{"id":217947,"date":"2009-06-24T00:00:00","date_gmt":"2009-06-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kolakattil-moosakutty-vs-babu-kunhalankutty-on-24-june-2009"},"modified":"2018-08-07T02:43:54","modified_gmt":"2018-08-06T21:13:54","slug":"kolakattil-moosakutty-vs-babu-kunhalankutty-on-24-june-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kolakattil-moosakutty-vs-babu-kunhalankutty-on-24-june-2009","title":{"rendered":"Kolakattil Moosakutty vs Babu Kunhalankutty on 24 June, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Kolakattil Moosakutty vs Babu Kunhalankutty on 24 June, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nAS.No. 898 of 1996()\n\n\n\n1. KOLAKATTIL MOOSAKUTTY\n                      ...  Petitioner\n\n                        Vs\n\n1. BABU KUNHALANKUTTY\n                       ...       Respondent\n\n                For Petitioner  :SRI.P.K.ABOOBACKER (EDATHALA)\n\n                For Respondent  :SRI.K.K.MOHAMED RAVUF\n\nThe Hon'ble MR. Justice K.SURENDRA MOHAN\n\n Dated :24\/06\/2009\n\n O R D E R\n                          K. SURENDRA MOHAN, J\n                ------------------------------------------------------------\n                            A.S. NO: 898 OF 1996\n                -----------------------------------------------------------\n                    Dated this the 24th June, 2009.\n\n                                    JUDGMENT\n<\/pre>\n
      Appellant is the plaintiff in O.S.61\/1992 of the Sub Court,<\/p>\n
Tirur.  The suit was filed for the realization of an amount of<\/p>\n
Rs.47,744.20 from the defendant\/respondent.                                 The appellant<\/p>\n
challenges the dismissal of his suit.                    The suit was filed in the<\/p>\n
following facts and circumstances:-\n<\/p>\n
      2.  The appellant and the respondent are relatives.                            The<\/p>\n
respondent was employed in Kuwait. At that time he wanted to<\/p>\n
construct a house of his own. Accordingly, as instructed by the<\/p>\n
respondent, the appellant filled up a plot of land, got a plan<\/p>\n
prepared for the construction of the house and after getting the<\/p>\n
approval of the respondent to the plan, started construction of the<\/p>\n
house.   According to the appellant, he is not a builder or a<\/p>\n
contractor and had undertaken the construction only on the<\/p>\n
request of the respondent. The appellant had received an amount<\/p>\n
of Rs.1 lakh from the respondent. After the work had progressed<\/p>\n
considerably, the respondent started complaining about the quality<\/p>\n
of the work and expressing his dissatisfaction. He directed the<\/p>\n
appellant to stop the work. In the meanwhile, the appellant had<\/p>\n
A.S.898\/1996                    2<\/span><\/p>\n
already expended an amount of Rs.1,47,744.20 for the work. Since<\/p>\n
only an amount of Rs.1 lakh had been paid by the respondent, the<\/p>\n
balance was advanced      by the appellant from his own pocket.<\/p>\n
Though he demanded payment of the said amount, the same was<\/p>\n
not paid. The plaintiff then caused the issue of a notice through his<\/p>\n
Lawyer demanding the amount due to him.            Thereupon,    the<\/p>\n
respondent replied to the notice stating that the work was not<\/p>\n
entrusted to the appellant, and that he had suffered a loss of<\/p>\n
Rs.70,000\/- due to the defective construction of the house which he<\/p>\n
was entitled to recover from the appellant.       Since the amount<\/p>\n
demanded was not paid, the appellant filed O.S.61\/92 before the<\/p>\n
Sub Court, Tirur praying for a decree for realisation of the amount<\/p>\n
due to him, with interest.\n<\/p>\n
      3. The respondent filed written statement contending inter<\/p>\n
alia that he had not entrusted the construction work to the plaintiff<\/p>\n
and disputing the plaint claim in toto. According to him he had<\/p>\n
enquired of the appellant\/plaintiff as to how much amount would<\/p>\n
be required to construct a house.      After making enquiries, the<\/p>\n
appellant had told him that an amount of Rs.2,92,000\/- would be<\/p>\n
required for completing the construction.           Thereafter the<\/p>\n
respondent’s wife requested the appellant to entrust the work of<\/p>\n
