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Kerala High Court

Travancore Devaswom Board vs O.M. Mathew on 11 December, 2025

Author: Sathish Ninan

Bench: Sathish Ninan

                                              2025:KER:95332

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

          THE HONOURABLE MR. JUSTICE SATHISH NINAN

                             &

         THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR

 THURSDAY, THE 11TH DAY OF DECEMBER 2025 / 20TH AGRAHAYANA,

                            1947

                    RFA NO. 348 OF 2017

   AGAINST THE JUDGMENT AND DECREE DATED 12.04.2016 IN OS

 NO.643 OF 1993 OF PRINCIPAL SUB COURT, THIRUVANANTHAPURAM

APPELLANTS/DEFENDANTS:

    1    TRAVANCORE DEVASWOM BOARD
         REPRESENTED BY ITS SECRETARY, DEVASWOM BOARD
         JUNCTION,NANTHANCODE, THIRUVANANTHAPURAM-695 003.

    2    THE PROJECT ENGINEER
         SABARIMALA DEVELOPMENT PROJECT,TRAVANCORE DEVASWOM
         BOARD,THIRUVANANTHAPURAM-695 003.

    3    THE DIVISIONAL ENGINEER
         SABARIMALA DEVELOPMENT PROJECT,CHENGANNUR P.O.,
         ALLEPPEY DISTRICT.

         BY ADVS.
         SRI.V.KRISHNA MENON
         SMT.LATHA ANAND
         SRI.K.ANAND (SR.)
         SRI.M.N.RADHAKRISHNA MENON
         SRI.K.R.PRAMOTH KUMAR
         SRI.S.VISHNU (ARIKKATTIL)
                                            2025:KER:95332

R.F.A.No.348 of 2017
                           -: 2 :-



RESPONDENT/PLAINTIFF:

           O.M. MATHEW
           OLITHADATHIL HOUSE, PUTHENCRUZ P.O,
           ERNAKULAM DISTRICT,
           REPRESENTED BY HIS POWER OF ATTORNEY
           HOLDER,BEENA KURIAKOSE, D/O. KURIAKOSE,
           KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.

           BY ADVS.
           SRI.K.BABU THOMAS
           SMT.MARYKUTTY BABU

THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
11.12.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                                          2025:KER:95332



                 SATHISH NINAN & P. KRISHNA KUMAR, JJ.
                   = = = = = = = = = = = = = = = = = =
                          R.F.A.No.348 of 2017
                   = = = = = = = = = = = = = = = = = =
                Dated this the 11th day of December, 2025

                                JUDGMENT

Sathish Ninan, J.

The decree in a suit for damages on declaring that the

defendants committed breach of contract and that the

supplemental agreements are void, is under challenge by the

defendants.

2. The defendants invited tender for the work of

"additional parking facility" at Pamba. The plaintiff was

the successful tenderer. The plaintiff's tender was 17.6%

below the estimated rate. His offer was accepted on

14.07.1987. The period of the contract was four months, to

be reckoned from the date of handing over of the site. The

necessary land for the parking ground was obtained only on

01.03.1988. The plaintiff alleged that the work got delayed

due to the fault of the defendants in obtaining necessary 2025:KER:95332

sanction from the Forest Department. The plaintiff was

required to do additional and extra items of work. The

plaintiff was required to enter into supplemental

agreements, which were got executed on the threat of non-

payment of money and are vitiated. The plaintiff sought a

declaration that the defendants committed breach of

contract, that the supplemental agreements are void, for

money for the works done, and for damages.

3. The defendants denied the plaint allegations. It

was contended that the payment for the work done was duly

made in accordance with the terms of agreement. The

allegation of undue influence in causing execution of

supplemental agreements, was also denied.

4. The trial court held the defendants responsible

for the delay. It was also found that the supplemental

agreements were got executed under the coercion. The court

proceeded to grant decree except for damages.

5. We have heard Shri.K. Anand, the learned Senior 2025:KER:95332

Counsel for the appellants-defendants and Shri.Babu Thomas

K., the learned counsel for the respondent-plaintiff.

6. On the materials, the trial court found that, when

the defendants invited tender for the work, they did not

have permission from the Forest Department for cutting

trees; permission was obtained only on 01.03.1988. The site

measurement could be taken only after cutting and removing

the trees. Though the plaintiff had taken steps for clearing

jungle growth in the proposed work site, it was objected to

by the Forest Department. Thus, it was found that the

defendants were at fault. However, the trial court found

that the plaintiff having not opted to repudiate the work

under Section 55 of the Contract Act and that having chosen

to proceed with the contract, he is not entitled for

damages. There is no appeal by the plaintiff.

