IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 AS.No. 205 of 1999(A) -------------------------- (OS.186/1994 of ADDL.SUB COURT, PALAKKAD) .................... APPELLANT(S)/PLAINTIFF ------------------------------- KUTTIKRISHNAN, AGED 64 YEARS, S/O. KUNCHU, RESIDING AT KUMMANKUZHI, KUTHANUR AMSOM, ALTHUR. BY ADV. SRI.M.P.KRISHNAN NAIR RESPONDENT(S)/RESPONDENTS -------------------------------------- 1. EXDCUTIVE OFFICER, KUTHANUR, PANCHAYAT. 2. PRESIDENT, KUTHANUR PANCHAYATH, ALATHUR TALUK. ADV. SRI.RAJESH SIVARAMANKUTTY THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SVS/ M.N. KRISHNAN, J. ........................................... A.S.NO.205 OF 1999 ............................................. 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 : 2 : A.S.NO.205 OF 1999 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 : 3 : A.S.NO.205 OF 1999 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 : 4 : A.S.NO.205 OF 1999 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 : 5 : A.S.NO.205 OF 1999 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 : 6 : A.S.NO.205 OF 1999 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 : 7 : A.S.NO.205 OF 1999 M.N. KRISHNAN, J. ........................................... A.S.NO.205 OF 1999 ............................................. 8th day of September, 2010. J U D G M E N T