Kerala High Court
R.Mohandas vs State Of Kerala on 25 July, 2025
RFA No.668/2004
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
FRIDAY, THE 25TH DAY OF JULY 2025 / 3RD SRAVANA, 1947
RFA NO. 668 OF 2004
AGAINST THE JUDGMENT AND DECREE DATED 30.06.2003 IN OS
NO.1282 OF 1995 OF PRINCIPAL SUB COURT, THIRUVANANTHAPURAM
APPELLANT/PLAINTIFF:
R.MOHANDAS
S/O. K.N. RAGHAVAN, AGED 39,
RESIDING AT SANTHINIKETH,
CHIRACKAL P.O., KANNUR.
BY ADVS.
SHRI.AJITH KRISHNAN
SHRI.T.R. RAJASEKHARAN NAIR
RESPONDENTS/DEFENDANTS:
1 STATE OF KERALA, REPRESENTED BY THE CHIEF
SECRETARY, GOVT. SECRETARIAT, THIRUVANANTHAPURAM.
2 THE SUPERINTENDING ENGINEER
IRRIGATION SOUTH CIRCLE, THIRUVANANTHAPURAM.
BY ADVS.
GOVERNMENT PLEADER SRI.JIBU.T.S.
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
15.07.2025, THE COURT ON 25.07.2025 DELIVERED THE FOLLOWING:
RFA No.668/2004
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JUDGMENT
Dated this the 25th day of July, 2025
The plaintiff in OS No.1282/1995 on the file of the Principal Sub
Court, Thiruvananthapuram is the appellant. (For the purpose of
convenience, the parties are referred to as per their rank before the trial
court.)
2. The plaintiff filed the suit for realisation of money. The
plaintiff was a contractor by profession. In response to notice inviting
tenders by the defendant for the work of Anti Sea Erosion (ASE) for the
construction of seawall for a length of 500 metres between BLS 17 and
22 at Poonthura during May 1992, the plaintiff quoted 54% above the
estimated rate of 1990 Schedule of rates and the above work was
allotted to the plaintiff by tender committee in its meeting held on
4.8.1992. Sanction for the said work was accorded by the Government
as per order dated 26.9.1992 for a sum of Rs.30.5 lakhs and the same
was accepted by the defendant. As per the selection notice, work was to
be completed within 12 months from the date of handing over the site.
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The site was handed over to the plaintiff on 10.2.1992 and the time for
completion of the work was extended till 31.5.1994 and the plaintiff
completed the said work within the extended period.
3. According to the plaintiff, for the completion of the above
work, granite stones of 200 dm3 , 45 dm3, 20 to 40 dm3 and soling stones
were required and as per the contract the plaintiff' has to bring such
stones from the departmental quarry at Vattappara. The estimate was
prepared including conveyance for transporting granite from Vattappara
to the work site at Poonthura, which situates at a distance of 9 km from
the work site. The plaintiff quoted the rate on the assumption that
granite will be available from the Vattappara Quarry. In the meantime,
the Government assigned similar works at other places also and other
contractors were also to collect granite from the said quarry.
Accordingly, the plaintiff could secure only a small portion of the
granite from the Vattappara quarry. Since he could not procure adequate
quantity of stones from Vattappara, consequential non-availability of the
same was notified to the authorities concerned. Finding the impossibility
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of obtaining the required quantity of granite from Vattappara quarry, the
departmental authorities directed the plaintiff to collect stones required
for the work from other sources and to complete the work within the
stipulated time. Accordingly, the plaintiff brought granite from a quarry
at Parippally about 50 km away from the work site. For bringing the
granite from the Parippally quarry, the plaintiff had to spend an extra
amount for conveyance and the present suit has been preferred claiming
a total sum of Rs.52,46,652/- being the additional conveyance expenses
and seigniorage.
