RAMACHANDRAN NAIR Vs. T SASIKUMAR

JUDGEMENT

(1.) The appellant is the defendant in O.S.No.667/1991 on the file of the Principal Subordinate Judge's Court, Kottayam a suit filed by the respondent herein for recovery of a sum of Rs. 79,237.55 together with interest at the rate of 18% per annum from 20.12.1990 till realisation with costs. The trial court by the judgment dated 11.4.1997 decreed the suit allowing the plaintiff to recover from the defendant a sum of Rs. 88,357.55 with interest on Rs. 79,237.55 at the rate of 18% per annum from 7.8.1991 till 10.4.1997 and thereafter at the rate of 6% per annum till realisation. The defendant made a counter claim for a sum of Rs. 35,000/-, which was rejected in the absence of any reliable evidence. Feeling aggrieved by the judgment and decree of the trial court, the appellant/defendant is before this Court in this appeal.

(2.) Going by the plaint averments the plaintiff and the defendant had entered into an agreement whereby the plaintiff undertook to construct a residential building for the defendant. On 5.3.1989, the defendant accepted the rates quoted by the plaintiff. The plaintiff completed the construction of the structure of the building and the total cost of the work comes to Rs. 1,50,237.55. However, the defendant who undertook to make payment according to the progress of the work, paid only Rs. 71,000/-. Thus a balance amount of Rs. 79,237.55 is due to the plaintiff. The plaintiff, could not complete the construction because of the failure on the part of the defendant in performing his part of the contract. Therefore the plaintiff filed the suit for recovery of a sum of Rs. 79,237.55 from the defendant together with interest at the rate of 18% per annum from 20.12.1990, the date on which the plaintiff furnished the statement of accounts to the defendant.

(3.) The defendant filed written statement contending that the plaintiff had agreed to construct the building for Rs. 1,75,000/-, within a period of one year. But he could not complete the work within the stipulated period and as such time was extended by six months. Even thereafter the progress in executing the work was slow. On 8.4.1990, an agreement was executed between the plaintiff and defendant whereby the plaintiff had agreed to complete the construction of the building at a cost of less than Rs. 1,75,000/-. According to the defendant, as he had made arrangements to supply wooden items, the plaintiff had agreed to deduct the cost of wooden items from the total amount of Rs. 1,75,000/-. The defendant had paid a sum of Rs. 60,000/- to the plaintiff by way of cheques and a further sum of Rs. 46,000/- in cash, out of which for an amount of Rs. 35,000/- no receipt was issued by the plaintiff. Further, the plaintiff used teak wood supplied by the defendant at a cost of Rs. 3,560/-. On 5.12.1990, the defendant caused to issue a lawyer notice to the plaintiff demanding settlement of accounts and to complete the work on or before 31.12.1990. In spite of receipt of that notice, the plaintiff did not complete the work. Instead, on 20.12.1990, the plaintiff prepared a bill for Rs. 1,50.237.55 and handed it over to the defendant. As the plaintiff failed to complete the construction, the defendant completed the construction by engaging another person for which he had to spent Rs. 1,26,538.50. Thus, the defendant had to spent a sum of Rs. 69,886.50 above Rs. 1,75,000/-, the amount agreed to by the plaintiff to complete the construction. Therefore, the defendant raised a counter claim for a sum of Rs. 69,886.50 together with Rs. 5,000/- for the inconvenience caused to him due to the delay in completing the construction of the building.