Allowed

The Food Corporation of India v. Mr.E.a.Abdul Salam

Kerala HC8 Aug 2017RFA/30/2017

Case brief

AI extract

What is this about?

Compensation for an extra kilometre of food-grain transportation was recalculated using the applicable contractual rates and tender excess. The court allowed the appeal, reduced the decree, rejected claims for overpayment recovery and set-off, and awarded interest and proportionate trial costs without remanding the suit.

What did the court decide?

Decree reduced to recalculated transportation compensation, with 9% interest from suit to decree, 6% thereafter, and proportionate trial costs.

The Food Corporation of India Vs… — Contract and Commercial Disputes | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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TUESDAY, THE 8TH DAY OF AUGUST 2017/17TH SRAVANA, 1939

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RFA.No. 30 of 2017 (C)

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AGAINST THE DECREE AND JUDGMENT IN O.S.NO. 91/2004 OF PRINCIPAL SUBORDINATE COURT, PALAKKAD DATED 29-07-2016

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APPELLANT(S)/DEFENDANT :

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THE FOOD CORPORATION OF INDIA, REPRESENTED BY ITS SENIOR REGIONAL MANAGER, FOOD CORPORATION OF INDIA, THIRUVANANTHAPURAM 695 004.

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BY SRI.P.JACOB VARGHESE (SENIOR ADVOCATE) ADV. SRI.VIVEK VARGHESE P.J., S.C

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RESPONDENT(S)/PLAINTIFF :

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MR.E.A.ABDUL SALAM, S/O. HAJI P.A AHAMED EBRAHIM, DOOR NO.11/175, PAZHAYAKOTTAI, PALAKKAD, PIN 678 001.

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BY ADVS. SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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P.N.Ravindran & Devan Ramachandran, JJ.

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R.F.A.No.30 of 2017

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Dated this the 8^th day of August, 2017

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JUDGMENT

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Devan Ramachandran, J.

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This appeal has reached this Court after a fairly long journey. The core issue in these proceedings is a contract that was entered into by the respondent herein with the appellant (who will hereinafter be referred to as 'the FCI') with respect to loading, unloading, handling and transportation of food grains to the Food Corporation of India godowns/Modern Rice Mill from Olavakkode Railway Station.

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This appeal arises from O.S.No.91/2004 on the files of the Principal Sub Court, Palakkad, which was filed originally by the respondent herein as the plaintiff against the FCI and numbered as O.S.No.888/1991 before the Sub Court, Thiruvananthapuram. The suit was partly decreed by the said Sub Court as per its judgment and decree dated 21.12.1998 for an amount of Rs.1,30,430/- with 18% interest per annum from 07.10.1985 till the date of suit and thereafter at the rate

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of 6% per annum from the date of suit till realisation. This judgment and decree was challenged by the respondent herein by filing A.S.No.277/2002, which culminated in a judgment of a Division Bench of this Court dated 19.12.2003 confirming the decree for the amount of Rs.1,30,430/- but remanding the suit to the trial court for a fresh decision regarding the claim of the respondent herein regarding excess work done by him and the consequential excess amounts claimed by him from the FCI.

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After this remand, the suit was transferred to the Sub Court, Palakkad and numbered as O.S.No.91/2004, pursuant to an order of this Court in T.P.No.8/2004, and the suit was subsequently decreed by the said court on 16.01.2010 confirming the decree passed by the Sub Court, Thiruvananthapuram earlier on 21.12.1998. It was also found in the said judgment that the plaintiff/respondent herein is not entitled to any other amount from the FCI. The respondent herein challenged the judgment and decree of the Sub Court, Palakkad before this Court by filing R.F.A.No.767/2010. This Court disposed of the said appeal setting aside the judgment

