Kerala High Court
M.Haneefa vs The Pathanamthitta Municipality on 20 February, 2024
Author: Sathish Ninan
Bench: Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
TUESDAY, THE 20TH DAY OF FEBRUARY 2024 / 1ST PHALGUNA, 1945
RFA NO. 375 OF 2016
AGAINST THE JUDGMENT IN OS 203/2009 OF SUB COURT, PATHANAMTHITTA
-----
APPELLANT/PLAINTIFF:
M.HANEEFA,
AGED 63 YEARS,
S/O.MUSTHAFA MEERAVU RAWTHER, KUREEKATTIL HOUSE,
CHITTUR WARD,PATHANAMTHITTA.
BY ADV SRI.S.ABDUL RAZZAK
RESPONDENTS/DEFENDANTS:
1 THE PATHANAMTHITTA MUNICIPALITY,
REPRESENTED BY ITS SECRETARY,MUNICIPAL OFFICE,
PATHANAMTHITTA689 645.
2 MR.ZAKIR HUSSAIN,
AGED 44 YEARS, S/O.THANKAKUTTY, [FORMERLY CHAIRMAN,
PATHNAMTHITTA MUNICIPALITY],BEENA MANZIL, AZHOOR,
PATHANAMTHITTA, 689 645.
3 M.MUHAMMED HUWAIZ,
AGED 43 YEARS, S/O.K.MUHAMMED KUNJU, [FORMERLY
SECRETARY, PATHANAMTHITTA MUNICIPALITY],KALEELIL
HOUSE, PUTHENCHANTHA P.O, CHAVARA, 691 583,
KOLLAM DISTRICT.
RFA NO. 375 OF 2016 -2-
4 STATE OF KERALA,
REPRESENTED BY PRINCIPAL SECRETARY, LOCAL SELF
GOVERNMENT DEPARTMENT,GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
BY ADVS.
SRI.V.K.SUNIL(SC) B/O
SRI.MANU RAMACHANDRAN
SMT.KRIPA ELIZABETH MATHEWS
SMT.PRIYANKA VARGHESE
SMT.P.F.ROSY
SRI.V.M.SYAM KUMAR
SMT.K.B.SONY, GOVT. PLEADER (B/O)
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
20.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
= = = = = = = = = = = = = = = = = =
R.F.A. No.375 of 2016
= = = = = = = = = = = = = = = = = =
Dated this the 20th day of February, 2024
J U D G M E N T
The suit for money under a construction contract
was decreed in part. Dissatisfied with the decree, the
plaintiff is in appeal.
2. On 14.09.2007, Ext.A1 agreement was entered into
between the plaintiff and the defendants with regard to
metalling work in the bus stand yard of the
Municipality. The period fixed for completion of the
work was three months. There occurred delay in
completion and there arose disputes between the parties.
The contract was terminated and the work was re-
tendered. There were various litigations with regard to
the same which are not being adverted to herein as they
are not relevant for the purpose of disposal of this
case. The work was completed by the subsequent
contractor. The suit is for money for the work done by
the plaintiff, the cost of materials, loss caused to the
plaintiff consequent to the delay allegedly caused by
the defendants etc.
3. The defendants allege that the plaintiff was
responsible for the delay and that the contract had to
be terminated consequent on the failure of the plaintiff
to complete the work in terms of the contract. He prayed
for dismissal of the suit.
4. The trial court found that, the plaintiff though
had not completed the work, had done part thereof and
was entitled for its value. Accordingly the suit was
decreed in part. This appeal has been filed by the
plaintiff in so far as it relates to the portion of the
plaint claim which was not granted by the trial court.
There is no appeal by the defendants.
5. I have heard Sri.S.Abdul Razzak, the learned
counsel for the appellant and Sri.V.K.Sunil, the learned
counsel for the defendant-Muncipality, and Sri.Manu
Ramachandran and Sri. V.M. Syam Kumar, on behalf of the
party respondents.
6. The points that arise for consideration are,
(i) Is the plaintiff entitled for value for the work done in
addition to the cost of the materials utilized?
(ii) Is not the plaintiff entitled for return of the security
deposit?
(iii) Is the plaintiff entitled for value of the metal
provided for at the site for the second phase of work, which he
was not able to carry out?
7. Ext.A1 agreement which was entered into on
14.09.2007, fixed three months for completion of the
work. It is not in dispute that the site was handed over
to the plaintiff only belatedly, in February, 2008. On
account of the various differences, the contract was
terminated. We are not concerned about the
justifiability or otherwise of the termination.
