Allowed

Bhadrasenan v. M/S.Nirmalyam Builders & Developers (P) Ltd.

Kerala HC12 Feb 2016OP(C)/249/2016

Case brief

AI extract

What is this about?

In a contract dispute where a commissioner was appointed with expert assistance, the High Court directed the trial court to give the petitioner an opportunity to prove work done after the commissioner's first visit and to appoint a new expert after hearing both sides.

What did the court decide?

Trial court to give petitioner opportunity to substantiate claims of work done post-visit and appoint another expert after hearing both sides.

Bhadrasenan Vs M/S.Nirmalyam Builders… — Contract and Commercial Disputes | Kerala HC (2016)

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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 K.ABRAHAM MATHEW

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FRIDAY, THE 12TH DAY OF FEBRUARY 2016/23RD MAGHA, 1937

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OP(C).No. 249 of 2016 (O)

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IA.3132/2015 & IA.3555/2015 IN OS.569/2012 OF IIND ADDITIONAL SUB COURT, THIRUVANANTHAPURAM

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PETITIONER(S)/DEFENDANT/COUNTER PETITIONER:

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BHADRASENAN,

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S/O.PUSHPANGADHAN, PROPRIETOR HOTEL ACQUA ROCK, DHANUSH, ST.SEBASTIAN THOPE, MANNATHALA P.O., THIRUVANANTHAPURAM.

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BY ADV. SRI.SHAJIN S.HAMEED

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RESPONDENT(S)/PLAINTIFFS/PETITIONERS:

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1. M/S.NIRMALYAM BUILDERS & DEVELOPERS (P) LTD, MAIN ROAD, KORANI P.O., ATTINGAL, THIRUVANANTHAPURAM, REPRESENTED BY ITS AUTHORISED SIGNATORY/DIRECTOR PIN-695 104.

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2. HEMA SOMARAJAN,

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W/O.SUNIL DUTT, AUTHORIZED SIGNATORY/DIRECTOR M/S.NIRMALYAM BUILDERS & DEVELOPERS (P) LTD, RESIDING AT PUTHEN PURAKKAL VEEDU, NEAR MAMAM BRIDGE, KIZHUVILAM POST, THIRUVANANTHAPURAM, PIN-695 104.

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BY ADVS. SRI.K.K.VIJAYAN

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SMT.MINI GANGADHARAN

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 12-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 249 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P1.	PHOTOCOPY OF THE PLAINT IN OS NO.569/2012 NOW PENDING ON THE FILE OF THE 2ND ADDL. SUB COURT, THIRUVANANTHAPURAM.
EXT.P2.	PHOTOCOPY OF THE REPORT OF AMIN IN IA NO.1091/2012 BEFORE THE FILE OF THE 2ND ADDL. SUB COURT, THIRUVANANTHAPURAM.
EXT.P3.	PHOTOCOPY OF WRITTEN STATEMENT FILED BY THE DEFENDANT IN OS NO.569/2012 ON THE FILE OF THE 2ND ADDL. SUB COURT, THIRUVANANTHAPURAM.
EXT.P4.	PHOTOCOPY OF THE IA NO.158/2014 IN OS NO.569/2012 BEFORE THE FILE OF THE 2ND ADDL. SUB COURT, THIRUVANANTHAPURAM.
EXT.P5.	PHOTOCOPY OF THE JUDGMENT IN OP(C) NO.137/2015 DATED 19/1/2015 OF THIS HONOURABLE COURT.
EXT.P6.	PHOTOCOPY OF THE MEMO DATED 24/1/2015 FILED BY THE PETITIONER BEFORE THE 2ND ADDL. SUB COURT, THIRUVANANTHAPURAM IN OS NO.569/2012.
EXT.P7.	PHOTOCOPY OF THE COMMISSION APPLICATION FILED BY THE RESPONDENTS IA NO.1092/2012 IN OS NO.569/2012 OF THE 2ND ADDL. SUB COURT, THIRUVANANTHAPURAM.
EXT.P8.	PHOTOCOPY OF THE COMMISSION REPORT IN OS NO.569/2012 OF THE 2ND ADDL. SUB COURT, THIRUVANANTHAPURAM.
EXT.P9.	PHOTOCOPY OF THE OBJECTION TO THE COMMISSION REPORT FILED BY THE DEFENDANTS IN OS NO.569/2012 OF THE 2ND ADDL. SUB COURT, THIRUVANANTHAPURAM.
EXT.P10.	PHOTOCOPY OF THE PETITION NO.3132/2015 IN OS NO.569/2012 OF THE 2ND ADDL. SUB COURT, THIRUVANANTHAPURAM.
EXT.P11.	PHOTOCOPY OF THE OBJECTION TO PETITION NO.3132/2015 IN OS NO.569/2012 OF THE 2ND ADDL. SUB COURT, THIRUVANANTHAPURAM.
EXT.P12.	CERTIFIED COPY OF THE ORDER DATED 26/9/2015 IN IA NO..3132/2015 IN OS NO.569/2012 OF THE 2ND ADDL. SUB COURT, THIRUVANANTHAPURAM.
EXT.P13.	CERTIFIED COPY OF THE ORDER DATED 9/10/2015 IN IA NO.3555/2015 IN OS NO.569/2012 OF THE 2ND ADDL. SUB COURT, THIRUVANANTHAPURAM.

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RESPONDENT(S)' EXHIBITS

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--------------------------------------- NIL.

/ TRUE COPY /

P.S. TO JUDGE

K.ABRAHAM MATHEW J.

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O.P.(C) No.249 of 2016

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Dated this the 12^th day of February, 2016

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JUDGMENT

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The respondent undertook to construct a multi-storied building for the petitioner. Dispute arose between them. The respondent filed a suit for recovery of certain amount. A commissioner was appointed to ascertain the work done by the respondent. The commissioner filed a report to the effect that he could not ascertain the value of the work done by the respondent without the assistance of an Engineer. The court appointed an expert to assist the commissioner. This is challenged. The court also later appointed another expert in the place of the expert already appointed. This is also challenged.

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Heard.

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The order appointing commissioner was passed in 2013. After the commissioner visited the property the petitioner allegedly did some work. The expert was appointed only two years later. By that time the petitioner had allegedly spent huge amount for some work. Now his case is that it will not be possible for the commissioner to ascertain the work done by him and the work done by the respondent. The allegation may or may not be true. But he must be given a chance to prove that after the commissioner first visited the property he has done some work in the property, for which the respondent cannot claim any amount. So the petitioner

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O.P.(C) No.249 of 2016 2

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will be given an opportunity to substantiate his claim. The trial court also shall appoint another expert after hearing both sides.

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In the result, this Original Petition is disposed of directing the trial court to give an opportunity to the petitioner to substantiate his claim that he has done some work after the commissioner's first visit. The lower court shall also appoint another expert after hearing both sides if such an appointment can be made.

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Sd/- K.ABRAHAM MATHEW JUDGE

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cms

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/True copy/ P.S.to Judge

Bhadrasenan v. M/S.Nirmalyam Builders & Developers (P) Ltd.

Case brief

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Bhadrasenan v. M/S.Nirmalyam Builders & Developers (P) Ltd.

Case brief

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