trust are liable to discharge the decreetal amount. 24. (a) Point No.2 is decided to the effect that the trial court was justified in placing reliance on the Commissioner's report and the Engineer's report enclosed with the Commissioner's report in decreeing the suit. (b) Point No.3 is decided to the effect that the parties concerned did not adduce any additional evidence so as to torpedo the particulars found set out in the Commissioner's report and the Engineer's report. (c) Point No.4 is decided to the effect that there is no perversity or illegality in the judgment and decree of the trial court except the finding concerning the capacity of the defendant in he having been sued; however, the ultimate decree of the trial court is confirmed. 25. In the result, the appeal is partly allowed with the aforesaid finding and the Cross Objection is dismissed. However, there shall be no order as to costs. Consequently, the miscellaneous petition is closed. 26. 25. In the result, the appeal is partly allowed with the aforesaid finding and the Cross Objection is dismissed. However, there shall be no order as to costs. Consequently, the miscellaneous petition is closed. 26. After pronouncing the judgment, the learned counsel for the appellant/defendant would make an extempore submission that as per the order of this court dated 11.03.2010 in M.P.No.1 of 2010, a sum of Rs.50,000/-(Rupees fifty thousand only) was deposited in court and as such, the defendant might be permitted to deposit only the remaining decreetal amount and it is quite obvious and axiomatic and such a representation is accepted and ordered.