Partly allowed

M/S High Way Contractors Pvt. Ltd. v. the State of Kerala

Kerala HC2 Mar 2022RFA/429/2014

Case brief

AI extract

What is this about?

Appeal by a highway contractor against a decree rejecting claims for earth filling costs and transportation. The High Court modified the decree, finding defendants unpaid for earth costs and directed recovery of transportation charges based on PWD rate schedules.

What did the court decide?

Decree modified to add ₹ 27,19,267.37 for earth filling cost and ₹ 4,15,960 for transportation charges, with interest and costs awarded.

M/S High Way Contractors Pvt. Ltd. Vs the State… — Municipal and Town Planning | Kerala HC (2022)

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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.B.SURESH KUMAR

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA

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WEDNESDAY, THE 2^ND DAY OF MARCH 2022 / 11TH PHALGUNA, 1943

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RFA NO. 429 OF 2014

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AGAINST THE JUDGMENT AND DECREE DATED 30/10/2013 IN OS 154/2008 OF SUB COURT, NORTH PARAVUR

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APPELLANT/PLAINTIFF:

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M/S HIGH WAY CONTRACTORS PVT LTD REGISTERED UNDER THE INDIAN COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT THYKADAVIL, 13TH LANE, TOC H ROAD, VYTILLA, KOCHI -19. REPRESENTED BY ITS EXECUTIVE DIRECTOR, JOSHUA KURUVILA, S/O PROF. HOSHUA, CONTRACTOR, THYKADAVIL HOUSE, 13TH LANE, TOC H ROAD, VHYTTILE, KOCHI-19

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BY ADVS. SRI.A.KUMAR SRI.P.G.ANILKUMAR SMT G.MINI SRI.P.S.SREE PRASAD

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RESPONDENTS/DEFENDANTS:

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1 THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM 695001

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2 THE SUPERINTENDING ENGINEER P.W.D. (N.H.) CENTRAL CIRCLE, VYTILLA- 682019

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3 THE EXECUTIVE ENGINEER N.H. (B) DIVISION, KODUNGALLOOR- 680664

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BY ADV SRI.T.K.VIPINDAS, Sr. GOVERNMENT PLEADER, R1 TO R3

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR FINAL HEARING ON

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17/02/2022, THE COURT ON 02.03.2022 DELIVERED THE FOLLOWING:

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R.F.A. No.429 of 2014

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P.B. SURESH KUMAR & C.S. SUDHA, JJ.

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R.F.A. No.429 of 2014

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Dated this the 2^nd day of March, 2022

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J U D G M E N T

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C.S. Sudha, J.

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This appeal is against the judgment and decree dated

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30.10.2013 in O.S.No.154/2008 on the file of the Subordinate Judge's

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Court, North Paravur. The suit is one for money. By the impugned judgment, the suit has been partly decreed. Aggrieved, the plaintiff has filed this appeal. The respondents herein are the defendants in the suit. The parties in this appeal will be referred to as described in the suit.

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The plaintiff firm was awarded the work of “NH:47 -

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Strengthening the weak two-lane pavement by providing 100 mm / 75 mm BM and 25 mm AC from KM 312/430 to KM 331 527 (Karukutty to

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Aluva Pulinchodu)”. The agreement for the work was executed on 26/09/1997 between the plaintiff firm and the first defendant, on behalf of

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the Government of Kerala. The initial Probable Amount of Contract (PAC) was to the tune of ₹ 4,07,50,000/- which was subsequently revised and raised to ₹ 6,91,06,000/-. The time for completion of the work was 18 months. During the course of the work, the revised estimate was again revised and raised to include the widening of the carriage way to ten meters and additional drain works to the tune of ₹ 11,40,00,000/- as approved by the Ministry of Surface Transport (MoST), Government of India. By December 1998, Bituminous Macadam (BM) and Asphaltic Concrete (AC) work on the 7-meterwide carriage way was completed. The period of contract was extended thrice by executing supplementary agreements dated 17/04/1999, 16/11/1999 and 04/05/2000. The period of completion of the work was thus extended up to 31/05/2000. Though the plaintiff requested the defendants to expedite the payment of the amounts due

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to them, the same was not done. Finally, after several requests, certain payments were made which are not in full/complete discharge

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of the liability. Hence the plaintiff firm issued notice under Section 80 CPC and after the expiry of the statutory period, filed the suit claiming an amount of ₹ 1,41,25,151.79/-.

