Allowed

A.Hameed Haji v. C.K.Babu

Kerala HC14 Feb 2013AS/351/1996

Case brief

AI extract

What is this about?

The High Court allowed the defendant-appellant's appeal against a money recovery decree. While upholding the estimate and profit margin, the Court held that the plaintiff failed to provide reliable evidence that Johnson acted as a supervisor, ordering a deduction of Rs.30,000/- from the recovery amount.

What did the court decide?

Modifying the decree to deduct Rs.30,000/- recorded as supervision charges, thereby reducing the recoverable amount.

A.Hameed Haji Vs C.K.Babu — Contract and Commercial Disputes | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HON'BLE MR. JUSTICE B.KEMAL PASHA

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THURSDAY, THE 14TH DAY OF FEBRUARY 2013/25TH MAGHA 1934

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AS.No. 351 of 1996 ( )

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---------------------AGAINST THE ORDER/JUDGMENT IN OS.40/1993 of SUBORDINATE COURT, HOSDURG DATED 29-03-1996

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APPELLANT(S)/DEFENDANT :

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A.HAMMED HAJI, S/O.BAVA MAISTRI, AJANUR KADAPPURAM, AJANUR VILLAGE, HOSDURG TALUK, KASARGOD DISTRICT.

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BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR

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RESPONDENT(S)/PLAINTIFF :

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C.K.BABU, S/O.C.L.KUNHAPPAN, KALLATRA QUARTERS, KANHANGAD, BALLA VILLAGE, HOSDURG TALUK, KASARGOD DISTRICT.

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BY ADV. G V KANNANTHANAM

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THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 14-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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AMV

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THOTTATHIL B.RADHAKRISHNAN

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& B.KEMAL PASHA, JJ.

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....................................................................

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A.S. No.351 of 1996 (G)

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....................................................................

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Dated this the 14^th day of February, 2013.

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JUDGMENT

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Thottathil B.Radhakrishnan, J.

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The defendant in a suit for recovery of money based on an oral agreement for construction of a building is the appellant. Admittedly, the defendant constructed the building, either by pulling down existing structure or otherwise. That building was to be leased out to the State Government to house the Ajanur Government Fisheries U.P.School in Kasargode District.

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The plaintiff claimed that he was eligible to be paid 10% of the estimated cost of construction as profit and 5% of the value of the contract amount that went towards expenditure other than the supply of labour, after deducting the value of materials (cement and steel) supplied by the defendant owner. He also claimed that he had expended 5% as supervision charges to a PWD registered overseer, to supervise the work.

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A.S. No.351 of 1996 (G)

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The defendant disputed the plaint claim and contended that the plaintiff was entrusted only to carry out the RCC work and nothing more. The defence was that the plaintiff had been paid the entire amount due for the work.

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The court below heard the evidence of PW.1 to PW.8 & DW.1 to DW.5 and acted on Exts.A1 to A16 and Exts.B1 to B21 documentary evidence. It upheld the plaintiff's plea and granted him a decree for recovery of Rs.1,84,095/- (Rupees one lakh eighty four thousand and ninety five only) with costs and future interest at 12% per annum, as claimed in the plaint.

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In support of this appeal by the defendant, his learned counsel took us through different aspects of the pleadings and the relevant evidence. He argued that the alleged estimate is fictitious and projected only for the purpose of the plaint claim. He further argued that there is no shred of evidence to show that there was any supervisor engaged by the plaintiff. The next argument was that the claim, essentially, includes duplication, by treating an amount which is the value of the goods as involved in the contract, for

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A.S. No.351 of 1996 (G)

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the purpose of fixing the percentage of profits. The learned counsel severely criticised the approach adopted by the court below in appreciating the oral evidence leading to the witnesses of the defendant being disbelieved. He also pointed out that the testimonies of the witnesses on behalf of the plaintiff are unworthy of credence and contain no acceptable evidence to be acted upon.

