JUDGMENT

Anil Kumar, J.

This judgment shall dispose of the suit of Dr. Bhargava & Anr., hereinafter referred to as 'owner's'/Plaintiff; suit for recovery of Rs.22,69,894.50 with pendente lite and future interest at the rate of 18% per annum and the cross suit of Balwant Singh, hereinafter referred to as 'Builder'/Defendants for recovery of Rs.2,67,150/- with pendent lite and future interest at the rate of 24 % per annum on the principal amount from 1.5.2003 till the decision of the suit.

CS(OS) No.1530/2003

1. The owners contended that plaintiff No.1 is a well known gynecologist and plaintiff No.2 is a retired Army Officer and brother of plaintiff No.1. They jointly purchased a land measuring 743.15 sq.mtrs. bearing No.49 on Pine Drive in Malibu Town, District Gurgaon, Haryana, by a registered sale deed dated 29th March, 2000. The physical possession of the plot was handed over on 5th May, 2000. After getting the possession, the plaintiffs contemplated the construction of a residential house on the said plot and, therefore, they arranged for a loan to the tune of Rs.27,00,000/- from HDFC Limited.

2. For the purposes of construction, a contractor was also required and since defendant No.1, Shri Balwant Singh, had been doing contract job for Sita Ram Bhartia Institute of Science and Research where plaintiff No.1 was working as a Senior Consultant, he was asked to quote his rates for material and labor, so that the construction could be carried out. According to the owners, the builder/defendant No.1 gave an item-wise list of rates for construction of structure of the proposed house. The rates quoted by the defendant No.1 were accepted and he also promised to complete the construction by April 2002. The defendant No.2, is the son of defendant No.1 and he also works with him and he also acted as an agent of defendant No.1, his father, from time to time.

3. The plans for the construction of house were sanctioned on/or about 19th June, 2000 and initial working drawings were handed over to defendant No.1 on 27th June, 2000. On 17th July, 2000, the plaintiff had requested for the advance payment for purchase of stores and, therefore, a sum of Rs.4,00,000/- was paid by an account payee cheque drawn on HDFC Bank, New Delhi. The structural drawings for the basement were submitted to the defendants by M/s. Space Combine on/or about 15th August, 2000 and excavation was completed by the defendants for construction in the first week of October, 2000.

4. During the construction, defendant No.1 requested for more funds and consequently the amounts were paid in three installments by cheques dated 12th January, 2001; 18th January, 2001 and 20th February, 2001 for Rs.2,00,000/-, Rs.3,00,000/- and Rs.4,00,000/- respectively. The plaintiffs had already paid a sum of Rs.4,00,000/- on 17th July, 2000 and, therefore, by 20th February, 2001, the defendant No.1 had been paid Rs.13,00,000/-.

5. In March 2001, the basement structure foundation walls and pillars were near completion and, therefore, defendant No.1 demanded more money and he was asked to submit a written bill. The defendant No.1, therefore, submitted a bill of Rs.10,59,798/- for the work done till March 2001. After the said bill, the defendant No.1 claimed a further sum of Rs.2,00,000/- in advance towards the estimated costs for the construction of a backside boundary wall. The defendants represented that in case the advance demanded by them is not paid, they would be unable to speed up the work. Consequently, in the interest of work and without verifying the actual measurements at the site and in good faith, the owners gave a sum of Rs.1,00,000/- in cash to defendant No.2 and another sum of Rs.1,00,000/- was paid in cash to defendant No.2 on 9th April, 2001 as 'on account' payment.

6. So that the work could be completed within time, the plaintiffs continued to make payments from time to time and by 12th January, 2002, the plaintiffs had paid a sum of Rs.48,00,000/- though the de