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and decree of the Sub Court, Palakkad and directions were given to the trial court to pass a fresh judgment adverting to certain observations in the judgment. Finally, the trial court decreed the suit on 29.08.2013. It was again challenged before this Court by the FCI by filing R.F.A.No.455/2014. A cross-objection was also filed in the said proceedings by the respondent therein. This appeal was disposed by this Court by judgment dated 06.08.2015 setting aside the judgment of the trial court and again ordering it to consider the matter afresh, taking into account the calculation statements to be filed by the parties before it. It was specifically directed in the said judgment that no fresh evidence was required to be led and that the de novo consideration of the court be confined only with regard to the computation of the amounts, based on the calculation statements to be filed by the parties. This Court also recorded that, pursuant to the interim order dated 04.07.2014, an amount of Rs.4,02,000/- had been paid by the FCI to the respondent herein. Based on the directions of this Court in R.F.A.No.455/2014 and cross-objections, the Principal Sub Judge, Palakkad delivered a fresh judgment and

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decree dated 29.07.2016, which is impugned by the appellant in this appeal.

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We have heard Sri.Jacob Varghese, learned Senior Counsel, assisted by Sri.Vivek Varghese P.J., counsel for the appellant and Sri.O.Ramachandran Nambiar appearing for the respondent.

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The constitutive and most essential facts, as would be necessary for resolution of the limited lis before us, is that the appellant invited tenders on 05.11.1983 for appointment of contractors for loading, unloading, handling and transportation of food grains to the Food Corporation of India Godowns/Modern Rice Mill from Olavakode Railway Station as also from Palakkad Junction Railway Station for two years. It appears that the respondent offered a tender, which was accepted by the appellant on 13.01.1984 and that a contract was entered into between them for a period of two years from 08.01.1984 to 07.01.1986.

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The disputations in this case had its genesis in the fact that as per the aforementioned contract between the parties, the transport of the articles was to be done by the

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respondent through a specified route, namely, via a road called the Embankment Road, which was shown to be the shortest route and therefore, designated by the FCI as the route for transit to its godowns from Olavakode Railway Station as also from Palakkad Junction Railway Station. It appears that the respondent commenced work on 08.01.1984, but he alleges that just before the work commenced, he found that the Embankment Road had ceased to exist and that he was thus forced to use another road by name the Industrial Estate Road. The respondent alleges that the distance that he had to traverse using the Industrial Estate Road was about 1 km. more and therefore, that the rates that he had quoted with respect to transportation from both Olavakode Railway Station and Palakkad Junction Railway Station to the FCI godowns, be altered and enhanced because he was forced to travel an extra kilometre. This led to claims being made by him whereunder he demanded extra amounts being the actual expense incurred by him for traversing this extra one kilometre and he claimed that the tender excess of the rate that he had quoted, namely 1410% over the SRO, should also

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be made applicable to the extra work that he had been forced to engage himself in.

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While so, it transpires that the FCI, on the basis of certain other disputes that it had raised with the respondent, terminated the contract on 07.10.1985 and that they filed O.S. No.305/1987 claiming some amounts from the respondent before the Sub Court, Palakkad. In this suit, though the respondent herein made a counter claim for an amount of Rs.2,50,000/-, it was decreed against him for an amount of Rs.1,82,009.70 with interest at the rate of 6% thus entitling the FCI to recover such amounts from him. While that suit was pending, the respondent filed the present suit, which has led to this appeal, claiming that large amounts are due from the FCI to him under the contract on account of the fact that he had to traverse extra distance for the purpose of transportation. The plaint would reveal that the claim of the plaintiff/ respondent was for an amount of Rs.20,95,769/- representing the amounts that he claims he had to spend for traversing the extra distance as also the incidental claims for refund of the security deposit and such other. The court below, as we have

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already indicated above, had initially decreed the suit for an amount of Rs.1,30,430/- by judgment dated 21.12.1998, which has finally led to these proceedings.

