M/S Jayashri Vs M/S Perfect

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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 15.07.2021

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CORAM

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THE HONOURABLE Ms. JUSTICE P.T. ASHA

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S.A.No.625 of 2008

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 M/s.Jayashri Constructions.

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 rep. by its Power of Attorney,
 K.Vijayakumar,
 117-B, Kovalan Street,
 Teacher's Colony, Erode-11. ... Appellant/Plaintiff

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Vs.

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1.M/s. Perfect Engineering
 Associates Pvt. Ltd.,

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 (Hydrali Engineer) rep. by
 its Power Agent,
 Gautham M.Shah, Mahar House,
 15, Cawasji Patel Street,
 Fort, Mumbai.

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2. M/s.Shah Technical Consultants Pvt. Ltd.,
 rep. by its Director Gautham M.Shah,

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 No., IInd Cross Street,

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 West CIT Nagar, Chennai-35. ... Respondents/Defendants

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PRAYER: Second Appeal filed under section 100 of the Civil
Procedure Code against the judgement and decree of the learned
Principal District Judge of Erode District at Erode in
A.S.No.62/2006 dated 12.03.2007 reversing the judgment and
decree of the learned I Additional Subordinate Judge, Erode in
O.S.No.116/2004 dated 18.11.2005.

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For Appellant : Mr. S.Kaithamalai Kumaran

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For Respondents : Mr. Arun Kumar

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JUDGEMENT

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The plaintiff is the appellant before this Court. The
Second Appeal is filed challenging the judgment and decree in
A.S.No.62 of 2006 of the learned Principal District Judge,
Erode, in and by which, the learned Judge has reversed the
judgment and decree of the learned I Additional Subordinate
Judge, Erode, in O.S.No.116 of 2004. The parties are referred to
in the same litigative status as before the trial Court.

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2. The brief facts which culminated in filing of the above
Second Appeal are as follows:

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The plaintiff had filed the above suit seeking recovery of a
sum of Rs.4,63,534.50 with interest at the rate of 12% p.a. on
the principal sum of Rs.3,45,749.50. The said amount was due for
the work undertaken by the plaintiff as a sub contractor for the
defendants. The defendants herein who are the registered
contractors of the TWAD Board, had entered into a contract with
the plaintiff on 12.03.2001, whereunder the defendants had
entrusted the plaintiff with the sub contract for the work
awarded to them by the TWAD Board to construct CWSS
(Construction of Collection Well-cum-Pump house). The plaintiff
would submit that as per the terms of agreement, the work was to
commence on 12.03.2001 and be completed by 31.09.2001. The
defendants had undertaken to pay the dues in four installments
and each installment was to be restricted to the value of the
work carried out by the plaintiff.

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3. The plaintiff would submit that they had started the
construction work on 12.03.2001 as agreed. However, all of a
sudden, on 27.04.2001, the Project Directors had instructed them
to stop work. The plaintiff, on the very same day, i.e. on
27.04.2001, issued a letter to the second defendant listing out
the actual work that they had completed and the expenditure
incurred therein and called upon the defendants to make the
payment. The plaintiff would submit that despite several
demands, the payment did not come forth, though the defendants
agreed to pay the expenditure incurred by the plaintiff. The
plaintiff was therefore constrained to issue a legal notice on
18.01.2002, calling upon the defendants to pay a sum of
Rs.3,45,749.50 with 18% interest. The defendants who received
the said notice, had not bothered to repay the same. The
plaintiff also came to learn that the defendants had received
the earnest money deposit from the TWAD Board. Therefore, left
with no other alternative, they have come forward with the above
suit.

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4. The defendants had filed a written statement inter alia
contending that payments could be made to the defendants only
if the work is approved by the TWAD Board and the payment is
sanctioned to the defendants. They would quote the terms of the
agreement in this regard. It was also the duty of the plaintiff
to obtain such certification from the Board. The defendants
would further submit that the letter of expenses was not in
accordance with the rates earlier agreed upon between the
plaintiff and the defendants and there was no clarity on how the
plaintiff had arrived at the said figure. The defendants would
further submit that on the basis of the rates as agreed and the
quantity that the plaintiff claimed to have done only a sum of
Rs.1,91,291/- was due. Even this amount would become payable

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only when the quantity measurement is recorded and confirmed by
the TWAD Engineer as stipulated in the work order / agreement
under the head 'running bills'. Therefore, they sought for
dismissal of the suit.

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5. Before the trial court, the plaintiff had examined three
witnesses on the their side and marked exhibits A1 to A21 in
support of their case. On the side of the defendants, one
witness was examined and Exhibits B1 to B7 were marked.

