Kerala High Court
P.K.Ramachandran vs State Of Kerala on 24 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
RFA NO. 270 OF 2017
AGAINST THE JUDGMENT AND DECREE DATED 29.10.2015 IN
O.S.NO.85/2007 OF III ADDITIONAL SUB COURT, ERNAKULAM
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APPELLANTS/DEFENDANTS:
1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY
TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM.
2 THE SUPERINTENDING ENGINEER, P.W.D.BUILDINGS &
LOCAL WORKS, CENTRAL CIRCLE, T.B.ROAD, THRISSUR.
BY SENIOR GOVERNMENT PLEADER, SRI.B.UNNIKRISHNA
KAIMAL
RESPONDENT/PLAINTIFF:
**1 P.K.RAMACHANDRAN, AGED 74 YEARS, S/O.KUNJU
PANICKER, RESIDING AT DEEPA MANDIR KARUVELIPADY,
KOCHI, THOPPUMPADY VILLAGE, KOCHI TALUK,
ERNAKULAM.(DIED)
Addl.R2 A.R.DEEPA, SREELAKSHMI PRRA-9 PALLICHAMBEL ROAD,
PALARIVATTOM P.O., KOCHI-682025.
Addl.R3 A.R.DENOOP, DEEPA MANDIR, KARUVELIPADY,
THOPPUMPADY P.O., KOCHI-682005.
BY ADVS.
K.BABU THOMAS
MARYKUTTY BABU
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
17.01.2023, ALONG WITH RFA NO.374/2017, THE COURT ON
24.03.2023 DELIVERED THE FOLLOWING:
RFA Nos.270 & 374/2017 ..2..
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
RFA NO.374 OF 2017
AGAINST THE JUDGMENT AND DECREE DATED 29.10.2015 IN
O.S.NO.85/2007 OF III ADDITIONAL SUB COURT, ERNAKULAM
APPELLANT/PLAINTIFF:
*1 P.K.RAMACHANDRAN, DEEPA MANDIR, KARUVELIPADY,
THOPPUMPADY P.O., KOCHI TALUK, ERNAKULAM, KOCHI-682005.
Addl.A2 A.R.DEEPA, D/O.LATE P.K.RAMACHANDRAN,
AGED 53 YEARS, SREELAKSHMI, PRRA-9, PALLICHAMBEL ROAD,
PALARIVATTOM P.O., KOCHI-682025.
Addl.A3 A.R.DENOOP, AGED 45 YEARS,
S/O.LATE P.K. RAMACHANDRAN, DEEPA MANDIR, KARUVELIPADY,
THOPPUMPADY P.O. KOCHI -682005.
(THE LEGAL REPRESENTATIVES OF THE DECEASED SOLE
APPELLANT ARE IMPLEADED IN THE PARTY ARRAY AS
ADDITIONAL APPELLANTS 2 AND 3 VIDE ORDER DTD.01/08/2018
IN IA 1224/2018
BY ADVS.
SRI.K.BABU THOMAS
SMT.MARYKUTTY BABU
RESPONDENTS/DEFENDANTS:
1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO
GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 THE SUPERINTENDING ENGINEER, P.W.D.BUILDINGS & LOCAL
WORKS, CENTRAL CIRCLE, T.B.ROAD, THRISSUR-680001.
BY SENIOR GOVERNMENT PLEADER, SRI.B.UNNIKRISHNA KAIMAL
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
17.01.2023, ALONG WITH RFA.NO.270/2017, THE COURT ON 24.03.2023
DELIVERED THE FOLLOWING:
RFA Nos.270 & 374/2017 ..3..
A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ.
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RFA Nos.270 & 374 of 2017
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Dated this the 24th day of March, 2023
JUDGMENT
A.Muhamed Mustaque, J.
These appeals arise from the judgment of the
Sub Court, Ernakulam in O.S.No.85/2007 dated
29.10.2015.
2. The above suit was for declaration and
realization of money based on the contract entered
between the plaintiff and the State Public Works
Department, the defendants in the suit. The suit
has been decreed substantially in favour of the
plaintiff. These appeals are preferred by the
plaintiff and the defendants. The parties, for
brevity, in these appeals are referred to as the
plaintiff and the defendants.
