Dismissed

T.a.Abdul Khader v. M.T.Joseph

Kerala HC2 Nov 2016RSA/418/2016

Case brief

AI extract

What is this about?

The High Court dismissed the regular second appeal. Upholding the lower appellate court, the High Court held that the defendant's principal written agreement (Ext.B1) was fabricated and worthless. Relying on the contractor's evidence and commission reports, the court found the original agreement genuine and dismissed the appeal against the decree.

What did the court decide?

Regular Second Appeal dismissed; original decree and dismissal in appeal below upheld.

T.a.Abdul Khader Vs M.T.Joseph — 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.HARILAL

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WEDNESDAY, THE 2ND DAY OF NOVEMBER 2016/11TH KARTHIKA, 1938

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RSA.NO. 418 OF 2016 (G)

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AGAINST THE JUDGMENT AND DECREE DATED 17-10-2015 IN A.S. NO. 10/2011 OF THE ADDITIONAL DISTRICT COURT, NORTH PARAVUR

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AGAINST THE JUDGMENT AND DECREE DATED 29.10.2010 IN O.S. NO.368/2009 OF THE PRINCIPAL SUB COURT, NORTH PARAVUR

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APPELLANT/APPELLANT/DEFENDANT:

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T.A.ABDUL KHADER,

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AGED 68 YEARS, S/O ALI, THURUTHUMMEL VEETTIL, NELLIKKAPPILLY, EDATHALA NORTH P.O., ALUVA VILLAGE.

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BY ADVS.SRI.V.K.VEERAVUNNY SMT.JINSA KHALID

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RESPONDENT/RESPONDENT/PLAINTIFF:

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M.T.JOSEPH, AGED 65 YEARS, S/O THOMAS, MALEAKAL VEETTIL, NEAR G.T.N. COMPANY, CHUNANGAMAVELI KARA, ALUVA-683112

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DST

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K. HARILAL, J.

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= = = = = = = = = = = = = = = = = = = = = R.S.A. No. 418 of 2016

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- - - - - - -- - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of November, 2016

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J U D G M E N T

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The appellant is the defendant, who suffered

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the decree in the Original Suit and dismissal in the Appeal before the Lower Appellate Court. The Suit is

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one for money, claiming an amount of `1,54,726/from the defendant. The plaintiff is a building contractor. According to him, he is known to him for the last so many years. On 02.07.2000, the plaintiff

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undertook the construction of the house of the defendant situated in the property of the defendant. The plinth area of the building to be constructed was 1280 sq. feet. It was agreed between the plaintiff and the defendant to construct the house at the rate of `550/- per sq. feet and the plaintiff completed the construction of the house on 15.02.2007. Thereafter, the defendant caused to put

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R.S.A. No. 418 of 2016

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-: 2 :-

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up additional constructions apart from the agreed constructions and the plaintiff spent an amount of `30,700/- towards additional work carried out by him

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for the house of the defendant. The total cost of construction of the house according to the original plan is 7,04,000/-. Out of this, the defendant paid 6,04,000/-. Thus, the balance amount due from the defendant is 1,00,000/- and towards additional construction, an amount of 30,700/- is also due from the defendant to the plaintiff. After completion of the construction of the house and handing over the key to the defendant, the plaintiff demanded the balance amount of 1,30,700/-, but the defendant did not pay the said amount. Hence, the suit is filed for recovery of an amount of 1,30,700/- with interest.

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The defendant contended that no amount is

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R.S.A. No. 418 of 2016

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due from him to the plaintiff. The agreement for

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construction of the house was entered between the defendant and the son of the plaintiff, 'Sri. Anoop'. The defendant entered into a written agreement with the son of the plaintiff for the construction of the house on 27.02.2006 and that agreement was executed by the son of the plaintiff and was entrusted to the defendant. As per the said agreement, the rate fixed for construction of the house was 500/- per sq. feet. There is no dispute regarding the total area of the building to be constructed. The construction of the house was not completed so far. Two sides of the compound wall are also constructed. An amount of 50,000/- is

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necessary for the construction of the compound wall on the southern side. An amount of `10,000/- is required for construction of the sunshade on the

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R.S.A. No. 418 of 2016

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-: 4 :-

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eastern side. The plaintiff had agreed to spread

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marble or vitrified tiles costing 55/- per sq. feet for the floor. But, the tiles used was very low quality and is worth 30/- per sq. feet. Thus, the defendant sustained a loss of 30,000/- on this account. The plaintiff has done the work worth 5,50,000/- only, whereas he has received an amount of 6,54,000/- as advance. Thus, the plaintiff has received an amount of 1,04,000/- in excess. The suit was filed without bona fide and they prayed for dismissal of the suit.

