IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 205 of 1999(A)
1. KUTTIKRISHNAN
... Petitioner
Vs
1. EXECUTIVE OFFICER,KUTHANUR PANCHAYAT
... Respondent
For Petitioner :SRI.M.P.KRISHNAN NAIR
For Respondent :SRI.RAJESH SIVARAMANKUTTY
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :08/09/2010
O R D E R
M.N. KRISHNAN, J.
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A.S.NO.205 OF 1999
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Dated this the 8th day of September, 2010.
J U D G M E N T
This is an appeal preferred against the judgment and
decree in O.S.No.186/1994 of the Subordinate Judge’s
Court, Palakkad. The suit is one for realisation of money. It
is the case of the plaintiff that the panchayat has entrusted
him with two works; one relating to digging of well and
the other in relation to repairs and other things of a road.
According to the plaintiff, the estimated expenditure for the
well was Rs.15,000/= out of which Rs.10,500/= had been paid
and the balance amount of Rs.4,500/= is due. So far as the
other work is concerned, it is stated that the work involved
an expenditure of Rs.21,800/= and supervisory charge for
20 days at the rate of Rs.100/= totalling Rs.23,800/= out of
which Rs.5,000/= had been paid and therefore the balance
amount of Rs.18,800/= is due under the second contract.
Claiming interest at the rate of 18%, a total claim is made
for Rs.29,880/=.
2. As against this, the defendants would contend that
work was done under the untied scheme and as per the
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provisions of the said scheme, the work has to be done
directly by the panchayat and there was no provision for
entrusting the work with any contractor and accordingly,
they had done the work. It is their contention that they had
purchased materials from the plaintiff and had also paid
some amount for labour charges for the workers supplied
and that the work was completely done under the direct
control and supervision of the panchayat and therefore, the
plaintiff is not entitled to any relief.
3. In the trial court, PWs 1 and 2 and DW1 were
examined and Exts.A1 to A11 and B1 to B22 were marked.
Unfortunately, the document produced in the case had been
destroyed under rules presumably for the reason that no
notice regarding filing of appeal intimated to the court.
Therefore whatever available documents were supplied plus
certified copy of the deposition given to me by the learned
counsel for the appellant plus detailed narration of facts in
the judgment of the trial court , I am proceeding to dispose
of the appeal.
4. The learned counsel for the appellant would
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contend that evidence of PW1 and PW2 would establish the
fact of the plaintiff’s case and DW1 also to a certain extent
had admitted the same. On the contra, the learned
counsel for the respondents would contend that materials
furnished would only indicate that the panchayat has done
the work. Now, so far as the work is concerned, admittedly
an amount of Rs.5,000+5,500+3,000 had been handed over to
the plaintiff. They are evidenced by receipts which are
marked as Exts.B1, B2 and the contingent bill Ext.B6. Ext.B1
describes that the plaintiff has received Rs.5,500/= as the
cost of materials such as latrite stone and sand supplied.
Though the plaintiff would attempt to raise a contention
that he had signed only in blank signed revenue stamp paper,
the trial court did not believe it obviously for the reason
that handwriting in Ext.B1 is that of plaintiff which goes a
long way to prove that Ext.B1 is a document signed by him.
Ext.B2 is a receipt thereby he had received Rs.3,000/= by way
of cheque. It has also come out that he had also been paid
amount for the supply of labourers for the maintenance of
road i.e. Rs.2,000/=. The file which is produced by the
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panchayat and marked would reveal that the authorities had
sanctioned bill in the name of executive officer for incurring
expenditure which would indicate that the panchayat had
direct control over the work. The panchayat by virtue of
Ext.B1, contingent bill passed in favour of the plaintiff and
it was on the basis of the same Exts.B3 and B4 receipts were
issued by the plaintiff. Exts.B12 and B13 would reveal that
panchayat had directly paid Rs.5,000/= and Rs.3,000/=
respectively and Ext.B14 application would reveal that one
contractor-Thomas Mathew had made a request for payment
of Rs.5,000/= for the supply of materials and this had been
given which is evidenced by Ext.B15 receipt. So the
document produced by the panchayat would only show that
some amount has been handed over to the plaintiff as the
price of materials supplied by him that is latrite stone and
sand etc and wages for the labourers supplied. The other
connected document would reveal that panchayat by itself
had done the work and had expended amount for completion
of the work of well as well as road. If there had been a direct
entrustment as contended by the plaintiff for the contract
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work, then there should have been only one document
evidencing final settlement of the account. But it is not there
in this case. The plaintiff is also conscious of the fact that
work under the untied scheme has to be done by the
panchayat directly without the intervention of contractors
and at the most they can only seek the help of PWD
engineer for the completion of work. The learned counsel for
the appellant would contend that a member of the
panchayat namely Kesavan who was a member of the
opposition at that time had supported the case of the
plaintiff. It is seen from the records produced as discussed
by the court below that he had participated in the meeting
and it is further revealed that he cannot act against the
mandate of the procedure laid down by the superiors
regarding construction of the work. It is alleged that he had
joined with Kuttykrishnan to create trouble for the panchayat.
The evidence of PW1 also would reveal that he had
undertaken the work knowing fully well that there cannot
be a contract. So as projected by the panchayat at the most
what would have happened is, it should have taken the
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materials or some help from him and doing the work
under their direct supervision and in that process, had paid
amount to the plaintiff as well for supply of the materials.
The file would reveal that they had purchased materials
from another contractor namely Thomas Mathew and had
also paid amount to him. So these are documents which
convincingly establish that it was not a single contract
entrusted to the plaintiff for construction and completion of
the work. The trial judge had considered all these
materials and had arrived at a decision that plaintiff is not
entitled to the relief prayed for. I do not find any ground to
interfere with the said decision.
Therefore the appeal is dismissed but without costs.
M.N. KRISHNAN, JUDGE.
cl
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M.N. KRISHNAN, J.
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A.S.NO.205 OF 1999
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8th day of September, 2010.
J U D G M E N T