Kerala High Court
* A.P.Aul vs State Of Kerala on 17 August, 2012
Bench: K.Hema, A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS.JUSTICE K.HEMA
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
FRIDAY, THE 17TH DAY OF AUGUST 2012/26TH SRAVANA 1934
AS.No. 79 of 2000 ( )
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OS.360/1994 of ADDL.SUB COURT,PARAVUR
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APPELLANT/PLAINTIFF:
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* A.P.AUL, AGED 85, ATHIRAMPUZHAYIL HOUSE, (DIED)
PINDIMANA, CHELAD PO., KOTHAMANGALAM TALUK,
ERNAKULAM DISTRICT,
REP. BY HIS POWER OF ATTORNEY HOLDER,
T.J.JACOB THATTASSERIL, KOTHAMANGALAM TALUK.
ADDL. APPELLANT IMPLEADED
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ROSE MARY JACOB, ALIAS LEELA,
AGED 58, D/O.LATE A.P.PAUL, AND W/O.T.J.JACOB,
ATHIRAMPUZHAYIL HOUSE, PINDIMANA, KOTHAMANGALAM TALUK.
THE AGED HEIR OF THE DECEASED APPELLANT
IS IMPLEADED AS ADDL. APPELLANT -
VIDE ORDER DT. 16.10.01 ON CMP. 3528/01.
BY ADVS.SRI.PAUL MATHEW (PERUMPILLIL)
SRI.ANIL GEORGE
SRI.JOBY JACOB PULICKEKUDY
SRI.S.V.BALAKRISHNA IYER (SR.)
SRI.JOBY JACOB PULICKEKUDY
RESPONDENTS/DEFENDANTS:
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1. STATE OF KERALA, REP. BY DISTRICT C0LLECTOR,
ERNAKULAM DISTRICT, CIVIL LANE, KAKKANAD, ERNAKULAM.
2. THE SUPERINTENDING ENGINEER,
P.W.D (B & R), CENTRAL CIRCLE, ALUVA.
BY SENIOR GOVERNMENT PLEADER SRI.S.ABDUL SALAM
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 26.03.2012,
ALONG WITH OP.2654/2000, THE COURT ON 17-08-2012 DELIVERED THE
FOLLOWING:
VK
K.HEMA & A.M.SHAFFIQUE, JJ.
* * * * * * * * * * * * *
A.S.No.79 of 2000
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Dated this the 17th day of August 2012
J U D G M E N T
A.M.SHAFFIQUE, J The plaintiff is the appellant in a suit for declaration, recovery of money and for a consequential injunction. Parties are referred to as plaintiff and defendants. The 1st defendant is State of Kerala and the 2nd defendant is Superintending Engineer, B & R, P.W.D. The plaintiff sought for a declaration that the termination order dated 6/10/1982 bearing No.WB 2860/79 issued by the 2nd defendant, is not binding on the plaintiff and is illegal and void. The recovery of money sought for is in respect of value of work done by the plaintiff, refund of the security deposit and retention amount which is valued at Rs.100,000/-. The injunction sought for is to restrain the defendants from recovering any amount from the plaintiff.
2. The facts as pleaded by the plaintiff are in respect of an award of work by the 2nd defendant. The work related to construction of a road. An agreement has been executed on A.S.No.79 of 2010 2 20/05/1980. The rate agreed was 32% above the estimated rate. The work had to be completed within 18 months from the date of award of work. The estimated amount was Rs.13,81,575/-. It is the contention of the plaintiff that the work could not be proceeded on account of the negligent approach of the officers of the defendants. It is his case that the work site was not handed over in time. It was only on 5/6/1980 that the preliminary works could be done and a portion of the site was handed over only on 15/7/1980. It is alleged that there were several obstructions in the site namely buildings, electric posts etc. which were not removed in time, that the initial levels were taken only very late and were approved only in 1982. Alleging that there were several deficiencies on the part of the defendants and contending that the workers of the plaintiff had to idle the plaintiff submits that he could only do a part of the work. According to the plaintiff, though it was on account of the default on the part of the defendants in carrying out their part of the obligations, the 2nd respondent terminated the contract as per his order dated 6/10/1982.
