The defendant in OS No. 144 of 2008, on the file of the I Additional Sub
Court, Ernakulam, is the appellant. (For the purpose of convenience, the parties
2. The plaintiff in this case is the Corporation of Cochin represented
by its Secretary. The defendant had won the bid for the right to collect the fees
for conducting a comfort station at Kaloor bus stand for the financial year 2004-
05 for a sum of Rs. 8,77,777/-. The defendant had deposited 25% of the bid
commenced from 1.4.2004. Since the defendant failed to pay the balance amount
amount of Rs.6,61,412/- along with penal interest of Rs.65,833/-. However, he
failed to pay the amount as directed and hence this suit was necessitated.
3. The defendant filed a written statement raising various contentions.
According to him, the suit is barred by limitation. Further, it was contended that
respect to the collection of fee for conducting the comfort station at Kaloor.
which he had bid, could not be further proceeded with. Therefore, according to
him, he is not liable to pay any further amount to the plaintiff. He admits that he
had won the bid for the right to collect the fees for conducting the comfort station
at Kalloor for the financial year 2004-05 for an amount of Rs. 8,77,777/- and
remitted 25% of the said amount on 02.04.2004. He also would admit that he has
taken possession of the comfort station on 1.4.2004. According to him, only after
for want of timely maintenance and repairs. According to him, there was no water
well was not functioning. The toilets/latrine were absolutely dysfunctional. The
closets were blocked. The manholes leading from the closets were blocked. The
septic tank had not been cleaned for more than two years. According to him, on
01.04.2004 itself he had intimated the said fact to the officials of the Corporation.
Though the plaintiff's officials have agreed to set all those things immediately,
there was no positive response from them. Therefore, on 03.04.2004, the
defendant had given a written complaint to the plaintiff in that respect.
4. According to the defendant, he had bid for the right to collect the
fee in the comfort station on the bonafide belief that, the comfort station is in a fit
and usable condition. According to him, within a week the electricity connection
was also disconnected by KSEB stating that huge arrears were pending. Though
the defendant approached the plaintiff and requested to take steps to restore the
electric and water connection, they did not take any positive action. However, on
execute an agreement within 24 hours, to which he sent a reply dated 14.05.2004.
approached the High Court by filing Writ Petition No. 16649 of 2004, challenging
the actions of the plaintiff. During the pendency of the writ petition, the plaintiff
total sum of Rs. 10,16,407. According to the defendant, because of the
the fees from the users of the comfort station as per the terms of the tender and as
such he is entitled to get refund of Rs.2,19,558/- given to the plaintiff. He has also
raised a counter claim for refund of the aforesaid amount. The plaintiff filed a
5. The trial court framed 4 issues. The evidence in the case consists of
the oral testimonies of PW1, DW1, Exhibits A1 to A19, B1 and B2. After
evaluating the evidence on record, the trial court decreed the suit, allowing the
plaintiff to recover from the defendant a sum of ₹ 7,27,245/-, along with interest
at the rate of 12% per annum and also dismissed the counter claim. Aggrieved by
6. Now the points that arise for consideration are the following:
7. Heard Sri. M. P. Ramanath, the learned counsel for the appellant,
Smt. V.A,Mini, on behalf of Sri.C.N.Prabhakaran, the learned Standing Counsel
8. The points: The learned counsel for the appellant would argue that
1.4.2004. It was argued that, when the defendant took possession of the comfort
borewell was not functioning, the toilets/latrine were dysfunctional, the manholes
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than two years. According to the learned counsel, on 01.04.2004 itself, the matter
response, on 03.04.2004, Ext. A9 letter was issued to the plaintiff complaining
about the pitiable condition of the comfort station. According to the learned
counsel, instead of maintaining the damaged comfort station, the plaintiff issued a
execute an agreement in the prescribed form. It was in the above context that the
defendant approached this Court by filing a writ petition.
9. Relying upon Sections 54 and 56 of the Indian Contract Act, 1872,
functional state, the contract became frustrated. Sections 54 and 56 of the
"56. Agreement to do impossible act.--An agreement to do
an act impossible in itself is void.
