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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 ..... on it by the plaintiff. 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. 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 the parties are not ad idem, there is no contract at all (Mayawanti vs. Kaushlya Devi) [ 1990 (4) TMI 304 - SUPREME COURT] Since the claim of the plaintiff is with regard to the distinct items of work said to have been executed by him for the 1st defendant, burden was on him to establish the rate of each item of work, for which, there is no evidence adduced by him. Therefore, though I hold that there is privity of contract between the parties, I hold that that the trial Court as well as the First Appellate Court we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclude 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 fixtures, so as to make the house habitable. 9. He alleged that the parties had agreed that the defendants will pay the charges as per item-wise rates prevalent in the market. 10. According to the plaintiff, he completed the house in all respects and handed it over to the defendants in October, 2008, but the defendants failed to make payment on the final bill Ex.PW-1/D. 11. He claimed that he had spent Rs.19,75, 146.24 ps and that the defendants had paid Rs.5 lacs through four different cheques, i.e. dt. 13.05.2008, 15.07.2008, 06.09.2008 08.09.2008, respectively. 12. It is also stated that that defendant no.1 had issued a cheque bearing no.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 agreement ever entered into with the plaintiff nor did they agree that any payment item-wise will be made. 26. They reiterated that Sh. Munish Sood was the person who was actually executing the work and he told many times that he will use the material which he had brought for his flats at Tunnel 103, but remained unused. 27. The defendants also explained that Sh. Munish Sood told them that there was escalation of price of material and he should be paid more and a further amount of Rs.2 lacs to Rs.2.5 lacs. 28. They alleged that though they were reluctant to make the payment, since they needed the house urgently and since Sh. Munish Sood was threatening to del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 defendant's house was assigned by him to Munish Sood. 41. It held that one cannot rule out existence of an oral agreement between the parties. 42. It held that though the plaintiff had not placed on record original bills with regard to the work so carried out by him, the perusal of the final bill Ex.PW-1/D prepared by the plaintiff proves the fact that he had constructed the house of the defendants, as per the choice of the defendants, and that defendants were satisfied with the construction work. 43. It held that the first defendant had taken the plea that when he took the copy of the bill, he found it to be on highly excessive side, but still he paid through cheque Rs.5 lacs to Munis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 there was no privity of contract between the plaintiff and the defendants. The RSA 56. Challenging the same, this RSA is filed. 57. This Regular Second Appeal was admitted on 16.03.2024 to consider the following substantial questions of law: 1. Whether in the absence of any document produced by the plaintiff-respondent to establish privity of contract between the parties evidencing settlement of terms of the alleged contract, could presumption be drawn in favour of the plaintiff regarding existence of a contract in his favour, especially when PW-2 and PW-4 have denied the existence of the same? 2. Whether both the learned courts erred in law in decreeing the suit of the plaintiff-respondent ignoring the admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 the parties are not ad idem, there is no contract at all (Mayawanti vs. Kaushlya Devi) (1990) 3 SCC 1. 64. Counsel for the plaintiff/respondent sought to sustain the judgment of the trial Court as well as the lower Appellate Court by contending that it is not necessary for his client to prove the rates for each item of work in view of the settlement in the Criminal Court, when the Complaint under Section 138 of the N.I. Act was compromised. 65. A reading of the judgment in the Criminal Court, marked as Ex.PW-1/B, does not indicate any reference about the genuineness of the final bill Ex.PW-1/D and it merely records that the 1st defendant/accused had paid the cheque amount of Rs.5 lacs to the plaintiff-complainant and that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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