JUDGMENT : Prakash Gupta, J. Instant Civil First Appeal under Section 96 of the Code of Civil Procedure has been filed by the defendant appellant feeling aggrieved by the judgment and decree dated 23rd January, 2017 passed by the learned Additional District Judge No.17, Jaipur Metropolitan (hereinafter referred to as 'the trial court') whereby the learned trial court decreed the suit of the plaintiff respondent for recovery of money. 2. In the aforesaid suit, it is mentioned that the defendant approached the plaintiff for structural work of a multi storied building on his plot bearing No. S-54 B, Arvind Marg, C-Scheme, Jaipur for which both the parties agreed on the terms and conditions of the agreement. A contract was executed between the parties on 1st May, 2012. 3. As per the contract, the plaintiff was to construct a structure on the first, second, third and partially on the fourth floor with RCC columns, beams and roof and the said work was to be completed by 31st August, 2012 i.e. within four months from the date of the agreement. In the plaint, it was alleged by the plaintiff that the defendant had neither given maps of the building to be constructed within the time nor proper cooperation was extended by him, despite that the plaintiff had completed the work within time and submitted his final bill on 18th February, 2013 for Rs. 2,76,168/- which was not paid. It is further alleged in the plaint that the goods of the plaintiff, like construction machinery and other articles of shuttering amounting to Rs. 82,500/- are also lying at the site in respect of which too, the plaintiff is entitled to get a decree. It was, thus, prayed in the plaint that the suit of the plaintiff be decreed for Rs. 2,76,168/- and Rs. 82,500/- respectively. 4. The defendant-appellant resisted the suit by filing written statement contending therein that the plaintiff had violated the terms and conditions of the above mentioned contract as the construction was not up to the mark. Also, the plaintiff did not complete the construction work within the stipulated time. As per the contract agreement, the work had to be completed by August, 2012 but owing to the lapse on the part of the plaintiff, the same could not be completed till February, 2013. Also, the plaintiff did not complete the construction work within the stipulated time. As per the contract agreement, the work had to be completed by August, 2012 but owing to the lapse on the part of the plaintiff, the same could not be completed till February, 2013. It was also contended that the defendant had taken a loan from SBBJ and due to late completion of construction work, he had to suffer heavy losses. Regarding the letter dated 14th August, 2012, it was mentioned that the same was the result of a concocted story as the plaintiff was not able to complete the work within the stipulated time. In the Bill dated 18th February, 2013 the plaintiff included fabricated estimate of 5th floor which was neither mentioned in the contract nor any such construction was ever raised. It was then averred that excess amount has already been paid to the plaintiff. Regarding the construction machinery, it was averred that the defendant was neither responsible for the security of the construction machinery which the plaintiff had brought at the site nor any machinery was lying thereat. Thus, it was prayed that the suit of the plaintiff be dismissed with cost. The plaintiff, in rejoinder, denied the facts mentioned in the written statement. On the basis of the pleadings of the parties, the learned trial court framed the following issues:- ^^1- vk;k oknh] izfroknh ls fd;s x;s fuekZ.k dh cdk;k jkf'k 2]76]168@& :i;s izkIr djus dk vf/kdkjh gS \ --------oknh 2- vk;k oknh fuekZ.k ds dk;Z dk lkeku e'khu] 'kVfjax] feDlj] okbZczsVj vkfn lkeku of.kZr vuqlwph&d okn i= izfroknh ls izkIr djus dk vf/kdkjh gS vFkok fodYi esa lkeku u nsus dh fLFkfr esa lkeku dh dher isVs 82]500@& :i;s izkIr djus dk vf/kdkjh gS \ ----oknh 3- vk;k oknh us vuqcU/k dh 'krksZa ds vuqlkj fuekZ.k dk;Z ugha djds vuqcU/k dh 'krksZa dh vogsyuk dh gS] bl dkj.k oknh] izfroknh ls dksbZ jkf'k izkIr djus dk vf/kdkjh ugha gS \ ----izfroknh 4- vk;k izfroknh us fuekZ.k ds fy, ekufp= vuqcU/k ds vuqlkj le; ij ugha fn;s ftl dkj.k fuekZ.k dk;Z esa foyEc gqvk \ ----izfroknh 5- vuqrks"k \^^ 5. In support of the suit, plaintiff, Alok Goyal, examined himself as (P.W.1) and produced some documentary evidence. In defence, defendant, Sanjay Paliwal, examined himself as (D.W.1) and produced Balram as (D.W.2). 6. In support of the suit, plaintiff, Alok Goyal, examined himself as (P.W.1) and produced some documentary evidence. In defence, defendant, Sanjay Paliwal, examined himself as (D.W.1) and produced Balram as (D.W.2). 