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6. The trial Court, on a consideration of the oral and
documentary evidence, proceeded to decree the suit as prayed
for. Challenging the same, the defendants had filed A.S.No.62 of
2006 on the file of the Principal District Court, Erode. The
learned District Judge reversed the judgment and decree of the
trial Court primarily on the finding that as per the terms of
the agreement entered into between the parties, which has been
marked as Ex.A4, payments that were due to the plaintiff was to
be paid only after the inspection and certification by the TWAD
authorities. The learned Judge had also proceeded to observe
that the Site Engineer of the plaintiff who was examined as PW2,
had deposed that the work mentioned in Ex.A18, i.e., the
measurement book, was not covered in the work agreement. The
learned Judge also observed that there was an impossibility of
performance and therefore, the plaintiff was not entitled to the
decree. Challenging the same, the plaintiff is before this
Court.

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7. The Second Appeal was admitted on the following
Substantial Questions of Law:

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(a) Is the Lower Appellate Court
justified in dismissing the entire suit
especially when the defendants/respondents
admits the liability to the tune of
Rs.1,91,291/-?

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(b) When admittedly the appellant had no
privity of contract with TWAD Board, is the
Lower Appellate Court justified in holding
that as the appellant did not get an
approval of the work done from the TWAD
Board, the suit to recover the amount for
the work done is not maintainable?

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8. Mr.Kaithamalai Kumaran, learned counsel appearing on
behalf of the plaintiff would submit that despite the fact that
the defendants had admitted their liability to the tune of a sum
of Rs.1,91,291/-, the Appellate Court had proceeded to dismiss
the suit in its entirety. He would further argue that the
Appellate Court has failed to appreciate Ex.A18 which is a
measurement book, has been certified by the Engineer belonging
to the TWAD Board. This certification would be sufficient to

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constitute the certification as contemplated in the agreement
entered into between the plaintiff and the defendants. He would
further submit that the learned District Judge has not
considered the documents and evidence from its correct
perspective. The Appellate Court has also made special pleadings
like impossibility of performance which was not pleaded by the
defendants. Therefore, the judgment requires to be reconsidered
and set aside.

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9. Per contra, Mr.Arun Kumar, learned counsel appearing
on behalf of the respondents would submit that the appellate
Court has rightly construed and understood the terms of the
agreement entered into between the parties and considering the
fact that the claim was not keeping in with the agreed terms,
the learned District Judge had rightly set aside the judgment
and decree of the trial Court and there was no necessity to
revisit the said judgment and decree.

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10. Heard the learned counsel and perused the records.

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11. The Appellate Court has reversed the judgment and decree
of the trial Court primarily on the contention that there has
not been any certification of the works done by the plaintiff as
provided in the agreement Ex.A4. However, a perusal of Ex.A18,
would clearly show that each day's work has been checked,
verified and certified by the Engineer of the TWAD Board. This
clearly satisfies the criteria of certification provided under
Ex.A4 agreement. The quantity of work done by the plaintiff can
also be assessed from mere perusal of these documents. That
apart, the appellate Court had observed that the plaintiff had
exceeded the scope of work provided under Annexure 1A. Once
again, when the work done as certified in Ex.A18, is compared
with the work contemplated under Annexure 1A, it is clear that
the plaintiff has only followed the schedule provided to them
under Annexure 1A of the agreement. The learned Judge has not
explained as to why he has not even taken note of the admitted
liability of the defendants. The defendants have also received
back the Earnest Money deposited by them with the TWAD Board,
despite which they have not sought to compensate the plaintiff
who is but a sub broker. The trial Court has considered each and
every evidence in arriving at its judgment. The appellate Court
has not adverted to the admissions of DW1, while considering the
evidence and documents. There is no dispute that the plaintiff
has executed the work on behalf of the appellant. The only
ground on which the defendants justified the non-payment to the
plaintiff is on the ground that the work has not been certified
by the TWAD Board. A perusal of the Ex.A18 falsifies this claim.

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12. In view of the above, the questions of law are answered
in favour of the plaintiff. Accordingly, the Second Appeal is
allowed and the judgment and decree of the learned Principal

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District Court, Erode, in A.S.No.62 of 2006 is set aside and the
judgment and decree of the learned Additional Subordinate
Court, Erode in O.S.No.16 of 2004, is hereby confirmed. No
order as to costs.

SD/-

ASSISTANT REGISTRAR

// TRUE COPY //

SUB ASSISTANT REGISTRAR

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kal

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To,

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1.The Principal District Court, Erode.

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2.The I First Additional Subordinate Court, Erode.

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+1cc to M/s.Sampath Kumar & Associates, Advocate Sr.33718
+1cc to M/s.S.Kaithamalai Kumaran, Advocate Sr.33616

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S.A.No.625 of 2008

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rsi[co]
srg 26/11/2021

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https://hcservices.ecourts.gov.in/hcservices/

M/S Jayashri v. M/S Perfect

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M/S Jayashri v. M/S Perfect

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