IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 WP(C).No. 32085 of 2009(O) -------------------------- OS.512/2007 of I ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER: --------------- K.P.MOHAN, MANAGING DIRECTOR, SOORYA PRABHA CONVENTION CENTRE, MANNANTHALA, THIRUVANANTHAPURAM. BY ADV. MR.R.T.PRADEEP MR.V.VIJULAL RESPONDENT: --------------- WILSON GEORGE, PROPRIETOR, M/S.VENKATESWARA ELECTRICALS, "UNNI", T.C. 26/787, OFFICERS'S NAGAR OOTTUKUZHI, THIRUVANANTHAPURAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.32085 of 2009 - O --------------------------------- Dated this the 10th day of November, 2009 J U D G M E N T Petitioner is the defendant in O.S.No.512 of 2007 on the file of the 1st Additional Sub Court, Thiruvananthapuram. Suit is one for realisation of money and the respondent is the plaintiff. Towards electrification of work of a Conventional Centre a contract was entered by the plaintiff with the petitioner/defendant. Because of the breach committed by the defendant the plaintiff had to engage another agency for completion of the work and the retention amount collected by the defendant is liable to be refunded with interest, is the case of the plaintiff. The defendant resisting the suit claim filed a written statement in which he contended that breach of contract was committed by the plaintiff and he is entitled to claim damages for such breach. He also sought to reserve his right to raise additional written statement with counter claim after quantification of the damages. A commission application was moved by the defendant for ascertaining certain matters, which W.P.(C).No.32085 of 2009 - O 2 according to him was necessary to quantify his damages. Ext.P3 is that application. Ext.P3 application was resisted by the respondent/plaintiff by filing Ext.P4 objections. Learned Sub Judge after hearing both sides dismissed Ext.P4 application vide Ext.P5 order. Propriety and correctness of Ext.P5 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel for the petitioner. Having regard to the submissions made, I find no notice to the respondent is necessary and it is dispensed with. 3. Respondent/plaintiff has filed the suit for realisation of the retention amount with interest advancing a case that there was breach on contract by the defendant in performing electrification work undertaken by him in respect of a Conventional Centre. In the written statement the defendant had disputed the right of the plaintiff for refund of the retention amount contending that he had suffered damages on account of the default committed by the plaintiff, which, according to him, W.P.(C).No.32085 of 2009 - O 3 was the reason for the non-completion of the contract work. He wanted assessment of certain matters by deputing an advocate commissioner in respect of the electrification work. On the facts and circumstances presented which indicated that the electrification work was already over with the plaintiff engaging another agency for completing the electric installation work the court below found that no purpose would be served by sending out a commission as desired by the defendant. Further more, it is also noticed, no counter claim was raised in the written statement, but, only a statement of reserving a right to raise such counter claim after quantification of damages. In the facts involved, the court below found that Ext.P3 commission application moved by the defendant was not entertainable. I find no impropriety or illegality in the order so passed by the court below. Writ petition lacks merit, and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-