6. Learned trial court after hearing the parties, vide its judgment dated 23rd January, 2017 decreed the suit of the plaintiff for Rs. 2,76,168/- and for returning of the construction machinery and in lieu thereof, the plaintiff was held entitled to receive an amount of Rs. 82,500/- with 6% annual interest. 7. Heard learned counsel for the parties. Appeal is admitted. 8. It is submitted by learned counsel for the appellant that the learned trial court passed the impugned judgment only on the basis of assumptions and presumptions and did not give any cogent finding that how the plaintiff is entitled to get the amount of Rs. 2,76,168/-. There is no evidence on record which proves that this amount is outstanding towards defendant-appellant. It is submitted that the trial court wrongly considered the statement dated 10.09.2012. This document was illegally exhibited by the plaintiff as (Ex-12). If this document is not taken into consideration as having been not duly proved than an approximate sum of Rs. 4 lac becomes due to the defendant and it would obviously defeat the claim of the plaintiff. It is further submitted that as per terms and conditions, the roof was to be measured outer to outer along with the projection. There was no condition that coffer and doula work will be charged double. However, the plaintiff measured the doula wrap around and not outer to outer. Therefore, the plaintiff violated the terms and conditions enumerated in clauses six and seven. The act of plaintiff in taking breadth and height and making it double is contrary to the agreement. The wrap around can be verified from (Ex-R-14) & (Ex-R-4) which clearly display the breadth of doula of 3rd and 4th floor respectively. It was next argued that trial court did not consider the fact that the plaintiff has illegally added the estimate of 5th floor in the final bill, though, there was no contract for construction of 5th floor. In addition to it, there is an ample evidence that the plaintiff delayed the construction work. The trial court relied on (Ex.4), whereas the plaintiff-respondent did not avert any fact regarding the above document. In addition to it, there is an ample evidence that the plaintiff delayed the construction work. The trial court relied on (Ex.4), whereas the plaintiff-respondent did not avert any fact regarding the above document. Therefore, the trial court exceeded its jurisdiction in considering the said document. Plaintiff has not produced any evidence about the measurement of the construction. In this regard, the trial court did not consider the cross-examination of the plaintiff. 9. On the other hand, learned counsel for the respondent has supported the judgment and decree of the court below. He has argued that the plaintiff has completed the construction work strictly according to the terms and condition of the agreement and there was no substantial delay in completion thereof. The judgment of learned trial court is well considered in all aspects of the case and is based on correct appreciation of the material placed on record. Therefore, no interference of this Hon'ble Court is required. 10. Issues Nos.1, 3 and 4, being the common issues, have been clubbed and decided together by the learned trial court. While appreciating the evidence of the parties, Alok Goyal (AW.1), reiterating the facts mentioned in the plaint, has stated that on mutual agreement regarding work of construction of multistoried building over plot No.S-54B belonging to the defendant, a written agreement was signed by the parties on 01.05.2012 according to which the plaintiff was to construct first, second, third floors and partial portion of fourth floor with RCC Pillars, Columns and roof. During the construction work, the defendant neither extended any help to him nor made payment in time and also failed to supply drawings in time. In such circumstances, he wrote a letter dated 14th August, 2012. However, he completed the construction work and submitted final bills to the defendant for payment. 