IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 AS.No. 74 of 2001(C) -------------------- OS.223/1994 of SUB COURT, PATHANAMTHITTA .................... APPELLANTS/DEFENDANTS 1 & 2: ---------- 1. VARGHESE KOCHETHUL, S/O.THOMAS JOHN, KOCHETHU BUNGLOW, MAKKAMKUNNU, PATHANAMTHITTA. 2. GRACYKUTTY, W/O.VARGHESE KOVCHETHU, RESIDING AT -DO- -DO- BY ADV. SRI.T.KRISHNANUNNI (SR.) SRI.SATHISH NINAN SRI.P.R.VENKETESH RESPONDENTS/PLAINTIFF & 3RD DEFENDANT: ----------- 1. F.PAUL RAJ, S/O.S.FRANCIS, OPPOSITE MADAM COIL, NEAR STADIUM, NAGAR COIL, TAMILL NADU, NOW RESIDING AT F.G. HOUSE, WARD NO.24 OF P.M.C. SANTHOSH JUNCTION, AZHOOR MURI, PATHANAMTHITTA. 2. K.J.GABREL, S/O.THOMAS JOHN, KOCHETHU HOUSE, WARD NO.24 OF P.M.C. SANTHOSH JUNCTION, AZHOOR, PATHANAMTHITTA. R1 BY ADV. SRI JOHNSON MANAYANI R2 BY ADV. SRI.K.SASIKUMAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 14/01/2008,THE COURT ON 07/03/2008 DELIVERED THE FOLLOWING: ORDER ON CMP.NO.490/01 & I.A.NO.4150/04 IN A.S.NO.74/2001 ------- Dismissed Sd/- P.R.RAMAN, JUDGE. 7/3/2008 Sd/- V.K.MOHANAN, JUDGE. P.R.RAMAN & V.K.MOHANAN, JJ. ------------------------------- A.S.NO.74 OF 2001 -------------------------------- Dated this the 7th day of March, 2008 JUDGMENT Raman, J. This appeal is directed against the judgment and decree passed in O.S.No.223/94 on the file of the Sub Court, Pathanamthitta. Defendants 1 and 2 are the appellants and the plaintiff and the 3rd defendant are the respondents herein. The suit was one for realisation of money alleged to be due under a construction contract agreement. The suit was eventually decreed by the trial court in favour of the plaintiff, against which this appeal is preferred. 2. As per the plaint averments, defendants 1 and 2 through their Power of Attorney Holder, the 3rd defendant, entered into a contract with the plaintiff, who is a contractor, to construct a building for defendants 1 and 2. The agreement dated 8/3/1996 is produced as Ext.A2. The construction was carried on as per the terms of the agreement. Till the end of 1989 the work was looked after by the 3rd defendant-Power of Attorney Holder. Measurements were taken on 18/1/1994 on completion of the entire work. The cost of the total work -2- A.S.No.74/2001 was assessed to Rs.5,46,499.25. Out of the said amount the plaintiff has received only an amount of Rs.3,98,224.50. The balance amount is due and payable by the defendants. While the work was going on as per the agreement Ext.A2, the 2nd defendant engaged the plaintiff for work in their residential building with some renovation and modification. That is separate from the construction carried on as per Ext.A2 agreement. Thus what is claimed in the suit is the balance amount due for the work done as per Ext.A2. The lst defendant had left for Germany towards the end of January 1994. So the plaintiff took the matter with the 2nd defendant, who agreed to write to the lst defendant. On 26/2/1994 the 2nd defendant handed over a letter written by the lst defendant to the plaintiff, which is marked as Ext.A1. It is stated therein that the matter would be settled only after the arrival of the lst defendant. The balance amount of Rs.1,48,274.75 was however not paid. The suit was laid for recovery of the said amount with interest at 18% from the defendants jointly and severally and charged upon their assets. 3. The 3rd defendant-Power of Attorney Holder remained ex parte. Defendants 1 and 2 in their joint written statement contended that the original Power of Attorney was executed by defendants 1 and 2 in favour -3- A.S.No.74/2001 of the 3rd defendant and the 3rd defendant was removed from supervising the work on 6/6/1989. Till then the 3rd respondent was making payment and supplying the building materials as per Ext.A2. Thereafter, till 16/11/1989 the brother of the 2nd defendant was entrusted to supervise the work. From 16/11/1989 onwards the 2nd defendant took charge of managing the construction work. The defendants were not present on 18/1/1994 when the measurement of the entire work was taken. Though there was some discrepancies regarding the total work done and the costs, defendants 1 and 2 finally agreed with the calculations made by the plaintiff. According