3. The plaintiff was awarded a work for the
construction of 350 bedded ward of an Ayurveda
RFA Nos.270 & 374/2017 ..4..
hospital at Thripunithura on 09.09.1997. The
period of the contract was 24 months. The work was
completed on 14.12.2005. The suit was laid for the
unpaid value of the work. The plaintiff's claim
and the claim allowed by the trial court can be
summarized as follows:
Nature of claim Plaint claim Allowed by the
trial court
The unpaid value of Rs.2,35,46,148/- Rs.2,35,46,148/-
the work carried out
between 21.9.1999
and 1.12.2004 based
on 1996 PWD Schedule
and 1999 PWD
schedule rate.
The unpaid value of Rs.47,84,011/- Rs.45,29,922/-
the work carried out
between 1.12.2004
and 14.12.2005.
Unpaid agreed rate Rs.89,70,231/- Rs.87,60,427/-
for flooring with
marble tiles.
Unpaid value of Rs.15,72,751/- Rs.15,72,752/-
works using semi-
wire cut bricks in
the place of country
burnt bricks.
Interest on delayed Rs.75,48,807/- Rs.22,48,751/-
payment
The value of cement Rs.10,57,446/- Rs.10,57,446/-
procured from the
open market
RFA Nos.270 & 374/2017 ..5..
4. Heard the learned counsel appearing for
the plaintiff and the learned Government Pleader.
5. We note that there was a considerable
delay in handing over the site and in supplying
materials as agreed. No one has a case that the
plaintiff had committed any default. The plaintiff
was paid a sum of Rs.9,29,06,994/- pending suit on
16.02.2009. The final bill was prepared on
25.11.2005. Though an argument has been raised by
the learned Government Pleader based on
limitation, in the light of the fact that the
final bill itself was prepared only in the year
2005 and the suit was filed on 01.02.2007, we find
no merit in this argument. We, thus, overrule the
argument of the learned Government Pleader.
6. The following issues were framed by the
court below:
1.Whether the plaintiff had made construction as
per the agreement or not.
2. Whether the plaintiff is entitled to get a
RFA Nos.270 & 374/2017 ..6..
decree for realization of the amount
claimed.
7. We have already overruled the objection of
the learned Government Pleader on the point raised
on the limitation. According to the learned
Government Pleader, the plaintiff received the
money after the final bill. The plaintiff also
executed a supplemental agreement and in the light
of the supplemental agreement and the acceptance
of the final bill, the contractor cannot claim any
other amount other than as agreed in the
agreement.
8. The learned Government Pleader referred to
the following Clauses in the supplemental
agreement:
Clause-3 in supplemental agreement No.1 is as
follows:
"The decision of the Superintending Engineer
regarding the amounts payable for the extra item
shall be final and legally binding on the
contractor and cannot be questioned by the
RFA Nos.270 & 374/2017 ..7..
contractor in any manner whatsoever."
The recital in the supplemental agreement No.7 is
as follows:
"whereas the contractor further agreed that
no further claim will be preferred on account
of extension of the period of the contract".
Clause 2 in supplemental agreement No.8 is as
follows:
"The contractor shall not claim any
enhanced rate or compensation whatsoever for or
on account of such extra items due to the
increased rate of labour or materials or any
other ground."
The proceedings of the Superintending Engineer and
his order dated 19.4.2020, in Clause 1, states
that due to the extension of time for completion,
no claim for enhanced rate will be allowed for the
work.
9. While allowing the claim, the trial court
relied on the opinion of the expert's report. The
RFA Nos.270 & 374/2017 ..8..
rates were quoted in accordance with the 1996
schedule by 60% in July 1999 and 80% in December,
2004. The expert, accordingly, calculated the
measured work and found that the plaintiff was
entitled to a sum of Rs.2,73,33,999/- as against
the claim for Rs.2,35,46,148/-. The question is
whether the plaintiff is entitled to an enhanced
claim in the light of the change of the PWD
schedule of rates.
10. The learned counsel for the plaintiff
Sri.Babu Thomas, placing reliance on the judgments
in M/s.Aries and Aries v. Tamil Nadu Electricity
Board [AIR 2017 SC 1897] and Assam State
Electricity Board and others v. Buildworth
Pvt.Ltd. [AIR 2017 SC 3336], argued that the
plaintiff is entitled to escalation charges for
the works delayed beyond the scheduled period of
completion if the plaintiff is not at fault in
completing the work.