7. Five supplemental agreements were executed by the

plaintiff. The agreements relate to extension of time and

for extra works. It is the definite case of the plaintiff 2025:KER:95332

that, execution of such agreements were caused on

withholding the amounts payable to the plaintiff. On

appreciating the evidence in extenso, the trial court found

that the execution of the agreements was not voluntary, but

was under economic duress. The court held the supplemental

agreements to be vitiated.

8. Though the learned Senior Counsel took us through

the findings of the trial court on the above aspects, no

materials could be placed before us to substantiate the

findings to be erroneous.

9. The main argument of the learned Senior Counsel is

that the trial court, after proceeding to find that the

defendants were responsible for the delay and that the

supplemental agreements are vitiated, the court, without any

consideration of the evidence on record, straightaway

proceeded to accept the other claims of the plaintiff. The

decree is unsustainable on the evidence on record, it is

argued. It is further argued that, the plaintiff's claim is, 2025:KER:95332

at any rate, to be subjected to deduction of 17.6%, he

having quoted such percentage below the estimated rate. The

decree granted is without applying such deduction. On the

said ground also, the decree is liable to be set aside, it

is contended.

10. We do notice that there is force in the contention

of the learned Senior Counsel that there had been no

discussion by the trial court as to whether the claims

raised have been substantiated on the evidence. The court

proceeded to grant a decree in respect of claims (a) to (j),

out of the various heads of claims raised at paragraph

31(iii) of the plaint. The remaining claims under (k) to

(o), under the head of damages, were disallowed. The counsel

on either side were heard elaborately with regard to the

merits of the claims under the heads (a) to (j). We proceed

to consider the claims one by one.

11. The claim under head (a) reads thus;

"a). Rs.6,468/- towards expenditure incurred in clearing the jungle for the 2nd time."

2025:KER:95332

According to the plaintiff, though initially the plaintiff

had done jungle clearance works, for lack of necessary

permission from the Forest Department, the works could not

be proceeded. It is only after 01.03.1988, on obtaining

permission from the Forest Department that the works could

be commenced. This necessitated the clearance of jungle

growth for the second time. However, the expenses incurred

for the jungle clearance for the second time was not paid,

it is claimed.

12. The plaint allegation about the work of jungle

clearance for the second time, is not disputed in the

written statement. Page No.1 of Ext.B3 measurement book

mentions about the jungle clearance for an area of 42,400

sq.meters having been measured on 30.05.1988. Page No.8 of

Ext.B3, dated 22.10.1988, makes further mention of jungle

clearance, the area of which is seen limited to 12,000

sq.meters. There is sufficient indication that, consequent

to the delay caused, the plaintiff had to do the work of 2025:KER:95332

jungle clearance for the second time, at least for 12,000

sq.meters area. The agreed rate for the jungle clearance is

Rs.53.90/- per 100 sq.meters. Therefore, for 12,000

sq.meters, the amount payable is Rs.6,468/- as claimed by

the plaintiff. We hold that the plaintiff is entitled for

the said amount.

13. The claim under clause (b) reads thus;

"b). Rs.80,312/- towards formation approach road leading from the existing parking ground to the new parking ground involving excavation of 2500m3 of hard soil/hard narikkal, etc."

The claim is for the expenditure for construction of an

approach road. Admittedly, it is not an item of work

included in the agreement. The plaintiff claims it to be an

extra item of work. There is no document requiring the

plaintiff to carryout such an extra item of work. The 'Note'

to clause 10 in the notice inviting tenders, which is marked

as Ext.B2 (b), specifically provides that the Department

does not undertake to construct or make available any

approach road to the site. The Note reads thus;

2025:KER:95332

"Note:- The department does not undertake to construct or make available any approach road or other means of approach to the proposed work site and the tenderer shall get acquainted with the available means of approaches to the proposed site and quote for the various items. The Department shall not be liable for any claim raised later on the plea of non-availability or non-access to the site."

In the light of the above mentioned clause, so long as it is

not a work awarded to the plaintiff as an extra item of

work, the mere fact that the plaintiff may have formed an

approach road for his access to the site, will not entitle

him for the recovery of its cost from the defendants. It

having not been established that the work was done as an

extra item of work as demanded by the defendants, the claim

is bound to fail.

14. The claim under clause (c) reads thus;

"c). Rs.1,33,834/- towards unpaid value for 1018-143m3 soft wood trees felled, logs conveyed and placed engaging elephants at Rs.131.45/m3 being unpaid."