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Contract to do act afterwards becoming impossible or
unlawful.--
A contract to do an act which, after the contract is made,
becomes impossible, or, by reason of some event which the promisor
could not prevent, unlawful, becomes void when the act becomes
impossible or unlawful.
Compensation for loss through non-performance of act known to
be impossible or unlawful.--Where one person has promised to do
something which he knew, or, with reasonable diligence, might have
known, and which the promisee did not know, to be impossible or
unlawful, such promisor must make compensation to such promisee
for any loss which such promisee sustains through the non-
performance of the promise. "
10. The learned counsel has also relied upon the derision of the Hon'ble
Supreme court in Dhruv Dev Chand v. Harmohinder Singh and Ors., AIR
1968 SC 1024 in which in paragraph 6 the Apex Court held that :
"Under S. 56, where an event which could not reasonably
have been in the contemplation of the parties when the contract was
made renders performance impossible or unlawful, the contract is
rendered void, and the parties are excused from performance of their
respective obligations. Therefore where performance is rendered by
intervention of law invalid, or the subject matter assumed by the
parties to continue to exist is destroyed or a state of thing assumed to
be the foundation of the contract fails, or does not happen, or where
the performance is to be rendered personally and the person dies or
is disabled, the contract stands discharged. "
11. In the decision in K.A.Louiz and Ors. v. A.A.Augustine, 2004 (2)
KLJ 361, Order VIII Rule 5 of CPC, the learned counsel would argue that the
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pleading in the counter claim that the comfort station was not in a functional
condition was not specifically denied and as such, the same amounts to
admission. The learned counsel for the appellant quoting the meaning of the
words 'malfeasance' and 'misfeasance' from the Black's Law Dictionary, would
argue that the appellant is the victim of inaction by the officials of the Cochin
Corporation.
12. On the other hand, the learned counsel for the plaintiff would argue
that the defendant submitted his bid after verifying the facilities available in the
comfort station and its good condition and that the defendant after running the
comfort station and collecting the fee from the public, deliberately refused to pay
the balance amount and also omitted to execute the necessary agreement and as
such, according to him, the trial Court was justified in decreeing the suit.
13. From Exts.A3 to A6, documents it can be seen that the defendant's
bid for Rs.8,77,777/- dated 09.03.2004 was accepted by the standing committee
of the Corporation on 27.03.2004 and the same was accepted by the Corporation
Council on 30.03.2004 as revealed from Ext.A5. Ext. A6 is the notice directing
the defendant to pay 25% of the bid amount. As per Ext. A7 letter, the defendant
remitted 25% of the bid amount and as per Ext. A8 letter requested for time to
remit the balance amount and also to furnish solvency. In Ext. A9 letter dated
03.04.2004 issued to the plaintiff, the defendant complained that, when he went to
the comfort station 1.4.2004, it was found that out of 6 toilets and a bathroom, 3
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toilets were not functional, as the manholes leading to those toilets remained
blocked. On enquiry he came to know that the septic tank was not cleaned for
about 2 years. In Ext. A9 he also stated that the doors of the toilets were broken
and the water connection was disconnected. Though there was a borewell at the
comfort station premises, its motor was not functioning. In Ext. A9 he states that
unless the above defects were rectified forthwith, he will not be in a position to
run the comfort station and as an alternative he prayed for disbursing the security
deposited by him.
14. According to the defendant, there was no response from the plaintiff
to Ext.A9 letter. However, on 29.04.2004, the plaintiff issued Ext. A10 demand
notice to the plaintiff demanding to execute a formal agreement within 24 hours
of the said notice. Ext. A11 is the reply dated 14.5.2004 given by the defendant to
Ext. A10. In Ext.A11 he complains that in pursuance to Ext. A9 letter, no positive
steps were taken by the plaintiff and as such, he was not in a position to operate
the comfort station. In Exhibit A11, he complains that the electricity connection
and water supply to the comfort station were disconnected, alleging that the
previous operator has defaulted payment of bills. In Ext. A11 also, he had called
upon the plaintiff to carry out necessary repairs so that he could conduct the
station. He further stated in Ext.A11 that, if necessary repairs were not effected,
he is to be relieved, after returning the amount received from him as security.
