Ashok Kumar Khande vs Sonuram Satnami

Per Parth Prateem Sahu, J.

This First Appeal is directed against the judgment and decree dated 1^st October 2022 passed by the learned Second Additional District Judge, Sakti, District- Janjgir Champa, in Civil Suit No. 02-B/2020, whereby the suit filed by the appellant/plaintiff seeking money decree against respondent/defendant has been partly allowed.

Facts necessary for disposal of the present appeal are that the plaintiff instituted a civil suit against defendant for recovery of money, pleading therein that the parties, being acquainted with each other, entered into an agreement dated 13.04.2018 for construction of the defendant’s house at Ward No. 11, Paladi Chowk, Naya Baradwar, at the rate of Rs.950/- per sq. ft. Plaintiff claimed to have incurred Rs.38,20,875/- towards construction, against which the defendant paid Rs.12,50,000/-, leaving an outstanding amount of Rs.25,70,875/-. After deducting Rs.5,00,000/- towards the estimated cost of the remaining work, the plaintiff claimed Rs.20,70,875/-. Despite service of a legal notice dated 22.03.2019, the defendant denied any outstanding liability. As the amount remained unpaid, the plaintiff instituted the suit seeking a decree for Rs.20,70,875/- along with interest.

The defendant, in his written statement, denied the plaintiff’s allegations and prayed for dismissal of the suit. He pleaded that the first floor had been constructed as per the agreed plan, comprising 2,500 sq. ft. at the rate of Rs.950/- per sq. ft, amounting to Rs.23,75,000/-. He further pleaded that the plaintiff had received Rs.16,22,000/- through cash and cheques but had left the construction incomplete and used substandard materials. The defendant assessed the cost of the incomplete construction work and required materials and fittings at approximately Rs.10,17,000/-. Accordingly, he claimed that the plaintiff had received Rs.2,64,965/- in excess of the amount due to him and denied any liability to pay the amount claimed in the suit.

On the basis of the pleadings made by the parties, learned trial Court framed following issues for determination:

Learned trial Court upon appreciation of the pleadings and oral as well as documentary evidence adduced by the parties, answered the aforesaid issues, partly allowed the suit holding that the plaintiff is entitled to get Rs.3,75,000/- from defendant, against which appellant /plaintiff filed this appeal.

Assailing legality, validity, and correctness of the impugned judgment and decree, learned counsel for the appellant/plaintiff submits that the learned trial Court has failed to properly appreciate the oral and documentary evidence adduced by the parties and has erroneously assessed the evidence on record. Learned trial Court erroneously determined the amount payable to the appellant/plaintiff. It is contended that the parties had entered into a construction agreement dated 13.04.2018 for construction of respondent’s /defendant’s house at the rate of Rs.950/- per sq.ft, and the appellant had undertaken the construction work in accordance with the said agreement. However, the learned trial Court failed to take into consideration the actual area constructed by the appellant/plaintiff and erroneously restricted the assessment of the construction work to 2,500 square feet, without properly appreciating the evidence available on record. It is further contended that the appellant/plaintiff had incurred substantial expenditure towards the construction of the house, including the cost of construction materials and other necessary items, but the learned trial Court failed to properly assess the expenditure incurred and the amount payable to the appellant/plaintiff. Therefore, the impugned judgment and decree, insofar as it restricts the appellant’s entitlement to Rs.3,75,000/- only, is unsustainable in law and on facts and, therefore, deserves to be set aside or suitably modified by allowing the appeal.

We have considered the submissions advanced by learned counsel for the appellant/plaintiff and have perused the pleadings, oral and documentary evidence available on record, as well as the impugned judgment and decree passed by the learned trial Court.

The principal question arising for consideration in the present appeal is whether the learned trial Court committed any error in determining the amount payable to the appellant/plaintiff for the construction work undertaken by him pursuant to the agreement dated 13.04.2018. The appellant contends that the actual constructed area was approximately 4,400 square feet, whereas the learned trial Court assessed the construction with reference to the agreed area of 2,500 square feet and consequently awarded only Rs 3,75,000/-.

