V. Sasidharan vs Rajan

Mohammed Nias C.P., J.

The Review Petition is by the respondent in RFA No.767 of 2009, against the judgment of this Court dated 17.07.2025, which allowed the appeal and decreed the plaintiff's suit in part.

The plaintiff's case was that he used to execute the contract works undertaken by the defendant, a licensed contractor operating in Thrissur district and at the Chimmini Dam site, doing so at his own risk and with his own funds, and thereafter recovering the amounts due through powers of attorney executed by the defendant in his favour. During 1999, the defendant obtained the contract for three chiras — Kannattupadam, Karikulam and Vasupuram — and a shutter, and had raised an overdraft from Dhanalakshmi Bank on the security of property belonging to the plaintiff's sister; the plaintiff executed the work utilising that amount together with his own funds. The defendant similarly obtained the work of the Dhanukulam–Thottippal leading channel, the Padavaradu Thodu bund-protection work, the Tirur canal maintenance work and the Alengad– Peechampilli road work, all of which the plaintiff claims to have executed on the defendant's entrustment, spending his own money.

Disputes arose between the parties during the course of this arrangement, which were mediated by one Thomas and one Davis, resulting in an agreement dated 11.04.2000 (Ext.A5). Under Ext.A5, the defendant undertook to execute powers of attorney in the plaintiff's favour so as to enable him to collect, from the departments concerned, the amounts due on the works already executed. Pursuant to this, the defendant did apply to the Government authorities for permission to execute powers of attorney in respect of two of the works, and such permission was granted. The defendant, however, subsequently declined to execute the power of attorney, and one of the sanctions already granted was cancelled by the department.

The plaintiff claims to have spent about Rs. 20,00,000/- of his own money on the defendant's contract works. On the defendant's refusal to execute the power of attorney, the plaintiff issued a notice dated 25.08.2001, which went unanswered, and thereafter instituted the suit claiming Rs. 15,00,000/- out of an entitlement of Rs. 20,00,000/-.

The defendant denied the suit claim in its entirety, contending that a suit for mere recovery of money was not maintainable on Ext.A5 and that the appropriate remedy, if any, lay in a suit for settlement of accounts or declaration; that Ext.A5 was a sham document, never intended to be acted upon, executed without consideration and unenforceable as being against public policy; that the plaintiff was never his financing partner and had no financial capacity to invest Rs. 20,00,000/-; and that none of the works referred to by the plaintiff — including the Alengad–Peechampilli road work — were in fact executed by the plaintiff on his entrustment. He also denied the plaintiff's version regarding the Dhanalakshmi Bank overdraft and a separate loan said to have been taken from Iswarya Hire Purchase against an Ambassador car belonging to the plaintiff's wife, asserting instead that the vehicle had been financed by Muthoot Leasing and Finance Ltd. and sold in auction on default, giving rise to a separate recovery suit (O.S. No. 15/1992).

The trial court dismissed the suit, holding that the plaintiff's remedy, if any, lay in a suit for damages or specific performance of Ext.A5, and that a simple money-recovery suit was not maintainable on that basis. The plaintiff filed RFA No. 767 of 2009, which this Court allowed by holding that although the precise amount due to the plaintiff from the works executed by him could not be ascertained with exactitude, at least a portion of it was capable of ascertainment from Ext.X1 series of documents and the oral evidence of PWs 1 to 3, so that Ext.A5 was not a wagering or unenforceable contract within the meaning of Section 96 of the Bharatiya Sakshya Adhiniyam, 2023. On an appreciation of the evidence adduced, it was specifically found that the Alengad–Peechampilli road work undertaken by the defendant had in fact been executed by the plaintiff, on the strength of a power of attorney issued by the defendant, using the plaintiff's own funds. The trial court's judgment and decree were accordingly set aside, and the plaintiff was permitted to realise Rs. 12,96,193/- with interest at 8% per annum from the date of suit (18.12.2001) till realisation, together with proportionate costs throughout. Though the defendant challenged the judgment under review before the Supreme Court in SLP No. 28703/2025, the same was dismissed on 03.11.2025.

