- (1.) The appellant M/s. Multimetals Ltd. by way of this appeal has challenged the impugned judgment and decree dt. 2-5-1997 of ADJ No. 4, Kota in Civil Suit No. 5/96 (titled as K.L. Jolly through his L.Rs. v. Multimetals Ltd., Kota) on the grounds inter-alia that the respondents (hereinafter referred to as "the plaintiffs") had instituted a suit against the appellant (hereinafter referred to as "the defendant") praying therein for a decree of Rs. 4,38,938/ - seeking possession of the machineries as per details furnished in Annexure-1 to the plaint or alternatively reimbursing the cost to the tune of Rs. 39.000/- being the cost of the machinery.
(2.) The further case of the appellant is that a contract was executed between the parties to the suit on 7-12-1977 for construction of a new shed in the premises of the defendant. &s per the averments of the plaint, the duration of contract was up to 6-10-1978. The plaintiff had to execute the construction work on the instructions of the Architect and as per the drawings and the designs, so provided by them. The plaintiffs alleged collusiveness between the Architect and the defendant since the drawings and designs were not provided to them within time as a result of which, the delay had occurred In execution of the work. It was alleged that the desings were changed by the Architect repeatedly and further that the Architect had instructed the plaintiff to dismantle the constructed work and to reconstruct the same. As a result, the plaintiff sought extension of time for completion of the work which was not granted to him by the Architect. He further alleged that his machineries were detained in the factory premises of the defendant on the instructions of the Architect. The plaintiff also impugned the deductions made by the Architect in his final bill. He also impugned the genuineness of the recovery of Rs. 91,500/- on account of damages for delay in construction of the shed. In the written statement filed by the defendant, he had specifically denied the contention of the plaintiff by contending inter alia that: (a) the suit was not maintainable on account of S. 69 of the Indian Partnership Act; (b) the plaintiff had deliberately delayed the execution of the work due to which, the operation schedule of the defendant was unnecessarily delayed resulting in huge loss; (c) the construction work was defective and contrary to the instructions of the Architect and further the defects were not removed which were brought to his notice; (d) the Architect was empowered by the agreement of the contract to make the amendments in the drawings as and when required and the work could be deemed to have been completed only after issuance of the certificate by the Architect, Since the work had not been completed, it makes clear that the plaintiff had not completed the work after the date of filing of the written statement, and; (e) the suit was not maintainable on account of limitation being time-barred. During the pendency of the suit, the plaintiff died and his legal representatives were taken on the record.
(3.) On the basis of the pleadings of the parties, the trial Court framed issues on which the parties were to lead their evidence.;