IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 AS.No. 501 of 1994() -------------------- OS.103/1991 of I PRL.SUB COURT,ERNAKULAM .................... APPELLANT/PLAINTIFF: --------------------------------- VARKEY MATHAI, AGED 55 YEARS, S/O. VARKEY, RESIDING AT ELLICKAPARAMBIL, MAMALA, KOCHI - 682 305, THIRUVANIYOOR VILLAGE, KUNNATHUADU TALUK. BY ADV. SRI K L VARGHESE & SMT SANTHA VARGHESE RESPONDENTS/DEFENDANTS: ------------------------------------------- 1. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, PUBLIC WORKS & TRANSPORT (D) DEPT. GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE SUPERINTENDING ENGINEER, P.W.D. (R & B) CENTRAL CIRCLE, ALWAYE - 683 101. 3. THE EXECUTIVE ENGINEER, P.W..D. ROADS DIVISION, ERNAKULAM. BY GOVERNMENT PLEADER SRI. K.B. RAMANAND THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23.12.2009, THE COURT ON 1.6.2010 DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - A.S.No. 501 of 1994 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of June, 2010 JUDGMENT Joseph Francis, J. This appeal is filed by the plaintiff in O.S.No. 103 of 1991 on the file of the Sub Court, Ernakulam. Respondents 1 to 3 herein are defendants 1 to 3 in that suit, which was filed for a decree for realisation of Rs.3,21,023/- from the respondents being the payments due in respect of a contract work done with future interest and cost. 2. The appellant had entered into a contract with the second respondent representing the Governor of Kerala, in respect of the work of “Two road scheme - widening and improving Kumbalangy Kandakkadavu road” under agreement dt.12.8.1986. The appellant had contended that A.S.No. 501 of 1994 2 in spite of heavy odds and limitations caused by the respondents and various reasons amounting to breach of contract, the appellant had completed the work. However, the amounts legitimately due to the appellant on various accounts were denied. 3. Though in the statutory notice the appellant raised claims under 11 different heads, in the suit the same was limited to 5 heads, viz. (i) an amount of Rs.1,478.19 being cost of contractor's own earth supply under item No.3 of the agreement schedule (ii) an amount of Rs.94,301.88 deducted from payment already made under item No.6, which related to rough stone stacking and dry packing or pitching for aprons and revetments (iii) an amount of Rs.52,697.10 deducted from the amount due towards the item of supplying and fixing granite guard stones (iv) an amount of Rs.5,523.37 being payment due for the item of berm filling at the rate applicable to item No.7 in the agreement schedule and (v) an A.S.No. 501 of 1994 3 amount of Rs.1,19,022.43 being the payment due for pit sand and gravel provided between Ch. 1120 to 2520 for an average width of 8.03 M as per final levels instead of 7 M limited by the respondents as per initial levels. 4. The 2nd defendant filed written statement and additional written statement on his own and on behalf of defendants 1 and 3. It was contended that the 2nd defendant invited tender for the work mentioned in the plaint. Accordingly, the plaintiff submit quotation @ 39% above the estimate rates, which was subsequently reduced to 36.47%. His quotation was accepted and selection notice was issued to him by the 2nd defendant on 2.7.1986. The necessary agreement in respect of the work was executed on 12.8.1986. The necessary probable amount of the work was Rs.34,23,861/-. 5. As per the agreement the work was to be completed A.S.No. 501 of 1994 4 within 30 months from the date of handing over of the site to the plaintiff. The site was handed over to him on 18.9.1989. But the plaintiff could complete the work only on 17.2.1990, and that too on taking coercive steps against him by the 2nd defendant. The defendant made all possible arrangements and rendered all assistance to the plaintiff for the timely completion of the work. But the plaintiff failed to maintain proportionate progress in the work. By 20.9.1988, the plaintiff could execute only 60% of the work. Therefore, the then Executive Engineer discussed the matter with the plaintiff. Because of the negligent attitude of the plaintiff, the condition of the road got deteriorated to such an extent rendering even pedestrian traffic impossible. Then several local organizations appeared at the sight with protest. There was no lapse on the part of the defendants in making arrangements for the timely supply of materials. Wherever there was shortage of A.S.No. 501 of 1994 5 cement in the District Stores, the defendants made the required quantity of cement available from other sources. 