IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 AS.No. 838 of 1998() -------------------- OS.65/1993 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT(S): PLAINTIFF -------------- KUNJAN, S/O THEYYAN, VARIPARAMBIL HOUSE KODUNTHIRAPULLI AMSOM, PALAKKAD TALUK BY ADV. SRI.O.RAMACHANDRAN NAMBIAR RESPONDENT(S): DEFENDANTS --------------- 1. DISTRICT COLLECTOR REPRESENTING STATE OF KERALA, CIVIL STATION PALAKKAD 2. THE EXECUTIVE ENGINEER, ROADS DIVISION, CIVIL STATION, PALAKKAD GOVERNMENT PLEADER SRI.SHYSON.P.MANGUZHA THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 21/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Appeal Suit No.838 OF1998 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of August, 2009 JUDGMENT The plaintiff in O.S.No.65/1993 of Sub Court, Palakkad is the appellant. The suit is for a declaration that the demand notice - Ext.A9 is invalid and for a consequential perpetual injunction. The suit was dismissed by the lower court with costs. The plaintiff has challenged in this appeal the said decree and judgment. 2. The case of the appellant/plaintiff as detailed in the plaint and as testified by him as PW1 before the lower court in brief is this : The first defendant is District Collector, Palakkad and second defendant is the Executive Engineer , Roads Division, Civil Station, Palakkad. Plaintiff was the successful tenderer to enjoy the right to collect toll from the vehicles passing through the Pudur Bridge during 1993 commencing from April 1, 1992. Plaintiff quoted Rs. 1,55,555/- . But he was given permission to collect the toll from A.S.No.838/1998 2 June 12, 1992 only. He was given pro rata remission in the matter of payment of 71 days during which period he was not able to collect toll . Ext.A1 is the tender notice and Ext.A10 is the proceedings of the Executive Engineer accepting the tender submitted by the plaintiff. Plaintiff executed Ext.B1 agreement . According to the plaintiff, the toll collection from the month of November to the middle of June will be in peak fetching an average high collection of Rs. 900/- to 1000/- per day and that therefore, he is entitled to remission of atleast Rs. 1000/- per day during the said period. The plaintiff received Ext.A9 notice asking him to remit Rs. 30, 258/- which according to him is not sustainable. Plaintiff has paid three instalments at the rate of Rs. 19,000/- each as per the agreement. Plaintiff prays for setting aside the demand notice - Ext.A9 and for consequential injunction. 3. The acceptance of the tender by the plaintiff and also execution of agreement - Ext.B1 are admitted by the defendants. They disputed the contention of the plaintiff that plaintiff sustained any loss during the period of 71 days during the period he was not A.S.No.838/1998 3 permitted to collect the toll. According to the defendants, it is the plaintiff who has violated the terms of the agreement and that Ext.A9 notice is valid. 4. The plaintiff was examined as PW1 and Exts.A1 to A10 were marked on the side of the plaintiff. On the side of the defendant, DW1 was examined and Exts.B1 to B4 were marked. 5. The lower court on an appreciation of evidence found that the plaintiff is not entitled to the loss allegedly sustained by him and that the injunction prayed for has become infructuous and dismissed the suit with costs. The plaintiff has come up in appeal. 6. The main question which arises for consideration is whether the appellant/plaintiff is entitled to a remission of Rs. 51,859/- being the toll collection for the period from 1 April, 1992 to 10th June 1992 and if so whether the demand notice Ext.P9 issued is valid. 7. It is the admitted case that the total amount for which the right to collect toll was bid by the plaintiff for Rs. 1,55,555/- for the period from April 1, 1992 to March 31, 1993, but he was allowed to A.S.No.838/1998 4 collect toll only from June, 12, 1992 onwards. It is also admitted that the second defendant has given pro rata remission of Rs. 32,258/- for the period of 71 days during which the plaintiff was not permitted to collect the toll. The case of the plaintiff is that Ext.B4, the abstract of toll collection in Pudur Bridge for the period from 01/04/1992 to 10/06/1992 shows the total collection of Rs. 51,859/- and that plaintiff is entitled to a remission of that amount during that period. 8. In my view, the lower court is perfectly justified in coming to the conclusion that the plaintiff is not entitled for a remission of the said amount. He has executed Ext.B1 agreement dated June 12, 1992 and supplemental agreement - Ext.B2 on 13/06/1992 accepting the right to collect toll from June 12, 1992. Further pro rata remission was given on the application of the plaintiff which can be seen from Ext.A10 proceedings of the Executive Engineer. As per Ext.A10, the plaintiff was allowed to remit the amount in five instalments and plaintiff has remitted three instalments and defaulted payment of the remaining two instalments. A.S.No.838/1998 5 It is admitted that he has requested for extension of time thereafter. Having executed agreement Exts.B1 and B2 and having sent letter requesting time to pay the balance amount, the plaintiff cannot now turn around and say that he is entitled to the remission of the actual amount of toll collected during the period in dispute. Therefore, in my view, the lower court is perfectly justified in finding that the plaintiff is not entitled for the remission of the amount mentioned in Ext.B4 i.e. Rs. 51,859/-. 9. As regards the demand notice - Ext.A9, it does not contain any details regarding the amount due and the amount already paid by the plaintiff. Learned counsel for the appellant/plaintiff submitted that there is a security amount of Rs. 8,000/- and that he is entitled to refund of Rs. 5000/- which has also to be adjusted towards the amount due from him. 10. Under these circumstances, I am setting aside Ext.A9 notice. The second defendant is at liberty to issue a fresh demand notice showing the total amount due from the plaintiff and the amount remitted by him. The security amount of Rs. 8000/- and A.S.No.838/1998 6 Rs. 5000/-paid by him as advance shall be deducted from the amount due from the plaintiff. Learned Government Pleader submitted that whether that advance amount is actually paid or not has to be verified. If no such amount is paid as advance, the second defendant need not deduct that amount from the amount due from the plaintiff. In the result, the appeal suit is allowed in part. The demand notice - Ext.A9 is set aside . The second defendant is entitled to issue fresh demand notice showing the details of the correct amount due from the plaintiff. In the circumstances, parties shall bear their own costs. P.Q.BARKATH ALI JUDGE sv. A.S.No.838/1998 7