On behalf of the review petitioner (the original defendant), learned Senior Counsel Sri T. Krishnan Unni, instructed by Sri T.M. Chandran, contended that the works granted by the Block Panchayat, including the Alengad–Peechampilli road work, were in fact completed by the defendant himself, and the plaintiff had no role whatsoever in their execution and that the amount which the judgment under review permits the plaintiff to realise has, in substance, already been realised by him: since the defendant had executed an irrevocable power of attorney in the plaintiff's favour specifically for the Alengad–Peechampilli road work and the department concerned issued cheques directly in the plaintiff's name, which the plaintiff has already encashed and allowing him to realise the decretal amount over again therefore results in double payment to the plaintiff for the very same work. It is also argued that this amounts to a fraud practised by the plaintiff upon the Court, which the judgment under review failed to notice or consider, notwithstanding that the plaintiff himself admitted having received some amount from the department in respect of this work.

On behalf of the plaintiff (respondent herein), learned Senior Counsel Sri. Ranjith Thampan, instructed by Smt.Reena P.R argued that the matters now raised viz: as to which works were entrusted to and executed by the plaintiff, and as to the amounts already received by him from the department are the very questions that were considered and answered by this Court in the judgment under review after appreciating Ext.A5, the Ext.X1 series of documents and the oral evidence of PWs 1 to 3 and that no material has been placed before the Court to show that the alleged encashment of departmental cheques was not already before the appellate Court or could not, with due diligence, have been brought to its notice; and that the plea of "double payment" is, in truth, an invitation to re-assess the evidence and arrive at a different figure, a course impermissible in review.

It may first be noted that a review is not necessarily barred merely because the judgment under review has been carried in appeal to the Supreme Court and the Special Leave Petition (SLP No. 28703/2025) has been dismissed by a non-speaking order on 03.11.2025. The principles in Kunhayammed & Ors. v. State of Kerala & Anr. [AIR 2000 SC 2587] and Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare [2019 (4) SCC 376] permit a review to be entertained in such circumstances. However, that a review is maintainable does not mean that it can be converted into a re-hearing of the appeal on facts.

The law on the scope of review is well settled and may be summarised as follows:

Tested against these principles, none of the grounds urged by the review petitioner discloses an error apparent on the face of the record, for the reasons to follow.

First, the contention that the Alengad–Peechampilli road work and the other works were executed by the defendant himself, and not by the plaintiff, is not a new plea. This is precisely the factual controversy that was tried and decided in RFA No. 767 of 2009. The judgment under review records a specific finding, based on the evidence of PWs 1 to 3 and on Ext.A5 and the Exts.X1 and X2 series of documents, that the Alengad– Peechampilli road work was executed by the plaintiff using his own funds, on the strength of the power of attorney issued by the defendant. To now contend that the defendant executed the work himself is to ask this Court to re-appreciate the very oral and documentary evidence that was weighed at the appellate stage and to substitute a different finding of fact — which is squarely outside the scope of review.

Consequently, the allegation that a "fraud" was practised upon the Court is, on examination, no more than a repetition of the same factual dispute — whether the plaintiff executed the work and is entitled to the amount awarded — recast in stronger language. A bare assertion of fraud, without particulars and without any material beyond what was already before the appellate Court, cannot by itself convert a disagreement on the merits into a ground for review. There is no material to suggest that the contentions now sought to be urged — as to entrustment of the works or as to amounts received from the department — were not in fact urged before, or considered by, the learned Single Judge.

For these reasons, on facts as much as in law, no error apparent on the face of the record is made out. The review petitioner has, in effect, sought a fresh trial of the same factual questions that were considered and answered in the judgment under review, which is impermissible in the exercise of review jurisdiction.

The Review Petition fails and is accordingly dismissed.