In support of his pleadings made in the plaint, plaintiff examined himself as PW1 and other three witnesses and exhibited documents i.e. agreement as Ex.P-1, map in Ex.P-2, legal notice sent to defendant as Ex.P-3, complaint letter written to SHO, PS Baradwar as Ex.P-4 and Ex.5 respectively, whereas, defendant in his defence examined himself as DW-1 and one Manoj Kumar Bareth as DW-2.

In his affidavit filed under Order 18 Rule 4 of CPC, plaintiff Ashok Khande stated that he and defendant Sonu Ram, are residents of Naya Baradwar. Being a Mason, he agreed to construct defendant’s house at the rate of Rs.950/- per sq.ft. under an agreement dated 13.04.2018. The total construction cost was Rs.38,20,875/-, out of which the defendant paid Rs.12,50,000/-, leaving an outstanding balance of Rs.25,70,875/-. Despite repeated demands and service of a legal notice, the defendant failed to pay the outstanding amount. The plaintiff also lodged a complaint at Baradwar Police Station, but no action was taken. Whereas, defendant Sonu Ram in his affidavit under Order 18 Rule 4 of CPC has stated that plaintiff Ashok Kumar Khande has constructed his building in 2500 sq.ft. as per the building construction plan, which as per the agreement costs Rs. 23,75,000/- at the rate of Rs. 950/- per sq.ft., but the plaintiff has not constructed the defendant's house completely, has left the various work incomplete which amounts Rs.10,17,965/-, whereas according to his calculation he had paid excess amount of Rs. 2,64,965/-to plaintiff.

Thus, the primary dispute between the parties is that, according to the defendant, the plaintiff only completed the construction of the first floor of the building, as per the contract, amounting to a total of Rs.23,75,000/-while the plaintiff claims to have completed work on the defendant's house worth Rs.38,20,875/-. According to defendant Sonu Ram, the contract for the construction of the first floor was made through Agreement Ex.P-1 .

The agreement which has been executed between the parties for construction of building work is exhibited as Annexure P-1. Conditions contained in the agreement being relevant are reproduced hereinunder :

A perusal of the agreement dated 13.04.2018 (Ex.P-1) reveals that it does not specify the total area over which the construction was to be undertaken. However, Clause 5 of the agreement stipulates that the construction shall be carried out in accordance with the building plan annexed thereto. The said plan has been exhibited separately as Ex.P-2, which depicts the plan of the first floor of the building.

The plaintiff Ashok Kumar Khande, pleaded that he had purchased various construction materials for the construction of the defendant’s house. However, during his examination as PW-1, he made certain admissions in his cross-examination that are relevant for determination of his claim. In paragraph- 16, he admitted that he had not produced any bills relating to the purchase of iron rods. In paragraph-17, he further admitted that he had not produced any bills or receipts regarding the purchase of sand. In paragraph- 22, he admitted that he had not produced any bills substantiating the expenditure incurred towards the installation of electrical pipes and boards or door frames in the house. Furthermore, in paragraph- 24, he admitted that neither his plaint nor his affidavit disclosed the total area, in square feet, over which the construction had been undertaken. He also admitted that he had not produced any bills or documentary evidence substantiating the expenditure allegedly incurred towards the construction of the house.

It is a settled principle of law that the burden of proving a claim for recovery of money rests upon the plaintiff, who must establish his entitlement to the amount claimed by adducing cogent and reliable evidence. In a construction contract, the plaintiff is required to prove the extent of work executed, the amount payable under the agreement, the payments received, and the balance outstanding. Mere oral assertions, unsupported by reliable evidence, are insufficient to establish the entire claim. In terms of Sections 101 and 102 of the Indian Evidence Act, 1872, the plaintiff must discharge the initial burden of proof before the defendant can be held liable for the amount claimed.