4. The defendant filed a written statement disputing the claim
raised by the plaintiff. According to them, enough granite was available
in Vattappara quarry and it was the duty of the plaintiff to employ
sufficient number of workers for quarrying operation and for collecting
sufficient material for the work, since as per the contract, it is the duty
of the contractor to bring the required granite from the places of his
choice. The department is not liable to pay any additional amount in
that respect. In the written statement, the defendant denied the
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allegation that sufficient quantity of granite was not available at
Vattappara quarry. According to them, it was the duty of the plaintiff to
extract sufficient quantity of granite from the Vattappara quarry. No
complaint was raised regarding the non-availability of required material
from the Vattappa quarry, either by the plaintiff or any other contractor,
who were also extracting the material from the same quarry during the
same period. It is also contended that during the same period, other
contractors have carried out similar ASE works extracting materials
from the Vattappara quarry and completed the works in time. The other
contractors have not made any complaint regarding non-availability of
required materials from that quarry. Vattappara quarry is large enough
to provide sufficient material for the work. None of the departmental
officials have given any direction to the plaintiff to obtain material from
any other quarry. If the plaintiff has procured any quantity of stones
from any other source, it is for his own convenience. Since the
department has assigned a quarry to collect the materials and the same is
incorporated in the agreement, the plaintiff is bound to collect the
materials only from that quarry. It is also contended that the plaintiff had
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collected the entire quantity of materials from Vattappara quarry. It is
also contended that the plaintiff received the amount for the above work
without raising any objection and as such he is estopped from raising
further claims in that respect. The plaintiff has not sustained any loss in
that respect. In the light of the above contentions, the defendant prayed
for dismissing the suit.
5. The trial court raised four issues. The evidence in the case
consists of oral testimonies of PW1 to 4 and DW1 and Exhibits A1 to
A21, B1 to B7 and C1 series. After evaluating the evidence on record,
the trial court dismissed the suit. Being aggrieved by the above
judgment and decree of the trial court, the plaintiff preferred this appeal
raising various grounds.
6. Now, the point that arises for consideration is the following:
Whether the impugned judgment and decree of the trial
court dismissing the suit calls for any interference in the
light of the grounds raised in the appeal?
7. Heard Sri. Ajith Krishnan, the learned counsel for the appellant
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and Sri. Jibu T.S., the learned Government Pleader.
8. The point: The plaintiff is a contractor, who had undertaken the
work of construction of seawall for a length of 500 metre between BLS
17 and 22 at Poonthura. The accepted estimated was Rs.40,20,068/-,
which was 54% above the estimate rate. The period of completion was
12 months and it was subsequently extended to 31.5.1994. Admittedly,
the plaintiff completed the construction within the extended period of
31.5.1994, to the satisfaction of the department.
9. As per the agreement entered into between the parties
(Exhibit B1), the work consists of supplying and dumping of armour
stones of 200 dm3, 45 dm3, 20 to 40 dm3 and soling stones and formation
of sea wall. Further, the stones were to be extracted by the contractor
from the government quarry at Vattappara which situates 9 km away
from the work site. The case of the plaintiff is that when the contract
was given to him, he alone was there to extract granite from the
Vattappara quarry and initially he engaged 12 labourers for that purpose.
Further according to him, thereafter the department has allotted other
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similar works to other contractors and to such contractors also the same
quarry at Vattappara was allotted and as such there was non-availability
of sufficient quarry at Vattappara. Therefore, according to the plaintiff,
with the consent of the departmental officials, he procured granite from
a distant quarry at Parippally, for which he had to spend additional
amounts for extra conveyance and as such he is entitled to get the
amount claimed in the plaint.
10. The contention taken by the defendant is that the quarry at
Vattappara was large enough to supply sufficient quantities of granite for
the work and that it is the duty of the contractor to employ sufficient
number of workers to extract sufficient quantities of granite from the
allotted quarry. They further contended that in similar works undertaken
by other contractors, they have collected sufficient quantities of granite
from the same quarry and there was no similar complaint from anybody
else. It was also contended that, if the plaintiff for his own convenience
collected granite from another quarry, that too without the permission of
the defendant, they are not liable to pay any extra conveyance expense,
if any, incurred by the plaintiff.
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11. The plaintiff would contend that in connection with the
construction of another seawall, the Government was satisfied that he
had to collect granite from Parippally quarry and acknowledging the
same, extra conveyance charge was allotted to him. Ext.A2 is the said
Government Order, G.O.Rt. No.1065/93/Irrn. dated 30.9.1993. In
Ext.A2 it was stated that the High Level Committee considered the
representation given by the plaintiff and observed that there was
shortage of granite at Vattappara, that the plaintiff was forced to bring
materials from far off places to complete the work in time and therefore,
the committee suggested that it is justifiable to pay the conveyance
charges to the contractor as a very special case. It was in the above
context, the Government was pleased to accept the recommendation of
the High Level Committee to pay 60% of the allowable rate to the
contractor as conveyance charge, 'as a very special case'.
