MOHAMMED KUNHI Vs. EXECUTIVE ENGINEER

JUDGEMENT

(1.) THE petitioner entered into a contract with the Kerala state Electricity Board, represented by the respondents for drawing electric line to the Ayyankavu Harijan Colony in Kasaragode District. Certain articles were released to the petitioner by the Board for the above work. It is alleged that some of the articles were stolen away from the premises of the petitioner. Though the petitioner did not take any criminal action with regard to the alleged theft, the Board filed a complaint, based on which C. C. No. 254 of 1988 of the Judicial Second Class Magistrate Court , Hosdrug was registered. When the petitioner completed the work and demanded payment of the amount fixed in the contract, the Board took up a contention that money was not payable as more amounts are due to the Board towards value of the articles stolen from the premises of the petitioner. THE matter reached this Court and in Ext. P4 judgment this Court found that the unilateral fixation of the value of the articles not returned by the petitioner, made by the Board, is arbitrary and without any legal basis. It was directed that the amounts should be assessed in appropriate enquiry with notice to the petitioner. Ext. P3 order challenged in that Original Petition was thus set aside. THE Board was directed to take fresh steps for ascertaining the value of the articles not returned, in case those articles could not be retrieved from the criminal court on an application made to that effect. It was further held that it was only after ascertaining the value of the materials as above that any recovery proceedings could be initiated against him. Pending fixation of the amount, it was directed that the interim direction granted in C. M. P. No. 7675 of 1990 in Ext. P4 would continue to be in force.

(2.) THE grievance of the petitioner projected in the present Original Petition is that inspite of the above direction, the Board has proceeded to pass Ext. P5 order fixing liability to the extent of Rs. 50. 675/-and that too without giving any notice to the petitioner as directed in Ext. P4 judgment.

(3.) RAMBAL Co. v. Kerala State Science & Technology museum (2000 (2) KLT 77 (page 73)) is authority for the proposition that question as to whether there is breach of contract and if so what is the quantum of damages, are all matters which are best left to be adjudicated upon by a Court or Tribunal and not by one of the contracting parties. When breach is not admitted, one of the contracting parties cannot arrogate to itself the power to claim compensation for the breach from the other party without there being any adjudication by an outside agency as to whether there was any breach of contract.