IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 567 of 1999(B)
1. GODAN NAMBOODIRIPAD
... Petitioner
Vs
1. PURUSHOTHAMAN NAMBOODIRI
... Respondent
For Petitioner :SRI.A.P.CHANDRASEKHARAN (SR.)
For Respondent :SRI.S.V.BALAKRISHNA IYER (SR.)
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :16/10/2009
O R D E R
HARUN-UL-RASHID,J.
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A.S.NO.567 OF 1999
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DATED THIS THE 16TH DAY OF OCTOBER, 2009
JUDGMENT
Defendant in O.S.No.60/88 on the file of the Sub Court,
Ottapalam is the appellant. The suit was filed for recovery of the
amount advanced to the defendant under Ext.A1 agreement
executed by the defendant in favour of lst plaintiff and Divakaran
Somayajippadu. The lst Plaintiff and defendant entered into an
agreement (Ext.A1) agreeing to construct a compound wall for
the plaintiffs’ property and received a sum of Rs.30,000/- as
advance in October 1984. The defendant carried 14 loads of
granite and constructed a compound wall to a length of 100 feet
and height of 4-5 feet. He did not complete the work. The rate
per unit was Rs.325/-. Admittedly, the defendant did not
complete the work as agreed. On 24/11/1985 the defendant sent
Ext.A4 letter to the lst plaintiff expressing his inability to
proceed with the work and advised the lst plaintiff to engage one
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Kunhan for completing the work. The above said facts are not
seriously disputed by either parties. The plaintiffs alleged that
the defendant committed breach of contract, as he did not
construct a compound wall; but only a portion. The oral
evidence of PWs.1 and 3 and Ext.A4 conclusively proved that the
defendant did not complete the compound wall. In Ext.A4 letter
the defendant had undertaken to refund the amount received as
advance less the amount spent by him for constructing the
portion of the compound wall.
2. It is an admitted case of the plaintiffs that the
defendant constructed a portion of the compound wall. The trial
court disbelieved the version of the plaintiffs that the compound
wall constructed by the defendant is collapsed. The trial court
rightly held that there is no evidence for the plaintiff to prove
that a portion of the compound wall fell down. In such
circumstances, the trial court rightly held that out of the advance
amount of Rs.30,000/- the defendant can retain the amount spent
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by him for constructing the part of the wall.
3. The trial court relied on the evidence of PW-3 to
prove that the total quantum of work done by the defendant. PW-
3 is an Engineer. Exts.A5 and A6 are the details noted by PW-3
at the time of taking measurement. There is no dispute regarding
the rate per unit agreed by the parties. PW-3 assessed the cost of
construction and calculated an amount of Rs.5,092/- at the rate
of Rs.325/- per unit. The trial court believed the evidence of
PW-3 and relied on Exts.A5 and A6. The court also noticed the
fact that the name of PW-3 was included in the original witness
list and PW-1 spoke that PW-3 was engaged to conduct check
measurement.
4. The learned counsel for the appellant contended that
the court below went wrong in permitting the plaintiffs to
examine PW-3 after remand, that his evidence cannot be used to
prove that PW-2 did the rest of the work in the light of the
evidence tendered by PW-2 himself. I have examined the
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testimonies of the parties and the documents produced by them.
PW-3 is an Engineer by profession. He has 28 years of service.
He testified before the court below that during 1985 he had
occasioned to measure and assess the quantity of the work done
by the defendant. The trial court accepted the plea of the
defendant that he had constructed the compound wall upto a
length of 151 feet. The amount quantified by PW-3 and accepted
by the court at Rs.5,092/- cannot be said to be reasonable and
adequate for the construction of 151 feet long compound wall
having 4-5 feet height. The amount assessed is too inadequate.
5. In the circumstances, this Court is inclined to fix a
reasonable amount as spent by the defendant for the construction
of a portion of the compound wall. In the circumstances, the
amount assessed as cost of the construction is modified and re-
fixed at Rs.10,000/-. Therefore, the plaintiffs are entitled to a
decree for Rs.20,000/- with interest at 9% per annum from the
date of suit till the date of decree and at 6% per annum
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thereafter.
In the result, the appeal is partly allowed. The judgment
and decree passed by the trial court is modified to the extent
indicated above. No order as to costs.
HARUN-UL-RASHID,
Judge.
kcv.
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