A.S.No.79 of 2010 3
3. The plaintiff filed a suit before the Sub Court Paravur as O.S.No.71/1983 on 23/2/1983 for appointing an Arbitrator for resolving the dispute between the parties. By judgment dated 28/2/1985 the Sub Court directed appointment of an Arbitrator to resolve the disputes between the parties. The defendants filed an appeal as M.F.A.No.467/1985 and by judgment dated 28/2/1994, the High Court found that there was no arbitration agreement between the parties and therefore the appeal was allowed setting aside the judgment of the Sub Court. The present suit is filed on 28/06/1994 contending that the proceedings for appointment of the Arbitrator before the Sub Court and the High Court was ultimately rejected for want of jurisdiction and claiming exclusion under Section 14 of the Limitation Act in filing the suit.
4. The defendants filed written statement inter alia contending that the suit is barred by limitation, that the plaintiff was responsible for the delay in carrying out the work, that there was no negligence on the part of the defendants in providing the necessary work site and that the termination order is legal and valid and the plaintiff is liable to compensate the defendants for A.S.No.79 of 2010 4 the loss and damage the defendants had suffered on account of breach of contract committed by the plaintiff.
5. The Court below framed various issues as to whether the suit is maintainable, whether the suit is barred by limitation, whether the plaintiff has violated the terms of the agreement, whether there was default on the part of the defendants in handing over the work site or in supplying the materials and whether the termination of agreement at the risk and cost of the plaintiff is valid or is it that the plaintiff who is liable to pay compensation to the defendants.
6. The plaintiff relied upon Exts.A1 to A4 and the plaintiff was examined as PW1. Defendants relied upon Exts.B1 and B2. No oral evidence was adduced by them.
7. The court below, having taken into consideration the rival contentions, had come to a finding that the suit is barred by limitation and the plaintiff cannot claim exclusion under Section 14 of the Limitation Act. In respect of other issues, the court below found that the plaintiff had carried out 15% of the work, that the defendants had not adduced any evidence to show that the plaintiff violated the terms of the agreement, that there was A.S.No.79 of 2010 5 no default on the side of the defendants to hand over the work site nor in supplying the materials to the plaintiff. It is further found on the basis of the judgment in K.Abdul Khader v. State of Kerala and Others [1993 K.L.J 977] that, since the contract was terminated by the Superintending Engineer, the termination of contract is illegal and void. Hence the court below found that termination order was not due to the fault of the plaintiff. In regard to the claim of the defendants, it is found that there was no material evidence to show that defendants sustained a loss of Rs.16,21,070/- on account of the breach of contract committed by the plaintiff.
8. Sri.K.Jayakumar, the learned senior counsel appearing for the appellant contended that the finding of the court below regarding bar of limitation is absolutely baseless and the approach of the court below in considering the said issue is bad in law. It is also contended that in so far as the other issues are in favour of the plaintiff, if this Court comes to a conclusion that the suit is filed within the period of limitation, then the plaintiff is entitled for a decree, as prayed for. A.S.No.79 of 2010 6
9. On the other hand, the learned Government Pleader appearing on behalf of the respondents contended that the plaintiff is not entitled to file the suit as it is barred by limitation since the plaintiff is not entitled to get exclusion of the period spent by him for prosecuting the Arbitration Suit and appeal, especially since such proceedings were not in good faith. It is further contended that even assuming for the sake of argument that the plaintiff is entitled to get exclusion of certain period under Section 14 of the Limitation Act, the suit ought to have been filed immediately after the judgment in MFA No.467/1985 of the High Court. On merits it is argued that even if the suit is not barred by limitation, taking into consideration the facts and circumstances of the case, it is clear that the plaintiff has committed breach of contract. The court below had come to a conclusion that there was no delay in handing over the work site to the plaintiff and there was no delay in supplying the materials also. That being the situation, if the contract is terminated at the risk and cost of the Contractor in terms with the contractual provision, it was wrong on the part of the court below to have found that the termination of the contract was illegal. According A.S.No.79 of 2010 7 to the learned Government Pleader, the finding regarding illegal termination of contract is based on the fact that the Superintending Engineer had signed the termination order. It is pointed out that the said issue is settled by a Division Bench of this Court in State of Kerala v. Abdul Khadar (2010 (3) KLT 783 by which the decision reported in K.Abdul Khader (Supra) was set aside and it is found that even if the termination order is signed by an officer superior to the person named under the contract, termination is valid. Hence the learned Government Pleader prays for confirming the judgment and decree of the court below.
