Plaintiff should have rectified the defects in the construction of building.

R.Balasubramanian, J.; The plaintiff in O.S.No.2783 of 1985 on the file of the VIIIth City Civil Judge, Chennai, is the appellant in A.S.No.1220 of 1989. The defendant in the very same suit is the appellant in A.S.No.693 of 1990. In other words, both the appeals arise out of a judgment in one suit.

2. The plaintiff is a firm engaged in building constructions. It undertakes work given to it by architects and also directly from persons interested in putting up a building. At the request of the defendant and an architect M/s.Chitale & Sons, the plaintiff quoted his offer for construction of a bungalow for the defendant at Plot No.524-P, Anna Nagar East, Chennai-600 102. Under the terms of the contract, the defendant has to supply cement (then a controlled commodity) required for the work at the site and the cost of the cement so provided would be deducted from the plaintiff’s bill. This offer was accepted by the defendant and his architect. It was also agreed that fluctuation in the cost of cement was to be to the defendant’s account. As per the agreement bills have to be submitted by the plaintiff’s for the work done. The plaintiff has to submit his bills through the defendant’s architect M/s.Chitale & Sons. Once the architect approves the bill, which is after inspection of the work, payment could be effected. The acceptance of the plaintiff’s offer is as per the architect’s letter dated 8.10.1980. The foundation for the super structure has to be done under-reamed pile foundation, plinth beam and grade beam construction. That work was entrusted to another contractor by name M/s.Reviar Constructions. Engineers and Contractors. As the foundation work was in progress, M/s.Reviar Constructions, requested the plaintiff on 6.3.1981 to supply them cement for their under reamed piling work. On instructions of the architect, the plaintiff supplied 30 bags of cement to the foundation construction engineers from and out of the supply received by him. The plaintiff has to commence its work only after the foundation work is over. The foundation work was completed on 9.4.1981 as informed by the foundation construction engineer’s letter dated 11.4.1981. The plaintiff commenced its construction work thereafter. The construction was carried out as per the instructions given in the site and under the supervision of the architect and his engineer. The construction was fully completed by January, 1983. In fact, the defendant had occupied the building even earlier, namely, by 25.10.1982. The plaintiff used to send its bills through the architect. Though the architect certified the bills, the defendant made payments only belatedly. There was escalation in the cost of the materials and the work. The plaintiff sent its final bill, after completion of its work in January 1983, on 15.2.1983 to the architect. The architect after scrutinizing and checking it, certified it for payment by the defendant. As per that bill, the defendant is liable to pay a sum of Rs.49,971.96 to the plaintiff. In the final bill, the plaintiff had given credit to a sum of Rs.10,000 received from the defendant as advance. The defendant was evading payments and two years have elapsed since the submission of the final bill. The payment under the bill has to be paid within 15 days from the date of the bill failing which the defendant is liable to pay interest on the outstanding amount at the rate of 24% per annum as per the understanding between the plaintiff and the defendant and as per law and practice in the business. Since the defendant did not pay the money due, he is liable to pay interest as claimed from 1.3.1983 onwards and therefore, the suit. “

3. The defendant filed a lengthy written statement contending in substance as follows:

”The suit is not maintainable. There is no privity of contract between the defendant and the plaintiff. The defendant engaged the services of the architect only namely M/s. Chitale and Sons. The architect is not made a party to the suit. The plaint

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