15. In Ext. A12 letter dated 27.05.2004, the defendant admits that the
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persons deputed by the plaintiff corporation had been effecting necessary repairs
in the comfort station. In the said letter he has raised a contention that when the
contractor who was engaged for the repair work was requested to clean the septic
tank, he suggested that it is to be done by the Health Department of the
Corporation and that he could not do the said work. Therefore, in Ext.A12 he
requests the plaintiff to clean the septic tank also, so as to enable him to run the
comfort station smoothly. On a perusal of Ext.A12 it appears that by the time he
sent that letter, the only subsisting problem was the overflow of septic tank. In
Ext.A9 though it was contended that, to his knowledge, the septic tank was not
cleaned for 2 years, he had not complained that it was overflowing. Therefore,
overflow of septic tank complained in Ext.A12 can only be an issue which
developed subsequently.
16. Thereafter, on 31.05.2004 the defendant filed Ext.B1 writ petition
before the High Court and Ext.B2 is the order passed by this Court in the above
writ petition on 22.06.2009, directing the parties to seek appropriate reliefs in a
civil proceeding. Though in Ext.A9 the complaint is that only 3 toilets were not
functional, in Ext.B1 his case is that all the six toilets and bathrooms were not
functional and also that they were not yet repaired. Ext.A13 is a notice dated
21.12.2004 issued by the plaintiff to the defendant, informing him that though he
had won the bid for the right to collect the fee from the comfort station at Kaloor
on 1.04.2004 and remitted 25% of the bid amount, he failed to furnish the
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required agreement and also failed to pay the balance bid amount for the period
from 04.04.2004 to 04.12.2004 and therefore, as per the said notice, he was
directed to pay a total sum of Rs.7,24,165/-, including penal interest of
Rs.65,833/-. Ext.A14 is the reply given by the defendant to Ext.A13. In Ext.A14
letter dated 28.12.2004, the defendant admits that he had been conducting the
comfort station. In Ext,A14 he complained that when he started to run the
comfort station, it was in a pathetic condition and that, on the basis of his
complaint, maintenance work alone was done by the plaintiff. In Ext.A14 he
complains that the water and electricity which were disconnected few days after
he took over the station, were not restored so far. In Ext. A14 he further states
that, as per the notice given by the plaintiff, the comfort station will be closed
within 1 or 2 days. Therefore, he prayed for a week's time for complying with the
direction in Ext. A13 notice.
17. When the defendant was examined as DW1, he deposed that he is
well educated and that for the last ten years he had been engaged in the same
field. He used to inspect the place, ascertain the previous year's bid amount and
make an overall assessment in his own way, before submitting the bid. He had
conducted several other comfort stations previously. In this case also, before
submitting the bid, he had inspected the comfort station and was convinced that it
was in good condition. Further he ensured that there was proper electric and water
connection, bore-well, water tank etc. At the same time, he claims that, when he
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was given possession of the station on 01.04.2004, it was in a pathetic condition.
The explanation given by him is that he inspected the comfort station in January
2004 and that, at that time it was in good condition.
18. In this context, it is to be noted that Ext.A2 tender notice was issued
only on 1.3.2004 and the defendant submitted Ext.A3 offer only on 9.3.2004.
Admittedly the defendant has 10 years experience in the field of running comfort
stations. He also admitted that, before submitting his offer, he had ascertained
from the officials the amount offered by the successful bidder during the previous
year. In the above circumstances, his contention that he had inspected the comfort
station at Kaloor only in January 2004 and not inspected the same just before
submitting the bid cannot be believed. Even according to the defendant, till the
previous day on 31.3.2004 the previous contractor was conducting the comfort
station. He has a case that the previous contractor who has not succeeded in
getting the contract during the current year caused damage to the comfort station.
