IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 14TH JANUARY 2008 / 24TH POUSHA 1929 AS.No. 662 of 1994() -------------------- OS.340/1990 of ADDL.SUB COURT, PALAKKAD .................... APPELLANT: ---------- C.VELAYUDHAN, AGED 49 YEARS, S/O.CHAMI, ANNAKKODEVEETTIL, CONTRACTOR, PALLASSENA, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.P.VELAYUDHAN, T.M.CHANDRAN RESPONDENTS: ------------ 1.THE STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, PALAKKAD. 2.THE BLOCK DEVELOPMENT OFFICER, KOLLENGODE, CHITTUR TALUK. 3.THE PROJECT OFFICER, DISTRICT RURAL DEVELOPMENT AGENCY, PALAKKAD. 4.THE DEVELOPMENT COMMISSIONER, DRDA, VIKAS BHAVAN, TRIVANDRUM. BY GOVERNMENT PLEADER SRI P.LAKSHMINARAYANAN THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 14/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & V.K.MOHANAN, JJ. ------------------------------- A.S.NO.662 OF 1994 -------------------------------- Dated this the 14th day of January, 2008 JUDGMENT Raman, J. Appeal is at the instance of the plaintiff. Suit is for recovery of amount. According to the appellant/plaintiff, the Government of Kerala under the Social Forestry Scheme for the year 1987-88 ordered to grow seedlings at the selected nurseries within the jurisdiction of the Block Development Officer, Kollengode and other places and they were grown in different nurseries. These nurseries reported number of plants grown and thereupon the District Rural Development Agency (D.R.D.A.) ordered to distribute the seedlings to the social and other organisations. The Block Development Officer, Kollengode in his capacity as officer representing the Government called for tenders to distribute the seedlings from various nurseries to the destinations. The plaintiff's quotation was lowest and thereafter the plaintiff executed the work by transporting seedlings from various nurseries to the destinations and claimed transportation charges at the rate of 20 paise per plant, which was the quoted rate accepted by the Department. He -2- A.S.No.662/94 had supplied 9,62,500 seedlings to the clubs and other organisations and an amount of Rs.95,000/- was however paid and the balance of Rs.97,500/- was due and payable, which in spite of repeated demands, was not honoured by the Department. Hence he instituted the suit. 2. In the written statement filed by the defendants they took up a contention that there is no written contract between the parties and there is no concluded contract between them. The Government is not liable to pay for such a huge amount simply on the strength of an order accepting his quotation without any proper contract or agreement. The documents produced by him claiming transportation charges are false. The suit claim is barred by limitation. No payment could be effected unless the document produced are authenticated by the competent officials. The signature in the document produced by the concerned nursery officials was disputed as it did not contain proper signature and hence the suit claim is liable to be dismissed. 3. On the side of the plaintiff he gave evidence as PW-1 and also marked Exts.A1 to A10. On the side of the defendants DWs.1 to 5 were examined and Exts.B1 to B4 were marked. Besides Exts.X1 (a) to X1(k) notices summoned were also marked. The court below framed necessary issues for trial. It considered both oral and documentary evidence -3- A.S.No.662/94 adduced in this case and after analysing the entire evidence in the matter, it answered the issues against the plaintiff and in favour of the defendants. It found that in the absence of any proper agreement executed between the parties, the plaintiff is not entitled for the amount. Secondly, the claim is barred by limitation and thirdly the document produced by the plaintiff in support of his case cannot be accepted, as it has not been validly proved. 4. Learned Counsel Sri T.M.Chandran appearing on behalf of the appellant reiterated his submission and contended that when the defendants have accepted the service rendered by the plaintiff and he has actually transported the seedlings from one place to another at the request of the department, they cannot deny payment contending that there is no written contract. When his services are accepted, necessarily, they are bound to pay for the same at the rate fixed in the quotation accepted by them. He also placed reliance on some of the decisions in support of his contention. It is contended that the document produced by the plaintiff would clearly show that he has transported the seedlings from the nurseries, where it was grown, to various clubs. Ext.A1 is the account book maintained by the plaintiff. It was also submitted that the plaintiff submitted a detailed report claiming the balance amount due and it was -4- A.S.No.662/94 duly recommended for payment by the Block Development Officer to the Project Officer. Ext.A3 is the said letter and the original of the said letter is contained in the file marked as Ext.X1(d). Therefore, according to him, there is an acknowledgement of acceptance of the liability as evidenced by Ext.X1(d) which corresponds to Ext.A3 and therefore, it is not barred by limitation. He also submitted that the court below went wrong in holding that because of the stop payment orders issued, there is nothing to show that the scheme is covered for such transportation charges. According to him, the B.D.O. has paid the transportation charges to the petitioner. Subsequently, disciplinary proceedings were initiated against him. But the explanation offered by the B.D.O. is found satisfactory and the disciplinary action was dropped. It is therefore contended that the payment of transportation charges is covered by the scheme. 