8. Ext.A1 agreement related to five items of work;
out of the same items 1, 2 and 3 related to supply of
materials, and items 4 and 5 related to labour. The work
was to be done in two stages-firstly, the soling and
secondly, the layer on its top. It is not in dispute
that the materials in items 1 and 3 are necessary for
carrying out the first phase of work namely, soling.
9. Though there is some dispute between the parties
with regard to the area of work done under phase-I it is
not in dispute that phase-I was completed by the
plaintiff. The engineer reported that the plaintiff had
carried out the phase-I for an area of 12030 sq. metres
though he claimed to have done work for an area of 15550
sq. meters. The quantity of materials used in item No.1
viz. hard blue granite broken stone was found to be
1203.10 M3. It was found that though the thickness was
to be 7 centimeter, the average thickness of the work
done was only 6.25 centimeters. The quantity of the
materials was measured by the engineer, as noted above.
So the court concluded that the plaintiff did excess
area with less quantity of material.
10. It is not in dispute that the subsequent
contractor carried out the second phase of the work upon
the first phase already carried out by the plaintiff.
There is no case for the defendants that the subsequent
contractor had to do extra work over the first phase
resulting in extra cost. Taking note of the same the
trial court has held that the plaintiff is entitled for
value of the materials collected under item No.1 for
completion of phase-I.
11. However, the trial court did not take note of
the fact that item No.3 was also essential for
completing phase-I, which was also utilized by the
plaintiff. So also the labour under item No.4 for
completion of phase-I was not taken note of by the trial
court. As noticed, there is no claim for the defendants
that they had sustained any damages. There is no counter
claim for any damages, much less a plea to the said
effect. Therefore, the plaintiff is entitled for the
value of the materials supplied under item Nos.1 and 3
and also the value of the labour for item No.4.
12. Coming to the quantity of material under item
No.3, Ext.A1 specifies the quantity at 473.00 M 3. The
rate fixed is ` 220/- per M3. However, in Ext.A14 report
of the Superintending Engineer it is reported that as
per the M. Book, the quantity of gravel earth supplied
is noted as 270 M3. The total value for the same is
` 59,400/-. The rate quoted by the plaintiff was 23.1%
below the estimated rate. Therefore, the same has to be
deducted to arrive at the amount that the plaintiff is
entitled for. The said amount comes to ` 45,679/-.
Though the learned counsel for the plaintiff would
contend that the entire quantity as was specified in the
tender was and had to be utilised to do the work, as
noticed above, records show otherwise. Hence the said
argument can only be repelled.
13. Now coming to the cost of the labour namely
item 4, as per Ext.A1, the quantity of materials in
Serial No.1 required for an area of 13514 square metres,
as mentioned in serial number 4, is 1352 M 3. The
engineer had reported that the quantity of item No.1
collected/supplied by the plaintiff is 1203.10 M 3. The
proportionate area would accordingly be roughly 12030
M2. Though going by Ext.A15 report of the Executive
Engineer to the Chief Engineer the area is 14002.54 M 2
as was noticed by the trial court, the plaintiff has
used only lesser quantity for completing the larger area
and the thickness is also less than what was required.
Therefore, it is not appropriate to grant the cost of
labour for the excess area done by him. In Ext.A14
report of the Superintending Engineer referred to supra
it has been reported that, with the quantity of
materials supplied the area that could be metaled is
12072 M2. The plaintiff could be granted the cost of
labour for the area which alone he could have done with
the said material supplied viz. 12072 M 2. Ext.A1
specifies the rate of item No.4 as ` 304/- per 10 M2.
Thus the total cost is 1207.2 x 304 = ` 3,66,989/-. As
noticed earlier the quoted rate of the plaintiff is less
23.1% below the estimated rate. Therefore, the said
amount is to be deducted therefrom ie. 3,66,989 - 84,774
= ` 2,82,215. The plaintiff is entitled for that much
amount under item No.4.
14. The plaintiff has a claim for the cost of
materials supplied under item No.3 in Ext.A1 agreement.
With regard to the said materials, the Municipality had
informed the plaintiff under Ext.A34 that the materials
supplied under item No.2 is not in accordance with the
specification and are to be removed from the site. In
spite of the same, the plaintiff did not remove the
same. The learned counsel for the plaintiff would
contend that clause 10 in Ext.A1 specifically prohibited
the plaintiff from removing the materials from the site.
