PANCHANAN GANGULY Vs. KALIPADO BANERJEE

JUDGEMENT

(1.) This is an application by the defendant for discharging a report made by a Special Referee. The plaintiff is a building contractor. The defendant engaged the plaintiff to build a house for him. According to the plaintiff, the building cost Rs. 44,433-6-6 and out of this sum the defendant paid him Rs. 30,500 leaving a balance of Rs. 13,936-6-6. For this sum he made out a bill, being bill No. 429 and presented it to the defendant on 21 June 1931. In addition to this the plaintiff claims to have done plumbing work for the defendant the cost of which amounted to Rs. 2284-9-3. For this sum a bill, being No. 430, was presented to the defendant on the same date. Thereafter the defendant made two several payments of Rs. 2000 each. The plaintiff claimed the sum of Rs. 12,217-15-9 as being the balance due on the abovementioned bills and the sum of Rs. 3820-2-7 as being due for interest at 12 per cent. Various defences were taken, among which the following only need be noticed. The defendant said that the contract was a lump sum contract, and that the plaintiff could not recover more than the amount mentioned in the contract deed, that the work was not properly done, that some of the items of work were done without authority, and that the plaintiff was not entitled to get any sum by way of interest. By consent of parties there was a reference made to a Special Referee who is an Engineer and the scope of the reference is stated in the terms of settlement thus: By consent, referred to Mr. Subodh Kumar Ray, B.E., (of Associated Engineers Ltd., of No. 14, Clive Street, Calcutta) as a Special Referee to inquire and report what amount, if any, is due to the plaintiff for erecting and building dwelling house upon plot No. 355 of the Improvement Trust Scheme 15-B as per contract dated 10 August, 1930. In making the said enquiry the said Special Referee will go into the objections taken and raised by the defendant in his written statement with reference to the said work and to the two bills of the plaintiff. It is admitted by the parties that Rs. 34,500 has already been paid by the defendant to the plaintiff.

(2.) The learned Special Referee has made a report in which he finds that a sum of Rs. 11,210 is due by the defendant on both the bills Nos. 429 and 430. He refused to make any report regarding the claims for interest on the ground that the question was not within the scope of the reference, Mr. P.C. Ghose, appearing on behalf of the defendant, takes exception to the report on the following two grounds: (1) He says that the question as to what was due for plumbing work was not a matter which is within the scope of the reference and that the Special Referee should not have gone into the question of the dues on bill No. 430. (2) He contends that the basis of the Special Referee's calculation, so far as bill No. 429 is concerned is wrong inasmuch as ha has construed the contract between the parties to be a measure and value contract or a rate contract, whereas as a matter of fact the contract was a lump sum contract.

(3.) He says frankly that he has nothing to urge against the findings of the Special Referee that the work was properly done or with respect to his findings that there was extra work done which was authorized by his client or to the other findings of fact. All that he contends is that the Special Referee went wrong in his mode of measurement and basis of calculation as ha misdirected himself into holding that the contract was a rate contract and not; a lump sum contract. Mr. Ghose says that the Special Referee should have ascertained first what the measurements were according to the terms of the contract and then taken the actual measurements. If there was any excess found the Special Referee should have ascertained whether the excess was due to miscalculation on the part of the plaintiff at the time of making the contract, or to additional works authorized by the defendant. If it was due to miscalculation he should not allow anything to the plaintiff for the extra work, the contract being a lump sum contract. It was only if he found that the excess in the measurements was due to extra authorized work that he should make the plaintiff liable to pay for it. He points out that the Special Referee has not done this, but has measured the building as it stands, and in deciding whether the defendant should pay for the extra work done, or material supplied, he has not ascertained how much of this extra work or materials was due to miscalculation, and how much to extra authorized work. He states quite clearly and frankly that he has no other objection to the Special Referee's report, and that if it be found that the contract was not a lump sum contract but a rate contract, he can have no objection either to the method of calculation or to the special referee's conclusions as to the amount due from his client with respect to bill No. 429. There is no substance in the first ground, and indeed, it was not seriously pressed. It is admitted that the plaintiff did plumbing work for the defendant and that his plumbing work was authorized. Now the plaintiff has based his claim on two bills, namely bill Nos. 429 and 430. The bill for plumbing is bill No. 430. The terms of settlement are quite clear. The parties agreed that in making the said enquiries the said Special Referee will go into the objections taken and raised by the defendant in his written statement with reference to the said work and to the two bills of the plaintiff.