IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 WP(C).No. 22251 of 2011(F) -------------------------- PETITIONER(S): --------------- JOSE THOMAS, PUBLIC WORKS CONTRACTOR, JOSE BUNGLOW, PIDAVOOR P.O., PATHANAPURAM. BY ADV. SRI.S.ABDUL RAZZAK RESPONDENT(S): --------------- 1. THE EXECUTIVE ENGINEER, KIP-LB DIVISION, NO.V, KOLLAM-01. 2. GOVT.OF KERALA, REPRESENTED BY SECRETARY, IRRIGATION (IRRN) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-01. 3. THE DEPUTY TAHSILDAR (R.R) AUTHORIZED OFFICER, TALUK OFFICE, PATHANAPURAM-689 695. GOVERNMENT PLEADER SHRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 22251/1011 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE AGREEMENT. P2. COPY OF THE LETTER DTD.7.9.94. P3. COPY OF THE LETTER DTD.3.8.99. P4. COPY OF THE GOVT. ORDER DTD.30.11.99. P5. COPY OF THE JUDGMENT IN O.P.No. 2913/2000. P6. COPY OF THE LETTER DTD.28.11.2000. P7. COPY OF THE REPLY DTD.12.12.2000. P8. COPY OF THE CLAIM STATEMENT DTD.12.2.07. P9. COPY OF THE ORDER OF R1 DTD.21.6.2010. P10. COPY OF THE ORDER DTD.27.9.10 BY R1. P11. COPY OF THE GOVT. LETTER DTD.18.9.09. P12. COPY OF THE DEMAND NOTICE 9.3.2010. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 22251 of 2011 ================== Dated this the 17th day of August, 2011 J U D G M E N T The petitioner is a contractor who undertook certain works on behalf of the Irrigation Department of the Government of Kerala. The petitioner did not complete the work. Originally, the Department recommended termination of the contract without risk and costs of the petitioner. But by Ext.P4 Government order dated 30.11.1999, the contract was terminated at the risk and costs of the petitioner. The petitioner approached this Court by filing O.P.No.2913/2000. By Ext.P5 judgment, this Court directed the Government to consider the matter after hearing the petitioner. No orders have yet been passed on the same, according to the petitioner. Now the petitioner has been served with a demand for payment of the value of departmental materials supplied to the petitioner for the purpose of execution of the contract. That is under challenge. The petitioner's contention is that the Government, being a party to a contract with the petitioner, cannot unilaterally decide the question as to whether the petitioner is liable to pay any amount to the Government without an adjudication and determination of the amounts due. According to him, by Ext.P5 judgment, all these questions were directed to be considered. He further points out that the actual loss is admitted to be ` 49,686/- and w.p.c.22251/11 2 interest is claimed from 2000 onwards, which is illegal, insofar as, for the delay on the part of the respondents, the petitioner should not be saddled with the liability to pay interest also. 2. I have heard the learned Government Pleader also and considered the rival contentions in detail. 3. Ext.P5 judgment reads as follows: “Petitioner is essentially aggrieved by Ext.P14 order passed by the Government and consequential Ext.P15 order passed by the 5th respondent Executive Engineer. The issue pertains to the alleged non- completion of the contract work of improvements to the Canal Bunk road connecting inlet and outlet of tunnel No.VI at Muttara, undertaken by the petitioner. According to the petitioner, even going by the report of the Chief Engineer, the work could not be completed since the Department did not supply the materials in time. There are other contentions as well. Be that as it may, Ext.P14 order passed by the Government, it is submitted, is without notice and opportunity for hearing to the petitioner. Since the matter pertains to the cancellation of the agreement, it is only appropriate that the petitioner also be given an opportunity to state his version. Accordingly, I quash Ext.P14 and consequential Ext.P15. However, the judgment shall not stand in the way of the Government passing appropriate orders in accordance with law, after affording an opportunity for hearing to the petitioner. That does not relate to recovery of any amount towards value of the materials supplied to the petitioner, but relates only to termination of the contract. Therefore, I am not satisfied that Ext.P5 judgment takes in the question of recovery of value of the materials supplied to the petitioner for execution of the contract. The amount now demanded is not the damages for breach of contract. Therefore, the law relating to deciding the questions of breach and quantum of damages by a party to the contract does not apply to the facts of this case. Admittedly, the petitioner did not do the work entrusted to him and admittedly, the w.p.c.22251/11 3 petitioner received materials from the Department for execution of the contract. The value of the materials supplied to the petitioner is now demanded with interest. Once it is admitted that the petitioner received departmental materials for the work and the work was not completed even assuming, without accepting, that there is no breach of contract by the petitioner, the petitioner is bound to either return the materials or reimburse the value of the same, which only has been demanded now. The exact quantity of materials received by the petitioner and the value of the same are known for which a separate adjudication is not called for. Therefore, it is certainly within the rights of the Government to demand and recover the same from the petitioner. If the petitioner has any dispute it is for him to raise it in a civil suit. The fact that the Government took time to decide the issue regarding recovery of the value of the materials supplied to the petitioner does not inure to the benefit of the petitioner insofar as the petitioner had the use of the materials. If the petitioner has any dispute regarding the value of the materials, I am of opinion that the petitioner should raise the dispute in a civil suit. Without prejudice to that right, this writ petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.22251/11 4 sdk+ S.SIRI JAGAN, JUDGE