10. Replying to the above argument, the learned senior counsel fairly conceded the finding regarding illegality of the termination order on the ground that the Superintending Engineer had signed the termination order may not be correct and covered by the Division Bench judgment of this Court in State of Kerala v. Abdul Khadar(Supra). However, learned senior counsel submitted that going by the facts and circumstances of this case, it is an admitted fact that the plaintiff had carried out certain item of work especially 15% of the work A.S.No.79 of 2010 8 and that the evidence would disclose that the work site was not handed over in time and there was negligence and latches on the part of the defendant department in supplying all materials. According to the learned counsel, the evidence in the case clearly discloses the delay in providing the work site and supply of materials which were not properly considered by the court below. Hence it is contended that the plaintiff is entitled for recovery of the money as well. It is further submitted that since the work could not proceed on account of the delay caused by the defendants, the termination of the work at the risk and cost of the plaintiff is bad in law and for that reason the plaintiff is entitled for the value of work done, along with the declaration and injunction as prayed for. It is also contended that since there is no counter claim by the defendants their allegation of having suffered a loss of about Rs.16,21,070/- by awarding the work to another contractor does not require an enquiry.
11. It is further submitted that when revenue recovery proceedings were initiated by the defendants for recovering the alleged losses, the plaintiff has filed O.P.No.2654/2012 before this Court and there is a stay of further proceedings. The said A.S.No.79 of 2010 9 case is posted along with this appeal and is decided separately.
12. Having heard the learned senior counsel appearing for the appellant and the learned Government Pleader, the points for determination in this appeal are as follows:
i) Whether the court below is justified in finding that the exclusion for period of limitation expires on the date of disposal of the appeal M.F.A.No.467/1985 and whether the suit is barred by limitation?
ii) Whether the termination of contract by the 2nd defendant is illegal on account of the reasons stated by the plaintiff?
iii) Whether the 2nd defendant could terminate the contract at the risk and cost of the plaintiff?
13. Point No.1: It is not in dispute that the cause of action of the above suit had arisen on the date of termination of the contract that is on 06/10/1982. The present suit is filed only on 28/06/1994. The plaintiff claimed exclusion of the period from 23/02/1983, the date of filing O.S.No.71/1983 before the Sub Court, Paravur until 28/02/1994 the date of disposal of M.F.A.No.467/1985 by this Court. Claim for exclusion is A.S.No.79 of 2010 10 specifically pleaded in paragraph 12 of the plaint. The court below found that the plaintiff is entitled for exclusion of the said period under Section 14 of the Limitation Act, but proceeded to find that after the judgment in M.F.A on 28/02/1994 notice under Section 80 of the Code of Civil Procedure was issued to the defendant only on 13/3/1994 and thereafter the suit is filed on 27/06/1994. The court below found that after the disposal of the appeal by the High Court till the date of issuing notice under Section 80 of the C.P.C, there is no satisfactory explanation for the exclusion of the said dates and there is no reason for the said delay which cannot be excluded for claiming the benefit under Section 14 of the Limitation Act. On that basis, it is found that the suit filed on 27/6/1994 is barred by limitation.
