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2025 DIGILAW 1209 (TS)

A. Rama Rao v. Appeal Suit No. 212 of 2019

2025-10-14

RENUKA YARA

body2025
JUDGMENT : RENUKA YARA, J. 1. Heard Smt. Vedula Chitralekha, learned counsel for the appellants and Sri. J. Rajeswar, learned counsel for the respondents. Perused the entire record. 2. This is an appeal preferred by appellants/defendant Nos.1 and 2 aggrieved by the judgment and decree dated 06.12.2018 passed in O.S. No. 1907 of 2010 by the learned VIII Additional Senior Civil Judge, Ranga Reddy District at L.B. Nagar (for short ‘the trial Court’) wherein the suit filed for recovery of an amount of Rs.9,98,150/-, was decreed directing the appellants herein/defendant Nos.1 and 2 to pay a sum of Rs.9,98,150/- with interest at 6% per annum jointly and severally to respondent No.1/plaintiff. 3. The appellants herein are defendant Nos. 1 and 2, respondent No. 1 is the plaintiff and respondent No.2 is defendant No. 3 before the trial Court. The parties are referred to as per their array before the trial Court. The facts of the case in nutshell are as follows: 4. The plaintiff filed the suit for recovery of an amount of Rs.9,98,150/- with 12% interest per annum from defendant Nos.1 to 3 jointly and severally. Defendant No.2 is the absolute owner and possessor of the house bearing No.4-7-90/4/3 situated at Padmavathi Colony, Hayathnagar, Ranga Reddy District. Defendant No.1 is the husband of defendant No.2. Defendant Nos.1 and 2, with an intention to construct a residence, approached the plaintiff and executed agreement on 14.08.2008. The construction area included ground floor (part), first floor and second floor consisting total area of 2150 sft., and ground floor 121 sft. The construction rate was Rs.650/- per sft., from slab to slab. The plaintiff is entitled to payment of additional amount for extra work done at the prevailing rate in the construction agreement and said terms and conditions were accepted. There was delay in payment of the amounts and handing over the site leading to escalation due to increase in labour charges and materials. For the first and ground floor, the construction cost at Rs.650/- per sft., from slab to slab, comes to Rs.14,76,150/-. Due to delay on the part of defendant Nos.1 and 2, the construction work was completed and handed over on 08.08.2009. Inspite of completing the construction, deliberately there is disobedience of the terms and conditions of the agreement and payment is delayed. On various dates, defendant Nos.1 and 2 paid an amount of Rs.7,78,000/-. Due to delay on the part of defendant Nos.1 and 2, the construction work was completed and handed over on 08.08.2009. Inspite of completing the construction, deliberately there is disobedience of the terms and conditions of the agreement and payment is delayed. On various dates, defendant Nos.1 and 2 paid an amount of Rs.7,78,000/-. Whereas, the total construction cost of first and second floor comes to Rs.14,76,150/-, for additional work Rs.3,00,000/-. The total amount payable to the plaintiff is Rs.17,76,150/-, out of the said amount, defendant Nos.1 and 2 have already paid Rs.7,78,000/- and the due amount is Rs.9,98,150/-. When there was no response from defendant Nos.1 and 2, the plaintiff got issued a legal notice dated 19.05.2010 demanding payment. The reply notice was issued by defendant Nos.1 and 2 seeking amicable settlement. Defendant No.3 acted as mediator and defendant Nos.1 and 2 agreed to pay the amount. Even after a number of sittings, defendant Nos.1 and 2 failed to settle the matter. Therefore, the suit was filed when defendant Nos.1 and 2 threatened the plaintiff without paying the due amount of Rs.9,98,150/-. 5. It is the case that defendant Nos.1 and 2 that they and the plaintiff were in a construction agreement to construct total area of 2150 sft., of civil work at the rate of Rs.650/- per sft., from slab to slab. There was delay in delivery of the work and that both the parties are making allegations against each other. According to defendant Nos.1 and 2, the plaintiff is not a qualified contractor, amounts paid through all means were not shown and excess payment of Rs.3,00,000/- is made and to avoid the same, the present suit is filed. 6. Defendant No.3 did not choose to file written statement to contest the suit and remained ex parte before the trial Court. 7. Based on the aforementioned pleadings, the trial Court framed the following issues: 1) Whether defendant Nos.1 to 3 are liable to pay Rs.9,98,150/- to the plaintiff as prayed for in the plaint? 2) To what relief? 