Kerala High Court
M/S High Way Contractors Pvt Ltd vs The State Of Kerala on 2 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 2 ND DAY OF MARCH 2022 / 11TH PHALGUNA, 1943
RFA NO. 429 OF 2014
AGAINST THE JUDGMENT AND DECREE DATED 30/10/2013 IN OS 154/2008 OF SUB
COURT, NORTH PARAVUR
APPELLANT/PLAINTIFF:
M/S HIGH WAY CONTRACTORS PVT LTD
REGISTERED UNDER THE INDIAN COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT THYKADAVIL, 13TH LANE,
TOC H ROAD, VYTILLA, KOCHI -19.
REPRESENTED BY ITS EXECUTIVE DIRECTOR, JOSHUA KURUVILA,
S/O PROF. HOSHUA, CONTRACTOR, THYKADAVIL HOUSE, 13TH
LANE, TOC H ROAD, VHYTTILE, KOCHI-19
BY ADVS. SRI.A.KUMAR
SRI.P.G.ANILKUMAR
SMT G.MINI
SRI.P.S.SREE PRASAD
RESPONDENTS/DEFENDANTS:
1 THE STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT
GOVERNMENT SECRETARIAT
THIRUVANANTHAPURAM 695001
2 THE SUOERINTENDING ENGINEER
P.W.D. (N.H.) CENTRAL CIRCLE, VYTILLA- 682019
3 THE EXECUTIVE ENGINEER
N.H. (B) DIVISION,
KODUNGALLOOR- 680664
BY ADV SRI.T.K.VIPINDAS, Sr. GOVERNMENT PLEADER, R1 TO R3
THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON
17/02/2022, THE COURT ON 02.03.2022 DELIVERED THE FOLLOWING:
2
R.F.A. No.429 of 2014
P.B. SURESH KUMAR & C.S. SUDHA, JJ.
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R.F.A. No.429 of 2014
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Dated this the 2 nd day of March, 2022
JUDGMENT
C.S. Sudha, J.
This appeal is against the judgment and decree dated
30.10.2013 in O.S.No.154/2008 on the file of the Subordinate Judge's
Court, North Paravur. The suit is one for money. By the impugned
judgment, the suit has been partly decreed. Aggrieved, the plaintiff has
filed this appeal. The respondents herein are the defendants in the suit.
The parties in this appeal will be referred to as described in the suit.
2. The plaintiff firm was awarded the work of "NH:47 -
Strengthening the weak two-lane pavement by providing 100 mm / 75
mm BM and 25 mm AC from KM 312/430 to KM 331 527 (Karukutty to
Aluva Pulinchodu)". The agreement for the work was executed on
26/09/1997 between the plaintiff firm and the first defendant, on behalf of
R.F.A. No.429 of 2014
the Government of Kerala. The initial Probable Amount of Contract
(PAC) was to the tune of ₹ 4,07,50,000/- which was subsequently
revised and raised to ₹ 6,91,06,000/-. The time for completion of the
work was 18 months. During the course of the work, the revised
estimate was again revised and raised to include the widening of the
carriage way to ten meters and additional drain works to the tune of ₹
11,40,00,000/- as approved by the Ministry of Surface Transport
(MoST), Government of India. By December 1998, Bituminous
Macadam (BM) and Asphaltic Concrete (AC) work on the 7-meter-
wide carriage way was completed. The period of contract was
extended thrice by executing supplementary agreements dated
17/04/1999, 16/11/1999 and 04/05/2000. The period of completion of
the work was thus extended up to 31/05/2000. Though the plaintiff
requested the defendants to expedite the payment of the amounts due
to them, the same was not done. Finally, after several requests,
certain payments were made which are not in full/complete discharge
R.F.A. No.429 of 2014
of the liability. Hence the plaintiff firm issued notice under Section
80 CPC and after the expiry of the statutory period, filed the suit
claiming an amount of ₹ 1,41,25,151.79/-.
3. The defendants contended that the plaintiff is not
entitled to any further amounts. All payments due to them have been
made and no further amount is subsisting.
4. On behalf of the plaintiff, PW1 was examined and
Exts.A1 to A68 documents were marked. No oral or documentary
evidence was adduced by the defendants. After considering the oral and
documentary evidence and hearing the parties, the court below decreed
the suit partly.