to the defendants, the plaintiff had received an amount of Rs.5,61,841.50 i.e. Rs.15,342.25 is in excess of the amount payable to him. But since the plaintiff pleaded that the work was not profitable and some more amount is to be paid to him, the 2nd defendant paid an amount of Rs.2,000/- on 9/2/2006. Subsequent to the return of the lst defendant from the place of employment on 9/5/1994 the matter was negotiated with the plaintiff and the lst defendant agreed to pay an amount of Rs.10,000/- by way of gift in full and final settlement of all the claims. The plaintiff was fully satisfied with this. Thus, over and above the actual amount due and payable to him an amount of Rs.27,342.25 was also paid -4- A.S.No.74/2001 to him. They prayed that the suit be dismissed with costs. 4. The trial court framed 9 issues for trial. On the side of the plaintiff PW-1 was examined and Exts.A1 to A4 series were marked. On the side of the defendants DW-1 was examined and Exts.B1 to B4 series were marked. The trial court decreed the suit in favour of the plaintiff. 5. It is contended by the appellants that while the suit is for recovery of money alleged to be due to the plaintiff under a construction contract, whereby the plaintiff bases his claim on Ext.A4 stated to be an account book. However Ext.A4 is only for the period from 9/7/1993. The contract is dated 8/3/1996 and intermittent payments were also made prior to 9/7/1993. The plaintiff did not adduce any evidence to show that what are the amounts paid to him prior to 9/7/1993. It is also contended that the court below ought to have found that even according to the plaintiff payments were made to him prior to 9/7/1993. According to the appellants, Ext.A4 does not relate to the construction under Ext.A2 agreement, but it relates to the renovation and other works referred to by the plaintiff at the last portion of paragraph 6 of the plaint. The defendants had a definite case that Ext.A4 related to the work done by the plaintiff referred to by him in the last portion of paragraph 6 of the plaint and not -5- A.S.No.74/2001 the work done under Ext.A2 and the observation of the court below that "according to the defendants Ext.A4 account is inclusive of the amount paid for the additional work done by the plaintiff" is not correct. The finding based on Ext.B2 is apparently wrong. It is only probable that Ext.A1 was sent in reply to Ext.B2 letter. The finding of the court below that the accounts kept by the 3rd defendant are not produced, is not correct. Referring to the evidence of DW-1 it is contended that in Ext.B4 (pages 31 to 48) the accounts from 9/6/1989 to 16/6/1994 have been written by the 2nd defendant and her brother and that the earlier portion of Ext.B4 was written by the 3rd defendant, which has not been taken note of by the court below. The finding of the court below that Ext.B4 account cannot be relied on in view of Ext.B2 letter and Ext.B4 accounts are fabricated, is without any basis. The respondents on the other hand support the judgment passed by the court below. According to them, the court below has correctly appreciated the evidence on record. The finding on Ext.B4 produced by the defendants that the same cannot be acted upon is perfectly right, in the light of the evidence adduced in the case. It is also contended that Ext.A4 is a diary written by the defendants and entrusted with the plaintiff after recording the payments made from time -6- A.S.No.74/2001 to time. Ext.B4 being an account book said to have been maintained by the defendants, is only a self-serving document and it cannot improve the case of the defendant. Further when the contract is admitted and also admitted that the works have been completed, the burden is on the defendants to show that they have paid the amounts as calculated. In the absence of any acceptable evidence by the defendants, on admitted facts, they have to pay the balance amount. 6. We have heard both sides. 