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Having noticed the facts as above, we see that the immediate and proximate issue in this appeal is the calculation that has been accepted by the court below pursuant to the orders of this Court in R.F.A.No.767/2010. In the said judgment this Court, after adverting to the essential facts, found that the sole issue between the parties now is as to how the extra distance traversed by the respondent will have to be accounted for. This Court recorded that the question now is as to the fair application of principles of quantum meruit and to assess what would be the actual amount that would have to be granted to the respondent for the extra distance that he had to cover for transportation under the contract. This Court found that the virtually admitted increase in the distance, when using the Industrial Estate Road instead of the Embankment Road, is one kilometre and concluded, therefore, that the respondent would be entitled to the actual amounts expended by him for

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transportation of the goods traversing that extra one kilometre. This, in crux, was the manner in which this Court had directed the court below to re-consider the matter, based on the calculations to be placed on record by the parties. The view of this Court in the said judgment is clear from paragraph 6 thereof, which we extract as under for easy reference:

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“The “Embankment road” has a distance of 900 metres. The FCI rounded it off at 1 KM for fixing the rate it has provided in the schedule at serial No.2. This is the submission of both sides before us. The totaldistance traversed through the “industrial estate road” is 2.2. Kms. Taking both these yard sticks into consideration and applying the doctrine of approximation, we are of the view that ends of justice would be satisfied if the total distance traversed is taken as 2 KM instead of 1 KM, and the rate that would be applied is therefore the rate provided in entry 2 multiplied by '2'. This means that for 100 bags weighing at 30 KG, the rate quoted by the plaintiff should be doubled to fix the amount actually due to the plaintiff per every 100 bags. This formula has to be applied and the total amount due to the plaintiff has to be re-worked in the light of this. There is no dispute between the parties as to the quantity of food grains.”

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It appears that thereafter I.A.No.102/2013 was filed by the FCI in the said appeal before this Court seeking a clarification as to the re-fixation of the rates with respect to transportation of the articles from Palakkad Junction Railway Station to the

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FCI godown. This Court, by order dated 31.01.2013, clarified that the directions contained in the judgment dated 16.10.2012 shall be carried out on the basis that the claim of the appellant therein/respondent herein, for the extra distance traversed by him to Palakkad Town Railway Goods Shed is also limited to one kilometre. In effect, what this Court directed was to treat the extra distance traversed by the respondent on either of the two contracted routes, namely from Palakkad Junction Railway Station as also from Olavakkode Railway Station to the FCI godown be treated as only one kilometre. On the basis of this order of remand, the court below is seen to have delivered another judgment, which was also, however, subjected to a challenge before this Court in R.F.A.No.455/2014 and Cross-objection No.84/2014 at the hands of the FCI and the respondent herein respectively. This Court in the judgment delivered in the aforesaid appeal and cross-objections, found that the calculation arrived at by the court below was not in tune with the findings of this Court in the judgment in R.F.A.No.767/2010 and again directed it to re-work the calculation of the amounts due to the respondent

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herein in terms of the directions contained in the said judgment. It is after that the court below has delivered judgment on 29.07.2016, which is impugned in this appeal.

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The points of controversy between the parties in this

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appeal are not too many. Essentially what we are called upon to consider is the validity and correctness of the figures that have been arrived at by the court below while calculating the amounts due to the respondent for the extra work done by him. A fair standard has been already fixed by this Court in the judgment in R.F.A.No.767/2010, as we have extracted above and this Court, in the judgment in R.F.A.No.455/2014, has also directed that those approximations be followed by the court below while entering into calculations as to the amounts due to the respondent herein. We notice from the judgment impugned that the trial court has interpreted the directions of this Court in R.F.A.No.767/2010 to mean that it is bound to follow the schedule of rates fixed under the contract with respect to transportation food grains by the respondent as per clause (2) thereof.

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Since the underpinning of the entire controversy now presenting itself before us is based on the schedule of rates with respect to the work, we deem it appropriate to first read the relevant portion of the schedule relating to the transport as under:

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2.a) For transporting foodgrain bags to and from Olavakkot Railbead to Food Corporation of India godown/Modern Rice Mill as mentioned only).in Clause-XIX Part.I (2) Via Embankment road.	Rs.1.73 (Rupee one and paise seventy three only).	Rs.3.75 ( Rupees three and paise seventy five only).	Rs.5.55 (Rupees five and paise fifty five only).	Rs.5.85 (Rupees five and paise eighty five only).
b) For transporting food grains to and from Palghat Railhead to the Food Corporation godown/Modern Rice Mill as mentioned in C1 .XIX. Part.I(2) Via- Embankment Road.	Rs.4.30 (Rupees four & paise thirty only.	Rs.9.30 (Rupees nine and paise thirty only).	Rs.13.90 ( Rupees thirteen and paise ninety only).	Rs.14.60 (Rupees fourteen and paise sixty only).