14. This, we do not think is the correct approach in providing exclusion under Section 14(1) of the Limitation Act which reads as under.
"14 - Exclusion of time of proceeding bona fide in court without jurisdiction (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of A.S.No.79 of 2010 11 appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it"
15. The period to be excluded is undoubtedly the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant. Exclusion clearly means carving out such period from the period of limitation and cannot be understood to have expired as after the disposal of the proceedings or immediately thereafter.
16. A reference to the following judgments of the Supreme Court will be useful to understand the scope of section 14 of the Limitation Act.
(i) In Shakti Tubes Ltd., M/s. v. State of Bihar (AIR 2009 SUPREME COURT 1200) the question was whether the period spent on pursuing a writ petition should be excluded for the purpose of computing the period of limitation in filing a suit in terms of Section 14 of the Limitation Act, 1963. The appellant A.S.No.79 of 2010 12 in the said case filed a writ petition before the Patna High Court on 10/01/1994 praying inter alia for a mandamus commanding the respondents to pay the admitted dues which comes to Rs.
39,04,497.84/- to the petitioner for the supply of black pipes to the Minor Irrigation Department of the State of Bihar and to pay interest to the petitioner on the supply made by the petitioner in accordance with the provisions of Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Ordinance, 1992 on account of delay in making payment of the price of the goods by the respondents. By order dated 14/09/1995, the learned Single Judge rejected the first claim and observed that, in case he files a suit or a representation for the realization of his alleged dues that would be disposed of in accordance with law. On the question of payment of interest and delayed payments the writ petition was admitted. Appellant issued a notice under Section 80 of the Code of Civil Procedure on or about 7/10/1995. On 25/06/1996, a suit was filed for a decree for a sum of Rs. 65,97,319.00/-. The said suit was decreed by a judgment dated 28/06/1997. Rejecting the contention of the respondent it was found that the suit was not barred by limitation. The question A.S.No.79 of 2010 13 before the Supreme Court was whether plaintiff was entitled to get the period during which the writ petition was pending before the High Court can be excluded under section 14 of the Limitation Act. It was contended that as the appellant having accepted that the cause of action for filing the suit arose on 4.11.1992, the same should have been filed within a period of three years thereafter. It is held as follows:
"We will proceed on the premise that the cause of action for filing the suit arose on 4.11.1992. Indisputably, appellant served a notice upon the State on or about 7.10.1995 in terms of Section 80 of the Code of Civil Procedure itself. As in terms of Section 80 of the Code of Civil Procedure, a statutory notice of sixty days is required to be served, the said period must be excluded for the purpose of computation of the period of limitation. The suit should have, therefore, been filed in or about January, 1996 which in fact was filed on 25.06.1996. It is in this situation, the question as regards applicability of Section 14 of the Limitation Act has to be determined.
It is not in dispute that the writ petition was filed on 10.01.1994 and the same was disposed A.S.No.79 of 2010 14 of on 14.09.1995. Indisputably, if the period taken for pursuing the remedy is excluded, the suit must be held to have been filed within the period prescribed by the Limitation Act, 1963".
It is further held in Paragraph 22 to 26 as follows:
"Section 14 of the Limitation Act speaks of prosecution of the proceedings in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. What would be the true purport of the words "other cause of a like nature" ? The same must relate to the subject matter of the issue. A Three-Judge Bench of this Court had an occasion to consider the same in Rameshwarlal v. Municipal Council, Tonk and Others [(1996) 6 SCC 100] wherein it was held :
"3. Normally for application of Section 14, the court dealing with the matter in the first instance, which is the subject of the issue in the later case, must be found to have lack of jurisdiction or other cause of like nature to entertain the matter. However, since the High Court expressly declined to grant relief relegating the petitioner to a suit in the civil court, the petitioner cannot be left remediless. Accordingly, the time taken in prosecuting the A.S.No.79 of 2010 15 proceedings before the High Court and this Court, obviously pursued diligently and bona fide, needs to be excluded."
