JUDGMENT (Prayer: Appeal Suit filed under Section 96 of the Civil Procedure Code, against the decree and judgment, dated 30.11.2021 made in O.S.No.76 of 2014, on the file of the Principal District Court, Tirunelveli.) 1. The appellant herein is the defendant. The respondents are the plaintiffs. The plaintiffs filed a suit in O.S.No.76 of 2014, before the Principal District Court, Tirunelveli for recovery of money. Initially, the first plaintiff filed a suit and the plaintiffs 2 and 3 are the sister concern, therefore, they are impleaded as plaintiffs 2 & 3 in the suit. 2. The trial Court after trial, partly decreed the suit that the plaintiffs are entitled to a sum of Rs.15,66,977.22/- together with interest from the defendant at the rate of 6% per annum from the date of plaint till the date of realization of the amount with proportionate cost. Challenging the said judgment and decree, the defendant has filed this appeal. 3. Brief plaint averments are as follows:- The plaintiffs are the reputed organisation providing services such as Architecture, Engineering, Construction and Management in and around the locality. The defendant is a well known doctor and providing medical services and consultancy through his hospital namely Sri Sakthi Hospital at Tirunelveli. In the course of their business, during the year 2010, the defendant approached the plaintiffs and offered a project to them to construct a European Style Hospital with 100 bed facility for him at Survey No.988/1A2 and 989/2A2B in Kulavanigarpuram Village. After negotiations, the plaintiffs agreed to undertake the said project and on 05.05.2010 an agreement was entered by them with necessary terms and conditions. The cost of construction for the finished building with other civil works, namely, false ceiling, electrification, sanitary arrangements and Centralised Air Condition with estimate at Rs.3,60,00,000/-. All the facts and figures in this regard were placed before the defendant and his wife Dr.Sumathi and they also agreed for the same. The concept and the design of the said building was finalized and the copy of the design was also furnished to the defendant through his mail. The plaintiffs have started construction work on 04.06.2010 after receiving advance from the defendant. He and his wife were fully satisfied with the design furnished by the plaintiff and the project is under way. The concept and the design of the said building was finalized and the copy of the design was also furnished to the defendant through his mail. The plaintiffs have started construction work on 04.06.2010 after receiving advance from the defendant. He and his wife were fully satisfied with the design furnished by the plaintiff and the project is under way. Further, it was agreed between them and the defendant that the cost towards the works done by the plaintiffs shall be disbursed by the defendant periodically on the invoice raised by the plaintiffs. But, immediately after the commencement of the project, the defendant did not act as agreed and no payments were made periodically. When the plaintiffs approached the defendant for payment, he informed that he was unable to release the funds, since the loan process is under way. Since the defendant has not releasing the cost of the construction payable to them periodically, the plaintiffs approached the defendant for payment, he has dragged the same at the guise of non-sanction of bank loan and the plaintiffs have varied all the ordeals caused by the defendant and his personnel bonafidely and continued the construction activities with the fond hope that the defendant will release the funds. Since, the defendant has not turned to make any payments towards the dues payable to the plaintiffs, on 07.04.2011 they have stopped the construction activities in and over the premises for the reason that non-payment of the funds payable to them. The defendant had also requested the plaintiffs to furnish yet another estimate for the cost of construction towards the said project, so as to enable him to obtain the loan from the bank. As per his request, the plaintiffs furnished revised estimate for the same. While the facts remain so, during the month of February 2013, again the construction activities were started by the plaintiffs, since the defendant has paid a sum of Rs.10,00,000/- towards the dues payable to the plaintiffs as on 16.02.2011. Inspite of delay of two years to re-commence the construction work, the plaintiffs have submitted a revised cost of working as per then prevailing market rate with all the facts and figures and the defendant agreed the same. During the course of construction, the defendant frequently approaching the plaintiffs for alteration in and over the said building. Inspite of delay of two years to re-commence the construction work, the plaintiffs have submitted a revised cost of working as per then prevailing market rate with all the facts and figures and the defendant agreed the same. During the course of construction, the defendant frequently approaching the plaintiffs for alteration in and over the said building. The alterations were also carried out by the plaintiffs as per the request of the defendant. To the plaintiff's shock and surprise, after completion of main structural and masonry works for 4 floors, the defendant started making vague allegations that the works carried out by them are not made with