IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 AS.No. 577 of 2000(C) -------------------------------- OS.167/1992 of SUB COURT, MAVELIKKARA .................... APPELLANT(S): PLAINTIFF: ----------------------------------------- T.UNNIKRISHNAN NAIR, PLAVELIL THEKKEDATHU, PRAYAR SOUTH, ALUMPEEDIKA, OACHIRA. BY ADVS. SRI.B.KRISHNA MANI SRI.PRINCE THOMAS GEORGE RESPONDENT(S): DEFENDANTS: ----------------------------------------------- 1 STATE OF KERALA REP.BY CHIEF SECRETARY, GOVT. OF KERALA, THIRUVANANTHAPURAM. 2. THE EXECUTIVE ENGINEER, P.I.P. DIVISION, CHENGANNUR. 3. THE TAHSILDAR, KARTHIKAPPALLY. 4. THE VILLAGE OFFICER, KLAPPANA VILLAGE. R1 TO R4 BY SR. GOVERNMENT PLEADER SRI.P.K.BABU THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 28/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss ORDER ON CMP. NO.5364/2000 & 5434/2000 IN AS. NO.577/2000 DISMISSED 28/10/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 577 OF 2000 = = = = = = = = = = = = = = = Dated this the 28th day of October, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Mavellikara in O.S.167/92. The suit is one for a declaration, consequential injunction and for recovery of money. As many as eight prayers are incorporated in the plaint of which prayer 'G' is withdrawn. The trial court found that the plaintiff is not entitled to the relief and hence dismissed the suit. It is against that decision the plaintiff has come up in appeal. 2. Heard the learned counsel for the appellant as well as the respondents. The brief facts necessary for the disposal of the appeal A.S. 577 OF 2000 -2- are stated as follows. The plaintiff was entrusted with the work of formation of a canal of 805 mtrs. and it was given in pursuance of a agreement dated 30.3.84. According to the plaintiff he had made a deposit of Rs.8,100/- for the due performance of the contract. It is also stated that there was delay caused by the Government in supplying the materials and further that he had also suffered a loss of Rs.10,000/- due to the loss of materials stored at the site and therefore he had claimed Rs.15,000/- as damages. He had also claimed Rs.4,045/- being the retention amount retained when the bill was paid and another Rs.5,000/- being the value of work done by the plaintiff not included in the part bill. The sum and substance of the case of the plaintiff is that though he was ready to perform his part of the A.S. 577 OF 2000 -3- contract there was delay on the part of the Government in handing over the site, in supplying materials, in taking the levels and proper payment and so he could not complete the work on account of the laches of the Government Department and hence he is entitled to claim damages. 3. On the other hand defendants would contend that the plaintiff is a defaulter from day first onwards. Though his tender was accepted in 1983 he came forward to execute the agreement only on 30.3.84 even though the Department was ready to hand over possession on the same day he took possession of the site only on 10.5.84. The initial levels were approved by the Government Officers on 17.5.84 but in spite of all these things the plaintiff did not proceed with the work. It is also contended A.S. 577 OF 2000 -4- that materials were furnished as requested by him and the responsibility of preserving the materials if any stored was on him and the Government is not liable for any loss sustained on account of that. Due to the persistent default and breach committed by the plaintiff the Government on various accounts considering his difficulties revoked the cancellation and permitted him to continue the work and ultimately in 1990 though time was granted he could not complete the work and therefore on 17.8.90 the work was terminated at the risk and costs of the plaintiff. It is also contended the Government is entitled to realise the amount for the loss sustained by it and so the plaintiff is not entitled to the amount claimed in the suit. A.S. 577 OF 2000 -5- 4. The trial court found that the plaintiff had not commenced the work or satisfactorily progressed with the work and that he has committed the breach. So far as the delay in supplying of the materials and the loss of costs of materials the Court found that there was no request or no evidence tendered by the plaintiff regarding the non supply of materials by the department to him and therefore his story of non-supply of materials was not found in his favour. 