23. The question again came up for consideration before this Court in Union of India and Others v. West Coast Paper Mills Ltd. and Another (III) [(2004) 3 SCC 458] wherein Lahoti, J. (as the learned Chief Justice then was), held as under :
"In the submission of the learned Senior Counsel, filing of civil writ petition claiming money relief cannot be said to be a proceeding instituted in good faith and secondly, dismissal of writ petition on the ground that it was not an appropriate remedy for seeking money relief cannot be said to be "defect of jurisdiction or other cause of a like nature" within the meaning of Section 14 of the Limitation Act. It is true that the writ petition was not dismissed by the High Court on the ground of defect of jurisdiction. However, Section 14 of the Limitation Act is wide in its application, inasmuch as it is not confined in its applicability only to cases of defect of jurisdiction but it is applicable also to cases where the prior proceedings have failed on account of other causes of like nature. The expression "other cause of like nature" came up A.S.No.79 of 2010 16 for the consideration of this Court in Roshanlal Kuthalia v. R.B. Mohan Singh Oberoi and it was held that Section 14 of the Limitation Act is wide enough to cover such cases where the defects are not merely jurisdictional strictly so called but others more or less neighbours to such deficiencies. Any circumstance, legal or factual, which inhibits entertainment or consideration by the court of the dispute on the merits comes within the scope of the section and a liberal touch must inform the interpretation of the Limitation Act which deprives the remedy of one who has a right."
24. We may also notice that in India Electric Works Ltd. v. Jamesh Mantosh and Anr. [1971 (2) SCR 397 : (1971) 1 SCC 24], this Court held :
"7. It is well settled that although all questions of limitation must be decided by the provisions of the Act and the courts cannot travel beyond them the words "or other cause of a like nature"
must be construed liberally. Some clue is furnished with regard to the intention of the Legislature by the Explanation III in Section 14 (2). Before the enactment of the Act in 1908, there was a conflict amongst the High Courts on the question whether mis-joinder and non-
joinder were defects which were covered by the A.S.No.79 of 2010 17 words "or other cause of a like nature". It was to set at rest this conflict that Explanation III was added. An extended meaning was thus given to these words. Strictly speaking mis-joinder or non-joinder of parties could hardly be regarded as a defect of jurisdiction or something similar or analogous to it."
25. Provisions of Section 14 of the Limitation Act have been held to be applicable even in a proceeding arising under Section 34 of the Arbitration and Conciliation Act, 1996. [See Gulbarga University v. Mallikarjun S. Kodagali and Anr. (2008) 11 SCALE 79]
26. We, therefore, have no hesitation in holding that the provisions of Section 14 of the Limitation Act, 1963 were applicable to the fact of the present case".
(ii) In Deena v. Bharat Singh (AIR 2002 SUPREME COURT 2768) the Supreme court held that "The words "or other cause of a like nature" are to be construed ejusdem generis with the words "defect of jurisdiction," that is to say, the defect must be of such a character as to make it impossible for the Court to entertain the suit or application and to decide it on merits. ................ The expression "good faith" as used in S. 14 A.S.No.79 of 2010 18 means "exercise of due care and attention." In the context of S. 14 expression "good faith"
qualifies prosecuting the proceeding in the Court which ultimately is found to have no jurisdiction. The finding as to good faith or the absence of it is a finding of fact".
