P M THANKACHAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS appeal is filed by the plaintiff in O.S.557/89 on the file of the Additional Sub Court, Kottayam. Respondents 1 to 5 are the defendants 1 to 5 in that suit, which was filed for declaration and realization of money due under a works contract.

(2.) THE case of the plaintiff briefly is as follows : The plaintiff is a registered A class PWD contractor. He submitted tender for works of M.1 Class II improvements to Kannotte Thodu in Madappally Panchayat on 30.12.1982, quoting rates 4.9% over and above the estimated cost. The third defendant accepted the tender submitted by the plaintiff on 2.2.1984 and the plaintiff deposited Rs.15,590/ - as security for due performance of contract on 14.2.1984 and an agreement was entered into between the plaintiff and the third defendant. That agreement was the contract between the parties and the stipulated probable amount was Rs.3,97,627/ - and a period of nine months was fixed for performance of contract from the date of handing over possession. The performance of the contract was largely dependent on the due and prompt performance of the reciprocal promises on either side of the contracting parties. The plaintiff was ready and willing to perform the promises and obligations on his part under the agreement. Immediately after executing the agreement the plaintiff had made extensive arrangements for men, machinery capital equipments etc. for performance of the contract. The proposed works under the agreement were to be carried out along the side of a thodu flowing through the adjoining private cultivating paddy fields on either side. The major item of work envisaged in the schedule was earth work excavation. The defendants were bound to hand over the possession of the work without delay to the plaintiff so as to enable him to carry out the works.

(3.) THE plaintiff was made to believe that the defendants were in possession and ownership of the land through which the works were proposed to be carried out. On 22.2.1984, the subordinate of the third defendant persuaded the plaintiff to affix his signature in token of taking charge of the possession of the site of work in the prescribed forms on the assurance that the land necessary for carrying out the work would be made available or acquired by them without any delay and the site would be made available without any obstructions. The third defendant instructed the plaintiff to carry out the works stipulated in the schedule at the site of work.