1. Plaintiff is the appellant. The plaintiff was carrying on contract business in the matter of construction of houses. The first defendant is the wife and second defendant is the husband. The first defendant was the owner of the premises bearing Door No. 184, North Veli Street, Madurai in T.S. No. 752/1, and the second defendant was the owner of premises bearing Door No. 12, Goods Shed Street, Madurai.
2. The case of the plaintiff is that on 11.10.1975 the plaintiff agreed to do contract work of constructing a ground floor in Door No. 184, North Veli Street, Madurai in T.S. No. 732/1 and an agreement Ex. A-1 was entered into containing the terms and conditions thereof. The plaintiff commenced and completed the work of constructing the ground floor on 22.2.1976, Then a second agreement Ex. A-7 was entered into on 18.5.1976 for construction of first and second floors in the same premises. During the subsistence of the second agreement an oral agreement was also entered into between the plaintiff and the second defendant for doing some repair work in Door No. 12, Goods Shed Street, Madurai. The work of second agreement in respect of Door No. 184, and the work of oral agreement in respect of Door No. 12 were also completed. During the work the defendants have paid some amounts to the plaintiff. After the work was completed the plaintiff gave a final Bill Ex. A.8 on 20.9.1976 claiming No. 31314.46. But the amount was not paid and therefore the plaintiff sent a notice Ex. A-11 dated 5.12.1976. For that the defendants sent a reply Ex. A-12 dated 22.12.1976 raising untenable contentions. The plaintiff then sent a rejoinder notice Ex. A-3 on 2.1.1977, but it was of no avail. Therefore the plaintiff has filed the suit.
3. The defendants denied that the suit amount is due to the plaintiff. They contended that they have paid a number of amounts several times to the plaintiff as well as his employee Kannappa Chettiar all totalling to Rs. 98,800. Apart from this the defendants have also supplied 960 bags of cement costing Rs. 18,082 and also iron materials of the value of Rs. 8,796.96 for which the plaintiff is under the agreement liable to give credit. In fact the plaintiff has received from the defendants amounts much more than what he is entitled to for the work done by him.
4. The trial court on consideration of the evidence adduced found that the suit should have been filed for accounts and not specific sum as claimed and therefore the suit is not maintainable. The trial court then on consideration of the evidence held that in fact there is no amount due from the defendant to the plaintiff as claimed by him and on the other hand the defendant has paid them excess amount of Rs. 24,022.20. Thus holding the trial court dismissed the suit. Therefore the appeal by the plaintiff.
5. After the arguments were heard for some time, it was agreed by both sides that the real controversy in the matter is with regard to only two things and one is in respect of a sum of Rs. 25,000 alleged to have been paid by the defendants to the plaintiff under receipts Exs.B-26 to B-39 through one Kannappa Chettiar who was an employee of the plaintiff, and the second is as to whether the plaintiff is entitled to any sum in respect of repair work done by the plaintiff to the premises No. 12, Goods Shed Street, and if so what amount, and on decision of these points any amounts due to the plaintiff can be determined.
6. Regarding the first point, the trial court has held that the said sum of Rs. 25,000 covered by Exs.B-26 to B-39 issued by Kannappa Chettiar to the defendants has been paid to the plaintiff. This finding is questioned in the appeal now.
7. On careful consideration of the evidence on this point I am inclined to agree with the finding of the trial court. It is not in dispute that Kannappa Chettiar was working under the plaintiff. The defendants have examined Kannappa Chettiar as D.W.2 and he has testified that he received the amounts mentioned in Exs.B-26 to B-39 from the defendants and he paid them to the plaintiff. Therefore it is true that Exs.B-26 to B-39 receipts were issued by Kannappa Cheltiar. The question arises whether Kannappa Chettiar paid the amounts to the plaintiff. The plaintiff (P.W.I) has stated that to fetch money, from the parties he used to send Kannappa Chettiar. He has also stated that Kannappa would pay such amounts received by him to him (plaintiff). The further evidence of the plaintiff is that he has not asked Kannappa. anything about the defendants' claim that they have paid the amounts to Kannappa. This is unlikely if really he had not received the amounts from Kannappa.
