IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 RSA.No. 770 of 2008() --------------------- AS.166/2004 of DISTRICT COURT, THALASSERY OS.47/2001 of PRL.SUB COURT,THALASSERY .................... APPELLANT/APPELLANT/DEFENDANT: ----------------------------------------- K.V.MANOHARAN, S/O.GOVINDAN NAMBIAR, AGED 40 YEARS, BUSINESS, PATIYOOR AMSOM, KUYILOOR DESOM, TALIPARAMBA TALUK. BY ADV. SRI.K.V.PAVITHRAN RESPONDENT/ RESPONDENT/ PLAINTIFF: ---------------------------------------------- MATTANNUR MUNICIPALITY REPRESENTED BY SECRETARY, MATTANNUR MUNICIPALITY, P.O.MATTANNUR, THALASSERI TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ========================= R.S.A. No. 770 of 2008 ========================= Dated this the 18th day of December, 2008. JUDGMENT The defendant in O.S No. 47 of 2001 on the file of the Sub Court, Thalassery is the appellant in this Second Appeal. The said suit was one for recovery of a sum of Rs.1,03,000/- being the balance amount due from the defendant towards the arrears for collecting the river sand. The suit was resisted by the appellant contending inter alia that the same was barred under Section 539 of the Kerala Municipalities Act, 1994 and that Ext.A5 agreement was a concocted document prepared after converting signed stamped papers obtained by the Mattannur Municipality from the appellants. 2. Both the courts below did not accept the defences put forward by the appellants and decreed the suit as prayed for. Hence this Second Appeal. 3. The following are the substantial questions of law formulated in the memorandum of Appeal:- i. Is not the suit barred by limitation as it was filed after 3 years from the date of confirmation of the auction in favour of the defendant? ii. Is the plaintiff entitled to circumvent the provisions in R.S.A.No. 770/2008 : 2: Section 539 of the Kerala Municipalities Act by pressing into service of Ext.A5 agreement? iii. Is the agreement dated 13.02.1998 is valid as it has no approval of the council and it violates the terms in the tender notification approved and notified by the Municipality? 4. The learned counsel appearing for the appellant reiterated the above contentions. 5. I am afraid that I cannot agree with the contentions raised by the appellant. The following facts are either proved or admitted:- The right to collect the river sand from Porora river was auctioned by the plaintiff Mattannur Municipality. The said right was for the period from 01.04.1997 to 31.03.1998. The tender conditions were published on 01.03.1997. On 18.03.1997, the appellant submitted his tender. The appellant was the highest tenderer for the aforementioned right, the amount which he quoted being Rs.1,76,000/-. On 24.03.1997, the appellant's tender was provisionally accepted. As per the tender conditions, he was to deposit 1/3 of the bid amount on 24.03.1997. Admittedly, as against Rs.58,667/-, the appellant had paid only Rs.17,000/-. He, thereafter, sought extension of time and was also making further payments totaling to R.S.A.No. 770/2008 : 3: Rs.73,000/-. Subsequently, Ext.A5 agreement was executed between the plaintiff Municipality and the appellant on 13.02.1998 as per which the defendant agreed to pay the balance amount of Rs.1,06,000/-. However, the appellant committed default in making the balance amount of Rs.1,03,000/-. The contention of the appellant that he had entrusted signed stamped papers with PW2, the Secretary of the plaintiff hoping that he would be allowed to collect the sand, but that the same was fraudulently converted into Ext.A5 agreement, was not accepted by both the courts. The contention based on Section 118(b) of the Kerala Municipalities Act, 1994 to put forward an argument that Ext.A5 agreement was not in accordance with law, was not accepted by the courts below and rightly so. The finding that Ext.A5 is a valid agreement voluntarily executed by the appellant with the Municipality is a pure finding of fact. But for Ext.A5 agreement, the contention of the appellant that the suit filed beyond three years of 24.03.1997, the date on which the appellant's tender was provisionally accepted, would have been tenable. But then, in the light of the fact the the appellant R.S.A.No. 770/2008 : 4: had voluntarily executed Ext.A5 agreement dated 13.02.1998 and which agreement has been found to be valid, the suit filed on 09.02.2001 within three years of Ext.A5 agreement was not barred by limitation either under Section 539 of the Kerala Municipalities Act or under the provisions of the Limitation Act. Hence the decree passed for realisation of the balance amount of Rs.1,03,000/- does not suffer from any of the infirmities alleged by the appellant. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. Dated this the 18th day of December, 2008. V. RAMKUMAR, JUDGE. rv R.S.A.No. 770/2008 : 5: R.S.A.No. 770/2008 : 6: