IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 22ND JANUARY 2009 / 2ND MAGHA 1930 RSA.No. 1331 of 2008(A) ---------------------- AS.25/2005 of DISTRICT COURT, ALAPPUZHA OS.98/1998 of ADDL.SUB COURT, ALAPPUZHA .................... APPELLANT/APPELLANT/PLAINTIFF:- ---------------------------------------- CENTRAL COIR RESEARCH INSTITUTE, COIR BOARD, KALAVOOR, ALAPPUZHA REPRESENTED BY ITS DIRECTOR DR.U.S. SHARMA BY ADV. SRI.CYRIAC KURIAN, CGSC RESPONDENTS/RESPONDENTS/DEFENDANTS:- --------------------------------------------------- 1. ALAPPUZHA ZILLA AGRI-HORTICULTURAL SOCIETY, REG. NO. 4-1095, CHAITHANYA, MULLAKKAL, ALAPPUZHA. 2. THE GENERAL SECRETARY, REG. NO.4-1095, CHAITHANYA, MULLAKKAL, ALAPPUZHA. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== R.S.A. No.1331 of 2008 ========================== Dated this the 22nd day of January, 2009. JUDGMENT The plaintiff in O.S. No. 98 of 1998 on the file of the Additional Sub Court Alappuzha is the appellant in this Second Appeal. The plaintiff is the Central Coir Research Institute, Coir Board, Kalavoor, Alappuzha. The case of the appellant was that for the beautification of the Coir Board complex at Kalavoor, tenders were invited from various parties and since the plaintiff was not satisfied with any of the tenders, negotiation was held and after such negotiation, the defendants undertook to execute the work for a total estimated amount of Rs.3,90,000/- and the work was awarded to the 1st defendant namely Alappuzha Zilla Agri-Horticultural Society. According to the plaintiff, even though the plaintiff advanced a sum of Rs.1 lakh to the defendants for starting the work, the defendants did not perform their part of the contract resulting in the plaintiff sustaining damages to the tune of Rs.50,000/-. They, therefore, instituted the suit for return of advance amount of Rs.1 lakh with interest and for Rs.50,000/- as damages. The total amount claimed was 1,77,000/-. R.S.A. No. 1331/2008 : 2 : 2. The suit was resisted by the defendants contending inter alia that no amount by way of advance was paid to them, that the work could not be done due to the adamant attitude of one of the plaintiffs and that the alleged damages sustained by the plaintiff was not true. The courts below have concurrently held that the plaintiff's case that a sum of Rs.1 lakh was paid in advance to the defendant, was not proved and that the plaintiff has not established that due to the default committed by the defendants, the work had to be entrusted with some other agency and the plaintiff thereby sustained a loss of Rs.50,000/-. The suit was accordingly dismissed by the courts below. It is the concurrent decrees which are assailed in this Second Appeal. 3. The following are the questions of law formulated in the memorandum of Second Appeal:- (A) Whether the courts below are justified in their finding that the amount of 1 lakhs was paid towards the 1st instalment of the 1st phase of the work done by the defendants? (B) Whether the recitals in Exhibits A8 to A10(e) will lead to a finding that the 1st instalment referred therein will be the 1st instalment of an advance as pleaded by the appellant or the 1st instalment of the 1st phase done by the defendant particularly no evidence forthcoming from the side of the defendants that they have completed almost the work? (C) Is not the lower courts went by misleading statements of the defendant dismissing the appeal when it was found that the breach of contract happened from the side of the R.S.A. No. 1331/2008 : 3 : defendants/respondents? (D) Whether the courts below ought to have decreed the suit when it was found that the breach was committed by defendants/respondents? 4. In the light of the factual finding by the courts below that there is no evidence adduced by the plaintiff to show that a sum of Rs.1 lakh was paid as advance and that the plaintiff had sustained a loss of Rs.50,000/- on account of the failure on the part of the defendants to perform their part of the contract, no interference is called for by this Court sitting in the rarefied jurisdiction under Section 100 C.P.C. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of Second Appeal also do not arise for determination in this Second Appeal which is accordingly dismissed in limine. Dated this the 22nd day of January, 2009. V. RAMKUMAR, JUDGE. rv R.S.A. No. 1331/2008 : 4 :