Kerala High Court
John Mathew vs J.M.Titus on 22 September, 2025
RFA 251/2006
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 22ND DAY OF SEPTEMBER 2025 / 31ST BHADRA, 1947
RFA NO. 251 OF 2006
OS NO.89 OF 1999 OF SUB COURT, PATHANAMTHITTA
APPELLANT/DEFENDANT
JOHN MATHEW,
ANUGRAHA VADAKKETHIL HOUSE, ATTARIKAM MURI, OMALLUR
VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT.
BY ADVS.
SRI.R.D.SHENOY (SR.)
SRI.MATHEW JOHN (K)
SHRI.SUJESH MENON V.B.
SRI.S.VINOD BHAT
SMT.V.NAMITHA
KUM.ANAGHA LAKSHMY RAMAN
SMT.GITANJALI SADAN PILLAI
RESPONDENT/PLAINTIFF
J.M.TITUS, S/O MATHAI JOSEPH,
ULUVATH BUNGLOW, THATTARAMPALAM, KUNNAMANGALAM VILLAGE,
MAVELIKKARA TALUK, ALAPPUZHA DISTRICT.
BY ADVS.
SHRI.LAL K.JOSEPH
SMT.ROSHAN THOMAS
SRI.RAKESH DAWNY KOKKATTU
SMT.M.C.SANITHA
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
11.9.2025, THE COURT ON 22.09.2025 DELIVERED THE FOLLOWING:
RFA 251/2006
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JUDGMENT
Dated : 22nd September, 2025
The defendant in O.S. 89/1999 on the file of the Sub Court, Pathanamthitta
is the appellant. (For the purpose of convenience, the parties are hereafter referred
to as per their rank before the trial court).
2. The plaintiff is a contractor who had entered into an agreement with
the defendant for constructing a residential building for the defendant. As per the
contract, the construction was to be carried out in accordance with the approved
plan. The construction charges for every stage of work was mentioned in the
contract. According to the plaintiff, as per the oral agreement he has made
additional constructions also, such as construction of compound wall, courtyard
etc. The defendant paid an amount of Rs.3,12,500/- as construction charge of the
outhouse. The plaintiff used to put his signature in the account book maintained by
the defendant for receipt of every payment. The plaintiff completed the
construction of the main building by the end of April 1998 using high quality
materials and skilled labourers. The defendant paid a total sum of Rs.20,05,000/- to
the plaintiff in seven instalments. The defendant had to pay an amount of
Rs.25,000/- to the sub contractor, Mani and Rs.20,000/- to the tarring contractor.
The value of the materials supplied by the defendant is calculated at Rs.73,265/-.
As per the measurements, the actual amount to be paid by the defendant is
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Rs.24,92,640/- and the amount due for the additional work will come to
Rs.3,06,044/-. Therefore, the total amount due to the plaintiff will come to
Rs.28,85,207/- including Rs.41,523/- paid to the sub contractors. However, the
defendant paid only a sum of Rs.21,23,265/- to the plaintiff, leaving a balance
amount of Rs.7,61,942/-. Therefore, the plaintiff filed the suit for realising the said
amount from the defendant.
3. The defendant filed a written statement admitting the agreement
entered into with the plaintiff. However, he denied having any oral agreement with
the plaintiff. According to the defendant, he had supplied Teak-wood for making
doors and windows, instead of Anjili wood. Out of 131.5 cubic feet of Teak-wood
supplied to the plaintiff, he had used only 80 cubic feet and the defendant is
entitled to realise a sum of Rs.90,075/- from the plaintiff being the value of the
above Teak-wood. The plaintiff and defendant together have not engaged any sub
contracts as alleged. After the completion of the construction, when the defendant
measured out the plinth area of the house with the assistance of an engineer of
GCDA, it was found that there was marked variation in the measurement taken by
the plaintiff. As per the measurement by the plaintiff, the plinth area of the ground
floor is 2855.5 sq. feet and that of the first floor is 2583.5 sq.feet. But the actual
measurement of the ground floor is 2356.5 sq.feet and the first floor is 1742 sq.feet
and there is a difference of 1340.5 sq. feet, for which he is entitled to get only a
sum of Rs.18,44,325/-. In fact, the defendant paid an excess amount to the plaintiff.
