IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 AS.No. 704 of 1999(A) --------------------- OSMV.135/1995 of SUB COURT,KOTTARAKKARA .................... APPELLANT(S): -------------- M/S.REHABILITATION PLANTATIONS LIMITED, PUNALUR REPRESENTED BY ITS MANAGING DIRECTOR. BY ADV. SRI.M.C.JOHN RESPONDENT(S): --------------- V. MUHAMMED KHAN, CONTRACTOR, PEZHUMVILA VEEDU, EDAMON MURI AND VILLAGE, PATHANAPURAM TALUK. ADV. SRI.T.M.ABDUL LATHEEF THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 30/07/2009, THE COURT ON 05/08/2009 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - A.S.No. 704 of 1999 - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of August, 2009 JUDGMENT This appeal is filed by the plaintiff in O.S.No.135 of 1995 on the file of the Sub Court, Kottarakkara. The respondent herein is the defendant in that suit. O.S. 135 of 1995 is a suit for compensation. 2. The facts of the case are briefly as follows: The appellant Rehabilitation Plantations limited, Punalur represented by its Secretary by notice dated 29-4-1992 invited tenders for executing the work “maintenance and patch repairs of the road from factory site to ext end, CH. OM to 4800 M and portion of link road from CH 1675 M to 2300 M”. The probable amount of contract was Rs.1,24,700/-. The respondent/defendant quoted the lowest price which was 5.3% less than the probable amount of contract. It was inclusive of the cost of materials to be supplied by the appellant. On 1-6-92 the A.S . NO: 704 OF 1999 :2: Chief Construction Engineer of the appellant accepted the tender of the respondent and by letter of the same date the appellant communicated acceptance to the respondent and by that letter the appellant called upon the respondent to execute a formal agreement within 7 days and to deposit a security deposit of Rs.6,000/- 3. On 23-6-92, the respondent deposited security amount of Rs.6,000/- and on 26-6-92 he executed the formal agreement. As per the agreement, the work had to be executed before 30-6-92 and the price of work was Rs.1,18,091/- The appellant company engaged the Kerala Industrial and Technical Consultancy Organisation for supervising the work. The respondent did not turn up for executing the work. By letter dated 19-9-1992 the appellant demanded the respondent to execute the work on 1-10-92. The respondent replied the letter stating that due to rain, he could not execute the work and he undertook to execute the work before 30-12-92. He requested for extending the period of completion to 30-12-92. But even A.S . NO: 704 OF 1999 :3: after that he died not turn up for executing the work. So the appellant decided to execute the work at the risk and cost of the respondent. By letter dated 4.3.93 the appellant informed the respondent about this. Due to the delay the quantity of work increased. By notice dated 30.3.93 the plaintiff invited tenders for executing the work and some other items of work. On 23.4.93 the appellant accepted the lowest tender by one Achankunju. Achankunju completed the work on 20.2.94. 4. By committing default in executing the work the respondent committed breach of contract. Because of that the appellant suffered a loss of Rs.43,714.97 as additional amount paid to Achankunju. The appellant also paid Rs.3,895/- as advertisement charge, for re-tender notification. The details of the amounts have been mentioned in the plaint. Thus the appellant suffered a total of Rs.46,610/- due to the breach of contract by the respondent. By notice dt.26.4.95 the appellant demanded the above amount as compensation from the respondent. The respondent did not pay the amount. On 7.10.93 A.S . NO: 704 OF 1999 :4: the respondent sent a notice to the appellant through his advocate and demanded the appellant to relieve him from his liabilities under the agreement and claimed compensation for loss alleged to be caused to him. The said allegations in the notice are note true. The appellant replied the said notice on 10.11.93. As the transaction is a commercial transaction the appellant is entitled to interest at 18% per annum. In these circumstances the appellant prays for a decree against the defendant with costs. 5. The respondent filed a written statement admitting the agreement. But according to him the appellant had assured him that more materials would be supplied and the appellant did not comply with such assurance and it was the appellant and not the respondent who committed breach of contract. He had promptly written to the officers of the appellant raising his grievances. Due to rain the work could not be executed. There was mistake of fact to the appellant and respondent regarding the material available for the work. The respondent sustained a loss of Rs.39,080/- due to the breach of contract by the appellant. A.S . NO: 704 OF 1999 :5: Out of the said amount Rs.6000/- is security deposit and Rs.1,080/- is interest to the security deposit till the date of suit and the balance amount is the amount paid by the respondent as advance for materials and compensation for breach of contract. The respondent raised a counter claim for the realisation of the above amount. 