quality materials and design of the building is not good and also expressed that he had paid excess amount to them. The design of the building is concerned, it was designed by the 1st plaintiff as described by the defendant with technical feasibility after due discussions with the defendant and his wife. The defendant is due and liable to pay a sum of Rs. 15,82,705.43/- to the plaintiffs towards the works carried out by them till 05.03.2014 by the plaintiffs. Since, the difference of opinion arose between the plaintiffs and the defendant, the plaintiffs requested the defendant to settle the dues payable by them. This being so, to add fuel to the fire, the wife of the defendant has lodged a criminal complaint with the Assistant Commissioner of Police, Tirunelveli as against the partners of the plaintiffs company with false allegations. The plaintiffs have finished the project upto 2nd floor and the defendant is due and liable to pay a sum of Rs.15,82,705.43/- towards the invoice raised by the plaintiffs as well as the defendant has to pay service charges towards work carried by the plaintiffs after adjusting all the payments made by the defendant. In this regard, the plaintiffs sent a legal notice, dated 07.07.2014 to the defendant to settle the dues payable by him and the same was duly acknowledged by the defendant. While the facts remain so, on 11.07.2014 when the persons belongs to plaintiffs company went to the site and attempted to remove the materials as well the construction equipments worth about Rs.10,00,000/- belongs to the plaintiffs from the site, the same was prevented by the defendant along with some henchmen. While the facts remain so, on 11.07.2014 when the persons belongs to plaintiffs company went to the site and attempted to remove the materials as well the construction equipments worth about Rs.10,00,000/- belongs to the plaintiffs from the site, the same was prevented by the defendant along with some henchmen. Hence, the materials and equipments worth about Rs.10,00,000/- belongs to the plaintiffs is lying in the site of the defendant. The defendant is liable to pay a sum of Rs.25,82,705.43/- towards the cost of work carried out by the plaintiffs and the cost of the materials and equipments. In this situation, the defendant is malafidely taking steps to proceed with construction from the completed stage made by the plaintiffs through some local builders. The defendant is about to start the construction works in and over the superstructure made by the plaintiffs with an ulterior motive, the plaintiffs have specifically called upon the defendant to pay the cost of the work carried out by them. The construction works entrusted by the defendant through the 1st plaintiff were executed by their sister concerns viz., plaintiffs 2 and 3 and also raised bills for the work done and they are also necessary parties to the present suit. Hence, they are also added as plaintiffs in the above suit. Hence, the plaintiffs filed this suit for recovery of money from the defendant. 4. Brief averments stated in the written statement filed by the defendant are as follows:- The suit is not maintainable either on facts and on law. It is true that the plaintiffs are the reputed organization and defendant is the well known doctor. In fact, being the neighbour and taking advantage of the same, Mr.Jeyabalan approached the defendant saying that he is an Engineer and offered to construct a hospital to the defendant. He himself introduced that he has constructed many hospitals in and around Tirunelveli through his son Mr.Rajasekaran and he introduced the defendant to his son. The document is only for the architectural services and getting the necessary approvals. Though collecting huge money, the above said Rajasekaran did not act as per the document and it was cancelled long back. After getting the papers from the local authorities to construct a nursing home in the month of September 2010, the defendant requested for a quote from Jeyabalan for the said nursing home. Though collecting huge money, the above said Rajasekaran did not act as per the document and it was cancelled long back. After getting the papers from the local authorities to construct a nursing home in the month of September 2010, the defendant requested for a quote from Jeyabalan for the said nursing home. He gave a document on 21.09.2010 and told that the construction will take minimum of 2 to 3 years, hence he wanted a higher amount and the defendant accepted his quote including the service tax and other taxes. But, till date the plaintiffs were not provided with the complete plan and diagrams of the building. As a matter of fact, the plaintiff taking advantage of defendant's busy schedule and lack of knowledge in the construction field squandered huge amount from the defendant under the guise of construction. In fact, the plaintiffs did not give full plans and design till date to the defendant. After starting the construction work and even if the defendant pointed out obvious mistakes of the plaintiff's construction at every time, the defendant been convinced by the plaintiff by making false representation as if he would rectify the mistake in the course of construction. Believing their words, the defendant started to pay huge amounts to the plaintiffs at their requests. The defendant being busy doctor could not monitor the construction work during the