Kerala High Court
R.Mohandas vs State Of Kerala on 25 July, 2025
RFA No.668/2004
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
FRIDAY, THE 25TH DAY OF JULY 2025 / 3RD SRAVANA, 1947
RFA NO. 668 OF 2004
AGAINST THE JUDGMENT AND DECREE DATED 30.06.2003 IN OS
NO.1282 OF 1995 OF PRINCIPAL SUB COURT, THIRUVANANTHAPURAM
APPELLANT/PLAINTIFF:
R.MOHANDAS
S/O. K.N. RAGHAVAN, AGED 39,
RESIDING AT SANTHINIKETH,
CHIRACKAL P.O., KANNUR.
BY ADVS.
SHRI.AJITH KRISHNAN
SHRI.T.R. RAJASEKHARAN NAIR
RESPONDENTS/DEFENDANTS:
1 STATE OF KERALA, REPRESENTED BY THE CHIEF
SECRETARY, GOVT. SECRETARIAT, THIRUVANANTHAPURAM.
2 THE SUPERINTENDING ENGINEER
IRRIGATION SOUTH CIRCLE, THIRUVANANTHAPURAM.
BY ADVS.
GOVERNMENT PLEADER SRI.JIBU.T.S.
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
15.07.2025, THE COURT ON 25.07.2025 DELIVERED THE FOLLOWING:
RFA No.668/2004
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JUDGMENT
Dated this the 25th day of July, 2025 The plaintiff in OS No.1282/1995 on the file of the Principal Sub Court, Thiruvananthapuram is the appellant. (For the purpose of convenience, the parties are referred to as per their rank before the trial court.)
2. The plaintiff filed the suit for realisation of money. The plaintiff was a contractor by profession. In response to notice inviting tenders by the defendant for the work of Anti Sea Erosion (ASE) for the construction of seawall for a length of 500 metres between BLS 17 and 22 at Poonthura during May 1992, the plaintiff quoted 54% above the estimated rate of 1990 Schedule of rates and the above work was allotted to the plaintiff by tender committee in its meeting held on 4.8.1992. Sanction for the said work was accorded by the Government as per order dated 26.9.1992 for a sum of Rs.30.5 lakhs and the same was accepted by the defendant. As per the selection notice, work was to be completed within 12 months from the date of handing over the site. RFA No.668/2004 3
2025:KER:55008 The site was handed over to the plaintiff on 10.2.1992 and the time for completion of the work was extended till 31.5.1994 and the plaintiff completed the said work within the extended period.
3. According to the plaintiff, for the completion of the above work, granite stones of 200 dm3 , 45 dm3, 20 to 40 dm3 and soling stones were required and as per the contract the plaintiff' has to bring such stones from the departmental quarry at Vattappara. The estimate was prepared including conveyance for transporting granite from Vattappara to the work site at Poonthura, which situates at a distance of 9 km from the work site. The plaintiff quoted the rate on the assumption that granite will be available from the Vattappara Quarry. In the meantime, the Government assigned similar works at other places also and other contractors were also to collect granite from the said quarry. Accordingly, the plaintiff could secure only a small portion of the granite from the Vattappara quarry. Since he could not procure adequate quantity of stones from Vattappara, consequential non-availability of the same was notified to the authorities concerned. Finding the impossibility RFA No.668/2004 4 2025:KER:55008 of obtaining the required quantity of granite from Vattappara quarry, the departmental authorities directed the plaintiff to collect stones required for the work from other sources and to complete the work within the stipulated time. Accordingly, the plaintiff brought granite from a quarry at Parippally about 50 km away from the work site. For bringing the granite from the Parippally quarry, the plaintiff had to spend an extra amount for conveyance and the present suit has been preferred claiming a total sum of Rs.52,46,652/- being the additional conveyance expenses and seigniorage.