In the present case, the appellant/plaintiff has claimed that he incurred an expenditure of Rs.38,20,875/- towards construction of the respondent /defendant’s house. However, except for his own oral testimony, he has not produced any reliable documentary evidence, such as bills, receipts or accounts, to substantiate the alleged expenditure. In his cross-examination, the plaintiff admitted that he had not produced bills relating to the purchase of different construction material. He further admitted that neither in the plaint nor in his affidavit he had specified the total area in square feet over which the construction was carried out. These admissions materially weaken his claim regarding the extent of construction and the expenditure allegedly incurred.

It is also evident from the agreement dated 13.04.2018 (Ex.P-1) that the construction was to be carried out in accordance with the building plan annexed to the agreement, which has been exhibited as Ex.P-2. The said plan relates to the first floor of the building. Although the agreement stipulates a rate of Rs.950/- per sq.ft, the appellant has failed to establish, by cogent and reliable evidence, that construction was carried out over an area of approximately 4,400 sq.ft., as claimed by him. In absence of evidence establishing the actual constructed area, the appellant's assertion regarding the extent of construction cannot be accepted merely on the basis of his oral testimony.

The appellant has further contended that he incurred substantial expenditure towards construction materials, labour and other items required for completion of the building. However, the agreement itself stipulates a composite rate of Rs.950/- per sq.ft., inclusive of construction materials, labour, electrical fittings, doors, windows, tiles, sanitary fittings and other specified items. Therefore, the appellant was required to establish the extent of construction undertaken by him in accordance with the agreement and the corresponding amount payable. His failure to produce supporting bills, receipts or any reliable measurement of the constructed area renders his claim for the enhanced amount unsubstantiated.

The testimonies of the other witnesses examined by the plaintiff i.e. witness No. 2 Satyendra Kumar Singh, witness No.3- Ghanshyam Yadav and witness No.-4 Bablu Yadav (examined before the trial Court as PW2) have also been considered. However, their evidence do not establish the precise area of construction undertaken by the plaintiff or substantiate his claim that construction work worth Rs.38,20,875/- was executed. Consequently, their testimonies do not provide sufficient support for the plaintiff's claim for enhancement of the decretal amount.

Learned trial Court, in the absence of specific evidence regarding the actual expenditure incurred, assessed the value of the construction work and held that, against the agreed construction cost of Rs.23,75,000/-, the defendant had paid Rs.15,00,000/-. Accordingly, it determined that Rs.3,75,000/- remained payable to the plaintiff and decreed the suit to that extent, along with interest.

Appellant/plaintiff has failed to demonstrate that the learned trial Court ignored any material evidence or adopted an erroneous approach in assessing the amount payable. Interference by the appellate Court is not warranted, particularly when the appellant has failed to establish the factual foundation necessary for granting the enhanced monetary relief claimed by him.

It is pertinent to note that the respondent/defendant has disputed the extent of construction and has asserted that the appellant left substantial work incomplete. The respondent/defendant has also disputed the amount received and the expenditure allegedly incurred by the appellant. In such circumstances, it was incumbent upon the appellant to establish, through reliable and acceptable evidence, the actual work executed by him head and item-wise, its rate and the corresponding amount due. In absence of such proof, the appellant cannot claim enhancement of the amount decreed merely on the basis of his own assessment of the construction cost.

Upon consideration of the pleadings, the evidence adduced by the parties, the terms of the agreement dated 13.04.2018 (Ex.P-1), and the findings recorded by the learned trial Court, this Court finds no sufficient ground to conclude that the impugned judgment and decree suffer from any illegality or perversity warranting interference in the present appeal. The appellant has failed to establish that he is entitled to any amount over and above that is awarded by the learned trial Court.

Consequently, the appeal, being devoid of merit, is liable to be dismissed and is accordingly dismissed. The judgment and decree dated 1^st October 2022 passed by the learned Second Additional District Judge, Sakti, District Janjgir-Champa, in Civil Suit No.02-B/2020, are hereby affirmed.

Let a decree be drawn accordingly.