Kerala High Court
M/S.Ardeshir B. Cursetjee & Sons Ltd vs M/S.Soma Enterprises Limited on 25 July, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:54805
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
FRIDAY, THE 25TH DAY OF JULY 2025 / 3RD SRAVANA, 1947
RFA NO. 810 OF 2014
AGAINST THE JUDGMENT DATED 28.02.2014 IN OS NO.1046 OF 2011
OF III ADDITIONAL SUB COURT, ERNAKULAM
APPELLANT/PLAINTIFF:
M/S.ARDESHIR B. CURSETJEE & SONS LTD.
24/1567, SUBRAMANIAN ROAD, W/ISLAND, COCHIN-13,
REPRESENTED BY ITS GENERAL MANAGER.
BY ADVS. SMT.KRIPA ELIZABETH MATHEWS
SMT.C.B.SUMA DEVI
SMT.SNEHA RAJIV
SHRI.VINAYAK MOHANDAS
RESPONDENTS/DEFENDANTS:
1 M/S.SOMA ENTERPRISES LIMITED
2, AVENUE 4, BANJARA HILLS HYDERABAD, ANDHRA
PRADESH 500 034, REPRESENTED BY ITS CHAIRMAN AND
MANAGING DIRECTOR.
2 MS SOMA ENTERPRISE LIMITED
N.H.CONNECTIVITY ICTT-VALLARPADAM, WARD NO.2,
GODOWN ROAD, CHERANELLORE, COCHIN 682 034
REPRESENTED BY ITS MANAGER.
BY ADV SRI.MILLU DANDAPANI
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
25.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2025:KER:54805
SATHISH NINAN & P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A.No.810 of 2014
= = = = = = = = = = = = = = = = = =
Dated this the 25th day of July, 2025
JUDGMENT
Sathish Ninan, J.
The suit for money under a works contract, was
dismissed by the trial court. The plaintiff is in appeal.
2. The defendant invited tenders for undertaking
dredging and excavation works in connection with the
construction of four-lane National Highway connectivity to
ICTT at Vallarpadam, Cochin. In response, the plaintiff
submitted Ext.A2 quotation dated 21.02.2009. The plaintiff's
quotation was accepted and Ext.A3 work order dated
06.03.2009 was issued by the defendant.
3. According to the plaintiff, during the course of
Ext.A3 work, the defendant issued another work order
(Ext.A4) dated 16.09.2009, for carrying out of certain
dredging works using Beaver 1200 dredger. The quantity of
2025:KER:54805
works under Exts.A3 and A4 work orders was approximately
1,00,000 cubic meters each. Out of Ext.A3 work order, the
plaintiff was provided with work for only 31,207.07 cubic
meters. The bills under Ext.A3 work order were not paid. So
also, they were not provided with the required drawings and
technical specifications. Hence, the plaintiff was unable to
carry out the works. The contract has been breached. The
machineries of the plaintiff were not permitted to be
removed from the site. Accordingly, the suit was instituted
for realisation of Rs.1,09,89,271/-, being, loss of profit
for the shortage of quantity, unpaid bills, and value of
machinery.
4. The defendant filed a written statement denying
the plaint allegations and the plaint claim. According to
the defendant, though pursuant to Ext.A3 work order dated
06.03.2009, the plaintiff had commenced the dredging works,
they were unable to satisfactorily undertake the work for
lack of the necessary and proper machinery and accessories.
2025:KER:54805
To carry out the work, machinery like IHC Beaver 1200
dredger, floaters, elbows, etc., were necessary. To enable
the plaintiff to meet the additional expenses and to carry
out the remaining work, the defendant issued Ext.A4 work
order providing a higher rate. The Ext.A4 work order is only
a continuation of Ext.A3 work order. It was alleged that the
plaintiff failed to mobilise the required machinery and
accessories and failed to carry out the work. Consequent
thereto, the defendant had to make alternate arrangements
for completion of the works and thus suffered damages.
