DINSHAW AND DINSHAW Vs. INDOSWE ENGINEERS PRIVATE LIMITED

JUDGEMENT

(1.) THIS is an appeal against the judgment and decree dated 26th October, 1978 in Special Civil Suit No. 215 of 1972 on the file of Joint Civil Judge, Senior Division, Pune. I have heard the learned Counsel appearing for both the parties.

(2.) THE appellants-plaintiff filed a suit in the trial Court for recovery of money in respect of a building contract. The plaintiffs case is that defendant company entrusted construction of a bunglow and a factory to the plaintiffs. It appears the construction had been done by a previous contractor and then work was entrusted to the plaintiffs. The plaintiffs submitted their estimates and also rates which were accepted by defendant with some modification. The work was entrusted to the plaintiffs sometime in February 1970. It is also plaintiffs case that part of the work done by previous contractor was not of good quality and the matter was examined by the Architect Mr. Nene. When the work was in progress, the defendant also entrusted some additional work to the plaintiffs. The understanding was that plaintiffs should go on giving running bills and defendant should go on making payments. Accordingly, plaintiffs started the work and was giving running bills and the defendant was making payments. In all plaintiffs have done work of the value of Rs. 1,53,446,20 ps. , for which bills have been issued. The defendant has made part payment to the extent of Rs. 1,25,000/ -. The defendant has not paid the balance of Rs. 28,446. 20 ps. inspite of repeated demands and exchange of letters. The work was almost complete by the end of February 1971. For the first time during March 1971, the defendant raised an objection regarding quality of the work and also about the measurements. The defendant had never raised any such objection till then. Defendants letter of objection was suitably replied by the plaintiffs. Apprehending that defendant may entrust the work to some other contract, plaintiffs rushed to Court and filed a suit for injunction in Regular Civil Suit No. 292 of 1971. The said suit later came to be withdrawn. The defendant appears to have completed the remaining work departmentally and as a result the plaintiffs have lost profit to that extent. Hence on these allegations the plaintiffs have filed a suit for recovery of Rs. 32,000/- as detailed in para 16 of the plaint.

(3.) THE defence is as follows the suit building contract is admitted. It is stated that plaintiffs abandoned the contract, and therefore, committed a breach of the contract. It is admitted that plaintiffs had submitted estimates and rates and they were accepted by the defendant subject to some modification. It is not admitted that defendant entrusted additional work to the plaintiffs. According to the defendant, the agreement was that for the running bills the defendant should pay 90 per cent, five per cent to be paid after the work is found satisfactory and then remaining five per cent to be paid only after the expiry of first rainy season or after six months whichever is longer. It is alleged that the work of the plaintiffs was not good. The quantities like measurements etc. are inflated. The material used was sub-standard. The work done was not according to the agreed specifications and it was not completed within the agreed time. That the defendant is not due any amount to the plaintiffs as claimed in the plaint. Filing of Regular Civil Suit No. 292 of 1971 and subsequent withdrawal are admitted. That plaintiffs are not entitled to any of the amounts claimed in the plaint. That the suit is not maintainable. It is prayed that the suit be dismissed with costs.