IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 27TH JANUARY 2009 / 7TH MAGHA 1930 AS.No. 464 of 1998() ---------------------------- OS.269/1994 of SUB COURT, MANJERI .................... APPELLANT(S): DEFENDANT ----------------------- P.C.PRASAD. S/O. CHANDRASHEKHARAN, POOKKATTIL HOUSE, PAINHARENADA, GURUVAYOOR. BY ADV. MR.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SMT.PRABHA R.MENON MR.M.KRISHNAKUMAR RESPONDENT(S): PLAINTIFF ------------------------- SPECIAL OFFICER, PERINTHALMANNA MUNICIPALITY. THIS APPEAL SUITS HAVING COME UP FOR ADMISSION ON 27/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- A.S.No. 464 OF 1998 --------------------------------- Dated this the 27th day of January, 2009 JUDGMENT This appeal having come up for admission and after hearing the learned counsel for the appellant, I am proceeding to dispose of the matter as follows: This is an appeal preferred against the judgment and decree of the Subordinate Judge, Manjeri in O.S. 269/1994. The defendant in the suit had bid in auction the right to collect fees from the buses entering the Perinthamanna bus stand and also from the taxi stand. According to the Municipality at the expiry of the period an amount of Rs. 54,071.50 was outstanding and hence the suit. 2. The defendant would contend that out of the total one year 4 days were lost on account of the private bus strike and one day on account of the Bharat Bandh . It is also contended by the defendant that during the relevant period there was a repair effected to the Perinthalmanna bus stand which prevented the private buses from entering into the bus stand. So he was unable to collect the fees and therefore he is not liable to pay the amount during that period. So far as the 4 days bus strike and Bhandh is A.S. 464/1998 -2- concerned, he moved an application before the Joint Director of the Municipality who accepted it and thereby an amount of Rs. 4,000/- had been deleted for the said period. The crucial point argued before me is regarding the closure of the bus stand for repair for a period of 35 days and so the defendant is not liable to remit bus stand fee for 35 days. But the trial court found that the buses were stopped on the road side and there was no prohibition in collecting the charges from the taxi stand. Since there was an admission that, from the buses stopped on the road side amount has been collected, there was no deprivation of collection and therefore that prayer was disallowed. 3. It is also the specific case of the plaintiff that on the strength of the right to collect the charges, the contractor was collecting payment irrespective of the place where the bus was stopped. It has to be remembered that when a person is deprived of getting any amount for 4 days or 5 days, he is moving the appropriate authority for reduction and when it comes to a question of 35 days, he keeps quite and when a suit is instituted for realisation of the amount he is raising such a contention. So ordinarily under the normal human course of conduct this will not be done. So it is under those circumstances coupled with other A.S. 464/1998 -3- factors the trial court came to the conclusion that amount has been collected even during the closure of the bus stand for repairing. I do not want to interfere with such a finding. But at the same time, whether he must be saddled with that much of interest is a question. When the whole bus stand is closed for repairs and one is forced to collect the fees from the road side, it may not be possible always to get the fee from each and every bus for the reason that before the person reaches there, the bus would have left. So there was some responsibility cast on the Municipality also that the person who had bid in auction is given some method to collect the amount. So one cannot call the defendant as a chronic defaulter. Even though there is a term in the agreement to realise 12 ½ % interest, I am inclined to reduce it to 6%. On all other aspects the judgment and decree of the trial court is confirmed. Therefore the appeal is disposed by confirming the judgment with a modification that rate of interest be reduced from 12½ % to 6% and with a further direction that the Municipality need take steps for recovery of the amount only after a period of six months from today. M.N. KRISHNAN,JUDGE vkm