5. So far as the alleged loss of materials stored, the Court held that there is no evidence to show that he had stored the materials and even if it is stored, by virtue of the provisions of the contract the sole responsibility is on the contractor to keep the tools in tact and the materials to be protected A.S. 577 OF 2000 -6- and therefore the Government Department is not liable for the said damages. A perusal would show that the story of keeping the materials cannot be true for the reason that it is the case of the plaintiff that though the level work was done during June 1984 approval was got only in 1985. Unless it is done the work could not be progressed. Therefore the very contention of the plaintiff that he had preserved the materials cannot be accepted without a pinch of salt. Therefore the story of Rs.10,000/- as loss of materials cannot be accepted. 6. Now it can be seen that the Court below had approximately considered the amount involved in the transactions. It is seen that for the work already executed by the plaintiff a bill was prepared for an amount of Rs.40,445/- out of this Rs.21,862/- was paid to the plaintiff after A.S. 577 OF 2000 -7- deducting Rs.4,045/- as retention amount, Rs.13,629/- being cost of materials, Rs.100/- as revenue recovery and Rs.809/- as income tax. The Court also found that the Government was claiming an amount of Rs.72,775/- due from the plaintiff towards cost of materials including unreturned materials and recoveries including penalties, sales tax etc. The Court also referred that 200 bags of cement were supplied to him on 30.10.85 and that he had collected it from the store. It is also come out in evidence that there was a police case against him alleging that he has not brought that cement to the site and the cross examination of the plaintiff would reveal that at the time of issuance of the final notice 399 bags of cement and 815 kg. M.S.rods were with him and he had not satisfied the Court regarding the fact that A.S. 577 OF 2000 -8- these materials had been used for the purpose of proceeding with the constructions. So the trial court held that as against the claim of Rs.21,561/- an amount of Rs.72,775/- was due to the department from the plaintiff. When it is so the claim in the plaint cannot be granted. As stated by me earlier the plaintiff was a constant defaulter and the Government officials had shown sufficient indulgence and had extended time to him so as to help him to complete the work. It has to be remembered that the work was to start on 30.3.84 and ultimately termination was done only on 17.8.90. It shows that the Government department was not in a hurry to see that the plaintiff suffers damages. In spite of repeated revocations of the orders the plaintiff did not comply with the terms of the agreement and had abandoned the work which necessitated A.S. 577 OF 2000 -9- the Government to terminate the contract and it invited fresh contract for the completion of the work at the risk and cost of the plaintiff which was permissible under the agreement. Therefore the facts would reveal that the plaintiff has committed breach of contract. When the plaintiff has committed breach of contract and there is a possibility of that resulting in loss to the Government under the terms of contract amount deposited as earnest money is liable to be forfeited and it cannot be returned. 7. So far as the damages part and the retention amount is concerned materials are there to show that even otherwise at the time of the termination of the contract cost of materials etc. were to be given to the Government and therefore the amount claimed by the plaintiff cannot be granted for the reason A.S. 577 OF 2000 -10- that the money due to the Government is at least four times than what is claimed herein. So in such circumstances the Government cannot be directed to pay that amount to the plaintiff when he is liable to pay the amount to the Government. Therefore from these discussions I hold that the plaintiff is not entitled to any amount and so far as the declaratory relief is concerned that also cannot be granted for the reason the plaintiff has committed breach of the contract and it was in pursuance of the terms and conditions of the contract the Government had re-tendered the work but at the risk and costs of the plaintiff and so such a declaratory relief cannot be granted. 8. So far as revenue recovery proceedings are concerned since the prayer is deleted it does not arise for consideration as stated by A.S. 577 OF 2000 -11- the trial court. What is the actual loss sustained by the Government is a matter which requires adjudication and I make it clear that I am not expressing any opinion on that in the present case. So from these discussions I hold that the appeal is devoid of merits and the same is dismissed but I direct the parties to bear their respective costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 577 OF 2000 -12- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 577 OF 2000 = = = = = = = = = = = J U D G M E N T 28th October, 2010.