IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 669 of 1999()
1. T.K.SIMON
... Petitioner
Vs
1. OIL PALM INDIA LIMITED
... Respondent
For Petitioner :SRI.RAJEEV V.KURUP
For Respondent :SRI.JOSEPH MARKOSE (SR.)
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :16/03/2010
O R D E R
HARUN-UL-RASHID,J.
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A.S.NO.669 OF 1999
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DATED THIS THE 16TH DAY OF MARCH, 2010
JUDGMENT
Plaintiff in O.S.No.169/95 on the file of the Principal
Sub Court, Kottayam is the appellant. The suit was filed for
realisation of Rs.38,372.34ps. with future interest at 18% per
annum on the principal amount from the defendant. The trial
court dismissed the suit. Hence this appeal. The parties
hereinafter are referred to as the plaintiff and defendant as
arrayed in the suit.
2. The plaintiff’s case is that he was entrusted with
the work of thermal insulation of pipe for the defendant’s factory
in Kollam District. The defendant is the Oil Palm India Ltd.,
a Government of Kerala Enterprises. The plaintiff had quoted
only for thermal insulation using mineral wool as per IS 7413/81.
But the Project Engineer of the defendant company insisted
for finishing with aluminium sheets. The plaintiff agreed
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to do so only on condition of paying extra payment for using
aluminium sheet. The plaintiff completed the work by using
aluminium sheet and claimed Rs.19,062.34ps. The further case of
the plaintiff is that he offered to do the work on condition that
the tax payable for the materials used by him shall be paid extra.
According to him, he has to spend Rs.12,890/- for purchase of
additional materials.
3. The defendant company contended that since the
parties had performed their respective obligations under the
contract, the contract stood discharged and that the plaintiff is
estopped from claiming any amount. It is also stated in the
written statement that the work was completed by the plaintiff as
per the tender specifications and that the amount quoted for the
work includes protective finishing using aluminium sheet and not
as stated by the plaintiff. According to the defendant, the
protective finishing using aluminium sheet is not an extra work.
One of the finishing materials, which is specified in Ext.A10 is ”
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Indian Standard Code of Practice for Industrial Application and
Finishing of Thermal insulating materials at temperatures above
40 C and upto 700 C ”. It is also stated that the plaintiff is not
o o
entitled to claim any amount under the heads mentioned in the
plaint, that the Company had acted only according to the terms
of the contract and they prayed for dismissal of the suit.
4. The plaintiff produced Ext.A1 work order dated
29/9/1992. In Ext.A1 the company informed the plaintiff that ‘we
have pleasure in placing an order on you for the installation of
piping, tanks and pumps at Chithara Factory near Anchal in
Kollam District on the following terms and conditions.’ Ext.A1
also contains the nature of work to be carried out and completed.
The amount payable to the plaintiff is stated in schedule I, II and
III attached to the work order Ext.A1. It is further stated that the
price quoted is inclusive of all expenses, that the prices shall be
confirmed and no explanation shall be permitted during the
period of contract. Clause VIII of Ext.A1 stipulates that the
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contract work shall be of best quality and workmanship
according to the latest engineering practices and that in case of
poor workmanship noticed, such work will have to be repaired/
replaced/modified at the cost and risk of the contractor. Clause 8
of the page under the head “Scope of work” in Ext.A1 stipulates
that the insulation for steam and as applicable for oil lines shall
be arranged by the contractor and the work shall be carried out as
per IS-7413/1981. Reference to IS-7413/81 is Ext.A10
specifications.
5. Ext.A10 is the Indian Standard code of Practice for
Industrial Application and Finishing of Thermal Insulating
materials at temperatures above 400C upto 7000C. Clause 5 deals
with finishing. Clause 5.2 deals with protective finishes. It
narrated that the following are the commonly applied protective
finishes. Clauses 5.2.1 to 5.2.6 deal with different types of
protective finishings. Clause 5.2.3. is the relevant clause, which
deals with ‘sheet metal’ — aluminium, galvanized iron or mild
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steel sheet of suitable thickness as agreed to between the
purchaser and the applicator.