A.S.898\/1996                     3<\/span><\/p>\n
the house to some contractor.       The respondent contended that<\/p>\n
there was no privity of contract between the appellant and the<\/p>\n
respondent. According to him, he never wanted the appellant to<\/p>\n
develop the land before the construction of the house.       When the<\/p>\n
construction work was in progress he came to know that inferior<\/p>\n
quality of wood had been used for the doors and window frames<\/p>\n
and, therefore, he directed the appellant to remove the said frames<\/p>\n
and to return the balance amount to his wife.     However, since the<\/p>\n
appellant did not turn up, the respondent’s wife sold the wooden<\/p>\n
articles for an amount of Rs.12,000\/-. The case of the respondent<\/p>\n
is that only the basement of the house was built by the appellant.<\/p>\n
As the work was not properly done cracks developed on the walls.<\/p>\n
For the said work only an amount of Rs.30,000\/- was spent. The<\/p>\n
appellant was not willing to settle the accounts and to take back<\/p>\n
the wooden frames.         Therefore, the work was subsequently<\/p>\n
entrusted to another contractor.       The appellant was remaining<\/p>\n
silent for a long time and thereafter the suit is filed raising a false<\/p>\n
claim. Therefore, he prayed for dismissal of the suit.<\/p>\n
      4. The court framed the following issues and tried the suit:-<\/p>\n
            “1. Is there any privity of contract between the
\n      plaintiff and the defendant?\n<\/p>\n
A.S.898\/1996                    4<\/span><\/p>\n
            2. Whether the plaintiff is entitled to realise
\n      any amount?\n<\/p>\n
            3. Reliefs and costs?”\n<\/p>\n
The evidence in the case consists of the oral testimonies of P.Ws 1<\/p>\n
to 3 and D.W.1 and Exts.A1 to A12 and Exts.B1 to B4 documents.<\/p>\n
The Commission report and plan in the case are marked Exts.C1<\/p>\n
and C2 respectively.\n<\/p>\n
      5. The court below considered the case of the plaintiff in the<\/p>\n
light of the evidence on record and the contentions advanced by the<\/p>\n
rival parties.  The appellant-plaintiff has produced a number of<\/p>\n
letters which are admittedly written by the respondent from Kuwait.<\/p>\n
According to the appellant, these letters clearly show that he was<\/p>\n
entrusted with the construction of the house. After considering the<\/p>\n
statements contained in the letters of the respondent, the Court<\/p>\n
below came to the conclusion that there was no privity of contract<\/p>\n
between the parties and that the appellant had not been entrusted<\/p>\n
with the construction work, as alleged.       The court below also<\/p>\n
found that there was no acceptable and trustworthy evidence to<\/p>\n
show that the appellant had expended the amount claimed in the<\/p>\n
plaint for the construction of the respondent’s house. The court<\/p>\n
below found that the conduct of the appellant in returning an<\/p>\n
A.S.898\/1996                    5<\/span><\/p>\n
amount of Rs.50,000\/- to the respondent when the amount claimed<\/p>\n
in the plaint was admittedly due to him was not at all the conduct<\/p>\n
of a normal person. The court finds that no normal person would<\/p>\n
have returned the amount especially when the relationship between<\/p>\n
the respondent and the appellant was strained. Therefore, finding<\/p>\n
that the plaint claim was not established the suit has been<\/p>\n
dismissed by the court below.\n<\/p>\n
      6. The judgment and decree of the court below is attacked by<\/p>\n
the counsel for the appellant pointing out that the statements in<\/p>\n
Ext.A1 letter clearly show that there was entrustment of the<\/p>\n
construction work to the appellant. The statements in Exts.A6 and<\/p>\n
A7 lettters also support the case of the appellant that the<\/p>\n
construction work had been entrusted by the respondents. It is an<\/p>\n
admitted fact that an amount of Rs.1 lakh had been paid to him by<\/p>\n
the respondent for the construction. In the above circumstances,<\/p>\n
the finding of the court below that there was no privity of contract<\/p>\n
is absolutely unjustified, it is pointed out. Though there is no<\/p>\n
written contract between the parties, the documentary evidence in<\/p>\n
the case clearly proves the existence of the contract between the<\/p>\n