time of construction and trusting the plaintiff fully. The defendant convinced by the representation of the plaintiff made such payments through bank loan, personal loan and out of their hard earnings. The defendant has paid Rs.2.40 crores totally till the construction was stopped. The defendant has paid more than Rs.1.70 crores and also provided significant steel with a fond hope that he would construct a good hospital building. But he cheated the defendant in all possible ways. He has not given any bills for the construction nor for materials till date. But, he claimed that he would buy all materials other than steel and also promised that he would produce the bills at the end of construction. The plaintiffs had also made the defendant to spend for steel and other materials worth many Lakhs and the defendant were also made to spend for the electrical and sanitary works in several Lakhs rupees, so far, which is contra to the quotation of the plaintiff. The plaintiffs had also made the defendant to spend for steel and other materials worth many Lakhs and the defendant were also made to spend for the electrical and sanitary works in several Lakhs rupees, so far, which is contra to the quotation of the plaintiff. Thereafter, the defendant valued the construction cost and assessed the quality of the construction through the qualified engineer. After perusing the record of the qualified engineer, the defendant came to know that the plaintiffs collected excess amount of Rs.1.8 crores from the defendant and the quality of the building is also very very poor. The plaintiff is very well known that the Engineers were going to inspect the property as per request of the defendant, for which, the plaintiff did not raise any objection. It proves the plaintiffs illegal and fraudulent claim in the suit. Thereafter, the defendant convened a meeting with the plaintiffs on 29.03.2014 at Tirunelveli and shown the engineer's report. After perusing the report, though he promised to rectify the flaws pointed out by the Engineer he did not come forward to rectify the flaws and he insisted a team from the side of the plaintiff's to carry out joint inspection with of our panel engineers on 09.04.2014 to solve the issue. The plaintiffs team agreed the flaws and agreed for rectification. In fact the plaintiffs team have sent an acceptance letter for flaws along with a report to the defendant. The plaintiff pleaded again for another meeting with Builders Association of India, once again a fair change to the plaintiff, the said meeting was arranged by the defendant on 27.04.2014 and the plaintiff has been requested to sort out the difference through Builders Association of India. The qualified engineers, who are the members of Builders Association convened the meeting and they inspected the building in the presence of plaintiff. They have pointed out so many serious mistakes committed by the plaintiff in the construction work which has to be rectified soon to safe guard the strength of the building including basement Pillars and the structural pillars. But the plaintiff had cunningly sent a notice to Engineer Muralitharan, who gave the report to the defendant by stating that the plaintiff's relationship with the defendant is affected due to his report and claiming damages of Rs.50 lakhs for breach of contract between the defendant and the plaintiff. But the plaintiff had cunningly sent a notice to Engineer Muralitharan, who gave the report to the defendant by stating that the plaintiff's relationship with the defendant is affected due to his report and claiming damages of Rs.50 lakhs for breach of contract between the defendant and the plaintiff. The plaintiff is very well known that if any engineer would inspect the property and such report confirms the flaws of the plaintiff and the fraudulent acts of the plaintiff would have been exposed to the public. All efforts taken by the defendant to solve the issue through Builders Association had gone into vain. Hence, the defendant and his wife lodged a complaint before the Commissioner of Police, Tirunelveli. An enquiry been conducted by the Assistant Commissioner, City Crime Branch, Tirunelveli and the defendant accepted to return the excess amount and asked one week time for payment. If any qualified engineer assessed the value of construction and the work, it would definitely disclose the fraud committed by the plaintiff. As present the defendant cannot proceed further construction without rectifying flaws. All his earlier communications to Jeyabalan through mails which had been read by said Ramprasad and he used to writeback to the defendant without any authorization. It was objected by the defendant including Ramprasad's threat and it was intimated to the police. The defendant's money more than Rs.1 crore is with the plaintiff and as such the defendant is not liable to pay any amount to the plaintiff. The plaintiff since beginning of February 2014 completely taken back all the workers from the defendant site and construction materials have also been taken by them. This is the cheat tactics of the plaintiff for collecting more money from the defendant. However, the defendnat had intimated respectfully well on 24.03.2014 to the plaintiffs to stop their work having known earlier and asked to remove few materials which were left by the plaintiff. Hence, the left over materials was taken on 