Clause-10 of Ext.A1 reads thus:-
"IcmÀ ZpÀ-º-e-s¸-Sp-¯p-t¼mÄ {]-hr-¯n \-S-¯p-ó
Øe-¯v kw-`-cn-¨p-sh-¨n-«p-Å Fñm \nÀ½m-W km-[-\-
§fpw b-t{´m-]-I-c-W-§fpw {]-hr-¯n \-S-¯p-ó Ø-e-
¯p-\n-óv I-cm-dp-Im-c³ am-äm³ ]m-Sp-ÅXñ. {]-kvXp-X
km-[-\-§-sfñmw A-f-sh-Sp-¯-ti-jw {]-hr-¯n-¡p-th-
ïn D-]-tbm-Kn¡mt\m te-ew sN-bv-Xv hn-äv B h-I-bnð
e-`n-¡p-ó Xp-I \-ã-]-cn-lm-c-¯p-I-bnð h-I-bn-cp-¯p-
óXnt\m ]-ôm-b-¯v/ap³-kn-¸m-en-än/tImÀ-¸-tdj-\v ]-
cn-]qÀ-®am-b A-[n-Im-c-ap-ïm-bn-cn-¡p-ó-XmWv."
Clause-10 enables the defendants to utilize the
materials available at the site or to auction it and
appropriate the amount towards damages. It does not
prohibit the defendants from requiring the plaintiff to
remove the materials from the site. In fact it would
only be more advantageous to the plaintiff. In spite of
the specific demand under Ext.A34, the plaintiff failed
to remove the materials. The plaintiff having failed to
remove the materials, they cannot claim its value as
damages. The plaintiff could be permitted to remove such
materials from the site.
15. The next head of claim is return of the
security deposit of one lakh. In the absence of any
claim for damages, the defendants are bound to return
the security deposit. The plaintiff is entitled to get
return of the same.
16. The above heads under which the plaintiff is
entitled for a decree have not been taken into
consideration by the trial court. The decree and
judgment of the trial court is liable to be modified to
the above extent.
17. The learned counsel for the Municipality would
contend that an error has crept in the decree of the
trial court since the Court had failed to deduct 23.1%
from the estimated rate, it being the rate quoted by the
plaintiff. It is to be noted that, the defendants never
chose to challenge the decree on any ground. However, it
is apparent that the trial court has calculated the
amount payable based on the estimated rate and not the
quoted rate. Thus there has to be a deduction of 23.1%
from the amount decreed by the trial court. Though there
is no appeal by the defendants, the mistake/error being
apparent, this Court is entitled to have the same
corrected in exercise of the powers under Order XLI Rule
33 of the Code of Civil Procedure. Thus deducting 23.1%,
the amount payable to the defendant in the place of the
trial court decree is ` 5,84,674-00.
18. Therefore, the plaintiff is entitled for a
decree under the following heads :-
(i) Cost of materials supplied under item No.1 in
Ext.A1. = `5,84,674-00
(ii) Cost of materials supplied under item No.3 in
Ext.A1 = ` 45,679-00
(iii) Cost of labour for the work done under item
No.4 in the agreement = ` 2,82,215-00
(iv) Security deposit = ` 1,00,000-00
Total = ` 10,12,568
19. Referring to the judgment of the Apex Court in
Ramachandra Narayan Nayak v. Karnataka Neeravari Nigam Ltd. And
Ors. 2013 AIR SCW 5913, the learned counsel for the
plaintiff would contend that the plaintiff is entitled
for interest at the rate of 9% per annum on the amount
payable. Considering the entire facts of the case in the
light of the judgment of the Apex Court afore, I am of
the opinion that the plaintiff is entitled for interest
at the rate of 9% on the amount due, from the date of
suit till the date of decree. The plaintiff shall be
entitled for interest at the rate of 6% from the date
of decree till realisation.
Resultantly, this appeal is allowed. The decree and
judgment of the trial court is set aside and a decree is
passed allowing the plaintiff to realise an amount of
` 10,12,568-00 (Ten lakhs Twelve Thousand Five Hundred
and Sixty Eight Only), with interest thereon at the
rate of 9% per annum from the date of suit till date of
decree, and thereafter at the rate of 6% per annum, from
the first defendant and its assets. The plaintiff shall
be entitled for proportionate costs throughout.
Sd/-
SATHISH NINAN
JUDGE
kns/-
//True Copy//
P.S. to Judge
PETITIONER ANNEXURES
ANNEXURE A1 PHOTOCOPY OF THE CALCULATION STATEMENT
-----
