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PETITIONER: V.   R. SEJBRAMANYAM

       Vs.

RESPONDENT: B.   THAYAPPA AND OTHERS.

DATE OF JUDGMENT: 01/02/1961

BENCH: SHAH, J.C. BENCH: SHAH, J.C. KAPUR, J.L.

CITATION:  1966 AIR 1034            1961 SCR  (3) 663

ACT: Building   contract--Defective  work--Additional  work   not covered    by   agreement--Compensation,   when    can    be allowed--Indian Contract Act, 1872 (9 of 1872), s. 70.

HEADNOTE: The appellant entered into an agreement with the  respondent who  was a building contractor entrusting him with the  work of constructing a house and shops.  The respondent undertook the  work  but before it could be completed  disputes  arose between  them  and the appellant  claimed  compensation  for effecting  repairs  to rectify defective work  done  by  the respondent,  and  the  respondent  claimed  compensation  at certain rates set up by him for work for which there was  no express provision in the written agreement.  Suits based  on their respective claims were filed by the appellant and  the respondent  which  were partly decreed by the  trial  court. The  High  Court  dismissed the  appellant’s  suit  in  its. entirety  and remanded the respondent’s suit  directing  the appointment   of  a  qualified  engineer  for   determining, according  to  the  directions given in  the  judgment,  the amount  payable to the respondent for work done in  addition to  the  agreed  work under  the  contract.   The  appellant contended  that  the respondent having failed to  prove  the oral  agreement  pleaded the respondents’ suit  should  have been dismissed and compensation quantum meruit which was not claimed should not have been awarded. Held, that if a party to a contract rendered service to  the other  not  intending to do so gratuitously  and  the  other party had obtained some benefit, the former was entitled  to compensation for the value of the services rendered by  him. The  respondent  not  intending to do  gratuitous  work  was entitled to compensation for additional work not covered  by the written agreement. Even  if  the  respondent  failed to  prove  his  claim  for compensation  at  the prevailing market rate under  an  oral agreement  the court had jurisdiction to award  compensation for work done under S.   70 of the Contract Act. The appellant’s suit having been dismissed by the High Court and  no appeal having been preferred against it, it was  not open  to him to reagitate the same question of  compensation in  the  companion suits in which no equitable  set-off  was

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claimed.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 321 and 322 of 1956. Appeals by special leave from the judgment and decree  dated September  21.  1951, of the Mysore High  Court  in  Regular Appeals Nos. 3,24,13 and 25 of 1948. 49, arising gut of  the judgment and decree dated 85 664 January 9, 1948, of the Principal DistriCt Judge, Bangalore, in  Original  Suits Nos. 55 of 1946-47 and  117  of  1945-46 respectively. S.   K.  Venkataranga Aiyangar and S. K. Aiyangar,  for  the appellant. B. K. B. Naidu, for the respondents. 1961.   February 1. The Judgment of the Court was  delivered by SHAH,  J.-V.  R. Subramanyam, the appellant  herein  is  the owner  of plot No. 29, Subedar Chattram Road in the town  of Bangalore.  B. Thayappa respondent is a building contractor. The  appellant  entrusted the respondent with  the  work  of constructing  a  house and shops on the plot, on  terms  and conditions  set out in a written agreement dated October  1, 1942,  which was slightly modified on October 6,  1942.   By the  agreement  the  respondent was  to  construct  for  the appellant on the plot six shops abutting a public road,  the main  building at the rear of the shops, an out-house and  a garage  according to a site plan.  The respondent was to  be remunerated  at  rates  specified  in  the  agreement:   for constructions with R. C. C. roofing, the rate stipulated was Rs. 4-2-0 per square foot and for " tiled construction "  it was  Rs.  3-2-0  per  square  foot.   The  Municipality   of Bangalore  did  not  sanction the plan as  proposed  by  the appellant.   The  plan was altered and  it  was  sanctioned, subject to those alterations.  By the alterations the  shops were  deleted from the plan, the area of the  out-house  was increased, and a puja room on the ground floor and an  extra room on the first floor were added to the plan.  A  compound wall was also to be constructed.  The respondent carried out a  substantial  part of the construction work  according  to plan and the appellant paid to him diverse sums of money and delivered   building   materials.   The   aggregate   amount accordingly received by the respondent was Rs. 20,200.   But before  the work could be completed disputes  arose  between the appellant and the respondent about the work done by  the latter.   The  appellant  claimed that  the  work  done  was defective  and  that  he was entitled  to  compensation  for effecting 665 repairs  necessary to rectify the defects.   The  respondent claimed compensation at certain rates set up by him for work done  for the appellant for which no express  provision  was made  in the written agreement.  Each party set up  an  oral agreement   about  the  remuneration  to  be  paid  to   the respondent for the extra work which was not included in  the original agreement. The  appellant filed a suit in the court of the  Subordinate Judge,  Bangalore,  against the respondent which  was  later transferred  to the court of the Principal  District  Judge, Bangalore,  and numbered O. S. 54 of 1946-47, for  a  decree for Rs. 8,515-4-0 being the amount of compensation which the

