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2013 DIGILAW 469 (KAR)

JOHN FRANCIS D’SOUZA v. JOHN MICHEL D’CUNHA

2013-04-05

H.BILLAPPA

body2013
JUDGMENT H. BILLAPPA, J.-The appeal by the defendant is directed against the judgment and decree, dated 08.02.2006, passed by the Prl. Civil Judge (Sr.Dn) and CJM, Mangalore, in O.S. No. 293/1996 which has been modified by the II Addl. District Judge, D.K., Mangalore in R.A. No. 12/2006. 2. By the impugned judgment and decree passed in O.S. No. 293/1996, the trial Court has decreed the suit of the plaintiff for a sum of Rs. 58,120/- with interest at 12% p.a. from the date of suit till the date of decree and thereafter, at 10% per annum from the date of decree till the date of realization. Aggrieved by that, the appellant-defendant has preferred an appeal in R.A. No. 12/2006. The appellate Court by its judgment and decree dated 18.8.2008 has allowed the appeal in part and modified the judgment and decree passed by the Trial Court granting decree for a sum of Rs. 54,379/- with interest at 18% p.a. from the date of suit till the date of realization. 3. Aggrieved by that, the appellant-defendant has filed this second appeal. 4. Briefly stated, the facts are: The respondent-plaintiff filed suit in O.S. No. 293/96 for recovery of a sum of Rs. 58,120/- with interest @ 18% p.a. The case of the respondent-plaintiff was that he wanted to construct a residential building on his site at Jeppu, Mangalore. The appellant-defendant posing himself as a contractor came forward to put up construction and took a sum of Rs. 50,000/- from the plaintiff through cheque dated 20.2.1995 bearing No. 014891. The defendant encashed the cheque on 21.2.1995. He did not procure the building material. After one month, the defendant started leveling the ground. No progress was made. The defendant had no regular labour force. He had inexperienced persons with him. The defendant constructed a temporary water tank which was sub-standard and defective. Therefore, the plaintiff restrained the defendant from proceeding further and allowed the defendant to retain a sum of Rs. 5,000/- and asked to repay Rs. 45,000/- by 30.05.1995. The defendant did not repay the amount. Therefore, the plaintiff filed suit for recovery of a sum of Rs. 58,120/- with interest @ 18% p.a. 5. The appellant-defendant resisted the suit denying the plaint averments and contending that he is a reputed P.W.D. Contractor. He had equipments and good labourers. 5,000/- and asked to repay Rs. 45,000/- by 30.05.1995. The defendant did not repay the amount. Therefore, the plaintiff filed suit for recovery of a sum of Rs. 58,120/- with interest @ 18% p.a. 5. The appellant-defendant resisted the suit denying the plaint averments and contending that he is a reputed P.W.D. Contractor. He had equipments and good labourers. The averments that the defendant had no ability or experience to do the construction work are denied. It is also denied that the defendant promised to pay Rs. 45,000/-. 6. The defendant in his reply dated 23.10.1996 informed the plaintiff about the work done by him. The cost of materials purchased by him was to the tune of Rs. 14,000/-. For levelling the land he has spent a sum of Rs. 20,000/-. For excavation and construction work he has spent Rs. 22,196.85. The defendant furnished the bills to the plaintiff as he wanted to raise housing loan from the M.C.C. Bank. It is stated, the defendant paid a sum of Rs. 2,379/- towards building licence and incurred expenses of Rs. 3,000/- to visit the Corporation Office several times. In all the defendant has spent a sum of Rs. 61,575.85. Therefore, the defendant made counter claim to the tune of Rs. 11,575.85 from the plaintiff. 7. The plaintiff has filed his rejoinder to the counter claim. It is contended that the counter claim is false and vexations and barred by limitation. 8. The Trial Court considering the material on record has held that the defendant has failed to show that he has carried out work to the tune of Rs. 61,575.85 and heis not entitled for set-off or counter claim. Consequently, the Trial Court has decreed the suit for a sum of Rs. 58,120/- with interest at 12% p.a. from the date of suit till the date of decree and thereafter, at 10% per annum from the date of decree till the date of realization. 9. In the appeal, the appellate Court has modified the judgment and decree passed by the Trial Court and has decreed the suit for a sum of Rs. 54,379/- with interest at 18% p.a. from the date of suit till the date of realization. Aggrieved by that, the appellant-defendant has filed this second appeal. 