Kerala High Court
Rajan vs V.V.Saseendran on 17 July, 2025
RFA. No.767/2009
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
THURSDAY, THE 17TH DAY OF JULY 2025 / 26TH ASHADHA, 1947
RFA NO. 767 OF 2009
AGAINST THE JUDGMENT AND DECREE DATED 12.3.2004 IN OS
NO.562 OF 2001 OF ADDITIONAL SUB COURT, IRINJALAKUDA
APPELLANT/PLAINTIFF:
RAJAN, S/O VATTAPPARA ULAHANNAN
INCHAKKADU DESOM, MUPLIYAM VILLAGE,
MUKUNDAPURAM TALUK
BY ADV SRI.RENJITH THAMPAN (SR.)
RESPONDENT/DEFENDANT:
V.V.SASEENDRAN,
PRASANNA BHAVANAM,
AATHINAD POST OFFICE, KARUNAGAPPOLLI DESOM,
PRESENT ADDRESS V. SASIDHARAN,
CONTRACTOR, CHIMMINI DAM SITE,
POST CHIMMINI DAM, ALAGAPPANAGAR.
BY ADV SRI.K.S.BHARATHAN
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
07.07.2025, THE COURT ON 17.07.2025 DELIVERED THE FOLLOWING:
RFA. No.767/2009
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JUDGMENT
Dated this the 17th day of July, 2025 The plaintiff in O.S.No.562/2001 on the file of Additional Sub Court, Irinjalakuda 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 filed the suit for realisation of a sum of Rs.15 lakhs from the defendant. The defendant is a licenced contractor doing construction works in Thrissur district and the Chimmini Dam site. According to the plaintiff, as requested by the defendant, he had carried out several works undertaken by the defendant. During the previous such instances the defendant used to execute power of attorney in favour of the plaintiff and by using the same, he spent money from his pocket, carried out the work and claimed the bill amount directly from different government departments. For the said purpose, he had availed overdraft facility from Dhanalaxmi Bank offering the immovable property of his sister as security. During the year 1999, the defendant obtained the work of Kannattupadamchira, Karikulamchira, the work of RFA. No.767/2009 3 2025:KER:53192 Dhanukulam-Thottippal channel etc. Since those contracts were entrusted by the defendant with the plaintiff, the plaintiff completed those works by spending his own money. In addition to the same, other works were also done by the plaintiff on behalf of the defendant. When there arose some dispute between the plaintiff and the defendant, one Thomas and Davis mediated the dispute and on 11.4.2000, an agreement was executed between them. As per the said agreement, the defendant agreed to issue power of attorney in favour of the plaintiff to enable him to collect the amount involved in those contracts, from the departments concerned. Accordingly, in respect of two works, he had given application to the Government and received the bill amount. However, regarding the other works, the defendant refused to give power of attorney in his favour and hence he could not receive those bill amounts. Though the plaintiff issued a notice dated 25.8.2001 to the defendant, he did not send any reply. Therefore, claiming that the plaintiff is entitled to get a total sum of Rs.20 lakhs from the defendant, he filed the suit but limited the claim to 15 lakhs.
3. The defendant filed written statement denying the execution of RFA. No.767/2009 4 2025:KER:53192 any such agreement in favour of the plaintiff and also denying the liability to pay any amount to the plaintiff. According to the defendant, he had never authorised the plaintiff to carryout any work on his behalf. Further according to him, since the plaintiff was a politician, in order to facilitate passing of the bills speedily, the name of the plaintiff was shown in some correspondences. According to him, he does not owe any amount to the plaintiff in that respect.
4. In the light of the above pleadings, the trial court framed five issues. The evidence in the case consists of the oral testimonies of PWs 1 to 3 and DW1, Exhibits A1 to A16 and X1 to X3. After evaluating the evidence on record, the trial court dismissed the suit holding that the remedy of the plaintiff is to sue for specific performance of Exhibit A5 agreement. Being aggrieved by the above judgment and decree of the trial court, the plaintiff preferred this appeal.
5. Now, the points that arise for consideration are the following:
1) Whether the plaintiff is entitled to get a sum of Rs.15 lakhs from the defendant towards the amount spent by him for carrying out the work undertaken by the defendant?RFA. No.767/2009 5
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2) Whether Ext.A5 agreement is hit by section 96 of the Bharatiya Sakshya Adhiniyam, 2023?