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As is obvious from the portions extracted above, the schedule of rates contain two clauses under Part II thereof, namely,Part A relating to transport of food grains from Olavakode Railway Station to the FCI godown and Part B for the transport of foods grains from Palakkad Junction Railway Station to the FCI godown. Both these schedules are based on the presumption

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that the transport would be done via Embankment Road. However, as we have already said above, the respondent was forced to transport it using the Industrial Estate Road, which is concededly one kilometre longer than the distance he would have had to traverse had he used the Embankment Road. The different rates shown therein are for transport of 100 bags weighing up to 30kgs, 65kgs, 95kgs and more than 95 kgs respectively. The court below, after noticing these schedule of rates, calculated the amounts due to the respondent for the extra one kilometre traversed by him from Palakkad Junction Railway Station to the FCI godown as Rs.1,74,265.10. As regards the extra distance of one kilometre traversed from Olavakkode Railway Station to the FCI godown, the court below found that an amount of Rs.61,201.25 was due to the respondent. The court below also added 1410% excess as per the contract stipulations and the total figure that was thus arrived at is Rs.35,55,542.79. The FCI has challenged these calculations as being contrary to the directions of this Court in R.F.A.No.767/2010.

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We must say straightaway that we find substantial force in the submissions of Sri.Jacob Varghese, learned Senior Counsel appearing for the FCI for the reasons that we will presently state.

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In R.F.A.No.767/2010 this Court had directed the court below to calculate the rates for the extra distance traversed by the respondent based on the schedule of rates we had extracted above. The schedule of rates for the two routes are completely different. However, the court below appears to have taken the same rate, namely the rates shown in clause 2 (a) above to be the rates applicable for both the routes. This in our view has led to certain errors that we cannot countenance and therefore, we are consequently forced to now re-work the whole calculation, strictly in terms of the relevant rates shown in the contract and its schedules between the parties. We are constrained to do this because, for the route between Palakkad Junction Railway Station and Olavakode Railway Station to the FCI godown, the rate fixed under the schedule was Rs.3.75 for every kilometre for 100 bags weighing 65 kgs each. Similarly, for 100 bags weighing 95 kgs each the rate

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fixed was Rs.5.55 for every kilometre and for 100 bags weighing 95 kgs or above the rate is Rs.5.85/km. However, what the court below has done unfortunately is to take the directions in in R.F.A.No.767/2010 in its literal sense, without understanding its true intent and to grant double of each of these rates for the said route and has arrived at a figure of Rs.1,74,265.10. The fact remains that the court below was only directed to consider the rate for the extra one kilometre that was traversed by the respondent and, therefore, it could have only granted an amount of one half of what has been found by it in the judgment, namely Rs.87,132.55, because what has been granted by it in the judgment is the rate for 2 km and not one km, which is the actual extra distance travelled by the respondent.

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If, with respect to the transport between Palakkad Junction Railway to the FCI godown, the court below erred in awarding double of what was entitled, when it came to the computation of the rates with respect to the transport of articles from the Palakkad Town goods shed to the FCI godown, the court below erred more egregiously by granting

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amounts at the rates completely different to the schedule applicable and in calculating the alleged excess for the entire distance that was transversed between these two points without adverting to the fact that what was directed to be granted by this Court, in the directions contained in R.F.A.No. 767/2010, was only with respect to 1 k.m., found to be the actual extra distance. The court below appears to have completely lost sight of the fact that the rates for transport of food grains from the Palakkad Railway to the FCI godown and those fixed for transport from the Olavakkod Railway to the FCI godown are different and distinct, as is discernible from the schedule extracted above.