7. Admittedly, the plaintiff undertook to construct the building for defendants 1 and 2 based on the agreement between the parties. The agreement was entered into by the 3rd defendant as power of attorney holder on behalf of defendants 1 and 2. It is also not in dispute that the construction was completed by the plaintiff. According to the plaintiff, the balance amount is due and payable towards the said construction work. The total amount calculated was Rs.5,46,499.25 whereas the plaintiff is received only Rs.3,98,224.50. The lst defendant did not pay this amount. The 3rd defendant was making payments and supplying the building materials to the plaintiff till 6/6/1989 and thereafter the 3rd defendant was removed from the charge of supervising the construction work due to -7- A.S.No.74/2001 some malpractices and the brother of the 2nd defendant was entrusted to supervise the work. According to them, they paid an amount of Rs.5,61,841.50 to the plaintiff and thus an amount of Rs.15,342.25 is in excess of the amount payable to him. Subsequently, further amount of Rs.2000/- was also paid in full and final settlement. Besides, an amount of Rs.10,000/- was also paid by way of gift. Thus, the total amount paid in excess is Rs.27,342.25. Ext.A2 is the agreement between the parties. PW-1 was given evidence in support of the plaint averment. According to the him, defendants 1 and 2 were in Germany, when the construction was done by the supervision of the 3rd defendant till the end of 1989 and thereafter, defendants 1 and 2 were supervising the work directly. The work was completed on 17/1/1994. Thereafter, measurements were taken in the presence of defendants 1 and 2 and the amount was calculated as Rs.5,46,499.25. But only an amount ofRs.3,98,224/- was paid. Ext.A1 is a letter dated 13/2/1994 sent by the lst defendant, which shows that he will be coming home soon and the account could be settled and if there is any further amount to be paid, it can be reasonably settled by mutual talk. Ext.A4 is a pocket note book. According to PW-1, the daily wages paid on every day is written in the handwriting of the 2nd defendant herself. -8- A.S.No.74/2001 The entries in Ext.A4 would show that an amount of Rs.66,904 is the total amount received during the period from 9/7/93 to 29/1/94. The entry made on 9/7/93 for an amount of Rs.14777/-, according to PW-1, is the amount received for the period prior to that on different dates and consolidated. Now the defendants have produced Ext.B4 account. But the correctness of the entries made in Ext.B4 is disputed by the plaintiff. The court below has examined both Exts.A4 and B4 and compared the entries. In Ext.A4 note book as against the date 27/7/93 an amount of Rs.300 is recorded whereas in Ext.B4 an amount of Rs.2,000/- is shown as paid by defendants 1 and 2. Again as against the date 31/7/1993 as per Ext.A4 the amount paid to the plaintiff is only Rs. 395/- whereas in Ext.B4 account the amount paid on that date is shown as Rs.2,395/-. Again the payments from 18/10/93 to 25/10/93 as per Ext.A4 is shown as Rs.2,900/- whereas in Ext.B4 it is shown as 4,200/-. On 13/11/1993 the entry in Ext.A4 is recorded as Rs.2,000/- whereas in Ext.B4 the figure is shown as Rs.4,000/- which therefore has to be taken as true and correct amount, that arises for consideration. There is no dispute that in Ext.A4 note book entries are made by the 2nd defendant whereas Ext.B4 is only a self- serving document produced by the defendants and when the entries in -9- A.S.No.74/2001 such a document are apparently in conflict with the entries made in Ext.A4, it is for the defendants to explain the same and the entries made will have to be supported by other independent evidence. According to PW-1, Ext.B4 account book has never been shown to him or admitted by him. According to DW-1, after she came to India whatever amounts spent towards the construction have been recorded in Ext.B4. Pages 31 to 48 for the period from 9/6/1989 to 16/6/1994 are written in the handwriting of the 2nd defendant and also in the handwriting of his brother-in-law. Entries in pages 31 to 48 relate to the period after removing the 3rd defendant from the supervision work. The initial portion in Ext.B4 is written in the handwriting of the 3rd defendant. He would also say that the amount paid to the plaintiff on 26/8/89 was by way of cheque drawn on Catholic Syrian Bank and Page 32 of Ext.B4 will reveal this lacuna. The payment made on 5/9/89 