6. Heard Sri. Ranjith Thampan, the learned senior counsel for the appellant as instructed by Sri.V.M. Krishna Kumar and Sri. K.S. Bharathan, the learned counsel for the respondent/defendant.
7. The points: The plaintiff and defendant were friends. The defendant was a licensed contractor, who undertook various Government works. According to the plaintiff, at the instance of the defendant, he had carried out several works on behalf of the defendant and in that respect, the defendant owes him a sum of Rs.20 lakhs. According to the plaintiff, on previous occasions, the defendant used to execute power of attorney in his favour and on the basis of those power of attorney, he used to spend money from his pocket, presents the bills for encashment and the departments used to release the amount to him. When there arose some dispute between them, two mediators intervened, and Exhibit A5 agreement was entered into between them on 11.4.2000. The suit was filed when the defendant refused to honour the said agreement.
8. The nomenclature given to Exhibit A5 is an agreement to RFA. No.767/2009 6 2025:KER:53192 dissolve the contractual relationship existed between the plaintiff and the defendant. In Exhibit A5, the exact amount due to the plaintiff is not mentioned. The main provisions in Exhibit A5 are the following:
i) During the previous year, 4 works were undertaken by availing loan from Dhanalaxmi Bank, by mortgaging property. Out of the amount to be received in respect of those 4 works, the liability of Dhanalaxmi bank is to be discharged and the balance amount is to be shared equally by them.
ii) Amount due from all pending bills is to be shared equally.
iii) 6 works namely Kannattupadam chira, Karikulam chira, Thottippal-Dhanukulam channel, the work of Padavaradu Thodu, Alengad- Peechapilli road and Tirur canal maintenance work were entrusted with the plaintiff.
iii) The work of Vasupura chira will be done by the plaintiff, if all arrangements are made by the defendant.
iv) The ownership of a motorcycle is to be transferred by the plaintiff in favour of the defendant. The liability of the car of the defendant will be discharged by the defendant.
v) When the security given for Peechampilli-Alengad road is received, a sum of Rs.1,00,000/- is to be given for the plaintiff.
vi) The plaintiff has to pay a sum of Rs.80,000/- to the RFA. No.767/2009 7 2025:KER:53192 defendant, when a sum of Rs.1,60,000/- is received from Chullikkadan Sasi.
9. The learned counsel for the defendant, relying upon Section 96 of the Bharatiya Sakshya Adhiniyam, 2023, would argue that the language used in Ext.A5 is, on its face, ambiguous or defective and hence the plaintiff cannot be permitted to show its meaning or supply its defects.
10. Section 96 of the Bharatiya Sakshya Adhiniyam, 2023 states that:
"93. Exclusion of evidence to explain or amend ambiguous document.-When the language used in a document is, on its face, ambiguous or defective, evidence may not be given of fact which would show its meaning or supply its defects.
Illustrations
(a) A agrees, in writing, to sell a horse to B for "one lakh rupees or one lakh fifty thousand rupees". Evidence cannot be given to show which price was to be given.
(b) A deed contains blanks. Evidence cannot be given of facts which would show how they were meant to be filled."
11. According to the learned counsel for the defendant, since Exhibit A5 does not specify the exact amount due to the plaintiff, it is RFA. No.767/2009 8 2025:KER:53192 ambiguous. Therefore, according to him evidence cannot be permitted to be adduced to validate the such a document.
12. On the other hand, the learned senior counsel, relying upon the decision of a Single Bench of this Court in Joseph George v. Cochin Sanitary Wares [1991 KHC 433], would argue that the power of attorney executed in a similar instance, to receive the amount due from the Government was held to be equitable assignment and as such according to him, Exhibit A5 is a valid contract.
13. In the above decision, the 2nd respondent has undertaken to execute a contract work and an agreement was entered into by him with the Government. Since he had no sufficient funds to execute the work, the appellant agreed to render help and financial assistance, and accordingly the appellant was authorised to sue for and recover any amount due to the 2nd respondent in connection with the agreement with the Government and to conduct or defend proceedings in connection therewith. It was in the above context, in paragraph 6, the learned Single Judge held that:
"6. The power-of-attorney itself mentions that it is RFA. No.767/2009 9 2025:KER:53192 irrevocable. The agent was authorised to do all acts in connection with the execution of the contract and to receive the amounts payable by the Government except the security amount which was payable to the 2nd respondent. There is specific mention about the retention amount which was agreed to be paid to the power-of-attorney-holder. The right conferred under the power of attorney therefore amounts to an equitable assignment of the amounts due to the 2 nd respondent. On the strength of the power the entire right in respect of the contract work had vested in the claimant and what was reserved with the 2nd respondent is only the right to claim the security amount. The amount retained by the department and known as retention amount is therefore not due to the 2nd respondent and hence not liable to be attached in execution of the decree against 2nd respondent. The order of the court below that the claimant has no independent right over the amount is therefore erroneous and is hereby set aside."