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Unfortunately, the court below appears to have understood the earlier directions of this Court to mean that the rates in clause 2(a) of the schedule would apply to both cases and it went on, thereafter, to calculate it at the rates shown therein and to double it as if that was what has been directed by this Court. It is ineluctable, as we have already indicated above, that what this Court intended through the process shown in the judgment in R.F.A.No.767/2010 was to

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identify the rate that would be grantable to the respondent with respect to the extra 1 km. that he had to concededly travel. It is common case for the parties that the distance between the Palakkad Railhead to the FCI godown was 6 kms., if the transit was through the 'Embankment Road' and that when the respondent was forced to travel through the 'Industrial Estate Road' he had to travel one more kilometre. If that be so, the court below ought to have seen that the rate that would be applicable are those shown in clause 2(b) of the rate schedule and then to have arrived at the figure applicable for 1 km. The easiest way it could have proceeded was to calculate the rates taking the rates in clause 2(b) of the appendix and then to divide it by 6, which would have given the rates applicable for 1 km. That was all that was entitled to the respondent. Going by the correct manner of calculations, to which we have alluded, it is obvious that the figures arrived at by the court below in the judgment impugned would require to be substantially corrected.

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At least on two earlier occasions this Court had directed the court below to arrive at such calculations

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applying the correct rates from the schedule and adverting to in terms of the directions contained in the judgment of this Court in R.F.A.No.767/2010. However, we see that in spite of such repeated orders, the court below has calculated the figures consistently in a wrong manner without understanding the true import of the directions of this Court. We, therefore, deem it necessary that we do such calculation ourselves in this appeal, without requiring the matter to be remanded for fresh consideration. We deem it apposite to do so because, as we have already indited above, at this stage of the proceeding what is of relevance is only the question as to the correct amounts due to the respondent and nothing else. All other disputes have been virtually settled by the directions of this Court in R.F.A.No.767/2010 and all that is left to be done is to accurately quantify the amounts due to the respondent based on the directions contained in the said judgment.

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We see, from the records and the submissions made at the Bar, that there is no dispute at all as regards the number of bags that was transported and the weight of such bags as has been recorded by the court below. All that now

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requires on our part is to quantify the actual amount, if any, due and payable to the respondent as per the directions contained in the judgment of this Court in R.F.A.No.767/2010.

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With the above purpose in mind, we notice that with regard to the transport of articles from Palakkad Junction Railhead, Olavakkod to the FCI godown, the court below has calculated an amount of Rs.1,74,265.17 as the amounts due to the respondent. However, as we have already seen above, this is, in fact, double the amount due for the 1 km. extra distance that he had traversed, since the court below misdirected itself to think that the directions of this Court was to grant double the rate for every extra kilometer travelled. What was really intended by this Court, for the sake of easy calculation, was that the rates shown in Section 2 of the schedule of rates could be doubled because the distance was also effectively the double while travelling through the Industrial Estate Road instead of the designated Embankment Road. What the court below should have, therefore, done was to have granted the amounts due for 1 km. which could only have been half of Rs.1,74,265.17 as was arrived at in the impugned judgment.

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Therefore, the amount due would be Rs.87,132.55 and by adding the sanctioned contract excess at the rate of 1410%, would take it to a figure of Rs.13,15,701.55.

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We, therefore, deem it appropriate to award this figure instead of the figure of Rs.26,31,403.91 granted by the court below under this head in paragraph 11 of the judgment.

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Apropos to the route from the Palakkad Town goods shed to the FCI godown, the court below has found that an amount of Rs.61,201.25 was due to the respondent. We are afraid that this calculation is completely wrong since it is based on the rates shown in clause 2(a) of the schedule of rates and not clause 2(b). Under the relevant clause, namely, clause 2(b), the rate for transport of 100 bags weighing 65 kgs. through this route by using the designated Embankment Road was fixed at Rs.9.30. Similarly, for 100 bags weighing 95 kgs. the transport charges were fixed at Rs.13.9 and the rate for 100 bags weighing 100 kgs. was fixed as Rs.14.6. However, we see that the court below has taken Rs.3.75, Rs.5.55 and Rs.5.85 respectively for these three categories thinking that the rates in clause 2(a) of the schedule would apply.