6. The plaintiff was also given permission to purchase cement from open market. The claim of the plaintiff that delay in commencing the C.D. work has resulted in the non-execution of the work in time is absolutely incorrect. It may be noted that the cost of total quantity of work using cement worked out only to Rs.1,89,300/- and the total quantity of cement required was only 1226 bags. There was no live electric line or post causing any hindrance to the progress of the work as alleged by the plaintiff. The road was originally a P.W.D. road and work in question was only improvement to the same. A good number of service buses were plying along this road prior to the commencement of the work. But after the commencement of the work the road became A.S.No. 501 of 1994 6 so bad, thereby rendering vehicular traffic impossible. 7. As per the agreement, the plaintiff was bound to settle labour unrest, if any, at the site. The defendants are not liable for the removal of materials by the local people, if any, collected by the plaintiff at the site. In fact, there is no truth in the plaintiff's allegations on that aspect. Moreover, it was the responsibility of the plaintiff to keep the materials without being lost. The allegation that sinking of earth occurred while rolling was done is absolutely baseless. If at all there was any sinking of earth in the embankment, it was due to poor consolidation of the sub grade and the plaintiff, therefore, was liable to make good the same at his own cost. Therefore, the plaintiff's claim for Rs.6,38,356.38 on this count cannot be allowed. 8. There was no delay in making the payment, as alleged by the plaintiff. If at all there was any delay in making payment, it A.S.No. 501 of 1994 7 was on account of the reluctance on the part of the plaintiff to accept the measurement in time. Further, delay in making part payments was not a ground for the non-execution of the work in time. In fact there is no provision in the agreement for effecting immediate payment of part bills. On the other hand, the department was liable to make frequent payments only if it was possible. But as a gesture of goodwill the 3rd defendant, in exercise of his discretionary powers, released the retention amount withheld under part bills. In fact such amount was to be paid only as per the final bill. 9. The allegation that the Kerala Water Authority excavated the road where the work was completed and caused hindrance to the progress of the work is a falsehood. They executed pipe laying work outside the alignment of the road. This is clear from the plaintiff's letter dated 20.3.1989. As the plaintiff failed to A.S.No. 501 of 1994 8 execute the work in time, the time for completion of the work was extended, after imposing penalty on him and on his execution of necessary supplementary agreement for the same. If the cheque for Rs.2,65,976/- issued to the plaintiff on 1.9.1989 was dishonoured it might have been due to financial restrictions imposed by the State Government from time to time. However the said cheque was encashed on 8.9.1989. 10. The allegation that substantial amount due to the plaintiff was withheld by the defendants is absolutely false. It was solely on account of the delaying tactics adopted by the plaintiff that the 2nd defendant had imposed fine of Rs.250/- on him on two occasions. The plaintiff alone is responsible for the delayed execution of the work. His claim for revision of the agreed rates by 30%, therefore, is unsustainable and against the provisions in the agreement. He, therefore, is not entitled to get any A.S.No. 501 of 1994 9 enhancement in the rates. No deduction or recoveries have been made in C C VIII part bill as alleged by the plaintiff. Item No.4 in the schedule was excavation of earth in all classes of soil and the agreed quantity of work under that item was 104 m3. But on actual execution the quantity of work done under that items was found to be 171.44 m3. The excess quantity of work was included in the revised estimate. The excavated earth was never certified by the department to be unfit for filling. So a quantity equal to that of the excavated earth was deducted from the quantity of earth used for the filling work under item No.3 in the schedule. 