14. In the instant case, though the exact amount due to the plaintiff from the works undertaken by him on behalf of the defendant is not clear, from Exhibit X1 series documents and from the evidence adduced by the plaintiff, at least a portion of the amount due to the plaintiff could be ascertained, without any difficulty. As per Exts.A5 and RFA. No.767/2009 10 2025:KER:53192 C1, what is assigned in favour of the plaintiff is the amount due to the defendant from the government in respect of a work undertaken by the defendant and executed by the plaintiff. It was so assigned in favour of the plaintiff in consideration of the amount spent by the plaintiff for carrying out the work undertaken by the defendant. Since the plaintiff was authorised to receive the said amount from the government in consideration of the amount spent by him for the defendant, it is an equitable assignment. Since, from Ext.X1, at least a portion of the said amount is ascertainable, it cannot be held that Exhibit A5 is a contract coming within the purview of Section 96 of the Bharatiya Sakshya Adhiniyam, 2023.
15. From the evidence of PW1, the Secretary, Block Panchayat Kodakara and PW2, the Executive Engineer, Irrigation. Thrissur attached to the Block Panchayat, it is revealed that though Alengad- Peechampilli road work was undertaken by the defendant, he had issued power of attorney in favour of the plaintiff and accordingly the said work was carried out by the plaintiff. Exhibits X1(a) is the letter issued by the defendant in that respect to PW1 and Exhibits X1(c) is the power RFA. No.767/2009 11 2025:KER:53192 of attorney executed by the defendant in that respect. Exhibit X1(b) is the compromise entered into with the Block Panchayat President authorising the plaintiff to carry out the above work on behalf of the defendant. From the evidence of PWs 1 and 2 and from Exhibits X1 series, it is also revealed that the amount due as per the final bill in respect of Alengad-Peechampilli road is Rs.12,96,193/-. Since from the evidence of PWs 1 to 3 and from Exhibits A5 and X1 series, it is revealed that Alengad-Peechampilli road work undertaken by the defendant was executed by the plaintiff on the basis of the power of attorney issued by the defendant, by using the plaintiff's own money, the plaintiff is entitled to realise the said amount of Rs.12,96,193/-.
16. In ground (e) of the memorandum of appeal, it is contended that the liability to the Dhanalaxmi Bank, Varandharappilly Branch was Rs.7,00,000/- and that the department has issued a cheque for Rs.9,00,000/- to the defendant and on that account, the plaintiff is entitled to get a sum of Rs.1,00,000/-. However, with respect to the receipt of the above amount, except the oral testimony of the plaintiff as PW1, there is no other evidence. Similarly, with regard to the other RFA. No.767/2009 12 2025:KER:53192 Rs.1,00,000/- payable by the defendant, on releasing of the security also, there is no documents except the oral testimony of the plaintiff as PW1. In the above circumstances, with regard to the claims raised by the plaintiff in this appeal, except Rs.12,96,193/- covered by Exhibit X1 series, there is no reliable evidence.
17. In the above circumstances, I hold that towards the value of the works done by the plaintiff on behalf of the defendant as mentioned in Ext.A5, he is entitled to get a sum of Rs.12,96,193/- with reasonable rate of interest from the date of the suit on 18.12.2001. The rate of interest claimed by the plaintiff is 12% per annum. Considering the entire facts, I hold that interest @8% per annum from the date of the suit on 18.12.2001 till realisation will be reasonable in this case. Points answered accordingly.
18. In the result, this appeal is allowed. The impugned judgment and decree of the Sub Court, Irinjalakuda is set aside. O.S. No.562 of 2001 is decreed in part as follows:
The plaintiff/appellant is allowed to reaslise a sum of Rs.12,96,193/- along with interest at the rate of 8% per annum RFA. No.767/2009 13 2025:KER:53192 from the date of the suit on 18.12.2001 till payment/realisation with proportionate costs throughout.
All pending interlocutory applications shall stand dismissed.
Sd/-
C. PRATHEEP KUMAR, JUDGE sou.