IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 AS.No. 640 of 1997(C) --------------------- OS.571/1990 of I ADDL. SUB COURT, THIRUVANANTHAPURAM .................... APPELLANTS/DEFENDANTS:- ------------------------------- 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE SUPERINTENDING ENGINEER, PROJECT CIRCLE, CHENGANNOOR (NOW PROJECT CIRCLE, PIRAVOM) BY ADV. MR. BENNY VARGHESE, GOVERNMENT PLEADER RESPONDENTS/PLAINTIFFS:- -------------------------------- 1. SRI. V.G. FRANCIS XAVIER, SARAT VINCENT, GABRIEL, CONTRACTOR, RESIDING AT ANAND BHAVAN, KULANGARA, MAYYANAD P.O., QUILON DISTRICT. (DIED) ADDL. 2. GRACY FRANCIS, ANAND BHAVAN, KULANGARA, MAYYANAD, QUILON DISTRICT. 3. F.X. ANAND PAUL, ANAND BHAVAN, KULANGARA, MAYYANAD, QUILON DISTRICT. 4. SHEEBA HALSAN, - DO - -DO - 5. ASHOK VINCENT, - DO- - DO - ADV. MR. AJAY KRISHNAN MR. NAGARAJ NARAYANAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 06/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S. NO. 640/1997 : 2 : ORDER ON C.M.P. NO. 4705/1997 IN A.S. NO. 640/1997 DISMISSED 06.07.2009 sd/- V. RAMKUMAR, JUDGE. V. RAMKUMAR , J. ========================== A.S. No. 640 of 1997 ========================== Dated this the 6th day of July, 2009. JUDGMENT Defendants 1 and 2, namely, State of Kerala and the Superintending Engineer, Project Circle, Chengannur in O.S. No. 571 of 1990 on the file of the Subordinate Judge's Court, Thiruvananthapuram are the appellants in this appeal. 2. The said suit originally instituted by one V.G. Francis Xavier (who died pending suit resulting in his legal representatives being impleaded as additional plaintiffs 2 to 5) was one for realisation of a sum of Rs.40,000/- claimed under four different heads being the damages allegedly sustained by the plaintiff in connection with the contract undertaken by him under the 2nd defendant. Even though the plaintiff estimated the total amount of damages due to him at Rs.1,10,000/-, he limited the claim to Rs.40,000/-. 3. The suit was resisted by the defendant contending A.S. No. 640/1997 : 2 : inter alia that as against the sum of Rs.9,32,301/- quoted by the plaintiff for doing the work, he had done the work only for a sum of Rs.45,962/- and that deducting the said amount from Rs.64,999/- which was the cost of materials supplied to him by the defendants, the net liability due to the Government was Rs.17,807/- which was recovered from his security deposit and he was paid the balance amount of Rs.28,843/- which he received by him without any demur. According to the defendants, the plaintiff who did not complete the work before the stipulated period, was not entitled to any of the amounts claimed by him and that the contract was validly terminated. 4. The court below framed nine issues for trial. Except producing Exts.A1 to A21, the plaintiff did not adduce any oral evidence. The defendant also did not adduce any oral evidence but got marked Exts.B1, B2 series and B3 series. 5. The learned Subordinate Judge, after trial, as per A.S. No. 640/1997 : 3 : judgment dated 26.03.1996 decreed the suit in part for a sum of Rs.20,000/-. Hence, this appeal by the defendants. 6. The only point which arises for consideration in this appeal is as to whether the judgment and decree passed by the court below are sustainable or not. 7. The facts leading to the impugned judgment and decree are the following:- The work relating to the construction of the office complex and staff quarters for the Vamanapuram Irrigation Project (VIP) at Nedumangad was auctioned by the State through the Superintending Engineer, Pamba Irrigation Project Circle, Chengannur (2nd defendant). The value of the work as per the sanctioned estimate was Rs.7,92,123/- including the cost of materials which were valued at Rs.3,08,750/-. The plaintiff had quoted Rs.9,32,301/- which was 29% above the estimate amount. He remitted a sum of Rs.46,650/- by way of security deposit which was 5% of the Probable Amount of Contract (PAC). The work was to A.S. No. 640/1997 : 4 : commence from the date of handing over of the site to the plaintiff. The date of completion of the work was 12 months from the date of handing over of the site. The plaintiff had deposited a sum of Rs.46,650/- by way of security in the District Treasury, Kollam. A selection notice was issued to the plaintiff on 19.12.1987. On 29.01.1988, the plaintiff executed Ext.B1 agreement. The site was handed over to him on 26.02.1988. Hence, as per the terms of the contract, the work was to be completed on or before 26.02.1989. But after executing a part of the work for Rs.45,962/- as evidenced by Ext.B3 series, the plaintiff abandoned the work. As per Ext.A2 order dated 12.04.1989, the contract in favour of the plaintiff was terminated without risk and cost. Since the total cost of materials supplied by the 2nd defendant to the plaintiff was Rs.64,999/- and the plaintiff had executed the work only for Rs.45,962/-, the net liability of the plaintiff towards the Government was worked out at Rs.17,807/-. The said amount was recovered from the A.S. No. 640/1997 : 5 : security deposit of the plaintiff and the balance amount of Rs.28,843/- was offered to the plaintiff who received the same without any protest on 16.05.1989. It was thereafter that the plaintiff instituted the present suit alleging that he incurred a loss of Rs.1,10,000/- which was limited to Rs.40,000/- shown under four different heads. A sum of Rs.20,000/- was claimed towards prevented gains. Another sum of Rs.10,000/- was claimed under the head 'expenses for preliminary arrangements made for the work'. A sum of Rs.5000/- was claimed towards the idling of establishment, watch and ward etc. Another sum of Rs.5000/- was claimed towards the expenses incurred for purchasing materials and the loss due to weather conditions etc. As against the above four different heads of claim totalling to Rs.40,000/-, the court below awarded a sum of Rs.15,000/- towards the prevented gains and Rs.5000/- towards the expenses for preliminary arrangements for the work. The other two claims were disallowed. It is against the award of A.S. No. 640/1997 : 6 : Rs.20,000/- as damages that the defendants have come up in appeal. The plaintiff has not preferred any cross objection with regard to the disallowed portion of the suit claim. 