11. As per the specification, the excavated earth was to be used for filling low lying areas. It was so specified not because of any clay content in the excavated earth but because the low lying areas was to be raised. Earth obtained from cutting was used for filling the road portion and the quantity of such earth was A.S.No. 501 of 1994 10 deducted. The quantity was limited to the provision in the agreement only for want of final approval of the revised estimate and the bill was not come forward to accept the levels. Item No.6 in the agreement was to be done by using stones having 30 cm. thickness. But the plaintiff did not use stones having such size for executing the said work. Therefore, some local organizations raised serious allegations against this work. There was also an Original Petition before this Court regarding this work. 12. This Court directed the Chief Engineer to verify the various allegations contained in the Original Petition Accordingly, the Chief Engineer visited the site and measured the thickness of stones used for such work, in the presence of the plaintiff. It was found that the stones used for such work were having thickness of 16 to 18 cms. Accordingly, the Chief Engineer ordered to effect necessary deduction from the quantity A.S.No. 501 of 1994 11 of work done by the plaintiff under item No.6, for which he was already paid. A sum of Rs.94,031/- was accordingly recovered from the plaintiff. The plaintiff did not raise any objection when check measurement was done by the Chief Engineer. Vigilance enquiry is pending against those officers, who did wrong measurements, thereby rendering unauthorised aid to the plaintiff. 13. The plaintiff has accepted the payment without any protest whatsoever. He had made necessary endorsement in the measurement book, accepting the measurement. The submission that guard stones were supplies and fixed by the plaintiff as per specification is not correct. As per the specification the plaintiff was to supply and fix guard stones two line chiselled 60 cm. alround from top. But the plaintiff supplied only split stones which are not as per the specification. More over, they were not A.S.No. 501 of 1994 12 dressed. Hence dressing charge at the rate of Rs.39.18 per stone for 1345 stones, amounting to Rs.52,697.10 was deducted. 14. Although the berm filling mentioned in the plaint appeared to be similar to the work under item No.7, it was done as an extra item. Such work involved less labour compared to the work under item No.7. Therefore, only 50% of the agreed rate under item No.7 was admitted during payment of part bill in respect of such extra item of work. The amount withheld could have been paid to the plaintiff if supplementary agreement was executed by him. 10% deduction for consolidation was made as measurement was taken by using tape. Subsequently level measurements were computed as per the provisions. Inspite of repeated requests the plaintiff did not come forward to accept the said measurements and therefore payments could not be made to him, it is contended. A.S.No. 501 of 1994 13 15. The plaintiff was not asked to do berm filling beyond the actual width of the road and therefore if he had done berm filling beyond the actual width of the road, he is not entitled to claim any amount. As per clause 20(a) of Form No.83 of the notice, the plaintiff is entitled to carry out 25% more of the estimated quantity of work at the agreed rate. But the plaintiff did not raise any objection against that. Therefore the present claim for higher amount is an after thought, which cannot be granted. 16. The items of work were included in the agreement on the basis of the relevant specification in MDSS. But by the subsequent introduction of the IRG specification, item Nos. 11, 14 and 16 to 20 were substituted. In view of clause 15 of form No.83 notice inviting tender and clause 10 of special conditions the plaintiff cannot claim compensation for the work substituted. A.S.No. 501 of 1994 14 Clause 23(3) of the form No.83 stipulates that in the case of percentage rate contract, the rate for extra items shall be arrived at by applying the percentage excess or deduction to the departmental data rates as per the original schedule on which the tenders were issued. Therefore the claim of the plaintiff for extra items of work is not sustainable. The plaintiff accepted the quantity of the work and he was paid for the same. Therefore he cannot claim any amount for the work done outside the limits of initial levels, accepted and approved by the authorities. Therefore the defendants are not responsible for the non-payment of the final bill and he is not entitled to claim any interest as there is no provision in the agreement for payment of interest. The plaintiff is entitled to get the withheld amount and the defendants are prepared to pay the same, on execution of necessary supplementary agreement for the same, it was contended. A.S.No. 501 of 1994 15 17. In the Sub Court PW1, DW1 and DW2 were examined and Exts.B1 to B10 were