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On the rival pleadings, both parties

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adduced oral and documentary evidence. After considering the evidence on record, the courts below concurrently arrived at a finding that Ext.B1 agreement is a fabricated agreement and no reliance can be placed on the said agreement.

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R.S.A. No. 418 of 2016

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Heard the learned counsel for the

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appellant.

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According to the plaintiff, there was no written agreement. On the other hand, there was an oral agreement, agreeing to construct the house of the appellant at the rate of `550/- per sq. feet. The total plinth area to be constructed is not disputed. But, according to the defendant, there was a written agreement and the same was executed at the initiative of the son of the plaintiff and after execution, the same was handed over to him and the entire transaction between the plaintiff and the defendant are governed by the terms and conditions in the written agreement. But, the plaintiff contended that there was no written agreement and they entered into oral agreement fixing the terms. The terms are specifically pleaded in the plaint. As

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R.S.A. No. 418 of 2016

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-: 6 :-

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per the plan furnished, the plinth area of the

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proposed house was 1280/-sq. feet and the rate fixed was 550/- per sq. feet. In order to substantiate the said contention, the plaintiff himself has given evidence and further the plaintiff relies on commission report Exts.C1, which supported the estimate given by the Engineer. Exts.C1 and C1(a) are also produced. Thus, the question to be considered centers around the existence of Ext.B1 as a true and genuine document. When PW1 and DW1 were examined, the genuineness of Ext.B1 was brought to their notice. As per Ext.B1, the building proposed to be constructed was a two storied one and the amount fixed for the work was 15,00,000/- and further the rate is `500/- per sq. feet. There are three bath room. But, no one has as case that the building proposed to be constructed was a two

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R.S.A. No. 418 of 2016

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storied building. PW1 himself during cross-

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examination has admitted this fact that the house agreed to be constructed had no upper story.

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The lower appellate court meticulously examined Ext.B1 agreement and arrived at a finding that Ext.B1 is a fabricated document and no reliance can be placed on Ext.B1. The court below after examining the document found that it would show that in the last page, there is no signature. It is a

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page added to the four pages of some other agreement. It is also to be noted that in the added page, page No.4 is repeated. It is again to be shown

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that the contents of other pages are also found repeated therein. In the above view, the court

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arrived at a finding that the last page is manipulated using paper signed by them wherein he

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has written the amount received on various

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R.S.A. No. 418 of 2016

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-: 8 :-

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occasions. On the other side of this paper, the contents of the last page is inserted. Thus, the document itself shows that it is a fabricated document and further, from the facts elicited from the cross-examination of PW1, it is clear that

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Ext.B1 is not a genuine document entered into between the plaintiff's son and the defendant. I have examined the copy of Ext.B1 agreement produced by the learned counsel for the appellant. On a close look at Ext.B1, I also found that no reliance can be placed on Ext.B1 and the observation made by the court below is a possible view that can be taken on examination of the document even with bare eyes. Thus, the written agreement on which the defendant built up his entire stands worthless.

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In the above circumstances, the court below

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relied on Ext.C1 report and Ext.C1(a) estimate. In

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R.S.A. No. 418 of 2016

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the absence of any documentary evidence to prove the transaction, the court below is justified, in relying on Ext.C1 report and Ext.C1(a) estimate, as basis for the amount due to the plaintiff. Even though, the plaintiff has claimed 30,700/- also as additional claim, the court below rightly rejected the said claim and arrived at a finding that the total amount due to the plaintiff is only 81,803/I do not find any kind of perversity in the appreciation of evidence, no question of law arises for consideration.

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Hence, this Regular Second Appeal is dismissed accordingly.

Sd/- K. HARILAL,

DST

//True copy//

P.A. To Judge

T.a.Abdul Khader v. M.T.Joseph

Case brief

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T.a.Abdul Khader v. M.T.Joseph

Case brief

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