appellant and the respondent.       Pursuant to the contract the<\/p>\n
appellant had undertaken the construction work, the benefit of<\/p>\n
A.S.898\/1996                     6<\/span><\/p>\n
which has been taken by the respondent. Therefore, even if it is<\/p>\n
assumed that there is no contract, the appellant is entitled to<\/p>\n
recover the amounts claimed, under Section 70 of the Contract Act<\/p>\n
since the work was not done gratuitously. Since the commission<\/p>\n
report and the plan show that the construction of the house is<\/p>\n
complete and since a detailed estimate has been prepared on the<\/p>\n
basis of the rates prevailing at the time of construction, the exact<\/p>\n
amount due to the appellant can easily be            ascertained and<\/p>\n
calculated from the assessement of the cost of construction made<\/p>\n
by the Advocate Commissioner with the assistance of an expert, it<\/p>\n
is argued. In view of the above, the counsel for the appellant prays<\/p>\n
for a decree in terms of the claim made in the plaint.<\/p>\n
      7. The counsel for the respondent on the other hand disputes<\/p>\n
the assertions made on behalf of the appellant. It is pointed out<\/p>\n
that the plaintiff does not give any details of the amounts spent by<\/p>\n
him or the break up of the items for which amounts were spent.<\/p>\n
There is no statement of accounts produced along with the plaint.<\/p>\n
He has also not furnished any statement of accounts to the<\/p>\n
respondent. In the written statement also the above contentions<\/p>\n
have been specifically pleaded by the respondent. In spite of the<\/p>\n
above    specific case   put   forward   by the     respondent,  the<\/p>\n
A.S.898\/1996                    7<\/span><\/p>\n
appellant\/plaintiff has not cared to produce any statement of<\/p>\n
accounts or other evidence to show the break up of the amounts<\/p>\n
claimed by him. In the absence of a proper quantification of the<\/p>\n
amounts due, it is pointed out that no decree could be granted as<\/p>\n
claimed in the plaint. Further, it is pointed out that admittedly the<\/p>\n
plaintiff abandoned the construction work on 6.10.1990 pursuant<\/p>\n
to Ext.A3 letter. However the suit is filed only on 21.3.1992, about<\/p>\n
1 = years thereafter. The plaintiff has not taken any steps to have<\/p>\n
the work allegedly done by him assessed or valued by a competent<\/p>\n
person, at any time. He was aware that the respondent’s wife was<\/p>\n
proceeding with the construction of the house through another<\/p>\n
contractor after he had abandoned the work. However, nothing was<\/p>\n
done by the appellant.    He allowed the construction to proceed<\/p>\n
unhindered and by the time the suit was filed even the finishing<\/p>\n
works or the house had been completed and the respondent had<\/p>\n
started residing therein. If actually, amounts had been due to the<\/p>\n
plaintiff, he would never have allowed matters to reach such a<\/p>\n
situation. Counsel further points out that the Commission report<\/p>\n
Ext.C1    cannot be relied upon for the reason that when the<\/p>\n
Commissioner visited the house it was completed in all respects<\/p>\n
and the valuation was done by            the Commissioner on the<\/p>\n
A.S.898\/1996                     8<\/span><\/p>\n
assumption that standard materials had been used. Therefore,<\/p>\n
there is no evidence available regarding the nature of the materials<\/p>\n
used or the expenses incurred by the appellant. Apart from the<\/p>\n
above, admittedly an amount of Rs.50,000\/- has been returned by<\/p>\n
the plaintiff to the defendant after the alleged plaint claim had<\/p>\n
arisen. If the claim of the plaintiff were genuine, the amount would<\/p>\n
not have been returned, it is pointed out.     In the absence of any<\/p>\n
evidence to show that any amount was due to the appellant it is<\/p>\n
contended that the court below was right in dismissing the suit.<\/p>\n
      8. I have heard learned counsel Mr. P.Chandrasekhar for the<\/p>\n
appellants and the leanred counsel Mr. K.K.Muhammed Ravuf for<\/p>\n
the respondent. I have been taken through the pleadings and the<\/p>\n
evidence in the case in detail.\n<\/p>\n
      9. The point that arises for consideration is:\n<\/p>\n
