IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 6TH JULY 2010 / 15TH ASHADHA 1932 AS.No. 315 of 1996(B) ------------------------------- (OS.NO.133/1985 OF I ADDL.SUB COURT,THIRUVANANTHAPURAM) .................... APPELLANTS/DEFENDANTS: ------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVT. OF KERALA, THIRUVANANTHAPURAM. 2. THE SUPERINTENDING ENGINEER, IRRIGATION SOUTH CIRCLE, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER. RESPONDENT/PLAINTIFF: -------------------------------------- K. OMANA, W/O. G. BALAN, CONTRACTOR, KEESHATHIL HOUSE, CHERUNNIYOOR.P.O., VARKALA, THIRUVANANTHAPURAM. BY ADVS. SRI.K.P.VIJAYAN, SMT.P.F.ROSY, SMT.C.B.SUMA DEVI, SRI.SURESH SAMUEL, SRI.V.M.SYAM KUMAR, SMT.KRIPA ELIZABETH MATHEWS. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 06/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = A.S.No.315 of 1996-B = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 6th day of July, 2010. Judgment Thottathil B.Radhakrishnan, J. The defendants, the State of Kerala and the Superintending Engineer, Irrigation South Circle, Thiruvananthapuram appeal against the decree granted by the court below to a contractor, who was entrusted with the work of "F.C. works constructing a cut at Onambalam for diverting flood water from the Chittumalachira in East Kallada Panchayat (balance work)". Work was awarded to the plaintiff on 22.12.1979. Repelling the claim of the plaintiff for amounts which, according to her, were incurred for the preparation of appropriate mould for an arch design, the court below confined the reliefs it granted to be for amounts due as per the final AS315/1996 -: 2 :- bill and security deposit as also amounts spent by her towards construction of a water tank and a shed. It was found that she did not carry out the work as agreed. The termination of the contract was found to be unlawful in as much as the termination was effected by the Superintending Engineer, though the agreement provided that the Executive Engineer could rescind the agreement. In doing so, the court below followed the decision of this Court in K.Abdulkhader v. State, 1993 (2) KLJ 977 which held that in a contract where the Executive Engineer is authorised to terminate or rescind the contract, agreement authority, the Superintending Engineer did not have the authority to rescind or terminate the contract. We have today, for reasons stated in judgment in A.F.A.19/1994, reversed that view. All that remains in this appeal by the State is the correctness of the decree ordering payment of money found due as noted above. The defendants have neither pleaded nor proved that the work was re-arranged. The Government did not suffer any AS315/1996 -: 3 :- loss on account of the re-arrangement of the work. Obviously, therefore, the impugned decree cannot be criticized as unsustainable on facts. Some amounts granted towards the construction of the water tank and the shed are so minimal that they do not warrant any interference, having regard to the totality of the materials on record, including the quality of Ext.C1 commissioner's report. In the result, subject to what is stated above regarding the applicability of the ratio in K.Abdulkhader's case, this appeal is dismissed with costs. Thottathil B.Radhakrishnan, Judge. S.S.Satheesachandran, Judge. Sha/1507 AS315/1996 -: 4 :- Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = A.S.315 of 1996-B = = = = = = = = = = = = = = = = = Judgment 6th July, 2010.