IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 RSA.No. 794 of 2008() --------------------- AS.111/2006 of SUB COURT, PALA OS.87/2005 of MUNSIFF MAGISTRATE, ERATTUPETTA .................... APPELLANTS/APPELLANT/RESPONDENTS ---------------------------------------------------- 1. THOMAS JOSEPH, AGED 66 YEARS, S/O.THOMAS, PARAPPURATH, MELANPARA KARA, THALAPPALAM VILLAGE, PLASSANAL.P.O, KOTTAYAM DISTRICT. 2. SHAJI JOSEPH, S/O.THOMAS JOSEPH, MELANPARA KARA, THALAPPALAM VILLAGE, PLASSANAL.P.O KOTTAYAM DISTRICT.(REP,BY P/A THOMAS JOSEPH IST APPLICANT) BY ADV. SRI.S.PRASANTH RESPONDENT/ RESPONDENT/PLAINTIFF ----------------------------------- T.MURUKAN, S/O.THANKARATHANAM, BUILDING CONTRACTOR, KOTTACKAPURATH, VIVEKANDA SCHOOL, VALLYAMANGALAM PALAM, THALAPPALAM VILLAGE, PLASSANAL.P.O, KOTTAYAM DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 1886 OF 2008 IN R.S.A. NO. 794 OF 2008 DISMISSED ORDER IN I.A. NO. 1006 OF 2009 IN R.S.A. NO. 794 OF 2008 DISMISSED SD/- HARUN-UL-RASHID, JUDGE. 4.6.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 794 of 2008 ---------------------------------------- Dated this the 4th day of June, 2009 JUDGMENT This second appeal is directed against the judgment and decree in A.S. No. 111/2006 on the file of the Sub court., Pala. The trial court decreed the suit and the same was confirmed in appeal by the lower appellate court. Hence this second appeal is filed by the defendants in the Suit. 2. The plaintiff and defendants entered into an agreement on 20.11.2003 for the construction of a residential building in the property of the defendants. The period of construction of the building was six months from the date of the contract and the total amount for the work agreed was Rs. 2,27,500/- Ext.A1 is the agreement and Ext.A2 is the plan of the building 3. According to the plaintiff he had completed the construction of the building as per the plan attached to the agreement . Besides, the plaintiff had also constructed a bath room and a godown at the south- eastern portion of the building as additional construction at the request of the defendants on an agreement to pay an additional sum of Rs. 13,000/- It was the plaintiff's case that he had completed the construction works on 13.4. 2004 to the satisfaction of the defendants But the defendants R.S.A. No. 794 of 2008 -2- have paid only 2,10,500/- towards the amount mentioned in the contract and a sum of Rs. 17,000/- being the balance under the agreement and Rs.13,000/- being the cost of the additional work done is outstanding as dues to the plaintiff from the defendants. 4. In the joint written statement filed by the defendants the execution of Ext.A1 agreement and the construction of the building were admitted The entrustment regarding the additional construction was also admitted It was the defendant's case that the plaintiff had not completed the work as agreed upon by him , that the plaintiff had received a sum of Rs. 2,10,500/- for the construction under the agreement that he also received a sum of Rs. 11,500/- for the additional construction According to the defendants, the amount payable to the plaintiff on proper completion of the building was only Rs. 18,500/- . According to them since the plaintiff had defaulted in performing the terms of Ext.A1 agreement he is not entitled to the said amount. 5. The trial court examined the issues raised in the suit on the basis of the oral and documentary evidence adduced by both parties. In support of the case the parties were examined as PWs 1 ,PW2 and DW1. Exts A1, A2 and B1 to B9 were marked The Commissioner report was marked as Ext.C1 and the plan as Ext.C1(a). 6. It is the plaintiff's case that he had received a total amount of Rs. 2,10,500/- But the defendant contended that they have paid Rs, R.S.A. No. 794 of 2008 -3- 2,22,000/- and according to the defendants the balance due to him was only 18,500/- The defendants also produced Exts. B7 and B8 that they had made payment of various amounts to the plaintiff. The defendants' further case is that a sum of Rs. 11,500/- had been paid by them to the plaintiff towards the cost of the additional work and obtained Exts. B5 and B6 receipts. The plaintiff vehemently denied the payment of any amount to him by the defendants in cash and he denied his signature on Ext.B5 and B6. 7. The defendants have produced Exts. B5 and B6 belatedly, without affording any reason for the delay. In Ext.B5 a revenue stamp is seen affixed not in the proper place. It was also found by the trial court that the signatures in Exts.B5 and B6 were having no resemblance with the admitted signatures of the plaintiff . The trial court disbelieved the defendants case that they had paid amounts as mentioned in Exts. B5 and B6 receipts. 8. Ext.C1 and C1(a) is the report and plan stating that the building in dispute as one having the age of one year completed with plastering and white washing He had also reported that the area of construction is same as in Ext.A1 agreement and an additional construction of a toilet is also found. The commissioner had assessed the cost of additional construction of the building as per agreement at Rs. 10,391/- and the cost of repairing and defective works at Rs. 17,172/- On a detailed consideration of the facts, circumstances and evidence the R.S.A. No. 794 of 2008 -4- trial court held that the plaintiff is entitled to realise from the defendants the balance amount of Rs. 30000/-less Rs. 1,140/- and the suit is decreed in part allowing the plaintiff to recover from the defendants Rs.28,460/- with 6% interest per annum with costs. The unsuccessful defendants filed appeal before the lower appellate court The lower appellate court also examined the oral and documentary evidence of both sides and agreed with the findings of the trial court regrading the validity of Exts. B5 and B6 documents. The lower appellate court also concurred with the trial court's view and also held that the above said documents are unreliable. I am of the view that the lower appellate court considered the questions re-agitated by the defendants and appreciated them properly and entered a finding concurring with the reasonings of the trial court. Since the findings are entered on the basis of facts evidence and circumstances I do not find any reason to interfere with the matter in second appeal. There is no scope for invoking Section 100 of the C.P.C. This appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 794 of 2008 ---------------------------- JUDGMENT 4th June, 2009