(iii) In Sunder Das v. Gajananrao (AIR 1997 SUPREME COURT 1686) the suit was filed within the period of limitation. But that Court was lacking in pecuniary jurisdiction. Subsequently, suit is re-filed before the Court of competent jurisdiction. It is held that the Plaintiff was entitled to exclude period from date of filing of suit to date when High Court took the view that it should be returned for representation to proper Court. The only question is whether the plaintiffs were bona fide prosecuting their suit before a Court, which from lack of jurisdiction was unable to entertain it. It is held that " The present suit was filed on 20th August, 1970. Therefore, it was clearly within limitation. However, the said suit underwent rough weather. It was originally filed in the Court of Civil Judge Class II, Datia on the basis that the valuation for the purpose of jurisdiction of the Court would be Rs. 1800/- the A.S.No.79 of 2010 19 consideration amount mentioned in the Sale Deed. In the first instance the said Court took the view that the suit was within its pecuniary jurisdiction. However, the High Court took a contrary view and held that the valuation of the suit should be equal to the market value of the property on the date of the suit and hence ordered return of the plaint for presentation to the proper Court and that is how the suit was filed in the District Court on 26th November,1975, after valuing the suit at Rs. 42,700/-. The contention of counsel for the contesting defendants is that the limitation for filing the suit will have to be seen from the date of filing of the second suit before the competent Court and if 26th November, 1975, being the date of filing of that is taken to be the date in the light of which limitation question is to be decided then the period of limitation of 12 years from the date of the Sale Deed dated 30th May 1959, must be treated to have expired and the suit was, therefore, beyond time. This contention was rightly not accepted by both the Courts below for the simple reason that originally the suit was filed within limitation but it was filed before a Court which was found to be lacking in pecuniary jurisdiction and when it A.S.No.79 of 2010 20 was re-filed before a competent Court the plaintiffs were entitled to the benefit of Section 14 of the Limitation Act enabling them to get exclusion of the time from 20th August, 1970 to 22nd November, 1975, when the High Court took the view that the suit should be returned for presentation to the proper Court. It is obvious that the plaintiffs were prosecuting in good faith their suit before a Court which, from defect of pecuniary jurisdiction, was unable to entertain it and if this period gets excluded the re-filed suit on 26th November, 1975, would remain within limitation of 12 Years from the date of the impugned Sale Deed. The plea of bar of limitation as raised by the learned counsel for the contesting defendants, therefore, stands rejected".
17. Therefore the plaintiff has admittedly three years to file a suit from the date when the cause of action had arisen and the period between 23/2/1983 to 27/2/1994 is liable to be excluded from the said period of limitation as during the said period the suit was pending and decreed in favour of the plaintiff and in an appeal filed by the defendant the decree is set aside on the ground that there is no arbitration agreement between the A.S.No.79 of 2010 21 parties. In the present case when the cause of action had arisen on 6/10/1982 after excluding the period from 23/2/1983 to 27/2/1994 the plaintiff had lost only 139 days. When the aforesaid period is excluded the 140th day starts from 28/2/1994 and the plaintiff is entitled to file a suit within the three year period reckoning from 28/2/1994 as the 140th day. In fact he is also entitled to claim exclusion of the period for issuing statutory notice under Section 80 of the C.P.C also. Hence the suit filed on 27/6/1994 is within the period of limitation.
18. The learned Government Pleader tries to salvage the situation by contending that the fact of filing a suit for appointing an Arbitrator was not in good faith. According to the learned Government Pleader, even going by the terms of the contract there was no provision for arbitration since arbitration was available only in respect of a contract where the value of the subject matter was below Rs.2,00,000/-. It is contended that the arbitration clause was deleted from the contract and it was concealing the said particulars that the suit was filed which is set aside by the High Court in appeal. The learned Government Pleader also challenged the finding of the court below in regard A.S.No.79 of 2010 22 to providing the exclusion of the period up to the disposal of the appeal.
19. Having regard to the rival contentions urged before this Court, it cannot be said that the plaintiff was not prosecuting the suit in good faith. The suit was filed before a court of law after notice to the contesting defendant is definitely a bona fide approach. If any matter is concealed before the court of law, the defendant can always point out the said concealment of fact and it is based on any such contentions that the suit is either decreed or dismissed. In the present case, the Sub Court considered the suit and an Arbitrator was appointed, which was later set aside in appeal by a Division Bench of this Court. Therefore it cannot be stated for a moment that there was no good faith in filing the previous suit by the plaintiff.
