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Judgment
A.C. Arumugaperumal Adityan, J.—This appeal has been preferred against the decree and judgment passed in O.S. No. 316 of 1988 on
the file of the Sub-Court, Coimbatore. The plaintiff is the appellant herein.
The short facts of the case of the plaintiff in the plaint are as follows:
The plaintiff is working as a Building Contractor at Coimbatore. The plaint schedule property S. No. 536/3-B, a vacant site belongs to the first
defendant through Government assignment. To the said land, a tender was called for constructing an hostel for working women through M/s.
Krishnaraj & Associates. The tender was called for from the first defendant. The plaintiff had agreed to construct the working women hostel for a
sum of Rs. 8,67,938.39/-. Subsequently the said tender amount was reduced by 5% by fixing the same at Rs. 8,24,541.47/-. The tender was also
confirmed by the first defendant. Since the first defendant had failed to produce the building materials in time the building could not be completed
as per the agreed date. On 1.5.1985 the defendant had begun to construct the building. As requested by the first defendant, the plaintiff had
agreed to put up additional construction regarding Servant''s Quarters, washing yard and Gas cylinder store room. The architect of the first
defendant viz. Krishnaraj also gave necessary advances in connection with construction of the above said additional building by the plaintiff. A final
bill was produced by the plaintiff to the tune of Rs. 9,85,968.72/-, but as requested by the first defendant, the said amount was restricted to Rs.
9,62,745/-. At the time of agreement the plaintiff had paid Rs. 10,000/- towards caution deposit. Including the said caution deposit of Rs.
10,000/- the amount due to the plaintiff comes to Rs. 9,72,645/-. The first defendant had paid Rs. 6,72,742.48/- on various dates. The balance
due to the plaintiff come to Rs. 2,99,903/-. The plaintiff is entitled to 12% interest per annum for the same from 26.2.1985 to 24.2.1988. Hence,
the plaintiff has filed the suit claiming Rs. 4,07,668.15/- being costs of additional construction.
The defendants 1 to 3 have filed a joint written statement contending that the first defendant had called for tender for construction of working
women hostel. The plaintiff had bid the tender in auction at Rs. 8,67,938.39/-, but restricted to Rs. 8,24,541.47/-. The tender offer of the plaintiff
was accepted for Rs. 6,84,498.39/-. The first defendant never agreed to supply iron rod or cements at the Government rate. But subsequently the
first defendant had supplied cements at the Government rate. The first defendant never agreed to pay any interest. Hence, the suit is liable to be
dismissed. The defendants 4 to 11 remain exparte.
On the above pleadings the learned trial Judge has framed five issues and on the basis of the documentary and oral evidences, has decreed the
suit for a sum of Rs. 1,61,299/- being the cost of additional construction. Aggrieved by the findings of the learned trial judge, the plaintiff has
preferred this appeal?
Now the only point for determination in this appeal is whether there was any agreement for putting additional construction and if so what is the
amount due to the plaintiff?
The point:
6(a) The plaintiff has claimed Rs. 2,99,909/- towards the costs of additional construction under Ex.A.1-tender, but the trial Court has decreed the
suit for Rs. 1,61,299/-. So for the disallowed amount the plaintiff has preferred this appeal. Ex.A.37 is the completion of building construction
certificate dated 20.7.1985. Ex.A.9 is the final bill which shows that the plaintiff has claimed Rs. 88,674.67/- towards the additional work
executed in connection with the construction of servant''s quarters, gas room, and pipe room and washing yard and apart from this further
construction in respect of water supply and sanitation item and also civil work not covered under Ex.A.1-tender and the electrical items not
covered under Ex.A.1-tender have also been executed. Ex.A.9-final bill which shows that Rs. 1,52,881.25/- is the amount due towards the
additional construction. Ex.A.35 is the plan relating to the additional construction. Ex.A.9 has been signed by the architect of the first defendant.
P.W.2 is the architect of the first defendant, who has signed in Ex.A.9. In his evidence he speaks about the additional construction. But in the
cross-examination P.W.2 would admit that towards the additional construction a sum of Rs. 1,25,000/- had incurred toward expenses. So as per
the evidence of P.W.2 only a sum of Rs. 1,25,000/- has been spent by the plaintiff towards the cost of the additional construction. But the trial
Court has not considered this aspect of the evidence of P.W.2 but has decreed for Rs. 1,61,299/-.
6(b) The learned Counsel appearing for the respondents would contend that there was no written agreement for the additional construction. This
defence was met by the learned Counsel appearing for the appellant by relying on Section 70 of the Contract Act. Section 70 of the Contract Act
runs as follows:
Where a person lawfully does anything for another person, or delivers anything to hi, not intending to do so gratuitously, and such another person
enjoys the benefit thereof, the letter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.
So as per the above provision of law under Ex.A.9 and also as per the evidence of P.W.2, the approved architect of the first defendant, the
plaintiff is entitled to the cost of the additional construction. The learned Counsel appearing for the appellant in support of the above said provision
of law relied on AIR 1968 SC 1034 : V 53 C 201 (Subramanyan v. Thayappa). The exact observation of the said dictum runs as follows:
If a party to a contract has rendered service to the other not intending to do so gratuitously and the other person has obtained some benefit, the
former is entitled to compensation for the value of the services rendered by him. Evidently, the respondent made additional constructions to the
building and they were not done gratuitously. He was therefore entitled to receive compensation for the work done which was not covered by the
agreement. The respondent claimed under an oral agreement compensation at prevailing market rates for work done by him: even if he failed to
prove an express agreement in that behalf, the court may still award him compensation u/s 70 of the Contract Act. By awarding a decree for
compensation under the Statute and not under the oral contract pleaded, there was in the circumstances of this case no substantial departure from
the claim made by the respondent.
Under such circumstances, I do not find any reason to interfere with the findings of the learned trial Judge. But the plaintiff will be entitled to Rs.
1,25,000/- towards the cost of additional construction instead of Rs. 1,61,299/-. Point is answered accordingly.
In fine, the appeal is dismissed but the suit is decreed for Rs. 1,25,000/- instead of Rs. 1,61,299/- towards the value of the additional
construction put by the appellant. The appellant is entitled to 12% p. a. interest for the said amount from the date of suit to the date of realisation
with proportionate costs.