IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 AS.No. 898 of 1996() ---------------------------- OS.61/1992 of SUB COURT, TIRUR .................... APPELLANT/PLAINTIFF: ---------------------------------- KOLAKATTIL MOOSAKUTTY, S/O.BAPPUTTY, AGED 49, ALANCODE AMSOM AND DESOM, PONNANI TALUK. BY ADV. MR.P.K.ABOOBACKER (EDATHALA) MR.P.CHANDRASEKHAR RESPONDENT/DEFENDANT: ---------------------------------------- BABU KUNHALANKUTTY, S/O.RAYIN, AGED 44 YEARS, KURUKKOLI HOUSE, TALAKKAD AMSOM AND DESOM, TIRUR TALUK. BY ADV. MR.K.K.MOHAMED RAVUF THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. K. SURENDRA MOHAN, J ------------------------------------------------------------ A.S. NO: 898 OF 1996 ----------------------------------------------------------- Dated this the 24th June, 2009. JUDGMENT Appellant is the plaintiff in O.S.61/1992 of the Sub Court, Tirur. The suit was filed for the realization of an amount of Rs.47,744.20 from the defendant/respondent. The appellant challenges the dismissal of his suit. The suit was filed in the following facts and circumstances:- 2. The appellant and the respondent are relatives. The respondent was employed in Kuwait. At that time he wanted to construct a house of his own. Accordingly, as instructed by the respondent, the appellant filled up a plot of land, got a plan prepared for the construction of the house and after getting the approval of the respondent to the plan, started construction of the house. According to the appellant, he is not a builder or a contractor and had undertaken the construction only on the request of the respondent. The appellant had received an amount of Rs.1 lakh from the respondent. After the work had progressed considerably, the respondent started complaining about the quality of the work and expressing his dissatisfaction. He directed the appellant to stop the work. In the meanwhile, the appellant had A.S.898/1996 2 already expended an amount of Rs.1,47,744.20 for the work. Since only an amount of Rs.1 lakh had been paid by the respondent, the balance was advanced by the appellant from his own pocket. Though he demanded payment of the said amount, the same was not paid. The plaintiff then caused the issue of a notice through his Lawyer demanding the amount due to him. Thereupon, the respondent replied to the notice stating that the work was not entrusted to the appellant, and that he had suffered a loss of Rs.70,000/- due to the defective construction of the house which he was entitled to recover from the appellant. Since the amount demanded was not paid, the appellant filed O.S.61/92 before the Sub Court, Tirur praying for a decree for realisation of the amount due to him, with interest. 3. The respondent filed written statement contending inter alia that he had not entrusted the construction work to the plaintiff and disputing the plaint claim in toto. According to him he had enquired of the appellant/plaintiff as to how much amount would be required to construct a house. After making enquiries, the appellant had told him that an amount of Rs.2,92,000/- would be required for completing the construction. Thereafter the respondent's wife requested the appellant to entrust the work of A.S.898/1996 3 the house to some contractor. The respondent contended that there was no privity of contract between the appellant and the respondent. According to him, he never wanted the appellant to develop the land before the construction of the house. When the construction work was in progress he came to know that inferior quality of wood had been used for the doors and window frames and, therefore, he directed the appellant to remove the said frames and to return the balance amount to his wife. However, since the appellant did not turn up, the respondent's wife sold the wooden articles for an amount of Rs.12,000/-. The case of the respondent is that only the basement of the house was built by the appellant. As the work was not properly done cracks developed on the walls. For the said work only an amount of Rs.30,000/- was spent. The appellant was not willing to settle the accounts and to take back the wooden frames. Therefore, the work was subsequently entrusted to another contractor. The appellant was remaining silent for a long time and thereafter the suit is filed raising a false claim. Therefore, he prayed for dismissal of the suit. 4. The court framed the following issues and tried the suit:- “1. Is there any privity of contract between the plaintiff and the defendant? A.S.898/1996 4 2. Whether the plaintiff is entitled to realise any amount? 3. Reliefs and costs?” The evidence in the case consists of the oral testimonies of P.Ws 1 to 3 and D.W.1 and Exts.A1 to A12 and Exts.B1 to B4 documents. The Commission report and plan in the case are marked Exts.C1 and C2 respectively. 5. The court below considered the case of the plaintiff in the light of the evidence on record and the contentions advanced by the rival parties. The appellant-plaintiff has produced a number of letters which are admittedly written by the respondent from Kuwait. According to the appellant, these letters clearly show that he was entrusted with the construction of the house. After considering the statements contained in the letters of the respondent, the Court below came to the conclusion that there was no privity of contract between the parties and that the appellant had not been entrusted with the construction work, as alleged. The court below also found that there was no acceptable and trustworthy evidence to show that the appellant had expended the amount claimed in the plaint for the construction of the respondent's house. The court below found that the conduct of the appellant in returning an A.S.898/1996 5 amount of Rs.50,000/- to the respondent when the amount claimed in the plaint was admittedly due to him was not at all the conduct of a normal person. The court finds that no normal person would have returned the amount especially when the relationship between the respondent and the appellant was strained. Therefore, finding that the plaint claim was not established the suit has been dismissed by the court below. 