IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 20TH SEPTEMBER 2010 / 29TH BHADRA 1932 AS.No. 829 of 1996(T) --------------------- OS.427/1989 of PRL.SUB COURT,TRIVANDRUM .................... APPELLANT(S)/DEFENDANTS: ------------------------------- 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SUPERINTENDING ENGINEER, P.W.D. ROADS AND BRIDGES, SOUTH CIRCLE, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.K.B.RAMANAND RESPONDENT/PLAINTIFF: --------------------------- N.E.ABRAHAM, S/O.ETHAPPIRI, AGED 50 YEARS, GOVERNMENT CONTRACTOR RESIDING AT NJATTUM KALAYIL HOUSE, KADAYIRUPPU P.O., KOLENCHERRY, ERNAKULAM DISTRICT. BY ADV.SRI.M.C.JOHN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 20/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ONC.M.P.NO.93 OF 1997 IN A.S.NO.829 OF 1996 //DISMISSED// 20.09.2010 SD/- THOTTATHIL B.RADHAKRISHNAN, JUDGE SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------------------- A.S.No.829 OF 1996 ------------------------------------------- Dated this the 20th day of September, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. 1.This appeal is by the State against the decree passed in a suit filed by a contractor who was awarded a civil work. 2.The controversies between the parties revolve around disputes as to what would be the amount payable to the plaintiff for the actual works done. The work was admittedly not completed by the plaintiff. It was terminated. The department had also a decision that the work was re-arranged at the risk and cost of the plaintiff. 3.During the course of hearing of this appeal filed in 1996, we issued an order on 13.7.2010 noticing that the work was based on a contract for construction of a road, the estimate for which was prepared on the basis of the 1980 PWD rates. The AS.829/96 2 plaintiff had quoted 18% excess of the estimated rate. Such quotation was given in 1981. The period of completion fixed for the work was 24 months. The PWD rates were revised with effect from 1.7.1982 providing escalation by 25% from the 1980 rates. The trial court had categorically found that the site was handed over to the plaintiff only on 14.6.1982 and initial levels were approved only on 14.7.1982. Therefore, it cannot be disputed that the work could have commenced only thereafter, by which time, the 1982 rules had became operational. The materials on record also clearly show that the plaintiff had completed 61% of the work for which he had quoted. 4.The trial court granted a lump sum enhancement acting on the Commissioner's report. 5.On the basis of different submissions made touching the rates of 1980 and 1982 and the correctness of the findings of the trial court vis.a.vis. the report of the Commissioner, we wanted AS.829/96 3 the parties to place a tentative calculation, showing the amount payable for the work actually found to have been done by calculating at a rate 9% in excess of the 1982 PWD rates. Following that, the counsel for the respondent plaintiff contractor has placed a statement on record. A statement is filed on behalf of the Government by the learned Government Pleader with the assistance of the officers of the State Government, vouchsafing the correctness of the statement submitted on behalf of the contractor. 6.As already noticed, the PAC was prepared on the basis of 1980 rates. The contractor quoted on the basis of 1980 rates. He quoted 18% in excess of the 1980 rates. By the time he could have commenced the work, 1982 rates had become operational. That was 25% in excess of the 1980 rates. In our view, therefore, it would only be reasonable to take it that the amounts that could be payable to the plaintiff for the works really done by him would be not less than 9% in excess of 1982 rates. We find that this will be reasonable having regard to AS.829/96 4 the totality of the facts and circumstances. Viewed in that angle, the total amount that would become payable to the plaintiff under the 6 part bills would be much more than that which has already been granted by the court below. The plaintiff has not filed appeal. We are persuaded to take the aforesaid view because of the fact that as already noted, there was delay in handing over the site. In fact, the site was handed over on 14.6.1982 and initial levels were approved only on 14.7.1982, i.e., after the 1982 PWD rates become operational. 7.In so far as the re-arrangements of work by the department at the risk and cost of the plaintiff is concerned, the quality of any such view of the department ought to have been put to test by the department before the court. Therefore, we are of the view that even if the plaintiff had not specifically imputed any decision of the department in that regard, the State could not have made any adjustments or adjudication towards the risk and cost or set it on that ground without establishing its AS.829/96 5 entitlement for such compensation in accordance with the provisions of the Contract Act. 8.Having found that the plaintiff has not filed an appeal, we are of the view that the State have not been able to sustain the grounds raised by it against the impugned decree. 9.We have adopted the aforesaid procedure because the court below essentially proceeded to make a lump sum fixation and we thought it appropriate to provide better yardsticks as to whether the decree granted by the trial court is in accordance with justice and fairplay. Incidentally, we may also notice that the appealing State had raised a ground relating to the correctness of the decision of this Court in Abdul Khader v. State of Kerala [1993(2) KLJ 977]. That does not survive any more in view of the decision in State of Kerala v. Abdul Khader [2010 (3) KLT 783]. We are satisfied that the impugned decree does not warrant interference at the hands of the appealing State. AS.829/96 6 In the result, the appeal fails. The same is accordingly dismissed. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.23/09.