         “Whether the appellant-plaintiff has established
\n         that any amount is due to him from the
\n         respondent.”\n<\/p>\n
      10.   It is the admitted case that the parties are relatives.<\/p>\n
While the respondent was working in Kuwait,            he wanted to<\/p>\n
construct a house at his native place. According to the plaintiff he<\/p>\n
had been entrusted with the construction of the house and an<\/p>\n
amount of Rs.1 lakh had been paid for the construction work.<\/p>\n
A.S.898\/1996                    9<\/span><\/p>\n
However, according to the appellant, an amount of Rs.47,744.20<\/p>\n
has been spent by him in excess which is sought to be recovered.<\/p>\n
The claim of the appellant is seriously disputed by the respondent<\/p>\n
as noted above.\n<\/p>\n
      11. A reading of the plaint shows that apart from pleading<\/p>\n
that an amount of Rs.47,744.20 is due from the respondent being<\/p>\n
the amount spent by him in excess of the amount of Rs. 1 lakh<\/p>\n
entrusted to him by the respondent, no further details are given.<\/p>\n
Since it is admitted that an amount of Rs. 1 lakh had been initially<\/p>\n
entrusted with the appellant, it is his duty to have stated how the<\/p>\n
said amount was spent or utilised . He also had a duty to disclose<\/p>\n
how the excess amount that is claimed to have been spent by him<\/p>\n
was spent. In the absence of any details, it is not possible to decide<\/p>\n
whether the plaintiff has actually spent any amount as claimed.<\/p>\n
Though the court below has found that there is no privity of<\/p>\n
contract between the parties, it can be seen from the letters<\/p>\n
produced, particularly Exts.A6, A7,A2 and A3 that there was an<\/p>\n
agreement between the plaintiff and the defendant regarding the<\/p>\n
construction of the house. It is also clear that the appellant was<\/p>\n
entrusted with the construction work.         However, there is no<\/p>\n
evidence as to the nature of the construction undertaken by him or<\/p>\n
A.S.898\/1996                   10<\/span><\/p>\n
the amount expended by him for the purpose. In the absence of<\/p>\n
any assessment of the work and a proper valuation thereof, it is<\/p>\n
not possible to decide whether any amount is due to the appellant<\/p>\n
on this count.\n<\/p>\n
      12.   In the above context, it is worth noticing that the<\/p>\n
appellant had not initiated any prompt action after he had<\/p>\n
admittedly abandoned the work pursuant to the letter Ext.A3. By<\/p>\n
remaining inactive he allowed the respondent’s wife to complete the<\/p>\n
construction through another contractor. Consequently all chances<\/p>\n
of having the work alleged to have been done by him assessed and<\/p>\n
properly valued have been lost.     The conduct of the appellant<\/p>\n
throws a cloud of suspicion on the genuineness of the claim made<\/p>\n
by him.     The Commission report Ext.C1 mentions in the third<\/p>\n
paragraph thereof that the details of the various items “cannot be<\/p>\n
verified at present without damaging the building.       Hence the<\/p>\n
standard provisions as per the statement of the plaintiff was<\/p>\n
adopted for valuation.” Therefore, the valuation has been prepared<\/p>\n
relying on the statements made by the plaintiff with respect to the<\/p>\n
items of work done by him as well as the quality of the materials<\/p>\n
used. Since the actual work has not been assessed or valued, the<\/p>\n
report of the Commissioner which is based on the cost of standard<\/p>\n
A.S.898\/1996                    11<\/span><\/p>\n
provisions cannot be relied upon to decide whether any amount is<\/p>\n
due to the appellant from the respondent. As rightly pointed out<\/p>\n
by the counsel for the respondent, the conduct of the appellant in<\/p>\n
returning the amount of Rs.50,000\/- when, according to him an<\/p>\n
amount of Rs.47,000\/- and more was due to him is rather strange.<\/p>\n
The conduct also casts serious doubts on the genuineness of his<\/p>\n
claim. In the absence of clear and cogent evidence showing that<\/p>\n
amounts were actually due from the respondent to the appellant,<\/p>\n
no decree for realisation of money could be granted to him. In the<\/p>\n
present case since the appellant-plaintiff has not been able to<\/p>\n
