IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 AS.NO. 376 OF 2001(D) --------------------- OS.40/1995 OF PRL.SUB COURT,THRISSUR .................... APPELLANT(S)/ DEFENDANT: ------------------------------------ THE KERALA STATE CIVIL SUPPLIES CORPORATION LTD., REPRESENTED BY ITS MANAGING DIRECTOR, MAVELI BHAVAN, GANDHI NAGAR, KOCHI-20. BY ADV. SRI.GEORGE POONTHOTTAM,SC, KSCSC SRI.LAKSHMI NARAYAN, SC, SUPPLYCO ADV. SMT. RANJINI APPEARED FOR THE APPELLANT. RESPONDENT(S)/ PLAINTIFF: ------------------------------------- SRI. GEORGE J. OVUMKAL, S/O JOHN, INDIAN DRUGS MERCHANT, P.B. NO.116, NEHRU BAZAR, THRISSUR, RESIDING AT SOUGANTHIKAM VELLAT LANE, THRISSUR. ADV. SRI.VAKKOM N.VIJAYAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 28/06/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 376 OF 2001 = = = = = = = = = = = = = = = Dated this the 28th day of June, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Thrissur in O.S.40/95. The suit was one for realisation of amount deposited as security. It is the case of the plaintiff that the defendant had advertised for calling upon tenders for opening retail outlets for supply of vegetables to the consumers for moderate prices in all District Headquarters on a franchise basis. In pursuance of the same the plaintiff made an application and there was an auction and as per the auction the plaintiff bid the right and had deposited an amount of Rs.38,500/-. As per the terms, the place of business is to be supplied free of rent by the Civil Supplies A.S. 376 OF 2001 -2- Corporation to the bidder. It was also decided that it can be opened on 15.1.92 by putting up necessary sheds in the north side of Thekkinkad Maidan in front of Bini Tourist Home. The plaintiff in spite of the best efforts could not get the place because of the non supply of the same by the defendant and therefore he had his security deposited without any interest and he had incurred expenses also for starting the business. On the other hand the Corporation would contend that there was a tender or auction, the plaintiff had bid it and deposited the amount to the the plaintiff but did not turn up subsequently and that has resulted in the failure to start an outlet. 2. Learned trial judge after considering the entire materials held that the plaintiff has succeeded in proving that the defendant has A.S. 376 OF 2001 -3- committed breach and therefore ordered to pay Rs.39,500/- with interest. It is against that decision the Civil Supplies Corporation has come up in appeal. 3. Heard the counsel for both the sides. Learned counsel for the appellant would strongly contend before me that the court below did not consider the basic issue of limitation involved in this case and that the breach of contract was only on account of the breach committed by the plaintiff and not by the defendant. 4. Certain facts are admitted. It was by paper publication offers were invited from persons and in accordance with the same the plaintiff submitted one. As there was large number of tenders the right was auctioned and the plaintiff became the successful bidder and in the light of the same a deposit of A.S. 376 OF 2001 -4- Rs.38,500/- was made and entered into a document which is called a performa which according to the plaintiff is an agreement. But to the utter dismay of the plaintiff the Corporation did not provide any place. The plaintiff has to run from pillar to post to do some thing which did not result in a fruitful fashion. 5. So far as the question of limitation is concerned the functioning of the shop can be done only when the Corporation provides a place for the same. Innumerable number of communications are sent by the plaintiff to the Corporation which were not replied at all and the Corporation even had taken the stand that it has not received any of these letters. I am not prepared to accept the same especially in the back drop that an acknowledgment card issued is produced evidencing the receipt of this. It can A.S. 376 OF 2001 -5- be seen from the notice that as many as 10 letters had been addressed to the Corporation which went in vain without any compliance. A person with the desire had submitted a tender thereafter participated in the auction and in pursuance of the same had deposited the amount. There was a duty cast upon the Corporation under the terms of the advertisement that it has to provide a place. The plaintiff can only request them remind them and he had done it on innumerable number of occasions which turned without any result. So the cause of action really arise only when all the attempts failed to get a place for starting the business. It can also be seen that he had issued letters after letters which also did not yield result. So I can very well hold that the cause of action arises only from the last notice issued which is A.S. 376 OF 2001 -6- perfectly within the time limit and therefore the suit claim is not barred by limitation. So far as the relief granted is concerned the case of the defendant is not at all appreciable for the reason they have taken all the responsibility of providing a place for the purpose of conducting the franchise shop. The Corporation did not move its little finger in the right direction but the plaintiff tried his best by attempting to get a place in various sources but it had ended in vain and ultimately he has to approach the Court for at least the return of the amount which he had paid. I think the departmental authorities would not have driven the plaintiff to a litigation of this nature but I am not going to elaborate on that but the facts make it clear that the Corporation was responsible for not starting the business A.S. 376 OF 2001 -7- and therefore the plaintiff is entitled to get refund of the amount which he has deposited and Rs.1,000/- given towards advertisement charges which was incurred by him and it also is legitimately permissible. All other claims had been negatived by the trial Court itself and therefore the judgment and decree of the trial Court do not call for any interference and hence the appeal fails and the same is dismissed but without any order as to costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 376 OF 2001 -8- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 376 OF 2001 = = = = = = = = = = = J U D G M E N T 28th June, 2010.