is also by way of cheque as recorded in Ext.B4. When according to DW-1, she was maintaining the account pertaining to the construction, after she came from abroad and Ext.B4 is the said account, how could she prove the entries made by the 3rd defendant is seriously doubted. Admittedly, Ext.B4 would show that the entries made in page 1 to 23 are in one and the same handwriting and from -10- A.S.No.74/2001 page 31 onwards it is in a different handwriting. At any rate, when the entries made in Ext.B4 account book are seriously disputed by the plaintiff, the burden to prove the entries made therein by supporting materials lies on the defendants without which no reliance can be placed on Ext.B4. On the other hand, the entries made in Ext.A4, according to PW-1, are in the handwriting of the 2nd defendant and this is not disputed. The court below referred to a letter, Ext.B2 said to be one written by the 2nd defendant to the 1st defendant showing that an amount of Rs.5,61,841 is paid to the plaintiff; but the cover is not produced. The court below held that the said letter is not written on 9/2/1994 and that it is a fabricated document. According to DW-1 she has stated that the 3rd defendant has settled the accounts till he supervise the construction of the building and he kept the accounts and that the accounts were convinced to the plaintiff. No steps are taken to produce the said account by the 3rd respondent. Even though DW-1 would say that earlier portions in Ext.B4 was written by the 3rd defendant, the same is not proved. If, as a matter of fact, some of the amounts were paid by cheques, nothing prevented the defendants from summoning those cheques or producing the pass book to evidence the payment. No such steps were taken by the defendants in this -11- A.S.No.74/2001 regard. Defendants were not able to substantiate their contention that over and above the amounts due and payable to the plaintiff, excess amounts were paid and that Ext.B4 is a true and correct account. Admittedly when the work was completed by the plaintiff and there is no dispute regarding the rate and the measurement was finally taken, it is the burden of the defendants to establish that payments have been effected in accordance with the terms and conditions of the agreement between the parties. Though it is contended that once the parties have adduced evidence, there may not be any relevance regarding the burden of proof, it has to be observed that the plaintiff in this case has discharged his burden of proving that he completed the work in terms of the contract and when he pleads that the amount due to him has not been fully paid,. it is for the defendants to adduce evidence to show that the entire amount due to the plaintiff has been paid. True that on the available evidence on record, whether it be produced by the plaintiff or the defendants, the court can evaluate the evidence and came to a conclusion as to whether the plaintiff's or the defendants' case is true or not. The plaintiff has produced Ext.A4 and contended that it is in the handwriting of DW-1 and that the correctness of the same is beyond dispute whereas the entries in Ext.B4 -12- A.S.No.74/2001 are disputed by the defendants. But the defendants did not produce supporting evidence based on which Ext.B4 is written. Therefore, even based on the evidence available on record, it cannot be said that the amount due and payable to the plaintiff has been paid by the defendants. The court below has evaluated the entire evidence on record and drawn conclusions therefrom and has granted the decree. Nothing is produced before us to show that the said finding is in any way perverse or contrary to the evidence in the case. It is settled that as an appellate court this Court is able to re-appreciate the evidence on record; but even so doing we do not find any reason to disagree with the finding of the court below. In the result, we find no merit in this appeal and accordingly the same is dismissed. Parties shall bear their respective costs. P.R.RAMAN, Judge. V.K.MOHANAN, Judge. kcv. -13- A.S.No.74/2001 P.R.RAMAN & V.K.MOHANAN,JJ. ----------------------------- A.S.NO. 74 OF 2001 ----------------------------- JUDGMENT 7th March, 2008