10. The learned counsel for the appellant contended that the impugned judgment and decrees cannot be sustained in law. 54,379/- with interest at 18% p.a. from the date of suit till the date of realization. Aggrieved by that, the appellant-defendant has filed this second appeal. 10. The learned counsel for the appellant contended that the impugned judgment and decrees cannot be sustained in law. He also submitted that the Courts below have failed to consider the evidence on record in proper perspective. Further he submitted that the appellant has spent a sum of Rs. 61,575.85 and has furnished the bill. In spite of that, the Courts below have decreed the suit which is totally incorrect. He also submitted that the appellant has spent more than Rs. 61,000/- for construction work and therefore, the impugned judgment and decrees cannot be sustained in law. He also submitted that the interest awarded by the Courts below is highly exorbitant and cannot be sustained in law. 11. As against this, the learned counsel for the respondent submitted that the impugned judgment and decrees do not call for interference. He also submitted that the Courts below on proper consideration of the material on record have rightly decreed the suit and therefore the impugned judgment and decrees do not call for interference. He also submitted that appellant has received a sum of Rs. 50,000/- is not in dispute. The appellant has failed to prove his counter claim. Therefore, the impugned judgment and decrees do not call for interference. 12. I have carefully considered the submissions made by the learned counsel for the parties. 13. The suit is for recovery of a sum of Rs. 58,120/- with interest. The respondent contends that he had paid a sum of Rs. 50,000/- to the appellant through cheque for construction work. The appellant has not done any construction work. Therefore, deducting Rs. 5,000/- the respondent has claimed a sum of Rs. 58,120/- which includes interest. 14. The appellant contends that he has spent a sum of Rs. 61,575.85 for construction work. He has spent Rs. 14,000/- towards cost of materials, a sum of Rs. 20,000/- for levelling the land, a sum of Rs. 22,196.85 for excavation and other construction work, a sum of Rs. 2,379/- towards building licence and a sum of Rs. 3,000/- to visit the Corporation office several times. 15. The appellant has received a sum of Rs. 50,000/-from the respondent through cheque which is not in dispute. The appellant has made counter claim. 22,196.85 for excavation and other construction work, a sum of Rs. 2,379/- towards building licence and a sum of Rs. 3,000/- to visit the Corporation office several times. 15. The appellant has received a sum of Rs. 50,000/-from the respondent through cheque which is not in dispute. The appellant has made counter claim. The appellant has produced Exhibits D1 to D4. Ex.D1 is the copy of the bill furnished to the engineer of the respondent, Ex.D2 is the receipt for having paid licence fee, Ex.D3 is the acknowledgement. Ex.D4 is the power of attorney. Except these documents, the appellant has not produced anything to show that he has spent a sum of Rs. 61,575.85 for construction work. The bill Ex.D1 has not been certified by the engineer. The engineer has deposed that he has not certified the bill and not informed the respondent regarding the bill. There is no evidence on record to show that the appellant has spent a sum of Rs. 61,575.85 for construction work as claimed by him. Therefore, the Trial Court has decreed the suit for a sum of Rs. 58,120/- with interest at 12% p.a. from the date of suit till the date of decree and thereafter, at 10% per annum from the date of decree till the date of realization. The appellate Court has modified the judgment and decree passed by the trial Court reducing the amount to Rs. 54,379/- with interest @ 18% p.a. from the date of suit till the date of realization. In the circumstances, in my considered view, keeping in view that the appellant has spent some amount towards licence fee, to put up tank and to visit the Corporation office, it is appropriate to direct the appellant to pay a sum of Rs. 50,000/-with interest @ 12% p.a. on Rs. 45,000/-from the date of suit till the date of realization. Accordingly, the appeal is allowed to the limited extent as indicated above. The judgment and decree passed by the Courts below in O.S. No. 293/96 and R.A. No. 12/2006 is modified directing the appellant to pay a sum of Rs. 50,000/-with interest @ 12% p.a. on Rs. 45,000/-from the date of suit till the date of realization. The respondent shall be entitled to costs in the suit and cross objection.