IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 AS.No. 14 of 1998(A) -------------------- OS.16/1993 of I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT/ PLAINTIFF:- -------------- D. RAMACHANDRAN, S/O V.DIVAKARAN AGED 45 YEARS, CONTRACTOR, RESIDING AT VIMALA NILAYAM, PERINGAMMALA, KALLIYOOR.P.O., THIRUVANANTHAPURAM. BY ADV. SRI.B.RAGUNATHAN SRI.V.V.MATHEW SRI.S.BALAN PILLAI RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRSENTED BY BY GOVERNMENT PLEADER THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON / / , THE COURT ON 09/11/2011 DELIVERED THE FOLLOWING: P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - A.S.No. 14 of 1998 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of November, 2011 J U D G M E N T The plaintiff who was non-suited on the ground of limitation is the appellant. 2. The plaintiff admittedly a contractor undertook certain item of work of Forest Engineering Division and an agreement was executed on 09.02.1979. Subsequently that division was abolished and the entire files and project were handed over to the 2nd defendant. The probable amount of contract was Rs.2,23,029/-. The agreement was for 21.16% below the estimate rate. The plaintiff deposited the security amount and the time of completion of the work was 4 months from the date of issue of selection notice. According to the plaintiff even though initially the work to be done was relating to drain of length 450 metre with a width of .80 metre, due to several reasons the length increased to 660 metres and width 1 metre. The plaintiff would complain that the defendant did not make available :2: A.S.No. 14 of 1998 necessary facilities especially, supply of cements which delayed the work. As per the agreement conditions, the plaintiff has to get part payments every month, which was not done. The plaintiff had to undertake extra works. Since there was variation from the original contract, a fresh estimate had become necessary, but inpite of being intimated of the same the defendants did nothing in the matter. In the meanwhile the term of the contract was extended to 30.10.1980. It is averred in the plaint that on several occasions the plaintiff demanded that the work done be measured and the amount due to him be quantified and paid to him. But nothing transpired. Ultimately the plaintiff was served with a notice dated 30.06.1987 asking him to resume the work. A reply was send to the same. Finally since the amount due to him was not being paid, he laid the suit. 3. The defendants resisted the suit. It was contended on behalf of these defendants that the work was awarded on :3: A.S.No. 14 of 1998 30.01.1979 and intended to completed on or before 30.05.1979, however the time is extended till 30.10.1980. The defendants would say that the Forest Engineering Division was abolished only in 1986. The defendants would contend that they had demanded several times to the plaintiff to commence the work and it was due to his laches that the work was delayed. Further, extension was granted on the request made by the plaintiff. It is pointed out that the plaintiff was bound to carry out the entire work and payments for extra item of work was not provided in the agreement. At no point of time according to them the plaintiff had made any complaint regarding the non- availability of materials for the work. The defendants would pointed out that normally part payment will be made on completion of substantial quantity of the work and as and when demanded by the contractor. In the case on hand four bills were honored. The payments are covered by the terms of agreement entered into between the parties. They would :4: A.S.No. 14 of 1998 say that the plaintiff abandoned the work and therefore he is not entitled to any relief. 4. On the basis of above pleadings issues were raised. The evidence consists of testimony of PW1 and documents marked as Exts.A1 to A11 from the side of the plaintiff. The defendants did not adduce any evidence. The trial court on an appreciation of the evidence found that even though the plaintiff had done the work and he had not been paid for the work done by him, his claim was barred by limitation and accordingly dismissed the suit. Said judgment and decree are assailed in this appeal. 5. The question that arises for consideration is whether the finding of the court below that the suit is barred by limitation is justifiable in law? 6. The learned counsel appearing for the appellant pointed out that the court below erred in law in holding that the suit is barred by limitation. Even according to the defendants the payments are governed by the terms of the :5: A.S.No. 14 of 1998 agreement and in spite of the petition filed by the plaintiff to have the agreement produced, the defendants did not produce the agreement. At no point of time the plaintiff was informed that the contract was terminated and that he is liable for any damages that might have been suffered by the defendants. On the other hand, they continued to demand the plaintiff to complete the work and at no point of time they had denied the amount due to the plaintiff. Under such circumstances the finding of the court below that time begins to run from 30.10.1980 cannot be accepted. 7. The learned Government Pleader on the other hand contended that the extension was granted as requested by the plaintiff and he had abandoned the work on 30.10.1980 and if any amount was due to him on that date, he should have made a demand for the same within three years there from. The demand from the plaintiff for the amount due to him comes thirteen years thereafter and the court below was justified in holding that the claim is barred by :6: A.S.No. 14 of 1998 limitation. 8. Though at the first blush the argument of the learned Government Pleader may look acceptable, on a closer scrutiny it can be found that it is not so. As rightly pointed out by the learned counsel for the appellant, at no point of time the contract was terminated and the defendants treated the contract as subsisting even in 1990. Ext.A1 dated 22.05.1990 issued by the Executive Engineer, Forest Engineering Division to petitioner calls upon him to complete the work immediately. It also threatened him that if he does not resume the work, the contract will be canceled and the work will be re-tendered. Ext.A2 reply was sent by the plaintiff narrating the developments till then and the difficulty faced in the office of the 2nd defendant. It is pointed in his reply that he had requested on several occasions to settle his accounts and at least to pay him the amounts for the works done by him. There was no response from the defendants to those letters. He :7: A.S.No. 14 of 1998 pointed out that there was no inaction from his side and he could not be blamed for the stoppage of the work. To the reply send by the plaintiff the second defendant again addressed him as per Ext.A3 dated 20.11.1990. In Ext.A3, it is stated that as demanded by the plaintiff, the Executive Engineer has deputed the Assistant Engineer to inspect the site and take necessary measurements for computing the amounts due to him. The letter then says that having violated the agreement conditions the department is not responsible for settling the accounts. Surprisingly enough it again calls upon the plaintiff to resume the work and complete it as early as possible. Again he warned that if the work is not resumed the department will be constrained to re-arrange the work and recover the damages from him. 9. The evidence produced by the plaintiff, also shows that in 1980 itself he had made demand for the amount due to him, but there was no reply. At any rate, from the communications namely Exts.A1 to A4 it can be seen that :8: A.S.No. 14 of 1998 the contract had never been terminated nor have the measurements of the work done by the plaintiff taken by the Officers concerned. It is specifically pointed out in the communication by the department that payments are to be in terms with the agreement and that since he has not completed the work, the payments cannot be effected. Under these circumstances it cannot be said that the time begin run from 30.10.1980. Going by the available evidence it would appear that the contract still subsists. 10. The above vital aspects have been omitted to note by the court below and the court below was guided by the fact that since the extension was given till 30.10.1980 any amount due to the plaintiff had to be demanded within three years from 30.10.1980, that does not appear to be quite correct in view of the facts and evidence mentioned above. In the result:- This appeal is allowed, the impugned judgment and decree is set aside and the matter is remanded to the trial for fresh consideration in accordance :9: A.S.No. 14 of 1998 with the law and in the light of what has been stated above. Parties shall appear before court below on 08.12.2011. The trial court may make every endeavor to dispose of the suit, as expeditiously as possible, at any rate, within a period of six months from the date of appearance of the parties. Send a copy of the judgment to the trial court. P.BHAVADASAN JUDGE kkj