Allowed

The Kerala Water Authority v. Joseph Varkey

Kerala HC8 Aug 2019RFA/855/2015

Case brief

AI extract

What is this about?

An appeal by a government authority against a trial court decree awarding damages to a contractor for delayed work execution. The High Court upheld the finding of defendant-laches but reduced the awarded damages to 60% of the probable contract amount due to lack of evidence. It also increased interest and dismissed the limitation plea, accepting an interpretation favorable to the plaintiff.

What did the court decide?

The appeal is allowed in part. The plaintiff is granted a decree for realisation of Rs. 2,82,000/- with interest at 9% per annum.

The Kerala Water Authority Vs Joseph Varkey — Specific Performance | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE SATHISH NINAN

¶4

THURSDAY, THE 8TH DAY OF AUGUST 2019 / 17TH SRAVANA, 1941

¶5

RFA.No.855 OF 2015(F)

¶6

AGAINST THE DECREE AND JUDGMENT OF THE SUB COURT, MUVATTUPUZHA IN OS 187/01 DATED 31/07/15

¶7

APPELLANTS/DEFENDANTS:

¶8

1 THE KERALA WATER AUTHORITY REP. BY ITS MANAGING DIRECTOR, JALABHAVAN, THIRUVANANTHAPURAM.

¶9

2 THE SUPERENTING ENGINEER P.H.CIRCLE, MUVATTUPUZHA, ERNAKULAM DIST.

¶10

BY ADV. SRI.P.BENJAMIN PAUL, SC, KWA

¶11

RESPONDENT/PLAINTIFF:

¶12

JOSEPH VARKEY, AGED 66 YEARS, S/O.VARKEY, CONTRACTOR, CHOLAKATHIL HOUSE, NECHOOR KARA, MANEED VILLAGE, MUVATTUPUZHA - 686 661.

¶13

BY ADV. SRI.BIJU .C. ABRAHAM

¶14

THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶15

SATHISH NINAN, J.

¶16

= = = = = = = = = = = = = = = = = = RFA No.855 of 2015

¶17

= = = = = = = = = = = = = = = = = = Dated this the 8^th day of August, 2019

¶18

J U D G M E N T

¶19

Aggrieved by a decree for money, the defendants are in appeal.

¶20

The second defendant invited tenders for execution of their work. The plaintiff-contractor was the successful tenderer. Agreement regarding the work was executed on 13.05.1986. The period fixed for performance was six months i.e. up to 13.11.1986. Admittedly, the work was completed only in the year 1995. The reason for the delay, the plaintiff attributes to the defendants. The contract was entered into based on the 1983 schedule of rates. Due to the delay caused, the plaintiff suffered damages, and it is accordingly that the suit is filed.

¶21

The defendants deny the allegation that the delay was due to their fault. It is also contended that as per the terms of the agreement, the plaintiff is dis-entitled from claiming any

¶22

RFA No.855 of 2015

¶23

:- 2 :-

¶24

enhancement in the rates.

¶25

The trial court found that the delay was caused due to the laches of the defendants and accordingly granted a decree in favour of the plaintiff. Challenging the same, this appeal by the defendants.

¶26

Heard Sri. P.Benjamin Paul , Standing Counsel for the appellants and Sri.Biju C. Abraham on behalf of the respondent-plaintiff.

¶27

The contract was entered into on 13.05.1986 with the period for performance as six months. Admittedly, the work was completed only in the year 1995. The trial court found that the defendants were responsible for the delay in completion of the work. The plaintiff as PW1 has deposed that there was inordinate delay in the supply of materials by the defendants. Even in the written statement, the defendants have admitted that materials were being supplied till 25.01.94. Exts.A2, A5 and A6 letters support the contention of the plaintiff. In the said communications by the plaintiff to the defendants, his grievance regarding the delay and