5. Heard Sri.A.Kumar, the learned counsel for the appellant
and Sri.T.K.Vipindas, the learned Senior Government Pleader for the
respondents.
6. The only point to be considered in this appeal is
whether there is any infirmity in the findings of the court below.
7. The present appeal is confined to the claim of the
R.F.A. No.429 of 2014
plaintiff under two heads, namely, (i) the cost of earth used for filling up
the berms on either side of the carriage way, and (ii) the cost incurred in
transporting the earth to the low-lying areas. According to the plaintiff,
initially the work involved was BM and AC of 7 meters wide carriage
way and berm filling on either side of the carriage way. While the work
was in progress, there was a proposal to widen the carriage way from 7
meters to 10 meters, i.e., to increase the width of the tarred portion by 1.5
meters on either side. This second revised estimate for the widening was
sanctioned and communicated to the plaintiff firm by the end of
November, 1998, by which time the work as per the original revised
estimate, i.e., the BM and AC work of 7 meters wide carriage way as well
as berm filling up to the BM and AC level was almost complete. The
berm filling on either side of the 7 meters wide carriage way had to be
done immediately as the road level of the carriage way was raised by
almost 45 centimeters to 75 centimeters because of the execution of
Profile Corrective Course (PCC), BM and AC work. There were repeated
directions from the PWD and the Police Department to the plaintiff to
R.F.A. No.429 of 2014
complete the entire berm filling simultaneously with the work of carriage
way, as the carriage way had become an accident-prone area due to the
level difference. Hence the berm filling part of the work could not be
delayed. When the second revised estimate was sanctioned, the already
filled up and compacted berm with new earth had to be cut open in a box
shape to a depth of 23 cm and a width of 1.6 meter for the construction of
the hard shoulders with 3 layers of water bound macadam and pre mix
carpet. At the time of preparing the final bill, the authorities accepted the
measurements for payment of Water Bound Macadam (WBM) and pre
mix carpet on either side of the road. They also paid for box cutting for
removal of the filled and compacted earth where the WBM was executed.
The measurements of box cutting and the measurement of the WBM are
both the same. However, the defendants failed to pay for the earth filled
and compacted in the area, even though they made payment for box
cutting the same quantity. On 25/09/2000 as directed by the Executive
Engineer, the cut earth which had been heaped on the side of the berms
was conveyed to the low-lying areas, spread and compacted. The
R.F.A. No.429 of 2014
Superintending Engineer, National Highway, Central Circle, Thrissur,
during his visit on 17/11/2000 also directed the plaintiff to transport and
spread the earth to low-lying area of the side berms. This was confirmed
by the Executive Engineer's report dated 26/02/2001 to the
Superintending Engineer. This spreading and compacting was also paid
but the conveyance to the low-lying area averaging about 2 kms. was
never paid. According to the plaintiff, the quantity of earth used is
12,416.747 cubic meters (5714.938 + 6701.83) which has been recorded
in page 33 of Measurement Book (MB) 45/98-99. The fact that these
works were done by the plaintiff will be evidenced by letter dated
08.05.1998 of the Assistant Engineer; letter dated 10/06/1998 of the
Executive Engineer; letter dated 11/06/1998 of the SI of Police,
Angamaly; letter dated 28/07/1998 from the Assistant Engineer; letter
dated 04/08/1998 of the Assistant Executive Engineer as well as
photographs of the site. The quantities of work which have not been
accounted for payment in the final bill are borne out in the Measurement
books. Appendix A-item no.6 in the schedule of quantities deal with earth
R.F.A. No.429 of 2014
filling for side berms using selected earth. In the final bill, the quantity of
earth used for filling the berms was reduced by 12416.746 (5714.873 +
6701.873) cubic meters. The amount that has been erroneously reduced on
this account is 12,416.746 x ₹ 219 = ₹ 27,19,267.37/-. This quantity of
earth was first used for filling up the berms. It was thereafter excavated
and spread in low-lying areas as per instructions received vide letter dated
25/09/2000 of the Executive Engineer. Accordingly, 12416.746 cubic
meters of earth was conveyed to low-lying areas by the plaintiff at a cost
exceeding ₹10 lakhs which has been omitted to be recorded in the final
bill.
