IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 838 of 1998()
1. SUNJAN
... Petitioner
Vs
1. DIST.COLLECTOR,PKD.
... Respondent
For Petitioner :SRI.O.RAMACHANDRAN NAMBIAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :21/08/2009
O R D E R
P.Q.BARKATH ALI, J.
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Appeal Suit No.838 OF1998
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Dated this the 21st day of August, 2009
JUDGMENT
The plaintiff in O.S.No.65/1993 of Sub Court, Palakkad is the
appellant. The suit is for a declaration that the demand notice –
Ext.A9 is invalid and for a consequential perpetual injunction. The
suit was dismissed by the lower court with costs. The plaintiff has
challenged in this appeal the said decree and judgment.
2. The case of the appellant/plaintiff as detailed in the
plaint and as testified by him as PW1 before the lower court in brief
is this :
The first defendant is District Collector, Palakkad and second
defendant is the Executive Engineer , Roads Division, Civil Station,
Palakkad. Plaintiff was the successful tenderer to enjoy the right to
collect toll from the vehicles passing through the Pudur Bridge
during 1993 commencing from April 1, 1992. Plaintiff quoted
Rs. 1,55,555/- . But he was given permission to collect the toll from
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June 12, 1992 only. He was given pro rata remission in the matter of
payment of 71 days during which period he was not able to collect
toll . Ext.A1 is the tender notice and Ext.A10 is the proceedings of
the Executive Engineer accepting the tender submitted by the
plaintiff. Plaintiff executed Ext.B1 agreement . According to the
plaintiff, the toll collection from the month of November to the
middle of June will be in peak fetching an average high collection of
Rs. 900/- to 1000/- per day and that therefore, he is entitled to
remission of atleast Rs. 1000/- per day during the said period. The
plaintiff received Ext.A9 notice asking him to remit Rs. 30, 258/-
which according to him is not sustainable. Plaintiff has paid three
instalments at the rate of Rs. 19,000/- each as per the agreement.
Plaintiff prays for setting aside the demand notice – Ext.A9 and for
consequential injunction.
3. The acceptance of the tender by the plaintiff and also
execution of agreement – Ext.B1 are admitted by the defendants.
They disputed the contention of the plaintiff that plaintiff sustained
any loss during the period of 71 days during the period he was not
A.S.No.838/1998 3
permitted to collect the toll. According to the defendants, it is the
plaintiff who has violated the terms of the agreement and that Ext.A9
notice is valid.
4. The plaintiff was examined as PW1 and Exts.A1 to A10
were marked on the side of the plaintiff. On the side of the
defendant, DW1 was examined and Exts.B1 to B4 were marked.
5. The lower court on an appreciation of evidence found
that the plaintiff is not entitled to the loss allegedly sustained by him
and that the injunction prayed for has become infructuous and
dismissed the suit with costs. The plaintiff has come up in appeal.
6. The main question which arises for consideration is
whether the appellant/plaintiff is entitled to a remission of Rs.
51,859/- being the toll collection for the period from 1 April, 1992 to
10th June 1992 and if so whether the demand notice Ext.P9 issued is
valid.
7. It is the admitted case that the total amount for which the
right to collect toll was bid by the plaintiff for Rs. 1,55,555/- for the
period from April 1, 1992 to March 31, 1993, but he was allowed to
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collect toll only from June, 12, 1992 onwards. It is also admitted
that the second defendant has given pro rata remission of
Rs. 32,258/- for the period of 71 days during which the plaintiff was
not permitted to collect the toll. The case of the plaintiff is that
Ext.B4, the abstract of toll collection in Pudur Bridge for the period
from 01/04/1992 to 10/06/1992 shows the total collection of
Rs. 51,859/- and that plaintiff is entitled to a remission of that
amount during that period.
8. In my view, the lower court is perfectly justified in
coming to the conclusion that the plaintiff is not entitled for a
remission of the said amount. He has executed Ext.B1 agreement
dated June 12, 1992 and supplemental agreement – Ext.B2 on
13/06/1992 accepting the right to collect toll from June 12, 1992.
Further pro rata remission was given on the application of the
plaintiff which can be seen from Ext.A10 proceedings of the
Executive Engineer. As per Ext.A10, the plaintiff was allowed to
remit the amount in five instalments and plaintiff has remitted three
instalments and defaulted payment of the remaining two instalments.
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It is admitted that he has requested for extension of time thereafter.
Having executed agreement Exts.B1 and B2 and having sent letter
requesting time to pay the balance amount, the plaintiff cannot now
turn around and say that he is entitled to the remission of the actual
amount of toll collected during the period in dispute. Therefore, in
my view, the lower court is perfectly justified in finding that the
plaintiff is not entitled for the remission of the amount mentioned in
Ext.B4 i.e. Rs. 51,859/-.
9. As regards the demand notice – Ext.A9, it does not
contain any details regarding the amount due and the amount already
paid by the plaintiff. Learned counsel for the appellant/plaintiff
submitted that there is a security amount of Rs. 8,000/- and that he is
entitled to refund of Rs. 5000/- which has also to be adjusted
towards the amount due from him.
10. Under these circumstances, I am setting aside Ext.A9
notice. The second defendant is at liberty to issue a fresh demand
notice showing the total amount due from the plaintiff and the
amount remitted by him. The security amount of Rs. 8000/- and
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Rs. 5000/-paid by him as advance shall be deducted from the amount
due from the plaintiff. Learned Government Pleader submitted that
whether that advance amount is actually paid or not has to be
verified. If no such amount is paid as advance, the second defendant
need not deduct that amount from the amount due from the plaintiff.
In the result, the appeal suit is allowed in part. The demand
notice – Ext.A9 is set aside . The second defendant is entitled to
issue fresh demand notice showing the details of the correct amount
due from the plaintiff. In the circumstances, parties shall bear their
own costs.
P.Q.BARKATH ALI
JUDGE
sv.
A.S.No.838/1998 7