However, in Ext.A9, the first letter given by him to the plaintiff, no such
complaint was raised. Since the previous contractor was conducting the comfort
station till 31.3.2004 and the defendant has not raised any complaints against the
previous contractor in his first written letter given to the plaintiff namely in
Ext.A9, his above accusation cannot be believed.
19. Though in Exts.A9 and A11 letters the defendant complains that he
could not run the comfort station because of its pathetic condition, in Ext.A12 he
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admits that the persons deputed by the plaintiff had effected urgent repairs. In
Ext.A14 also the defendant admits that the maintenance works were carried out
by the contractor engaged by the plaintiff. By the time he sent the Ext.A12 letter,
the only subsisting problem was the overflow of septic tank. In Ext.A14, he
contends that the plaintiff has not taken any steps to restore the electric and water
connection to the station, in addition to the grievance that the septic tank was
overflowing. In Ext.A9 he had no case that electricity was disconnected, when he
got possession on 1.4.2004. In Ext.A11 he stated that both water and electric
supply were disconnected as the prior occupier defaulted payment. In paragraph
15 of the written statement the version is that: "subsequently within a week the
electricity connection to the comfort station was also disconnected by the Kerala
State Electricity Board officials stating huge arrears are pending." The version in
Ext.A14 is that, water and electricity were disconnected within a few days after
he got possession. If the above version in Ext.A14 is true, water and electricity
supply were available when he got possession on 1.4.2004. If so, his contention in
Ext.A9 that when he got possession of the comfort station on 1.4.2004 there was
no water supply can only be false. In Ext.A14 he maintains that even on
28.12.2004 the plaintiff has not taken any steps to restore electric or water
connection to the station. A public comfort station at a busy place like Kaloor bus
stand could not have been run even for a single day, without water.
20. In Exts.A9 and A11 the defendant demands that, if necessary repairs
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were not effected, he is to be relieved, after returning the amount received from
him. However, in Ext.A12 there is no such demand. It can only be because, by the
time he sent Ext.A12 letter, the only subsisting problem was the overflow of the
septic tank, which was not there when he sent Ext.A9. At the same time, in
Ext.A14, the defendant further complains that the officials of the plaintiff
threatened to close down the comfort station in one or two days and that is why in
Ext.A14 he seeks extension of a period of one week for complying the demand
made in Ext.A13 notice. Since the defendant failed to comply with the demand
made in Ext.A13 in spite of the expiry of the extended period, the plaintiff
proceeded to recover the amount through revenue recovery proceedings. At that
time, the defendant again approached the High Court in Ext.B1 writ petition and
made necessary amendments in the reliefs sought for, included a prayer for
quashing of the demand notice made by the plaintiff.
21. Though in Exts.A9 and A11 the defendant complained that he could
not run the comfort station even for a day, from Ext.A14 reply sent by him it can
be seen that even on 28.12.2004, he was in possession of the comfort station. In
Ext.A14, he complains that the officials of the plaintiff threatened to close down
the comfort station within one or two days and he seeks an extended period of
one week for complying with the demand in Ext.A13. If he was not actually
running the comfort station on 28.12.2004, through Ext.A14 he would not have
sought for an extended period of one week for complying with the demand in
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Ext.A13. The argument advanced by the learned counsel was to the effect that the
defendant could not conduct the comfort station even for a single day, as claimed
in Exts.A9 and A11. If there was any merit in the above submission, why the
defendant was aggrieved by the conduct of the plaintiff in closing down the
comfort station, as apprehended by him in Ext.A14 and why he had sought for an
extended period of one week for complying the demands made in Ext.A13? There
is absolutely no explanation from the side of the defendant in that regard.
