IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 AS.No. 560 of 1999() & CROSS OBJECTION -------------------- OS.810/1992 of I ADDL.SUB COURT, KOZHIKODE .................... APPELLANTS/DEFENDANTS IN THE SUIT 1. THE STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR KOZHIKODE, CIVIL STATION, NEDUNGATTUR AMSOM AND DESOM, KOZHIKODE TALUK. 2. THE PROJECT OFFICER, DISTRICT RURAL DEVELOPMENT AUTHORITY, CIVIL STATION -DO- 3. THE BLOCK DEVELOPMENT OFFICER, KOZHIKODE BLOCK P.O GURUVAYOORAPPAN COLLEGE, KOZHIKODE-14. BY GOVERNMENT PLEADER SRI.T.K.SAJEEV RESPONDENT/PLAINTIFF IN THE SUIT 1. P.SUDHAKARAN, AGED 35 YEARS, S/O RAMUTTY, PADINHAT HOUSE, PANTHEERANKAVU VILLAGE, KODAL DESOM, KOZHIKODE TALUK. ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SRI.M.HARISHARMA THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 04/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- A.S.No.560 of 1999 & Cross objection ---------------------------------------- Dated this the 4th day of December, 2009 JUDGMENT The defendants in O.S. No. 810 of 1992 on the file of the Sub court Kozhikode are the appellants in the appeal and the respondents in the cross-objection. The suit was filed by the respondent in the appeal as plaintiff for realisation of money due under a contract. The trial court decreed the suit in part directing the appellants/defendants to pay a sum of Rs. 26,446.83 towards the work which he has already completed and measured by the defendants. It was also held that the respondent/plaintiff is entitled to Rs. 8,235/- for the work he has completed and has not yet been measured by the defendants and a sum of Rs. 870/- as value of the rice from the defendants. The amount decreed, carries interest at the rate of 12% per annum from the date of suit till the date of decree and interest at the rate of 6% per annum with effect from the date of decree till realisation. The parties hereinafter referred to as plaintiff and defendants as arrayed in the suit. 2. The plaintiff was entrusted with the construction of a road in Olavanna Panchayahth under the Block JRY Scheme. The plaintiff entered into an agreement with the Block Development Officer for the construction of the said road , except for a portion of it which could not be A.S.No.560 of 1999 & Cross objection -2- completed because possession of that portion of the property for the road was not obtained from Kodal Nadakkavu Government U.P.School. The total amount to be payable to the plaintiff for the construction of the road is 1,30,000/- , but the plaintiff was paid only Rs. 59,259/- and 1914/- Kgs of rice under the scheme for the work which was already completed by him. According to the plaintiff a sum of Rs. 26,446.83 and a balance of 174 Kgs of rice are still due from the defendants. He also claims Rs. 8,235/- for the completed work which was not measured by the Department and Rs. 7,000/- for the loss suffered by him due to the breach of the agreement committed by the defendants. 3. In the written statement it was contended by the defendants that the plaintiff has committed breach of the agreement by not completing the undertaken work. According to the defendants the plaintiff was not entitled to undertake the work under the Scheme. The defendants admitted that a small portion of the land in the exclusive possession of Government U.P. School Kodal Nadakkavu, was not surrendered and that the Department has taken steps to get the surrender from the Government U.P School. The defendants also contended that the plaintiff is not entitled to the reliefs as prayed for in the suit. 4. The plaintiff was examined as PW1. Exts.A1 to A4 were marked on the plaintiff's side. Exts. C1 to C3 were marked as court exhibits. Exts. B1 to B3 were marked on the side of the defendants. A.S.No.560 of 1999 & Cross objection -3- 5. The trial court framed necessary issues as to whether the plaintiff has committed breach of the agreement and whether the plaintiff is entitled for the reliefs as sought for in the plaint. 6. The main contention raised by the defendants is that the plaintiff has committed breach of the terms of the agreement by not completing the work. The plaintiff has also the same case that he has not completed the work. According to the plaintiff , the reason for not completing the work is that a portion of the land is not made available to him by the defendants for the purpose of completing the work. The said fact is also admitted by the defendants. In the written statement filed by the defendants it was stated that the said portion was not surrendered yet and that they have taken steps to make available the said portion as well. As a contracting party, it is the duty of the defendants to make available the land for completing the work, to the plaintiff without any interruption. In the circumstances, the trial court rightly held that the plaintiff cannot be fastened with the liability of not completing the work due to the fault on the part of the defendants. The trial court also rightly observed that the plaintiff did not complete the entire work is no explanation which would absolve the defendants from the contractual liability. As and when work was done payments should have been made so as to enable the plaintiff to proceed with the next stage of work. It was not contemplated that the contractor should complete the entire work and A.S.No.560 of 1999 & Cross objection -4- then claim payment for that. Being a reciprocal promise, the Government is liable to effect payment for the work done by the contractor. For the above reasons, I find no reason to interfere with the finding of the trial court that the plaintiff has not committed any breach of the agreement but the defendants committed breach of agreement by not making available the entire site for the uninterrupted completion of the work by the plaintiff. Being entered into a contract with the plaintiff, the defendants are bound to make available the entire land and to pay the agreed amount and rice. 7. I have also examined the contentions of the plaintiff/cross objector in the cross-objection. The learned counsel for the plaintiff submitted that the dismissal of the plaintiff's claim by the trial court for an amount of Rs. 7,000/- towards the damages, for the breach of the agreement by the defendants, is bad in law and that the reasons stated by the trial court to reject the said claim are against the facts, evidence and the probabilities. The plaintiff also contended in the cross objection that the trial court was erred in awarding low rate of future interest and that the trial court ought have awarded future interest at the rate of 18% per annum. 8. The above said contentions are examined by the trial court in detail. The trial court rightly observed that the work under the JRY scheme is not to be entrusted to a contractor who does work for making profits. The intention of the work under the Scheme was to provide A.S.No.560 of 1999 & Cross objection -5- employment for unemployed persons in rural areas. The plaintiff as the convener of the road is not expected to work under the scheme for making profits. Moreover, the plaintiff is not a registered contractor. So the plaintiff's claim of Rs. 7,000/- towards damages stating that he has availed loan from private institutions at exorbitant rate of interest for meeting the expenses of the work done by him, cannot be believable. The trial court found that the plaintiff has not produced any evidence to show that he availed loan from private institutions at exorbitant rate of interest. In the said circumstances this Court is of the view that there is no merit in the cross-objection. In the result, the appeal and cross objection fails and hence dismissed. There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- A.S.No.560 of 1999 & Cross objection ---------------------------- JUDGMENT 4th December, 2009