11. As per the terms of the agreement, he started the work on 1.5.2012 and roof of first floor was erected on 28.5.2012. Out of the payment of Rs. 2,02,753/-, the defendant made payment of Rs. 2,00,000/- and payment of Rs. 2,753/- remained due. On 9.7.2012, roof of second floor was erected and against the payment of this work, an amount of Rs. 1,731/- was due. Against the work of roof of third floor a bill of Rs. Out of the payment of Rs. 2,02,753/-, the defendant made payment of Rs. 2,00,000/- and payment of Rs. 2,753/- remained due. On 9.7.2012, roof of second floor was erected and against the payment of this work, an amount of Rs. 1,731/- was due. Against the work of roof of third floor a bill of Rs. 3,96,607/- was submitted to the defendant and after adjustment (addition of due amount and deduction of rent of the shuttering material supplied by the defendant) finally an amount of Rs. 2,94,061/- remained due. When the due amount was not paid, the plaintiff stopped the work and then payment of Rs. 50,000/- and Rs. 1,00,000/- was made. After adjustment of all amount already paid, the plaintiff submitted the final bill of Rs. 2,76,168/- to the defendant. As per the plaintiff he was not allowed to lift his construction machinery amounting to Rs. 82,500/-. The plaintiff sent a letter dated 20.2.2013 but no heed was paid to the same. Thereafter, a legal notice was sent to the defendant. Despite the receipt of such notice, neither the due payment was made nor the plaintiff was permitted to take away his construction machinery. 12. However, in cross examination, the witness stated that he is not a registered contractor. As per the agreement, the measurement was to be done on the basis of roof measurement and double rate was to be charged for designs. The witness admitted that in the agreement, work of fifth floor was not mentioned but fifth floor was nevertheless constructed and as per the agreement, the work was completed on 31.12.2012. 13. On the other hand, the defendant, Sanjay Paliwal (DW.1) in his statement reiterating the facts mentioned in the written statement stated that an agreement was entered into between the parties for construction of work within four months but the plaintiff neither started the work nor finished the same within the stipulated time and also did not furnish the accounts regarding the work done by him. The plaintiff constructed fifth floor without there being any agreement regarding the same. He also raised objection regarding measurement of the work done. Because of delay in completion of the work, he had to pay Rs. 1,00,000/- per month as interest. To get the defects in the construction work removed, he also spent Rs,1,50,000/-. 14. The plaintiff constructed fifth floor without there being any agreement regarding the same. He also raised objection regarding measurement of the work done. Because of delay in completion of the work, he had to pay Rs. 1,00,000/- per month as interest. To get the defects in the construction work removed, he also spent Rs,1,50,000/-. 14. In cross examination, the witness admitted the fact that payment of third bill was not made as the bill was wrong. He has denied the fact that he did not provide drawings of the work within time. He has further admitted the fact that he did not pay the amount of final bill (Rs. 2,76,168/-) as the bill was wrong. 15. The argument of learned counsel that the appellant has measured the doula wrap around but did not measure it outer to outer is not tenable for the reason that this act is technical in nature and it could have only been proved though summoning an expert in construction work. But the plaintiff, apart from producing himself did not produce any such expert. Though, the plaintiff has produced (PW.2), yet he is admittedly not an expert in construction work. The learned court has also given a finding in this regard that the above fact could be proved only by an expert. It appears that through inadvertence, (Ex.12) has been written on two documents, therefore, it is wrongly argued that on the bill dated 10.09.2012, exhibit was illegally marked. In fact, (PW-1) Alok Goyal was cross-examined in detail on both the said documents marked as (Ex.12). The defendant (DW-1) has also not challenged the veracity of the above two documents. Rather he has admitted that bill (Ex.12) dated 10.09.2012 and notice dated 14.08.2012 were received by him. Therefore, non marking of separate exhibits on those documents does not support the contention of learned counsel for the appellant. 16. On the basis of the evidence produced by both the parties, the plaintiff has been able to prove that design is to be measured by adopting formula length x width x 2, which the plaintiff applied. Regarding construction work of fifth floor, it was argued by the learned counsel for the plaintiff that work of fifth floor was done by the plaintiff under the pressure of the defendant regarding which the defendant himself has written (Ex.4). Regarding construction work of fifth floor, it was argued by the learned counsel for the plaintiff that work of fifth floor was done by the plaintiff under the pressure of the defendant regarding which the defendant himself has written (Ex.4). In this document (Ex.4), there is mention with regard to construction of about 1000 Sq. Ft. area. The area of first, second, third