marked. The learned Sub Judge, on considering the evidence, allowed Claim No.1 for Rs.1,478.19 as cost of deducted quantity of earth from the first defendant/State. Claim No.4 was partly allowed and the plaintiff was entitled to get Rs.28,934.05 from the first defendant/State. Claim Nos. 2, 3 and 5 were disallowed as there is no evidence to substantiate those claims. Thus the plaintiff is given a decree dt. 15.11.1993 to realise from the first defendant/State a sum of Rs.30,412.24 with interest thereon at the rate of 6% p.a. from the date of the decree till the date of realisation. The parties are directed to suffer their respective cost in the suit. Against that judgment and decree, the plaintiff filed this appeal. 18. The learned counsel for the appellant submitted that in this appeal the appellant is not seriously pressing Claim No.4 and A.S.No. 501 of 1994 16 the appellant is claiming full amount under Claim Nos. 2, 3 and 5. The learned Government Pleader submitted that the appellant is not entitled to get any amount under Claim Nos. 2, 3 and 5. 19. The first defendant is the State of Kerala and defendants 2 and 3 are its officers. The plaintiff was the contractor of the work of “Two road scheme - widening and improving Kumbalangy-Kandakkadavu road.” Ext.B7(a) in Ext.B7 file is the agreement dt.12,8,1986 executed between the plaintiff and the first defendant in regard to the execution of the work. As per Ext.B7(a) the plaintiff agreed to complete the work within 30 months from the date of execution. But he did not complete the work within the specified period. Therefore the period was extended from time to time. Exts.B7(b), B7(c) anf B7 (e) in Ext.B7 are the supplemental agreements executed between the plaintiff and the first defendant extending the period for A.S.No. 501 of 1994 17 completion of the work. The plaintiff completed the work in February, 1990. 20. The first defendant either recovered from him or did not pay him amounts in regard to certain items of work in Ext.B7 (f) on the allegation that either such items of work were executed not in accordance with the specifications contained in the agreement or the plaintiff's claim was unsustainable. 21. Claim No.2: In paragraph 12(b) of the plaint it is alleged that Item No.6 of the tender schedule prescribes “rough stone stacking and dry packing for aprons and revetments in the first, second and third kilometers. The plaintiff alleges that this item was done long back and the thickness was more than 30 cms. and at any point of time it has not reached below 30 cms. 22. While the work was in progress, the local people formed an association and raised serious allegations against the A.S.No. 501 of 1994 18 quality of work done by the plaintiff. That association filed a petition before the third defendant, Executive Engineer, and an Original Petition before this Court. That Original Petition was disposed of by this Court with a direction to the Chief Engineer (B&R) Division to consider and dispose of the complaint filed by the association. The defendants allege that in pursuance of that direction, the Chief Engineer inspected the site on 16.8.1989 and prepared Ext.B3(c) note and Ext.B4(d) letter dt. 22.9.1989 addressed to the second defendant, Superintending Engineer, stating that rubble pitching work under Item No.6 in the schedule was done in a shabby manner, that the work should have been done in 30 cms. thickness, provided in the estimate, that on inspection by him it was revealed that such work was done in average thickness of 15 to 18 cms. and such work was recorded in the measurement book as having 30 cms. thickness. A.S.No. 501 of 1994 19 23. As directed by the Chief Engineer, an amount of Rs.94,301.88 was recovered from the plaintiff alleging that the aforesaid item of work is having only 15 to 18 cms. thickness. The plaintiff alleges that the plaintiff has done the above work in 30 cms. thickness. The claim of the plaintiff under this head was rejected by the learned Sub Judge mainly on the ground that the plaintiff has not taken out any commission assisted by an expert to prove this aspect. 