STATE OF KERALA Vs. K ABDUL KHADER

JUDGEMENT

(1.) State of Kerala and others, the defendants in a suit for recovery of money based on a contract are the appellants in this intra court appeal against the judgment of the learned single Judge decreeing the suit in reversal of its dismissal by the court of first instance.

(2.) A contract for the rectification of a particular road in connection with the Kuttiadi Irrigation Project was awarded to the plaintiff by the State of Kerala through the third respondent Superintending Engineer, to be carried out under the immediate control of the Executive Engineer. The contract between the parties (taken on record as Ext.B6 by the learned Single Judge as additional evidence in the first appeal) was entered into between the plaintiff and the Superintending Engineer acting on behalf of the Government. Improvement was to be effected to the Mokeri-Kayakkodi Road from 0/000 kms. to 4/700 Kms. The total estimated cost of the work was Rs. 4,87,582/-.

(3.) Going by Ext.B6 and other attendant documents, the rate of progress to be achieved and the proportionate value of work to be done from time to time was that 25% of the work was to be completed in 1 1/4 months, 50% in 2 1/2 months, 75% in 33/4 months and 100% in five months. The agreement included provisions for extension of the period of the contract even on payment of penalty. Therefore, time was not of the essence of the contract. We are fortified in this view, among other, by the judgment of this Court in State v. K. Bhaskaran, 1984 KerLT 948. It is also a matter of record that even between the parties to the suit supplementary agreements were executed, including Ext.A2.