IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 963 of 1996()
1. FACT UDYOGAMANDAL
... Petitioner
Vs
1. T.M.SASI
... Respondent
For Petitioner :SRI.ANTONY DOMINIC,A.M.SHAFFIQUE
For Respondent :SRI.S.V.BALAKRISHNA IYER,P.B.KRISHNAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :09/12/2010
O R D E R
M.N. KRISHNAN, J.
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A.S. NO. 963 OF 1996
& Cross Objection
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Dated this the 9th day of December, 2010.
J U D G M E N T
This appeal is preferred against the
judgment and decree passed by the Subordinate
Judge, North Paravur in O.S.338/92. The suit
is one for realisation of the amount due for
transporting garbage from the Fertilizers and
Chemicals Travancore Ltd. The plaintiff has
claimed an amount of Rs.66,726.25 and the trial
court has granted a decree for Rs.44,362.26. It
is against that decision the defendant has come
up in appeal. The plaintiff has also filed a
cross-objection with respect to the disallowance
of the amount which he had claimed as the amount
not due from him towards provident fund and
other statutory liabilities.
A.S. 963 OF 1996 &
Cross Objection
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2. Heard the learned counsel for both the
sides. Though the issue is very simple and it
could have been settled out without any
confusion, but I find that the issues are
unnecessarily complicated and therefore it is
desirable to understand the scope of the suit
itself. Lastly it is desirable to refer to
Ext.A4 document first to know the claim of the
plaintiff.
3. The plaintiff would contend that out of
the amount due from 1.5.89 to 31.10.89(6 months)
he is entitled at the rate of Rs.12,650/- each
per month but only 40% of the amount had been
given and the rest had been withheld by the
defendants amounting to Rs.45,540/-. It is also
the case of the plaintiff that under the heads
of statutory deductions Rs.30,000/- had been
deducted which is also not correct and therefore
the plaintiff is entitled to have an amount of
A.S. 963 OF 1996 &
Cross Objection
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Rs.75,540/-. At the time of filing of the suit
the plaintiff would contend that since the
amount of Rs.8813.75 had been reimbursed to him,
he has filed the suit for balance amount of
Rs.66,726.25.
4. On the other hand, the defendant as seen
from the written statement would contend for the
position that the work has not been
satisfactorily done and as per the terms of the
agreement only 40% need to be paid and all the
amounts so due has been paid and statutory
conditions has been met and only when it was
found that an amount of Rs.8,800/- which was
found in excess of the statutory due collected
was reimbursed. Therefore the defendant would
contend that there is no reason to grant any
relief to the plaintiff. So the crux of the
matter only depends upon the fact what is the
amount due and whether it has been paid or not.
A.S. 963 OF 1996 &
Cross Objection
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5. The learned trial judge had elaborately
considered the matter and held that Rs.9295.99
as per Bill No. 28 in Ext.A2 is given to the
plaintiff in 1989. The Court also found that an
amount of Rs.13,068/- also is due from the
defendant as Provident Fund amount. Therefore
the Court deducted those two amounts and granted
a decree for realisation of Rs.44,362.26.
6. Now the learned counsel for the
appellant would submit before me for perusal,
Ext.A2 invoice to convince the Court that the
amount has been duly paid and he would refer to
the voucher of 26.5.89 where it relates to these
bills of 1985-90 for an amount of Rs.45,950/-
and had made some allowance in favour of the
plaintiff and an amount of Rs.35508.48 is
passed. The next voucher is dated 9.11.89 and
an amount of Rs.9295.990 is paid after deduction
of the statutory dues as well as the advance.
A.S. 963 OF 1996 &
Cross Objection
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The voucher dated 18.11.89 represents Rs.3,921/-
which is paid after deduction. The last voucher
dated 15.1.90 represents Rs.6822.09 as the
amount disbursed. Now as stated by me earlier
if it is calculated at the rate of Rs.12,650/-
for six months the amount would come to
Rs.75,900/-. The deductions as per Ext.A1
agreement is permissible only when there is a
deficiency of work committed by the contractor.
The methodology adopted in Ext.A1 agreement is
that a log book is maintained and reports are
received regarding the satisfactory nature of
the work done and thereafter the bills are
passed. So unless and until the establishment
is able to show that the work has not been done
properly the contractor is entitled to get the
entire amount. So it is the duty of the
establishment to convince the Court that he has
not done the work in accordance with the
A.S. 963 OF 1996 &
Cross Objection
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prescription. Though an amount is claimed by the
contractor there was no necessity for the
defendant to plead in the written statement
with respect to their entitlement to reduce the
amount to be paid. Therefore it appears from
the materials available that the defendant
wanted to raise a contention of reduction of the
amount for non performance of the contract.
7. The trial court correctly found that the
material point which would convincingly
establish about the nature of the work is the
log book which is kept in the possession of the
establishment. It is not coming to the lime
light and no satisfactory answer is tendered for
the non-production of the log book. Therefore
when one calculates the amount as per the
contract and the amount due is found out and
after deduction of the amount the balance is
found out the entitlement is Rs.44,262.26. Since
A.S. 963 OF 1996 &
Cross Objection
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no materials are forthcoming to deduct for non
performance nothing can be deducted.
8. The learned counsel for the appellant
wanted to rely upon Ext.A2 which would show that
amounts have been paid as per Ext.A2 voucher.
As stated by me earlier it does not specify the
date or event for which it is paid and therefore
Ext.A2 as such does not prove the case of the
defendant that the amount has been paid as
claimed by the plaintiff. Unless the full
picture is properly explained it cannot help the
defendant to prove the payment. Therefore the
appeal cannot be allowed.
9. Now coming to the cross-objection. The
cross-objection is with respect to the
diallowance of the amount which the plaintiff
claimed as the amount not due towards Provident
Fund etc. It can be seen from the materials
available that the outstanding amount was only
A.S. 963 OF 1996 &
Cross Objection
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Rs.13,500/- whereas the department has collected
Rs.21,000/-. They had promptly reimbursed the
amount which was collected in excess that what
has been due. So there is no question of
unnecessary collection for the statutory
liability and therefore the plaintiff is not
entitled to get any amount for the collection
with respect to the same. So the cross-
objection also does not merit consideration.
Therefore it is also dismissed.
From these discussions the Appeal as well as
the Cross Objection fail and both are dismissed.
Sd/-
M.N. KRISHNAN, JUDGE.
ul/-
[true copy]
P.A. To Judge.
A.S. 963 OF 1996 &
Cross Objection
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M.N. KRISHNAN, J.
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A.S. No.963 OF 1996
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J U D G M E N T
9th December, 2010.