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According to the defendant, though as per the agreement, enamel pointing work of
the doors and windows of the grills are to be done by the plaintiff, while those
works were done by the defendant himself. The plaintiff/defendant had done
painting work of the grills and compound walls having area of 384 sq. feet and
hence the defendant is entitled to get a sum of Rs.20,984/- from the plaintiff in that
account. The defendant spent a total sum of Rs.47,240/- for snow-sum painting
which is liable to be realised from the plaintiff. Though the plumbing work for the
water supply was done by the plaintiff, it was defective and rendered unfit for use,
due to poor workmanship. The defendant had to spend Rs.12,380/- for rectifying
the defect in the plumbing work. The floor of the bathroom was done by the
defendant spending Rs.47,000/-. The defendant supplied hinges and locks for the
door worth Rs.4,065/-. The construction and roofing of the building was highly
defective. There was leaking from the roof concrete slabs and in order to rectify the
same, the defendant spent an amount of Rs.1,80,000/-. He also spent a sum of
Rs.4,000/- for replacing the defective water tank constructed by the plaintiff. He
had spend a sum of Rs.10,000/- for repair of the approach road towards his house.
Therefore, the defendant claimed that he is entitled to get a total sum of
Rs.4,05,714/- from the plaintiff and the same was raised as a counter claim.
4. The plaintiff filed a written statement to the counter claim denying
the claims made in the counter claim. The trial court framed three issues. The
evidence in the case consists of the oral testimonies of PWs1 and 2 and DWs1 to
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3, Exts.A1 to A4 and B1 to B5 were marked. After hearing both sides and
evaluating the evidence on record, the trial court decreed the suit in part allowing
the plaintiff to realise a sum of Rs.4,97,635/- along with interest at the rate of 12%
per annum and dismissed the counter claim. Aggrieved by the above judgment and
decree of the trial court, the defendant preferred this appeal raising various
grounds.
5. Now the point that arises for consideration is the following :
Whether the impugned judgment and decree of the trial court calls for any
interference in the light of the grounds raised in the appeal ?
6. Heard Sri.S.Vinod Bhat, the learned counsel for the appellant and
Sri.Lal K.Joseph, the learned counsel for the respondent.
7. The point :- Admittedly, the plaintiff entered into Ext.A1 agreement
with the defendant for the construction of a residential building for the defendant.
As per the terms of Ext.A1, the construction of the residential building is to be
carried out as per the approved plan and the rate fixed for the construction is
Rs.450/- per sq.feet. With regard to the total extent of the construction there is
dispute between the parties. According to the plaintiff, the area of the ground floor
is 2855.5 sq. feet and that of the first floor is 2583.5 sq.feet. However, according to
the defendant, the area of the ground floor is 2356.5 sq.feet and that in the first
floor is 1742 sq.feet. In the above circumstances, a Commissioner was deputed and
he filed a report which was marked as Ext.C1. The Commissioner was also
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examined as PW2. As per the commission report, the area of the ground floor is
2370 sq.feet and of the ground floor is 2254 sq.feet. Therefore, the total constructed
area in both the floors will come to 4624 sq.feet. Accepting the above measurement
taken by the Advocate Commissioner with the help of an expert engineer, the trial
court has found that the total extent of construction is 4624 sq.feet and I do not find
any grounds to disbelieve the above area fixed by the trial court. Therefore, the cost
of construction of the first floor and ground floor as per the agreement as fixed by
the trial court does not call for any interference.
8. For the construction of the car porch, the area of passage (open space)
and area of balcony, the trial court has granted only 60%, 50% and 50%
respectively of the agreed rate. Such a rate was fixed on the ground that those
constructions do not require supporting walls and as such, the value for the above
constructions fixed by the trial court also appears reasonable and does not call for
any interference.
