IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 709 of 1997(A)
1. U.MOHAMMEDKUNHI
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.D.KRISHNA PRASAD
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.BHAVADASAN
Dated :07/07/2010
O R D E R
P.BHAVADASAN, J.
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S.A No. 709 of 1997
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Dated this the 7th July, 2010
J U D G M E N T
Plaintiff, who filed this Second Appeal, was awarded
with the work of improvement to Chalikkara
Puliyottumukku-Avarattumukku road as per an agreement
evidenced by Ext.B1 between the parties. According to
the plaintiff, he could not complete the work due to the
laches on the part of the defendants. In fact,he claims that
major portion of the work had to be abandoned due to the
conduct of the defendants. He complained that they have
not paid the amount due to him for the work completed by
him and that he claimed for damages along with
settlement of accounts.
2. Defendants resisted the suit. According to
them, it was due to the fault of the plaintiff that work could
not be completed. They had done all they had to do so in
terms of the contract. It is pointed out that the delay in
starting the commencement of the work itself was due to
the fault of the plaintiff and they repeatedly had to sent
notice to him to commence the work. The work was of
urgent nature. Therefore, as the plaintiff did not proceed
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with the work. They had to get the work completed early.
Since the plaintiff abandoned the work and committed
breach of contract the Department had to rearrange the
work. It is pointed out that the loss sustained to the
Department by rearrangement of the balance work is to be
recovered from the plaintiff. Pointing out that there were
no laches on their part, they prayed for dismissal of the
suit.
3. The trial court raised necessary issues for
consideration. The evidence consists of the testimony of
PW1 and Exts.A1 and A2 were marked from the side of the
plaintiff. . Defendants had examined DW1 and Exts. B1 to
B 24 were marked.
4. On evaluation of the evidence the trial court
found that none of the allegations made by the plaintiff is
true and breach of contract was on his part. It is also
found that defendants were justified in terminating the
contract. However the trial court observed that since the
final bill has not been prepared it will be done with notice
to the petitioner. If he gets any adverse order, he will have
to assail the proceedings before appropriate forum.
Holding so, the suit was dismissed.
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5. Plaintiff carried the matter in appeal as A.S.
No.21 of 1993 the District Court, Kozhikode. The District
Court considered the evidence independently and found
that the plaintiff had no idea about the work undertaken by
him and also about the work done by him. In paragraph 10
of the judgment of the lower appellate court, the case of the
plaintiff has been discussed in detail.
6. The learned counsel for the appellant pointed
out that both the courts erred in holding the suit as one for
money. The plaintiff had sought taking of the account of
the work done by him and balance payment due to him for
the work done. The approach was wrong.
7. It is seen that plaintiff had admitted that he had
received huge amounts from the Government for the work.
But he was unable to complete the work or give details of
the work. Both the courts below found that the department
had carried out their part of the contract and it was only
due to the fault of the plaintiff that work had come to a
stand still. In fact it is seen that several notices were
issued to the plaintiff to commence the work immediately.
But it is seen that the appellant did not take steps to
complete the work without delay. It was under those
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circumstances, the Department was constrained to
terminate the contract and re-arrange the work. It is seen
that plaintiff agreed to complete the work provided they
pay 50% enhanced rate. There were no provision for that
in agreement. Therefore, defendants could not agree to
such a proposal. Both the courts below have considered
the variouas aspects raised by the plaintiff which
according to them, had delayed in carrying the work. It is
found that none of those allegations are true. Plaintiff had
defaulted in carry out the work. In fact, the discussion of
the lower appellate court shown that he has absolutely no
idea about the work he had undertaken. Therefore, the
court belows rightly found that the defendants could not be
blamed for the delay in completing the work and also for
the laches committed by the plaintiff. There is nothing to
show that defendants are guilty of breach of contract. Both
the courts below found that termination was justified.
Finding are essentially on facts arrived at on an
appreciation of evidence. No interference is called for by
this Court since it is not shown that findings of the lower
appellate court are either perverse or unwarranted by the
evidence on record. No substantial question of law arose
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for consideration in this appeal. Appeal is without merits
and it is accordingly dismissed. There will be no order as
to costs.
P.BHAVADASAN, JUDGE
ma
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