25.03.2014 by the plaintiff's staff Balamurugan and Muniasamy and it has been promptly intimated to the plaintiff. As such no materials of the plaintiffs are available in the defendant's property. The defendant had sustained huge monetary loss and also losing in everyday and been constrained to pay interest to the same to Bank and private persons for the loan availed by them for the construction work. As such no materials of the plaintiffs are available in the defendant's property. The defendant had sustained huge monetary loss and also losing in everyday and been constrained to pay interest to the same to Bank and private persons for the loan availed by them for the construction work. In fact, the defendant is not liable to pay any amount. On the other hand, the plaintiff collected excess amount to the tune of Rs. 1.08 crore. Apart from that the plaintiff did not come forward to complete the construction. Further, the suit is filed by one Modern groups. But, the defendant is put into dark as to whether the plaintiff is a partnership firm or Registered company. In fact, the said Jeyabalan approached the defendant with an intention to construct the hospital and he introduced himself as an architectural engineer. Hence, the plaintiff has no locas standi to file the suit, and the suit is liable to be dismissed. 5. On the basis of the above pleadings, the learned trial Judge framed the following issues for consideration: (I) It is true that the defendant is not liable to pay any amount to the plaintiff, since the plaintiff collected excess amount to the tune of Rs.1.08 Crore from the defendant? (ii) Whether the plaintiff is entitled to get a sum of Rs. 25,82,705.43 together with interest at the rate of 18% per annum from the defendant towards the cost of work carried out by the plaintiff as well as the costs of materials and equipments? (iii) Is it true that the plaintiff did not give full plan and design till date to the defendant? (iv) Whether the defendant has paid Rs.2.40 Crore totally till the construction was stopped? (v) To what other relief the plaintiff is entitled? 6. In order to substantiate the case, on the side of the plaintiffs, two witnesses were examined as PW1 and PW2 and 41 document were marked as Ex.A1 to Ex.A.41. On the side of the defendant, two witnesses were examined as D.W.1 and D.W.2 and 17 documents were marked as Ex.B1 to Ex.B17. 7. On completion of trial and on hearing of arguments advanced on either side, the learned trial Judge, considered the oral and documentary evidence produced before the Court, partly decreed the suit. 8. On the side of the defendant, two witnesses were examined as D.W.1 and D.W.2 and 17 documents were marked as Ex.B1 to Ex.B17. 7. On completion of trial and on hearing of arguments advanced on either side, the learned trial Judge, considered the oral and documentary evidence produced before the Court, partly decreed the suit. 8. The learned Senior counsel appearing for the appellant would submit that originally the suit was filed by one Modern Groups, an alleged partnership firm and the appellant did not enter into any construction agreement with the said firm and as such the respondents have no locus standi to file the suit for recovery of money on the basis of contractual obligation and as such the suit ought to have been dismissed. She would further submit that the suit for recovery of money is filed on the basis of Ex.A1-agreement, dated 05.05.2010 entered into between the appellant and one J.Rajasekaran, Registered Architect enforcement of any contractual obligation only party to the said agreement and he can file a suit and as such the present suit at the instance of the present respondents is not legally maintainable. She would further submit that absolutely no provision enabling the parties to the agreement to approach the Court of Law for the enforcement of any contractual obligations and moreover no such obligations are imposed in the said agreement in Ex.A1, dated 05.05.2010. Ex.A1 the alleged construction agreement, dated 05.05.2010 is not a construction agreement and it is only an agreement with Architect for his service mentioned therein and as such it is nothing to do with the agreement for the construction of Hospital. In fact, in the legal notice Ex.B11, dated 09.05.2014 issued on behalf of the original plaintiff/1st respondent it has stated that for the construction of nursing home building in By-Pass Road an oral agreement entered into the Management of M/s.Sakthi Hospital and the said fact also admitted by the appellant/defendant in the reply notice Ex.B-12, dated 26.05.2014, whereas, the suit is proceeded as if the suit is came to be filed for the enforcement of contractual obligation on the basis of Ex.A1 agreement. She would further submit that even in Ex.A1- agreement except in page No.1, signatures of the parties to the agreement is not found and as such, the said agreement cannot be relied on for any purpose. She would further submit that even in Ex.A1- agreement except in page No.1, signatures of the parties to the agreement is not found and as such, the said agreement cannot be relied on for any purpose. As per the plaint averments, the construction work commenced on 04.06.2010, stopped in between 01.02.2011 to 28.02.2013 and the legal notice, dated 07.07.2014 was sent for settle the dues after left out of the contract in view of disputes arose on the ground that the building is being constructed by using substandard materials and the quality of the construction is bad and excess amount received than the actual work carried out and as such the respondents, who are at fault, cannot be given any benefit out of their own mistakes and as such the suit ought to have been dismissed. 