IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 345 of 2001()
1. U.MUHAMMED KUNHI
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.D.KRISHNA PRASAD
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :01/10/2010
O R D E R
HARUN-UL-RASHID,J.
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S.A. NO. 345 OF 2001
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DATED THIS THE 1ST DAY OF OCTOBER, 2010
JUDGMENT
Appellant is the plaintiff in O.S.305/89 on the file of the
Sub Court, Kozhikode. This appeal is directed against the judgment
and decree in AS.No.198/95 on the file of the District Court,
Kozhikode. The suit filed for rendition of account was dismissed.
Relying on the decision reported in S.S.Nair v. Travancore
Devaswom Board (1987 (2) KLT 182) the court below held that
the suit for settlement of account is not maintainable and therefore
the plaintiff is not entitled to get a decree as prayed for. The Lower
Appellate Court framed the sole issue “whether the suit for
rendition of account is maintainable?” The Lower Appellate Court
relying on the said decision, which was relied on by the trial court,
held that the suit for rendition of account is not maintainable and
that the suit ought to have filed as one for damages.
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2. The dispute in the suit is with regard to the work of
improvement of Kulangarath Aroor Eramban Kuni Gulikapuzha
road. The work was allotted to the plaintiff and the plaintiff had
executed an agreement on 16/11/1984. The plaintiff’s case is that
the work could not be completed at the end of the extended period
due to the default on the part of the defendants. It is alleged in the
plaint that the defendants have not supplied materials in time, that
they failed to approve the initial level and also failed to supply of
steel and cement to meet the requirements in time and thus the
delay has been caused. It is also pleaded that there was an
injunction suit filed by a third party which also caused obstruction
to the plaintiff in carrying out the work. Defendants are State of
Kerala and the Superintending Engineer, Roads and Bridges,
PWD, Calicut. They denied the plaint allegations and prayed for
dismissal of the suit. According to the defendants, the plaintiff is
responsible for not completing the work within the time fixed by
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them and that since the plaintiff failed to complete the work as
agreed, they were compelled to terminate the contract at the risk
and costs of the plaintiff. The issues framed are; whether the
plaintiff is entitled to get a decree for rendition of accounts,
whether the plaintiff is entitled to realise any amount from the
defendants and reliefs and costs. The court found that the site was
handed over as early as on 9/10/1984 and that the supplemental
agreement was executed on 2/9/1986; but the work was not
completed by the plaimtiff till 12/10/1988. So the defendants are
fully justified in terminating the contract at the risk and cost of the
plaintiff. The trial court considered the contention of the defendants
that the suit for settlement of accounts of this nature is not
maintainable. The court relied on the decision reported in
S.S.Nair’s case (1987 (2) KLT 182) referred supra and held that
the suit is not maintainable. The court also held that even if the
contract was not performed due to the default of the defendants, the
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suit for settlement of account is not maintainable and so the
plaintiff is not entitled to get a decree as prayed for. The Lower
Appellate Court for the same reasons confirmed the decision of the
trial court in A.S.No.198/95.
3. The very same plaintiff filed O.S.No.303/89 before
the same court for rendition of accounts and realisation of money.
That suit was filed in respect of the work of improvement to Kavil-
Theekuni Kuttiady road. The averments in the said suit and in the
present suit are more or less same. The court below, after relying
on the decision in S.S.Nair’s case (1987(2) KLT 182), dismissed
the said suit finding that the suit is not maintainable. The Lower
Appellate Court in A.S.No.155/94 preferred by the very same
plaintiff against the judgment dismissing O.S.No.303/89 reversed
the judgment and passed a preliminary decree. The Appellate Court
relying on the decision referred above, which was relied on by the
trial court, held that on the facts of the case the dictum laid down in
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the said decision is not applicable. On merits confirming the
findings of the trial court the Appellate Court held that the
termination of the contract by the defendants is void and that the
plaintiff is entitled to the relief claimed in the suit. In the said suit
which was filed on the very same allegations against the
defendants, the trial court framed 8 issues which are extracted
below:
“i) Whether the suit is maintainable?
ii) Whether there was any delay on the part of the
defendant department in handing over the site
to the plaintiff?
iii) Whether th departmental materials were issued in
time?
iv) Whether there was any delay in payment of part bills?
v) Whether the termination order issued by the 2nd
defendant is legal?
vi) Whether there was any breach of contract on the part
of the defendants?
vii) Whether the plaintiff is entitled to any relief?
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viii) What order as to costs?”
4. This Court today heard S.A.No.911/98 filed against
the judgment and decree in A.S.No.155/94 which arises from the
judgment and decree in O.S.No.303/89. This Court upheld the
decision of the Lower Appellate Court in that case finding that the
said suit is maintainable and the decision rendered by this Court in
S.S.Nair’s case is clearly distinguishable on facts. Since the suit
was also filed more or less on the same set of allegations, the matter
requires re-consideration. The trial court shall consider the question
as to whether it is necessary to frame additional issues and if found
necessary, shall frame additional issues as framed in O.S.No.303/89
which are extracted above. The trial court, after framing additional
issues, if necessary, shall consider the question afresh and dispose
of the suit in accordance with law.
In the result, the appeal is allowed. The judgment and
decree passed by the courts below are set aside. The case is
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remanded to the trial court for fresh consideration in accordance
with law. The trial court shall dispose of the suit within a period of
six months from the date of appearance of the parties. The parties
shall appear before the court below on 28/10/2010. There will no
order as to costs.
HARUN-UL-RASHID,
Judge.
kcv.