22. Moreover, though in Ext.A9 he complains that only 3 toilets are not
functioning, in subsequent letters, written statement and writ petition he claimed
that all the toilets were unfit for use and hence he could not run the comfort
station even for a day. Though in Exts.A9, A11 and A12 he did not specifically
admit running/conducting of the comfort station, in Ext.A14 he categorically
admits that he was the person who was then conducting the comfort station at
Kaloor. When his attention was brought to the above admission in Ext.A14, he
gave an evasive answer that he had stated so in Ext.A14, at the instance of the
staff of the plaintiff, as otherwise it would create problems to them. From the
conduct of the defendant from the very beginning it can be seen that, he was
cunning enough to make it appear that he could not conduct the comfort station
even for a single day, while at the same time he was conducting the same till he
was evicted with the help of police on 6.1.2005. Since 3.4.2004 he had given
written complaints to the plaintiff complaining that the condition of the comfort
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station is pathetic. In spite of affecting maintenance work, he did not execute the
agreement with the defendant and did not pay the balance bid amount. He moved
this court also complaining that he could not conduct the comfort station, but not
rescinded the contract, nor surrendered the key or filed any suit for return of the
amount deposited by him. Though Rs.2,19,558/- deposited by him on 1.4.2004 is
not a small amount, he waited for the plaintiff to file the suit for the balance
amount and finally raised a counter claim only on 14.1.2009, though he was
evicted from the comfort station as early as on 6.1.2005. It is difficult to believe
that a well educated and cunning person like the defendant will make such a fatal
admission in Ext.A14, especially to save the staff of the plaintiff, at his own
peril.
23. According to PW1, the Secretary of the Corporation, the defendant
was evicted from the comfort station on 6.1.2005. DW1 admitted that it was the
police who closed down the comfort station, but he claimed that at that time he
was not there. PW1 also deposed that the Revenue Inspector as well as himself
visited the comfort station before eviction and found that it was in running
condition. It is true that he clarified that he had not entered inside the comfort
station, but by watching from outside he could notice that it was functioning. The
learned counsel for the defendant would argue that without entering inside the
comfort station, one will not be able to ascertain whether it was functioning or
not. As argued by the learned counsel for the defendant, without entering inside
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the comfort station, one may not be able to understand the present condition of
each of the toilets and bathrooms, but even from observing outside, one could
ascertain whether the comfort station was functional. PW1 being a responsible
officer, deposed before the Court that he had inspected the site and found that the
comfort station was in operation and as such, I do not find any grounds to
disbelieve his testimony. As I have already noted above, in Ext.A14 the defendant
admits that he was conducting the comfort station at Kaloor when the said letter
was issued. The above admission made by the defendant in Ext.A14 substantiates
the above evidence of PW1 that when he had inspected the site, the comfort
station was functional.
24. In Ext.A14 the defendant apprehends that the officials of the
plaintiff may close down the comfort station within one or two days and because
of that apprehension he sought for an extended period of one week for complying
with Ext.A13. Further, the defendant as DW1 admitted that in pursuance to his
letters, the plaintiff has sent workers and urgent maintenance works were carried
out. In Exts.A9 he had no complaint that on 1.4.2004, when he had taken
possession of the comfort station, the septic tank was overflowing. However, in
Ext.A14 for the first time he complained that the septic tank was overflowing.
But from Ext.A14 it can be seen that, by that time, all other complaints were
already rectified by the contractor engaged by the plaintiff.
25. In Ext.B1 also the defendant contended that the electric as well as
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water connection to the premises were disconnected by the authorities concerned
and as such, he was not in a position to run the comfort station. Along with
Ext.B1 writ petition, he has produced Exts.A9 and A10, electricity bills issued by
the Electricity Board to the above comfort station, out of which, Ext.A9 is dated
14.9.2004 and Ext.A10 is dated 16.11.2004. The learned counsel for the
defendant invited my attention to the fact that in both Exts.A9 and A10, the meter
reading remained the same namely, 1350. However, in both Exts.A9 and A10 the
bill amount is shown as Rs.320/- which includes Rs.300/- towards fixed charge
and Rs.20/- towards metre rent. Ext.A9 is of September 2004 and Ext.A10 is of
November 2004 in respect of the very same comfort station produced by the
defendant himself. That means that in September 2004 and November, 2004, the
defendant was in possession of the comfort station and he was running the same
and that is why he received those electricity bills. It is true that the meter reading
remained the same, but it does not mean that the electric supply was
disconnected. It only means that the meter is not working. If the supply was
disconnected, there was no chance for issuing Exts.A9 and A10, electricity bills.