11. The contract provisions have to be read
RFA Nos.270 & 374/2017 ..9..
keeping in mind the duty attached to the parties
to the contract to perform the contract in
accordance with the terms and conditions in the
contract. The various clauses referred to as above
cannot deter the plaintiff from claiming
escalation charges if the delay was not occasioned
by the act of the plaintiff. In this case, the
site was handed over to the plaintiff after two
years. The materials were not supplied as per the
agreement. No attribution of the fault has been
made as against the plaintiff. The trial court
correctly came to the conclusion that the delay
was occasioned by the PWD itself. In P.M.Paul v.
Union of India [1989 supp.(1) scc 368], the apex
court opined that escalation is a normal incident
arising out of a gap of time in this inflationary
age in performing any contract. No one has a case
that a calculation made by experts based on the
prevalent schedule is erroneous. In such
circumstances, we affirm the impugned judgment
RFA Nos.270 & 374/2017 ..10..
awarding unpaid value work for Rs.2,35,46,148/-
and Rs.45,29,922/-.
12. The next claim is for the value of
marble. As per the contract, the agreed rate for
flooring the marble tiles included in item No.49
of the schedule of works, the plinth area was
10564.15 sq. m. The rate agreed was 1073.38 per
sq.m.. The plaintiff admittedly carried out the
marble flooring in the additional area. As per the
expert report, the total area is 11169.45 sq.m.
The plaintiff was paid for 10564.15 sq.m. in 2004.
The expert opined that for the additional work
done, the plaintiff was entitled to
Rs.87,60,427/-. We do not find any error in the
calculation of this amount.
13. The next claim was for the unpaid value of
the work using semi-wire cut bricks in the place
of country bricks. The expert calculated the total
value of the semi-wire cut machinery at
Rs.56,72,560/-. The plaintiff was paid
RFA Nos.270 & 374/2017 ..11..
Rs.40,99,808/-. The balance has thus arrived at
Rs.15,72,752/-. We also affirm the finding of the
trial court.
14. The next claim was for reimbursement of
the materials procured from the open market.
Exts.A9, A14, A20, A33, A38, A41, A42, A43, A62,
A63, A65, A70 and A78 were relied by the plaintiff
to substantiate his claim. The above are
communications issued by the plaintiff. There is
no contradiction of the claim for these amounts as
referred to in the above letters. Admittedly, the
Department failed to provide the materials in
time. We, thus, affirm that finding also.
15. The plaintiff filed a claim for
Rs.75,48,807/- towards interest for the delayed
payment. The court below allowed Rs.22,48,751/-
towards interest for the delayed payment. This
was subsequently incorporated in the original
decree as it appears that there was an omission to
include it in the judgment pronounced on
RFA Nos.270 & 374/2017 ..12..
29.10.2015. This portion was included only on
05.07.2016 as per the order in I.A. No.980/2016.
It is seen from the judgment, 6% interest was
allowed. The amount was calculated at
Rs.22,48,751/- and subsequently incorporated in
the decree. This can be treated as a clerical
mistake and no illegality has been committed by
the court below in calculating the interest.
16. The claim for the plaintiff that he is
entitled to the enhanced rate of interest is
untenable as it is not a commercial transaction.
However, the plaintiff is entitled to pendente
lite interest at 6% and future interest. So also
the plaintiff is entitled to the cost before the
court below though it was not granted by the trial
court. Thus:
I. RFA 270/2017 is dismissed. No order as
to costs.
II. RFA No.374/2017 is partly allowed.
The plaintiff is entitled to pendente lite
RFA Nos.270 & 374/2017 ..13..
and future interest at 6% till realization
of decree on the reliefs granted other
than for the decreed amount of
Rs.22,48,571/- ordered to be paid towards
interest.
III. The plaintiff is also entitled to the
proportionate cost in the trial court.
The plaintiff is also entitled to
proportionate cost in the appeal.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE
Sd/-
SHOBA ANNAMMA EAPEN, JUDGE
ln
RFA Nos.270 & 374/2017 ..14..
APPENDIX OF RFA 270/2017
PETITIONER ANNEXURES
ANNEXURE I TRUE COPY OF SIGNED MEASUREMENT BOOK
DATED 09.02.2009.
