IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 20TH OCTOBER 2011 / 28TH ASWINA 1933 AS.No. 536 of 1998() -------------------- OS.190/1993 of SUB COURT, MAVELIKKARA .................... APPELLANT/PLAINTIFF:- --------------------------- K.E. ABDUL RAHIMANKUNJU, MANGALATHU HOUSE, KRISHNAPURAM P.O., KAYAMKULAM. BY ADV. SRI.R.RAJASEKHARAN PILLAI RESPONDENTS/ DEFENDANTS:- ----------------------------------- 1. THE STATE OF KERALA REP. BY THE DISTRICT COLLECTOR, ALAPPUZHA. 2. THE EXECUTIVE ENGINEER, ROADS DIVISION, ALAPPUZHA. 3. THE TAHSILDAR (DEPUTY), REVENUE RECOVERY, KARTHIKAKPPALLY TALUK, HARIPAD. 4. THE VILLAGE OFFICER, KRISHNAPURAM. ADV. SRI. SHAIJ RAJ T.K., GOVERNMENT PLEADER THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 20.10.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. BHAVADASAN, J. ====================== A.S. No.536 of 1998 ====================== Dated, this the 20th day of October, 2011. JUDGMENT The plaintiff who was non suited by the courts below is the appellant. 2. The plaintiff undertook certain works as per Ext.B1 agreement dated 11.01.1982. According to the plaintiff, the requirements for the work was 337 bags of cement, 200 kgs. of 12 mm. M.S. bars and 31 kgs. of 10 mm. M.S rods. It is admitted by the plaintiff that the entire quantity of MS rods required were made available. But according to him, he was not provided with adequate quantity of cement required for the said work and out of 200 packets allotted to him 120 packets of cement were diverted by the 2nd defendant for some other urgent work. He was alleged that there was failure on the part of the Government to supply the materials in time and he could not complete the work. He claimed that 40% of the work has been completed as early as in 1982. He was asked to remit an amount of `85,964 as damages caused to the State as a result of re-tendering of the work, which according to him, he is not liable to pay. Hence the suit was filed. A.S. No. 536/1998 -:2:- 3. The defendants resisted the suit. They pointed out that 200 bags of cement and required quantity of iron rods were supplied to the plaintiff. There is no basis for the allegation that the plaintiff could not complete the work due to shortage of cement or non supply of cement by the Department. The details regarding the quantity of cement that was available with the plaintiff and quantity of cement which he utilised for 40% of the work show that adequate cement was left with him and it could have been utilised to complete a major portion of the work. They also pointed out that on two occasions, extension was given on the request made by the plaintiff. In spite of the repeated demand notice to the plaintiff to complete the work, he had not done so. They were compelled to re-tender the remaining work and the loss is sought to be recovered from the plaintiff. On the basis of these contentions, they prayed for a dismissal of the suit. 4. On the basis of the above pleadings, issues were raised. The evidence consisted of the testimony of PWs 1 and 2 and Exts. A1 to A4 were marked on the side of the plaintiff. The defendant himself examined as DW1 and Ext. B1 was marked. The trial court on an evaluation of the evidence found that there was no material to substantiate the allegations made by the plaintiff and A.S. No. 536/1998 -:3:- dismissed the suit. Hence the appeal. 5. The question that arises for consideration is whether the courts below is justified in declining relief to the plaintiff . 6. At the outset, it may be noticed that the suit is not maintainable in view of Section 72 of the Revenue Recovery Act. Nevertheless, this Court shall consider the case on merits. 7. As per Ext.B1 agreement the required quantity of cement and materials were supplied by the Department to the contractor for the work. It is not in dispute that 200 bags of cement were, in fact, supplied. It is also admitted fact that out of the cement supplied, a small quantity was diverted for some other work. However, the defendant have clearly shown that the plaintiff had done only 40% of the work and there was cement left with him to do a major portion of the work; but he wilfully abstained from completing the work. It is pointed out that he was asked to complete the work several times; but he did not do so. 8. The complaint of the appellant is that the defendants did not make available necessary quantity of cement and that prevented him from completing the work. 9. The above contention can be found to be false for A.S. No. 536/1998 -:4:- reasons more than one. First of all, there is no document to prove that the plaintiff is not supplied with sufficient materials. No documents whatsoever have been produced by him to show that he had to suspend the work for want of cement. Moreover, one cannot omit to notice that on two occasions, he had sought for extension of time. He had not produced any evidence to show that he had brought to the notice of the authorities that he could not continue the work for want of cement. If as a matter of fact he was precluded from continuing his work, he would not have sought for extension of time and would have informed the authorities about his inability to carry on the work for want of cement. Further, the defendant demonstrated by data that sufficient quantity of cement was left with the plaintiff to carry out a major portion of the work. 10. The evidence discussed by the court below clearly shows that there is no laches on the part of the defendants and there was no proof from the side of the plaintiff to substantiate his allegations. The court below found that the claim of the plaintiff that he could not complete the work for want of supply of cement, was not true and cannot be accepted. The findings, thus, arrived at by the trial court is fully justified going by the A.S. No. 536/1998 -:5:- evidence on record. The appellant was unable to show that the findings are either perverse or unwarranted by evidence on record. The result is that this appeal lacks merit and is liable to be dismissed. I do so. However, there will be no order as to costs. sd/- P. BHAVADASAN, JUDGE. rv /True Copy/ P.A to Judge. A.S. No. 536/1998 -:6:- P. BHAVADASAN, J. ----------------------------------------------------------- A.S. No. 536 of 1998 ------------------------------------------------------------- Dated this the 20th day of October, 2011. JUDGMENT