P K ABDULLA Vs. STATE OF KERALA

JUDGEMENT

(1.) The unsuccessful plaintiff in O.S. No. 38 of 1989 of the Subordinate Judge's Court, Kozhikode filed this appeal against the judgment and decree in the said suit. The plaintiff filed the suit for recovery of money and for rendition of accounts.

(2.) The appellant was a P.W.D. Contractor for a long time. He was awarded the work of Muchuukunnu-Thikkodi Beach Road by the second respondent accepting the appellant's tender. An agreement was executed on 22-1-1985. He was directed to make a security deposit of Rs. One lakh, much in excess of what is usually insisted upon. The site was handed over to the appellant on 13-2-1985 and it had to be completed by 17-2-1986 as per the agreement. The appellant started the work very earnestly and diligently. Unfortunately, there were various objections and impediments in proceeding with the work. The handing over of the said work was a myth and in fact the department had not obtained possession from the respective owners of the property through which the road had to be constructed. The original road had only a width of 4 metres and it has to be widened to 8 metres. Some portions of the proposed road belonged to the Food Corporation of India and Railways. No consent was obtained from them also. One Kelappan and Moidu had filed injunction suits restraining the department from proceeding with the construction work. Temporary injunctions were granted in the said suit. There were physical obstructions from the side of the land-lords. Objections regarding the work were also filed before the Honourable Minister for P.W.D. by one Bala-krishnan. Further, many coconut trees had to be cut and removed for widening the road. In the suit filed by Kelappan, the department had to file an appeal from the order of injunction before the Sub Court, Badagara. The second respondent did not do any thing to remove the obstructions. When the appellant started the work, the landlords objected the same. When the actual work was commenced, the quantity required for filling, exceeded far from the estimated quantity. As per the agreement, 23 masonry culverts were to be constructed, but at the time of the work, they were converted into 3 pipe culverts and 25 box culverts. The department had no stock of pipes, cement and steel necessary for this work. Apart from this, a lot of extra items such as cutting and removing of trees, failing of water, dismantling and removing old masonries, fresh use of vibrated concrete etc. had to be done. There was undue delay for payment of part bills and payment for extra items were not paid at all. The department was really responsible for causing the delay in executing the work. As directed by the respondents, the appellant applied for extension of time and huge amounts were due from them up to 30-3-1987. An amount of Rs. 5 lakhs was due to the appellant. Still the appellant continued the work facing difficulties and about Rs.10 lakhs fell due to him from the department allegedly for want of funds. Repeated requests were made by the appellant. At last, the Assistant Engineer, Quilandy by his letter dated 6-8-1988 issued a notice threatening that the agreement would be cancelled. Thereafter, the appellant was forced to issue notice under S. 80 of the C.P.C. and filed the suit.

(3.) The respondents filed written statement contending that the appellant stopped and abandoned the work after 40% of its execution and did not resume the same inspite of repeated instructions. There was no obstruction as alleged by the appellant. The site was handed over to the appellant on 13-2-1985. He had started the work only after 4 months. There was no complaint from any corner. Voluntary surrender was made by the land owners and agreement was for widening the existing road. The security amount deposited by the appellant is not in excess. During the time of executing the agreement, security deposit fixed by the Government was 5% of the P.A.C. or Rs. One lakh whichever is less. The site was actually handed over to the appellant and as per the agreement he had to complete the work by 17-8-1986. He abandoned the work after 40% of the work and did not resume it inspite of the repeated instructions. So the contract was terminated at the risk and cost of the appellant by retention of his security deposit and retention amount as per notice dated 1-12-1988. the earth work of filling and cutting had been carried out by the appellant in a major portion of the road without any obstruction except that of Kelappan who had filed a suit before the Munsiff's Court, Payyoti. Neither the Food Corporation of India nor the Railways had objected the work at any time. The appellant accepted the tender in a keen competition with the expectation of making profit. After carrying out the major portion of the profitable items of works, he tactfully abandoned the work and withdrew all the men, material and machinery from the site. The payment for the completed work was made in proper time. First part bill was passed on 22-6-1985 for an amount of Rs.4,72,817/-. The appellant raised unreasonable claims before the respondents. There was no protest as alleged by the appellant. Though Balakrishnan had filed a written protest before the Minister concerned as the existing road at the side of his land was having 8 metres with no additional land was required at that portion. So, the objection raised by him also did not cause any hindrance to the work. The formation of the road had been carried out by the appellant within three months from the starting of the work. The coconut trees standing at the boundary of the road not cause any hindrance to the work. The appellant was not a party in the suit filed by Kelappan. The suit was against the Engineers and the State of Kerala. The injunction order was vacated within 3 months. Even if the suit was filed, it affects widening of the road at a length of 40 metres and width by 50 cms. If there were any objections as alleged in the plaint, it would not have been possible for the appellant to carry out major portion of the earth cutting for widening the road, earth work filling for raising the road and side protection works during the first three months and it would not have been possible for him to resume the work in December 198 6/09/1987. Objections raised by three others were cleared in the month of March itself. So, the allegation that the appellant could not complete the work within the stipulated time since there was obstruction from the land owners is false. Since the appellant abandoned the work and withdrew all men, material and machinery from the site and did not turn up till May 1986. Due to the fault of his own, the respondents thought of cancelling the contract entered into between the appellant and defendants and arranging the remaining works to be carried out through the other agencies at the risk and costs of the appellant. After receipt of the final notice issued by the 2nd respondent, the appellant informed the Assistant Executive Engineer as per letter dated 7-5-1986 requesting to mark the site for culverts. The appellant had agreed to commence the work of culverts by the end of 15-5-1986. He was well aware of the facts that the construction of the culverts passing through low lying paddy fields could not be possible during monsoon. So his letter dated 7-5-1986 and 28-4-1986 were only to confuse the department. He turned up to resume the work only in December 1986. Still the department granted extension of time for completion of the work up to 31-5-1987 and then up to 31-3-1988. But the appellant did not turn up to receive the materials. He had no intention to resume the work. The allegation that the materials were not supplied in time was also not correct. The materials were supplied in time at the request of the appellant. It is the appellant who have committed the breach of contract and therefore he is not entitled to any relief.