R MOHANDAS Vs. STATE OF KERALA

JUDGEMENT

(1.) Under challenge in these appeals are the judgment and decree dated 31.3.2003 passed by the Principal Sub Court, Thiruvananthapuram, in O.S No.538 of 1995. R.F.A No.373 of 2003 is by the plaintiff and R.F.A No.254 of 2004 is by the State of Kerala and the Superintending Engineer, Irrigation, who are the defendants in the original suit.

(2.) Briefly put, the facts of the case are as follows: The plaintiff was a contractor for supply of stones for the work as per agreement dated 28.11.1999, on the basis of Ext.A1 selection notice. The work mainly consisted of supplying and making seawall with armour stones of 200 dm3 size, core stones of 45 dm3 size and soiling stones of 20 to 40 dm3 size for filling the voids. The estimate approved by the second defendant was prepared on the basis that the stones could be obtained from Vattappara Government quarry near Kovalam, which is within the initial lorry lead of 5 KMS, acquired in 1970 by the Department of Irrigation, for supply of armour, core and soiling stones required for the ASE work mainly at Poonthura and Panatharakkara coast coming under Irrigation Division, Thiruvananthapuram. The second defendant tendered the work based on these parametres and the plaintiff had quoted his minimum rates expecting that the various sizes of stones would be available for the work, within 5 KMS initial lead. According to the plaintiff, after executing the agreement, he immediately took over the site and started the work. The plaintiff would allege that the second defendant had arranged many original and maintenance ASE works at this time for which, Vattappara quarry was assigned as the source for supply of these armour, core and soiling stones, which had resulted in shortage of these work stones in the said quarry. The plaintiff would further allege that adding to this, there was frequent labour troubles also in the quarry which further aggravated the non-availability of the stones, and as such the plaintiff had informed the department, the selection of the quarry at Parippally and to satisfy about the quality of stones and approve the same. Thus, he started conveying the stones from Parippally so as to complete the work in time, which the department had accepted without raising any objections; it is alleged. He would also allege that the work originally scheduled to be completed by 2.2.1992 was extended till 25.5.1993 on valid grounds and by that time, the work was completed. According to the plaintiff, the peak working season of ASE works in a year is from November to May and he could generate only a meagre quantity of armour and core stones from Vattappara quarry. Therefore, the plaintiff would allege that he has incurred the following total expenditure by way of additional conveyance charges and seigniorage, in respect of stones brought from Parippally: Description of stone Additional Quantity brought Additional amount due by Rate /m3 from Paripally way of additional conveyance charges <FRM>JUDGEMENT_188_LAWS(KER)8_20131.htm</FRM>

(3.) The defendants, who are the appellants in R.F.A No.254 of 2004 resisted the suit and contended that the plaintiff accepted the measurement of all the items of work recorded by the department and received a final payment due to him in respect of the work without raising any kind of protest. They would contend that the Government by order dated 30.9.1993 allowed 60% of the rate allowable to him as additional conveyance charges as special case and, therefore, there is a full satisfaction as provided in Clause 23(c) of the notice inviting tenders of the agreement and thus, the plaintiff is estopped from raising any further claim in respect of the very same work. The further contention was that the plaintiff was not earnest in carrying out the work from the beginning and there was delay in executing the agreement and taking the charge of the site. The time was extended on the request of the plaintiff taking a lenient view. There were four more original works which have been tendered by the department with the last date of receipt of tender as on 27.6.1990. All the above four works were taken up by the plaintiff himself. The execution of another similar work between BLS 224 to 231 which was taken up by one K. Reghunathan was in progress at that time. The plaintiff would have ascertained the availability of materials at Vattappara quarry before quoting his rate. There was no complaint regarding the non-availability of materials from any other contractors who have also collected the materials from Vattappara quarry.