Decided on March 05,1970

Usharani Sanyal Appellant
Sen Brothers Respondents


S.K. Datta, J. - (1.) This is an appeal against the judgment and decree of affirmance obtained by a contractor, for building works.
(2.) The Plaintiff's case, in short, is that the Defendant, who is the owner of premises No. 1/2 Nandy Street P.S. Ballygunj, engaged the Plaintiff, a firm of building contractor, for additions and alterations in her said premises. An estimate of Rs. 7,673 for the works was submitted on January 15, 1954, which was accepted by the Plaintiff. It was further agreed that payments would be made as advance of Rs. 2,000 on February 19, 1954, Rs. 2,000 on March 15, 1954, Rs. 2,000 on April 15, 1954, and the balance on the completion of the work by May 22, 1954. The work commenced and excepting advance of Rs. 2,000, other payments were not made on due dates -On the contrary, estimate for additional work for construction of an additional room was asked for and a further estimate was submitted on March 22, 1954, which was accepted. A payment of Rs. 2,000 was made against both the jobs. On May 19, 1954, the Plaintiff was further required to do additional work of construction of the front balcony verandah. The Plaintiff performed its part of the contract while the payments as stipulated were not forthcoming. As the works were nearing completion, the Defendant gave out that unless the wood -works were completed in course of the day, which was an impossibility, the Defendant would not allow the Plaintiff's mistress to work further. - On the following day on July 25, 1954, the Defendant did not allow the Plaintiff's men to do further work and attempts to persuade the Plaintiff failed. The Defendant further wrongfully detained the Plaintiff's materials valued at Rs. 350. While the Plaintiff was always willing and ready to perform its part of the contract, the Defendant was guilty of breach of contract. The Plaintiff submitted its running bill No. 433 dated June 30, 1954, for Rs. 9,466 -4 -9 and bill No. 435 dated July 20, 1954, for Rs. 382 -1 -9 for works done by it (vide sch. A to the plaint). The Defendant made payments of Rs. 6,800 during the period from February 19, 1954 to June 20, 1954, leaving a balance of Rs. 3,048 -6 -0. The price of goods detained, vide sch. B to the plaint, was Rs. 350 and accordingly the claim was laid at Rs. 3,398 -6 -6 for which the decree was prayed for.
(3.) The Defendant contested the claim by filing a written statement and contended inter alia that she was not guilty of any breach of contract, the works done by the Plaintiff were defective and the Plaintiff stopped work from July 2, 1954, with a view to wriggle out of the contract. The allegation about detention of the goods was denied. It was also alleged that the Plaintiff failed to complete the works, it was under obligation to perform in spite of demands. Some works mentioned in the bills were defective, while other works referred to therein were not even done by it. The claim made in the suit was disputed and it was further contended that there was excess payment by the Defendant. It was lastly contended that the suit was time -barred.;

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