R.S.A.No. 2411 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2411 of 2009 (O&M) Date of decision: 7.10.2009 Sarwan Singh ......Appellant Versus Gurmukh Singh Dhillon and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.J.S.Chahal Advocate, for Mr. R.S.Bajaj, Advocate, for the appellant. **** SABINA, J. Plaintiff Mohan Singh filed a suit for recovery of Rs.2,89,600/- through his legal representatives, which was dismissed by the Additional Civil Judge (Sr.Divn.), Jalandhar vide judgment and decree dated 14.11.2007. In appeal filed by one of his legal reprsentative Sarwan Singh the said judgment and decree were upheld by the Additional District Judge, Jalandhar vide judgment and decree dated 14.2.2009. Hence, the present appeal. Brief facts of the case, as noticed by the lower appellate R.S.A.No. 2411 of 2009 (O&M) 2 Court in para Nos.1 and 2 of its judgment, are as under:- “1. After being unsuccessful before the learned trial Court, the plaintiff/appellant, Sarwan Singh, has preferred the present appeal against the above said judgment and decree. He pleaded before the lower Court that he is a contractor and is approved by Municipal Corporation, Jalandhar as well as PWD. He is engaged in the business of constructing buildings on contract. He has a good experience in construction work and has constructed many residential and non-residential buildings. The defendant approached him to get his house constructed at Mohalla Aggarwal Adampur. Various conditions were agreed into writing dated 3.7.1999. As per contract, the work of laying marble was to be done by him, which included the supply of marble by the plaintiff worth Rs.4 lacs. It was agreed that if any extra work is to be undertaken, extra charges would be paid by the defendant. The construction on the covered area was fixed at the rate of Rs.30/- per square feet for simple work and 20% extra charges for double storey. It was further agreed that flooring would be of marble and crazy. It was further pleaded that as per terms and conditions, the plaintiff started the work to the satisfaction of the defendant and completed it. The plaintiff submitted R.S.A.No. 2411 of 2009 (O&M) 3 a running bill and received a sum of Rs.7,36,172/- as part payment. After completion of the work, an amount of Rs.9,91,172/- accrued and after adjusting Rs.7,36,172/-, a sum of Rs.2,55,000/- remained due and outstanding. The defendant assured the payment before completion of the work, but defendant failed. The plaintiff made several requests to him, and as such, he is also entitled to interest @ 12% per annum, which comes out to Rs.34,600/- and as the suit amount has not been paid by the defendant, hence a suit. 2. Upon notice, the defendant-respondent appeared and filed written statement taking preliminary objections regarding maintainability of the suit, locus standi of the plaintiff, plaint not being duly verified, concealment of facts, estoppel, claim of the plaintiff being false and frivolous and on merits, it was replied that the plaintiff approached the defendant when he came to know that the defendant wants to get a kothi constructed. The plaintiff described himself as a veteran building contractor. As the defendant was in need of services of a contractor and as he himself had no knowledge regarding construction and quality of the building material, hence believing the representation of the plaintiff, the defendant agreed to get his house constructed from the R.S.A.No. 2411 of 2009 (O&M) 4 plaintiff on 3.7.1999. It was admitted that the work of marble was to be completed by the plaintiff, which included the supply of marble worth Rs.4 lacs. It was further replied that the plaintiff agreed to use the marble of proper size and good quality of Makrana, but instead he used the marble of inferior and substandard quality for flooring. This fact was brought to his knowledge lateron by the marble expert. It was estimated that the plaintiff has used the marble to the tune of Rs.1,50,000/- only. As such, the defendant had to suffer a loss of Rs.2 lacs because of inferior quality of marble having been used by the plaintiff. Moreover, the plaintiff provided deficient services by not completing the entire construction work and by not finishing the work. The plaintiff did not raise construction to the entire satisfaction of the defendant. Plater on the walls was not proper and smooth. Level of the floor was not proper. The defendant requested the plaintiff many a times to complete the work left incomplete, but instead the plaintiff left the pending work. The defendant had to deploy his own labour and masons to get the work completed. At that time 20% construction work was incomplete. In order to get it completed, the defendant had to spend Rs. One lac and as such, the defendant is entitled to recovery of Rs.4 lacs from the R.S.A.No. 2411 of 2009 (O&M) 5 plaintiff for backing out of his contract. The plaintiff is also liable to pay damages to the tune of Rs. One lac for causing mental agony, harassment, negligence and deficiency in services. In this regard, the defendant wrote a letter dated 7.6.2001, asking the plaintiff to pay Rs.4 lacs to him. The defendant also demanded interest @ 18% per annum on the said amount, but instead of giving reply, the plaintiff filed a false complaint before the Consumer Forum, Jalandhar. It was denied that the suit amount is due and outstanding. The defendant also filed a similar complaint before the Consumer Forum, but both the complaints were dismissed. The defendant has since filed an appeal before the State Commission. The plaintiff after loosing the legal battle before the Consumer Forum, filed this suit to harass him. All other contents of the plaint were denied and it was prayed that the suit filed by the plaintiff may be dismissed.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether plaintiff is entitled to recovery of Rs.2,89,600/- along with interest? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether plaintiff has no locus standi to file R.S.A.No. 2411 of 2009 (O&M) 6 the present suit? OPD 4. Whether the suit is liable to be rejected u/o 7 rule 6 CPC? OPD 5. Relief. ” After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. The plaintiff had filed a suit for recovery on the ground that he was engaged in business of constructing buildings and had constructed the house of the defendant but he had not been paid by the defendant in accordance with the work completed by him. The plaintiff placed reliance on writing dated 3.7.1999. There is no dispute regarding the fact that the plaintiff had constructed the house of the defendant. However, the plaintiff had failed to prove his case. The document Ex.P-3 merely contained three clauses but did not mention with regard to the area to be constructed and the nature of construction to be raised. The document Ex.P-3 merely provided the broad guidelines concerning the rate of construction. In these circumstances, the Courts below rightly held that no reliance could be placed on Ex.P-3 for working out the cost of construction. Learned Additional District Judge has observed in the impugned judgment that the plaintiff had left the construction in mid way and due to this reason, the defendant had to hire the services of another mason to complete the construction. The plaintiff had failed R.S.A.No. 2411 of 2009 (O&M) 7 to establish that he had completed the work. The plaintiff had also failed to prove on record the details of bills, which would establish the amount spent by him on the construction of the house of the defendant. Hence, both the Courts below, after appreciating the evidence on record, have held that the plaintiff had failed to prove his case. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE October 07, 2009 anita