IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 SA.No. 709 of 1997(A) ------------------------------- (AS.NO.21/1993 OF THE DISTRICT COURT,KOZHIKODE, OS.NO.304/1989 OF II ADDL.SUB COURT,KOZHIKODE) .................... APPELLANT/APPELLANT/PLAINTIFF: ----------------------------------------------------- U. MOHAMMEDKUNHI, S/O. UMMER, P.W.D. CONTRACTOR, PANALAM HOUSE, P.O. CHENGALA, KASARAGOD. BY ADVS. SRI.D.KRISHNA PRASAD, SRI.D.NARENDRANATH, SRI. JOJI VARGHESE. SRI. HARI SHARMA.M. RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOZHIKODE. 2. THE SUPERINTENDING ENGINEER, P.W.D. (B AND R), NORTH CIRCLE, CALICUT. R1 & R2 BY GOVERNMENT PLEADER SMT. REKHA NAIR. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------- S.A No. 709 of 1997 -------------------------- Dated this the 7th July, 2010 J U D G M E N T Plaintiff, who filed this Second Appeal, was awarded with the work of improvement to Chalikkara Puliyottumukku-Avarattumukku road as per an agreement evidenced by Ext.B1 between the parties. According to the plaintiff, he could not complete the work due to the laches on the part of the defendants. In fact,he claims that major portion of the work had to be abandoned due to the conduct of the defendants. He complained that they have not paid the amount due to him for the work completed by him and that he claimed for damages along with settlement of accounts. 2. Defendants resisted the suit. According to them, it was due to the fault of the plaintiff that work could not be completed. They had done all they had to do so in terms of the contract. It is pointed out that the delay in starting the commencement of the work itself was due to the fault of the plaintiff and they repeatedly had to sent notice to him to commence the work. The work was of urgent nature. Therefore, as the plaintiff did not proceed S.A No. 709 of 1997 2 with the work. They had to get the work completed early. Since the plaintiff abandoned the work and committed breach of contract the Department had to rearrange the work. It is pointed out that the loss sustained to the Department by rearrangement of the balance work is to be recovered from the plaintiff. Pointing out that there were no laches on their part, they prayed for dismissal of the suit. 3. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and Exts.A1 and A2 were marked from the side of the plaintiff. . Defendants had examined DW1 and Exts. B1 to B 24 were marked. 4. On evaluation of the evidence the trial court found that none of the allegations made by the plaintiff is true and breach of contract was on his part. It is also found that defendants were justified in terminating the contract. However the trial court observed that since the final bill has not been prepared it will be done with notice to the petitioner. If he gets any adverse order, he will have to assail the proceedings before appropriate forum. Holding so, the suit was dismissed. S.A No. 709 of 1997 3 5. Plaintiff carried the matter in appeal as A.S. No.21 of 1993 the District Court, Kozhikode. The District Court considered the evidence independently and found that the plaintiff had no idea about the work undertaken by him and also about the work done by him. In paragraph 10 of the judgment of the lower appellate court, the case of the plaintiff has been discussed in detail. 6. The learned counsel for the appellant pointed out that both the courts erred in holding the suit as one for money. The plaintiff had sought taking of the account of the work done by him and balance payment due to him for the work done. The approach was wrong. 7. It is seen that plaintiff had admitted that he had received huge amounts from the Government for the work. But he was unable to complete the work or give details of the work. Both the courts below found that the department had carried out their part of the contract and it was only due to the fault of the plaintiff that work had come to a stand still. In fact it is seen that several notices were issued to the plaintiff to commence the work immediately. But it is seen that the appellant did not take steps to complete the work without delay. It was under those S.A No. 709 of 1997 4 circumstances, the Department was constrained to terminate the contract and re-arrange the work. It is seen that plaintiff agreed to complete the work provided they pay 50% enhanced rate. There were no provision for that in agreement. Therefore, defendants could not agree to such a proposal. Both the courts below have considered the variouas aspects raised by the plaintiff which according to them, had delayed in carrying the work. It is found that none of those allegations are true. Plaintiff had defaulted in carry out the work. In fact, the discussion of the lower appellate court shown that he has absolutely no idea about the work he had undertaken. Therefore, the court belows rightly found that the defendants could not be blamed for the delay in completing the work and also for the laches committed by the plaintiff. There is nothing to show that defendants are guilty of breach of contract. Both the courts below found that termination was justified. Finding are essentially on facts arrived at on an appreciation of evidence. No interference is called for by this Court since it is not shown that findings of the lower appellate court are either perverse or unwarranted by the evidence on record. No substantial question of law arose S.A No. 709 of 1997 5 for consideration in this appeal. Appeal is without merits and it is accordingly dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE ma S.A No. 709 of 1997 6 S.A No. 709 of 1997 7