establish his claim, the court below was right in dismissing the suit.<\/p>\n
      13. Counsel for the appellant points out that the wooden<\/p>\n
doors and window frames fixed by the appellant were admittedly<\/p>\n
removed by the respondent characterising them as made of<\/p>\n
inferior quality wood. D.W.1 has admitted in the box that the said<\/p>\n
frames were sold for an amount of Rs.12,000\/- because             the<\/p>\n
appellant had not cared to remove them from the site. According<\/p>\n
to the counsel for the appellant since there is no evidence to show<\/p>\n
that any amount is due from the appellant to the respondent, the<\/p>\n
said amount should be directed to be returned and therefore prays<\/p>\n
for the passing of a decree at least for the said amount. The prayer<\/p>\n
A.S.898\/1996                    12<\/span><\/p>\n
is opposed by the counsel for the respondent pointing out that the<\/p>\n
consistent case of the respondent right from Ext.A5 reply notice is<\/p>\n
that the defective construction of the appellant had caused a loss of<\/p>\n
Rs.70,000\/- to the respondent. The defective wooden frames were<\/p>\n
retained by him for sometime because of a compromise arrived at<\/p>\n
between the appellant and the respondent.              As per the<\/p>\n
compromise, the appellant could have removed the defective<\/p>\n
wooden frames after paying the amount due to the respondent.<\/p>\n
Since the amount was not paid, the respondent finally sold the<\/p>\n
wooden frames and appropriated the price of the said articles. It is<\/p>\n
further pointed out that the question whether any amount at all is<\/p>\n
due to one or the other can be decided only on a proper settlement<\/p>\n
of the accounts. Since the appellant has not come forward with a<\/p>\n
statement of accounts or satisfied the respondent regarding the<\/p>\n
expenses incurred by him, no decree for realization of any amount<\/p>\n
from the respondent could be granted to the appellant.<\/p>\n
      14. It is admitted by the appellant that he had received an<\/p>\n
amount of Rs.1 lakh from the respondent which, according to him,<\/p>\n
he had utilised for the construction of the respondent’s house. The<\/p>\n
details and the manner in which the amount was utilised is not<\/p>\n
available.   According to the respondent, only an amount of<\/p>\n
A.S.898\/1996                    13<\/span><\/p>\n
Rs.30,000\/- was spent for his construction. Be that as it may, it is<\/p>\n
not possible to conclude      whether any amount is due to the<\/p>\n
appellant from the respondent. The claim of the appellant cannot<\/p>\n
be accepted in the absence of a proper statement of accounts<\/p>\n
regarding the utilisation of the amount admittedly received by him.<\/p>\n
Therefore, it is not possible to find out whether the amount of<\/p>\n
Rs.12,000\/- admittedly received by the respondent by sale of the<\/p>\n
defective wooden frames represents amounts due to the appellant.<\/p>\n
In the above view of the matter the contentions of the appellant has<\/p>\n
to fail.\n<\/p>\n
      15. For the foregoing reasons, I do not find any reason to<\/p>\n
interfere with the judgment and decree of the court below.      The<\/p>\n
same is therefore confirmed and the appeal is dismissed. No costs.<\/p>\n
\n\n\n\n\n                                          K. SURENDRA MOHAN\n                                                  Judge\njj\n\nA.S.898\/1996    14\n\n\n\n\n                      K. SURENDRA MOHAN, J\n\n                  -----------------------------\n\n                       A.S.NO: 898 OF 1996\n\n                  -----------------------------\n\n\n\n                            JUDGMENT\n\n\n\n                     Dated: 24th June, 2009.\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Kolakattil Moosakutty vs Babu Kunhalankutty on 24 June, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-217947","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nKolakattil Moosakutty vs Babu Kunhalankutty on 24 June, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kolakattil-moosakutty-vs-babu-kunhalankutty-on-24-june-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kolakattil Moosakutty vs Babu Kunhalankutty on 24 June, 2009 - 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