IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 AS.No. 94 of 1997(E) -------------------- (OS.625/1990 of I ADDL.SUB COURT,TRIVANDRUM) .................... APPELLANT/APPELLANT: ------------------------------------- V.P.BEHANAN, CONTRACTOR, RESIDING AT VALLAKKAT HOUSE, WEST VENGOLA, PERUMBAVOOR, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT. BY ADVS. SRI.T.DEVASSIA SRI.M.C.JOHN RESPONDENTS/DEFENDANTS: --------------------------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SUPERINTENDING ENGINEER, ROADS AND BRIDGES, SOUTH CIRCLE, THIRUVANANTHAPURAM. R1-2 BY GOVERNMENT PLEADER, SRI.K.B.RAMANAND THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 22/10/2010, ALONG WITH AS NO. 398 OF 1999 & OP NO. 30102 OF 1999, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ. ------------------------------------------------------------------------ AS Nos.94/97, 398/99 & OP No.30102/99 ------------------------------------------------------------------------ Dated 22nd October 2010 Judgment Thottathil.B.Radhakrishnan, J. AS Nos.94/97 & 398/99 These appeals arise from a suit for recovery of money. The plaintiff is the appellant in AS No.94/97 and the defendants (State) are the appellants in AS No.398/99. 2. The plaintiff was awarded the work of widening a road, which has a length of 3800 metres. The road was to be widened to provide double the existing width. The intended increase was by 4.5 metres. It is submitted by the plaintiff that about 30 culverts had to be made and the terrain was sloppy and that this was the only motorable road in the area and hence, there could not be a complete blockage of traffic for carrying out the work. It is further pointed out that the widening was intended to be made by utilising the land provided by the public as free surrender and no land acquisition proceedings were resorted to, however that, some of the objecting local inhabitants had even moved courts and obtained orders and all AS Nos.94/97,398/99 & OP 30102/99 2 these attributed to the delay in carrying out the work. 3. The work had a Probable Amount of Contract fixed at Rs.23,94,312/- and the plaintiff quoted at 28.90% above the P.A.C. The agreement was entered into between the parties on 19.03.1985. The period fixed was till 28.02.1987, which was extended upto 30.12.1988. Even after that, the work continued, but was not completed and the contract was terminated by the defendants on 17.04.1989. It is stated that the entire work was to be carried out in two laps by blocking the traffic for half the length of the road at one point of time. Impeaching the cancellation of the contract, the plaintiff initially sued for settlement of accounts. He, thereafter, amended the plaint as a suit for money. He claimed that he had to carry out certain rock blasting works, which were not contemplated or provided for in the estimate and therefore, that item should be treated as a separate item. He claimed an amount of Rs.2,32,443.53 under that count. He claimed an amount of Rs.1,00,000/- as additional costs of all items and quantities of work executed after 28.02.1987, which was the original date fixed for completion of the contract as regards the works AS Nos.94/97,398/99 & OP 30102/99 3 covered by the agreement, i.e., excluding the claim made towards rock blasting. He pleaded that the extension of the period of the agreement was not on a ground attributable to him only and therefore, he was entitled to refund of Rs.1,250/- deducted by the defendants as fine for the enlargement of time. He claimed an amount of Rs.25,000/- towards prevented gains and sought for recovery of Rs.1 lakh retained as security with interest accrued thereon. He claimed an amount of Rs.3,00,350/- as amounts due in terms of the final bill. On the whole, he claimed an amount of Rs.8,18,195/-. 4. The plea of the plaintiff that the work was delayed on account of laches and lapses on the part of the departmental officials, was contested by the defendants. They accused the plaintiff of having not carried out and completed the work in time and alleged that there were reasonable grounds on which the contract was terminated. They accordingly refuted the plaint claim. 5. The court below decreed the return of amounts retained as security and passed a decree on interest for such amount. The court below also granted amounts found due by it AS Nos.94/97,398/99 & OP 30102/99 4 on the basis of the agreement between the parties. It overruled the defendants' plea regarding some of the rejections effected and therefore, granted a decree for recovery of such amounts also. As regards the amounts claimed towards rock blasting, which is not an item covered by the estimate of the contract, the court below held that the plaintiff was entitled to payment for rock blasting fixed at 300 M3 and on the basis of that, an amount of Rs.50,000/- was granted by the court below. 