Examination of Commissioner if necessary after acceptance of report submnitted by him.

Plaintiff is the appellant. The plaintiff was carrying on contract business in the matter of construction of houses. The first defendant is the wife and second defendant is the husband. The first defendant was the owner of the premises bearing Door No.184, North Veli Street, Madurai in T.S.No.752/1, and the second defendant was the owner of premises bearing Door No.12, Goods Shed Street, Madurai.

2.The case of the plaintiff is that on 110. 1975 the plaintiff agreed to do contract work of constructing a ground floor in Door No.184, North Veli Street, Madurai in T.S.No.732/1 and an agreement Ex.A-1 was entered into containing the terms and conditions thereof. The plaintiff commenced and completed the work of constructing the ground floor on 22. 1976, Then a second agreement Ex.A-7 was entered into on 15. 1976 for construction of first and second floors in the same premises. During the subsistence of the second agreement an oral agreement was also entered into between the plaintiff and the second defendant for doing some repair work in Door No.12, Goods Shed Street, Madurai. The work of second agreement in respect of Door No.184, and the work of oral agreement in respect of Door No.12 were also completed, During the work the defendants have paid some amounts to the plaintiff. After the work was completed the plaintiff gave a final Bill Ex.A.8 on 20.9.1976 claiming No.313146. But the amount was not paid and therefore the plaintiff sent a notice Ex.A-11 dated 12. 1976. For that the defendants sent a reply Ex.A-12 dated 212. 1976 raising untenable contentions. The plaintiff then sent a rejoinder notice Ex.A-3 on 1. 1977, but it was of no avail. Therefore the plaintiff has filed the suit.

3. The defendants denied that the suit amount is due to the plaintiff. They contended that they have paid a number of amounts several times to the plaintiff as well as his employee Kannappa Chettiar all totalling to Rs.98,800. Apart from this the defendants have also supplied 960 bags of cement costing Rs.18,082 and also iron materials of the value of Rs.8,796.96 for which the plaintiff is under the agreement liable to give credit. In fact the plaintiff has received from the defendants amounts much more than what he is entitled to for the work done by him.

4. The trial court on consideration of the evidence adduced found that the suit should have been filed for accounts and not specific sum as claimed and therefore the suit is not maintainable. The trial court then on consideration of the evidence held that in fact there is no amount due from the defendant to the plaintiff as claimed by him and on the other hand the defendant has paid them excess amount of Rs.24,0220. Thus holding the trial court dismissed the suit. Therefore the appeal by the plaintiff.

5. After the arguments were heard for some time, it was agreed by both sides that the real controversy in the matter is with regard to only two things and one is in respect of a sum of Rs.25,000 alleged to have been paid by the defendants to the plaintiff under receipts Exs.B-26 to B-39 through one Kannappa Chettiar who was an employee of the plaintiff, and the second is as to whether the plaintiff is entitled to any sum in respect of repair work done by the plaintiff to the premises No.12, Goods Shed Street, and if so what amount, and on decision of these points any amounts due to the plaintiff can be determined.

6. Regarding the first point, the trial court has held that the said sum of Rs.25,000 covered by Exs.B-26 to B-39 issued by Kannappa Chettiar to the defendants has been, paid to the plaintiff. This finding is questioned in the appeal now.

7. On careful consideration of the evidence on this point I am inclined to agree with the finding of the trial court. It is not in dispute that Kannappa Chettiar was working under the plaintiff. The defendants have examined Kannappa Chettiar as D.W.2 and he has testified that he received the amounts mentioned in Exs.B-26 to B-39 from the d