12. The learned Government Pleader invited my attention to the
fact that it was an emergent case in which, restoration of damaged
seawall at Panathurakkara for a length of 610 metres between BLS 212
and 218 was to be made in a war-footing and it was in the above
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circumstance, it was considered as "a very special case" by the
Government. The said fact is evident from Ext.A2 itself. It is also
revealed from Ext.A2 that it was on the basis of the recommendation of
the High Level Committee the government had issued such an order. In
the instant case there was no such special circumstance and as such the
above Government Order cannot be applied as a precedent in the instant
case.
13. The learned counsel for the appellant has invited my
attention to another work undertaken by the same plaintiff involving a
similar construction in which the Principal Sub Court,
Thiruvananthapuram in OS No.538/1995 awarded a sum of
Rs.19,49,780/- towards extra conveyance. In appeal this court in RFA
No.373/2003 enhanced the compensation to Rs.35,52,833/- along with
interest @6% per annum. Since the above decision in O.S. No.538/1995
is with respect to the construction of a seawall, on the basis of another
contract with the same department, the said decision cannot be relied
upon in the present case.
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14. The learned Government Pleader relying upon Exhibit B1
contract would argue that, as per the terms of the contract, the contractor
cannot claim any additional amount except for any extra work entrusted
to him and according to him, since in the instant case, no extra work was
allotted, the plaintiff is not entitled to claim any additional amount. It is
true that as per the terms of Ext.B1 contract, the contractor is not entitled
to claim any additional amount, except for any extra work entrusted to
him. In the instant case the amount claimed by the plaintiff cannot be
styled as extra work entrusted by the defendant and as such the plaintiff
cannot claim any additional amount on that head.
15. The learned counsel for the plaintiff has extensively relied
upon the Exhibit C1 commission report prepared by the expert
commissioner (PW2) in support of the plaint claim. In Exhibit C1
report, the Commissioner noted that when he visited the department
quarry at Vattappara, the area allotted to the plaintiff was seen in an
abandoned stage, without any blasting of quarry, in the near future. In
this context it is to be noted that he visited the quarry in 2000, while the
seawall construction was completed in 1992-94. At the time of
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evidence, it is revealed that the said quarry has an area of 4.5 acres and
even according to the plaintiff, the area allotted to him has an extent of
1.5 acres. The Commissioner reported that, from the other portions of
the same quarry, in the possession of private parties, blasting and
operations were going on, even in the year 2000.
16. From the evidence on record it is revealed that the granite
available in Vattappara is very hard and is of good quality and hence
difficult to cut into pieces while that at Parippally is soft and easy to cut
into pieces. In Ext.C1 commission report the commissioner specifically
noted the nature and quality of the rock available in Vattappara quarry,
in page 6 as follows:
"The commission had also noted that the texture and type of
rock available in Vattappara quarry comes under very hard
blue granite type of stone with close grains and this type of
stones is difficult to break into the required size and shape of
amour tones with dimensions 90 x 50 x 45Cm, Thus the out-
turn of amour stones of the above size that can be produced
from the blasted boulders at this quarry site will be less when
compared to other type granite stones which can be cut into
the required size easily."
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17. With regard to the quality of the rock available at Parippally,
in page 7, the Commissioner noted that:
"The texture and type of rock in this quarry is different from
that found in Vattappara quarry and it is seen that the rock is
easy to be cut into the required sizes."
18. From the above report, it is evident that the rock available in
Vattappara quarry is very hard, granite type of stone, which requires more
labour for breaking into required size, while the quality of the rock available
at Parippally is easy to cut into required size. Therefore, even from Ext.C1
report it is revealed that enough granite was available at Vattappara, both in
the area allotted to the plaintiff as well as in the nearby private quarries. In the
above circumstance, if the plaintiff proceeded to Parippally, without
exhausting the quarries available at Vattappara, it can only because the rock
available there is light and less labour and expense was enough to cut them
into pieces of required size. In short, even if the plaintiff abandoned the
department quarry at Vattappara and proceeded to collect granite from other
quarries, it is for his own convenience, to reduce his expense and labour.