and fourth floors is more than 1000 sq. ft. The defendant has failed to prove the fact that as to where 1000 Sq. Ft. work was done. The defendant further failed to show in respect of which floor (Ex.4) was written. On the basis of the evidence produced by the parties, the defendant has utterly failed to prove this fact that the plaintiff did not work as per the terms and conditions of the contract and has violated the same. With regard to payment of Rs. 2,76,168/-, in his statement, defendant Sanjay Paliwal (D.W.1) admitted that he did not make payment to the plaintiff of the final bill amounting to Rs. 2,76,168/- as the same was incorrect. The witness further admitted the fact that regarding violation of terms and conditions of the agreement, he did not serve any notice to the plaintiff. 17. Balram (DW.2), in his cross examination, has admitted the fact that he did not take measurement in the presence of the plaintiff and the measurement was on the basis of the drawings. No record was maintained by him regarding the measurement taken on the spot. He has not supplied any report to the defendant regarding the difference between the two measurements i.e. one taken by the plaintiff and the one taken by him. No measurement of ceiling was taken by him on the spot. He has also admitted that he calculated the measurement as per the drawing and did not write the measurement taken by him at the site. On the basis of the evidence of Balram (DW.2) the trial court rightly concluded that in fact this witness did not go to the site for taking actual measurement. 18. From the evidence available on record, the plaintiff has been able to prove that the defendant had neither cooperated with the plaintiff in completing the work nor did he provide the drawings of the work in time, therefore, the plaintiff was constrained to write the letter dated 14.8.2012. 18. From the evidence available on record, the plaintiff has been able to prove that the defendant had neither cooperated with the plaintiff in completing the work nor did he provide the drawings of the work in time, therefore, the plaintiff was constrained to write the letter dated 14.8.2012. At the time of agreement, drawings of first floor were shown on the basis of which the work was started and completed by 25.5.2012. The work of second floor was almost completed by July, 2012 and the work of third floor was completed by September, 2012. Thus, the work as per the agreement was completed by 31.12.2012. The defendant though resisted the fact that he did not provide the drawings of the work, has produced no evidence on record to substantiate his claim. The defendant has utterly failed to prove that the plaintiff did not comply with the terms and conditions of the agreement. On the contrary the delay in completing the work was due to the non-supply of drawings of the work by the defendant and that despite raising final bill of Rs. 2,76,168/- and demands, made in respect thereto, the defendant failed to pay the amount. 19. Regarding issue No.2, plaintiff Alok Goyal (PW-1) has stated that the defendant did not permit him to lift the construction machinery mentioned in Schedule-A annexed to the plaint. Therefore, the plaintiff sent a letter dated 20.2.2013 to the defendant. Despite this, the defendant neither made payment of the amount due nor permitted the plaintiff to lift his construction machinery. The evidence of the defendant in this regard is that it was the duty of the plaintiff to keep watch on his construction machinery and that the plaintiff did not lift the same in his presence. Taking note of (Ex.4), the learned trial court has rightly held that it has been mentioned in this document that the payment will be made after the construction work would be finalised and thereafter only, the construction machinery could be permitted to be taken by the plaintiff. Therefore, when the payment of the bill was not made, it is to be presumed that the plaintiff was not permitted to lift the construction machinery which was proved by the letter sent by the plaintiff dated 20.2.2013 (Ex.10). Therefore, when the payment of the bill was not made, it is to be presumed that the plaintiff was not permitted to lift the construction machinery which was proved by the letter sent by the plaintiff dated 20.2.2013 (Ex.10). Since the plaintiff was not allowed to lift his construction machinery, he is entitled to get back construction machinery and lieu thereof, its cost amounting to Rs. 82,500/-. 20. In view of the above discussions, I find no illegality or perversity in the impugned judgment & decree of the trial court. Hence, the appeal being devoid of any merits is dismissed. There shall be no order as to costs.