6. The judgment and decree of the court below is attacked by the counsel for the appellant pointing out that the statements in Ext.A1 letter clearly show that there was entrustment of the construction work to the appellant. The statements in Exts.A6 and A7 lettters also support the case of the appellant that the construction work had been entrusted by the respondents. It is an admitted fact that an amount of Rs.1 lakh had been paid to him by the respondent for the construction. In the above circumstances, the finding of the court below that there was no privity of contract is absolutely unjustified, it is pointed out. Though there is no written contract between the parties, the documentary evidence in the case clearly proves the existence of the contract between the appellant and the respondent. Pursuant to the contract the appellant had undertaken the construction work, the benefit of A.S.898/1996 6 which has been taken by the respondent. Therefore, even if it is assumed that there is no contract, the appellant is entitled to recover the amounts claimed, under Section 70 of the Contract Act since the work was not done gratuitously. Since the commission report and the plan show that the construction of the house is complete and since a detailed estimate has been prepared on the basis of the rates prevailing at the time of construction, the exact amount due to the appellant can easily be ascertained and calculated from the assessement of the cost of construction made by the Advocate Commissioner with the assistance of an expert, it is argued. In view of the above, the counsel for the appellant prays for a decree in terms of the claim made in the plaint. 7. The counsel for the respondent on the other hand disputes the assertions made on behalf of the appellant. It is pointed out that the plaintiff does not give any details of the amounts spent by him or the break up of the items for which amounts were spent. There is no statement of accounts produced along with the plaint. He has also not furnished any statement of accounts to the respondent. In the written statement also the above contentions have been specifically pleaded by the respondent. In spite of the above specific case put forward by the respondent, the A.S.898/1996 7 appellant/plaintiff has not cared to produce any statement of accounts or other evidence to show the break up of the amounts claimed by him. In the absence of a proper quantification of the amounts due, it is pointed out that no decree could be granted as claimed in the plaint. Further, it is pointed out that admittedly the plaintiff abandoned the construction work on 6.10.1990 pursuant to Ext.A3 letter. However the suit is filed only on 21.3.1992, about 1 ½ years thereafter. The plaintiff has not taken any steps to have the work allegedly done by him assessed or valued by a competent person, at any time. He was aware that the respondent's wife was proceeding with the construction of the house through another contractor after he had abandoned the work. However, nothing was done by the appellant. He allowed the construction to proceed unhindered and by the time the suit was filed even the finishing works or the house had been completed and the respondent had started residing therein. If actually, amounts had been due to the plaintiff, he would never have allowed matters to reach such a situation. Counsel further points out that the Commission report Ext.C1 cannot be relied upon for the reason that when the Commissioner visited the house it was completed in all respects and the valuation was done by the Commissioner on the A.S.898/1996 8 assumption that standard materials had been used. Therefore, there is no evidence available regarding the nature of the materials used or the expenses incurred by the appellant. Apart from the above, admittedly an amount of Rs.50,000/- has been returned by the plaintiff to the defendant after the alleged plaint claim had arisen. If the claim of the plaintiff were genuine, the amount would not have been returned, it is pointed out. In the absence of any evidence to show that any amount was due to the appellant it is contended that the court below was right in dismissing the suit. 8. I have heard learned counsel Mr. P.Chandrasekhar for the appellants and the leanred counsel Mr. K.K.Muhammed Ravuf for the respondent. I have been taken through the pleadings and the evidence in the case in detail. 9. The point that arises for consideration is: “Whether the appellant-plaintiff has established that any amount is due to him from the respondent.” 10. It is the admitted case that the parties are relatives. While the respondent was working in Kuwait, he wanted to construct a house at his native place. According to the plaintiff he had been entrusted with the construction of the house and an amount of Rs.1 lakh had been paid for the construction work. A.S.898/1996 9 However, according to the appellant, an amount of Rs.47,744.20 has been spent by him in excess which is sought to be recovered. The claim of the appellant is seriously disputed by the respondent as noted above. 