IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 AS.No. 36 of 1998() --------------- OS.395/1992 OF SUB COURT, THODUPUZHA .................... APPELLANT / PLAINTIFF : ---------------------------------- O.V. THOMAS, S/O. VARKEY, AGED 39, OLIDAL HOUSE, THIRUVANIYOOR, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. BY ADVS. SRI.S.SREEKUMAR SRI.T.RAJESH RESPONDENTS / DEFENDANTS : -------------------------------------------- 1. THE STATE OF KERALA, REP. BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM. 2. THE EXECUTIVE ENGINEER, M.V.I.P. DIVISION NO. 1, THODUPUZHA R1 & R2 BY GOVERNMENT PLEADER THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 03/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 36 OF 1998 = = = = = = = = = = = = = = = Dated this the 3rd day of September, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Thodupuzha in O.S.395/92. The plaintiff is a contractor who had agreed to execute the work of M.V.I.P. R.B.M.C. providing lining to the canal. The probable amount of contract according to him was Rs.1,44,390/-. He had elaborately detailed in the plaint regarding the amount which he is entitled to and he had asked for a relief for realisation of the said amount further with a prayer to declare that proceedings initiated on 1.12.88 is abinitio void. The Government on the other hand would contend that the breach of contract is committed by the plaintiff and he is a persistent and A.S. 36 OF 1998 -2- consistent defaulter and therefore he is not entitled to get any amount. The Court below after consideration of the materials non suited the plaintiff and it is against that decision the plaintiff has come up in appeal. The brief facts are detailed as follows. 2. The tender was accepted on 5.9.85. The agreement was executed on 15.10.95. The site was handed over on 1.11.85. Time for completion of the work was till 31.1.86. According to the plaintiff he has completed 30% of the work. The plaintiff claimed Rs.5,900/- towards earth excavation of 182.15M3 of earth. He had claimed Rs.1935/- for supplying and filling the fitter ground of 29M3. Similarly he had claimed 2815 for fitter drainage of 22M3. He had also submitted that he had laid 26 C.P. pipes for Rs.154. According to him after the expiry of A.S. 36 OF 1998 -3- the term on 31.1.86 he was prevented from removing 20 m.m. metal and 12 m.m. metal and sand. On account of the non permission to continue the work of Rs.78,438/- he had incurred a loss of Rs.7,844/- towards security deposit forfeited and realised by the Government, he is entitled to Rs.9,382/-. On the other hand the defendants would contend that the plaintiff though has entered into an agreement has totally failed to complete the work and therefore as per the terms of the contract at the risk and loss of the plaintiff the work was re-tendered and the Government had incurred a loss of almost Rs.66,656/-. 3. The evidence in this matter consists of the oral testimonies of PW1 and DW1. Exts.A1 to A16, B1 and B2 are also marked. Ext.B2 measurement book would reveal that the case set A.S. 36 OF 1998 -4- up by the plaintiff is not established. It shows that he had not done much work. When confronted with that difficult situation he would contend that it was taken in his absence and therefore it cannot have any binding effect on him. It has to be stated that it was the duty of the plaintiff to have produced cogent materials before Court to really make the Court understand the work done by him and the plaintiff in a suit of this nature cannot succeed on the basis of materials which are not forthcoming. It is a positive act that is to be proved and by imaginary inferences Courts cannot calculated the damages. Admittedly the plaintiff did not complete the work on 31.1.86. According to the defendants he had only done a very small percentage of work. The plaintiff has relied upon Ext.A2 document issued by A.S. 36 OF 1998 -5- Assistant Executive Engineer which is given to the Bank where it is stated that 30% of work is done. What is this 30% and what is the work that has been done etc. are all matters which have to be proved. Now it has to be born in mind when the site was handed over lots of excavation work was necessary. The main contract relates to lining which requires cement. There is a grievance for the plaintiff that cement and tar was not supplied. So far as it relates to tar there is not even an isolated pleading in the plaint. It can be seen from the conduct of the plaintiff that after 31.1.86 there was no interest at all in this contract and he had never applied for extension of time and he would add that if revised rates were offered he was interested and to that effect there was an oral agreement. The oral agreement A.S. 36 OF 1998 -6- is not proved. But whatever it may be, the period had expired on 31.1.86. The cement was supplied and yet he was not prepared to complete his part of the contract. If he did not want to continue he should have declined to accept the same or at least would have handed over the cement to the department. Out of 400 bags of cement supplied Government had taken away 157 bags of cement for other work. So virtually 253 bags of cement was in the possession of the plaintiff which he was bound to return. He did not hand over it. It was for his work that it was done. Similarly, his pleadings regarding the objection to remove materials also does not stand established. The conduct of the plaintiff resulted in the total breach of contract by him and thereafter the Government had to re-tender the whole contract and the escalation in the A.S. 36 OF 1998 -7- price etc. has resulted in larger expenditure. Under the Government contract when the work is done it is incumbent upon the parties to enter into an agreement that if the person to whom the work is entrusted abandons the work or does not complete the work it is at his risk and costs re-tender has to be done. So that also had to be done and it had necessarily resulted in extra expenditure to the Government. The mere application for getting something is not substitute for proving the active involvement of the plaintiff to do the work in terms of the contract. So I have absolutely no hesitation to hold that it was the plaintiff who had committed the breach of the contract and it is only on account of his conduct the matter ended in disaster to him as well as to the Government. When it is so under the terms of the contract A.S. 36 OF 1998 -8- security is to be forfeited and it can be taken by the Government. So from these materials I have no hesitation to hold that the plaintiff is not entitled to claim any relief in the suit and therefore on facts itself I decline to grant any relief to the plaintiff and therefore I do not find any ground to interfere with the decision rendered by the trial court. The appeal fails and the same is dismissed but under the circumstances without any order as to costs. Sd/- M.N. KRISHNAN, JUDGE. ul/- [true copy] P.A. To Judge. A.S. 36 OF 1998 -9- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 36 OF 1998 = = = = = = = = = = = J U D G M E N T 3rd September, 2010.