4. The defendant filed a written statement disputing the claim raised by the plaintiff. According to them, enough granite was available in Vattappara quarry and it was the duty of the plaintiff to employ sufficient number of workers for quarrying operation and for collecting sufficient material for the work, since as per the contract, it is the duty of the contractor to bring the required granite from the places of his choice. The department is not liable to pay any additional amount in that respect. In the written statement, the defendant denied the RFA No.668/2004 5 2025:KER:55008 allegation that sufficient quantity of granite was not available at Vattappara quarry. According to them, it was the duty of the plaintiff to extract sufficient quantity of granite from the Vattappara quarry. No complaint was raised regarding the non-availability of required material from the Vattappa quarry, either by the plaintiff or any other contractor, who were also extracting the material from the same quarry during the same period. It is also contended that during the same period, other contractors have carried out similar ASE works extracting materials from the Vattappara quarry and completed the works in time. The other contractors have not made any complaint regarding non-availability of required materials from that quarry. Vattappara quarry is large enough to provide sufficient material for the work. None of the departmental officials have given any direction to the plaintiff to obtain material from any other quarry. If the plaintiff has procured any quantity of stones from any other source, it is for his own convenience. Since the department has assigned a quarry to collect the materials and the same is incorporated in the agreement, the plaintiff is bound to collect the materials only from that quarry. It is also contended that the plaintiff had RFA No.668/2004 6 2025:KER:55008 collected the entire quantity of materials from Vattappara quarry. It is also contended that the plaintiff received the amount for the above work without raising any objection and as such he is estopped from raising further claims in that respect. The plaintiff has not sustained any loss in that respect. In the light of the above contentions, the defendant prayed for dismissing the suit.
5. The trial court raised four issues. The evidence in the case consists of oral testimonies of PW1 to 4 and DW1 and Exhibits A1 to A21, B1 to B7 and C1 series. After evaluating the evidence on record, the trial court dismissed the suit. Being aggrieved by the above judgment and decree of the trial court, the plaintiff preferred this appeal raising various grounds.
6. Now, the point that arises for consideration is the following:
Whether the impugned judgment and decree of the trial court dismissing the suit calls for any interference in the light of the grounds raised in the appeal?
7. Heard Sri. Ajith Krishnan, the learned counsel for the appellant RFA No.668/2004 7 2025:KER:55008 and Sri. Jibu T.S., the learned Government Pleader.
8. The point: The plaintiff is a contractor, who had undertaken the work of construction of seawall for a length of 500 metre between BLS 17 and 22 at Poonthura. The accepted estimated was Rs.40,20,068/-, which was 54% above the estimate rate. The period of completion was 12 months and it was subsequently extended to 31.5.1994. Admittedly, the plaintiff completed the construction within the extended period of 31.5.1994, to the satisfaction of the department.
9. As per the agreement entered into between the parties (Exhibit B1), the work consists of supplying and dumping of armour stones of 200 dm3, 45 dm3, 20 to 40 dm3 and soling stones and formation of sea wall. Further, the stones were to be extracted by the contractor from the government quarry at Vattappara which situates 9 km away from the work site. The case of the plaintiff is that when the contract was given to him, he alone was there to extract granite from the Vattappara quarry and initially he engaged 12 labourers for that purpose. Further according to him, thereafter the department has allotted other RFA No.668/2004 8 2025:KER:55008 similar works to other contractors and to such contractors also the same quarry at Vattappara was allotted and as such there was non-availability of sufficient quarry at Vattappara. Therefore, according to the plaintiff, with the consent of the departmental officials, he procured granite from a distant quarry at Parippally, for which he had to spend additional amounts for extra conveyance and as such he is entitled to get the amount claimed in the plaint.
10. The contention taken by the defendant is that the quarry at Vattappara was large enough to supply sufficient quantities of granite for the work and that it is the duty of the contractor to employ sufficient number of workers to extract sufficient quantities of granite from the allotted quarry. They further contended that in similar works undertaken by other contractors, they have collected sufficient quantities of granite from the same quarry and there was no similar complaint from anybody else. It was also contended that, if the plaintiff for his own convenience collected granite from another quarry, that too without the permission of the defendant, they are not liable to pay any extra conveyance expense, if any, incurred by the plaintiff.
RFA No.668/20049
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11. The plaintiff would contend that in connection with the construction of another seawall, the Government was satisfied that he had to collect granite from Parippally quarry and acknowledging the same, extra conveyance charge was allotted to him. Ext.A2 is the said Government Order, G.O.Rt. No.1065/93/Irrn. dated 30.9.1993. In Ext.A2 it was stated that the High Level Committee considered the representation given by the plaintiff and observed that there was shortage of granite at Vattappara, that the plaintiff was forced to bring materials from far off places to complete the work in time and therefore, the committee suggested that it is justifiable to pay the conveyance charges to the contractor as a very special case. It was in the above context, the Government was pleased to accept the recommendation of the High Level Committee to pay 60% of the allowable rate to the contractor as conveyance charge, 'as a very special case'.
