1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.52 OF 2008 IN SUMMARY SUIT NO.2147 OF 2007 Ramulu B. Shekelli ...Plaintiff Vs. Mohamed Afzal Mohamed ...Defendant Mr.Simil Purohit i/b. Manoj Bhatt for Plaintiff Ms.Sunita Potddar i/b. M.Y.Sayani for Defendant CORAM: SMT.ROSHAN DALVI, J. DATED: 17 TH OCTOBER, 2008 P.C. 1. The suit is filed by a building contractor against the owner of the premises for construction of a building. The parties entered into an agreement pursuant to the tender notice issued by the Defendants under which the tender of the Plaintiff came to be accepted. Consequently the parties entered into the Tender Agreement, Exhibit- A to the plaint. Under clause 2 of the said Tender Agreement, the Defendant is the employer and was to pay the Plaintiff as the Contractor, such sums as shall become payable subject to the conditions thereunder. 2 2. Under clause 4 of the said agreement, the decisions of the Architect as per the conditions of contract contained in that agreement would be final and binding upon both the parties and made a rule of Court. The Architect was required to certify the amounts payable to the Plaintiff under clause 31(4)(b) of the contract setting out the conditions by which the parties were governed. Under the said clause the Architect was to issue a certificate for one Moeity of the token amount then retained and the Contractor was to be held entitled to payment of the said Moeity within the period for honouring the certificate as shown in the appendix to the agreement. The appendix to the agreement shows the period of rendering the certificate to be 15 days. 3. The contract between the parties is admitted. The fact that the Plaintiff carried out the work is also admitted. It has been the Defendant's case that some of the work was defective. Consequently the extent of the entitlement of the Plaintiff can be seen only from the bill raised by the Plaintiff being certified by Architect of the Defendant. 4. Upon completion of the contract the Plaintiff raised the 9 th final bill. The Defendant's Architect has issued the 9th final certificate on 16 th February, 2007, Exhibit- B to the plaint. The certificate shows the net amount of the bill less 3 2.5% retention amount. It shows further deduction of Rs.8,20,982 /- for the repairs carried out in respect of the defects and the final certificate for the balance amount of Rs.2,11,45,632.20. Hence it can be seen that in the final certificate dated 16 th February, 2007 the amount with regard to the defective work pointed out until then has come to be considered by the Architect and deducted. Further 2.5% of the amount is retained. This retention amount is towards defect liability period mentioned in the appendix. The defect liability period is 12 months. Hence, if any, further defect is noticed and requires repair, the amount of such repairs would be recovered from the retained amount. The Defendants have not shown any amount claimed by them towards any further defects. The retention amount of 2.5% of the bill has remained at that. The Plaintiff has claimed the final net amount under the final certificate of the Architect. 5. The Defendants have made part payments thereafter from time to time. The Plaintiff claims the balance amount of Rs.34,73,326 /- with interest at 12% p.a thereon after giving credit for the part payments made. 6. It can be seen that this is the usual contract of building construction. Specified amounts payable to the Contractor 4 have to be certified by the Engineers or Architects. The parties to the contract have agreed to be bound by the decision of the Architect under clause 4 of the agreement. Dispute cannot be raised before any Court with regard to the amount so certified. Such amount is the liquidated amount due and payable to the Contractor. 7. In another suit filed by the Plaintiff against this Defendant a Notice of Motion has been taken out. In reply to that Notice of Motion the Defendant himself has relied upon this certificate dated 16 th February, 2007 for the construction work done by the Plaintiff. In paragraph 13 of that affidavit the Defendant has admitted the construction work as well as the interim bills submitted by the Plaintiff. The Defendant has relied upon this certificate issued by “my Architect” being called the “9th final certificate”. 8. Hence, the execution of the certificate is admitted. The payment specified thereunder is denied. Part payments made thereafter are also admitted. But it is mentioned that it is not as per the final certificate. The Defendant has contended that the work carried out by the Plaintiff is defective and leakage was found in the building. 9. In the affidavit in reply to this Summons for Judgment 5 the Defendant claims to have denied the certificate itself. In view of the specific admission made by the Defendant in the earlier judicial proceedings such contention cannot be accepted. Such a defence sought to be taken is seen to be false. 