IMPORTANT POINT
The plaintiff is entitled to payment for work done despite breach allegations, as the defendants failed to substantiate their claims for damages.

JUDGMENT :

Sathish Ninan, J.

The decree for damages is under challenge by the defendants in the suit.

2. On 22.09.1994, the plaintiff entered into Ext.A1 contract with the defendants for construction of an inspection bungalow. The period fixed for completion was 12 months. Admittedly, the plaintiff did not complete the construction within the period. Subsequently the defendants completed the work employing another contractor. According to the plaintiff, the default occurred due to the conduct of the defendants in varying the plan and also the delay in providing the varied plan. The plaintiff claimed that there has been enhancement in the cost and is entitled for hike in rates. The suit is for the value of the works done by the plaintiff.

3. The defendants denied the plaint allegations. It was contended that the plaintiff is at fault for having committed breach of the contract. The alleged variation in plan etc was denied.

4. The trial court granted a decree for realisation of Rs. 1,89,312/- with interest. The same is under challenge.

5. I have heard the learned counsel on either side.

6. Both the plaintiff and the defendants blame each other for having committed breach of the contract. According to the plaintiff, there had been variation in the plan and there was delay in providing such plan. The allegation is denied by the defendants. Admittedly, the work was not completed by the plaintiff within the time and the defendants caused it to be completed through another contractor.

7. It is relevant to note that, though the defendants allege that the plaintiff committed breach of contract, there is no claim raised against him for damages. The damages if any, resulted to the defendants consequent to such breach has not been quantified. The defendants do not have a case that the damages caused to them consequent on the breach committed by the plaintiff has been appropriated. There is no plea of set off or counter claim.

8. The total work that was done by the plaintiff has been assessed by an expert Commissioner issued in O.S.No.264 of 1995, an earlier suit filed by the plaintiff against the defendants in relation to the very same work. The said suit was filed at a point of time when steps were taken by the defendants to re-tender the work. Ext.A30 is the report. Based on such measurement, the defendants have calculated the amounts payable to the plaintiff. Going by the calculations stated by the defendants, the balance amount remaining to be paid to the plaintiff is Rs. 1,61,861/-. The finding of the trial court that the amount payable to the plaintiff is Rs. 1,89,312/- is not substantiated by materials. As noticed earlier, in the absence of any claim of appropriation, set off or counter claim, the plaintiff is entitled for payment of the said amount. The decree and judgment of the trial court, insofar as it allows the plaintiff to realise Rs. 1,89,312/- is liable to be interfered with to the above extent. No other interference is called for.

Resultantly, the appeal is allowed in part. The decree and judgment of the trial court will stand modified, allowing the plaintiff to realise Rs. 1,61,861/-, with interest thereon at the rate of 6% per annum from 07.02.1997 (date of suit notice) till realisation, from the defendants and their assets. No costs.