IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 9TH DECEMBER 2010 / 18TH AGRAHAYANA 1932 AS.No. 235 of 1995() ----------------------------- OS.42/1991 of SUB COURT, OTTAPPALAM .................... APPELLANTS/DEFENDANTS 1 TO 5: ----------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, PALAKKAD. 2. THE SUPERINTENDENT ENGINEER, MINOR IRRIGATION CIRCLE OFFICE, KOZHIKODE. 3. THE EXECUTIVE ENGINEER, IRRIGATION, PALGHAT. 4. THE ASST. EXECUTIVE ENGINEER, MINOR IRRIGATION, SHORNUR. 5. THE ASST. ENGINEER, MINOR, IRRIGATION, CHERPULACHERY. BY GOVT. PLEADER RESPONDENTS/PLAINTIFFS/DEFENDANT-6: ------------------------------------------------------------------ *1. PATHUMMA, AGED 90 YEARS, MOTHER OF LATE VAPPU HAJI, VARAMANGALATH, PALLIPURAM AMSOM & DESOM, PATTAMBI, OTTAPALAM TALUK. * (DIED) 2. AYISHA UMMA, AGED 68 YEARS, 1ST W/O.LATE VAPPUHAJI, RESIDING AT VARAMANGALATH, PALLIPPURAM AMSOM & DESOM, PATTAMBI, OTTAPALAM TALUK. 3. AMINA, AGED 46 YEARS, 2ND W/O.LATE VAPPU HAJI, RESIDING AT VARAMANGALATH PALLIPURAM AMSOM & DESOM, PATTAMBI, OTTAPALAM. 4. PAREECHUMMA, AGED 45 YEARS, D/O.LATE VAPPU HAJI, VARAMANGALATH, PALLIPURAM AMSOM & DESOM, PATTAMBI, OTTAPALAM TALUK. AS.No. 235 of 1995 5. ABDULLA KUTTY, AGED 41 YEARS, S/O.LATE VAPPU HAJI, RESIDING AT VARAMANGALATH PALLIPPURAM AMSOM & DESOM, PATTAMBI, OTTAPALAM TALUK. 6. NABEESA KUTTY, AGED 38 YEARS, D/O.LATE VAPPU HAJI, RESIDING AT VARAMANGALATH PALLIPPURAM AMSOM & DESOM, PATTAMBI, OTTAPALAM TALUK. 7. JAMEELA, AGED 36 YEARS, D/O.LATE VAPPU HAJI, RESIDING AT VARAMANGALATH PALLIPURAM AMSOM & DESOM, PATTAMBI, OTTAPALAM TALUK. 8. HUSSAIN, AGED 34 YEARS, S/O.LATE VAPPU HAJI, P.B.NO.22838, JEDDAH-21416 KSA. *ADDL. R9 TO R12 IMPLEADED ADDL. R9: EYYATHUMMA, W/O.POKKER MUSALIAR, PULAKKAL, PALAPPURAM, PALLIPURAM, KONDURKARA. ADDL. R10: KADEEJUMMA, W/O.SAIDUTTY, POOMBEKKAL, CHARIKKALLU, VADANAMKURUSSI. ADDL. R11: ALIYAMMU, S/O.MOIDUTTY HAJI, VARAMANGALATH HOUSE, PALLIPURAM, KONDURKKARA. ADDL. R12: HAMSA, S/O. MOIDUTTY HAJI, VARAMANGALATH HOUSE, PALLIPURAM, KONDURKKARA. *ADDL. R9 TO R12 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 1ST RESPONDENT, AS PER ORDER DATED 09/12/2010 IN C.M.P.5315/1995. BY ADV. SRI V.P.RAGHU RAJ. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs AS.No. 235 of 1995 ORDER ON C.M.P.NO.1862/1995 IN A.S. NO.235/1995 DISMISSED 09/12/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 235 OF 1995 = = = = = = = = = = = = = = = Dated this the 9th day of December , 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Ottapalam in O.S.42/91. The suit is one for realisation of the amount under a contract or work. The brief facts would reveal that the plaintiff has undertaken to do the original work under the Lift Irrigation Scheme Karalmanna. The original plaintiff has completed the work and it has been inspected and measured by the defendants. He could not do the road work for the reason the land was not made available and therefore as directed by the Department he carried out extra work. Though the Department had taken the check measurement etc. they had not settled the final bill. But since the A.S. 235 OF 1995 -2- plaintiff has satisfactorily completed the work the security amount has been paid back and therefore the plaintiff prays for a decree as claimed in the plaint. 2. The defendants on the other hand would contend that there has been an inordinate delay in doing the work by the first plaintiff. He had not done it properly. He was directed to rectify the mistakes. He did not do it. Similarly he had not returned the unused materials to the Department and therefore amount is due from him to the Department and so the plaintiff is not entitled to any relief. 3. During the pendency of the suit the first plaintiff died and supplemental plaintiffs 2 to 8 and defendant No.6 has been impleaded as the legal representatives. A.S. 235 OF 1995 -3- 4. In the trial court Exts.A1 to A1(h) and B1 to B34 were marked. On an analysis of the evidence the trial court has granted a decree for Rs.73,985/- with 6% interest from the date of suit till realisation in favour of the plaintiffs 2 to 8 and 6th defendant from defendants 1 to 5. It is against that decision the Government have come up in appeal. 