8. In support of their respective cases, the plaintiff got examined P.Ws.1 and 2 and got marked Exs.A.1 to A.24. Defendant No.1 is examined as D.W.1 and got marked Exs.B.1 to B.51. Upon examining the case of both the parties, the trial Court decreed the suit. Aggrieved by the same, the present appeal is preferred. Grounds of the appeal: 9. 8. In support of their respective cases, the plaintiff got examined P.Ws.1 and 2 and got marked Exs.A.1 to A.24. Defendant No.1 is examined as D.W.1 and got marked Exs.B.1 to B.51. Upon examining the case of both the parties, the trial Court decreed the suit. Aggrieved by the same, the present appeal is preferred. Grounds of the appeal: 9. The defendant Nos.1 and 2 pleaded that the issues framed are not proper and that proper opportunity for cross examination of plaintiff’s witnesses was not given and that there was no contest and no adjudication. The trial Court failed to consider the cost of construction which includes cost of brick walls, plastering, flooring, doors, windows, water pipe line over head tank, electricity, WC bath etc., and there is no measurement book maintained by the plaintiff to ascertain the actual work done. The plot area, plinth area or any proposed construction area are not mentioned with specifications and therefore, there is a failure on the part of the plaintiff to establish his suit claim. The material used was not as per the specifications annexed to the agreement. Most of the exhibits are not vouchers/bills but quotations. Quotations and vouchers/bills do not pertain to the material used in the building factually. The plaintiff had left the work abruptly and kept silent without completing the building and on completion of work by the owners, the plaintiff filed the present suit for recovery. Some of the bills show that the purchase of materials is subsequent to house warming ceremony. It is pleaded that the impugned judgment and decree dated 06.12.2018 is not contested and needs to be reconsidered. The construction agreement is not filed for consideration and the signatures of the defendants is got marked on confrontation and the said conduct amounts to admission of agreement as it stands. On the basis of aforementioned grounds, it is prayed that the impugned judgment and decree dated 06.12.2018 be set aside. 10. Defendant Nos.1 and 2 opposed the suit claim questioning the competence of the plaintiff to enter into any contract as he does not have a solvency certificate. The plaintiff tries to get construction work only through the recommendations and payment of commissions to the people who entrust the construction work. 10. Defendant Nos.1 and 2 opposed the suit claim questioning the competence of the plaintiff to enter into any contract as he does not have a solvency certificate. The plaintiff tries to get construction work only through the recommendations and payment of commissions to the people who entrust the construction work. Further, defendant No.2 is not the absolute owner and possessor of house bearing No.4-7-90/4/3 situated at Padmavathi Colony, Hayathnagar, Ranga Reddy District, as she already executed will deed in favour of her son by name A. Abhinay. Since defendant No.1 is the manager of the family, the construction agreement was made between defendant No.1 and the plaintiff. There was no additional work and the said allegation is made as an afterthought. There was no delay in handing over and the site construction was started immediately after oral agreement dated 14.08.2008 on receiving Rs.50,000/- on 21.08.2008. The first floor and second floor are admitted to be constructed at Rs.650/- per sft., from slab to slab but there is no mention about the ground floor in the agreement. There was delay in handing over the constructed building when the construction ought to have been completed within four (04) months of the agreement dated 14.08.2008. The building was actually handed over after one (01) year, due to such delay, the appellants suffered much loss and injury. The alleged expansion of the ground floor is an afterthought of respondent No.1 but the said work was not completed by respondent No.1 even after receiving Rs.4,00,000/- apart from the agreed amount. The appellants have paid a total amount of Rs.18,25,997/- and to avoid the payments made earlier, a false claim is made. Respondent No.1 admitted payments of Rs.7,78,000/- but suppressed the payments made through diary vide receipts bearing page Nos.1, 3, 5, 8, 10, 12, 15, 17 and 18 amounting to Rs.6,98,000/- and other payments made through receipts bearing page Nos. 1 to 34 amounting to Rs.3,25,997/- and plot Nos.51 and 54 in the said residential zone comprising total area of 400 sq.yds., or equivalent to 334.4 sq.mts., as per plan, situated at Sarvali village and