8. He has further stated that the defendants belong to a well-to-do family. He has also stated that even while the work was being done he would ask defendants for money and they would pay the amounts through cheques. This would show as rightly said by the trial court, that the plaintiff would not have allowed the amounts due to be accumulated to a large extent. This would also indicate that it is probable that the amount should have been paid to Kannappa by the defendants and Kannappa had paid those amounts to the plaintiff. Ex. A-16 account books filed by the plaintiff would show that in fact some amounts had been received by Kannappa and he has issued receipts for them.
9. Kannappa (D.W.2) also has deposed that some time the plaintiff would ask him to remit the money into bank collected from the parties and he would do so, and the pass book of the plaintiff would show this fact. The trial court has pointed out that purposely the plaintiff has withheld his bank pass book. It is the further evidence of Kannappa (D.W.2) that even from 1962 the plaintiff was known to him. Therefore the argument of the learned Counsel for the appellant-plaintiff that Kannappa was in the employment of the plaintiff only for eight months and therefore the plaintiff would not have the confidence in him to allow him to collect money from the parties carries no conviction. The plaintiff in the plaintiff has stated that Kannappa has been dismissed from service but in the evidence he would prevaricate and state that Kannappa himself in October, 1976 stopped coming to work, and Kannappa (D.W.2) himself has stated that as he fell ill he stopped going to work. The trial Court had the benefit of seeing the witness and hearing them and therefore any finding of fact of it shall not be interfered with in the appeal unless there is strong ground for that. Considering the entire circumstances in the case it appears to me that it must be true that the defendants have paid the amounts covered by receipts Exs.B-26 to B-39 and that amounts have been paid by Kannappa to the plaintiff.
10. Coming to the second point, it is admitted that the plaintiff did some repair work in the house of second defendant bearing Door No. 12, Goods Shed Street, Madurai. Therefore there is no gainsaying that the defendants arc liable to pay some amount for that. The question is what amount shall be paid. In the plaint for this work the plaintiff has claimed Rs3,082.97. Ex. A-8 is a copy of the Bill given to the defendants and therein too this amount has been mentioned. The defence is that this amount is excessive. But the defendants would not say what is the amount they are liable to pay for the said work. Inasmuch as there is no agreement as to what amount shall be paid, a reasonable amount has to be arrived at, as stated by the trial court, under Section 70 of the Indian Contract Act.
11. For the purpose of fixing reasonable amount in respect of the work for which no rate was agreed, at the instance of the plaintiff a Commissioner was appointed and he submitted a report Ex.C-1. Therein he has referred to Ex. A-8 Bill and the repair work done at Door No. 12, Goods Shed Street, and he has stated that he found that the work had been executed as per the specifications given in Ex. A-8. He has further stated that the rates claimed are quite reasonable. The Commissioner is an Engineer and his report has to be, in the normal course, accepted as correct.
12. The trial court however would not accept it on the ground that the Commissioner has not been examined by the plaintiff and the defendants have not been given a chance to cross-examine him. This approach of the trial Court is indeed wrong. A Commissioner's report can be accepted and acted upon unless it appears to the court that the Commissioner shall be examined. No objection seems to have been filed by the defendants to the Commissioner's report and they have not taken any steps to examine him in the court. In these circumstances the Commissioner's report can be accepted, and on the basis of Ex. A-8 and Commissioner's report the plaintiffs claim of Rs. 3,082.97 for the repair work done at Door No. 12, Goods Shed Street, can be taken to be correct.
13. In the result, the plaintiff would be entitled to the said amount of Rs. 3,082.97 in respect of the repair work done to the house at Door No. 12, Goods Shed Street, Madurai. To this extent the appeal stands allowed and there will be a decree accordingly. In other respects the appeal is dismissed. There will be no order as to costs throughout.