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To exacerbate it further, the court further went on to multiply the figures, thus erroneously arrived by it, by two in a rather mechanical manner, not understanding the true import of the directions of this Court in R.F.A.No.767/2010. It is indubitable that the court below ought to have first adopted the rates in clause 2(b) of the Schedule while calculating the amounts due to the respondent and it would have then found, at the rates applicable under this head, that the total amount for an extra kilometre would only be Rs.12,714.48. This amount would have been correctly arrived at by the court below had the rates shown in clause 2(b) been divided by 6 to give the rate applicable for one kilometre and then to recalculate, based on the number of bags shown in paragraph 12 of the impugned judgment, the amounts due. Had such exercise been followed, the figure that one could arrive at is only Rs.12,714.48, as we have found above. Adding to this figure the tender excess of 1410% above the quoted rate would take the whole amount to Rs.1,92,369.43. This is the only amount that could have been due to the respondent under the head of transport of rice from Palakkad Junction

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Railway Station to the FCI godown for the extra one kilometre traversed by him.

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We notice that there is a specific case impelled by the FCI and vehemently voiced by Sri.Jacob Varghese, the learned Senior Counsel that certain other amounts are recoverable by them from the respondent on account of the over payments that were made to him by the FCI in the past. We also notice that there is no evidence on record in proof of these claims nor we do see any materials as having been placed before the court below in support of such assertions. Further, when this Court, in the judgment in R.F.A.No. 767/2010, remanded the matter for fresh consideration to the court below, it was made clear that all that survives for consideration by it is the calculation of the total amount due in terms of what was stated therein and which are extracted in paragraph 17 of this judgment, and nothing else. That being so, we are firm in our opinion that the FCI cannot now claim that other amounts are due from the respondent on account of the alleged over payments made by it in the past.

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Coming back to the quantification of amounts due to the respondent, we have entered the calculations recorded supra on our own because we deem it appropriate to do so in view of our intention not to remand the matter to the court below. However, we also see that the respondent has filed on record a statement of calculation under which he concedes that the amounts due to him will only be Rs.15,08,100.89. Even though the statement has been placed on record by the respondent stating it to be without prejudice to his contentions in the appeal, we are certain that going by the directions contained in R.F.A.No.767/2010 nothing else could have been possible other than to calculate the amounts due, accepting that only one kilometre was traversed by him extra with respect to the tender quoted by him. That being so, even if the statement has been filed without prejudice to his contentions, we are of the view that the respondent cannot raise any further claim or contest other than for the amounts that are now arrived at by us and what has been conceded by him in the statement relating to the one extra kilometre that was traversed by him for completing the transportation of the food

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grains under the contract.

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Though the FCI had not filed any statement of calculation before this Court, Sri.Jacob Varghese, learned Senior Counsel, submits that a calculation, relating to the amounts due to the respondent under the head of transport for the extra kilometre, was made before the court below which is also substantially on the lines we have arrived at above. However, he adds that, as per their statement, large amounts are actually due from the respondent to the FCI because it is now demanding the amounts that was decreed in their favour against the respondent in an earlier suit, namely, O.S.No.305/1987. In that suit, an amount of Rs.1,82,009.70 was decreed by the Sub Court, Palakkad in favour of the FCI on 27.02.1992 and the calculation statement that the FCI has filed before the court below shows credit for this amount, along with interest thereon as per the decree, in making a claim that large amounts are due from the respondent to it and not the converse. He further asserts that the FCI has a right to claim the amount awarded by the court below. We are afraid that this submission cannot garner legal force because

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while the FCI would always be entitled to execute the decree obtained by them against the respondent through proper procedure and subject to the Laws and Rules of Limitation and such other, it would not be available them to contend in this case that such amounts should be set off against he amounts that we have found eligible to the respondent. It will be up to the FCI to recover those amounts independent of the proceedings herein by following due procedure if they are so advised, and we, therefore, have no choice but to repel those contentions of the learned Senior Counsel.