8. The court below rejected both the aforesaid claims on
the ground that the cost of earth used for filling the berms had already
been given to the plaintiff. As far as the transportation charges are
concerned, it was held that the plaintiff had not produced any evidence to
establish the same.
9. The fact that there was level difference between the 7
meters wide carriage way and the berms is clear from Ext.A6 series
R.F.A. No.429 of 2014
photographs. The reply given by the defendants in their written to the
case of the plaintiff relating to berm filling reads-
"10. The allegation contained in Para 18, 19 are denied. The final bill
was arrived after detailed scruting[SIC]. No omission had occured [SIC]
as claimed by the plaintiff in his letter while passing the CC 9th and part
I 12/98 the plaintiff had not carried out the berm filing WBM work.
These itms [SIC] were included in the revised estimate sanctioned by the
ministry vide letter No. NH5 12018/68/98 (KL) dated 11/98. The berm
filing and WBM work had been carried out only after that and first claim
of the above item was due in CC10th and the Part on 12/98 quantities of
work alleged to be not account of payment in the final bill was hearted
[SIC] by the plaintiff in Para 18B are false and baseless. ..."
10. From a reading of the above contention it is clear that
the defendants admit the fact the berm filling had in fact been done by the
plaintiff. However, they seem to be disputing the claim of the plaintiff
regarding the point of time at which it was done.
11. The case of the plaintiff that he had been directed by
the authorities concerned to fill up the berm on both sides at the earliest is
established by Exts.A4, A5 and A35. In Ext. A4 the Assistant Engineer
has written thus to the plaintiff-
R.F.A. No.429 of 2014
"It is informed by the government that V.V.I.P Visit (President of
India) is arranged at Chalakkudy on 04.08.98. Also strict
institutions is given to N.H authorities to keep N.H 47 in pucca
condition for the smooth movement of carcade of the V.V.I.P- as on
alternate route. While carrying out the above work the surface
between km 314/700 to 315/300 is at present in split level which is
not appreciable for the movement of carcade. Hence you are
requested to smoothen the difference in level by providing B.M mix
on war foot pace. Also the vertical edges formed by providing
comber and super elevation correction remain as a trap for vehicles,
irrespective of repeated request from this office to take remedial
measures. Hence this complaint also has to be attended urgently in
connection with the V.V.I.P Visit....".
12. In Ext.A5 letter dated 04/08/1998 from the Assistant
Executive Engineer to the plaintiff reference is made to Ext.A4 and the
latter is requested to urgently make necessary arrangements as desired in
the letter. Ext.A35, is a letter from the S.I. of Police, Angamaly to the
Assistant Executive Engineer, National Highway, Angamly requesting
the latter to give the details of the contractor who had carried out the
works of the carriage way from the bridge at Karayamparamb to Elavoor
junction. This request is seen made in the light of the road accidents that
R.F.A. No.429 of 2014
took place at the spot due to the level deference caused between the road
and the side berms. Therefore, the case of the plaintiff that the work of
berm filling was directed to be done simultaneously along with the
tarring work of the 7 meters road, is established by Exts.A4, A5 and A35,
which documents have not been disputed or discredited by the
defendants.
13. Admittedly, after the first contract was awarded, the
authorities decided to widen the carriage way from 7 meters to 10 meters.
According to the plaintiff, the second contract was awarded when they
had completed more than 75% of the work as per the first contract. They
had also filled up the berms on either side as per the directions contained
in Exts.A4, A5 and A35. Therefore, when the second contract was
awarded to increase the width of the carriage way from 7 to 10 meters, the
earth from the berms filled up for the entire stretch of 19 kms had to be
removed by a process called 'box cutting'. The fact that the plaintiff had
done the box cutting, removed the earth and conveyed it to the low-lying
areas and had compacted the same is admitted. It is also admitted that the
R.F.A. No.429 of 2014
box cutting charges had been given to the plaintiff. However, they have
not been given the cost of the earth that was used for filling up the berms.
According to the plaintiff, the quantity of earth used was 12,416.746 cubic
meters. The quantity of earth used and removed is not disputed. In fact,
this was admitted by the defendants before the court below.
14. In Ext.A1agreement, item No.6 of the Schedule reads -
Sl.No Quantity Description of work Unit Rate in Amount
Figures Words Rs.