gram panchayat, Narayanpet Mandal, Nalgonda district, at a value of Rs.24,000/- and that the claim of Rs.9,98,150/- by the plaintiff is beyond the truth. In fact, the plaintiff has to pay Rs.4,00,000/- to the appellants. In fact, the plaintiff has to pay Rs.4,00,000/- to the appellants. Respondent No.1 violated the terms and conditions of the agreement dated 14.08.2008 and therefore, the agreement stood cancelled automatically. It is the plaintiff who approached the appellants through well-wisher namely M.R.G. Naidu and received Rs.20,000/- on a consent letter dated 12.03.2010 to withdraw all the cases against the appellants and the said fact is suppressed. Contentions of defendant Nos.1 and 2 (appellants): 11. Learned counsel for the defendant Nos.1 and 2 argued that there is complete failure on the part of the plaintiff in proving the suit claim. There is no evidence before the trial Court to prove the construction work done with a measurement book. Without measurement book, it is not possible to establish the amount of work done by respondent No.1. There is no evidence about there being any agreement to make construction in the ground floor to an extent of 121 sft., and without any evidence, respondent No.1 is claiming the construction cost for the ground floor. It is argued that though respondent No.1 failed to prove the suit amount, the trial Court committed an error by decreeing the suit. It is further argued that respondent No.1 abandoned the work half way and the appellants had to engage another contractor’s services to complete the work and thereby, the appellants have suffered huge losses. It is urged that the plaintiff approached the Court with unclean hands and that there are no merits in the suit. Therefore, the impugned decree be set sided. Contentions of the plaintiff (respondent No.1): 12. Learned counsel for the plaintiff argued that on the basis of construction agreement dated 14.08.2008, the plaintiff had taken upon the work but there was a delay in completing the construction on account of delayed payments by defendant Nos.1 and 2, delay in handing over the site and escalation of price of construction due to increase in rates of materials and the labour. It is argued that sufficient oral and documentary evidence was adduced before the trial Court and therefore, the suit was decreed. Learned counsel for the plaintiff denied abandoning the construction work midway causing difficulty to defendant Nos.1 and 2 in getting construction work completed. Further, there is emphasis about the extension work done or additional work done in the ground floor. In view of the rival contentions, the following is the point for consideration: 13. Learned counsel for the plaintiff denied abandoning the construction work midway causing difficulty to defendant Nos.1 and 2 in getting construction work completed. Further, there is emphasis about the extension work done or additional work done in the ground floor. In view of the rival contentions, the following is the point for consideration: 13. Whether there are just and reasonable grounds to set aside the impugned judgment and decree dated 06.12.2018 passed in O.S. No. 1907 of 2010 by the learned VIII Additional Senior Civil Judge, Ranga Reddy District at L.B. Nagar, as erroneous in facts and law? Findings of the Court: 14. A perusal of the documentary evidence shows that the plaintiff has relied upon Exs.A.12 to A.24 which are receipts of material purchased, labour payments in addition to a photograph of building invitation card i.e., house warming invitation and correspondence between the parties under Exs.A.1 to A.7. 15. Coming to the documents of the defendant Nos.1 and 2, Ex.B.1 is the consent letter, Exs.B.2 to B.17 are payments of amounts by defendant No.1 to the plaintiff on various occasions. Exs.B.18 to B.51 are receipts of payments made to various people for the construction materials. The statement of payments made by defendant Nos.1 and 2 is at paragraph No.7 of the plaint and said statement corresponds with the payments marked by defendant Nos.1 and 2 under Exs.B.2 to B.17. 16. In this case, the plaintiff has admitted the amounts received by him and claimed the rest based on the calculation at Rs.650/- sft., from slab to slab. The transaction between the parties is not in dispute. The execution of work by the plaintiff to begin with is not in dispute. The dispute is confined to the extent of delay in completing the construction and failure to pay the due amounts. The reason cited by the plaintiff for delay in construction is due to delay in the payments made by defendant Nos.1 and 2. While so, the defendant Nos.1 and 2 are denying the suit claim under the pretext of delay in completion of the work which was from three (03) to four (04) months from the date of agreement. 