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At the outset, we see that while the plaintiff has shown Ext.A1 as his books of account, the defendant shows his account book as Ext.B1. Looking at them from the angle of regularity in the maintenance as books of account, we would prefer to act on Ext.A1 rather than Ext.B1. Having regard to the manner in which notings are entered in Ext.A1, we find that though it is maintained by making entries regarding the entire transaction and is essentially written in one go or may be in a break or two, it inspires confidence. The learned counsel for the respondent-plaintiff points out that it is an admitted situation that Ext.A1 was prepared by putting all pieces together, only when the parties were likely to go for

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A.S. No.351 of 1996 (G)

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disputes resolution. The version of PW2, a retired Assistant Engineer, is that he prepared Ext.A15 estimate on the basis of Ext.A16 plan, site plan etc. The mere fact that Ext.A15 is prepared sometime in 1992, after the commencement of the work or even towards its fag-end of its completion, does not impair its veracity and acceptability because when the plan, site plan and plan for the first floor, front elevation etc., were available as Ext.16, Ext.A15 estimate could have been easily prepared by a technically sound person on the basis of such plans. Ext.A16 was admittedly prepared by DW.5, a Civil Engineer of the defendant. He had deposed about that. Therefore, the plans were prepared by the defendant's Engineer DW.5 and the estimate was prepared by PW.2, a retired Assistant Engineer, who, going by the evidence, was apparently a neutral person since he was not involved in the supervision or in the carrying out of the work. Therefore, we are inclined to accept Ext.A15 as an acceptable estimate reflecting reasonable amounts as the estimated amount. To that extent, we do not find any ground for interference with

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A.S. No.351 of 1996 (G)

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the findings of the trial court.

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Now, Ext.A2 dated 09.07.1992 was issued by the plaintiff to the defendant intimating that the work is getting completed and in terms of norms and the practices in the area, 10% of the profit margin is given to the contractor over and above 5% supervision charges. We do not see that the defendant had replied to Ext.A2. The defendant has no case that he had responded to Ext.A2. The response by defendant comes only in the form of Ext.A11 reply notice to Ext.A9 suit notice which is more than 5 to 6 months after Ext.A2. In Ext.A11 also, the defendant does not deny the fact that the plaintiff was entrusted to do the work. All that he said is that the plaintiff was not entrusted with the entire work, but was to do only the work of RCC and that the entire accounts were settled. Apart from that, the defendant went for an outright denial of the claims of the plaintiff.

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Having regard to the nature of the oral evidence and the certification issued by the competent authorities as to the completion of the work well in time, we do not find that the

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A.S. No.351 of 1996 (G)

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court below has erred in appreciating the oral and documentary evidence and arriving at the conclusion it made, as regards the estimate, the 10% profit etc. We cannot hold that these findings are wrong even if a re-appreciation may indicate that a different view might have been possible. This is not the court of first instance. Going by applicable rules of evidence and as a preponderance of probabilities, we do not find any ground to disturb the findings of the court below as regards that.

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However, going by Ext.A1, an amount of Rs.30,000/is given to Johnson who, according to the plaintiff, was a supervisor. Looking at pages 50 and 51 of Ext.A1, plaintiff cannot dispute that Johnson was not the supervisor of the work. He was only giving such advices as were required for the plaintiff during the progress of the work. That does not by itself mean that he was supervising the work. Not only that, on the face of a challenge in that regard by the defendant, it was incumbent on the plaintiff to have adduced reliable legal evidence, by way of corroboration. Johnson is not examined.

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A.S. No.351 of 1996 (G)

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It is not a case where Johnson is shown to have been not available for examination. The best evidence in that regard which would inspire confidence is thus excluded. We are therefore, of the view that the amount of Rs.30,000/- shown in page 51 of Ext.A1 has to be excluded from the decree granted by the court below. The appeal succeeds to that extent.

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In the result, this appeal is allowed, modifying the impugned decree ordering deduction of Rs.30,000/- (Rupees thirty thousand only) from Rs.1,84,095/- (Rupees one lakh eighty four thousand and ninety five only) decreed by the trial court. Such principal sum will carry all add ons as ordered by the trial court and the decree passed by the trial court will stand otherwise for all other respects. The parties will bear their respective costs in this appeal.

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sd/-

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(THOTTATHIL B.RADHAKRISHNAN, JUDGE)

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sd/- (B.KEMAL PASHA, JUDGE)

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AMV

A.Hameed Haji v. C.K.Babu

Case brief

What is this about?

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A.Hameed Haji v. C.K.Babu

Case brief

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