9. The learned Senior Counsel appearing for the appellant would further submit that the respondents, who coming out of the contractual obligation issued the legal notice, dated 07.07.2014, informing that they are very much reluctant to continue the project and as such they cannot claim against the appellant on the basis of contractual obligation. She would further submit that Ex.A6 legal notice, dated 07.07.2014 is not a pre-suit notice, but it has been sent in view of the police complaint against Mr.K.Jeyabalan and Mr.Rajasekar for their illegal activities and they were called for an enquiry on 02.07.2014 by the police personal. Absolutely, there is no averments in the plaint with respect to that what is the actual work carried out by the respondents, what is the amount spent by them to carry out the said works, what is the amount paid by the appellant and what is the amount the respondents are entitled to receive from the appellant. Absolutely no particulars on what basis the plaintiffs arrived the suit claim of Rs.25,82,705.43/-. 10. Further, she would submit that it is the case of the respondents that the appellant is in due and liable to pay a sum of Rs.15,82,705.43/- to the respondents towards the works carried out by them, but absolutely no details that how they were entitled to the said amount, especially, when it has been specifically stated that the respondents received the excess amount than the work carried out by them. It is the further case of the respondents that the materials and equipments worth about Rs.10,00,000/- belongs to them were lying in the construction site, when they stop the construction work and left the site and as such they claim another sum of Rs.10,00,000/- but no particulars are given what are the materials and equipments left by them. Especially it is the specific case of the appellant that the respondents taken back the left over materials on 25.03.2014 and no construction materials and equipments belonged to the the respondent available in the construction site. She would further submit that without considering the material facts, the trial Court simply granted the decree for Rs.1,00,000/- towards the cost of materials and equipments in the absence of any evidence. The appellant paid 136 payments on different dates totally a sum of Rs.2,39,99,501/- paid to the respondents in excess to the claim made by them. The appellant also paid a sum of Rs.14,48,700/- on 10.04.2013 to Mr.Jeyapalan through the Sakthi Hospital voucher and the said payment was not at all taken into account while partly decreeing the suit. The finding of the trial Court is erroneous regarding the appellant has paid only a sum of Rs.2,13,56,721/- only on the basis that the respondents admitted only the said amount and given a finding that a sum of Rs.14,66,977.22/- has to be paid by the appellant as the balance amount towards construction cost and another sum of Rs.1,00,000/- towards materials placed in the constructed site. The trial Court has erroneously decreed the suit for recovery of money including the service tax and surcharge in the absence of any pleadings in the plaint and no material evidence was placed on record to prove that they are entitled to said amounts. 11. Further, she would submit that the respondents collected excess amount of Rs.1.08 crores for the construction work carried out by them apart from the quality of the building is very very poor and therefore, the respondents are not entitled to get any money from the appellant. The respondents have to pay the money to the appellant. 11. Further, she would submit that the respondents collected excess amount of Rs.1.08 crores for the construction work carried out by them apart from the quality of the building is very very poor and therefore, the respondents are not entitled to get any money from the appellant. The respondents have to pay the money to the appellant. Further, she would submit that the trial Court erred in not taking into consideration of the report of Mr.G.Muralitharan, the Senior Panel Engineer of many reputed financial institutions and Public Sectors, have inspected the construction site along with his team and assessed the quality of work and estimated the cost of existing construction as on 26.03.2024. Ex.B-7 the valuation report, dated 28.03.2014 submitted by the Executive Engineer PWD, Tirunelveli to assess the cost of construction and to determine the amount payable by the appellant. The appellant, a reputed doctor at Tirunelveli suffered a lot in view of the respondents unmindful activities and substandard construction. The appellant borrowed a loan amount of Rs.2 Crores and 30 lakhs from the Bank of Baroda, Melapalayam for construction of the Hospital and liable to pay the monthly installment of Rs.9,25,000/- and therefore, incurred a huge loss due to non-completion of building. 