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The defendants contended that the plaintiff is not

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entitled to any further amounts. All payments due to them have been made and no further amount is subsisting.

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On behalf of the plaintiff, PW1 was examined and

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Exts.A1 to A68 documents were marked. No oral or documentary evidence was adduced by the defendants. After considering the oral and documentary evidence and hearing the parties, the court below decreed the suit partly.

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Heard Sri.A.Kumar, the learned counsel for the appellant

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and Sri.T.K.Vipindas, the learned Senior Government Pleader for the respondents.

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The only point to be considered in this appeal is whether there is any infirmity in the findings of the court below.

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The present appeal is confined to the claim of the

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plaintiff under two heads, namely, (i) the cost of earth used for filling up the berms on either side of the carriage way, and (ii) the cost incurred in transporting the earth to the low-lying areas. According to the plaintiff, initially the work involved was BM and AC of 7 meters wide carriage way and berm filling on either side of the carriage way. While the work was in progress, there was a proposal to widen the carriage way from 7 meters to 10 meters, i.e., to increase the width of the tarred portion by 1.5 meters on either side. This second revised estimate for the widening was sanctioned and communicated to the plaintiff firm by the end of November, 1998, by which time the work as per the original revised estimate, i.e., the BM and AC work of 7 meters wide carriage way as well as berm filling up to the BM and AC level was almost complete. The berm filling on either side of the 7 meters wide carriage way had to be done immediately as the road level of the carriage way was raised by almost 45 centimeters to 75 centimeters because of the execution of Profile Corrective Course (PCC), BM and AC work. There were repeated directions from the PWD and the Police Department to the plaintiff to

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complete the entire berm filling simultaneously with the work of carriage way, as the carriage way had become an accident-prone area due to the level difference. Hence the berm filling part of the work could not be delayed. When the second revised estimate was sanctioned, the already filled up and compacted berm with new earth had to be cut open in a box shape to a depth of 23 cm and a width of 1.6 meter for the construction of the hard shoulders with 3 layers of water bound macadam and pre mix carpet. At the time of preparing the final bill, the authorities accepted the measurements for payment of Water Bound Macadam (WBM) and pre mix carpet on either side of the road. They also paid for box cutting for removal of the filled and compacted earth where the WBM was executed. The measurements of box cutting and the measurement of the WBM are both the same. However, the defendants failed to pay for the earth filled and compacted in the area, even though they made payment for box cutting the same quantity. On 25/09/2000 as directed by the Executive Engineer, the cut earth which had been heaped on the side of the berms was conveyed to the low-lying areas, spread and compacted. The

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Superintending Engineer, National Highway, Central Circle, Thrissur, during his visit on 17/11/2000 also directed the plaintiff to transport and spread the earth to low-lying area of the side berms. This was confirmed by the Executive Engineer's report dated 26/02/2001 to the Superintending Engineer. This spreading and compacting was also paid but the conveyance to the low-lying area averaging about 2 kms. was never paid. According to the plaintiff, the quantity of earth used is 12,416.747 cubic meters (5714.938 + 6701.83) which has been recorded in page 33 of Measurement Book (MB) 45/98-99. The fact that these works were done by the plaintiff will be evidenced by letter dated 08.05.1998 of the Assistant Engineer; letter dated 10/06/1998 of the Executive Engineer; letter dated 11/06/1998 of the SI of Police, Angamaly; letter dated 28/07/1998 from the Assistant Engineer; letter dated 04/08/1998 of the Assistant Executive Engineer as well as photographs of the site. The quantities of work which have not been accounted for payment in the final bill are borne out in the Measurement books. Appendix A-item no.6 in the schedule of quantities deal with earth

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filling for side berms using selected earth. In the final bill, the quantity of earth used for filling the berms was reduced by 12416.746 (5714.873 + 6701.873) cubic meters. The amount that has been erroneously reduced on this account is 12,416.746 x ₹ 219 = ₹ 27,19,267.37/-. This quantity of earth was first used for filling up the berms. It was thereafter excavated and spread in low-lying areas as per instructions received vide letter dated 25/09/2000 of the Executive Engineer. Accordingly, 12416.746 cubic meters of earth was conveyed to low-lying areas by the plaintiff at a cost exceeding ₹10 lakhs which has been omitted to be recorded in the final bill.

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The court below rejected both the aforesaid claims on the ground that the cost of earth used for filling the berms had already been given to the plaintiff. As far as the transportation charges are concerned, it was held that the plaintiff had not produced any evidence to establish the same.

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The fact that there was level difference between the 7

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meters wide carriage way and the berms is clear from Ext.A6 series

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photographs. The reply given by the defendants in their written to the case of the plaintiff relating to berm filling reads-

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“ 10. The allegation contained in Para 18, 19 are denied. The final bill was arrived after detailed scruting [SIC]. No omission had occured [SIC] as claimed by the plaintiff in his letter while passing the CC 9th and part I 12/98 the plaintiff had not carried out the berm filing WBM work. These itms [SIC] were included in the revised estimate sanctioned by the ministry vide letter No. NH5 12018/68/98 (KL) dated 11/98. The berm filing and WBM work had been carried out only after that and first claim of the above item was due in CC10th and the Part on 12/98 quantities of work alleged to be not account of payment in the final bill was hearted [SIC] by the plaintiff in Para 18B are false and baseless. …”

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From a reading of the above contention it is clear that

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the defendants admit the fact the berm filling had in fact been done by the plaintiff. However, they seem to be disputing the claim of the plaintiff regarding the point of time at which it was done.

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The case of the plaintiff that he had been directed by

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the authorities concerned to fill up the berm on both sides at the earliest is established by Exts.A4, A5 and A35. In Ext. A4 the Assistant Engineer has written thus to the plaintiff-

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“ It is informed by the government that V.V.I.P Visit (President of India) is arranged at Chalakkudy on 04.08.98. Also strict institutions is given to N.H authorities to keep N.H 47 in pucca condition for the smooth movement of carcade of the V.V.I.P- as on alternate route. While carrying out the above work the surface between km 314/700 to 315/300 is at present in split level which is not appreciable for the movement of carcade. Hence you are requested to smoothen the difference in level by providing B.M mix on war foot pace. Also the vertical edges formed by providing comber and super elevation correction remain as a trap for vehicles, irrespective of repeated request from this office to take remedial measures. Hence this complaint also has to be attended urgently in connection with the V.V.I.P Visit....”.

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In Ext.A5 letter dated 04/08/1998 from the Assistant

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Executive Engineer to the plaintiff reference is made to Ext.A4 and the latter is requested to urgently make necessary arrangements as desired in the letter. Ext.A35, is a letter from the S.I. of Police, Angamaly to the Assistant Executive Engineer, National Highway, Angamly requesting the latter to give the details of the contractor who had carried out the works of the carriage way from the bridge at Karayamparamb to Elavoor junction. This request is seen made in the light of the road accidents that

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took place at the spot due to the level deference caused between the road and the side berms. Therefore, the case of the plaintiff that the work of berm filling was directed to be done simultaneously along with the tarring work of the 7 meters road, is established by Exts.A4, A5 and A35, which documents have not been disputed or discredited by the defendants.

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Admittedly, after the first contract was awarded, the authorities decided to widen the carriage way from 7 meters to 10 meters.

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According to the plaintiff, the second contract was awarded when they had completed more than 75% of the work as per the first contract. They had also filled up the berms on either side as per the directions contained in Exts.A4, A5 and A35. Therefore, when the second contract was awarded to increase the width of the carriage way from 7 to 10 meters, the earth from the berms filled up for the entire stretch of 19 kms had to be removed by a process called 'box cutting'. The fact that the plaintiff had done the box cutting, removed the earth and conveyed it to the low-lying areas and had compacted the same is admitted. It is also admitted that the

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box cutting charges had been given to the plaintiff. However, they have not been given the cost of the earth that was used for filling up the berms. According to the plaintiff, the quantity of earth used was 12,416.746 cubic meters. The quantity of earth used and removed is not disputed. In fact, this was admitted by the defendants before the court below.

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In Ext.A1agreement, item No.6 of the Schedule reads -

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Sl.No	Quantity	Description of work	Unit	Rat	e in	Amount
				Figures	Words	Rs.
6.	14610 m3	Earth filling for side harness using selected earth CBR not less than 10 and using paver roller as per MOST specification including cost and conveyance of earth and other incedential charges as per MOST specification 301(ii), 305-3, 5(ii).	m3	Rs.102/-	Rupees One hundred and two only.	14,90,220/-

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Therefore, the court below referring to the details given in column 3 of the

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Schedule, concluded that this item includes the cost of earth also. That

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amount has already been paid and so the plaintiff cannot claim the cost of earth separately. Though the defendants contend that amount including the cost of earth has been paid, they have been unable to establish the same from the measurement books marked as Exts. A33 series and A34 series. As stated earlier, the quantity of earth used for filling and the quantity of earth that was removed by box cutting is admitted. The rate at which the cost is claimed is not disputed. The only case is that the defendants have paid the amount, which case they have been unable to establish. That being the position, the plaintiff is entitled to the cost of the earth that was used for filling up the berms which was later on removed and spread on the low-lying areas as directed by the authorities concerned, which comes to ₹ 27,19,267.37/ (12416.746x ₹219).

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The plaintiff claims an amount of ₹10 lakhs towards transportation charges for conveying the earth to the low-lying areas. The court below rejected this claim on the ground that no evidence had been produced by the plaintiff to establish the same. The finding of the court below that there was no transportation of earth involved appears to be

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incorrect from Exts.A8, A9 and A11 letters. Ext. A8 letter dated 25/09/2000 from the Executive Engineer to the plaintiff directs the latter to convey the heaped cut earth found at different locations to be used for filling up the lower portions of the side berms. Ext.A9 dated 21/11/2000 is a letter from the Superintending Engineer to the Executive Engineer, N.H. (B) Division, Palarivattom, directing rectification works and to spread the dumped earth. Ext. A11 dated 26/02/2011 is a letter from the Executive Engineer to the Superintending Engineer, N.H(Central) Circle, Thrisur, to the effect that the rectification works and the spreading of dumped earth directed in Ext.A9 has been satisfactorily carried out by the plaintiff. Therefore, it is clear that the plaintiff had transported the cut earth, spread it and compacted in the low-lying areas. Hence, he is entitled to the transportation charges also.

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The amount that has been claimed by the plaintiff

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under this head is ₹ 10 lakhs. However, the plaint does not specify as to how this figure has been arrived at. The quantity of cut earth removed, transported, spread and compacted is admitted to be 12,416.746 cubic

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meters. Ext.A57 is the schedule of rates issued by PWD in the year 1996.

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“ CONVEYANCE OF MATERIALS BY LORRY

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Sl. No.	Materi	als	Unit of rate	Upto 5 km.	Over 5 km. and upto 6 km.	Over 6 km. and upto 7 km.	Over 7 km. and upto 8 km.	Over 8 km. and upto 9 km.	Over 9 km. and upto 10 km.	For every additional 1 km. or part thereof
2	Split and rubble and b size, stones Laterit chips, gravel and stones	stones blasted 45 dm³ elow in Laterite , e earth, , sand broken .	m³	33.50	37.20	40.95	44.70	48.40	52.15	3.75

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The minimum rate can be taken, which is the rate up to 5 kms.

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Admittedly the quantity of earth removed is12,416.746 cubic meter. Hence the amount due would be 12,416.746 x ₹33.50 = ₹ 4,15,960.991/which can be rounded to ₹ 4,15,960/-.

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In the result, the appeal is partly allowed with costs. The decree of the court below is modified to the following extent- in addition to the amounts decreed by the court below, the plaintiff is entitled to an amount of ₹ 4,15,960/- towards transportation charges and ₹27,19,267.37/- towards the cost of earth with interest @ 12% /annum

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from the date of suit till decree and thereafter @ 6% /annum from the date

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of decree till realization and costs from the defendants and their assets.

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All interlocutory applications, if any pending, shall stand

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disposed of.

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Sd/-

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P.B. SURESH KUMAR, JUDGE.

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Sd/-

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C.S. SUDHA, JUDGE.

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ami/

M/S High Way Contractors Pvt. Ltd. v. the State of Kerala

Case brief

What is this about?

What did the court decide?

M/S High Way Contractors Pvt. Ltd. v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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