20. Hence we are of the view that Section 14 squarely applies and the plaintiff is entitled for exclusion of the period from 23/2/1983 to 27/2/1994 as is rightly held by the trial court. But as already indicated the finding regarding delay after 27/2/1994 is an erroneous approach made by the trial court and the plaintiff can claim the entire three year period from the date A.S.No.79 of 2010 23 of cause of action after excluding the period from 23/2/1983 to 27/2/1994. Therefore we find this point in favour of the appellant/plaintiff.
21. Point No.ii): It is the contention of the plaintiff that the termination of the contract is illegal and invalid. It is contended that there was delay on the part of the department in providing the work site and also supplying materials. This fact was denied by the defendants. The plaintiff mounted the box as PW1 and had clearly stated in his deposition that there was gross delay on the part of the defendants in providing the work site and also in supplying materials. His evidence was not demolished in cross-examination nor any evidence is adduced by the defendants to prove that the work site was handed over in time and that the supply of materials was provided in time.
22. The plaintiff has a case that he has done 15% of the work which is not seen disputed by the defendants. Taking that as an admission, the court below also found that the plaintiff had carried out 15% of the work which is not denied by the defendants. In fact, in paragraph 10 of the written statement the defendant had specifically admitted that the plaintiff had done A.S.No.79 of 2010 24 only 15% of the work. According to the defendants, the plaintiff had deliberately delayed the work and therefore notices dated 10/06/1982 and 09/07/1982 were issued to the plaintiff and still the plaintiff did not re-start the work. Hence final notice was issued on 19/8/1982 calling upon the plaintiff to re-start the work failing which he was told that the work will be cancelled at his risk and cost. Since the plaintiff did not comply with the said notice as well, the contract was terminated on 6/10/1982. Therefore according to the defendants, the work was validly terminated at the risk and cost of the contractor under the terms of the contract.
23. But, it is relevant to note that the plaintiff has a specific case that though the work was awarded and an agreement was executed on 20/5/1980 with the work completion period of 18 months which is on or before 21/1/1983, the preliminary works were permitted to be done by the Assistant Engineer only on 05/06/1980. It was only on 15/7/1980 that a portion of the site was handed over. Still, there were several buildings, electric posts, trees and other improvements in the property and on account of which it was not possible for the A.S.No.79 of 2010 25 contractor to carry on any work. Even the Executive Engineer did not permit any work to be carried out in the area 29/000 till 80/000. It is further contended that when a portion of the site was handed over the rainy season had come. The initial levels were taken only after a considerable period and only by April 1982 that the initial levels were approved. There was no facility to stock materials. The materials were not given in time. Whenever requested there were no materials in the store. The machinery was brought to the site only by February 1981. Men and materials had to be idled. Though part bills were submitted and measurements were taken, no payments were made. Several extra items of work were contracted to be done by the plaintiff. Hence it is contended that the progress of the work was delayed on account of negligence on the part of the defendants.
24. Controverting these allegations, the defendants contended that though the work was awarded on 27/3/1980, the agreement was executed on 27/5/1980 since the security deposit was remitted by the plaintiff only on the said date. It is further contended that the plaintiff started preliminary works after A.S.No.79 of 2010 26 execution of the agreement. According to them, the work site was available on the date of agreement itself and the entire site was handed over on 15/7/1980, but the plaintiff was not interested in taking over the site. It is stated that certain electric posts, trees and other structures in the site did not cause any obstruction to the work to be done by the plaintiff and they were removed and steps were taken for removing such structures by the defendants. However, the plaintiff did not even start the work in respect of the other areas excluding the area where the electric posts, trees and structures were situated. Rest of the allegations of the plaintiff was also denied and it is contended that there was no negligence on their part. It is further stated that by letter dated 16/6/1980 the plaintiff was requested to take over the site. The defendants complained that the plaintiff was satisfied about the initial level taken on 23/11/1980 and approval was only a subsequent departmental matter which did not cause any delay.
