M/S. ORIENT UNDERWATER ENGINEERS (PVT.) LTD., NOW HAVING ITS OFFICE AT L Vs. THE BOARD OF TRUSTEES, COCHIN PORT TRUST, WILLINGDON ISLAND, COCHIN

JUDGEMENT

(1.) The plaintiff in a suit for recovery of damages, return of money and other reliefs has filed this Appeal Suit challenging the portion of the decree against him. A Cross Objection has been filed by the defendant challenging that portion of the decree that went against them.

(2.) The defendant invited tenders for salvaging the sunken dredger, 'HSD Mattancherry'. The plaintiff was the successful tenderer. On 01.11990 agreement relating to the work was executed between the parties. As per the agreement, on completion of the work, the plaintiff becomes the owner of the wreck and Rs.13 lakhs is payable by the plaintiff to the defendant. The work was to be completed within a period of nine months. There was delay in completion of the work. According to the plaintiff, the delay occurred consequent to the furnishing of incorrect information by the defendant regarding the details of the vessel. Material details, especially regarding the heel of the vessel were not disclosed by the defendant. The vessel had a heel of approximately 50 to the starboard side. This defect was neither intimated to the plaintiff nor was disclosed in the tender papers. Information furnished regarding the dimension of the crack/tear on the underwater hull was wrong. Though as per the tender papers the crack/tear had a size of 4.7 metres length and 7.5 cms width, during the course of work it was found that the actual size was only 90 cms length and 2 cms width. The size of the crack/tear is very material in determining the methodology to be adopted for salvaging the vessel. Consequent to the furnishing of false information, huge additional expenditure had to be borne by the plaintiff. The representation by the defendants was that the vessel was lying on starboard side in about 8 metres of water and that the depth of the water varied between 7.2 metres to 8.05 metres. But the depth of the water was only 8 metres on the eastern side and 2 metres on the western side at midship. The fact that after sinking, the vessel was pushed by the defendant using tugs further into the mud was not informed to the plaintiff. All these were material information which were either actively concealed or were intentionally and fraudulently misrepresented by the defendant. It is alleged that the contract is vitiated by fraud and misrepresentation consequent to which the plaintiff suffered damages. Apart from the claim for damages on those allegations, there is a further relief for recovery of an amount of Rs.52,000.00 collected by the defendant from the plaintiff as sales tax. According to the defendant there was no fraudulent representation or misrepresentation on their part. The claims made by the plaintiff, were denied.

(3.) As regards the claims on the allegations of fraud and misrepresentation, the suit was dismissed. A decree was granted in favour of the plaintiff for recovery of the sales tax amount collected.