¶28

RFA No.855 of 2015

¶29

:- 3 :-

¶30

rise in price were voiced. The communications are not even seen replied to by the defendants. Ext.A7 communication by the Superintending Engineer to the Executive Engineer which refers to earlier communications dated 12.10.94 and 24.03.97, is a reminder to submit the revised estimate on incorporating the up-to-date measurements. It has been warned therein that in case of default, action will be taken against the officers concerned. The said communication reveals the laches and default at the hands of the officers of the first defendant. No documents relating to the contract work was produced by the defendants. The plaintiff had filed IA 1430/03 before the trial court for a direction to the defendants for production of documents relating to the works contract. However, the defendants failed to produce the same. It would have been evident from the file as to who was responsible for the delay. The non-production of the records call for an adverse inference against the defendants that, if produced it will speak against them. The finding of the trial court that,

¶31

RFA No.855 of 2015

¶32

:- 4 :-

¶33

the delay in completion of the work was caused at the hands of the defendants is only to be upheld, and I do so.

¶34

The next question for determination is regarding the assessment of damages. The rate fixed under the contract was based on 1983 Schedule of rates. It is not in dispute that the said rate was revised periodically. In the year 1988, the Schedule of rates were raised by 40%, in 1990 by 35% and in 1992 by 45%. Thus there has been a total increase of 120% in the rate. The trial court found that no specific data is available regarding the damages suffered. Though as found by the trial court, necessarily damages has resulted to the plaintiff, the quantum fixed by the trial court at

¶35

`10 lakhs has absolutely no basis. The work done during each period is not evidenced by any records. As noticed above, in spite of IA 1430/03 for production of documents relating to the works contract, the defendants did not produce the same. Those are the material documents for adjudication of the claim. In the absence of sufficient data, I

¶36

RFA No.855 of 2015

¶37

:- 5 :-

¶38

deem it appropriate that 60% of the probable amount of contract (PAC)-4,68,563/-, be adopted as the damages consequent to the delay. That comes to 2,81,137.80 (rounded off to `2,82,000.00). I hold that the plaintiff is entitled to that much amount as damages.

¶39

The trial court has granted interest only at 6%. Considering the prevalent rate of interest, the same is refixed at 9% which I consider to be just and reasonable.

¶40

The learned counsel for the appellantsdefendants would raise a contention that the suit is barred by limitation. Though such a plea was raised in the written statement, it is seen that no issue was framed. The impugned judgment reveals that no arguments were put forward on limitation. Under Section 3 of the Limitation Act it is the duty of the court to consider limitation. In the instant case, though the work is completed in the year 1995, there is no evidence as to the date on which the joint measurement was done or regarding

¶41

RFA No.855 of 2015

¶42

:- 6 :-

¶43

the date on which the final bill was submitted. The said dates are crucial for determination of the period of limitation. As noticed supra, the defendants withheld the relevant documents from the court. In view thereof, I deem it proper that a view in favour of the plaintiff be adopted. The suit was filed on 20.10.1999. Therefore I hold that the suit is filed within the period of limitation.

¶44

In the result, this appeal is allowed in part. The decree and judgment of the trial court are modified. The plaintiff is granted a decree for realisation of `2,82,000.00 from the defendants, with interest at the rate of 9% per annum from the date of suit till realisation. No costs.

¶45

Sd/-

¶46

SATHISH NINAN JUDGE

¶47

kns/-

¶48

//True Copy//

¶49

P.S. to Judge

The Kerala Water Authority v. Joseph Varkey

Case brief

What is this about?

What did the court decide?

The Kerala Water Authority v. Joseph Varkey

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Kores (India) Ltd. and Another Vs M/S.Kems Agencies

Manjusha Vs K.Sadhashivan Pillai

K.P.Yoosaf Vs Ramakanth

Kunhumon @ Chacko Vs Madhavikutty

M.N.Nagaraju Vs M/S.K.S.Distillery

M/S.K.S.Distillery Vs M.N.Nagaraju