12. The learned Senior counsel appearing for the appellant would submit that originally the suit was filed by the first respondent alone and the appellant has raised an objection that there was no construction agreement between the appellant and the first respondent, therefore, the respondents 2 and 3 were impleaded only on 04.11.2019 and as such the suit deemed to have been instituted by the respondents 2 & 3 only on 04.11.2019 in view of the specific provision under Section 21 of the Limitation Act, 1963 and as such, the present suit for recovery of money by the respondents 2 & 3 is clearly barred by the law of limitation under Article 22 of the Limitation Act 1963. There is no agreement between the appellant and the first respondent for construction and therefore, the appellant is not liable to pay any amount to the first respondent and even though there was no construction agreement between the respondents 2 & 3 and also the suit claim made by the respondents 2 & 3 is barred by limitation under Article 22 of the Limitation Act. 13. 13. The demand for suit claim was made as early as on 07.07.2014 under Ex.A6 legal notice that too only at the instance of the 1st respondent. But the suit claim is barred by limitation. The appellant is not liable to pay any amount to the respondents. Further, she would submit that the trial Court, failed to consider the conduct of the respondents and the over payment made by the appellant and the substandard materials used for construction and also the report of the Engineer Mr.Muralidharan, erroneously partly decreed the suit, therefore, which warrants interference of this Court. 14. The learned Senior counsel appearing for the respondents would submit that when the respondents submitted the drop proposal plan, it is for the appellant has to get approval from the concerned authorities. He has not submitted any modified approval plan before the respondents. Further, they constructed the building with the good materials, no substandard materials were used for construction. Further, the learned counsel for the respondents would submit that even the appellant appreciated the construction made by the respondents and also he sent a messages to the respondents regarding the construction on 06.02.2014, wherein he has stated as follows:- “Greetings officers from banks, our well wishers, patients and residences of St.Xavier's Colony are started appreciating our building thank you so much we will be somebody soon and we are also running sincerely in arranging funds you also continue the same to complete the project to open on Birthday of Dr.Sumathi 11.03.2014 please and Raja we promise you will get plenty of hospital projects through us to come up in the life we will never forget even smallest of small help from all Drs.” 15. The appellant has not proved that he has paid a excess payment of Rs.1,08,00,000/-, when the appellant stated that he paid the excess amount to the construction. Even though there is no specific agreement, but however they admitted that they are entrusted in the construction work to the respondents and the respondent also constructed and the expert team appointed by this Court submitted a report and based on the report and the evidence, the trial Court decreed the suit and there is no error on the judgment of the trial Court. 16. 16. The learned Senior Counsel appearing for the respondents would further submit that the respondents produced Ex.A10 report submitted by the panel of engineers appointed by this Court and as per the report, the value of construction is fixed as Rs.2,15,96,600/-. The respondents claimed 12% out of 40% of the value of the construction has to paid towards services tax and thereafter 3% towards sur-charges has to be paid. Though the appellant contended that there is no claim for tax is stated earlier by the respondents, in their additional reply statement itself stated necessary taxes to be paid. So the service tax has to be paid by the respondents for the construction and the same can be recovered from the appellant. 40% of the value of construction is Rs.2,15,39,600/- comes to Rs.86,15,840/- and 12% of the said amount as service tax comes to Rs. 10,33,900.80 and 3% of service tax comes to Rs.31,017.02/-. and total tax payable comes to Rs.10,64,917.82. After adding the tax, the total amount comes to Rs.2,15,39,600/- + Rs.10.64,917.82/- = Rs.2,26,04,518/-. Though the appellant has stated that they made a payment of Rs.2,39,99,501/- but, he has not produced bill for the said amount. However, the respondents accepted the payment under Ex.B2 to B4 which comes to Rs.2,13,56,721/-. Since the appellant agreed to supply materials, he cannot claim any loading charges and miscellaneous charges and there is no agreement is produced for the same. 17. As per the calculation memo filed before the trial Court on 25.11.2005 by the respondents, they calculated the claim at Rs. 2,31,11,719.12/-. But they restricted the claim to Rs.2,28,23,698.22/- based on Exs.A27, 28, 30 and 41. Therefore, the respondents are entitled to Rs.2,28,23,698.22/- only. Since the appellant paid a sum of Rs.2,13,56,721/- as per Ex.B2 to Ex.B4, the respondents are entitled to Rs. 2,28,23,698.22/- (-) Rs.2,13,56,721/- = Rs.14,66,977.22/- as balance amount towards construction. The respondents also claimed Rs.10,00,000/- towards materials and equipments stored in the site and it was not returned by the appellant. However, the trial Court, found that though there is no material evidence to show that the materials and equipments worth about Rs.10,00,000/- was left in the site, disallowed the portion, but, however, the trial Court awarded a sum of Rs.1,00,000/- for materials. However, the trial Court, found that though there is no material evidence to show that the materials and equipments worth about Rs.10,00,000/- was left in the site, disallowed the portion, but, however, the trial Court awarded a sum of Rs.1,00,000/- for materials. Therefore, the trial Court granted the decree for a sum of Rs.15,66,977.22/- and therefore, there is no merit in the appeal and the appeal is liable to be dismissed. 