12. The learned Government Pleader invited my attention to the fact that it was an emergent case in which, restoration of damaged seawall at Panathurakkara for a length of 610 metres between BLS 212 and 218 was to be made in a war-footing and it was in the above RFA No.668/2004 10 2025:KER:55008 circumstance, it was considered as "a very special case" by the Government. The said fact is evident from Ext.A2 itself. It is also revealed from Ext.A2 that it was on the basis of the recommendation of the High Level Committee the government had issued such an order. In the instant case there was no such special circumstance and as such the above Government Order cannot be applied as a precedent in the instant case.
13. The learned counsel for the appellant has invited my attention to another work undertaken by the same plaintiff involving a similar construction in which the Principal Sub Court, Thiruvananthapuram in OS No.538/1995 awarded a sum of Rs.19,49,780/- towards extra conveyance. In appeal this court in RFA No.373/2003 enhanced the compensation to Rs.35,52,833/- along with interest @6% per annum. Since the above decision in O.S. No.538/1995 is with respect to the construction of a seawall, on the basis of another contract with the same department, the said decision cannot be relied upon in the present case.
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14. The learned Government Pleader relying upon Exhibit B1 contract would argue that, as per the terms of the contract, the contractor cannot claim any additional amount except for any extra work entrusted to him and according to him, since in the instant case, no extra work was allotted, the plaintiff is not entitled to claim any additional amount. It is true that as per the terms of Ext.B1 contract, the contractor is not entitled to claim any additional amount, except for any extra work entrusted to him. In the instant case the amount claimed by the plaintiff cannot be styled as extra work entrusted by the defendant and as such the plaintiff cannot claim any additional amount on that head.
15. The learned counsel for the plaintiff has extensively relied upon the Exhibit C1 commission report prepared by the expert commissioner (PW2) in support of the plaint claim. In Exhibit C1 report, the Commissioner noted that when he visited the department quarry at Vattappara, the area allotted to the plaintiff was seen in an abandoned stage, without any blasting of quarry, in the near future. In this context it is to be noted that he visited the quarry in 2000, while the seawall construction was completed in 1992-94. At the time of RFA No.668/2004 12 2025:KER:55008 evidence, it is revealed that the said quarry has an area of 4.5 acres and even according to the plaintiff, the area allotted to him has an extent of 1.5 acres. The Commissioner reported that, from the other portions of the same quarry, in the possession of private parties, blasting and operations were going on, even in the year 2000.
16. From the evidence on record it is revealed that the granite available in Vattappara is very hard and is of good quality and hence difficult to cut into pieces while that at Parippally is soft and easy to cut into pieces. In Ext.C1 commission report the commissioner specifically noted the nature and quality of the rock available in Vattappara quarry, in page 6 as follows:
"The commission had also noted that the texture and type of rock available in Vattappara quarry comes under very hard blue granite type of stone with close grains and this type of stones is difficult to break into the required size and shape of amour tones with dimensions 90 x 50 x 45Cm, Thus the out- turn of amour stones of the above size that can be produced from the blasted boulders at this quarry site will be less when compared to other type granite stones which can be cut into the required size easily."RFA No.668/2004 13
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17. With regard to the quality of the rock available at Parippally, in page 7, the Commissioner noted that:
"The texture and type of rock in this quarry is different from that found in Vattappara quarry and it is seen that the rock is easy to be cut into the required sizes."
18. From the above report, it is evident that the rock available in Vattappara quarry is very hard, granite type of stone, which requires more labour for breaking into required size, while the quality of the rock available at Parippally is easy to cut into required size. Therefore, even from Ext.C1 report it is revealed that enough granite was available at Vattappara, both in the area allotted to the plaintiff as well as in the nearby private quarries. In the above circumstance, if the plaintiff proceeded to Parippally, without exhausting the quarries available at Vattappara, it can only because the rock available there is light and less labour and expense was enough to cut them into pieces of required size. In short, even if the plaintiff abandoned the department quarry at Vattappara and proceeded to collect granite from other quarries, it is for his own convenience, to reduce his expense and labour.
