CHINNASWAMY Vs. STATE OF KERALA

JUDGEMENT

(1.) Appellant/Plaintiff challenges dismissal of the suit for a declaration that he is not liable to pay the amount demanded by respondent No. 5, Tahasildar (Revenue Recovery) pursuant to notice No. NK.20624/94-A dated 12/1994 or any other amount to the respondents and a consequential injunction to restrain the respondents from recovering such amount from him pursuant to the said notice.

(2.) Appellant is an A Class PWD contractor. It is not disputed that he was entrusted with the work of two units of quarters, one for Deputy Range Officer, Thekkady and the other, for the Forest guards, Thekkady as per separate agreements. Building materials such as cement and steel were entrusted to the appellant on 26-09-1987. Appellant states that though he had constructed the quarters for Deputy Range Officer partly, it could not be completed as the respondents did not provide him with route permit for transportation of cement and steel through forest area and hence he surrendered building materials to respondent No. 3 as per Ext. Al, letter dated 28-9-1989. On 15-10-1993 appellant got a letter from respondent No. 2 directing him to return the materials or remit its value. Thereon appellant issued notice to respondent No. 3 on 8-9-1993 to return such materials or to pay the amount. Respondent No. 3 refuted his liability and hence the suit. Respondents contended that there was no negligence on their part, whatever were required to be done on their part had been done and that it was the negligence of the appellant which resulted in the work not being completed. They also contended that it was the responsibility of the appellant to obtain necessary route permit for transporting building materials to the work site. It is incorrect to say that the materials were returned to respondent No. 3. appellant gave only an information regarding storage of the materials in his custody. Appellant was directed to hand over the duplicate key of the place where the materials were stocked and to comply with Store Rules as per Government Order but he failed to do so. Hence, revenue recovery was advised for realisation of Rs. 84,436/- being the value of building materials from the appellant, It is also contended that since there is no allegation of fraud in the plaint, suit is not maintainable under Section 72 of the Revenue Recovery Act (for short, "the Act"). Learned Sub Judge framed issue whether suit is not maintainable under the provisions of the Act and whether appellant is liable to pay the sum of Rs. 84,436/- as per demand made by respondent No. 5. Learned Sub Judge found that in the absence of allegation of fraud in the plaint and much less evidence, suit is hit by Section 72 of the Act. On the issue regarding liability of the appellant to pay the amount, learned Sub Judge found that there is no evidence to show that building materials were returned to respondent No. 3 as claimed by the appellant and consequently dismissed the suit. Hence this appeal.

(3.) Following questions arise for a decision: