IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 898 of 1996()
1. KOLAKATTIL MOOSAKUTTY
... Petitioner
Vs
1. BABU KUNHALANKUTTY
... Respondent
For Petitioner :SRI.P.K.ABOOBACKER (EDATHALA)
For Respondent :SRI.K.K.MOHAMED RAVUF
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :24/06/2009
O R D E R
K. SURENDRA MOHAN, J
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A.S. NO: 898 OF 1996
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Dated this the 24th June, 2009.
JUDGMENT
Appellant is the plaintiff in O.S.61/1992 of the Sub Court,
Tirur. The suit was filed for the realization of an amount of
Rs.47,744.20 from the defendant/respondent. The appellant
challenges the dismissal of his suit. The suit was filed in the
following facts and circumstances:-
2. The appellant and the respondent are relatives. The
respondent was employed in Kuwait. At that time he wanted to
construct a house of his own. Accordingly, as instructed by the
respondent, the appellant filled up a plot of land, got a plan
prepared for the construction of the house and after getting the
approval of the respondent to the plan, started construction of the
house. According to the appellant, he is not a builder or a
contractor and had undertaken the construction only on the
request of the respondent. The appellant had received an amount
of Rs.1 lakh from the respondent. After the work had progressed
considerably, the respondent started complaining about the quality
of the work and expressing his dissatisfaction. He directed the
appellant to stop the work. In the meanwhile, the appellant had
A.S.898/1996 2
already expended an amount of Rs.1,47,744.20 for the work. Since
only an amount of Rs.1 lakh had been paid by the respondent, the
balance was advanced by the appellant from his own pocket.
Though he demanded payment of the said amount, the same was
not paid. The plaintiff then caused the issue of a notice through his
Lawyer demanding the amount due to him. Thereupon, the
respondent replied to the notice stating that the work was not
entrusted to the appellant, and that he had suffered a loss of
Rs.70,000/- due to the defective construction of the house which he
was entitled to recover from the appellant. Since the amount
demanded was not paid, the appellant filed O.S.61/92 before the
Sub Court, Tirur praying for a decree for realisation of the amount
due to him, with interest.
3. The respondent filed written statement contending inter
alia that he had not entrusted the construction work to the plaintiff
and disputing the plaint claim in toto. According to him he had
enquired of the appellant/plaintiff as to how much amount would
be required to construct a house. After making enquiries, the
appellant had told him that an amount of Rs.2,92,000/- would be
required for completing the construction. Thereafter the
respondent’s wife requested the appellant to entrust the work of
A.S.898/1996 3
the house to some contractor. The respondent contended that
there was no privity of contract between the appellant and the
respondent. According to him, he never wanted the appellant to
develop the land before the construction of the house. When the
construction work was in progress he came to know that inferior
quality of wood had been used for the doors and window frames
and, therefore, he directed the appellant to remove the said frames
and to return the balance amount to his wife. However, since the
appellant did not turn up, the respondent’s wife sold the wooden
articles for an amount of Rs.12,000/-. The case of the respondent
is that only the basement of the house was built by the appellant.
As the work was not properly done cracks developed on the walls.
For the said work only an amount of Rs.30,000/- was spent. The
appellant was not willing to settle the accounts and to take back
the wooden frames. Therefore, the work was subsequently
entrusted to another contractor. The appellant was remaining
silent for a long time and thereafter the suit is filed raising a false
claim. Therefore, he prayed for dismissal of the suit.
4. The court framed the following issues and tried the suit:-
“1. Is there any privity of contract between the
plaintiff and the defendant?
A.S.898/1996 4
2. Whether the plaintiff is entitled to realise
any amount?
3. Reliefs and costs?”
The evidence in the case consists of the oral testimonies of P.Ws 1
to 3 and D.W.1 and Exts.A1 to A12 and Exts.B1 to B4 documents.
The Commission report and plan in the case are marked Exts.C1
and C2 respectively.
5. The court below considered the case of the plaintiff in the
light of the evidence on record and the contentions advanced by the
rival parties. The appellant-plaintiff has produced a number of
letters which are admittedly written by the respondent from Kuwait.
According to the appellant, these letters clearly show that he was
entrusted with the construction of the house. After considering the
statements contained in the letters of the respondent, the Court
below came to the conclusion that there was no privity of contract
between the parties and that the appellant had not been entrusted
with the construction work, as alleged. The court below also
found that there was no acceptable and trustworthy evidence to
show that the appellant had expended the amount claimed in the
plaint for the construction of the respondent’s house. The court
below found that the conduct of the appellant in returning an
A.S.898/1996 5
amount of Rs.50,000/- to the respondent when the amount claimed
in the plaint was admittedly due to him was not at all the conduct
of a normal person. The court finds that no normal person would
have returned the amount especially when the relationship between
the respondent and the appellant was strained. Therefore, finding
that the plaint claim was not established the suit has been
dismissed by the court below.
6. The judgment and decree of the court below is attacked by
the counsel for the appellant pointing out that the statements in
Ext.A1 letter clearly show that there was entrustment of the
construction work to the appellant. The statements in Exts.A6 and
A7 lettters also support the case of the appellant that the
construction work had been entrusted by the respondents. It is an
admitted fact that an amount of Rs.1 lakh had been paid to him by
the respondent for the construction. In the above circumstances,
the finding of the court below that there was no privity of contract
is absolutely unjustified, it is pointed out. Though there is no
written contract between the parties, the documentary evidence in
the case clearly proves the existence of the contract between the
appellant and the respondent. Pursuant to the contract the
appellant had undertaken the construction work, the benefit of
A.S.898/1996 6
which has been taken by the respondent. Therefore, even if it is
assumed that there is no contract, the appellant is entitled to
recover the amounts claimed, under Section 70 of the Contract Act
since the work was not done gratuitously. Since the commission
report and the plan show that the construction of the house is
complete and since a detailed estimate has been prepared on the
basis of the rates prevailing at the time of construction, the exact
amount due to the appellant can easily be ascertained and
calculated from the assessement of the cost of construction made
by the Advocate Commissioner with the assistance of an expert, it
is argued. In view of the above, the counsel for the appellant prays
for a decree in terms of the claim made in the plaint.
7. The counsel for the respondent on the other hand disputes
the assertions made on behalf of the appellant. It is pointed out
that the plaintiff does not give any details of the amounts spent by
him or the break up of the items for which amounts were spent.
There is no statement of accounts produced along with the plaint.
He has also not furnished any statement of accounts to the
respondent. In the written statement also the above contentions
have been specifically pleaded by the respondent. In spite of the
above specific case put forward by the respondent, the
A.S.898/1996 7
appellant/plaintiff has not cared to produce any statement of
accounts or other evidence to show the break up of the amounts
claimed by him. In the absence of a proper quantification of the
amounts due, it is pointed out that no decree could be granted as
claimed in the plaint. Further, it is pointed out that admittedly the
plaintiff abandoned the construction work on 6.10.1990 pursuant
to Ext.A3 letter. However the suit is filed only on 21.3.1992, about
1 = years thereafter. The plaintiff has not taken any steps to have
the work allegedly done by him assessed or valued by a competent
person, at any time. He was aware that the respondent’s wife was
proceeding with the construction of the house through another
contractor after he had abandoned the work. However, nothing was
done by the appellant. He allowed the construction to proceed
unhindered and by the time the suit was filed even the finishing
works or the house had been completed and the respondent had
started residing therein. If actually, amounts had been due to the
plaintiff, he would never have allowed matters to reach such a
situation. Counsel further points out that the Commission report
Ext.C1 cannot be relied upon for the reason that when the
Commissioner visited the house it was completed in all respects
and the valuation was done by the Commissioner on the
A.S.898/1996 8
assumption that standard materials had been used. Therefore,
there is no evidence available regarding the nature of the materials
used or the expenses incurred by the appellant. Apart from the
above, admittedly an amount of Rs.50,000/- has been returned by
the plaintiff to the defendant after the alleged plaint claim had
arisen. If the claim of the plaintiff were genuine, the amount would
not have been returned, it is pointed out. In the absence of any
evidence to show that any amount was due to the appellant it is
contended that the court below was right in dismissing the suit.
8. I have heard learned counsel Mr. P.Chandrasekhar for the
appellants and the leanred counsel Mr. K.K.Muhammed Ravuf for
the respondent. I have been taken through the pleadings and the
evidence in the case in detail.
9. The point that arises for consideration is:
“Whether the appellant-plaintiff has established
that any amount is due to him from the
respondent.”
10. It is the admitted case that the parties are relatives.
While the respondent was working in Kuwait, he wanted to
construct a house at his native place. According to the plaintiff he
had been entrusted with the construction of the house and an
amount of Rs.1 lakh had been paid for the construction work.
A.S.898/1996 9
However, according to the appellant, an amount of Rs.47,744.20
has been spent by him in excess which is sought to be recovered.
The claim of the appellant is seriously disputed by the respondent
as noted above.
11. A reading of the plaint shows that apart from pleading
that an amount of Rs.47,744.20 is due from the respondent being
the amount spent by him in excess of the amount of Rs. 1 lakh
entrusted to him by the respondent, no further details are given.
Since it is admitted that an amount of Rs. 1 lakh had been initially
entrusted with the appellant, it is his duty to have stated how the
said amount was spent or utilised . He also had a duty to disclose
how the excess amount that is claimed to have been spent by him
was spent. In the absence of any details, it is not possible to decide
whether the plaintiff has actually spent any amount as claimed.
Though the court below has found that there is no privity of
contract between the parties, it can be seen from the letters
produced, particularly Exts.A6, A7,A2 and A3 that there was an
agreement between the plaintiff and the defendant regarding the
construction of the house. It is also clear that the appellant was
entrusted with the construction work. However, there is no
evidence as to the nature of the construction undertaken by him or
A.S.898/1996 10
the amount expended by him for the purpose. In the absence of
any assessment of the work and a proper valuation thereof, it is
not possible to decide whether any amount is due to the appellant
on this count.
12. In the above context, it is worth noticing that the
appellant had not initiated any prompt action after he had
admittedly abandoned the work pursuant to the letter Ext.A3. By
remaining inactive he allowed the respondent’s wife to complete the
construction through another contractor. Consequently all chances
of having the work alleged to have been done by him assessed and
properly valued have been lost. The conduct of the appellant
throws a cloud of suspicion on the genuineness of the claim made
by him. The Commission report Ext.C1 mentions in the third
paragraph thereof that the details of the various items “cannot be
verified at present without damaging the building. Hence the
standard provisions as per the statement of the plaintiff was
adopted for valuation.” Therefore, the valuation has been prepared
relying on the statements made by the plaintiff with respect to the
items of work done by him as well as the quality of the materials
used. Since the actual work has not been assessed or valued, the
report of the Commissioner which is based on the cost of standard
A.S.898/1996 11
provisions cannot be relied upon to decide whether any amount is
due to the appellant from the respondent. As rightly pointed out
by the counsel for the respondent, the conduct of the appellant in
returning the amount of Rs.50,000/- when, according to him an
amount of Rs.47,000/- and more was due to him is rather strange.
The conduct also casts serious doubts on the genuineness of his
claim. In the absence of clear and cogent evidence showing that
amounts were actually due from the respondent to the appellant,
no decree for realisation of money could be granted to him. In the
present case since the appellant-plaintiff has not been able to
establish his claim, the court below was right in dismissing the suit.
13. Counsel for the appellant points out that the wooden
doors and window frames fixed by the appellant were admittedly
removed by the respondent characterising them as made of
inferior quality wood. D.W.1 has admitted in the box that the said
frames were sold for an amount of Rs.12,000/- because the
appellant had not cared to remove them from the site. According
to the counsel for the appellant since there is no evidence to show
that any amount is due from the appellant to the respondent, the
said amount should be directed to be returned and therefore prays
for the passing of a decree at least for the said amount. The prayer
A.S.898/1996 12
is opposed by the counsel for the respondent pointing out that the
consistent case of the respondent right from Ext.A5 reply notice is
that the defective construction of the appellant had caused a loss of
Rs.70,000/- to the respondent. The defective wooden frames were
retained by him for sometime because of a compromise arrived at
between the appellant and the respondent. As per the
compromise, the appellant could have removed the defective
wooden frames after paying the amount due to the respondent.
Since the amount was not paid, the respondent finally sold the
wooden frames and appropriated the price of the said articles. It is
further pointed out that the question whether any amount at all is
due to one or the other can be decided only on a proper settlement
of the accounts. Since the appellant has not come forward with a
statement of accounts or satisfied the respondent regarding the
expenses incurred by him, no decree for realization of any amount
from the respondent could be granted to the appellant.
14. It is admitted by the appellant that he had received an
amount of Rs.1 lakh from the respondent which, according to him,
he had utilised for the construction of the respondent’s house. The
details and the manner in which the amount was utilised is not
available. According to the respondent, only an amount of
A.S.898/1996 13
Rs.30,000/- was spent for his construction. Be that as it may, it is
not possible to conclude whether any amount is due to the
appellant from the respondent. The claim of the appellant cannot
be accepted in the absence of a proper statement of accounts
regarding the utilisation of the amount admittedly received by him.
Therefore, it is not possible to find out whether the amount of
Rs.12,000/- admittedly received by the respondent by sale of the
defective wooden frames represents amounts due to the appellant.
In the above view of the matter the contentions of the appellant has
to fail.
15. For the foregoing reasons, I do not find any reason to
interfere with the judgment and decree of the court below. The
same is therefore confirmed and the appeal is dismissed. No costs.
K. SURENDRA MOHAN
Judge
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A.S.898/1996 14
K. SURENDRA MOHAN, J
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A.S.NO: 898 OF 1996
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JUDGMENT
Dated: 24th June, 2009.