Partly allowed

M/S.Vasthusilpa Building Consultants v. M.T. John

Kerala HC22 May 2017AS/546/2001

Case brief

AI extract

What is this about?

The Court allowed the appeal in part, correcting the lower court's calculation of the decree amount. The Court held the contractor was entitled to Rs. 29,803 instead of Rs. 23,452 plus 12% interest, adjusting for unused materials and expert valuation.

What did the court decide?

Decree for realization of Rs. 29,803/ including unused materials plus interest at 12% p.a. from date of suit.

M/S.Vasthusilpa Building Consultants Vs M.T. John — Specific Performance | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN

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MONDAY, THE 22ND DAY OF MAY 2017/1ST JYAISHTA, 1939

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AS.No. 546 of 2001 (B)

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AGAINST THE JUDGMENT AND DECREE IN OS.70/1998 of SUB COURT, THIRUVALLA DATED 31.03.2001

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APPELLANT/PLAINTIFF:

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M/S. VASTHUSILPA BUILDING CONSULTANTS AND CONTRACTORS, REPRESENTED BY ITS PROPRIETOR JACOB MATHAI @ SUNNY, KANNOLIL HOUSE, ERAVIPEROOR MURI AND VILLAGE.

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BY ADVS.SRI.CHERIAN GEE VARGHESE SRI.P.HARIDAS

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RESPONDENT/DEFENDANT:

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M.T.JOHN, MALAYATHU HOUSE, THADIYOOR P.O, THIRUVALLA.

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BY ADV. SRI.V.G.ARUN BY ADV. SRI.T.R.HARIKUMAR

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THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 07-04-2017, THE COURT ON 22.05.2017 DELIVERED THE FOLLOWING:

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V.Chitambaresh & Sathish Ninan, JJ. ============================== A.S No.546 of 2001

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========================== Dated this the 22^nd day of May, 2017

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JUDGMENT

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Sathish Ninan, J

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The decree passed in a suit for money under a construction agreement is under challenge by way of Appeal and Cross Objection by the plaintiff and the defendant respectively.

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Ext.A5 agreement dated 01.05.1995 was entered into between the plaintiff and defendant for construction of a building. The plaintiff is the contractor and the defendant is the owner. The suit is filed for realisation of 1,21,000/-. The court below after considering the materials and the pleadings, decreed the suit for 23,452/-.

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Heard the learned counsel on both sides.

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The agreement for construction (Ext.A5) gives the details regarding the construction and the stages at which the payments are to be made. The total estimate

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of construction was approximately `5,82,500/-. The

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A.S No.546/2001

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time fixed for completion was 30.07.1996. The construction was not completed. The claim of the plaintiff is that the amounts payable to him in terms of Ext.A5 was not paid. The defendant on the other hand would contend that the payments were made promptly and that the plaintiff abandoned the work without completing it.

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The agreement provides the schedule for payment with reference to the stage of construction. It is the case of the plaintiff that the amounts were not paid in terms of the schedule fixed in Ext.A5, that consequent to the delay in payment the materials could not be collected in time, which resulted in escalation of the price of materials. The details regarding the payments made have been endorsed on the agreement. The date of completion of each stage is not evident therefrom. The payment is to be made stage wise. Without sufficient material it could not be found that there was delay/default in payment. The date of completion

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A.S No.546/2001

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of each stage is not available. There is no material to find as to at which stage of the work the payment was delayed. Therefore, the finding of the court below that there is no evidence to conclude that the defendant has violated the terms of the agreement by not making payments in terms of the schedule fixed in Ext.A5, is liable to be upheld.

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The cost of construction fixed in Ext.A5 was only an

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approximate estimate. It was subject to variation depending on the escalation on cost of materials. When the plaintiff failed to complete the construction, the

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defendant had approached the Consumer Disputes Redressal Forum with a complaint against the plaintiff. Therein a Commissioner was deputed, who

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filed a report with the assistance of an expert. The reports are marked as Exts.A1 to A3. The Commissioner and the expert are examined as PW1 and PW2. As per Exts.A1 to A3 the total cost of construction effected by the plaintiff is `5,72,050/-. The Commissioner has

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A.S No.546/2001

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taken into account an average escalation of price at the rate of 9.96%. The plaintiff challenges Exts.A1 to A3 contending that the escalation of price is to be calculated at 49% since there was a huge hike in the price of the materials. Apart from the oral evidence, there is no material to find regarding the hike in price as claimed by the plaintiff. No bills or invoices for any purchase at higher rates are produced by the plaintiff to evidence that he had to procure materials at a higher price. In the absence of any material, only on oral evidence it could not be held that there has been rise in price of materials at 49%. There is no material to find that the escalation at 9.96% given in Exts.A1 to A3 is not proper. Ext.A3 is the computation made by adding escalation at 9.96%. It has been found that the cost of the total work done on giving escalation, is `5,72,050/-. The court below has taken the said amount to be the total amount payable by the defendant to the plaintiff. The court below has

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A.S No.546/2001

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held that the said amount includes the value of the unused materials. However, a perusal of Ext.A3 statement reveals that the said amount does not include the value of the unused materials. The said finding of the court below is erroneous. In Ext.A1 the Commissioner has reported that the value of the unused materials is 6,351/-. The said amount is also to be added to the amount of 5,72,050/- which makes 5,78,401/- as the total amount payable to the plaintiff. As it seen from the endorsements in Ext.A5 agreement, the total amount paid by the defendant to the plaintiff is 5,48,598/-. Therefore, the balance amount due to the plaintiff from the defendant is Rs.29,803/- and not `23,452/-. Though the defendant, in cross objection challenges the quantum of the total cost of the construction effected by the plaintiff, we find no reason to discard Exts.A1 to A3 regarding the same. Hence the cross objection is without merit.

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In the circumstances, the appeal is allowed in part.

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A.S No.546/2001

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The plaintiff is granted a decree for realisation of Rs.29,803/- with interest at 12% per annum from the date of suit till realisation. The plaintiff will be entitled to proportionate cost also. Cross Objection

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stands dismissed.

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Sd/-

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V.Chitambaresh, Judge

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Sd/- Sathish Ninan, Judge

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vdv

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//True Copy//

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P.A to Judge

M/S.Vasthusilpa Building Consultants v. M.T. John

Case brief

What is this about?

What did the court decide?

M/S.Vasthusilpa Building Consultants v. M.T. John

Case brief

What is this about?

What did the court decide?

What the court decided

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