IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 RSA.No. 1221 of 2008() ---------------------- AS.191/2004 of THE COURT OF V ADDL. DISTRICT JUDGE, ERNAKULAM OS.70/2001 of THE COURT OF III ADDL.SUB JUDGE, ERNAKULAM .................... (S): APPELLANTS/APPELLANTS/DEFENDANTS ---------------------------------------------------- 1. CHERANELLOOR GRAMA PANCHAYATH, PANCHAYATH OFFICE SOUTH CHITTOOR COCHIN-682027. 2. SECRETARY,CHERANELLOOR GRAMA PANCHAYATH PANCHAYATH OFFICE SOUTH CHITTOOR, COCHIN-682027. BY ADV. SRI.S.SHANAVAS KHAN SMT.S.INDU RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- T.C.TITUS, S/O.CHUMMAR, THACHUTHARA HOUSE,CHITTOOR DESOM, CHERANELLOOR VILLAGE,ERNAKULAM. ADV. SRI.A.BALAGOPALAN FOR R THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.1221 of 2008 = = = = = = = = = = = = = = Dated this the 12 th day of December, 2008 JUDGMENT Heard both sides. 2. The defendants, (who are the Cheranelloor Grama Panchayat and its Secretary) in O.S.No.70 of 2001 on the file of the IIIrd Additional Sub court, Ernakulam are the appellants in this second appeal. The said suit was one for damages to the tune of Rs.1,08,336/-. 3. The case of the plaintiff can be summarised as follows:- The plaintiff bid in auction the right to conduct the ferry service across the Chittoor-Moolampilly ferry using country boats for the period from 1.4.2000 to 31.03.2001. Rs. 45300 was the bid amount. He paid 1/4th of the bid amount as Rs.11,325/- forthwith. The balance amount was to be paid in two instalments on 31.5.2000 and 31.8.2000. But the plaintiff could run the ferry only for 158 days after which he was unable to conduct the ferry due to the following reasons:- R.S.A.No.1221 of 2008 2 1.He was prohibited from collecting the charges from students by the 1st defendant Panchayat eventhough there was no such prohibition in the contract executed betweeen the plaintiff and the Panchayat. 2.A public boat service was started in the very same sector vitally affecting the revenue of the plaintiff. 3.His request to the Panchayat to enhance the fares was not favourbly considered by the 1st defendant Panchayat. 4. After running the ferry for 158 days he stopped the service on 5.9.2000. Thereafter he filed the present suit claiming a sum of Rs.108336/- as damages. The break up of his claim is as follows:- 1. Loss due to transport of students without fare: Rs.11600/- 2. Loss due to the running of the public boat service: Rs.18000/- 3. Loss due to early termination of the contract : Rs.33626/- 4. Revenue loss and mental agony : Rs.97550/- 5. Difference between the excess amount of Rs.23,538/- demanded by the 1st defendant and the actual amount of Rs.34,324/- deposited by the plaintiff : Rs.10,786/- R.S.A.No.1221 of 2008 3 5. The suit was resisted by the Panchayat contending inter alia, as follows:- The suit is a speculative one filed without any bona fides. The plaintiff who was the highest bidder had voluntarily executed the agreement with the 1st defendant Panchayat. His contention that the terms and conditions are unilaterally fixed is not correct. It was the plaintiff who violated the terms and conditions of the agreement by stopping the ferry prematurely causing inconvenience and hardship to the general public. The public boat service started was not under the control of the defendants. The plaintiff who is a resident of that locality was fully aware of the modes of conveyance in the ferry service, the number of passengers, the fare for the conveyance etc. The plaintiff ought to have known that the students are being exempted from paying the ferry charges. When the 1st defendant received complaints from the public to the effect that the plaintiff is demanding ferry charges from the students, the Panchayat was constrained to issue notice to the plaintiff to dis- continue collecting fares from the students. The defendants have not concealed anything from the plaintiff. The plaintiff R.S.A.No.1221 of 2008 4 ought to have made reasonable enquires about the probable income, expenses etc. for the conduct of the ferry service before bidding in the auction. The defendants are not responsible for the loss of revenue , if any, of the plaintiff. As per the terms and conditions of the agreement, in case the plaintiff abandoned the contract prematurely, the Panchayat was entitled to re-auction the right at the risk and cost of the plaintiff. Hence, the plaintiff is not entitled to any amount by way of compensation. The loss alleged has not been sustained by the plaintiff. The suit is liable to be dismissed. 