18. Heard the learned Senior counsel appearing for the appellant, the learned Senior counsel appearing for the respondents, perused the pleadings, issues framed by the trial Court, oral and documentary evidence adduced and produced by both parties. 19. As far as the grounds taken by the learned counsel for the appellant regarding the suit is barred by limitation is concerned, though the learned counsel for the appellant vehemently contended that Ex.A1 agreement is not a construction agreement, it is only for an Architect agreement, but, however the appellant admitted that one Mr.K.Jeyabalan approached them and also entrusted the work for construction. The respondents themselves admitted that all the respondents are sister concern of the firms. Mr.K.Jeyabalan is the partner and managing partner and all the firms are represented by Mr.K.Jeyabalan. The construction entrusted to the respondents are not in dispute. The dispute is only with reference to the materials used for the construction and the payment made by the appellant. Since the limitation is mixed question of fact and law it depends upon the established facts the period of limitation would be decided. In the condent of the parties would clearly shows that this suit is not barred by limitation even though 2nd and 3rd respondents impleaded subsequently after the expiry of three years. 20. It is not the case of the appellant that there is no nexus with K.Jeyabalan and this appellant for construction. Though the issues not framed in this point by the trial Court, the appellant has not filed any application before the trial Court for framing additional issues and also let in evidence and pressing on that point. After impleading the other respondents to the suit, the appellant would thought that the issues are immaterials. Further, in the appeal stage, the appellant taken one of the issue that the suit is barred by limitation. After impleading the other respondents to the suit, the appellant would thought that the issues are immaterials. Further, in the appeal stage, the appellant taken one of the issue that the suit is barred by limitation. However, a reading of the entire materials shows that there is no agreement regarding the construction entered into between the appellant and the respondents and they also admitted that Mr.K.Jeyabalan and one J.Rajasekaran are the father and son and they are partners to the respondents firm and all the respondents firms are sister concern, therefore, the technical plea of limitation is not applicable to the present case on hand, especially, under Section 22 of the Limitation Act not applicable to the present case on hand. 21. As far as the liability is concerned, the appellant stated that there are 136 payments made and according to them they paid Rs.2,39,99,501/- to the respondents more than the amount of Rs.2,15,39,600/- though the appellant need not give any amount to the respondent. But, a reading of the materials would shows that the appellant has not produced any receipt for the payment. Though the appellant filed a calculation statement dated 22.11.2021 enumerating 136 payments, total amount of 2,39,99,501/-, but most of the entries are not supported by any bills. However, the learned Senior counsel appearing for the respondents would submit that the construction value estimated Ex.A10 comes to Rs. 2,15,39,600/- and also he claims that 12% out of 40% of the value of the construction has to be paid towards service tax and thereafter 3% towards sur charges has to be paid. Even though the appellant would submit that there is no claim of tax is stated earlier by the respondents, in their reply statement, stated necessary taxes to be paid. So service tax has to be paid by the respondents for the construction and the same can be recovered from the appellant. So in the absence of pleadings, they cannot claim any amount already there is an excess payment of taxes. However, the prevailing practice in the contract, all the taxes liable to be paid by the respondents towards construction and the tax paid for that also is recoverable from the customers, namely the appellant. 22. So in the absence of pleadings, they cannot claim any amount already there is an excess payment of taxes. However, the prevailing practice in the contract, all the taxes liable to be paid by the respondents towards construction and the tax paid for that also is recoverable from the customers, namely the appellant. 