25. The plaintiff has given evidence as PW1 and has deposed in regard to the plaint averments. It is specifically stated that there had been delay on the part of the defendants in A.S.No.79 of 2010 27 providing the work site. Even, according to the defendants, the agreement was executed on 20/5/1980. The work site was handed over to the plaintiff only on 15/7/1980. But, it is stated by the defendant that it was the plaintiff who did not come and receive the work site. This contention of the defendants is not supported by any evidence. It is further admitted by the defendants that there were certain electric posts, trees and other buildings in the work site. When work site is given to a contractor, it should be free of such structures and improvements; otherwise it is not a proper handing over of the site. Defendants only contend that the said structures did not cause any hindrance to the work and the plaintiff should have done the work in the other areas provided to him which apparently indicates that there were obstructions in the work site itself. In a contract, in regard to construction of road, providing work site means work site suitable for carrying out the work. If, admittedly there are obstructions in the form of various structures in the work site which are to be removed by the defendants, there is no proper handing over of the site. This, by itself, would show that the plaintiff alone was not at fault in A.S.No.79 of 2010 28 delaying the work. It is further admitted that the initial levels were taken and approved only on 23/9/1980 despite the contention that the plaintiff did not come for taking the measurements. Still further it is admitted that indent for materials were given only on 23/1/1981. Defendants have a case that the materials were supplied as per the requirement from time to time. Subsequently, the time was extended to carry out the work up to 30/6/1982. There is no material to show under what circumstances the time had been extended. It is seen that Rs.200/- was imposed as a penalty for extending the time. Since the extension of time seems to be a voluntary act on the part of the defendants it could only be found that there had been delay on the part of the defendants also in executing the above work. Taking into consideration the pleadings of the parties, the evidence available on record and the probabilities arising therefrom it has to be found that the defendants were also responsible for the delay in getting the work performed by not providing the work site in time and not taking steps to remove the structure and buildings in the work site in time. A.S.No.79 of 2010 29
26. When it is found that the defendants were also responsible for the delay and the time was voluntarily extended by them, the plaintiff cannot be forced to carry out the work. Therefore if the plaintiff did not carry out the work despite the extension of time granted up to 30/6/1982, he cannot be found fault with. In that view of the matter, though it is open for the defendant to terminate the contract it cannot be at the risk and cost of the plaintiff. Therefore to that extent the order dated 06/10/1980 is illegal.
27. Point No.iii): Since it is already found that the termination of the contract to the extent of imposing risk and cost clause on the plaintiff is illegal, consequently the defendants cannot claim any damages from the plaintiff. But, whereas for the work done by the plaintiff he is entitled to recover the value of work done.
28. It is stated by the defendants that the plaintiff has carried out 15% of the work. But there is no specific material to indicate the quantum of work done or any claim in that regard. Hence it is not possible for this Court to quantify the value of work done by the plaintiff. The plaintiff had claimed an A.S.No.79 of 2010 30 approximate amount of Rs.1,00,000/- by stating that the said amount being security deposit, retention and for value of work. It is admitted that the security deposit was Rs.25,000/-. Hence, in the absence of any other materials on record, it has to be found that the plaintiff is only entitled to receive refund of security deposit.
29. In that view of the matter, the decree and judgment of the court below is set aside and the appeal is partly allowed as follows:
(i) The plaintiff is permitted to recover an amount of Rs.25,000/- from the defendants with interest at the rate of 6% per annum from the date of suit till realization.
(ii) Defendants are restrained by a permanent prohibitory injunction from recovering any amount from the plaintiff as risk and cost due to the termination of the contract.
(iii) Parties shall bear their costs.
(K.HEMA, JUDGE) (A.M.SHAFFIQUE, JUDGE) jsr A.S.No.79 of 2010 31 K.HEMA & A.M.SHAFFIQUE, JJ.
A.S.No.79 of 2000
JUDGMENT 17/08/2012