5. The point that arises for determination is whether there is anything to interfere with the decision of the trial Court. I have perused the judgment and documents available in the case and proceed to dispose of the matter as follows. 6. Admittedly the deceased first plaintiff was entrusted with the work of Lift Irrigation Scheme of Karalmanna. The completion certificate was given, the security amount was also reimbursed, measurements were taken but final A.S. 235 OF 1995 -4- bill was not cleared hence the suit. But the defendants would contend there was inordinate delay in completion of the work. He did not rectify the mistakes and further he did not return the materials supplied by the Department. The trial court found that the case of rectification which is seen in the file appears to be a subsequently cooked up one and did not accept the same. 7. According to the Department roof of slab of pump house is leaking heavily and one rolling shutter was damaged. The trial court found that the plaintiff has issued a lawyer notice to the defendants on 30.6.90 and thereafter only the 3rd defendant issued a letter to the 4th defendant on 25.10.90 to direct the plaintiff to rectify the defects. A letter was issued to the first plaintiff on 12.11.90 and the remainder on A.S. 235 OF 1995 -5- 17.12.90 to this the first plaintiff replied holding that he has no responsibility in the matter since he has completed the work during 1985-86. It can be seen that the completion certificate had been issued earlier and it was as early as on 26.9.88. So if really there remained any mistakes to be rectified it was found out as early as on 26.5.88. Under ordinary circumstances defendants 1 to 5 would not have kept quiet for a long period of two years that too till the receipt of a notice issued by the plaintiff claiming the amount. Therefore I also agree with the trial court finding that it is only a subsequently created one. 8. Similarly when a contract is undertaken and security is furnished under ordinary circumstances security deposit will not be released unless one satisfactorily completes the A.S. 235 OF 1995 -6- the work as per the stipulations. But the Department has not followed this thing. As stated by me earlier after the issuance of the completion certificate on 26.9.88, a letter to rectify the mistakes comes only on 12.11.90 i.e. 2 years and 2 months after the issuance of the completion certificate. Therefore as rightly found by the trial court rectification work is only a subsequent development. 9. Now coming to the next point. In the original written statement there is no case for defendants 1 to 5 regarding the non-return of materials supplied by the department. It is only by way of an additional written statement it is raised. Whenever materials are supplied and if they are not returned there would be documents with the Department to establish that factor. So also if there is damage, amount due from the A.S. 235 OF 1995 -7- contractor towards the non return of the materials will be realised from the security amount. But the security amount is released without returning of the materials and it is not mentioned in the original written statement and therefore it is too late to raise a contention of that nature now. So rejection of the same by the trial court on that aspect also appears to be correct. 10. Now lastly regarding the demand of interest. The trial court has found that the plaintiff also has committed some delay in completion of the work and therefore the plaintiff cannot claim interest. Therefore the Court held that the entitlement of interest would be from the date of suit and not earlier. There also I do not find any error committed by the trial Court. On an overall analysis of the A.S. 235 OF 1995 -8- materials I find no ground to interfere with the decision rendered by the trial court and therefore the appeal fails and the same is dismissed. But under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 235 OF 1995 -9- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No.235 OF 1995 = = = = = = = = = = = J U D G M E N T 9th December, 2010.