STATE OF KERALA Vs. THOMAS

JUDGEMENT

(1.) STATE has filed the appeal challenging the judgment and decree of the Sub Judge, Hosdurg in O. S. 26 of 1987. Respondents-plaintiffs filed the suit for declaration that the Government and Excise Department have committed breach of their obligations under the contract in the matter of supply of arrack, that the plaintiffs are not liable to pay any amount by way of kist and that the revenue recovery proceedings initiated against them are illegal and void. Plaintiffs also sought for a perpetual injunction restraining the defendants (appellants herein) from proceeding with the revenue recovery proceedings. The suit was decreed by the Court below declaring that the defendants have committed breach of contract in the supply of the monthly quota of arrack to the plaintiffs in January, 1985. The Sub Judge further held that the plaintiffs are entitled to Rs. 1,25,000/- as damages. The said sum is directed to be adjusted against the balance kist amount due from the plaintiffs.

(2.) PLAINTIFFS filed Cross Appeal being not satisfied with the quantum of damages. Contention of the plaintiffs is that the Court below erred in finding that they are entitled only to Rs. 1,25,000/- as damages. According to them, the Court below ought to have allowed the entire reliefs prayed for in the suit.

(3.) THE question that arises for consideration is whether the Court below was justified in holding that there was any breach of contract by the defendants. Learned Government Pleader submitted that as the agreement does not specify any date on which the monthly quota of arrack has to be supplied it cannot be held that there was any breach of contract by the defendants as it was perfectly open to them to supply the arrack during the course of the month. In other words, it is contended by the defendants that the plaintiffs are not entitled to any damages on the ground of belated supply of arrack particularly when the contract does not specify any time limit for the supply of arrack. Counsel for the plaintiffs submitted that ' supply of arrack is the monopoly of the State as can be seen from Section 12 of the Abkari Act and so the plaintiffs were entirely dependent upon its supply from the defendants and as the supply was effected only on 28th of January, 1985 they could not transact any business during that month and the court below was justified in decreeing the suit. Contention of the plaintiffs is that there are sufficient indications in the Abkari Shops (Disposal in auction) Rules to hold that the supply of arrack has to be made by the defendants during the first week of every month or atleast before 10th of every month.