19. At the same time, in the same report, the Commissioner further RFA No.668/2004 14 2025:KER:55008 stated that, in the meantime, certain other works were allotted to other contractors, that those contractors also have to collect the materials from Vattappara quarry and hence the plaintiff could use only a portion of the Vattappara quarry, which reduced the availability of the stones. Even according to PW1, about 1½ acres of quarry was allotted to him from Vattappara quarry and he has no case that the above 1½ acres allotted to him was allotted to anybody else. The above version in the commission report is in tune with the case pleaded in the plaint. After reporting that when he visited the department quarry at Vattappara, the area allotted to the plaintiff was seen in an abandoned stage without any blasting in the near future and at the same time, in the nearby private quarries blasting operations are going on, such a finding arrived at by the commissioner is without any basis and beyond the scope of his authority. Therefore, Ext.C1 report cannot be relied upon to hold that sufficient granite was not available in the department quarry and other private quarries at Vattappara.
20. From the evidence of the plaintiff as PW1, it is revealed that he was engaged in similar work as a contractor for the past 15 years and he had undertaken about 48 ASE works so far. During the cross examination, he admitted that he was selected for the work involved in this case on 7.11.1992. RFA No.668/2004 15
2025:KER:55008 When it was suggested that he had executed the agreement with the defendant only after two months from the date of selection, he pleaded ignorance. From the records it is revealed that he executed the agreement with the defendant only on 8.1.1993. Admittedly, he could not complete the work within the original period of one year and hence it was extended till 31.5.1994.
21. Admittedly, as per Ext.B1 agreement, the contractor had to collect the required granite from the departmental quarry at Vattappara. During the cross examination, he claimed that at Vattappara quarry, initially he had engaged 12 labourers for quarrying operation. Though according to the plaintiff, sufficient material was not available at Vattappara quarry and that is why he started bringing stones from Parippally quarry, there is no reliable evidence in that respect. At the same time, as deposed by DW1, there was no prohibition for the contractor to bring the material from anywhere he chooses, provided it is of the required quality.
22. Similarly, though the plaintiff claimed that shortage of granite at Vattappara was intimated to the officials of the defendant and RFA No.668/2004 16 2025:KER:55008 that he started bringing stones from Parippally quarry with the permission of the defendant, there is absolutely no evidence in that respect. In the written statement the defendant specifically denied the above claim made by the plaintiff. Though during the cross examination, he claimed that there are documents issued by the defendant to prove that he was authorised to bring the stones from Parippally quarry, he could not produce any such documents.
23. Though the plaintiff produced Ext.A8 as the copy of the letter issued to the defendant in that respect, there is no such pleading and it was not produced along with the plaint. There is no evidence to prove that Ext.A8 was served on the defendant and as such it could not be relied upon. Exts.A11 to 21 produced by the plaintiff do not relate to the work in question, but relate to some earlier works. Though in those letters it is stated that due to labour problem sufficient quantity of granite is not available, in this case he has no such case. Moreover, in those letters there is no mention of the collection of granite from Parippally quarry. Even if there was non-availability of sufficient granite RFA No.668/2004 17 2025:KER:55008 at Vattappara quarry as claimed by the plaintiff, he was very much aware of that fact, well before selection notice was issued to him on 7.11.1992, agreement was executed on 8.1.1993 and he took charge of the site on 10.2.1993. It was in the above context he quoted 54% above the estimate prepared for the work.
24. DW1, the Assistant Executive Engineer Irrigation North subdivision deposed that the department officials have not received any request from the plaintiff seeking permission to take stones from any other quarry and that the officials have never certified the quality of the stones from Parippally quarry or any other quarry. The specific case of the defendant is that the plaintiff collected entire stones from Vattappara itself and not from anywhere else. In order to prove non-availability in Vattappara he examined PW3 and to prove supply of stones from Parippally he examined PW4. Though PW3 claimed that the plaintiff could not engage his own workers and that he himself engaged workers and extracted stone and supplied them to plaintiff, the same is not believable for more than one reason. Firstly because PW3 had no RFA No.668/2004 18 2025:KER:55008 explosive license and secondly because PW1 admitted that initially he himself engaged 12 labourers for blasting rock from Vattappara. PW4 spoke about supply of stones to the plaintiff in 1991, while the present work was in 1992-94. He also could not state the name of the owner of the quarry from where stones were supplied to the plaintiff. In the above circumstance the trial court was justified in disbelieving PWs 3 and 4. Though the commissioner (PW2) reported that the plaintiff brought stones from Parippally, it was copied from the plaint and not from any other reliable source and hence unreliable.