11. A reading of the plaint shows that apart from pleading that an amount of Rs.47,744.20 is due from the respondent being the amount spent by him in excess of the amount of Rs. 1 lakh entrusted to him by the respondent, no further details are given. Since it is admitted that an amount of Rs. 1 lakh had been initially entrusted with the appellant, it is his duty to have stated how the said amount was spent or utilised . He also had a duty to disclose how the excess amount that is claimed to have been spent by him was spent. In the absence of any details, it is not possible to decide whether the plaintiff has actually spent any amount as claimed. Though the court below has found that there is no privity of contract between the parties, it can be seen from the letters produced, particularly Exts.A6, A7,A2 and A3 that there was an agreement between the plaintiff and the defendant regarding the construction of the house. It is also clear that the appellant was entrusted with the construction work. However, there is no evidence as to the nature of the construction undertaken by him or A.S.898/1996 10 the amount expended by him for the purpose. In the absence of any assessment of the work and a proper valuation thereof, it is not possible to decide whether any amount is due to the appellant on this count. 12. In the above context, it is worth noticing that the appellant had not initiated any prompt action after he had admittedly abandoned the work pursuant to the letter Ext.A3. By remaining inactive he allowed the respondent's wife to complete the construction through another contractor. Consequently all chances of having the work alleged to have been done by him assessed and properly valued have been lost. The conduct of the appellant throws a cloud of suspicion on the genuineness of the claim made by him. The Commission report Ext.C1 mentions in the third paragraph thereof that the details of the various items “cannot be verified at present without damaging the building. Hence the standard provisions as per the statement of the plaintiff was adopted for valuation.” Therefore, the valuation has been prepared relying on the statements made by the plaintiff with respect to the items of work done by him as well as the quality of the materials used. Since the actual work has not been assessed or valued, the report of the Commissioner which is based on the cost of standard A.S.898/1996 11 provisions cannot be relied upon to decide whether any amount is due to the appellant from the respondent. As rightly pointed out by the counsel for the respondent, the conduct of the appellant in returning the amount of Rs.50,000/- when, according to him an amount of Rs.47,000/- and more was due to him is rather strange. The conduct also casts serious doubts on the genuineness of his claim. In the absence of clear and cogent evidence showing that amounts were actually due from the respondent to the appellant, no decree for realisation of money could be granted to him. In the present case since the appellant-plaintiff has not been able to establish his claim, the court below was right in dismissing the suit. 13. Counsel for the appellant points out that the wooden doors and window frames fixed by the appellant were admittedly removed by the respondent characterising them as made of inferior quality wood. D.W.1 has admitted in the box that the said frames were sold for an amount of Rs.12,000/- because the appellant had not cared to remove them from the site. According to the counsel for the appellant since there is no evidence to show that any amount is due from the appellant to the respondent, the said amount should be directed to be returned and therefore prays for the passing of a decree at least for the said amount. The prayer A.S.898/1996 12 is opposed by the counsel for the respondent pointing out that the consistent case of the respondent right from Ext.A5 reply notice is that the defective construction of the appellant had caused a loss of Rs.70,000/- to the respondent. The defective wooden frames were retained by him for sometime because of a compromise arrived at between the appellant and the respondent. As per the compromise, the appellant could have removed the defective wooden frames after paying the amount due to the respondent. Since the amount was not paid, the respondent finally sold the wooden frames and appropriated the price of the said articles. It is further pointed out that the question whether any amount at all is due to one or the other can be decided only on a proper settlement of the accounts. Since the appellant has not come forward with a statement of accounts or satisfied the respondent regarding the expenses incurred by him, no decree for realization of any amount from the respondent could be granted to the appellant. 14. It is admitted by the appellant that he had received an amount of Rs.1 lakh from the respondent which, according to him, he had utilised for the construction of the respondent's house. The details and the manner in which the amount was utilised is not available. According to the respondent, only an amount of A.S.898/1996 13 Rs.30,000/- was spent for his construction. Be that as it may, it is not possible to conclude whether any amount is due to the appellant from the respondent. The claim of the appellant cannot be accepted in the absence of a proper statement of accounts regarding the utilisation of the amount admittedly received by him. Therefore, it is not possible to find out whether the amount of Rs.12,000/- admittedly received by the respondent by sale of the defective wooden frames represents amounts due to the appellant. In the above view of the matter the contentions of the appellant has to fail. 15. For the foregoing reasons, I do not find any reason to interfere with the judgment and decree of the court below. The same is therefore confirmed and the appeal is dismissed. No costs. K. SURENDRA MOHAN Judge jj A.S.898/1996 14 K. SURENDRA MOHAN, J ----------------------------- A.S.NO: 898 OF 1996 ----------------------------- JUDGMENT Dated: 24th June, 2009.