MOTILAL TEJSI AND CO Vs. RAMCHANDRA GAJANAN KHERODKAR

JUDGEMENT

(1.) THE plaintiffs are a firm doing business as building contractors. By a contract dated March 29, 1938, the plaintiffs agreed with the defendant to construct a building on Plot No.8 at Shivaji Park, Mahim, in consideration of a lump sum of Rs. 26,351. THE plaintiffs allege in the plaint that in pursuance of their contract they carried out the building work specified in the contract and duly completed the same. In addition to the principal work specified in the contract, the plaintiffs also carried out certain additional work. THE plaintiffs' claim with regard to this additional work was settled for Rs. 850 on September 2, 1940, and there is no dispute with regard to this claim. On September 9, 1940, the architects issued their final certificate certifying that a sum of Rs. 3,701 remained due and payable by the defendant in respect of the work done under the contract and also the additional work done by the plaintiffs which was settled at Rs. 850 as I have already stated. Various part payments were made by the defendant, and the plaintiffs have filed this suit for Rs. 2,576 being the balance due under the final certificate of the architects.

(2.) IN the written statement the defendant alleges that the plaintiffs left some of the items of work under the contract undone and unfinished and carried out some of the work in a defective manner and also failed to do the work within the time stipulated. The defendant further alleges that he brought these facts and disputes to the notice of the architects long before the final certificate was issued by them. He further alleges that the final certificate of the architects is not binding on him and that under the terms of the contract the architects were not entitled to issue the same. He further alleges that the architects issued the certificate without hearing the defendant and adjudicating upon the disputes that subsisted between him and the plaintiffs. He says that having regard to the work which was left undone and the work which was left unfinished and the work which was defective, a sum of Rs. 1,755 should be deducted out of the amount to be paid to the plaintiffs under the final settlement, and in respect of this sum of Rs. 1,755 the defendant counterclaims against the plaintiffs.

(3.) MR. Somjee has also referred to Clause (39) of the conditions of the contract which lays down as follows:- Should any doubt or doubts arise during the execution of the works or at measuring the extras or at making out the accounts or to any extras or other works, for which the contractor may believe to have a claim, the admission and allowance of any such claim or claims shall be judged of, determined and adjusted solely by the Architects, without reference in any way to any other persons. It being the intention of these conditions, that all such works that may be necessary for completely finishing the works proposed, for the rectifications of any failure from whatever cause arising, and the well maintaining, sustaining and supporting the whole of the works, as well as actions and alterations should such be made, so that the whole may remain sound and firm, are implied in the foregoing specification although the same may not therein be specially expressed; and that on this as well as all other matters, no reference to any other person than the aforesaid Architects, is to be allowed or admitted, his decision on all matters in difference or dispute between the employer and the contractor shall be conclusive and final and binding on both the parties to the contract.