6. In the sub Court Pws. 1 and 2 and Dws 1 and 2 were examined. Exts.A1 to 14 and B1 to B17 were marked. The learned Sub Judge, on considering the evidence decreed the suit in part without cost allowing the plaintiff to appropriate Rs.6,000/- deposited by the defendant as security deposit with the plaintiff. Against that judgment and decree the plaintiff filed this appeal. 7. Heard the learned counsel for the appellant. 8. The learned counsel for the appellant submitted that the learned Sub Judge found that the defendant committed breach of contract and as such the learned Judge ought to have decreed the suit in full. A.S . NO: 704 OF 1999 :6: 9. Admittedly the tender of the defendant was accepted by the plaintiff and the acceptance was communicated to the defendant and the defendant deposited Rs.6,000/- with the plaintiff as security and executed Ext.A1 agreement on 26.6.1992 undertaking to complete the work on 30.6.1992. Ext.A2 is the letter dt. 5.6.1992 written by the defendant to the plaintiff company stating that the quantity of materials provided in the tender is not sufficient for completing the work and that the condition of the road is becoming worse due to heavy rains and continuous plying of tractors and requested the plaintiff to give sanction of additional quantity of materials and also requested to extend the period of contract upto 15.9.1992 as the work could not be started during the rainy season. Ext.A7 is the letter dt.20.5.1993 sent by the defendant to the plaintiff, in which it is stated that after giving ext.A2 letter the Field Officers of the plaintiff told the defendant that the work need be started only after monsoon season and with regard to the extra quantity of materials the Field Officer of the plaintiff company told that A.S . NO: 704 OF 1999 :7: the matter will be taken up with the Chief Construction Engineer and appropriate instruction would be issued after necessary consultation. In Ext.A7 it is further stated that the defendant made preliminary arrangements to commence the work and started collection of materials , but almost all the materials were washed off during flash flood of 10/92 and 11/92. PW1 admits that there was flood in November, 1992. In Ext.A7 it is stated that the work was re-arranged with a PAC of Rs.4,20,000/- against the original PAC of Rs. 1,24,700/- and that the re-tender was arranged after changing the nature and scope of the work and after the expiry of about 10 months of the original contract period. 10. DW1 deposed that the roads mentioned in the re- tender is not the road which was included in the contract with the defendant. DW1 deposed that he submitted the tender on the basis of the condition of the road at that time and subsequently due to the heavy rain and plying of tractors, lorry, jeep etc., the condition of the road became worse. PW1 admits that the A.S . NO: 704 OF 1999 :8: plaintiff has not sent any reply to Ext.A2 letter sent by the defendant. PW1 admits that in the re-tender there was additional work. From the evidence on records, it is clear that the defendant could not complete the work within the stipulated period due to the heavy rain, flood and non-supply of additional materials. Therefore, it cannot be said that the defendant committed breach of contract. The evidence on record further shows in re-tender additional work was included and the condition of the road became more worse due to heavy rain and flood. 11. Therefore, I am of the view that the learned Sub Judge is perfectly justified in disallowing the claim of Rs.47,610/- towards compensation for re-tendering of the work for a higher amount. Considering the facts and circumstances of the case, I am of the view that no inference is required with the decision of the learned Sub Judge in allowing the plaintiff to appropriate Rs.6,000/- deposited by the defendant as security. The result is that this appeal has to be dismissed, as it is without A.S . NO: 704 OF 1999 :9: any merits. Accordingly, this appeal is dismissed. The judgment and decree in O.S. 135 of 1995 on the file of Sub Court, Kottarakkara is confirmed. Parties are directed to suffer their respective costs in this appeal. (M.L. JOSEPH FRANCIS) Judge dl