The claim relates to felling of trees and for conveyance of

the timber. Admittedly, it is an extra item of work not

included in the agreement. Going by Ext.B3 measurement book, 2025:KER:95332

the total quantity is 1018.143 cubic meters. The plaintiff

has been paid at the rate of Rs.70.55/- per cubic meter. The

Commissioner in Ext.C2 report stated that the rate to be

paid is Rs. 114/- per cubic meter. However, Ext.B6 file

relating to the work in question maintained by the

defendants, at Page No.108, contains the data as per the

current schedule of rates of the Forest Department. For

transportation of logs using elephants and stacking, the

amount mentioned therein is Rs.288.23/- per cubic meter. We

find no reason to not accept the said rate. As noticed, the

plaintiff has paid only Rs.70.55/- per cubic meter. After

deducting the same, the plaintiff is entitled to a further

amount of Rs.2,21,629.40/- [(288.23 - 70.55) x 1018.143].

15. The claim under clause (d) reads thus;

"d). Rs.2,33,805/- towards cutting in size 867.07m3 of wooden logs from trees felled and conveying upto 750 meters and stacking at Rs.269.65/m3 being unpaid value."

The head deals with cutting of timber, conveyance and

stacking. Admittedly, this is also an extra item of work.

2025:KER:95332

The quantity involved is 867.07 cubic meters. The plaintiff

was paid at the rate of Rs.42.35/- per cubic meter. The

plaintiff claims that he is entitled for Rs.312/- per cubic

meter. However, but for bald claim, there is no data to

substantiate the rate. Therefore, the plaintiff is not

entitled for any amount under the said claim.

16. The claim under clause (e) reads thus;

"e). Rs.36,416/- for re-conveying 867.07m3 of wooden logs from the river bed of Pamba in the rainy season at Rs.42/m3."

Evidently, the claim is for re-conveyance of the wooden logs

from the river bed. Ext.A11 is the communication issued by

the 3rd defendant to the plaintiff in the said regard.

Ext.A11 suggested that it was a folly on the part of the

plaintiff to have stacked the timber logs at the river bed

and required it to be shifted therefrom. It further

contained an assurance that he will be paid as per the

conditions stipulated in the tender and agreement. That the

plaintiff carried out the work, is not in dispute. The

quantity involved is reflected in Ext.B3. It is 867.07 cubic 2025:KER:95332

meters. No amounts were paid to the plaintiff by the

defendants under the said claim. The plaintiff claims

Rs.42/- per cubic meter. This is placing reliance on Entry 7

(b) at page Nos.18 and 19 of Ext.B3 measurement book, which

relates to 'conveying and stacking of fire wood by head-load

after cutting it into pieces' for which the rate mentioned

is Rs.53.90/- per cubic meter. Evidently, the said work

involves not only conveyance, but also cutting of timber

into pieces. In the circumstances and in the absence of any

contra evidence, we are constrained to fix the rate at

Rs.25/- per cubic meter for the expenses for re-conveyance.

The plaintiff is entitled for an amount of Rs.21,676.75/-

[867.07 x 25].

17. The next item of claim under clause (f) reads

thus;

"f). Rs.1,60,118/- for 5274.438m3 of hard narikkal beneath 30 c.m. at Rs.303.10/10m3 being unpaid value."

The claim is for the work of excavation of hard narikkal

below the depth of 30 c.m. It is the plaintiff's claim that, 2025:KER:95332

beyond the depth of 30 c.m., there was hard narikkal and the

plaintiff had to remove 7446.43 cubic meters of narikkal.

The defendants dispute the claim that so much quantity of

narikkal was removed beyond 30 c.m. of depth. They awarded

Rs.79.15/- per 10 cubic meter (Rs.7.915/- per cubic meter) for

the quantity, considering it to be ordinary soil. In the

schedule to Ext.B2 agreement, the rate fixed for removal of

hard narikkal is Rs.382.25 per 10 cubic meter. The plaintiff

claims that he is entitled for the said rate.

18. There is no material to find that there was hard

narikkal after the depth of 30 c.m. The claim of the

plaintiff is not liable to be accepted as such. However,

considering the terrain and the location, it is only

probable that, beyond the depth of 30 c.m. there would have

been hard soil. Going by Ext.B3 measurement book, the rate

for hard soil is Rs.138.30 per 10 cubic meter (Rs.13.830 per

cubic meter). We are of the opinion that the plaintiff is

entitled for the said rate for the quantity of 7446.438 2025:KER:95332

cubic meters. The plaintiff is entitled for Rs.44,045.6807

[7446.438 x 5.915 (13.830 - 7.91)] under the head.

19. The next head of claim under clause (g) reads

thus;

"g). Rs.3,78,151/- for 15,505m3 of hard narikkal removed at Rs.243.95/10m3 being unpaid."

The claim is for excavation of hard narikkal for a quantity

of 15505.22 cubic meters. Removal of narikkal is an item of

work included as serial No.6 in the schedule to Ext.B2

agreement. Page 24 of Ext.B3 measurment book mentions about

excavation of Narikkal. The quantity mentioned therein is

18546.995. The rate fixed is Rs.382.25 per 10 cubic meters.

There is no case that the said amount has not been paid. The

further claim for a quantity of 15505.22 cubic meters is not

substantiated. Going by the entry as item 5(b) in Ext.B3 at

page 23, the said quantity is hard soil and not narikkal.