17. The date of agreement is 14.08.2008 and that the construction was to be completed by 14.12.2008 approximately. The said agreement also shows the following payments schedule: i. Advance of Rs.50,000/- on beginning of work. ii. 17. The date of agreement is 14.08.2008 and that the construction was to be completed by 14.12.2008 approximately. The said agreement also shows the following payments schedule: i. Advance of Rs.50,000/- on beginning of work. ii. Completion of footings, plinth beams and basement with mud filling and columns rising 9’0” height sum of Rs.2,00,000/-. iii. Completion of RCC slabs sum of Rs.5,00,000/-. iv. At the time of brick work and plastering sum Rs.3,00,000/-. v. At the time of flooring, electrical, plumbing fittings sum Rs.3,00,000/-. vi. Balance remaining at the time of completion of the total building and handing over time. 18. The above payments schedule shows that payment of total amount of Rs.18,25,997/- was to be made by the time of handing over of the completed building which is within three (03) to four (04) months approximately by 14.12.2008. While so, the documents marked under Exs.B.1 to B.51 by the appellants themselves show that under Exs.B.2 to B.17 the payments were made up to the month of July, 2009. As per plaint, another amount of Rs.10,000/- was paid on 01.08.2009 and Rs.20,000 was paid on 12.03.2010. The total amounts paid to the plaintiff as per the documents filed by defendant Nos.1 and 2 themselves is Rs.7,78,000/-. When there is admission by defendant No.1 as D.W.1 entering into construction agreement for construction of building at Rs.650/- sft., from slab to slab and when there is admission of payments of only Rs.7,78,000/- as per the documentary evidence filed, defendant Nos.1 and 2 cannot deny liability to pay the balance amount. The defendant Nos.1 and 2 are trying to avoid payments by claiming to have made advance payments for which there is no proof. When the defendant Nos.1 and 2 were cautious enough to take receipts of payments made to the plaintiff by obtaining his signatures, it does not stand to reason that no receipt was taken for the advance amount of Rs.4,00,000/- paid. The trial Court relied upon the admission of D.W.1 in his cross examination wherein he admitted that the total plaint area of the constructed building is 2271 sft., which is agreed to be constructed only in the first and second floor. In view of the admissions, the trial Court held that defendant No.3 is not a party to the transaction and that the defendant Nos.1 and 2 are liable for the payment of balance amount of Rs.9,98,150/-. 19. In view of the admissions, the trial Court held that defendant No.3 is not a party to the transaction and that the defendant Nos.1 and 2 are liable for the payment of balance amount of Rs.9,98,150/-. 19. The second ground raised by defendant Nos.1 and 2 is that the plaintiff abandoned the work and the work was completed by engaging another contractor. This stand which is taken belatedly at the time of arguments is not supported by the pleadings as well as evidence adduced before the trial Court. Once there is no pleading, any amount of evidence adduced in support of new ground, cannot be taken into consideration. When there is no plea about the plaintiff abandoning the work and the work being entrusted to a second contractor by incurring huge expenses, such a defence cannot be countenanced. 20. The last ground cited for denying the liability is that defendant Nos.1 and 2 were purchasing the construction materials and that the role of the plaintiff is confined to that of a supervisor monitoring the construction work. This plea also is not taken in the written statement. There is absolutely no pleading in the written statement which states that the plaintiff is expected to take up only role of a supervisor while the entire construction material is procured by defendant Nos.1 and 2. The agreement dated 14.08.2008 also does not give any indication about purchase of the construction materials by defendant Nos.1 and 2. In fact, the construction agreement dated 14.08.2008 at Note-I shows that the total material and labour charges are liable to be borne by the contractor i.e., the plaintiff. As per Section 92 of the Indian EVIDENCE ACT , 1872, defendant Nos.1 and 2 cannot take a stand which is contrary to the terms of the contract as the oral evidence to contradictor to modify or to negate the terms of written agreement, is not permissible. In the instant case, the contention of defendant No.1 that he purchased the construction materials is in total contradiction to Note-I under the agreement dated 14.08.2008 and therefore, cannot be considered. 