Earth filling for side
harness using selected
earth CBR not less
than 10 and using
Rupees
paver roller as per
One
14610 MOST specification
6. m3 Rs.102/- hundred 14,90,220/-
m3 including cost and
and two
conveyance of earth
only.
and other incedential
charges as per MOST
specification 301(ii),
305-3, 5(ii).
Therefore, the court below referring to the details given in column 3 of the
Schedule, concluded that this item includes the cost of earth also. That
R.F.A. No.429 of 2014
amount has already been paid and so the plaintiff cannot claim the cost of
earth separately. Though the defendants contend that amount including the
cost of earth has been paid, they have been unable to establish the same
from the measurement books marked as Exts. A33 series and A34 series.
As stated earlier, the quantity of earth used for filling and the quantity of
earth that was removed by box cutting is admitted. The rate at which the
cost is claimed is not disputed. The only case is that the defendants have
paid the amount, which case they have been unable to establish. That
being the position, the plaintiff is entitled to the cost of the earth that was
used for filling up the berms which was later on removed and spread on
the low-lying areas as directed by the authorities concerned, which comes
to ₹ 27,19,267.37/ (12416.746x ₹219).
15. The plaintiff claims an amount of ₹10 lakhs towards
transportation charges for conveying the earth to the low-lying areas. The
court below rejected this claim on the ground that no evidence had been
produced by the plaintiff to establish the same. The finding of the court
below that there was no transportation of earth involved appears to be
R.F.A. No.429 of 2014
incorrect from Exts.A8, A9 and A11 letters. Ext. A8 letter dated
25/09/2000 from the Executive Engineer to the plaintiff directs the latter
to convey the heaped cut earth found at different locations to be used for
filling up the lower portions of the side berms. Ext.A9 dated 21/11/2000 is
a letter from the Superintending Engineer to the Executive Engineer, N.H.
(B) Division, Palarivattom, directing rectification works and to spread the
dumped earth. Ext. A11 dated 26/02/2011 is a letter from the Executive
Engineer to the Superintending Engineer, N.H(Central) Circle, Thrisur, to
the effect that the rectification works and the spreading of dumped earth
directed in Ext.A9 has been satisfactorily carried out by the plaintiff.
Therefore, it is clear that the plaintiff had transported the cut earth, spread
it and compacted in the low-lying areas. Hence, he is entitled to the
transportation charges also.
16. The amount that has been claimed by the plaintiff
under this head is ₹ 10 lakhs. However, the plaint does not specify as to
how this figure has been arrived at. The quantity of cut earth removed,
transported, spread and compacted is admitted to be 12,416.746 cubic
R.F.A. No.429 of 2014
meters. Ext.A57 is the schedule of rates issued by PWD in the year 1996.
"CONVEYANCE OF MATERIALS BY LORRY
Sl. Materials Unit of Upto 5 Over 5 Over 6 Over 7 Over 8 km. Over 9 km. For every
No. rate km. km. and km. km. and and upto 9 and upto 10 additional
upto 6 and upto 8 km. km. km. 1 km. or
km. upto 7 part
km. thereof
2 Split stones m3 33.50 37.20 40.95 44.70 48.40 52.15 3.75
and blasted
rubble 45 dm3
and below in
size, Laterite
stones,
Laterite
chips, earth,
gravel, sand
and broken
stones.
The minimum rate can be taken, which is the rate up to 5 kms.
Admittedly the quantity of earth removed is12,416.746 cubic meter.
Hence the amount due would be 12,416.746 x ₹33.50 = ₹ 4,15,960.991/-
which can be rounded to ₹ 4,15,960/-.
In the result, the appeal is partly allowed with costs. The
decree of the court below is modified to the following extent- in addition
to the amounts decreed by the court below, the plaintiff is entitled to an
amount of ₹ 4,15,960/- towards transportation charges and
₹27,19,267.37/- towards the cost of earth with interest @ 12% /annum
R.F.A. No.429 of 2014
from the date of suit till decree and thereafter @ 6% /annum from the date
of decree till realization and costs from the defendants and their assets.
All interlocutory applications, if any pending, shall stand
disposed of.
Sd/-
P.B. SURESH KUMAR, JUDGE.
Sd/-
C.S. SUDHA, JUDGE.
ami/
