IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 AS.No. 669 of 1999() -------------------- OS.169/1995 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT/PLAINTIFF: ------------------ T.K. SIMON, S/O.KUNJUVAREED, AGED 66 YEARS, PROPRIETOR, KERALA INDUSTRIES, KODENKANDATH, KALAMASSERY, ERNAKULAM. BY ADV. SRI.RAJEEV V.KURUP RESPONDENT/DEFENDANT: -------------------- OIL PALM INDIA LTD., A COMPANY WITH ITS REGISTERED OFFICE AT VETTEEL ESTATE, MUTTAMBALAM, KOTTAYAM, REPRESENTED BY ITS MANAGING DIRECTOR. ADV. SRI.JOSEPH MARKOSE, SENIOR ADVOCATE SRI.A.KUMAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 16/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. -------------------------- A.S.NO.669 OF 1999 -------------------------- DATED THIS THE 16TH DAY OF MARCH, 2010 JUDGMENT Plaintiff in O.S.No.169/95 on the file of the Principal Sub Court, Kottayam is the appellant. The suit was filed for realisation of Rs.38,372.34ps. with future interest at 18% per annum on the principal amount from the defendant. The trial court dismissed the suit. Hence this appeal. The parties hereinafter are referred to as the plaintiff and defendant as arrayed in the suit. 2. The plaintiff's case is that he was entrusted with the work of thermal insulation of pipe for the defendant's factory in Kollam District. The defendant is the Oil Palm India Ltd., a Government of Kerala Enterprises. The plaintiff had quoted only for thermal insulation using mineral wool as per IS 7413/81. But the Project Engineer of the defendant company insisted for finishing with aluminium sheets. The plaintiff agreed -2- A.S.No.669/99 to do so only on condition of paying extra payment for using aluminium sheet. The plaintiff completed the work by using aluminium sheet and claimed Rs.19,062.34ps. The further case of the plaintiff is that he offered to do the work on condition that the tax payable for the materials used by him shall be paid extra. According to him, he has to spend Rs.12,890/- for purchase of additional materials. 3. The defendant company contended that since the parties had performed their respective obligations under the contract, the contract stood discharged and that the plaintiff is estopped from claiming any amount. It is also stated in the written statement that the work was completed by the plaintiff as per the tender specifications and that the amount quoted for the work includes protective finishing using aluminium sheet and not as stated by the plaintiff. According to the defendant, the protective finishing using aluminium sheet is not an extra work. One of the finishing materials, which is specified in Ext.A10 is '' -3- A.S.No.669/99 Indian Standard Code of Practice for Industrial Application and Finishing of Thermal insulating materials at temperatures above 40 oC and upto 700 oC ''. It is also stated that the plaintiff is not entitled to claim any amount under the heads mentioned in the plaint, that the Company had acted only according to the terms of the contract and they prayed for dismissal of the suit. 4. The plaintiff produced Ext.A1 work order dated 29/9/1992. In Ext.A1 the company informed the plaintiff that 'we have pleasure in placing an order on you for the installation of piping, tanks and pumps at Chithara Factory near Anchal in Kollam District on the following terms and conditions.' Ext.A1 also contains the nature of work to be carried out and completed. The amount payable to the plaintiff is stated in schedule I, II and III attached to the work order Ext.A1. It is further stated that the price quoted is inclusive of all expenses, that the prices shall be confirmed and no explanation shall be permitted during the period of contract. Clause VIII of Ext.A1 stipulates that the -4- A.S.No.669/99 contract work shall be of best quality and workmanship according to the latest engineering practices and that in case of poor workmanship noticed, such work will have to be repaired/ replaced/modified at the cost and risk of the contractor. Clause 8 of the page under the head “Scope of work” in Ext.A1 stipulates that the insulation for steam and as applicable for oil lines shall be arranged by the contractor and the work shall be carried out as per IS-7413/1981. Reference to IS-7413/81 is Ext.A10 specifications. 5. Ext.A10 is the Indian Standard code of Practice for Industrial Application and Finishing of Thermal Insulating materials at temperatures above 40°C upto 700°C. Clause 5 deals with finishing. Clause 5.2 deals with protective finishes. It narrated that the following are the commonly applied protective finishes. Clauses 5.2.1 to 5.2.6 deal with different types of protective finishings. Clause 5.2.3. is the relevant clause, which deals with 'sheet metal' -- aluminium, galvanized iron or mild -5- A.S.No.669/99 steel sheet of suitable thickness as agreed to between the purchaser and the applicator. 