State of Kerala Vs. M.Reginold - Court Judgment

IN THE HIGH COURT OF KERALAAT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE TUESDAY, THE28H DAY OF JANUARY20148TH MAGHA, 1935 WA.No. 1776 of 2009 IN WP(C).36160/2003 -------------------------------------------------------- AGAINST THE JUDGMENT

IN WP(C) 36160/2003 of HIGH COURT OF KERALA DATED2403-2009 APPELLANT/PETITIONER: - --------------------------------------- S.VILASINI,AGED53YEARS, W/O.K.PAKYANATHAN NADAR, KAP VANAJA BHAVAN, UCHAKKADA P.O., NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. SRI.THIRUMALA P.K.MANI RESPONDENTS/RESPONDENTS: - ------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM.

2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.

3. THE DISTRICT EDUCATIONAL OFFICER, NEYYATINKARA.

4. THE MANAGER, KARAKODE U.P.SCHOOL, PARASSALA.

5. CRISTABA JAYANTHI, HINDI TEACHER, KARAKODE UPS, PARASALA. R1 TO R3 BY Sr. GOVERNMENT PLEADER SRI. P.M.JOSEPH R5 BY SRI.KURIAN GEORGE KANNANTHANAM (SR.) BY ADV. SRI.TONY GEORGE KANNANTHANAM THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON2801-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DMR/- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR FRIDAY, THE24H DAY OF JANUARY20144TH MAGHA, 1935 AS.No. 263 of 1997 (E) ----------------------- AGAINST THE ORDER

/JUDGMENT

IN O.S.NO.6/1994 of SUB COURT, PAYYANNUR APPELLANTS/DEFENDANTS: ------------------------ 1.STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, PUBLIC WORKS(H) DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2.THE SUPERINTENDING ENGINEER, PUBLIC WORKS DEPARTMENT (B & R) NORTH CIRCLE, CALICUT BY GOVERNMENT PLEADER SRI.NOBLE MATHEW RESPONDENT/PLAINTIFF: ---------------------- M.REGINOLD, P.W.D.CONTRACTOR, P.O.KARANTHAD, VIA-RAMANTHALI, KANNUR DISTRICT BY ADV. SRI.A.X.VARGHESE BY ADV. SRI.A.V.JOJO THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON2401-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & A.K.JAYASANKARAN NAMBIAR, JJ.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ A.S.No.No.263 of 1997 ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 24th day of January, 2014

JUDGMENT

Thottathil B.Radhakrishnan, J.

We have heard the learned Senior Government Pleader in this appeal filed by the State against the decree granted to a civil contractor.

2. The learned Senior Government Pleader argued that the work was awarded and site handed over on 02.05.1979 requiring that the contractor shall complete the work by 01.11.1980, however that, the work was completed only on 10.01.1983. He pointed out that final bills therefor were immediately drawn up in terms of the schedule of rates on the basis of which the work was awarded. He criticised the finding of the court below that the department had contributed to the delay in execution of the work and had with no reason whatsoever directed the payment of amounts at 1982 PWD schedule of rates.

3. Looking into the materials, what we see is that, the court below has sifted the testimony of the plaintiff and the defence witness and also relied on the documentary evidence to conclude that, the department had not supplied steel and A.S.No.No.263 of 1997 2 cement in time and that there were repeated requests by the contractor for release of the materials. The delay in carrying out the work was also found to be attributable to soil erosion during monsoon. The learned Subordinate Judge has taken stock of the nature of the work and the fact that construction of ring-bund was also necessary during the course of construction to prevent flow of water from the upper region. The work was for construction of a bridge for an estimated costs of Rs.8,47,865/-. The court below came to the conclusion that the delay in execution of work cannot be attributed to the plaintiff exclusively. If that be so, it has also to be taken note of the fact that the work was got done by extending the period for performance including by execution of supplemental agreement regarding that. This means that the possible escalation in expenditure had made the plaintiff eligible for amounts which could be treated as reasonable compensation for the work so done. The court below adopted the procedure of requiring the department to provide the final bill as if it is on the basis of 1982 schedule of rates. It accordingly found that there would have been difference of Rs.2,69,003/- on the basis of the 1982 schedule of rates. A.S.No.No.263 of 1997 3 While there is no principle of law that the plaintiff was entitled to revision of rates on the basis of PWD rate division, we cannot exclude the approach adopted by the trial judge from the field of consideration, which would ultimately lead to grant of compensation by way of liquidated damages. Under such circumstances, we do not find that the decree passed by the court below is unreasonable or wrong warranting interference in an appeal under Section 96 of the Code of Civil Procedure. Equally, we do not find any ground to interfere with the grant of interest at the rate of 6% per annum from the date of suit till realisation. For the aforesaid reasons, this appeal fails. In the result, the appeal is dismissed. No costs. THOTTATHIL B.RADHAKRISHNAN JUDGE A.K.JAYASANKARAN NAMBIAR JUDGE mns/