5. The allegation of failure on the part of the
defendant to supply the agreed quantity was denied. It was
contended that Ext.A4 work order was the quantity of work
that remained under Ext.A3 work order. Regarding the claim
for the balance amount due for the work done under Ext.A3
work order, it was contended that Rs.20,00,000/- was
advanced by the defendant to the plaintiff towards
mobilisation advance under Ext.A4 work order; the works
2025:KER:54805
under Ext.A4 having not been carried out, the bill amount is
to be deducted therefrom. Even thereafter, excess amounts
remained with the plaintiff. With regard to the claim for
the value of machinery and equipments, it was contended that
only some equipments were available at the site, and they
could have been removed by the plaintiff after repaying the
excess amount received by them.
6. The trial court held that Exts.A3 and A4 work
orders related to a single work, and that Ext.A4 was in
respect of the balance work that remained under Ext.A3 work
order. No works were done under Ext.A4. Thus, the claim for
damages for non-supply of the agreed quantity was negatived.
With regard to the claim for unpaid bill, the trial court
found that the plaintiff had received Rs.20,00,000/- towards
mobilisation advance under Ext.A4 work order, which is in
excess of the unpaid bill amount under Ext.A3 work order.
Regarding the claim for the value of machineries, it was
found that the claim is unsupported by evidence.
2025:KER:54805
Accordingly, the suit was dismissed.
7. We have heard Sri.Vinayak Mohandas, the learned
counsel on behalf of the appellant-plaintiff and Sri.Millu
Dandapani, the learned counsel on behalf of the respondent-
defendant.
8. The points that arise for determination are: -
(i) Did Ext.A4 work order relate to part of the work under Ext.A3 work
order?
(ii) Is the claim of the plaintiff for damages under the head 'deficit
quantity' under Ext.A3 work order sustainable?
(iii) Is the plaintiff entitled to realise any amounts from the defendant
under the head of 'unpaid bills' under Ext.A3 work order?
(iv) Is the plaintiff entitled to realise any amounts from the defendant
towards 'value of machinery'?
(v) Does the decree and judgment of the trial court warrant any
interference?
9. The plaint claim is under three heads: (i) Loss of
profit for failure to provide the agreed quantity under
Ext.A3 work order, (ii) Money due for unpaid bills under
Ext.A3 work order; and (iii) Value of equipments and
2025:KER:54805
machineries left at the site. While the plaintiff's claim
that there is no overlapping of the works between Exts.A3
and A4 work orders, according to the defendant, Ext.A4 work
order was in respect of the unfinished work under Ext.A3
work order.
10. Firstly, we proceed to consider the plaint claim
by accepting the plaintiff's case that the work orders were
not a part of the single work. As per Ext.A3 work order, the
quantity of work was approximately 1,00,000 cubic meters.
The plaint claim that under Ext.A3, the plaintiff completed
approximately 31,207.07 cubic meters of work (approximately
1/3rd of the work) is not disputed by the defendant. The
claim is for the loss of profit on the failure of the
defendant to supply the remaining quantity of the work. The
plaintiff claims 50% of the agreed rate, towards loss of
profit for the remaining work. But for the bald claim of
loss of profit of 50%, there is total lack of evidence with
regard to the reasonable profit that the plaintiff would
2025:KER:54805
have received as a direct consequence of the breach. There
is no evidence regarding the expenses incurred or would have
incurred. There is no material before the court even to fix
the quantum ex hypothesi. Therefore, the court cannot grant a
decree under the said head.
11. Next, we proceed to consider the claim for unpaid
bills under Ext.A3 work order. The plaintiff's claim that an
amount of Rs.11,69,000/- remained unpaid, seems to be not in
dispute as such. But it is the defendant's case that an
amount of Rs.20,00,000/- was paid by the defendant to the
plaintiff under the head 'mobilisation advance' under Ext.A4
work order. The work under Ext.A4 has not been carried out
by the plaintiff. The unpaid bill is to be adjusted from the
said advance, and the balance is to be repaid to the
defendant, is the case.
