P V PAILY Vs. STATE OF KERALA

JUDGEMENT

(1.) Question that has come up for consideration in this case is whether the second respondent, Executive Engineer, could determine the loss sustained by the Government due to breach of an agreement dated 31.5.1986 entered into between the petitioner and the second respondent.

(2.) The work of repairs to Peruvallur Sluice Elavally Panchayath was awarded to the petitioner as per agreement dated 31.5.1986. The amount shown in the agreement was Rs. 1,08,898/- and the security deposit was Rs. 5,450/-. As per the agreement, the time for completion of the above work was two months from the date of handing over site. According to the petitioner, the site was handed over only on 5.5.1987. As per Clause.4 of the agreement, time was the essence of the contract and petitioner had to complete 60% of the work during the first month and 100% in the second month. Work had to be completed as per the Schedule to the agreement.

(3.) Petitioner submits that for initial work as per item 2 of the schedule, 178 bags of cement was required, which was not supplied by the second respondent. According to him, as per Clause.10 of conditions of contract, when an estimate provides for use of any special description of materials, the same had to be supplied from the Executive Engineer's store or if it was required that the petitioner should use certain stores to be provided by the Executive Engineer, a memorandum had to be attached showing the particulars of stores showing the rates, place of delivery, etc. According to petitioner, sufficient bags of cement were not supplied by the District Division Stores at Thrissur, since cement was not available. Eventhough petitioner approached the second respondent, second respondent issued an indent for only 100 bags of cement. Hence he could not proceed with the work.