19. At the same time, in the same report, the Commissioner further
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stated that, in the meantime, certain other works were allotted to other
contractors, that those contractors also have to collect the materials from
Vattappara quarry and hence the plaintiff could use only a portion of the
Vattappara quarry, which reduced the availability of the stones. Even
according to PW1, about 1½ acres of quarry was allotted to him from
Vattappara quarry and he has no case that the above 1½ acres allotted to him
was allotted to anybody else. The above version in the commission report is
in tune with the case pleaded in the plaint. After reporting that when he
visited the department quarry at Vattappara, the area allotted to the plaintiff
was seen in an abandoned stage without any blasting in the near future and at
the same time, in the nearby private quarries blasting operations are going on,
such a finding arrived at by the commissioner is without any basis and
beyond the scope of his authority. Therefore, Ext.C1 report cannot be relied
upon to hold that sufficient granite was not available in the department quarry
and other private quarries at Vattappara.
20. From the evidence of the plaintiff as PW1, it is revealed that he
was engaged in similar work as a contractor for the past 15 years and he had
undertaken about 48 ASE works so far. During the cross examination, he
admitted that he was selected for the work involved in this case on 7.11.1992.
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When it was suggested that he had executed the agreement with the defendant
only after two months from the date of selection, he pleaded ignorance. From
the records it is revealed that he executed the agreement with the defendant
only on 8.1.1993. Admittedly, he could not complete the work within the
original period of one year and hence it was extended till 31.5.1994.
21. Admittedly, as per Ext.B1 agreement, the contractor had to
collect the required granite from the departmental quarry at Vattappara.
During the cross examination, he claimed that at Vattappara quarry,
initially he had engaged 12 labourers for quarrying operation. Though
according to the plaintiff, sufficient material was not available at
Vattappara quarry and that is why he started bringing stones from
Parippally quarry, there is no reliable evidence in that respect. At the
same time, as deposed by DW1, there was no prohibition for the
contractor to bring the material from anywhere he chooses, provided it is
of the required quality.
22. Similarly, though the plaintiff claimed that shortage of
granite at Vattappara was intimated to the officials of the defendant and
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that he started bringing stones from Parippally quarry with the
permission of the defendant, there is absolutely no evidence in that
respect. In the written statement the defendant specifically denied the
above claim made by the plaintiff. Though during the cross examination,
he claimed that there are documents issued by the defendant to prove
that he was authorised to bring the stones from Parippally quarry, he
could not produce any such documents.
23. Though the plaintiff produced Ext.A8 as the copy of the
letter issued to the defendant in that respect, there is no such pleading
and it was not produced along with the plaint. There is no evidence to
prove that Ext.A8 was served on the defendant and as such it could not
be relied upon. Exts.A11 to 21 produced by the plaintiff do not relate to
the work in question, but relate to some earlier works. Though in those
letters it is stated that due to labour problem sufficient quantity of
granite is not available, in this case he has no such case. Moreover, in
those letters there is no mention of the collection of granite from
Parippally quarry. Even if there was non-availability of sufficient granite
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at Vattappara quarry as claimed by the plaintiff, he was very much aware
of that fact, well before selection notice was issued to him on 7.11.1992,
agreement was executed on 8.1.1993 and he took charge of the site on
10.2.1993. It was in the above context he quoted 54% above the estimate
prepared for the work.
24. DW1, the Assistant Executive Engineer Irrigation North
subdivision deposed that the department officials have not received any
request from the plaintiff seeking permission to take stones from any
other quarry and that the officials have never certified the quality of the
stones from Parippally quarry or any other quarry. The specific case of
the defendant is that the plaintiff collected entire stones from Vattappara
itself and not from anywhere else. In order to prove non-availability in
Vattappara he examined PW3 and to prove supply of stones from
Parippally he examined PW4. Though PW3 claimed that the plaintiff
could not engage his own workers and that he himself engaged workers
and extracted stone and supplied them to plaintiff, the same is not
believable for more than one reason. Firstly because PW3 had no
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explosive license and secondly because PW1 admitted that initially he
himself engaged 12 labourers for blasting rock from Vattappara. PW4
spoke about supply of stones to the plaintiff in 1991, while the present
work was in 1992-94. He also could not state the name of the owner of
the quarry from where stones were supplied to the plaintiff. In the above
circumstance the trial court was justified in disbelieving PWs 3 and 4.
Though the commissioner (PW2) reported that the plaintiff brought
stones from Parippally, it was copied from the plaint and not from any
other reliable source and hence unreliable.