6. Before us, the learned counsel for the plaintiff argued that the contract was awarded on the basis of tenders invited, depending on the 1982 schedule of rates and after the contract was awarded and the agreement was entered into on 19.03.1983, the P.W.D. rates were revised by 25% escalation in 1986, i.e., even before the period originally fixed for the contract ended. He further argued that the court below erroneously refused to grant the amount of Rs.1 lakh claimed for the additional work done after 28.02.1987 and illegally confined that claim only to Rs.10,000/-. The court below ought to have granted return of Rs.1,250/-, the fine amount towards enlargement of time, it is contended. AS Nos.94/97,398/99 & OP 30102/99 5 7. The learned Government Pleader argued that the amounts granted are excessive and the court below acted illegally even in entering the calculations leading to excessive determination of the total outstandings. He argued that there is no foundation for the court below to have granted even Rs.10,000/- for the so called additional work. 8. The fact of the matter remains that the contract work was not completed even after two years from the initial period fixed for the contract. The agreement was entered into on 19.03.1985. The period fixed was to end on 28.02.1987. That was extended upto 30.12.1988. The work dragged even thereafter and it was only on 17.04.1989 that the work was terminated. This means that even after carrying on with the work for double the period originally envisaged, the work was not completed . 9. We need not look into the disputes between the parties regarding the percentage of work that was completed because the fact of the matter remains that the claims depended entirely on the works reflected by the measurement books except as regards the work of rock blasting, which was AS Nos.94/97,398/99 & OP 30102/99 6 not covered by the original estimate and the agreement between the parties. 10. The contention of the plaintiff about the sloppy terrain and the traffic problems as also the need to put up about 30 culverts, is really of no value in support of his case because the contract is taken after appropriate site inspection and the intending contractor is expected of making himself conversant with the details of the site and it has to be expected that a reasonably prudent contractor would have noticed such matters relevant for the geographical situation in which the contract work of the nature in hand is to be carried out. As regards the argument on behalf of the plaintiff regarding the escalation of rates from 1982 P.W.D. rates to the 1986 rates and the impact that it could have made on the fixation of the Probable Amount of Contract and also the agreed rate as far as the contract in hand is concerned, we may say that the P.A.C. would have been fixed on the basis of the 1982 schedule of rates. The plaintiff quoted at 28.90% over and above the P.A.C. The escalation of the PWD rates from 1982 to 1986 in the revision was only 25%. This means that even after the revision, the AS Nos.94/97,398/99 & OP 30102/99 7 plaintiff's quotation stood at 3.90% over and above the 1986 rates. Let us assume that there is 10% profit component in the contract. With that in view, we have necessarily to take it that the work has been dragged and yet not completed. Therefore, the escalation in the PWD rates does not have any impact on the amounts that has to be fixed with the aforesaid. We find that the rock blasting shown to have been done over and above the agreed items has been appropriately quantified by a method acceptable on judicial review and the same has been fixed by the court below at Rs.50,000/- for 300 M3. There is no material on record, indicating in any manner that the said amount is not reasonable. We also do not find any ground on which the additional work in relation to the agreed items has been proved in any manner, as work done to generate Rs.1 lakh, additional payment is claimed. The so called additional work is nothing, but the work carried out during the extended period of the contract. So, for completion of the agreed contract, no additional work that is to say, additional item, has been done. There is also no case that any additional quantity of agreed items have been done. In this view of the matter also, AS Nos.94/97,398/99 & OP 30102/99 8 there is no room for any further escalation in favour of the plaintiff. On the totality of the facts and circumstances of the case, we are satisfied that the decree passed by the court below is well balanced and does not warrant any interference in the appeal filed by the State. For the aforesaid reasons, these appeals fail and they are accordingly dismissed. The court below had granted 12% interest and with the passage of time, the accruals on the amounts yet to be satisfied would also repay. The parties will bear their respective costs. OP No.30102/99 11. This original petition is filed seeking directions in relation to an execution petition. We have, today, disposed of two first appeals arising from the decree which is referred to in this original petition. With the passage of time, nothing survives to be considered in this original petition and it is accordingly closed. THOTTATHIL.B.RADHAKRISHNAN, JUDGE P.BHAVADASAN, JUDGE sta AS Nos.94/97,398/99 & OP 30102/99 9 AS Nos.94/97,398/99 & OP 30102/99 10