The claim is bound to fail.

20. The claim under clauses (h) and (i) go together

and read thus;

2025:KER:95332

"h). Rs.53,640/- towards expenditure at Rs.79.15/10m3 being unpaid for removing 6777.1m3 of slipped earth out of Rs.153.95/10m3.

i). Rs.49,589/- towards value ignored of 3222.9m3 of slipped earth at Rs.153.95/10m3."

According to the plaintiff, the total quantity of slipped

earth and bolders is 10,000 cubic meters. The quantity

accepted by the defendants is only 6777.1 cubic meters. It

is evident from page No.25 of Ext.B3 measurement book that

the plaintiff has been paid at the rate of 74.80/- per 10

cubic meters. The plaintiff claims at the rate of Rs.153.90

per 10 cubic meters. However, there is no data to

substantiate the rate claimed.

21. So also, though the plaintiff claims a total

quantity is 10,000 cubic meters, Ext.B3 reflects only

6777.10 cubic meters. We do notice that, as per Exts.A19,

A21 and A23 communications, the plaintiff had repeatedly

intimated the defendants that the quantity of earth involved

is 10,000 cubic meters. The said claim was not refuted by

any communication. In the circumstances as above, we are 2025:KER:95332

constrained to accept that the total quantity involved is

10,000 cubic meters. The plaintiff having been granted the

cost for only 6777.902 cubic meters, we hold that he is

entitled for payment at the rate of 74.80/- per 10 cubic

meters for the balance quantity of 3222.9 cubic meters. The

plaintiff is entitled for Rs.24,107/- [3222.9 x 74.80 per 10

cubic meter].

22. The last head of claim under clause (j) reads

thus;

"j). Rs.3,74,400/- for blasting and removing 3120m3 of hard rock under protected conditions at Rs.1200/10m3 value omitted."

The claim is for the expenses of blasting of hard rock. It

is an extra item of work. The plaintiff claims that 3120

cubic meters of hard rock was blasted. The plaintiff claims

that he is entitled for the expenses at the rate of

Rs.1200/- per 10 cubic meter. At page No.23 of Ext.B3

measurement book, the quantity of rock is recorded as 359.17

cubic meters. The expert commissioner in Ext.C2 report

stated quantity of blasted stones will come to 360 cubic 2025:KER:95332

meters and the rate for the same is Rs. 746.30 per 10 cubic

meters. Therefore, the plaintiff is entitled for Rs.

26,867/- (360 x 74.630).

23. Thus, the plaintiff is entitled for the amounts

under the heads in clauses (a), (c), (e), (f), (h), (i) and

(j) as shown therein.

24. Now, we proceed to consider the defendants'

contention that, to the total value, tender deduction of

17.6%, as quoted by the plaintiff, is to be applied. To

consider the issue, what is relevant is clauses 23.3 (iii),

(iv) and (v). The clauses read thus;

"(iii) In the case of extra items, whether altered or substituted and for which similar items do not exist in the contract and rates exist in the schedule of rates, the rate shall be arrived at on the basis of the Departmental data rate current at the time or ordering the extra item, after applying the tender deduction except on cost of departmental material Tender excess , if any, will not be applied.

(iv) In the case of additional items, the rates shall be arrived at on the basis of the departmental data rates current at the time of ordering the extra item, or the date of commencement of the extra item, whichever is earlier, after applying the tender deduction except on the cost of departmental material. Tender excess, if any, will not be applied.

(v) In the case of extra items, whether additional altered or substituted, for which the rates cannot be derived from similar items in the contract, and only partly from the 2025:KER:95332

departmental schedule of rate, the rates for such part or parts of items as are not covered in the schedule of rates shall be determined by the Engineer on the basis of the prevailing market rates giving due consideration to the analysis of the rates furnished by the contractor with supporting documents, including contractor's profit.

This shall be added on to the departmental rate (including contractor's profit) current at the time of ordering or executing the extra item, whichever is earlier, for the other part of the item, for which rates can be derived from the schedule of rates."

The clauses referred to above indicate that, if the rates of

extra, additional or altered items can be derived from the

similar items in the contract, tender deduction can be

applied. None of the works under the heads noted supra can

be said to be works in respect of which the rates could not

be derived from similar items of the contract. Therefore,

the tender deduction is liable to be applied.

25. Applying tender deduction to the total amount of

Rs.3,44,794/-, the amount payable to the plaintiff is

Rs.2,84,110/- [3,44,794 - ( 3,44,794 x 17.6%)].

26. Though the plaintiff has claimed interest at the

rate of 18.5% for the amounts payable, considering the