6. Referring to Ext.A9 responding to the invitation of
tender the plaintiff quoted the rates for doing the work. In the
letter attached to the rates quoted the plaintiff has stated that the
tax on materials used shall be paid extra. The learned counsel
for the plaintiff contended that he is entitled to realise the amount
under the two heads mentioned above. According to him,
finishing of insulation with aluminium is not a work covered by
the tender and the work order and therefore he is entitled to
realise the amount spent for purchase and installation of
aluminium sheet. Since it is an extra work, payment has to be
made. I have quoted the conditions relating to the materials to be
applied for the insulation work by referring to Ext.P10 standard
specifications. I have also quoted the relevant paragraph in
Ext.A10. The materials to be applied includes the aluminium
sheets as well. Therefore, the contention of the plaintiff that the
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finishing work done by using aluminium sheet is an extra work
and that he is entitled to extra payment cannot stand. The learned
counsel for the appellant contended that the claims towards sales
tax ought to have been allowed by the court below. According to
him, the defendant did not deny the claims made in Ext.A9 letter
at the time of accepting the tender. Therefore, the condition in
Ext.A9 letter that the tax paid by him for purchase of the
materials shall be paid in addition to the rate agreed. Ext.A9 is
the offer letter addressed to the defendant-company. The rate
quoted is attached to Ext.A9. Schedule 1,2,3 and 4 were
accepted. In the covering letter it is stated that the tax if any
applicable shall be paid extra. Placing reliance on Ext.A9 the
learned counsel contended that his offer was accepted by the
company and therefore the company is liable to pay the amount
incurred by the plaintiff towards payment of tax. It is true that
the plaintiff claimed extra amount towards the tax paid. Ext.A9
is dated 20/2/92. Several months later, the company issued the
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work order for installation of piping, tanks and pumps. Ext.A1 is
the work order dated 29/9/1992, which contains the terms and
conditions, the rate quoted and accepted by the company etc. The
work order also contains several paragraphs dealing with the
scope of work and technical specifications, terms of payment,
completion period, security deposit, quality and workmanship
etc. The accepted rate for the work was mentioned in Ext.A1
work order as Schedule I, II and III. The next page is under the
head “Scope of work”. Item No. 8 of the scope of work
stipulates that the insulation for steam and as applicable for oil
lines shall be arranged by the contractor and the work shall be
carried out as per IS-7413/1981. Ext.A9 does not contain any
condition in addition to the amount payable for the work, which
was in detail stated in Schedule I to III, stipulating payment
to the plaintiff towards the amount paid by him as tax. So
long as the condition does not contain any stipulation for
making additional payments other than what was agreed in
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Ext.A1 work order, it is difficult to accept the case of the plaintiff
that he is entitled to the amount paid by him towards sales tax for
the purchase of materials used for carrying out the contract
work. Ext.A1 work order contains the terms and conditions for
doing the work and also the rates payable to the plaintiff. Ext.A1
shows that the plaintiff agreed the terms and conditions stipulated
in Ext.A1 order and carried out the work. After finishing the
work, he cannot turn round and say that the defendant company
is liable to pay the amount not agreed to be paid, as per Ext.A1
work order.
7. The trial court examined the questions in the light of
the oral and documentary evidence adduced by the parties. The
trial court referred to various provisions in IS-7413/1981
(Ext.A10). The trial court observed that it is clear that even
before the plaintiff started the work, he was aware of the fact
that the finishing should be done with aluminium sheet. The trial
court further observed that the defendant in Ext.A4 reply has
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denied the claim of the plaintiff and directed the plaintiff to
complete the work with aluminium sheet. I have already
discussed and concluded that finishing of insulation with
aluminium is not an extra work but the aluminium sheet has to be
used for protective covering and going by the relevant clauses in
Ext.A10 specifications, I agree with the finding of the trial court
that the finishing of insulation with aluminium covering is not an
extra item of work and the plaintiff’s claim on that ground is
unsustainable. I have discussed the plaintiff’s claim for the
amount paid as tax for purchase of the materials and took the
view that the plaintiff is not entitled to claim under the head ‘paid
as tax’. The trial court examined the question and held that
Ext.A9 is insufficient to claim any amount towards the sales tax
paid by the plaintiff. The trial court also accepted the contention
of the defendant-company that there was no agreement between
the parties to pay any amount towards sales tax and therefore the
claim of the plaintiff on this count cannot be allowed. In the
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aforesaid circumstances, I do not find any reason to interfere with
the findings recorded by the court below. The view taken by the
court below is the correct view in the facts and circumstances of
the case.
In the result, the appeal fails and accordingly
dismissed. No order as to costs.
HARUN-UL-RASHID,
JUDGE.
kcv.
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HARUN-UL-RASHID,J.
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A.S.NO.669 OF 1999
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JUDGMENT
16TH MARCH, 2010