IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 19TH DAY OF APRIL 2011 PRESENT THE HON’BLE MR. JUSTICE K, L. MANJUNATH AND THE HON’BLE MR. JUSTICE H. N. NAGAMOHAN DAS BETWEEN: THE EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, BELGAUM DIVISION, BELGAUM59OOO 1. 2. THE STATE OP KPRNATAK REP BY DEPUTY COMMISSIONER BELGAUM59OOO 1 APPELLANTS (B.z Sri. MAHESH WODEYAR, AGAI AND: SRI BASA VARAJ S / 0 F CFH.. S UPS. MATAGAP AGE CC (DCC: LASS I PVC/F CO V/P FCC/HF TAL HCKKEFR[. DISC j’.L.:x:.i-, I ..RE.SPC)NDE2)T k/FLCE CF OLD/F/-i S.C C iFF’ C THIS RCA IS PILEID U/SEC CV C PC 5051kV)’ V JCDCD/1ENT SOD F(RCC. FIT CL) LOGO PASSEID 5\p C//U BEIXALCi ]DECRE kILO THE. SD IT EU P DECO/I/iC/U t cormri on final Gnarl/U. HI is day, K L Manjiinath J :2: JUDGMENT The legality and correctness of the judgment and decree passed by the III AddI. Civil Judge (Sr.Dn.), Belgaum dated 30.09.2005 passed in 0.5. No.285/2000 is called in question in this appeal. 2. The respondent/plaintiff filed the suit to declare that cancellation of tender work of improvement of the roads from Paschapur to Gokak-Hidkal Dam approach road and Mavanur Parakahanatti Road in Hukkeri Taluk by the 1t defendant is illegal and void and to direct the defendants to return the deposit made by the plaintiff in respect of the above said tender works. It is the case of the plaintiff that he is a Class I 11 contractor and improvement of two roads mentioned above were entrusted to him pursuant to a tender submitted by the plaintiff and the cost of tender work was fixed at 29,83,000/-. The plaintiff was required to complete the work within a period of six months excluding monsoon season from 15th June to 15th September. According to him, certain works were made and running bills were also prepared. But the defendants did not pay the running bills 3 n a( c ‘irdanc e nih i lit t dc r lit in . and fbi rntfiei. ; U h. )LI :‘,‘.Jjtig afl, 1.0’ ii “ t s I” ,vnr!’ v • s an• c ll. 3 inil it 1._Ct t Ii ( IIfl4’%1 (j •i ‘.4... • n•,, bit iiic• U1 is 1114 tl 3 ilir (1111)4 han’ .It41.t 4 jjfl1% f11 (1 ‘be ‘“rep ct1tIIjc .I111L I1LhS th 11 Gte .‘ rk 0 as t “tttistr ii i, :l.c plaint ut undn the NAF3ARD Sc ;• me. He also exec uted “1mm ;‘,tk !.u1. h t;d ::r t’.rk “itliiii the snpulaied link :mnet as per the r fli r,ncliij,n of the NABARI) St hc’nit ‘luc tendei V Can t’llt’ti on eIC’C’fltsflt (ii on nnipk tb ‘i’ t w’.,r U i ft c slipulatea une I Ion in ter 1 ucsied hc ‘t di r suit. Bat, I . v t’ ‘ssuc. b’ Whcte a rescind of r’piove. ., fr H.dkal 1a, war ur rJrak)naft, ‘c a I’ the :%_nJ ‘i’t N) 1 si’t :4: (ii) Whether the plaintiff further proves that he is entitled for mandatory injunction directing the defendants to return the deposits kept by him in respect of suit tender work? (iii) Whether the defendants proves that the suit in the present form is not maintainable? (iv) Whether the defendants further proves that the suit filed by the plaintiff is not maintainable? (v) Whether plaintiff is entitled for the reliefs as prayed for? (vi) What order or decree? 5. In order to prove their respective contentions, on behalf of the plaintiff, one Nisar Ahmed was examined as PW- 1 and he relied upon Ex.P- 1 to Ex.P- 18; on behalf of the defendants one H.Suresh was examined as DW- 1 and he relied upon Ex.D-l to Ex.D-7. The Trial court after considering the evidence held Issue Nos. 1, 2 and 5 in the affirmative and Issue Nos.3 and 4 in the negative and decreed the suit declaring the cancellation of the tender work as bad in law, illegal and void, directing the defendants to return the deposit made by the plaintiff by its judgment and 3 let rn daft ii AC) OQ )flft Flits nirlgmcr t and dec rev ‘ .al!c’i in qainti’m ;fl ‘his appcul. •, un riiain untcn n’i ‘fl Ii’ ippcll,rts i)(tOlL us is ill thiccrctjasc fr’ (‘uti lo’ n xt’tabu ‘s. ording t i, tb.’ (ra ctflfllrflt \di’ ‘ itt’. vht ii rite a ork has .1L tdtl lit’ ri • iti .‘sTt ii t’. i ‘flit .‘ 1)t rt . nuk c. iiru tht )ntracJ ntrusu d t ‘lx pltmt’ff and ‘hcn tia iork I as te roryltcdt flit.. 4 arn ‘iii hc a’ic.lIainii the ‘endet unik n;s Inuiid to hr lint in an urdance jjth lau. at best tht II ial otifl ‘iu,rht tt, ia’ e granted damages. 1 a suutcntd by thc plartiff IAitt ut doing s thc trial ‘ur’ n.m passrn U’ .)rder as if the ancc1latioI at rhc instIart is tllrgjl t ’rd irI lie ftirti’rr ‘,n’erds thai tot ‘ia it nn I.it o F 4 ly, C’ 3114 ii j’it C ‘U. 1% d • r’ •i;t.—.r.:.L !re . . P ifll • e: •,. rt le’r•I t’n. • ,_. q ;• s V . ‘:. • t! I • ..%.i’r •iF .— t • • r .. • •• • It :6: ‘Whether the judgment and decree is un executable and whether the judgment and decree of the trial court has to be set aside?” 8. Admittedly, the work was entrusted to the respondent/plaintiff by virtue of a Tender Notification. He was required to complete the work within a period of six months excluding the monsoon period. If the contractor has failed to complete the work within the stipulated period, on account of which such a contract has been set aside by the appellants herein and if the plaintiff is so aggrieved by the conduct of the appellants, the plaintiff is entitled to claim damages as loss sustained by him on account of the cancellation of the contract. Without doing so, he has filed a suit for mere declaration. A suit for declaration without V consequential reli4 is not maintainable. Even though, the plaintiff has asked for refund of deposit, he has not even mentioned the amount so deposited. If the plaintiff is interested to seek refund of the deposit, he has to pay the court fee on the same and get the decree. The trial court without observing all these things. in respect of a completed :7: work by a 3rd party, has granted a decree declaring the rescinding of the agreement as void. Therefore, we arc of the view that such a decree is un-executable. In the circumstances, we are of the opinion that the matter requires to be reconsidered by the court below. 9. Accordingly, we set aside the judgment and decree and remand the matter to the trial court for fresh consideration. It is open for the plaintiff to make necessary amendment to the plaint and seek amended relief and in such an event, the appellants are entitled to file additional written statement. Considering that the suit is of the year 2000, we direct the trial court to dispose of the suit within a period of six months from the date of receipt of certified copy of this order. Sd/ JUDGE .Sdh JUDGE RKK/