12. The fact that no works were carried out pursuant
to Ext.A4 work order, is undisputed. The plaintiff does not
have any claim under the said head. Such fact is asserted by
2025:KER:54805
the learned counsel for the appellant-plaintiff even during
the course of arguments. Therefore, when the claim is for an
amount of approximately Rs.11,00,000/- and an amount of
Rs.20,00,000/- advanced by the defendant is with the
plaintiff, and the stand of the defendant is that the unpaid
bill amount can be appropriated by the plaintiff from the
said advanced amount, the further claim of the plaintiff
under the said head cannot be countenanced.
13. Now coming to the claim for value of machinery
left at the site, it is the case of the plaintiff that the
defendant obstructed the plaintiff from removing the
machineries and equipments from the site. The claim is for
an amount of Rs.32,84,880/- under the said head. While
considering the said claim, the averment at paragraph 5 of
the plaint that, pursuant to Ext.A3 work order, the
plaintiff had purchased and mobilised dredgers, pipelines of
Beaver 1200, floaters, elbows, etc., at huge cost, is of
relevance. This is so because Ext.A3 work order did not
2025:KER:54805
refer to carrying out the work using Beaver 1200 dredger at
all. It was Ext.A4 work order, which had specifically
stipulated carrying out the work using Beaver 1200 dredger.
Therefore, the claim of the plaintiff that, as per Ext.A3
work order dated 06.03.2009, the plaintiff had arranged
Beaver 1200 dredger and the equipments required for the
same, prima facie appears to be unacceptable.
14. To prove the alleged purchase of equipments and
its value, the plaintiff relies on Exts.A24 to A31 invoices.
Noticeably, those invoices are during the period March and
April 2008, whereas Ext.A3 work order was issued only one
year later, in March 2009. Therefore, the claim of the
plaintiff that the machineries and equipments were procured
for the work in question under Exts.A24 to A31 invoices are
apparently unfounded.
15. To prove that there remained equipments of the
plaintiff at the site at the time when disputes arose
between parties, the plaintiff relies on Ext.A34 survey
2025:KER:54805
report dated 07.04.2010 prepared by a private surveyor. The
report suggests that certain pipes and floaters were found
at the site. Such report was prepared without notice to the
defendant. The report does not mention the value of the
materials. The size(diameter) of the pipes, as reported in
Ext.A34, is smaller than that claimed by the plaintiff. All
those apart, the plaintiff could have very well moved the
trial court seeking assessment of its value and sought
permission to remove them and thus mitigated the damages.
However, he did not choose to do so. There is no proof with
regard to the value of such materials.
16. To prove what all machineries and equipments were
brought to the site, the plaintiff could have very well
produced the daybook and movement register, which are
admittedly available with him. However, such records are not
produced. Coupled with the above is the admission of the PW1
that Beaver 1200 dredger was available at Cochin in
connection with another work at Shipyard. The witness
2025:KER:54805
deposed thus:
"Beaver 1200 ക ച യ ൽ available ആയ ര ന . അത ഷ പ ർഡ work ന
വ ണ ഇ ക ക ണ നത യ ര ന . പപത യ ക site ൽ Beaver 1200
ക ണ നത യ വരഖ ഉവണ ? (Q) വന കണ . (A)"
Therefore, in the absence of any evidence to show the
materials at the site and its value, and on the failure of
the plaintiff to take steps for mitigation of the damages, a
decree cannot be granted under the said head.
17. Incidentally, it is to be noticed that, while the
claims under the heads could not be substantiated by the
plaintiff, admittedly, an amount of Rs.20,00,000/- was
advanced by the defendant to the plaintiff under Ext.A4 work
order as mobilisation advance. No work was done under
Ext.A4, and there is no claim thereunder. The unpaid bill
amount under Ext.A3 work order is only Rs.11,69,000/-. If
that be so, more than Rs. 8 lakhs is with the plaintiff.
