IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 WA.No. 1933 of 2009 --------------------- AGAINST THE JUDGEMENT IN WPC.36455/2007 Dated 23/05/2009 .................... APPELLANT/PETITIONER: --------------------------- V.V. VINODKUMAR, AGED 47 YEARS, S/O. VELAYUDHAN NAIR, VINOD BHAVAN, KAKKANAD, ERNAKULAM. BY ADV. SRI.P.V.SURENDRANATH RESPONDENTS/RESPONDENTS: ---------------------------------- 1. GOVT. OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM. 2. THE TAHSILDAR, KANAYANNUR TALUK, ERNAKULAM. 3. THE VILLAGE OFFICER, THRIKAKARA VILLAGE OFFICE. 4. THE VILLAGE EXTENSION OFFICER, KAKKANAD, ERNAKULAM. 5. THE ASSISTANT ENGINEER, DISTRICT PANCHAYATH, ERNAKULAM. 6. THRIKKAKARA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, THRIKKAKARA, KAKKANAD. 7. THE CONTROLLER OF LOCAL FUND AUDIT TRIVANDRUM. R1 TO R5 & R7 BY SENIOR GOVT. PLEADER, SRI.BENJAMIN PAUL. R6 BY ADV. SRI.S.SHANAVAS KHAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.R.Bannurmath, C.J. & A.K. Basheer, J. ------------------------------------------ W.A No.1933 of 2009 & I.A.No.917 of 2009 ------------------------------------------ Dated this the 17th day of September, 2009 JUDGMENT S.R.Bannurmath, C.J. Aggrieved by the order of the learned Single Judge dated 23rd May, 2009 in W.P.(C) No.36455 of 2007, the present writ appeal is filed. 2. The appellant/petitioner who had executed certain works for the 6th respondent was due for payment and the same was made as per the bills submitted by the appellant. Later he was served with Ext.P1 notice issued by the 6th respondent intimating that the appellant has received an excess amount to the tune of Rs.47,145.24 and as such he was directed to refund the same and as he did not refund the amount, revenue recovery proceedings as per Ext.P4 were initiated. It is this proceedings for recovery which is the subject matter of the the writ petition. W.A.No.1933 of 2009. - 2 - 3. The main contention of the learned counsel for the appellant/petitioner before the learned Single Judge and this Court is that there is a mistake of calculation in deducting 40% of the value of the goods supplied by the 6th respondent. According to the learned counsel, the method adopted for deduction and calculation of 40% is erroneous. It is submitted that out of the entire amount of the bill, 40% ought to have been calculated and after deducting the same the amount ought to have been paid and according to the appellant, in fact, the 6th respondent itself is due some more amount if this method of calculation is adopted. On the other hand, it is submitted that instead of doing the same, the respondents have deducted 40% of the value of the works less the departmental supply which is stated to be illegal and incorrect. 4. On going through the order of the learned Single Judge and even after an independent assessment, we find that, no doubt, there is some miscalculation which has been rightly considered by the learned Single Judge and concession to the W.A.No.1933 of 2009. - 3 - tune of Rs.7000/- and odd has again been given to the appellant and thus he is directed to pay only a sum of Rs.40,912/- instead of a sum of Rs.47,145.24. 5. We find absolutely no good ground to differ from the conclusion arrived at by the learned Single Judge and hence we find the appeal as devoid of merits. At this stage, learned counsel for the appellant submits that he has filed I.A.No.917 of 2009 along with certain documents for amending the writ petition and the same may be considered. In our view, it is too late for the appellant either to amend the writ petition or produce documents which were not produced before the learned Single Judge. It is to be noted that in this regard no foundation or basis has been laid before the learned Single Judge. Though amendment under Order VI Rule 17 of the Code of Civil Procedure can be made at any stage, in the peculiar facts and circumstances of the case, we find that this amendment could not be permitted as it is too belated. Hence I.A.No.917 of 2009 is rejected. W.A.No.1933 of 2009. - 4 - 6. In the result and for the reasons stated above, we find no merit in the writ appeal and the same is rejected as devoid of merits. However, as seen from the order of the learned Single Judge and on the request of the learned counsel for the appellant that some more breathing time may be granted to pay the entire amount in six equal monthly instalments and as the time has already started as per the order of the learned Single Judge from 1.6.2009, we deem it proper to modify the same and grant six equal monthly instalments starting from October 1, 2009. It is made clear that if there is single default in payment of these instalments, it is open for the respondents to take coercive steps as permissible under law and in terms of Ext.P4. S.R.Bannurmath, Chief Justice A.K. Basheer, Judge vns/vku.