22. Though the learned counsel for the appellant vehemently contended that he paid over and above the amount to the respondents for their work done but admittedly, the appellant has not filed any counter claim or set off before the trial Court. Admittedly, the construction work was started on 04.06.2010 after the agreement was entered between the parties at the estimate of Rs.3,60,00,000/-. Originally the appellant and his wife visited the site and properly supervised the construction and also the parties admitted that the value of the building materials I.e., cement and steel provided by the appellant has to be deducted by the appellant while calculating construction costs at the agreed rate between the parties. From Ex.A28 and Ex.A29 copy of the bills for construction and copy of schedule of rate issued by the respondents respectively show the basic value for the cement is fixed as Rs.250/- per bag and steel as Rs.40/- per unit in the year 2011 as per Ex.A28 and cost of cement is Rs.340/- per bag and Rs.53/- for steel as per Ex.A29 in the year 2013. The appellant has not paid the amount periodically to the respondents as agreed by him for the reason that the bank has not sanctioned the loan amount and therefore, the respondents got difficulty in getting the amount and the appellant also asked various plan, so as to enable him to get bank loan. Further, the appellant also sent a message appreciating the construction and paid the amount and the copy of the same is marked as Ex.A31. But, the appellant has stated that they are not aware of the quality of the construction, the bank officials informed to him that the building is not worth to expenses so for made by him ie., the respondents claimed excess amount and the banker advised the appellant to check the construction. 23. But, the appellant has stated that they are not aware of the quality of the construction, the bank officials informed to him that the building is not worth to expenses so for made by him ie., the respondents claimed excess amount and the banker advised the appellant to check the construction. 23. Though the case of the appellant is that he suffered a lot and therefore, the appellant appointed one licenced Engineer Mr.Muralidharan of Swathi construction to inspect the building and assess the construction along with engineer of the Public Works Department, Tirunelveli and he informed that the construction was not good and cheep materials were used and fixed the value as Rs.1,30,00,000/-. The said report was marked as Ex.B6. The report of the Executive Engineer, PWD was also marked as Ex.B7. 24. Further it is the case of the appellant that the respondents received a sum of Rs.2,38,00,000/-, since the value of the construction is Rs.1,30,00,000/-, the respondents have to return Rs.1,08,00,000/-. As rightly pointed out by the trial Court that the appellant neither filed any counter claim in his written statement claiming the said amount of Rs.1,08,00,000/- nor set off and therefore, the contention of the appellant is that the excess payment made was not acceptable. Further, it is the unilateral appointment of the Engineers and gets the report in the absence of the appellant and admittedly the respondents were not participated in the said inspection. However, as pointed out by the learned Senior Counsel appearing for the appellant that this Court appointed a team of expert and valued the construction as per the report filed by the engineer Mr.Muralidharan and Executive Engineer of PWD, namely, Ex.B6 and Ex.B7 and that are falsified as discussed by the trial Judge. The appellant has not proved over and above the payment made by him. The appellant has not proved that the respondents used substandard materials and even though the respondents claims a sum of Rs.10,00,000/- for materials left in the construction site. However, the learned trial Judge found that the respondents have not proved that they kept the materials worth about Rs.10,00,000/- in the construction site, but awarded a sum of Rs.1,00,000/- for materials. The engineer appointed by the appellant has not stated that no materials was left. However, the learned trial Judge found that the respondents have not proved that they kept the materials worth about Rs.10,00,000/- in the construction site, but awarded a sum of Rs.1,00,000/- for materials. The engineer appointed by the appellant has not stated that no materials was left. Though the respondents claimed total sum of Rs.25,82,705.43/- the trial Court found that the appellant is liable to pay a sum of Rs.15,66,977.22/- with interest at 6% per annum. The allegation regarding using of substandard materials for construction is falsified. Admittedly, the respondents and their men are not participated in the inspection conducted by Mr.Muralidharan and Executive Engineer, Public Works Department, Tirunelveli. The appellant has sent a message to the respondent's son Ramprasad and Mr.Jeyabalan on 06.02.2014 by appreciating the construction of the respondents and therefore, there is no merits in the appeal. 25. The trial Court has given a well founded reasons for arriving at a conclusion that the appellant has to pay a sum of Rs.15,66,977.22/- to the respondents and partly decreed the suit. A reading of the entire materials and the conduct of the appellant, this Court does not found any merit in the appeal. Since this Court as the first appellate Court is a fact finding Court it has to re-appreciate the entire evidence and give an independent findings. 26. A reading of the entire materials and also the judgment of the trial Court, the trial Court has given cogent and sufficient reason while decreeing the suit. Hence, the appeal fails and the same is dismissed. The judgment and decree passed by the trial Court is confirmed. No costs. Consequently, connected miscellaneous petition is closed.