24. PW1, the plaintiff, deposed that he did this item of work as per the specification under the supervision of departmental officers and nobody objected at the time of execution of the work. PW1 deposed that when the Chief Engineer inspected the the spot the work itself was in the finishing stage, pitching was over, over pitching rubble masonry and plastering were done, earth filling done between the masonry wall and metaling was going on and A.S.No. 501 of 1994 20 that he was present when the Chief Engineer inspected. PW1 deposed that the Chief Engineer did not ask him any question. The Chief Engineer just came, walked for about 50 meters after getting down from the car and he never asked anybody to take any measurement. PW1 clarified that the thickness of rough items used cannot be ascertained even by experienced hands after doing the work, but can only during the work. 25. DW1 is the Assistant Engineer, who supervised the work from 1.7.1988 till the completion of the work. He was the Assistant Engineer under the third defendant Executive Engineer. DW1 deposed that he was present when the Chief Engineer inspected the site and at that time over pitching rubble masonry and plastering were over, filling the embankment of road was also over and the Chief Engineer did nothing, except looking from the top of the plastered masonry. DW1 identified Ext.B3(b) A.S.No. 501 of 1994 21 report dt.21.4.1989 of the Executive Engineer addressed to the Superintending Engineer and after Ext.B3(b) report, the second defendant also inspected the site. 26. DW1 deposed that the Superintending Engineer of the Vigilance Wing came to the site 1½ years had elapsed since then and after that the second defendant issued completion certificate for the work and no defect was pointed out in the completion certificate. In Ext.B3(b) report dt.21.4.1989 it is stated that no malpractice is suspected so far. DW2 was the Executive Engineer at the time of execution of pitching work partly, who was promoted as Superintending Engineer and retired as Chief Engineer. 27. DW2 deposed that the rubble used for rough stone packing (pitching) had average 30 cms. thickness and he had never noted that pitching was not as per the specification and that A.S.No. 501 of 1994 22 he was satisfied with that work. The Executive Engineer sent Ext.B4(f) report to the Chief Engineer on 22.4.1989. In that report the Executive Engineer has categorically stated that the complaint that rubble masonry work was not as per the specification is not correct. DW2 deposed that the Executive Engineer is competent to certify the quantity and specification of the work. In Ext.B2 file of the third defendant there is a letter dt.13.11.1989 of the Executive Engineer to the Superintending Engineer. In reply to his letters dt. 25.8.1989 and 4.10.1989 it is stated that the thickness of pitching stones cannot be exactly assessed at that time since the work was finished long back. In Ext.B2 file at page 259 there is a letter dt.3.8.1990 of the then Executive Engineer suggesting for a detailed verification of the items by the Vigilance Wing of the Chief Engineer's office. 28. DW1 deposed that there was such a verification and 1½ A.S.No. 501 of 1994 23 years have elapsed since then and the security deposit and retention amount were released after the verification, which would show that the work was satisfactory. Therefore, it is clear that the version of PW1, DW1 and DW2 are consistent and uniform and their testimony is corroborated by the contemporaneous correspondences. Therefore, it is evident that the observation of the Chief Engineer that the rubble for rough stone is less than 30 cms. is without any proper verification and therefore recovery of Rs.94,301.88 is illegal and the plaintiff is entitled to get back the amount from the first defendant. 29. Claim No.3: Paragraph 12(c) of the plaint reads as follows: “(c) For the item of supplying and fixing granite guard stones, total recovery of Rs.52,697.10 has been made. In C.C. VII & Part A.S.No. 501 of 1994 24 recovery of an amount of Rs.35,844.25 was made and that time itself plaintiff had notified the defendants the impropriety thereof in letter dt.2.12.1989 addressed to the Chief Engineer with copy of the 2nd defendant. As stated therein, these guard stones were fixed strictly according to the specification. The size is 20 x 20 x 120 cm. two line chisseled, 60 cms. around from top. Even at the time of supplying or fixing, there was no adverse remark from the defendants. At the time of supply, 75% of the agreed rate was given. Obviously, the defendants had no doubt about the correctness according to the specification or the supply made. 25% was retained only for the reason that fixing was not done. It is therefore evident that the recovery after supplying and fixing is incorrect. The plaintiff is entitled to release of the entire amount of Rs.52,697.10.” In paragraph 14(iii) of the plaint it is stated that as detailed in A.S.No. 501 of 1994 25 paragraph 12(c) above, for the item of supplying and fixing granite guard stones, the defendants have received an amount of Rs.52,697.10 and the