IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 5TH AUGUST 2010 / 14TH SRAVANA 1932 AS.No. 511 of 2002() ----------------------------- OS.207/1988 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANT(S): PLAINTIFF -------------------------------------- P.K.ABRAHAM, ENGINEERING CONTRACTOR, PURAKKATTU HOUSE, ALANGAD, PARAVUR TALUK. BY ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN RESPONDENT(S): DEFENDANTS --------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF KERALA, SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT COLLECTOR, ERNAKULAM. 3. THE PROJECT OFFICER, DISTRICT RURAL DEVELOPMENT AGENCY (D.R.D.A.) ERNAKULAM. R1 TO R3 BY SR. GOVERNMENT PLEADERSRI.P.K.BABU THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 05/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 511 OF 2002 = = = = = = = = = = = = = = = Dated this the 5th day of August, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Prl. Subordinate Judge, North Paravur in O.S.207/88. The suit is one for realisation of the amount. In the first round of litigation the plaintiff lost and subsequently he filed an appeal before this Court and this Court remanded the case back to the trial court in A.S.584/93 and there was a direction to dispose of the case within a period of 4 months. After the remand PW1 was recalled and Exts.A8 to A11 were marked. After the analysis of the materials the trial court dismissed the case. It is against that decision the plaintiff has come up in appeal. A.S. 511 OF 2002 -2- 2. Heard the learned counsel for the appellant as well as the respondents. The plaintiff was given a contract to transport 150 m.t. of bitumen from Indian Oil Company, Madras to various headquarters in N.E.S. block in Ernakulam District. An agreement was executed between the parties on 9.1.85. The period fixed under the agreement was three weeks from 9.1.85. Therefore the plaintiff was liable to transport bitumen on or before 31.1.85. But during the said period he could only transport about 50 m.t. and thereafter by virtue of a mutual agreement between the two the time was extended for 15 days from 20.2.85 to 8.3.85. It is the case of the plaintiff that on 8.3.85 when he came with the loads of bitumen he was not permitted to unload it by showing a stop memo and therefore he was prevented from exercising A.S. 511 OF 2002 -3- and fulfilling the contract. 3. On the other hand the defendants would contend that there was no supply of any bitumen or transportation on 8.3.85 and therefore the plaintiff has committed the breach of contract and by virtue of Ext.A9 it has been stated the right to transportation has to be re-tendered which resulted in loss to the department and therefore the plaintiff is not entitled to claim any amount. 4. Certain facts are admitted. Agreement entered into between the parties with a stipulation to supply 150 m.t. on or before 31.1.85 is admitted. Similarly on account of the non-supply time was extended till 8.3.85 is also admitted. Thereafter according to the defendant when the plaintiff failed to hand over the bitumen as agreed to, the contract was A.S. 511 OF 2002 -4- cancelled at his own risk with the liability to account for the damages caused to the department. According to the plaintiff there was an attempted supply on 8.3.85 but whereas it is denied by the defendant. 5. Now the trump card of the plaintiff's case after remand is a way bill, Ext.A9 which is characterized as G.C. Note with respect 60 drums of bitumen (which is a carbon copy). Neither the person who had issued it had been examined nor any legal acceptable valid evidence tendered to accept Ext.A9. It has to be remembered that this is a very important piece of document which was in the possession of the plaintiff if true, from 1985 onwards. When the case went up for trial for the first time it was not produced. This document come to the lime light only in the year 2002, i.e. after the period of 17 years. A.S. 511 OF 2002 -5- So rightly the trial court felt that Ext.A9 is a document which cannot be accepted and I do not find the contention of the plaintiff acceptable for the following reasons as well. 6. Department had no animosity with the plaintiff. The Department had granted time to him till 8.3.85 to transport the bitumen and unload it. If it is true then why should the Department block the unloading when it is brought. Therefore the subsequent submission regarding the transportation is absolutely unbelievable. It is submitted that it is unloaded in some other place which also is not known and so Ext.A9 goes. When Ext.A9 goes then the question would be whether he has committed the breach of contract. The Department has been kind enough to extend the time but the plaintiff did not make use of the same and the A.S. 511 OF 2002 -6- department had informed him when he has committed the breach of contract that it is at his risk and costs retender has to be done. 7. Then the next question is 65.502 m.t. of bitumen has been unloaded. As per the contract the total quantity is 150 m.t. So the non-supply relates to 84.520 approximately 85 m.t. The contention of the defendants is that this bitumen per m.t. at the cost of Rs.2,755/- was purchased to start with and when retender was done the costs of the bitumen had gone up to Rs.3,251/- thereby making a difference of Rs.496/-. So for 85 m.t. to be purchased by the Department they were forced to pay an additional amount of Rs.42,160/-. Such a situation had arisen only on account of the non-supply of the product as assured by the plaintiff. So it was the plaintiff's breach of contract that resulted A.S. 511 OF 2002 -7- in purchase of the bitumen at a higher cost amounting to an amount of Rs.42,160/- to the Department. Now the grievance of the plaintiff is he had supplied 65 tons and at the rate of 263 per m.t. He is entitled to claim transport expenses with the earnest money of Rs.10,000/-. The transportation charges would come to Rs.15,095/- plus Rs.10,000/- as earnest money would be Rs.25,095/- whereas by the conduct of the plaintiff the Department has sustained a minimum loss of Rs.42,160/-. The learned counsel for the appellant would contend before me that without the prayer for set off or counter claim, it cannot be considered. 8. Now the case is one for realisation of the amount and the defence is that of a breach of contract resulting in loss on account of the breach committed by the plaintiff. So when the A.S. 511 OF 2002 -8- breach committed by the plaintiff is established as well as the loss sustained by the Department is proved then it is a matter that has to be taken into consideration for granting relief in favour of the plaintiff. Here as discussed by me earlier the loss sustained by the Government Department is much more than what is the loss suffered by the plaintiff because of his own conduct. Therefore from the materials available I have no hesitation to hold that the trial Court had arrived at a proper decision. So the appeal lacks merits and the same is dismissed but without costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 511 OF 2002 -9- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 511 OF 2002 = = = = = = = = = = = J U D G M E N T 5th August, 2010.