5. Learned Government Pleader on the other hand would submit that apart from the fact that there is no written contract between the parties, the plaintiff has not discharged the burden of proving that he had transported the seedlings as contended by him and he has not even produced proper evidence and documents to establish his claim. According to him, even Ext.A1 produced by the plaintiff is not properly proved by examining the persons, who issued those receipts. According -5- A.S.No.662/94 to him, Ext.A1 is not even signed and only contains a seal and so the authenticity of the document is suspicious and the plaintiff ought to have taken steps to examine the persons, who issued such receipts. He also submitted that the mere recommendation made by the B.D.O. cannot be construed as an acknowledgement of the liability, especially when the Project Officer did not pay the amount nor is there any evidence on record to show that the Government has accepted their liability to pay the amount. 6. We have heard the parties. 7. This is a case where there is absolutely no written contract between the parties in terms of Article 229 of the Constitution of India. So however, the appellant placed reliance on the tender invited and based on the acceptance of the service rendered, he demands payment. There is substance in the contention of the appellant that merely because there is no written contract, the liability cannot be denied, if transportation was actually done by the plaintiff at the request of the departmental officials. But then the question is whether the plaintiff was able to establish his case by adducing cogent evidence to show that the amount claimed by him is the charges of transportation of the seedlings from the place of growers' site to the ultimate destinations as requested by the department. Ext.A1 is -6- A.S.No.662/94 an account book maintained by the plaintiff, which is only a self-serving document. It is not binding on the defendants. Ext.A2 is only a quotation submitted by the appellant before the B.D.O. proving that there is evidence to show that the rate fixed in the quotation was accepted. But accepting the rate will only help the petitioner, in case there is dispute raised by the other side regarding the rate payable. But whether based on the acceptance of the quotation actually he was asked to transport the seedlings from one place to another, is a matter requiring proof. In the receipts produced said to have been issued by the clubs and other organisations, there is no proper signature. In the written statement the defendants have denied the authenticity of these documents, as they are not properly signed. If that be so, the appellant ought to have taken steps to summon the persons, who issued the receipts and examine them to prove that these receipts were issued after receiving the plants transported by the appellant. But no such attempt was made. Except the ipse dixit of PW-1 there is no other independent evidence to show that he transported the seedlings from the nursery to the ultimate destinations to sustain the suit claim. Of course, the appellant had made a request to the B.D.O. claiming the balance amount and there was recommendation made by the B.D.O. concerned to the Project officer. But ultimately when the amount -7- A.S.No.662/94 was not paid, the mere recommendation of the B.D.O. by itself will not be an evidence of that transportation, especially when the appellant did not take any steps to examine the concerned B.D.O. It is in evidence that disciplinary action had been taken against the B.D.O. regarding payment of transportation charges on the ground that it is not covered by the scheme. Subsequently, the District Collector has issued orders to stop further payment. Therefore, in the light of the above situation, whether, as a matter of fact, the seedlings were transported by the appellant is to be proved by adducing evidence. When he has claimed amounts due and payable by the Government, proper receipts or vouchers ought to have been produced by him. Subsequently, somebody should have been examined to prove that it is at their request itself that these seedlings were transported from the growers' site to the destinations. Here, neither any department officials were summoned at the instance of the appellant to prove such a request nor anybody has been examined to prove that the seedlings were transported by the appellant on behalf of the department and received by them. Therefore, in such a situation, it has to be held that the appellant has miserably failed to substantiate his claim by adducing cogent evidence in the matter. The claim is relating to the period 6/7/1987 to 28/8/1987. The suit was filed only on 25/8/1990. Therefore, the claim -8- A.S.No.662/94 after 28/8/87 is prima facie barred. The appellant relying on a letter dated 16/12/1990 contends that the said letter is an acknowledgement of the liability. We find no reason to accept this contention. Ext.A1 letter clearly says that there is no provision in the scheme for payment of transportation charges. However, that cannot be construed as an acknowledgement of the liability on the part of the department. In such circumstances, we find that the judgment and decree passed by the court below is not liable to be interfered with. The appeal fails and the same is dismissed. However, in such circumstances, no order as to costs. cP.R.RAMAN, Judge. V.K.MOHANAN, Judge. kcv. -9- A.S.No.662/94 P.R.RAMAN & V.K.MOHANAN,J J. ----------------------------- A.S.NO.662 OF 1994 ----------------------------- JUDGMENT 14th January, 2008