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Thus, if we take the above contentions of Sri.Jacob Varghese out of the reckoning, it becomes more or less certain that the figures that the FCI also concedes, as per the calculations made by it, is more or less in lines with what we have arrived at and the calculation statement that the respondent has filed before this Court. Going by the figures we have arrived at, the total amount due to the respondent would be Rs.15,08,070.935, whereas as per the respondent's statement the figure is Rs.15,08,100.89. The variation between our calculation and that in the statement given by the

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respondent being so exiguous, we deem it appropriate to follow the statement made by the respondent to avoid any further contest on his part. Thus, we hold that an amount of Rs.15,08,100.89 is due to the respondent to be paid by the FCI under the head of extra distance traversed by him for transportation under the contract from Palakkad Town Goods Shed to the FCI godown and that such amount will carry interest at the rate of 9% per annum from the date of suit till date of payment.

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Before we proceed to conclude this judgment, we are cognizant that the Sub Court, Thiruvananthapuram had decreed O.S.No.888/1991 in the year 1998 for an amount of Rs.1,30,430/- in favour of the respondent with interest at the rate of 18% per annum from 07.08.1985 till the date of suit and thereafter at the rate of 6% per annum from the date of suit till realisation. When this judgment and decree was challenged before this Court in A.S.No.277/2002, the decree for this amount was confirmed by this Court and only the question regarding excess amount claimed by the respondent was remanded to the trial court for fresh consideration. It was

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based on such direction that further proceedings continued in the court below. However, when decrees were drawn by the court below subsequent to this order of remand and thereafter, unfortunately it had lost sight of this and even in the judgment and decree impugned in this appeal, that part of the earlier decree, that was confirmed by this Court for an amount of Rs.1,30,430/-, as aforementioned, was omitted to be included. We, therefore, though it necessary and imperative that this figure is also now decreed by us in favour of the respondent. However, when we made our mind on this known to the counsel on either side, the learned Senior Counsel for the FCI, Sri.Jacob Varghese, informs us that this would not be necessary because, as per the interim order of this Court in R.F.A.No.455/2014, an amount of Rs.4,02,000/- was deposited by the FCI before the court below, which represented the full amounts due under the decree passed by the Sub Court, Thiruvananthapuram, referred to above. His specific contention is that the dues under the said decree, for Rs.1,30,430/- along with interest, was calculated to be Rs.4,02,000/- by this Court as on 04.07.2014, when the interim

¶122

RFA 30/17

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¶124

order was passed in R.F.A.No.455/2014, and that such amount was deposited intending it to be in full and final satisfaction of the said decree. He asserts that this amount was paid by this Court to the respondent, as per order dated 18.07.2014, by way of a cheque, which was encashed by him subsequently. Sri.O.Ramachandran Nambiar, learned Counsel for the respondent, concedes to these submissions of Sri.Jacob Varghese and affirms that an amount of Rs.4,02,000/- was accepted by respondent in final settlement of the decree passed by the Sub Court, Thiruvananthapuram in O.S.No. 888/1991 dated 21.12.1998 and confirmed by this Court in A.S.No.277/2002. Since the parties are ad idem that the decree to that extent has been satisfied, we do not deem it necessary any more to pass further orders with respect to that amount in this judgment.

¶125

In the conspectus of what we have stated above and in the result, we allow this appeal decreeing the suit as below, in modification of the impugned judgment and decree of the court below.

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RFA 30/17

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¶128

Thus, O.S.No.91/2004 on the files of the Principal Sub Court, Palakkad is decreed allowing the plaintiff (the respondent herein) to realise an amount of Rs. 15,08,100.89 along with interest at the rate of 9% per annum from the date of suit till the date of decree and thereafter at the rate of 6% till the date of payment by the FCI along with proportionate costs in the court below.

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In view of the peculiar facts that we have noticed above, we deem it necessary not to make any order as to costs in this appeal and we leave the parties to suffer their costs before this Court. A copy of this judgment and decree shall be sent over to the Principal Sub Court, Palakkad for incorporation in its records and the court below shall thereafter forward it to the competent District Collector under Order XXX Rules 10 and 14 of the Code of Civil Procedure for realisation of the court fee from the plaintiff.

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P.N.Ravindran, Judge

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Devan Ramachandran, Judge

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tkv/stu

The Food Corporation of India v. Mr.E.a.Abdul Salam

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The Food Corporation of India v. Mr.E.a.Abdul Salam

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