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appellant  claimed  he  was entitled  to  receive  from  the respondent for defective work and for delay in completion of the  construction.  The respondent filed a suit against  the appellant  which was later transferred to the Court  of  the Principal  District  Judge, Bangalore, and  numbered  55  of 1946-47.  By this suit, the respondent claimed a decree  for Rs.  5,988-12-0  being the remuneration due to him  for  the work done in constructing the house less Rs. 20,200 received from  the appellant.  The respondent filed another suit  No. 117  of  1945-46  for  a decree  for  Rs.  15,001-10-9  with interest and notice charges being the amount due to him  for the construction of the out-house, godown, first floor  room and flight of steps and the value of some building materials which the respondent claimed he had left in the premises  of the appellant and which the latter had wrongfully removed. The  trial court granted to the appellant a decree  for  Rs. 3,000  in  suit No. 54 of 1946-47.  To  the  respondent,  he granted a decree for Rs. 2,989-6-0 in suit No. 55 of 1946-47 and in suit No. 117 of 1945-46, he granted a decree for  Rs. 13,329-10-9.  Both the parties felt themselves aggrieved  by the  decrees passed in the three suits and six appeals  were preferred  to  the  High Court of Judicature  of  Mysore  at Bangalore  against those decrees.  The High  Court  reversed the  decree passed in suit No. 54 of 1946-47  and  dismissed the appellant’s claim in its entirety.  The decrees 666 passed  in suit Nos. 55 of 1946-47 and 117 of  1945-46  were also set aside and proceedings were remanded to the District Court  with  a  direction  that  a  qualified  engineer   be appointed  as Commissioner to determine the amounts  payable to  the  respondent for work done in addition  to  the  work agreed  to  be done under the written  contract.   The  High Court  ordered that the same be determined "  in  accordance with the directions " given in the judgment.  The  appellant has appealed to this court against the decrees in suits Nos. 55  of 1946-47 and 117 of 1945-46 with special  leave  under Art.   136  of  the  Constitution  and  he  challenges   the directions given in the order of remand. The dispute between the parties related to the  construction of  the out-house, garage, puja room, the room on the  first floor,  the stair case ’leading to the upper floor room  and the  compound  wall.   In  respect  of  these  constructions (except  for the compound wall) the District  Judge  awarded compensation to the respondents at the rate of Rs. 4-2-0 per square  foot and in respect of the compound wall he  awarded compensation  at  the rate of Rs. 5 per  running  foot,  and certain  additional charges.  The High Court held  that  the respondent  was  entitled  to receive  compensation  at  the prevailing  market  rate for constructions  which  were  not covered by the agreements dated October 1, 1942 and  October 6,  1942.   The  High  Court  negatived  the  plea  of   the respondent  that  the appellant had agreed to pay him  at  " extra  rates for deviations and additions  not  specifically contained in the original agreement.  " The High Court  then held  that for the construction of the  out-house,puja  room and  the  upper floor room, the respondent was  entitled  to receive  compensation at the rate of Rs. 4-2-0 and  for  the out-house he was entitled to receive " some extra amount for the  additional constructions.  " In these items,  according to the High Court, there was no material deviation from  the original plan.  The High Court further directed that for the flight  of stairs compensation be paid either "by way  of  a lump   sum  or  on  cubical  content  whichever   was   more practicable  or  common according to the  rates  which  they proposed to indicate for such

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667 additional  work.  " The High Court however held that  there was substantial variation from the original contract in  the construction of the garage, and therefore the garage could " not be covered by the contracted rate" and must be paid  for at the rates current at the end of the year 1943.  The  High Court also directed that " if the extra items not covered by Exs.   VII and VII(a) have been constructed or  supplied  by the  defendants as claimed in his bills Exs.  XXI, XXII  and XXIII  are to be paid for in addition to the flat rate,  the basis  on  which they should be paid  for  may..........  be fixed in accordance with the rates contained in Ex.  II.  " Counsel  for the appellant submitted that as in the view  of the  High  Court  the respondent failed to  prove  the  oral agreement  pleaded  by  him,  the  suit  should  have   been dismissed,  and  they should not have  awarded  compensation quantum meruit which was not claimed. it was urged that  the respondent must succeed or fail’ on the case pleaded by him, and  not  on a cause of action not pleaded.   In  our  view, there  is  no  substance in this  contention.   As  we  have already observed, in respect of the additional work done  by the  respondent,  both the parties set up  conflicting  oral agreements.  These were not accepted by the High Court.   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 under 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 668 substantial departure from the claim made by the respondent. It  was  then  urged that the High Court  was  in  error  in directing assessment of compensation for the additional work " in accordance with the rates mentioned in Ex.  II.  "  The plaintiff’s witness T. S. Narayana Rao had admitted that the rates in Ex.  II were the current market rates for  building construction  work similar to the appellant’s building.   In the  view of the High Court, the rates set out in that  bill were not excessive. If with a view to restrict the scope  of the  enquiry,  the learned judges of the High Court  gave  a direction to the Commissioner for assessing compensation  on the  basis of rates which were approved by  the  plaintiff’s witness,  it  cannot  be said that  any  serious  error  was committed  in  incorporating  that  direction  which   would justify our interference. Finally  it  was urged that the appellant  was  entitled  to claim the loss suffered by him on account of defective  work by  way  of an equitable set off in the claim  made  by  the respondent  in suits Nos. 55 of 1946-47 and 117 of  1945-46. But  the  appellant made a claim in a substantive  suit  for compensation for loss suffered by him because of the alleged defective  work  done  by the  respondent.   That  suit  was dismissed  by  the  High Court and it is  not  open  to  the appellant thereafter to seek to reagitate the same  question in  the  companion suits when no appeal has  been  preferred against  the decree in suit No. 54 of 1946-47.- and no  plea

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of  equitable  set  off  has  been  raised  in  the  written statements in the companion suits. In our view, there is no substance in any of the contentions raised.   The appeals therefore fail and are dismissed  with costs.  One hearing fee.                                        Appeals dismissed. 669