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2011 Supreme(Kar) 1109
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
N. Kumar and A.N. Venugopala Gowda, JJ.
Ramesh S. Rao —Appellant
Vs.
Sudhir J. Kamat —Respondent
Regular First Appeal No. 629 of 2001
Decided on : 23-09-2011
Advocate Appeared:
Mr. Ramesh S. Rao, Party-in-person, For the Appellant
Mr. Vishwanath R. Hegde, For the Respondent
Headnote:CODE OF CIVIL PROCEDURE, 1908 - Section 34: [N. Kumar & A.N. Venugopala Gowda, JJ] When there is there was no agreement to pay interest prior to institution of suit, Plaintiff will be entitled to interest @ 6% p.a. from date of institution of suit till realization.
CODE OF CIVIL PROCEDURE, 1908 - Order 8, Rule 6A: [N. Kumar & A.N. Venugopala Gowda, JJ] Counter claim - Suit for recovery of money - Plaintiff entrusted with construction of building and estimated cost approved by defendant - Defendant claiming excess payment of Rs.1 lakh apart from estimated cost being paid to plaintiff - No document or evidence produced to prove payment of alleged amount to plaintiff - Defendant having failed to prove payment to plaintiff in excess of cost of construction, counter claim of defendant of excess payment of Rs.1 lakh is not maintainable.
CODE OF CIVIL PROCEDURE, 1908 - Order 37, Rule 2: [N. Kumar & A.N. Venugopala Gowda, JJ] Suit for recovery of money - Plaintiff an architect engineer was entrusted with work of construction of building - Specification of work and estimated cost was duly agreed and approved between parties - After construction possession of house was delivered to defendant - There was no dispute with regard to quality and quantity of construction nor any deficiency in construction work alleged - Held, Defendants and plaintiff are bound by approved estimated cost agreed between them. Plaintiff is entitled for construction cost inclusive of his professional charges.
VENUGOPALA GOWDA, J.—1st defendant in the suit has filed this appeal questioning a decree for payment of Rs. 3,68,476.49 with interest at 6% p.a. from the date of suit till realization. The plaintiff has filed the cross-objection with regard to denial of interest on the principal amount for the period prior to institution of the suit and also in determining the rate of interest at 6% on the decree amount. For convenience, the parties would be refened to with reference to their rank in the suit.
2. Material facts of the case are:
Plaintiff is a Structural Engineer by profession. Defendant No. 1 is the owner of property No. 41, 4th Main, 3rd Cross, AECS Layout, Sanjaynagar, Bangalore. He was working as Optometrist at Kuwait and appointed his brother-in-law/defendant No. 2, as a power of attorney holder to construct building at the said property. Defendant No. 2, as the General Power of Attorney Holder of defendant No. 1, entrusted to the plaintiff, the work of obtaining of sanction plan and construction of building on the said property of defendant No. 1. Plan prepared by the plaintiff was approved by the 2nd defendant and was submitted to the BDA on 25.7.1990. BDA sanctioned the plan on 22.8.1990. Construction commenced on 30.8.1990. Defendant No. 1 returned from Kuwait to Bangalore on 30.9.1990, whereafter he looked after the construction work. Plaintiff constructed the building and handed over the building to defendant No. 1 on 10.10.1991. House warming ceremony was performed by the defendant No. 1 on 18.10.1991. The plaintiff prepared a final bill on 7.11.1991 for Rs. 8,14,949.99 wherein the payment of Rs. 4,46,473.50 was deducted and the balance amount of Rs. 3,68,476.49 was claimed. On 12.4.1993, the plaintiff got issued a notice to the 1st defendant to make payment of the balance amount of Rs. 3,68,476.49. He also claimed interest at 18%, i.e., in all Rs. 4,86,227.44. The 1st defendant got sent a reply notice dated 29.4.1993, contending that, the original estimation of the work was only Rs. 2,00,000/-, which was revised to Rs. 3,50,000/- and as against the said amount, there was payment of Rs. 9,70,973/-. He claimed refund of Rs. 6,20,973/- with interest at 18%. After sending a rejoinder, the suit was instituted against the defendant No. 1 and his brother-in-law/General Power of Attorney Holder/defendant No. 2, to pass a decree for realization of Rs. 3,68,476.49 and interest thereon amounting to Rs. 1,17,750.95 from 8.11.1991 till the date of institution of the suit and for consequential reliefs.
3. In the written statement filed by the 1st defendant, amongst others, it was stated that, the estimated cost of the building was Rs. 3,50,000/- and the plaintiff having received Rs. 6,01,473.50, returned Rs. 1,473.50 to make the figure Rs. 6,00,000/-. It was contended that, plaintiff has to render account and refund excess sum received, which was estimated at Rs. 1,00,000/-. A counter claim for the said amount was made.
4. The 2nd defendant in the written statement filed, admitted the claim of the plaintiff and submitted that, he is not liable to pay any money, since he is only a General Power of Attorney Holder of defendant No. 1.
5. Based on the material pleadings, the learned Trial Judge raised the following issues:
(1) Whether the plaintiff proves that the prepared drawing specifications of the work to be carried out and the estimate in respect of the proposed construction, which is inclusive of his professional charges being Rs. 7,93,001.50?
(2) Whether plaintiff proves that he handed over possession of the building to the 1st defendant on 10.10.1991?
(3) Whether plaintiff proves that the 1st defendant was due to him Rs. 3,68,476.49 as on 7.11.1991?
(4) Whether plaintiff proves that the defendant is liable to pay Rs. 1,17,750.95 being the interest at the rate of 18% p.a. as averred in para 8 of the plaint?
(5) Whether plaintiff proves that defendant No. 1 is due Rs. 4,86,227.44 with interest at 18% p.a. from the date of suit ti
