When a construction contract's work valuation is assessed by a court-appointed expert with the consent of both parties, and the valuation matches the agreed contractual rates, the appellate court will not interfere with the trial court's findings absent evidence of error or higher costs.

Sathish Ninan, J.

The decree in a suit for money is under challenge by the defendant.

2. The plaintiff is a building contractor. Ext.A1 agreement was entered into between the plaintiff and the defendant for construction of a multi-storied commercial building for the defendant. According to the plaintiff, he had expended a total amount of ₹ 1,93,96,516/- towards the construction of the building of the defendant, out of which the defendant has paid only an amount of ₹ 1,47,84,330/-. The suit is filed for recovery of the balance amount of ₹ 52 lakhs with interest.

3. The defendant contended that the plaintiff committed breach of contract by delaying the work. The agreement was later terminated. He has also claimed that he has made excess payment of ₹ 13,55,974/-.

4. The trial court deputed an expert commissioner who filed Ext.C2, C2(a) and C2(b) report. Based on the report the court found that, for the work done, the plaintiff is entitled for ₹ 1,93,96,516/- out of which an amount of ₹ 1,63,65,668/- has been paid by the defendant. It was also held that after deduction of the amounts in terms of Ext.A1 agreement towards welfare fund, retention amount etc. an amount of ₹ 7,64,773/- is payable to the plaintiff. The suit was decreed for realisation of the same with

12% interest.

5. We have heard the learned counsel for the appellant.

Despite service of notice on the respondent, there is no appearance.

6. The points that arise for determination in this appeal are:-

(i) Does the materials on record evidence that amounts are due to the plaintiff from the defendant under Ext.A1 construction contract ?

(ii) Does the decree and judgment of the trial court warrant any interference ?

7. The work done by the plaintiff was assessed through an expert engineer who submitted Ext.C2(a) valuation report. He was examined as PW3. His appointment was as agreed to by both sides and was to assess the cost of construction. He assessed the cost based on PWD rate. The report justified the plaintiff's claim that the cost of construction is ₹ 1,93,96,516/-. The payments effected by the defendant is evidenced by Exts.B1 to B10 series of documents amounting to ₹ 1,53,65,668/-. In addition to the same he had also paid an amount of ₹ 10 lakhs towards mobilisation advance. Thus making the total amount paid at ₹ 1,63,65,668/-.

8. The argument of the appellant is that, the valuation by the expert should have been based on the rate fixed in Ext.A1 agreement and not based on PWD rate. Here, the trial court has noticed that the plaintiff as PW1 deposed that the PWD rate and the rate mentioned in Ext.A1 are one and the same, and that the above version of PW1 was not disputed by the defendant (DW1). It could not be established otherwise before us or that the PWD rate is higher than the contractual rate. Therefore the said contention has no basis.

9. From the amount payable to the plaintiff, the trial court has made further deductions under the heads of, labour welfare fund, retention amount and mobilisation fund. Though the defendant alleged delay in performance of the contract by the plaintiff, as noticed by the trial court, admittedly the work continued after the period fixed in Ext.A1 and payments were also being made by the plaintiff. Therefore, time was not treated by the parties to be the essence of the contract. At any rate, there is no counter claim by the defendant. In spite of the same, the trial court deducted from the amounts payable to the plaintiff, the retention amount and mobilisation fund. However, there is no appeal by the plaintiff.

10. In the circumstances, viewed in any manner the decree and judgment passed by the trial court warrants no interference.

Resultantly, the