IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 AS.No. 98 of 1996() ------------------- OS.532/1990 of ADDL.SUB COURT,PARAVUR .................... APPELLANT/DEFENDANT ------------------------------------ STATE OF KERALA, REP BY DISTRICT COLLECTOR ERNAKULAM BY GOVERNMENT PLEADER RESPONDENT:/PLAINTIFF --------------------------------------- K A JOY, KOLENCHERRY HOUSE NEELESWARAM ADV. SRI SIBY MATHEW, BABU JOSEPH THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 02.08.2011 THE COURT ON 02/08/2011 DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- AS No.98 of 1996 ------------------------------------- Dated this the 2nd day of August 2011 Judgment This appeal is by the State against the judgment and decree in OS No.532/90. By the said judgment, it was held that the termination of the contract by the Superintending Engineer was illegal and the State was restrained by a perpetual injunction from taking steps to recover damages from the plaintiff. 2. The clause which found favour of the trial court was that going by the provisions of the contract, it is the Executive Engineer, who alone is competent to terminate the contract and in the case on hand, it is the Superintending Engineer, who had rescinded the contract. Finding so, it was held that the termination is illegal. The trial court, in coming to the conclusion, relied on the decision in K.Abdul Khader v. State (1993(2) KLJ 977) wherein the issue was answered in favour of the contractor in that case. The decision in the said case was the subject AS 98/96 2 matter of appeal before this court in AFA No.19/94. The decision in AFA No.19/94 is reported in State of Kerala v. Abdul Khader (2010(3) KLT 783) wherein a Division Bench of this Court reversed the decision in Abdul Khader v. State (supra) and held that the Superintending Engineer is competent to terminate the contract. 3. The learned counsel for the respondent pointed out that it is only the Executive Engineer, who can terminate the contract and not the Superintending Engineer. The Superintending Engineer has only the power to ratify and not to rescind the contract. 4. It is only to be said that the arguments of the learned counsel for the respondent are without any basis in the light of the decision in State of Kerala v. Abdul Khader (2010(3) KLT 783) wherein it was held as follows : “Contract entered into by the Government of Kerala through the Superintending Engineer, PWD, though the terms clothe the Executive AS 98/96 3 Engineer with the power to rescind the contract, it is within the power of Superintending Engineer to rescind the contract and the Executive Engineer acts merely as his delegate.” 5. In the light of the principle contained in the above decision, the judgment and decree of the trial court cannot stand and it has necessarily to be reversed. Accordingly, this appeal is allowed. The judgment and decree of the trial court are set aside and the suit stands dismissed. There will be no order as to costs. P.Bhavadasan, Judge sta AS 98/96 4