25. Except the oral testimonies of PWs 1,2 and 4 there is no
other evidence to prove that the plaintiff brought any granite from
Parippally for the work in question. Regarding the quantity of granite, if
any brought from quarries other than Vattappara also, there is no
evidence. I have already found that the evidence of PW4 is not reliable,
while PW2 has no direct knowledge in that respect. The plaintiff could
not produce even a scrap of paper to prove that he had purchased any
granite from any quarries other than Vattappara, for the work in
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question. In short, the plaintiff is claiming a huge amount from the
government department towards extra conveyance allowance, without
producing even a scrap paper from his side to prove any such
expenditure from his pocket.
26. At the time of evidence there was an attempt to show that a
sufficient number of private quarries were also not available near the
department quarry at Vattappara and that stones of the required size were
not available in those quarries. During the cross-examination PW1
deposed that he did not know the details of private quarries present near
the department quarry. As already noted, even in Ext.C1, PW2 reported
that when he visited Vattappara quarry in the year 2000, though the area
allotted to the plaintiff was seen abandoned for years, nearby private
quarries were in operation. However, during the time of evidence he had
taken a stand that no such private quarries were noted by him. Though
PW3 admitted that there are 6 small quarries near Kovalam, according
to him, they were not producing armour stones. PW4 has not denied the
suggestion that about 50 other quarries were working near Kovalam.
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When it was suggested that in several other quarries in the district,
stones of required size were being produced, he pleaded ignorance.
27. At the same time, DW1 categorically deposed that there
were about 50 other quarries near Vattappara quarry and that in those
quarries stones of required size were produced. From the above evidence
of PW3 and DW1 and from Ext.C1 it can be safely concluded that there
were a sufficient number of private quarries also near to the department
quarry at Vattappara. Even if sufficient quantity of granite was not
available from the department quarry at Vattappara, the plaintiff could
have collected the remaining granite from the private quarries available
near to the department quarry and only after exhausting those nearby
quarries he could have proceeded to the distant quarries. The reason why
the plaintiff avoided those private quarries which are present at
Vattappara and proceeded to the distant quarry at Parippally, as now
claimed, is also not explained. Similarly, he also ought to have obtained
the prior permission of the defendant, if he wanted to claim any extra
conveyance charge from them.
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28. Even according to the plaintiff, the defendants have entered
into similar contracts with several other contractors and the same quarry
at Vattappara was allotted to them also. In this context it is to be noted
that, none of the other contractors have any difficulty in getting
sufficient granite from Vattappara. They also have not raised any similar
claim against the defendants. It is also to be noted that the plaintiff
received the bill amount from the defendant without protest.
29. As argued by the learned Government Pleader, in Exhibit B1
agreement, there is no provision for paying any additional amount
towards extra conveyance in case the contractor brings material from far
away places. Since as per Exhibit B1, the plaintiff was bound to collect
granite from the nearby department quarry at Vattappara and if the
plaintiff at his own instance and convenience brought stones from a
distant place, without the prior permission of the defendants, the
additional expenses, if any, met by him is to be borne by him.
30. The plaintiff, who had 15 years of experience in the field and
undertook 48 similar works very well knew the nature, extent, quality
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and availability of the rock at Vattappara when he entered into
agreement with the defendant. Since the plaintiff entered into contract
with the defendant after fully knowing about the nature, extent, quality
and availability of the granite in the department quarry at Vattappara, he
was not justified in claiming compensation for extra conveyance on the
ground that he unilaterally brought granite from a far away place.
31. On the other hand, as noted above, in this case there is no
reliable evidence to prove that the plaintiff has in fact brought any
granite from the Parippally quarry, as claimed. Even if he had brought
any portion of the granite used for the work from any quarry other than
the department quarry at Vattappara, there is nothing to show that it was
from Parippally. Even if any such portion was brought from any quarry
other than the department quarry at Vattappara, there is also no reliable
evidence to prove it's separate quantity. The present suit filed after
receiving the bill amount without protest, on the basis of Ext.A2 issued
by the government 'as a very special case', in a different context and
praying for applying the same yardstick in the present contract is an
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experimental one, devoid of any merits. In the above circumstance, the
trial court was perfectly justified in dismissing the suit. I do not find any
irregularity or illegality in the impugned judgment and decree of the trial
court so as to call for any interference and as such, this appeal is liable
to be dismissed. Point answered accordingly.
32. In the result, this appeal is dismissed with costs.
All pending interlocutory applications shall stand closed.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
sou.
