Kerala High Court
T. Unnikrishnan Nair vs State Of Kerala
Author: K.Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
TUESDAY,THE 1ST DAY OF JULY 2014/10TH ASHADHA, 1936
WP(C).No. 1500 of 2012 (J)
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PETITIONER :
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T. UNNIKRISHNAN NAIR,
PLAVELIL THEKKEDATHU,
PRAYAR SOUTH, ALUMPEEDIKA
OACHIRA
BY ADV. SRI.B.KRISHNA MANI
RESPONDENT(S) :
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1. STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY
GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM-695001.
2. THE EXECUTIVE ENGINEER
PIP DIVISION (PUBLIC IRRIGATION PROJECT)
CHENGANNUR-689121.
3. TAHSILDAR
THALUK OFFICE,
KARUNAGAPPALLY-690518.
R1 TO R3 BY GOVT. PLEADER SRI. BOBBY JOHN PULIKKAPARAMBIL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-07-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mn
...2/-
WP(C).No. 1500 of 2012 (J)
APPENDIX
PETITIONERS' EXHIBITS :
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EXT.P1 TRUE COPY OF THE NOTICE DATED 13-4-92.
EXT.P2 TRUE COPY OF THE NOTICE DATED 14-5-92.
EXT.P3 TRUE COPY OF THE JUDGMENT DATED 31-7-2000 IN O.S. 167/92
BEFORE THE SUB JUDGE, MAVELIKKARA.
EXT.P4 TRUE COPY OF THE JUDGMENT DATED 28-10-2010 IN A.S. 577/2000
BEFORE THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM.
EXT.P5 TRUE COPY OF THE NOTICE DATED 17/10/2011 ISSUED BY THE 3RD
RESPONDENT.
RESPONDENTS' EXHIBITS : NIL
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//TRUE COPY//
P.S. TO JUDGE
Mn
K.Vinod Chandran, J.
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W.P.(C).No.1500 of 2012-J
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Dated this the 01st day of July, 2014
JUDGMENT
The petitioner is a Government contractor, who assails the execution proceedings taken against him for realization of damages, as is indicated in Exhibit P1. Admittedly he was awarded the work of "PIP, L.B.C formation of Mavelikkara West Branch Canal Distributing No.1 form Ch.0 to 805 Mt" as per an agreement dated 30.03.1984. The petitioner, admittedly, did not complete the work, which, the learned counsel for the petitioner contends, is due to the default of the awarder. The petitioner seeks to interdict the revenue recovery proceedings, purportedly on the basis of an observation made in Exhibit P4 judgment in A.S.No.577 of 2000.
2. What led to A.S.No.577 of 2000 was a suit, O.S.No.167 of 1992, filed by the petitioner against the State and the awarder of the contract. Obviously the same was WP(C).No.1500 of 2012 - 2 - dismissed, as is seen from Exhibit P3. Exhibit P3 reveals that the suit was filed for recovery of the following amounts:
"(A) the sum of Rs.8,100/- being security amount deposited by the plaintiff. (B) Recovery of Rs.4,045/- being the retention amount (C) Rs.5,000/- being value of work done. (D) Rs.15,000/- being the loss suffered by plaintiff due to delay in starting work (E) Interest on the above sums at 18% from the date of the suit".
3. The learned Government Pleader would submit that in fact the revenue recovery proceedings initiated by the State was also subject matter of the suit, which prayer, the petitioner sought to withdraw, to save the suit from the rigour of Section 72 of the Kerala Revenue Recovery Act, 1968 [for brevity "RR Act']. By Exhibit P3, the suit ended in dismissal. Appeal was also unsuccessfully filed before this Court, which is indicated in Exhibit P4.
WP(C).No.1500 of 2012 - 3 -
4. This Court, while dismissing the appeal, noticed that the question of revenue recovery proceedings does not arise in the same, since the prayer was deleted. What the learned counsel for the petitioner would submit is that, the further observation that the actual loss sustained by the Government is a matter which requires adjudication has to be taken as a direction to the parties. This Court is not able to concede to such interpretation. This Court having found that revenue recovery proceeding was not subject matter of the appeal or the suit, made such a statement only in passing. It was also made clear that the Court was not expressing any opinion on that. When specifically it has been stated that no opinion is expressed on the same; the petitioner's contention cannot be sustained. Further when the issue itself was not the subject matter of the suit, there can be no question of the Court issuing any directions on the issue.
WP(C).No.1500 of 2012 - 4 -
5. In any event, as per Section 70 of the RR Act, there is a remedy available to the petitioner, insofar as paying the amounts under protest and filing a suit, which, if turns out favourably, the petitioner would also be able to get refund of the amounts paid. The learned counsel for the petitioner submits that if there is an arbitration clause in the original agreement, that should also enure to the benefit of the petitioner. It is to be noticed that in the suit or in the present writ petition, the petitioner has not made out any case of the agreement containing any such clause. In such circumstances, the writ petition is found to be devoid of merit and the same is dismissed. Parties are left to suffer their respective costs.
Sd/-
K.Vinod Chandran, Judge vku.
( true copy )