# V. R. SUBRAMANYAM v. B. THAYAPPA AND OTHERS

- **Citation:** [1961] 3 S.C.R. 663
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** Civil Appeals Nos. 321 and 322 of 1956
- **Bench:** J. L. Kapur, J. C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-r-subramanyam-v-b-thayappa-and-others-2066
- **Pages:** 6

## Headnote

663
B11ilding contract-Defective work-Addition•! work not covered
by agreement-Compensation, when can be allowed-Indian Contract
Act, I872 (9 of I872), s. 70.
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 claimed.
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 194849; arising out of the judgment and decree dated
8~
February 1.
Subramanyarn
v.
Thayappa
Shah ].
664
SUPREME COURT REPORTS
[1961]
January 9, 1948, of the Principal District Judge,
Bangalore, in Original Suits X os. 55 of 1946-4 7 and
117of1945-46 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. Tho 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 WftS to construct for the itppellant
on the plot six shops ft butting a public roa.d, the main
building ftt the rear of the shops, an out-house and a
garage according to a site plan. Thll respondent was
to be remunerftled at rftte.q specified in the agreement:
for constructions with R. C. C. roofing, -the ra.te
stipulated was Rs. 4-2-0 per square foot anrl for" tiled
construction " it was Rs. 3-2-0 per square f1JoL
The
:Municipality of Bangalore did nnt sanction the plan
as proposed by the appellant·.. The plan was altered
and it was sanctioned, subject to LLosc alterations. By
the alterations the shops were deleted from the plan,
the area of the out-house was increased, anrl a puja
room on the grnund floor and a,n extrn room o

## Text

I
I
3 S.C.R.
SUPREME COURT REPORTS
V. R. SUBRAMANYAM
v.
B. THAYAPPA AND OTHERS.
(J. L. KAPUR and J. C. SHAH, JJ.)
663
B11ilding contract-Defective work-Addition•! work not covered
by agreement-Compensation, when can be allowed-Indian Contract
Act, I872 (9 of I872), s. 70.
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 claimed.
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 194849; arising out of the judgment and decree dated
8~
February 1.
Subramanyarn
v.
Thayappa
Shah ].
664
SUPREME COURT REPORTS
[1961]
January 9, 1948, of the Principal District Judge,
Bangalore, in Original Suits X os. 55 of 1946-4 7 and
117of1945-46 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. Tho 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 WftS to construct for the itppellant
on the plot six shops ft butting a public roa.d, the main
building ftt the rear of the shops, an out-house and a
garage according to a site plan. Thll respondent was
to be remunerftled at rftte.q specified in the agreement:
for constructions with R. C. C. roofing, -the ra.te
stipulated was Rs. 4-2-0 per square foot anrl for" tiled
construction " it was Rs. 3-2-0 per square f1JoL
The
:Municipality of Bangalore did nnt sanction the plan
as proposed by the appellant·.. The plan was altered
and it was sanctioned, subject to LLosc alterations. By
the alterations the shops were deleted from the plan,
the area of the out-house was increased, anrl a puja
room on the grnund floor and a,n extrn room on the
first floor were arlr],,d to the plan.
A compound wall
was also to be constructed. The respondent carrird
out a subRtantial part of the construction work according to plan anrl the appellant paid to him diverse
sums of money and delivered building materials. The
aggregate H.monnt ac("ordingly receivrd by the respondent wa.s Rs. 20,200.
But bPfore the work could be
cou1pletcd disputes arose between the appellant and
the rc.-1ponuent about the work done by the latter. TLe
a.ppE>!IH.nt elaimed that the work done was d~fock<e
and tlrnt hP was entitled to compensMion for l"ffrcLing
3 S.C.R.
SUPREME COURT REPORTS
665
,repairs necessary to rectify the defects. The respondent claimed cGmpensation 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 1946-4 7, for a decree for Rs. 8,515-4-0 being
the amount of compensation which the 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 .J.ess
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. 55of1946-47 and in suit No. 117of1945-46,
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. , T,he High Court . reversed the
' decree passed in suit No. 54 of 1946-4 7 and dismissed
the appellant's claim in its entirety. '.l'he decrees
I96I
Subramanyam
v.
Thayappa
Shah J.
z96z
Subramanyam
v.
Thayappa
Shah J.
666
SUPREME COURT REPORTS
[1961]
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 re8pondent 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 accorda.nce 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
'
3 S.C.R.
SUPREME COURT REPORTS
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. IL "
· 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 a.warded
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 constrtwtions 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 compensatiort 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
I96I
Subramanyam
v.
Thayappa
Shah ].
Sulwa1nanyam
v.
Thayappa
Shah].
668
SUPREME COURT REPORTS
(1961]
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 app!Jllant 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 fur compensation for loss suffered
by him because of the a.lleged 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 questipn in the companion
suits when no appeal has been preferred against .the
decree in suit No. 54of1946-47, and no plea 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. Qne hearing fee.
Appeals dismissed.
I•