IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 10TH SEPTEMBER 2009 / 19TH BHADRA 1931 AS.No. 622 of 1999(A) ----------------------------- OS.539/1993 of PRL.SUB COURT,KOTTAYAM ................................................................................ APPELLANT/DEFENDANT: ------------------------------------- AMBIKA DEVI. G, W/O EASWARAN NAMBOORI, RETIRED TEACHER, KIZHAKUTTU, VAZHAPALLY, CHANGANACHERRY. BY ADV. SRI.T.P.VARGHESE SRI.PHILIP T.VARGHESE & SRI.THOMAS T.VARGHESE RESPONDENT/PLAINTIFF: ------------------------------------- K. CHELLAPPAN, S/O. KRISHNANKUTTY, BUILDING CONTRACTOR, CHANDANAPARAMBIL HOUSE, RUBY NAGAR, CHANGANACHERRY. ADV. SRI.M.R.RAJENDRAN NAIR, SENIOR ADVOCATE SRI.SUNILNATH SRI.B.JAYASANKAR FOR R2 TO R6 SRI.SUNILNATH FOR R2 TO R6 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 10/09/2009, ON THE SAME DAY THE COURT DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. = = = = = = = = = = = = = = = = = = = A.S. No. 622 of 1999 = = = = = = = = = = = = = = = = = = = Dated this the 10th day of September, 2009 JUDGMENT The defendant in O.S.539/1999 on the file of Principle Sub Court, Kottayam, is the Appellant. The suit is for realization of money due to the plaintiff as balance amount for the construction work executed by him for the defendant. The suit was filed for realization of Rs.48,318.50 paise with interest. The suit was partly decreed finding that the plaintiff is entitled to get an amount of Rs.33,962/- for the works done by him from the defendant with 12% interest. Aggrieved by the decree and judgment passed by the trial Court, the defendant in the suit preferred this appeal challenging the findings. The parties are herein after referred as plaintiff and the defendant. 2. The plaintiff filed the suit for realization of the balance amount due to him from the defendant for the work done by him. The estimated cost of work was Rs.1,85,000/-. Admittedly, plaintiff has executed the work. The plaintiff also A.S.622/1999 2 carried out some additional construction namely car porch, compound wall, store room etc. It is not included in the plan. It is the plaintiff’s case that on 09.09.1991, he entered into an agreement with the defendant for carrying out the extension work of her residential building. He executed the work as per the specification and satisfaction of the defendant. Ext.A1 is the copy of the agreement with specification attached. It is the plaintiffs case that he had executed additional work and therefore he is entitled to get Rs.54,718.50 paise. According to him after deducting the agreed amount of Rs.8,400/- towards diminision of area and value of the article used, the claim is limited to an amount of Rs.48.318.50 paise from the defendant. 3. The defendant contended inter alia, that there is no written agreement between the parties, that the estimated quantity of work was 1000 sq. feet and agreed rate is Rs.200/- per sq. feet. The additional work of car porch, compound wall, store room and for other extra work, the estimated cost is Rs.15,000/- and 17,000/-. According to the defendant, the cost A.S.622/1999 3 of additional construction was only Rs.32,000/-. She further contended that, she had paid over payment of Rs.12,580/-. A counter claim was also filed seeking to realize the said amount with 6% interest. 4. The evidence in this case consists of the oral evidence of PW1 to PW4 , A1 to A3, PW1 and PW2, B1, B2 and C1 and C1(a) plan. The question to be examined by this Court is whether the decree and judgment passed by the trial Court is liable to be interfered with any other reasons set out in the memorandum of appeal and urged at the time of hearing. The trial Court examined the issues in detail, and decided the issues framed. 5. Admittedly the estimated cost of work is Rs.1,85,000/- and the plaintiff had executed the work. It is also not in dispute that the plaintiff carried out additional work, namely car porch, store room, compound wall etc. Ext.A1 is a copy of the agreement and specification. Ext. A2 is a copy of the plaint and A3 is the statement of account for construction works done by A.S.622/1999 4 the plaintiff. As PW1, the plaintiff testified that he entered into A1 agreement with the defendant and the defendant entrusted Ext.A2 plan. According to him, he had executed the work as per specifications and in terms of the agreement to the satisfaction of the defendant. He also testified about the additional works carried out by him and that the estimated cost of the additional work is Rs.54,718.50 paise. PW2 is the Retired Engineer who had drawn up Ext.A2 plan. PW2 testified that A2 plan was prepared by him and the plinth area is 300 sq. meters. He also testified that the store room construction was not included in the plan and the construction works were not carried out by the specification and as per his instructions. Ext.C1 and C1(a) are the report and plan prepared by the commission. The commissioner was examined as PW3. PW4 is the retired PWD Engineer who assist the Commissioner and prepared C1(a) plan, sketch and valuation report. The measurement of car porch and store room is shown in the report and plan. The plinth area is 215.67 Sq. feet. DW1 the husband of the first defendant was examined, he testified that there was no written agreement and A.S.622/1999 5 the plaintiff agreed to execute the work of 1000 sq. feet at the rate of Rs.200/- per sq. feet. 6. The trial Court examined the oral and documentary evidence adduced by the parties elaborately. It is true that the agreement and the specification were not signed by the defendant, at the same time the testimonies of PW1 and PW2 and the admission regarding the construction by DW1, it is clear that the agreement and the specification was intended to be acted upon. The evidence of PW2 also show that the plaintiff prepared plan and specification for the works in question and it was shown to the defendant and he approved the agreement and specification. PW4 also testified before the Court that a building like, the present one cannot be constructed without any agreement and specification. It is not in dispute that PW2 and PW4 are experts in the field of building construction. Trial Court believed the evidence to PW2 and PW4 which supports the case of the plaintiff that there was a written agreement and specification for the work done by him and with regard to the A.S.622/1999 6 quantity of work. The evidence of PW3 commissioner, PW4 Engineer and the oral and documentary evidence support the case of the plaintiff. Ext.C1(a) is the valuation report and plan prepared by PW4. As per the report and plan, the plinth area of the main portion of the new construction is 931.73 sq. feet. Exts. C1 report and C1(a) plan, sketch and valuation are proved through PW2 and PW4. Nothing has been brought out in their cross examination. From the evidence discussed above, it can be seen that the plinth area is 931.73 sq. feet. 7. Issue regarding, the cost of additional construction was also gone into detail by the trial Court. I have also examined the evidence on record. Ext.C1(a) plan shows that the plinth area of the car porch is 152 sq. feet and the plinth area of store room is 63.67 Sq. feet. PW4 in his valuation report has estimated the cost of construction at Rs.2,16,962/-. The trial Court accepted the contention of the appellant and fixed the rate at Rs.200/- per sq. feet. At the said rate, additional cost of construction work is worked out at Rs.43134/- excluding the cost of compound wall A.S.622/1999 7 constructed on either side of the gate. After deducting the cost of materials, the Court below found that the total cost of construction is Rs.2,16,962/- and that after deducting the amount already paid the balance amount due to the plaintiff is work out at Rs.33,962/-. The decree passed by the trial Court allowing the plaintiff to realize a sum of Rs.33,962/- with future interest. The findings and reasonings of the trial Court was re- examined and re-appreciated by this Court. I find that no sustainable grounds are made out by the appellant to interfere with the findings passed by the Court below. According to me the view taken by the trial Court is the only view possible in the given circumstances. I find that no grounds are made out for interference. Hence the appeal fails and accordingly dismissed with cost. HARUN-UL RASHID, JUDGE SS