IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 SA.No. 399 of 1996() -------------------- AS.41/1993 of SUB COURT,KOTTARAKKARA OS.141/1988 of MUNSIFF COURT, KOTTARAKKARA .................... APPELLANT(S)/DEFENDANTS: ------------------------------------------ 1. STATE OF KERALA REPRESENTED BY THE SPECIAL SECRETARY TO GOVERNMENT, PUBLIC WORKS & IRRIGATION DEPARTMENT, THIRUVANANTHAPURM. 2. THE SUPERINTENDING ENGINEER, K.I.P. (L.B.) CIRCLE, KOTTARAKKARA. 3. THE EXECUTIVE ENGINEER, K.I.P. DIVISION, NO.IV, KUNDARA. 4. SUPERINTENDING ENGINEER, ROADS & BUILDINGS, SOUTH CIRCLE, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. LAXMI NARAYANAN. RESPONDENT(S)RESPONDENTS/PLAINTIFFS: -------------------------------------------------------------- 1. SARAMMA CHERIYAN, W/O. DECEASED K.P. CHERIYAN, 44 YEARS, KADALIKKATTIL VEDU, MEKKADAMPU P.O., MOOVATTUPUZHA TALUK. 2. BINO K. CHERIYAN, S/O. DO. DO. 3. BIJU K. CHERIYAN, S/O. DO. DO. 4. MATHEW K. CHERIYAN, S/O. DO. AGED 19 YEARS, DO. ADV. SRI.K.BABU THOMAS SMT.MARYKUTTY BABU THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2009, THE COURT ON 29/06/2009 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No.399 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of June, 2009. JUDGMENT The appeal is directed against the appellate decree in A.S. No.41 of 1993 on the file of the Sub Court, Kottarakkara. A.S. 41 of 1993, which arose from O.S. 141 of 1988 before the Munsiff's Court, Kottarakkara. The parties and facts are hereinafter referred to as they were available before the trial court. 2. The plaintiff was a public works contractor, who tendered for the work for Kallada Irrigation and Tree Crop Project and was chosen. He executed the necessary agreements. After depositing the security deposit as envisaged under the agreement, he availed of plant and machinery advance and purchased various articles for his work. According to the plaintiff due to the non-co-operation of the department and due to their laches, he was unable to complete the work. The contract was unilaterally terminated by the S.A. 399/1996. 2 defendants and he has incurred heavy loss. The security amount was forfeited and the amount for the work done by him also remained unpaid. Even assuming that any amount is due from him to the State, that has to be adjudicated and the sum has to be ascertained. In the meanwhile, recovery steps have been initiated against the plaintiff for the amount claimed to be due to defendants 1 to 3. According to the plaintiff that is unjust and illegal because unless his claims are settled, which are pending in an arbitration proceedings, the amounts alleged to be due to defendants 1 to 3 cannot be recovered from him. He therefore laid a suit for injunction. 3. Defendants 1 to 3 filed a joint written statement. According to them the suit is not maintainable. They admit almost all the allegations, except one regarding breach of contract. There were no laches or default on the part of these defendants and the work could not be completed due to the fault of the plaintiff himself. He had availed of the mobilisation advance and as per the agreement the State can direct the plaintiff to surrender the S.A. 399/1996. 3 vehicles and machineries. The contract with the plaintiff was terminated in accordance with law and in terms of the agreement. These defendants claimed that Rs.3,09,591/- with 9.75% interest is due to the Government from the plaintiff. More amounts are due from the plaintiff. The proceedings taken by these defendants are strictly in accordance with law and that the plaintiff can have no grievance against the steps taken by them. They therefore prayed for a dismissal of the suit. 4. The fourth defendant filed a written statement supporting defendants 1 to 3. 5. The trial court raised necessary issues. From the side of the plaintiff P.W.1 was examined and Ext.A1 was marked. Defendants had D.W.1 examined and Exts. B1 to B8 marked. 6. The trial court took the view that Exts.B1 and B2 are independent of Ext.B7 and defendants are entitled to enforce the terms under Exts.B1 and B2. Holding so, the suit was dismissed. The plaintiff took up the matter in appeal as A.S. 41 of 1993. The appellate court however differed in its view and held that Exts.B1 S.A. 399/1996. 4 and B2 are inter linked with Ext.B7 and the trial court was not justified in holding that Exts.B1 and B2 are independent contracts. The first appellate court also went on to hold that unless the dispute between the parties are settled, and also since arbitration proceedings have been resorted to, recovery of amounts initiated by the defendants shall be kept in abeyance. It is against the said appellate decree that the Second Appeal has been filed. 7. Learned Government Pleader appearing for the State points out that the first appellate court was wrong in reversing the decree of the trial court. A reading of Exts.B1 and B2, according to him, will show that they are independent of Ext.B7. It is also pointed out that the plaintiff had moved O.P.(Arbn.) 10 of 1990 before the Sub Court, Kottarakkara with a similar prayer and his prayer was rejected. It was asserted that defendants 1 to 3 are entitled to proceed against the plaintiff for recovery of amounts due to him based on Exts.B1 and B2. 8. Learned counsel appearing for the contesting respondents on the other hand pointed out that the first appellate S.A. 399/1996. 5 court has considered the matter in detail and has come to the conclusion that Exts.B1 and B2 cannot be treated as independent of Ext.B7. Even otherwise, according to learned counsel, it is quite unjust that when a claim for money is pending adjudication by an Arbitrator, the defendants on a self assessed amount can proceed to recover the amount from the plaintiff. Learned counsel submits that even if defendants 1 to 3 are entitled to any amount, it will have to be quantified by an independent authority. Viewed from that angle also, according to learned counsel, the appellate court judgment and decree do not call for any interference. 9. Documents were not available for perusal by this court. However, most of the facts raised are admitted. There is no dispute regarding the fact that the tender offered by the plaintiff for execution of the work Kallada Irrigation and Tree Crop Development Project was accepted. Ext.B7 agreement was also executed by him. The estimated cost of contract was Rs.53,53,370/-. The plaintiff availed of mobilisation advance and purchased articles for the purpose of work. By order dated S.A. 399/1996. 6 1.2.1988 the contract of the petitioner was terminated. He was directed to surrender the articles and vehicles. Thereafter revenue recovery proceedings were initiated against the plaintiff. The case of the plaintiff is that amounts are due from the department to him for the work done by him and unless that is quantified and paid, recovery cannot be resorted to. 10. From the records, it is seen that Ext.A1 was a claim preferred by the plaintiff in terms of the agreement. The lower appellate court has found that the issues to be resolved in this suit is pending consideration before the Arbitrator. In O.P. No.10 of 1990 between the parties, the matter has been sent for arbitration. 11. It must be noticed that Exts.B1 and B2 were executed and facility availed of pursuant to Ext.B7 agreement. Even though a claim was made for loss suffered by the Government for re-arranging the work, it is not discernible as to how the amount was quantified. As rightly pointed out by the learned counsel for the plaintiff, the defendants cannot simply impose an amount on the plaintiff determined at their volition. At S.A. 399/1996. 7 any rate, the court below found that it will not be just and proper and in accordance with law to permit the defendants to recover the amount due to them without adjudicating the issues involved in the matter, which are pending consideration before the Arbitrator. The lower appellate court has considered all the matters in great detail. Learned counsel for the appellant was unable to show any error of facts or in law. The result is that this appeal is without merit and it is liable to be dismissed. Appeal stands dismissed. However, there will be no order as to costs. P. BHAVADASAN, JUDGE sb. S.A. 399/1996. 8 P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No.399 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 29.06.2009.