Dismissed

J.R.Swarnkar v. Nathani Prasad and Another

Chhattisgarh HC4 Dec 2019SA/456/2005

Case brief

AI extract

What is this about?

In this second appeal under Section 100 CPC, the Chhattisgarh High Court dismissed the appellant/plaintiff's challenge against a trial court and first appellate court decree. The lower courts ruled defendants were entitled to recover excess payment based on a Commissioner's report. The High Court held the finding of fact was not perverse.

What did the court decide?

Second appeal dismissed; substantial questions of law answered in favour of defendants/against plaintiff; parties to bear own costs.

J.R.Swarnkar Vs Nathani Prasad and… — Contract and Commercial Disputes | Chhattisgarh HC (2019)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Second Appeal No.456 of 2005

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J.R. Swarnkar, S/o. Shri Sewak Ram Swarnkar, Aged
about 58 years, R/o. Sindhiya Nagar, Durg (CG)

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---- Appellant/Plaintiff

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Versus

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Nathani Prasad, S/o. Shri Devsharan Shah, Aged about 55 years, R/o. Mekan India Limited Rauklela (Orissa) Present Address-471 Sindhiya Nagar (Laxmi Sadan), Durg (CG)

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Akhilesh Kumar Sahu @ Gupta, Aged about 40 years, R/o.471 Laxmi Sadan, Sindhiya Nagar, Durg (CG) ---- Respondents/Defendants

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For Appellant/Plaintiff: Mr.Arvind Dubey, Advocate
For Respondents/defendants : None present

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Hon'ble Shri Justice Sanjay K. Agrawal

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Judgment On Board

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04/12/2019

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This plaintiff's second appeal under Section 100 of

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the CPC was admitted for hearing by formulating the
following substantial questions of law:-

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“1. Whether the Courts below erred in law
in accepting the Commissioner's report
dated4.11.95whenadmittedlythe
Commissioner performed the measurement in
absence of the plaintiff ?

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2. Whether the said report vitiates on the
said ground alone and it cannot be made
basis of the decree particularly in view of
the provisions of Order 26 Rule 18
C.P.C. ?”

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(For the sake of convenience, parties
hereinafter will be referred as per their
status shown and ranking given in the plaint
before the trial Court.)

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The plaintiff is contractor. He entered into agreement for construction of house of the defendants. According to the plaintiff, he has completed the construction work and ₹ 34,616/- is outstanding against the defendants, which he is entitled along with interest and as such, he filed a suit for recovery of ₹ 34,616/-.

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The defendants filed their joint written statement and denied the averments made in the plaint stating inter-alia that additional amount of ₹ 4000/- has already paid to the plaintiff, therefore, he is entitled for recovery of the same by way of counter-claim.

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The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 25.2.2003, dismissed the suit and allowed the counter-claim of the defendants on the basis of report of the Commissioner to the tune of ₹ 3,938/-. On appeal being preferred by the plaintiff, the first appellate Court dismissed the appeal and upheld the judgment and decree of the trial Court, against which, this second appeal under Section 100 of the CPC has been preferred by the appellant/plaintiff, in which substantial questions of law have been formulated which have been set-out in the opening paragraph of this judgment.

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Mr.Arvind Dubey, learned counsel for the appellant/plaintiff, would submit that concurrent finding recorded by two Courts below dismissing the suit and granting counter-claim is perverse and contrary to record.

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None present for the respondents/defendants.

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I have heard learned counsel for the

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appellant/plaintiff and considered his submissions
made hereinabove and went through the record with
utmost circumspection.

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Both the Courts below relying upon report of Commissioner Shobha Ram Tamrarkar (PW-1) has clearly reached to the conclusion that the plaintiff has completed the construction work of ₹ 2,96,462/-, whereas he has been paid ₹ 3,00,400/-, as such, he has been paid excess amount of ₹ 3938/-, which the defendants are entitled to recover from him. Both the Courts below have recording a finding that the defendants have already paid ₹ 3,00,400/to the plaintiff for construction of house, whereas he has been completed the construction work of ₹ 2,96,462/- and thereby he has been paid excess amount of ₹ 3938/-, which the defendants are entitled to recover from him, as such, the said finding is finding of fact based on evidence available on record, which is neither perverse nor

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contrary to record.

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The argument that the Commissioner has taken measurement in absence of the appellant is not correct and is not admitted position on record. He has only said that he has not given written notice.

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Accordingly, the second appeal being without substance is liable to be and is hereby dismissed leaving the parties to bear their own cost(s). The substantial questions of law are answered in favour of the defendants and against the plaintiff.

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A decree be drawn-up accordingly.

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Sd/-

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(Sanjay K. Agrawal)
 Judge

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B/-

J.R.Swarnkar v. Nathani Prasad and Another

Case brief

What is this about?

What did the court decide?

J.R.Swarnkar v. Nathani Prasad and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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