9. In the plaint the plaintiff claims that in addition to the constructions
specified in Ext.A1 agreement as per the oral understanding with the defendant, he
had carried out several additional works which are specified as items 2 to 4 in the
plaint. Though in the written statement, the defendant denied having entered into
such oral agreement, at the time of evidence the defendant as DW1 fairly conceded
that all the works mentioned in items 2 to 4, except serial No.23 in item No.2, was
constructed by the plaintiff at his request. In the above circumstances, the cost of
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construction assessed by the trial court for the above additional constructions after
deducting serial No.23 in item No.2, also does not call for any interference.
10. At the time of arguments, the main ground raised by the learned
counsel for the appellant is with regard to the rejection of the counter claim.
According to the learned counsel, several works proposed to be done by the
plaintiff were to be carried by the defendant and as such the defendant is entitled to
get the said amount adjusted as claimed in the counter claim. However, according
to the learned counsel for the respondent/plaintiff, none of the works undertaken by
the defendant are part of Ext.A1 agreement, but interior works which come beyond
the scope of Ext.A1. Therefore, according to the learned counsel for the plaintiff,
the defendant is not entitled to adjust the amount spent by him for interior
decoration, from the amount due to the plaintiff.
11. The learned counsel for the appellant has relied upon the evidence of
DW3 and Ext.B4 series of receipts to substantiate his claim regarding the counter
claim. However, during the cross-examination of DW1 he admitted that he himself
has assessed the cost of construction of the building and found that the amount
quoted by the plaintiff was 30% more than the actual amount and as such, he has
deducted 30% from the amount paid to the plaintiff. Out of the counter claim raised
by the defendant, a sum of Rs.1,80,000/- is towards the amount required for
rectification of the defective construction, Rs.4000/- is for replacement of defective
water tank and Rs.90,075/- is towards the value of Teak-wood supplied. In this
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case, there is absolutely no reliable evidence to prove that there was any defect in
the construction carried out by the plaintiff so as to require such a huge amount for
rectification. Similarly, there is no reliable evidence to prove that the Teak-wood
supplied by the defendant was not used for the construction of the residential
building and that it was misappropriated by the plaintiff. Similarly there is also no
evidence to prove that he had to replace the defective water tank as claimed. The
remaining amount claimed are towards enamel painting, cost of snow-sum
painting, cost of hinges and locks, cost incurred by the defendant for re-installation
of the plumbing work and cost incurred for flooring of the bathrooms and walls etc.
In the plaint itself the plaintiff has admitted the cost of some materials supplied by
the defendant. In order to prove that the defendant has incurred additional
expenditure in respect of the work undertaken by the plaintiff, there is no reliable
evidence. In the above circumstances, the trial court was justified in holding that
the defendant has failed in proving the counter claim. I do not find any grounds to
interfere with the above finding of the trial court as well.
12. With regard to the total amount paid by the defendant to the plaintiff
also, there is dispute. According to the plaintiff, he received only Rs.20,05,000/-,
but according to the defendant he paid a sum of Rs.20,95,000/-. According to the
plaintiff, whenever he received payment, he put his signature in the register
maintained by the defendant. Ext.B5 is the copy of the account book maintained by
the defendant in that respect. On a perusal of Ext.B5 it can be seen that in the above
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register, the plaintiff has affixed his signature only for the period upto 14.4.1997.
Thereafter, in the remaining entries there is no signature of the plaintiff. In the
above circumstances, it is to be held that Rs.20,05,000/- as admitted by the plaintiff
alone is to be taken as the amount paid by the defendant. Therefore, the finding of
the trial court in that respect also does not call for any interference.
13. At the time of argument, the learned counsel for the appellant
submitted that the trial court has awarded interest at the rate of 12% per annum,
which is on the higher side. Considering the fact that this is only a suit filed for the
amount spent for the construction of the residential building and not a business
transaction, I hold that interest awarded by the trial court at the rate of 12% is on
the higher side and I hold that interest at the rate of 9% will be reasonable. I do not
find any grounds to interfere with the other findings of the trial court. Points
answered accordingly.
14. In the result, this appeal is dismissed, subject to the condition that the
rate of interest is reduced from 12% to 9% per annum. Considering the facts,
parties are directed to bear their respective costs in this appeal.
All pending interlocutory applications in the appeal will stand dismissed.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/15.9.25
