IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 183 of 1994()
1. M.S.SUSHEELA
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.V.GIRI
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :03/07/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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S.A. NO.183 OF 1994
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Dated this the 3rd day of July, 2007
JUDGMENT
Plaintiff in O.S.385/1986 on the file of
Munsiff Court, Alapuzha is the appellant.
Defendants are the respondents. Suit was instituted
seeking a decree for settlement of accounts and
permanent injunction. Appellant was the Abkari
contractor who enjoyed the privilege of sale of
arrack in shop Nos.5,6,7, 11 to 14 of Abkari range
during the year 1984-85. According to appellant,
the monthly quota to be supplied was 5140 litres of
arrack and Government has also an obligation to
supply additional quota of arrack as and when
demanded, but Government failed to supply the
monthly quota for the month of February 1985 and
additional quota as demanded by the appellant and
because of the violation of the statutory and
contractual obligations, appellant sustained loss
and therefore appellant is entitled to recover
S.A.183/1994 2
damages. Contending that the demand for
realisation of Rs.6,87,730.50 by the State as the
balance kist amount is not correct and she is
entitled to the damages caused for the non-supply
of arrack, appellant sought a settlement of
accounts and for a permanent prohibitory injunction
restraining respondents from realising the amount
by recourse to the provisions of Revenue Recovery
Act. Respondents resisted the suit contending that
the monthly quota for February, 1985 was supplied
and Government has an obligation to supply only the
monthly quota and there is no obligation to supply
additional quota as and when demanded and therefore
appellant is not entitled to claim damages and
State is entitled to realise the balance kist
amount under the provisions of Revenue Recovery
Act. Learned Munsiff on the evidence of Pws 1to 4
and Exts.A1, A2 and X1 and X2 series found that
appellant is not entitled to any damages on account
of the failure of the Government to supply the
monthly quota for the month of February, 1985 or
S.A.183/1994 3
additional quota as demanded and State is entitled
to realise the balance kist amount under the
provisions of Revenue Recovery Act and dismissed
the suit. It was challenged before District
Court, Alapuzha in A.S.45/91. On reappreciation of
evidence, learned District Judge found that there
was non-supply of monthly quota during February,
1985 but as the appellant did not rescind the
contract and by enjoying the contract she
signified her acquiescence and hence is not
entitled to claim damages for the non-supply of the
monthly quota during February, 1985. Learned
District Judge relying on the decision of this
Court in Krishnan v.State of Kerala (1985
K.L.T.1159) and Devassya v. Asst. Excise
Commissioner (1987(1) KLT 244) found that the
contract in the case was in accordance with the
modified conditions, which does not provide an
obligation to supply additional quota as and when
demanded and for the non-supply of additional
S.A.183/1994 4
quantity of arrack demanded by the appellant,she
is not entitled to claim damages. Learned District
Judge also found that respondents are entitled to
realise the balance kist amount under the
provisions of Revenue Recovery Act as held by this
court in Gourikutty Amma v. Dist.Collector,
Alleppey (1975 KLT 29) and dismissed the appeal.
It is challenged in this Second Appeal.
2. Second appeal was admitted formulating the
following substantial questions of law.
1) When there is default on the part of defendants in satisfying its obligations under a
contract, resulting in damage to the plaintiff and
damages is not quantified, will not the plaintiff
be entitled to sue for settlement of accounts, when
money is claimed as against plaintiff also?
2) When plaintiff is not a defaulter as
defined under the Kerala Revenue Recovery Act, is
there any bar for the suit under section 72 of