6. Referring to Ext.A9 responding to the invitation of tender the plaintiff quoted the rates for doing the work. In the letter attached to the rates quoted the plaintiff has stated that the tax on materials used shall be paid extra. The learned counsel for the plaintiff contended that he is entitled to realise the amount under the two heads mentioned above. According to him, finishing of insulation with aluminium is not a work covered by the tender and the work order and therefore he is entitled to realise the amount spent for purchase and installation of aluminium sheet. Since it is an extra work, payment has to be made. I have quoted the conditions relating to the materials to be applied for the insulation work by referring to Ext.P10 standard specifications. I have also quoted the relevant paragraph in Ext.A10. The materials to be applied includes the aluminium sheets as well. Therefore, the contention of the plaintiff that the -6- A.S.No.669/99 finishing work done by using aluminium sheet is an extra work and that he is entitled to extra payment cannot stand. The learned counsel for the appellant contended that the claims towards sales tax ought to have been allowed by the court below. According to him, the defendant did not deny the claims made in Ext.A9 letter at the time of accepting the tender. Therefore, the condition in Ext.A9 letter that the tax paid by him for purchase of the materials shall be paid in addition to the rate agreed. Ext.A9 is the offer letter addressed to the defendant-company. The rate quoted is attached to Ext.A9. Schedule 1,2,3 and 4 were accepted. In the covering letter it is stated that the tax if any applicable shall be paid extra. Placing reliance on Ext.A9 the learned counsel contended that his offer was accepted by the company and therefore the company is liable to pay the amount incurred by the plaintiff towards payment of tax. It is true that the plaintiff claimed extra amount towards the tax paid. Ext.A9 is dated 20/2/92. Several months later, the company issued the -7- A.S.No.669/99 work order for installation of piping, tanks and pumps. Ext.A1 is the work order dated 29/9/1992, which contains the terms and conditions, the rate quoted and accepted by the company etc. The work order also contains several paragraphs dealing with the scope of work and technical specifications, terms of payment, completion period, security deposit, quality and workmanship etc. The accepted rate for the work was mentioned in Ext.A1 work order as Schedule I, II and III. The next page is under the head “Scope of work”. Item No. 8 of the scope of work stipulates that the insulation for steam and as applicable for oil lines shall be arranged by the contractor and the work shall be carried out as per IS-7413/1981. Ext.A9 does not contain any condition in addition to the amount payable for the work, which was in detail stated in Schedule I to III, stipulating payment to the plaintiff towards the amount paid by him as tax. So long as the condition does not contain any stipulation for making additional payments other than what was agreed in -8- A.S.No.669/99 Ext.A1 work order, it is difficult to accept the case of the plaintiff that he is entitled to the amount paid by him towards sales tax for the purchase of materials used for carrying out the contract work. Ext.A1 work order contains the terms and conditions for doing the work and also the rates payable to the plaintiff. Ext.A1 shows that the plaintiff agreed the terms and conditions stipulated in Ext.A1 order and carried out the work. After finishing the work, he cannot turn round and say that the defendant company is liable to pay the amount not agreed to be paid, as per Ext.A1 work order. 7. The trial court examined the questions in the light of the oral and documentary evidence adduced by the parties. The trial court referred to various provisions in IS-7413/1981 (Ext.A10). The trial court observed that it is clear that even before the plaintiff started the work, he was aware of the fact that the finishing should be done with aluminium sheet. The trial court further observed that the defendant in Ext.A4 reply has -9- A.S.No.669/99 denied the claim of the plaintiff and directed the plaintiff to complete the work with aluminium sheet. I have already discussed and concluded that finishing of insulation with aluminium is not an extra work but the aluminium sheet has to be used for protective covering and going by the relevant clauses in Ext.A10 specifications, I agree with the finding of the trial court that the finishing of insulation with aluminium covering is not an extra item of work and the plaintiff's claim on that ground is unsustainable. I have discussed the plaintiff's claim for the amount paid as tax for purchase of the materials and took the view that the plaintiff is not entitled to claim under the head 'paid as tax'. The trial court examined the question and held that Ext.A9 is insufficient to claim any amount towards the sales tax paid by the plaintiff. The trial court also accepted the contention of the defendant-company that there was no agreement between the parties to pay any amount towards sales tax and therefore the claim of the plaintiff on this count cannot be allowed. In the -10- A.S.No.669/99 aforesaid circumstances, I do not find any reason to interfere with the findings recorded by the court below. The view taken by the court below is the correct view in the facts and circumstances of the case. In the result, the appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. kcv. -11- A.S.No.669/99 HARUN-UL-RASHID,J. -------------------------- A.S.NO.669 OF 1999 -------------------------- JUDGMENT 16TH MARCH, 2010