AUGUSTHY JOSE Vs. STATE OF KERALA

JUDGEMENT

(1.) The plaintiff is the appellant. He filed the suit for a perpetual injunction restraining the defendants from realising the arrears in respect of toddy shop No.85 of the Erattupetta range for the abkari year 1983-84. The plaintiff, an abkari contractor, admittedly bid the right to conduct the said toddy shop for the abkari year 1983-84 for a consideration of Rs. 83,300/-. The case of the plaintiff is that during that year there was a drought commencing from 15-4-1983 and ending on 30-6-1983 which resulted in reduction in the yield from the coconut palms and the palmyra palms from which he was to tap toddy. He further contended that he was entitled to remission of half of the amount payable under the contract and he was entitled to an injunction restraining the defendants from realising the arrears in respect of the shop for the abkari year 1983-84 as per the terms of the contract. The defendants resisted the suit. They pointed out that the plaintiff was continuing to conduct the shop for the whole year and he was not entitled to any remission as claimed and that the suit for injunction is not maintainable. H was also contended that no injunction as prayed for should be granted to enable the plaintiff to get rid of the obligations undertaken by him. The courts below have found that the plaintiff was not entitled to the injunction sought for. The lower appellate court also held that even assuming that there was a drought as claimed by the plaintiff, the plaintiff had not repudiated the contract on the ground, but had taken the benefit of the contract for the entire abkari year and in that view he was liable for the dues under the contract. The plaintiff has come up with this Second Appeal challenging the decision of the courts below.

(2.) Even at the outset it has to be said that the relief of injunction being a discretionary relief, a person like the plaintiff who had bid the right to sell toddy and who had in fact sold the toddy throughout the year, is not entitled to the exercise of the discretion by the court to enable him to get rid of his obligation to pay the amounts due to the Stale on the basis of the contract entered into by him. Moreover, in this case, the plaintiff had admittedly run the toddy shop throughout the abkari year and at no time had complained of any reduction in yield from any tree or of loss of production on account of any drought. In such a situation, no injunction could be granted in favour of the plaintiff to enable him to escape from his obligation to pay the money due to the Government.

(3.) Moreover, the Supreme Court has now held in the decision reported in Assistant Excise Commissioner v. Issac Peter ( 1994 (1) KLT 698 ) that no remission could be granted to a contractor unless there was a failure on the part of the Government to fulfil its obligations under R.8(1) of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974. The Supreme Court has also held that since the obligations have been put in a statutory form, it is not permissible to go outside the provisions of that statute. The view of the Supreme Court has been followed by a Division Bench of this court in O.P.No. 12218 of 1991 and the connected cases. In para.9 of the judgment their ' Lordships have clearly indicated that "it would not be permissible to say that there was some other condition or term agreed upon or implied between the parties which is not found therein". It is therefore clear that the plaintiff is not entitled to invoke the doctrine of frustration which he has tried to do in the case on hand to get rid of his obligation under the Abkari Rules in the light of the contract entered into by him. As observed by the Supreme Court in Issac Peter's case, the conditions of the contract are statutory and they are formally drawn up in the shape of statutory rules and in such a situation it would not be permissible to say that there was some other conditions or term agreed upon or implied between the parties which is not found therein. I therefore find that the plaintiff is not entitled to rely on the doctrine of frustration to get rid of his obligation in this case.