IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 AS.No. 621 of 2001(E) --------------------- OS.930/1995 of ADDL.SUB COURT, PALAKKAD .................... APPELLANT(S): DEFENDANT: --------------------------------------------- THE KANNADI GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, KANNADI P.O., PALLAKKAD. BY ADVS. SRI.V.CHITAMBARESH, SRI.KRISHNA PRASAD. S. RESPONDENT(S): PLAINTIFF: --------------------------------------------- MANIKANDAN, D/O.DAMODARAN NAIR, RESIDING AT KANJIKODE, PUDUSSERY AMSOM, PALAKKAD. BY ADVS. SRI.SAJAN VARGHEESE K., SRI.JEBY JACOB. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 21/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J ----------------------------------- A.S. NO. 621 OF 2001 ------------------------------------------ Dated this the 21st day of June, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judg's Court, Palakkad in O.S.930 of 1995. The suit is one for realisation of amount and the plaintiff is granted a decree for realisation of Rs.10,675/- with 9% interest from 29.6.1993 till realisation. It is against that decision the Panchayat has come up an appeal. Heard the learned counsel for the appellant as well as the respondent. It is the case of the plaintiff that he had bid in auction the right to take sand from the Kannadi river in Palakkad District for the period commencing from 1.4.1993 to 31.3.1994 for a total consideration of Rs.36,350/-. As per the terms of the agreement he had paid Rs.15,675/-. Since the agreement was executed only on 17.5.1993 he was permitted to take sand only from that date. On 29.6.1993 there was a Governmental notification whereby with respect to 9 major rivers the right to auction or control of the sand mining vested in the Government taking it away from the Panchayat. So it is contended that by virtue of the Governmental order dated 29.6.1993 there had been a frustration of the contract A.S. NO. 621 OF 2001 2 which disabled the plaintiff to take sand from the river. According to him, he had only taken sand worth Rs.5,000/- during that period. It is also his contention that he had spent about Rs.50,000/- for constructing a shed and also taken money on 24% interest and therefore, he has claimed the amount in the suit. On the contra, the Panchayat would contended that he was taking sand from 1.4.1993 itself and there was no prevention from the authority concerned from taking sand even from 29.6.1993 and therefore, the plaintiff is not entitled to get any relief. The court on analysis of the evidence granted a decree for the amount of Rs.15,675/- less Rs.5,000/- which has been adjusted towards the cost of the sand removed from the river. Now the two points that may arise for consideration are one is regarding the date from which the plaintiff had started taking sand and secondly, whether there was any frustration of the contract as alleged in the plaint. So far as, the first point is considered the Clerk of the Panchayat as DW1, had deposed before the court that the normal practice is to permit person to take sand only after execution of the agreement. When it is the normal practice, I do not think any chance was there in this case to take sand from 1.4.1993. So as contended and spoken to by the plaintiff and the normal practice spoken to by DW1sand would have been taken only from 17.5.1993. A.S. NO. 621 OF 2001 3 2. The next question is regarding the frustration of the contract. Admittedly, a notification has come to effect that the right to mine the sand from the 9 major rivers including Bharatha puzha was ordered by the Government w.e.f. 29.6.1993. The Thahasildar has been examined in this case as PW2. He has spoken that there was a notification and as per the notification Kannadi Puzha which forms part of the Bharathapuzha was also under the control of the Government and the Panchayath did not have any right after 29.6.1993. The fact that the Yakkarakadavu in Kannadi Puzha is covered by the Government notification can be seen from the subsequent conduct that the Thahasildar has bid the right to take sand in auction during the period of 1994-1995. It is evidenced by Ext.X1. So it has to be held that the notification dated 29.6.1993 had been applicable to Yakkarakadavu also. PW2 had deposed that when that notification has come into the effect thereafter, the Revenue Authorities had not permitted anybody to take sand from the said Kadavu. So it is proved that the plaintiff was in a position to take sand only from 17.5.1993 to 29.6.1993. The contention of the plaintiff that he had constructed a shed for Rs.50,000/- and had taken loan at 24% interest etc. are not supported by materials for evidence. When it is so, it can be seen that the deposit of A.S. NO. 621 OF 2001 4 Rs.15,675/- is with the Panchayat. The plaintiff had removed approximately sand worth Rs.5,000/- and the balance due to the plaintiff would be Rs.10,675/-. The Panchayat has also not produced any evidence that sand worth more than 5,000/- is taken from the river. So the plaintiff is entitled at least the refund of advance amount which he has paid less Rs.5,000/-. The court has only passed a decree for that amount and it does not call any interference. Being Governmental transaction and as the Governmental order has intervened which has frustrated the contract, I feel that 9% interest can be granted from 29.6.1993 till the decree date and thereafter at 6% interest till realisation. In the result, the appeal is disposed confirming the judgment and decree of the trial court but modifying the rate of interest at 9% from 29.6.1993 till the date of decree and 6% from the date of decree till realisation. Parties are directed to bear their respective costs. M.N. KRISHNAN, JUDGE. pm