18. Thus, we find that, even going by the plaintiff's
case, that Exts.A3 and A4 works were independent of each
other and related to different works, the claims are not
2025:KER:54805
liable to be granted.
19. Now, we proceed to consider the contention of the
defendant that Ext.A4 work order related to the unfinished
works under Ext.A3 work order. According to the defendant,
with the machinery available with the plaintiff, only a
portion of the work under Ext.A3 could be carried out. To
carry out the remaining works under Ext.A3, machineries of
sufficient capacity including, IHC Beaver 1200 dredgers,
floaters, etc., were necessary. To enable the same, Ext.A4
work order was issued by enhancing the rate. It is the
continuation of the original work, is the contention. Here,
Ext.B7 letter dated 02.02.2010 issued by the defendant to
the plaintiff is of significance. Paragraph 2 of the said
communication reads thus:
"Kindly see the reference No.01 vide which we have given order for dredging of
about 1 lakh cum. But your capabilities were not sufficient enough to dredge the
various locations we asked for. Later you only suggested dredging to be carried
out using the Beaver 1200 dredger. Accordingly new work order (ref.2) has been
issued with a revised rate along with a mobilization advance of Rs.20 lakhs.
Thereafter you have shown least interest in doing the work. Instead you were
2025:KER:54805
keen on writing letters and blaming others in order to hide your incapability to
execute the work."
Such statements seem un-rebutted. Under Ext.A4 work order,
the description of the work is specifically for "Dredging
using Beaver 1200 dredger". Admittedly, Ext.A4 work order
was issued when only approximately 31,000 cubic meters of
quantity of work was done under Ext.A3 work order. The above
probabilises the defendant's claim that it was for carrying
out the remaining part of the work under Ext.A3 work order,
which could not be carried out with the available machinery,
that Ext.A4 work order was issued for a higher rate.
20. A perusal of Exts.A3 and A4 work orders indicates
that both are related to "dredging the canal area". While
Ext.A3 specified the work areas at "Moolampilly and
Mulavukadu", Ext.A4 work order related to "work areas at
various alignment locations". There is no case that there
was more than one project site. Further, PW1 in cross-
examination admitted that the works under Ext.A3 work order
2025:KER:54805
(approximately 1/3rd) were carried out utilising machinery of
lesser capacity. The relevant deposition reads thus:
"ELLICOT-1 ഉപവയ ഗ ച ണ 31,207 Cum. work ക"യ$ത. അത Beaver
കനക ൾ റച capacity ഉളത ണ."
Exts.A5 to A11 are the letters and bills with regard to the
work for approximately 31,000 cubic meters under Ext.A3 work
order. Pertinently, Ext.A11, which is last in series, is
dated 25.08.2009, and it makes up the quantity of
31,000(approx.) cubic meters. This is followed by Ext.A4
work order dated 16.09.2009. These circumstances taken
together probabilises the defendant's claim that Ext.A4 work
order related to carrying out the unfinished work under
Ext.A3, with the machinery of higher specifications and
capacity. Admittedly, no works were done pursuant to Ext.A4
work order.
21. Therefore, the claim of the plaintiff that the
defendant failed to provide the agreed quantity of work
under Ext.A3 work order, and the claim for loss of profit
2025:KER:54805
thereunder, are only to be turned down.
22. The claims under the other two heads, namely,
value of unpaid bills and value of the machineries, have
already been dealt with by us. Whether Exts.A3 and A4 work
orders are independent of each other or are related to the
same work is found to be of no consequence upon the claims.
23. On the above discussions, we find that the trial
court was justified in having negatived the plaintiff's
claims. The decree and judgment of the trial court are
founded on the evidence and warrant no interference.
Resultantly, the appeal fails and is dismissed. No
costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
yd
