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TMI Blog2024 (5) TMI 1402X X X X Extracts X X X X X X X X Extracts X X X X ..... of constructing Government as well as private buildings. 5. He alleged that the defendants approached him for getting construction work of their house done on the property they had purchased in November, 2007. 6. It is alleged that it was agreed between the parties that the total expenditure with respect to construction of the house, including cost of material and labour, would be borne by the plaintiff and the defendants will make the payment of the work executed from time to time. 7. It is contended that the parties were also agreed that the plaintiff will carry out complete construction work over the RCC slab which will include brick masonry work, cement plastering, providing of doors & window frames, wooden shutters in doors & windows, windowpanes, electrical, water, sewerage fittings including laying of wires, pipelines etc., marble flooring in the rooms, tiles in kitchen & bath rooms and granite in kitchen. 8. He contended that he was also to carry out work of painting, polishing, providing of wooden almirahs in all bedrooms, wooden partition in drawing-cum-dining room, iron grills, railing etc. and also to provide door handles, latches and all other fittings and fixture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construction of his flats near Tunnel 103 and is having excessive building material, and he will construct the house of defendant no.1 and that he would charge Rs.6-7 lacs for completion of the same. 19. They contended that the plaintiff also visited the spot and thereafter on the understanding reached, i.e. construction of house, would be for a lump sum of Rs.6-7 lacs, the construction was started by the plaintiff. 20. They also claimed that Sh. Munish Sood told them that he will not take payment in his name and payment should be made to someone to whom he says and he named the plaintiff as the person to whom the payments are to be made. 21. They contended that they have never seen the plaintiff until the litigation started. 22. They denied that the plaintiff executed any work of the defendants or gave any bill thereof to the defendants. 23. They also stated that defendant no.2 was never a party to any talk between defendant no.1 and Sh. Munish Sood or Shri Yadupati Sood. 24. According to the defendants, the reason for the suit is the result of failure of talks between Col. S.S. Multani (Retd.) and Sh. Munish Sood etc. 25. It is specifically contended that there was no agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was raised by the plaintiff, who examined PW-2 Shiv Kumar who was supervising the work which fact was also admitted to be correct by defendant no.1. 37. It held that the evidence of PWs-3 to 5 proved that the construction work was carried out by them for the defendant at the instance of the plaintiff who used to make payments to them. 38. It held that defendant no.1 was an Advocate by profession and he failed to explain how and in what manner he issued two cheques for Rs.5 lacs each in favour of the plaintiff at the instance of Sh. Munish Sood, if the 1st defendant had really not seen Sh. Santosh Kumar, the plaintiff, before filing of the suit. 39. It also placed reliance on the payment of Rs.5 lacs by the 1st defendant to the plaintiff in the Criminal Court when the plaintiff had filed a Complaint under Section 138 of the Negotiable Instrument Act, contending that the cheque for Rs.5 lacs issued in his name by the 1st defendant, was dishonoured. 40. It held that the defendants did not examine Sh. Munish Sood to prove that he was the one who was getting the construction done; and that the defendants had not examined Col. S.S. Multani to prove that construction work of the 1st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Advocate by profession; having compromised the Complaint under Section 138 of the N.I. Act by which time he was aware of the final bill Ex.PW-1/D, and if he was not admitting the bill to be a final bill, he would have contested the Complaint under Section 138 of the N.I. Act and would not compromise the same by paying the cheque amount. 52. The lower Appellate Court also held that when the construction was done up to the satisfaction of the defendants and the plaintiff claimed Rs.19,75,146.24 ps, it was for the defendants to rebut that this bill is not a genuine bill, but they did not lead any evidence in that regard, stating that it is an exaggerated or inflated bill. 53. It accepted the plea of the plaintiff that there was no written agreement between the parties and construction was done on market rate basis, which means as per the rate of the particular item. 54. It held that Rs.19,75,146.24 ps claimed by the plaintiff for the total constructed area of 1455.82 square feet, indicates that the rates per square feet would be Rs.1356.72, which is just and reasonable, even if final bill Ex.PW-1/D, is not admissible evidence. 55. It rejected the plea of the defendants that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 1st defendant to the plaintiff and a further sum of Rs.5 lacs had been paid for compromise in the Complaint filed under Section 138 of the N.I. Act by the 1st defendant to the plaintiff. The balance claim of the plaintiff is Rs.9,75,146.24. 61. No doubt, the plaintiff placed reliance on Ex.PW-1/D, final bill, but the said final bill appears to have been generated after the construction was completed and it was not even signed by the plaintiff or the 1st defendant. So no reliance could have been placed on it by the plaintiff. 62. If the plaintiff's claim is that various items of work done by him for construction of the house of the 1st defendant was agreed to be done at the market rates, he should have adduced evidence about the market rate of each item of work, but he has not chosen to do so. 63. It is settled law that stipulations and terms of the contract have to be certain and the parties must have been consensus ad idem. The acceptance must be absolute and must correspond with the terms of the offer. The burden of showing the stipulations and terms of the contract, and that the minds where ad idem, is on the plaintiff. If the stipulations and terms are uncertain, and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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