10. The Defendants denies defective work as sought to be shown by certain letters issued by the occupants of flats. Most of these letters are dated 6th July, 2006. All the letters are prior to the date of the final certificate, which is issued on 16 th February, 2007. Whatever be those defects, deduction in respect of repairs carried out is also made to the extent of Rs.8,20,982 /- in the final bill itself. The Plaintiff has claimed a liquidated amount after all those grievances of the occupants with regard to the defects are accounted for. 11. Paragraph 9 of the plaint shows the submission of the final bill after completion of the work and handing over possession to the Defendant. It further shows the Architect's certificate being the 9th final certificate dated 16 th February, 2007. It explains the various items of the bill. It also shows receipt of part payment of Rs.18,55,552 /- thereafter and the entitlement of the Plaintiff to recover the balance amount of Rs.34,73,326.70. 6 12. Paragraph 12 of the plaint shows that the agreement of tender dated 2nd May, 2003 and the final 9th certificate dated 16 th February, 2007 constitutes the written agreement between the parties. This Summary Suit is filed for recovery of the balance amount under the said written agreement. The agreement essentially is to honour the certificate issued by the Architect to be made a rule of Court. The Plaintiff is entitled to payment of the amount certified by the Architect. 13. This amount not having been paid, the Plaintiff issued a legal notice on 10 th May, 2007. The legal notice mentioned the amount for the work carried out less the retention amount further deducting the amount for the repairs carried out and claiming the final amount. The amount showing the deduction on account of repairs has been incorrectly mentioned. Hence, the final figure is correspondingly incorrect. This was pointed out in the reply to the notice dated 19 th May, 2007. Hence, in the rejoinder to the notice the extent of the error in the amount is accepted. Consequently after giving credit for the part payment made the specific amount remaining due is stated. 14. In the particulars of claim the amount due and payable is stated to be under Exhibit- C to the plaint. Exhibit- C is 7 the notice of demand dated 10 th May, 2007. The amount is actually claimed under Exhibit- B as averred specifically in paragraphs 9 and 12 of the plaint. There is, therefore, a typographical error in the particulars of claim, Exhibit- C in the plaint. Much ado is sought to be made about this inadvertent error. It is argued that the Summary Suit is not maintainable based upon the notice of demand in which some figures are incorrectly mentioned and after they are pointed out all the figures are changed in the rejoinder to the notice. There is in fact nothing amiss as is sought to be made out. Consequent upon one error fairly admitted by the Plaintiff, the figures are sought to change thereafter. The Court must see the substance of the claim and not arithmetical errors. The substance of the claim of the Plaintiff is upon the agreement between the parties to honour the Architect's certificate. The Plaintiff has claimed the amount shown in the certificate and given credit for part payments made thereafter. The Plaintiff is entitled to be paid back that amount. The defence of denial of the certificate, denial of the amount under the certificate or the defective work, which has already been accounted for is seen to be false and made only with a view to delay the Plaintiff's claim. Hence the Defendant cannot be granted leave to defend the suit unless the balance amount shown in the 9th final Bill/Certificate is deposited in the Court. 8 15. The Plaintiff has also claimed interest at 12% p.a on the balance amount due. No written agreement for payment of such interest is shown. Hence the Defendant would be entitled to defend the suit for such amount of interest claimed. 16. Hence the following order: i) The Defendant shall deposit the principal amount of Rs.34,73,326.70 in Court within 8 weeks from today. If the amount is deposited, it shall be invested by the Prothonotary and Senior Master in any Nationalised Bank initially for a period of 37 months. ii) If the amount is deposited the Defendant shall be entitled to file his written statement within 8 weeks thereafter. iii) UODI. iv) Ms. Poddar states that in that event the property of the Defendant that is sought to be secured by an order of the Court be released. Such relief cannot be granted in this Summons for Judgment before deposit of the principal amount. That can be considered in an application made after the deposit is made in terms of this order. 9 v) Mr. Purohit applies for withdrawal of the amount deposited. At present no direction for withdrawal is passed. That can be considered after the amount is deposited and the application for release of the property is made. (SMT. ROSHAN DALVI, J.)