J M KUMAR Vs. SURESH JAIN

JUDGEMENT

(1.) Plaintiff filed suit alleging that the defendant has been carrying on construction business under the name and style of Suresh Jain & Associates. Plaintiff is also a building contractor by profession. In the year 1985-86 defendant was awarded contracts by T.C.P.O. Officers Co-operative Group Housing Society and Chetak Co-operative Group Housing Society for construction of apartments for their members on the plots of land allotted to them. Defendant needed some person who had experience in construction work and was ready and willing to execute the works under his supervision and could further supply/arrange for tools and plants . for the works. Defendant was well-acquainted with the plaintiff. After 2-3 meetings between the parties, plaintiff agreed to execute both the works on the defendant's agreeing to pay orally 40% of the profits in the aforesaid two projects, Plaintiff took charge of both the construction works and those were completed in the year 1988. It is alleged that all the account books including vouchers, cash memos and bank papers etc. pertaining to the aforesaid two construction works are in possession and power of the defendant. These cover a span of 4 to 6 years of time. Defendant has received final bills in respect of the works from the aforesaid societies but despite repeated requests he has not settled the accounts nor has paid 40% share of the profits to the plaintiff. Plaintiff also got a legal notice served on the defendant through Sh. K.P.Kapur, Advocate but that too has proved ineffective. It was prayed that a preliminary decree be passed declaring that the plaintiff is entitled to claim 40% of the profits earned by the defendant in the aforesaid two housing projects and the defendant is the accounting party. A Local Commissioner is also sought to be appointed to go into the accounts of both the housing projects to find out the amount of the profits.

(2.) By the order dated October 3, 1996 defendant was proceeded ex parte and the plaintiff was permitted to lead evidence by way of affidavit.

(3.) In support of the claim made in the plaint the plaintiff has filed his affidavit on February 6, 1997. Aditional affidavit has further been filed by him on April, 1997. Alongwith the additional affidavit two certificates dated July 17, 1987 (Ex.A) and July 31, 1987 (Ex.'B') have also been filed. Certificate (Ex.A) has been issued by S.M.Bijani, Architect while certificate (Ex.B) by I.S.Maurya, Secretary of T.C.P.O. Officers Co-operative Group Housing Society Ltd. Both the certificates indicate that the construction work of the aforesaid society from beginning till end was executed by Suresh Jain and Associates under the supervision of the plaintiff.