25. Except the oral testimonies of PWs 1,2 and 4 there is no other evidence to prove that the plaintiff brought any granite from Parippally for the work in question. Regarding the quantity of granite, if any brought from quarries other than Vattappara also, there is no evidence. I have already found that the evidence of PW4 is not reliable, while PW2 has no direct knowledge in that respect. The plaintiff could not produce even a scrap of paper to prove that he had purchased any granite from any quarries other than Vattappara, for the work in RFA No.668/2004 19 2025:KER:55008 question. In short, the plaintiff is claiming a huge amount from the government department towards extra conveyance allowance, without producing even a scrap paper from his side to prove any such expenditure from his pocket.
26. At the time of evidence there was an attempt to show that a sufficient number of private quarries were also not available near the department quarry at Vattappara and that stones of the required size were not available in those quarries. During the cross-examination PW1 deposed that he did not know the details of private quarries present near the department quarry. As already noted, even in Ext.C1, PW2 reported that when he visited Vattappara quarry in the year 2000, though the area allotted to the plaintiff was seen abandoned for years, nearby private quarries were in operation. However, during the time of evidence he had taken a stand that no such private quarries were noted by him. Though PW3 admitted that there are 6 small quarries near Kovalam, according to him, they were not producing armour stones. PW4 has not denied the suggestion that about 50 other quarries were working near Kovalam. RFA No.668/2004 20
2025:KER:55008 When it was suggested that in several other quarries in the district, stones of required size were being produced, he pleaded ignorance.
27. At the same time, DW1 categorically deposed that there were about 50 other quarries near Vattappara quarry and that in those quarries stones of required size were produced. From the above evidence of PW3 and DW1 and from Ext.C1 it can be safely concluded that there were a sufficient number of private quarries also near to the department quarry at Vattappara. Even if sufficient quantity of granite was not available from the department quarry at Vattappara, the plaintiff could have collected the remaining granite from the private quarries available near to the department quarry and only after exhausting those nearby quarries he could have proceeded to the distant quarries. The reason why the plaintiff avoided those private quarries which are present at Vattappara and proceeded to the distant quarry at Parippally, as now claimed, is also not explained. Similarly, he also ought to have obtained the prior permission of the defendant, if he wanted to claim any extra conveyance charge from them.
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28. Even according to the plaintiff, the defendants have entered into similar contracts with several other contractors and the same quarry at Vattappara was allotted to them also. In this context it is to be noted that, none of the other contractors have any difficulty in getting sufficient granite from Vattappara. They also have not raised any similar claim against the defendants. It is also to be noted that the plaintiff received the bill amount from the defendant without protest.
29. As argued by the learned Government Pleader, in Exhibit B1 agreement, there is no provision for paying any additional amount towards extra conveyance in case the contractor brings material from far away places. Since as per Exhibit B1, the plaintiff was bound to collect granite from the nearby department quarry at Vattappara and if the plaintiff at his own instance and convenience brought stones from a distant place, without the prior permission of the defendants, the additional expenses, if any, met by him is to be borne by him.
30. The plaintiff, who had 15 years of experience in the field and undertook 48 similar works very well knew the nature, extent, quality RFA No.668/2004 22 2025:KER:55008 and availability of the rock at Vattappara when he entered into agreement with the defendant. Since the plaintiff entered into contract with the defendant after fully knowing about the nature, extent, quality and availability of the granite in the department quarry at Vattappara, he was not justified in claiming compensation for extra conveyance on the ground that he unilaterally brought granite from a far away place.
31. On the other hand, as noted above, in this case there is no reliable evidence to prove that the plaintiff has in fact brought any granite from the Parippally quarry, as claimed. Even if he had brought any portion of the granite used for the work from any quarry other than the department quarry at Vattappara, there is nothing to show that it was from Parippally. Even if any such portion was brought from any quarry other than the department quarry at Vattappara, there is also no reliable evidence to prove it's separate quantity. The present suit filed after receiving the bill amount without protest, on the basis of Ext.A2 issued by the government 'as a very special case', in a different context and praying for applying the same yardstick in the present contract is an RFA No.668/2004 23 2025:KER:55008 experimental one, devoid of any merits. In the above circumstance, the trial court was perfectly justified in dismissing the suit. I do not find any irregularity or illegality in the impugned judgment and decree of the trial court so as to call for any interference and as such, this appeal is liable to be dismissed. Point answered accordingly.
32. In the result, this appeal is dismissed with costs. All pending interlocutory applications shall stand closed.
Sd/-
C. PRATHEEP KUMAR, JUDGE sou.