Therefore, as argued by the learned counsel for the plaintiff, even from the
documents produced by the defendant, it is revealed that there is no merit in his
contention that the electric supply to the comfort station was disconnected.
Therefore, his contention that the water connection was disconnected and hence
he could not run the comfort station also could not be believed.
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26. As argued by the learned counsel for the plaintiff, if the plaintiff
could not run the comfort station for any day as claimed, he would definitely have
rescinded the contract and initiated necessary steps for recovering the amount
deposited by him. Instead, after complaining that he could not run the comfort
station as it was not in running condition he continued to possess the same, but
refused to execute a formal agreement and also refused to pay the balance bid
amount. It was in the above context that the plaintiff issued the demand notice for
realizing the amount and finally with the help of the police, taken possession of
the comfort station and thereafter, filed the suit for realizing the balance amount
due as per the contract. Therefore, from the available evidence it can be seen that
the contention taken by the defendant that because of the pathetic condition of the
comfort station he could not run the same even for a day, is devoid of any merit.
On the other hand, from the evidence on record it is revealed that the defendant
after obtaining the right to collect fee for using the comfort station at Kaloor for
the year 2004-05 for a sum of Rs.8,77,777/- remitted 25% of the bid amount, took
possession of the premises on 1.4.2004, retained possession of the same without
executing the agreement and paying the balance amount, till he was finally
evicted from there, with the help of police, on 6.1.2005.
27. The defendant has no satisfactory explanation as to why he retained
possession of the comfort station, if due to the default of the plaintiff he could not
run the same even for a day, as now claimed. Since he had retained possession of
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the comfort station till 6.1.2005, when he was evicted with the help of the police
there is every reason to believe that he continued to run the comfort station till he
was evicted on 6.1.2005. Considering the fact that initially some maintenance
work was required for three toilets out of six and it took some time to rectify the
same, there was some inconvenience to the defendant also. From Ext.A12 it is
revealed that the maintenance was done by the contractor engaged by the
plaintiff. In the above circumstances, it is to be held that there is no merit in the
claim of the defendant that due to the default of the plaintiff he could not conduct
the comfort station even for a single day. On the other hand, it is to be held that he
was conducting the comfort station till 6.1.2005. Therefor, the plaintiff is entitled
to get the amount covered by the contract for the period from 1.4.2004 till he was
evicted on 6.1.2005. For the very same reasons, the trial court was justified in
dismissing the counter claim.
28. At the time of argument, the learned counsel for the appellant
contended that the suit is barred by limitation. According to him, in Ext.A9 itself,
the defendant expressed his intention not to proceed with the contract and
demanded repayment of the amount paid by him. However, it can be seen that
when Ext.A13 demand notice was issued, the defendant as per Ext.A14 letter
dated 28.12.2004, sought for a week's time to comply with the demand made in
Ext.A13 demand notice. From Ext.A15 letter dated 6.1.2005 it can be seen that
one week time requested by the defendant was granted by the plaintiff. In the
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above circumstances, the suit filed on 19.12.2007 within a period of three years
from the time given for payment, is within the period of limitation and not barred
by limitation.
29. In the above circumstances, considering the entire facts, I hold that
the rent agreed to be paid as per Ext.A3 for a period of nine months will be
enough to do justice to both sides. The amount payable as per Ext.A3 for a period
of one year is Rs.8,77,777/-. The amount payable for one month will come to
Rs.73148/- (877,777 / 12). Therefore, the proportionate rent payable for nine months
will come to Rs.6,58,333/-, out of which he had already paid Rs.2,19,444/- and
the balance amount will come to Rs.4,38,889/-. Considering the facts, interest at
the rate of 8% per annum from 1.4.2004 till realisation will be a reasonable rate
of interest in this case. Points answered accordingly.
In the result, this appeal is disposed of allowing the plaintiff to recover a
sum of Rs.4,38,889/- along with interest at the rate of 8% per annum from
1.4.2004 till realisation, with proportionate costs, from the defendant and his
assets.
Sd/- C.Pratheep Kumar, Judge
Mrcs/6.8.