6. Out of the five different claims the trial court awarded a sum of Rs.25,000/- by way of mental agony and a sum of Rs.34,324/- which was the excess amount collected from the plaintiff. The suit was thus decreed in part for a sum of Rs.59,324/- 7. On appeal preferred by the appellants, the lower appellate court disallowed the grounds put forward by the plaintiff in support of the claim but granted a decree to the plaintiff for a sum of Rs.19,000/- which was the amount which the 1st defendant collected from one Lawrence Fernandez for the R.S.A.No.1221 of 2008 5 unexpired period excluding the first eight days and Rs.992/- collected by the Panchayat from one Augustine Fernandez for the first eight days. The lower appellate court thus confined the compensation payable to the plaintiff to Rs.19,992/- which according to that court amounted to double payment and unjust enrichment by the Panchayat. Hence this second appeal. 8. Following are the questions of law formulated in this second appeal:- i.Whether or not the lower Appellate Court is justified in granting a relief without being asked for or proved? ii.Whether the respondent is entitled to get any relief especially when the entire claim put forward by him was rejected? iii. Whether the Court below is justified in passing a decree against the appellant especially when the entire procedure followed by them is found to be legally sustainable? R.S.A.No.1221 of 2008 6 9. The learned counsel appearing for the appellant made the following submissions before me in support of the appeal:- It is true that the agreement did not prohibit the plaintiff from collecting fare from the students but the plaintiff who is a resident of that locality ought to have known the existing practice of not collecting any fare from the students. Hence, the plaintiff cannot blame the Panchayat for prohibiting the plaintiff from collecting the fare from the students. Similarly, when the defendant Panchayat is not responsible for running the other public boat service, the plaintiff cannot complain of depletion of his income on account of the running of the public boat service by another agency. The lower appellate court, having held that none of the claims made by the plaintiff is sustainable, ought to have dismissed the suit in its entirety, instead of awarding Rs.19,992/- to the plaintiff . 10. I am afraid that I cannot agree with the above submissions. Both the courts below have concurrently held that there was no condition in the agreement between the plaintiff and the defendants prohibiting the plaintiff from collecting fares from the students. That was something which the Panchayat R.S.A.No.1221 of 2008 7 ought to have anticipated that and made provision for the same. Having not prohibited the plaintiff from collecting fares from the students, it was not open to the Panchayat to subsequently restrain the plaintiff from collecting fares from the students. Hence, the plaintiff was fully justified in contending that he had sustained loss on account of the inability to collect fares from the students. Admittedly, the Panchayat had collected a total amount of Rs.45,649/- from the plaintiff as against Rs.45,300/- which was the bid amount for the entire period. There is no dispute that the plaintiff had run the ferry only for 158 days and he did not find it profitable to run the ferry for the unexpired period of the contract. It is also in evidence that after the plaintiff had discontinued running the ferry, one Augustine Fernandez was given the right to ply the ferry service for eight days and the Panchayat had collected Rs.992/- from the said Augustine Fernandez. Similarly for the rest of the contract period the Panchayat had auctioned the right to one Lawrence Fernandez for a sum of Rs.19000/- which was also collected by the Panchayat. The Panchayat was thus making double enrichment by collecting the amounts from the plaintiff as well R.S.A.No.1221 of 2008 8 as from the aforementioned two persons for the same period. Hence the sum of Rs.19,992 collected by the Panchayat for the unexpired portion of the contract from the two persons after having collected the bid amount for the entire period from the plaintiff as well, was bound to regurgitate the excess amount. The lower appellate court has done only that. 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. The appellants are given 2 months time from today to deposit the said amount of Rs.19,992/- as decreed by the lower appellate court. The execution proceedings shall be kept in abeyance for the said period. Dated this the 12th day of December, 2008. V. RAMKUMAR, JUDGE sj