21. The admissions of defendant No.1 as D.W.1 and documentary evidence in both ‘A’ and ‘B’ series are crucial to examine the suit claim. In the instant case, the contention of defendant No.1 that he purchased the construction materials is in total contradiction to Note-I under the agreement dated 14.08.2008 and therefore, cannot be considered. 21. The admissions of defendant No.1 as D.W.1 and documentary evidence in both ‘A’ and ‘B’ series are crucial to examine the suit claim. The amounts for supervisory work of the plaintiff is to be decided at the time of handing over the construction is a false claim which is not supported by pleadings or the documentary evidence. The documentary evidence, more particularly contents in Ex.A.24/the construction agreement dated 14.08.2008 clearly shows that the complete responsibility for constructing the building, along with the purchase of materials, was entrusted to the plaintiff. The payment is to be made as per the schedule in the construction agreement dated 14.08.2008 but not done so. The appellants/defendant Nos.1 and 2 have made the payments in a piece meal manner and not in bulk as per the schedule mentioned in the construction agreement dated 14.08.2008 under Ex.A.24. The trial Court relied upon the admissions of P.Ws.1 and 2 and D.W.1 about the construction to be done at Rs.650/- sft., from slab to slab, completion of the said construction and the payments made for Rs.7,78,000/- and proceeded to decree the suit. This Court does not see any infirmity in the reasoning given by the trial Court. While decreeing the suit, the trial Court also relied upon the oral evidence of P.W.2 who was a relative of both the parties, wherein, it is stated that P.W.2 was called upon when there was stand off between the parties on the issue of payments. P.W.2 categorically deposed that defendant Nos.1 and 2 are due to pay sums related to the construction work and defendant Nos.1 and 2 did not have money to pay the same. Since defendant No.1 is unable to pay the money, an amount of Rs.20,000/- was paid temporarily on 12.03.2010 under Ex.B.1/consent letter through P.W.2/defendant No.3. The evidence of P.W.2 shows that defendant Nos.1 and 2 did not pay the amounts as per the schedule in construction agreement dated 14.08.2008. The violation of payment schedule of construction agreement dated 14.08.2008 is also evident from the documentary evidence in Exs.B.2 to B.17, which reflect the payments made beyond the agreement schedule. 22. The evidence of P.W.2 shows that defendant Nos.1 and 2 did not pay the amounts as per the schedule in construction agreement dated 14.08.2008. The violation of payment schedule of construction agreement dated 14.08.2008 is also evident from the documentary evidence in Exs.B.2 to B.17, which reflect the payments made beyond the agreement schedule. 22. Lastly, there is admission about the plaintiff handing over the constructed building with a delay of one (01) year and delay is attributable only to defendant Nos.1 and 2 but not to the plaintiff. The pleading of the written statement of defendant Nos.1 and 2 is crucial in denying the false claim about engaging a second contractor to complete the construction. The said admission is extracted and produced below: Respondent No.1/plaintiff handed over the constructed building nearly one year i.e., 14.08.2008 to 08.08.2009. The appellants/defendant Nos.1 and 2 suffered much loss and injury more than respondent No.1/plaintiff as the genuine receipts before the Court clarify i.e., before 08.08.2009 (verbatim reproduced) 23. When the plaintiff handed over the constructed building, the question of plaintiff abandoning the building midway through construction and that defendant Nos.1 and 2 engaging another contractor to complete the construction of the building, does not arise. 24. In view of the same, when the total cost of construction is Rs.14,76,150/- and the construction of extra work is Rs.3,00,000/- after deducting Rs.7,78,000/- which is evident under the receipts from Exs.B.2 to B.17, the appellants/defendant Nos.1 and 2 are due to pay the suit amount with interest. Therefore, this Court does not see any reason to interfere with impugned judgment and decree dated 06.12.2018 passed by the trial Court. 25. Accordingly, the Appeal Suit is dismissed confirming the impugned judgment and decree dated 06.12.2018 passed in O.S. No. 1907 of 2010 by the learned VIII Additional Senior Civil Judge, Ranga Reddy District at L.B. Nagar. There shall be no order as to costs. Miscellaneous applications, if any, pending shall stand closed.