IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 911 of 2006()
1. NOUFAL K.S., S/O. SIDDIQUE LABBA,
... Petitioner
Vs
1. GEORGE MATHEW, S/O. GEORGE,
... Respondent
2. JOJEN JOHN, S/O. JOHN,
3. THE NATIONAL INSURANCE CO. LTD.,
4. S. GOPAKUMAR,
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent :SRI.S.D.ASOKAN
The Hon'ble MR. Justice T.K.CHANDRASEKHARADAS(RETD. JUDGE)
Dated :26/09/2008
O R D E R
JUSTICE T.K.CHANDRASEKHARA DAS
(RETD. JUDGE, HIGH COURT OF KERALA)
AND
SRI.M.P.RAMACHANDRAN NAIR
(SENIOR ADVOCATE, HIGH COURT OF KERALA)
=================================
M.A.C.A.No.911 of 2006
=================================
Dated this the 26th day of September, 2008
AWARD
Counsel for the appellant submits that it is on account of
duplication, the appeal happened to be filed and is willing to
withdraw the appeal. Insurance Company has no objection to do
so. Therefore, the appeal is closed.
T.K.CHANDRASEKHARA DAS
(RETD. JUDGE, HIGH COURT OF KERALA)
M.P.RAMACHANDRAN NAIR
(SENIOR ADVOCATE, HIGH COURT OF KERALA)
dvs
? IN THE HIGH COURT OF KERALA AT ERNAKULAM
+OP.No. 2310 of 2002(Y)
#1. R.THANKAPPAN NAIR,
... Petitioner
Vs
$1. DIVISIONAL FOREST OFFICER,
... Respondent
2. FOREST RANGE OFFICER,
3. DY. TAHSILDAR (RR), TALUK OFFICE,
! For Petitioner :SRI.M.A.MANHU
^ For Respondent :GOVERNMENT PLEADER
*Coram
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
% Dated :26/09/2008
: O R D E R
C.N.RAMACHANDRAN NAIR, J.
…………………………………………………………..
O.P. No.2310 of 2002
…………………………………………………………..
Dated this the 26th day of September, 2008.
JUDGMENT
The petitioner is challenging recovery proceedings for recovery of an
amount of Rs.29,562/- being loss caused to the Forest Department on
account of breach of contract committed by petitioner. I heard counsel for
the petitioner and Government Pleader appearing for respondents. The
petitioner admittedly participated in auction sale of timber by the Forest
Department and in the auction held on 27.9.1983, petitioner being the
highest bidder purchased the goods. However, after participating in the
auction and after deposit of security deposit, petitioner failed to remit
balance consideration. Based on tender conditions, goods were resold and
in the second sale, price obtained was less than the price at which goods
were sold to the petitioner. Consequently in terms of tender conditions,
differential price was sought to be recovered towards loss caused to the
department. Even though in the first round this court directed a hearing to
be given to the petitioner, repeated demand is raised against which this O.P.
is filed.
2. The first contention raised by the petitioner i.e. limitation, is not
2
sustainable because Government has 30 years’ time to recover the arrears
due to it. So far as quantification is concerned, provision for computation
of liquidated damages is contained in the tender conditions accepted by the
petitioner which provides for recovering differential cost on resale towards
loss caused to the Government. The petitioner after accepting the provision
contained in the tender condition for liquidated damages, has no right to
question it. Since the loss computed is based on tender conditions accepted
by the petitioner, there is no scope for interference with the amount
demanded in terms of the contract accepted by the petitioner. Even though
counsel relied on Division Bench decision of this court in BUILD TECH.
INDIA V. STATE OF KERALA (2000(2) KLJ 142) and contended that
officer of the Government cannot determine damages for breach of contract,
the said decision has no application because tender condition in the
purchase order accepted by the petitioner provides for fixation of liquidated
damages which does not require any adjudication at all. Accordingly this
contention also is rejected. However, since the matter is delayed for long, I
waive interest on the amount payable by the petitioner provided petitioner
remits the balance amount after adjusting payments already made before
3
30.11.2008. However, if payment is not made by then, recovery will be
made with interest.
The O.P. is disposed of as above.
C.N.RAMACHANDRAN NAIR
Judge
pms