8. The only point which arises for consideration in this appeal is as to whether the judgment and decree passed by the court below is sustainable or not. 9. The point. In paragraph 16 of the written statement what is specifically pleaded is as follows:- “ As per contractor's certificate an amount of Rs.17,807/- had to be recovered from the plaintiff and the same was therefore adjusted while releasing the security deposit. So no amount is pending due to the plaintiff and the balance portion of the security deposit was released to him and the same was accepted by him without any protest. So there is full accord and satisfaction and the plaintiff is therefore, not entitled for getting any interest”. 10. There is no dispute that the total cost of materials supplied to the plaintiff by the defendants was Rs.64,999/-. Going by Ext.B3 series of Measurement Books, the actual work executed by the plaintiff was for Rs.45,962/-. The plaintiff was found to be a defaulter, since he did not A.S. No. 640/1997 : 7 : complete the work on or before 26.02.1989. The contract was terminated as per Ext.A2 order two months thereafter without risk and cost. Thus, deducting the quantum of work actually done by the plaintiff from the cost of materials supplied to him, a sum of Rs.17,807/- was found due to the Government which was recovered from his security deposit of Rs.46,650/-. The balance amount of Rs.28,843/- was, according to the defendants, accepted by the plaintiffs without any protest on 16.05.1989. In the face of such a plea, it was for the plaintiff to adduce evidence to show that the said contention in the written statement was not true. If as contended by the defendants, the plaintiff had accepted the balance amount of Rs.28,843/- without any protest, then the plaintiff was precluded from bringing the present suit for damages. 11. The court below was not justified in culling out a portion of Ext.A2 order dated 12.04.1989 to hold that there was an admission that the work could not be proceeded A.S. No. 640/1997 : 8 : with due to the lack of departmental materials and paucity of funds. There was no doubt an admission as aforesaid by the defendants in Ext.A2 order. But that was not enough to entitle the plaintiff to allege that the work could not be completed due to the fault of the defendants. At any rate, in the light of the pleadings, the burden was definitely on the plaintiff to prove his case. The defendants had specifically denied the plaintiff's allegation that he had sustained loss under the four heads of claim made by him. They had further pleaded that the plaintiff had accepted without any demur, the balance security deposit after adjusting a sum of Rs.17,807/- found due to the Government. So, the burden was on the plaintiff to substantiate the claim by adducing satisfactory evidence. Except producing Exts.A1 to A21, the plaintiff did not care to prove any of those documents. It is well settled that the marking of Exhibits does not dispense with proof. (See S.T. Khimchand v. Y. Satyam - AIR 1971 SC 1865 and A.S. No. 640/1997 : 9 : Narbada Devi Gupta v. Birendra Kumar Jaiswal - (2003) 8 SCC 745). When the burden was squarely on the plaintiff, it was for him to adduce positive evidence and thereby discharge the burden on him. Strangely enough, the plaintiff did not even mount the witness box and speak in terms of his case. When the party on whom the burden lies avoids the witness box and does not depose in terms of his case and does not offer himself for cross examination by the opposite party, it could be legitimately presumed that the case of the party who avoids the witness box is not true. (See Vidhyadhar v. Manickrao - 1999 (3) SCC 573). Moreover, there is an added fact that the plaintiff received the balance amount of security deposit without any demur. He had no case at the time of receiving the balance amount that he had sustained loss on account of the termination of the contract. Hence the suit was misconceived apart from the fact that the suit claim has not been proved as required by law. Such being the position, the court below was not A.S. No. 640/1997 : 10 : justified in granting a decree as it did. The judgment and decree passed by the court below are accordingly, set aside and the suit will stand dismissed. The amounts, if any, deposited by the defendants shall be refunded to the defendants. This appeal is allowed as above. There shall be no costs. Dated this the 6th day of July, 2009. V. RAMKUMAR, JUDGE. Rv A.S. No. 640/1997 : 11 : V. RAMKUMAR, J ------------------------------------ A.S. No.640 of 1997 ---------------------------------------- 6th day of July, 2009. JUDGMENT A.S. No. 640/1997 : 12 :