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2001 DIGILAW 489 (KER)

Mohammed Kunhi v. Executive Engineer

2001-09-11

M.R.HARIHARAN NAIR

body2001
Judgment :- M.R. Hariharan Nair, J. The petitioner entered into a contract with the Kerala State Electricity Board, represented by the respondents for drawing electric line to the Ayyankavu Harijan Colony in Kasaragode District. Certain articles were released to the petitioner by the Board for the above work. It is alleged that some of the articles were stolen away from the premises of the petitioner. Though the petitioner did not take any criminal action with regard to the alleged theft, the Board filed a complaint, based on which C.C. No. 254 of 1988 of the Judicial Second Class Magistrate Court, Hosdrug was registered. When the petitioner completed the work and demanded payment of the amount fixed in the contract, the Board took up a contention that money was not payable as more amounts are due to the Board towards value of the articles stolen from the premises of the petitioner. The matter reached this Court and in Ext. P4 judgment this Court found that the unilateral fixation of the value of the articles not returned by the petitioner, made by the Board, is arbitrary and without any legal basis. It was directed that the amounts should be assessed in appropriate enquiry with notice to the petitioner. Ext. P3 order challenged in that Original Petition was thus set aside. The Board was directed to take fresh steps for ascertaining the value of the articles not returned, in case those articles could not be retrieved from the criminal court on an application made to that effect. It was further held that it was only after ascertaining the value of the materials as above that any recovery proceedings could be initiated against him. Pending fixation of the amount, it was directed that the interim direction granted in C.M.P. No. 7675 of 1990 in Ext. P4 would continue to be in force. 2. The grievance of the petitioner projected in the present Original Petition is that inspite of the above direction, the Board has proceeded to pass Ext. P5 order fixing liability to the extent of Rs. 50.675/- and that too without giving any notice to the petitioner as directed in Ext. P4 judgment. 3. I have heard both sides. 4. There is no mention in Ext. P5 that fixation was done in an enquiry with due notice to the petitioner as directed in Ext. P4 judgment. P5 order fixing liability to the extent of Rs. 50.675/- and that too without giving any notice to the petitioner as directed in Ext. P4 judgment. 3. I have heard both sides. 4. There is no mention in Ext. P5 that fixation was done in an enquiry with due notice to the petitioner as directed in Ext. P4 judgment. At the same time, there is a mention in Ext. PS.that the articles recovered and produced before the Magistrate's Court were sold in public auction and the sale proceeds forfeited to Government account. In other words, the Board did not get any part of the sale proceeds and hence that part of Ext. P4 judgment which directs crediting of sale proceeds has become unworkable. In Ext. P5 the Board also took a stand that the articles recovered were not those made available to the petitioner in connection with the contract in question. The result of the aforesaid contentions and findings is that there are disputed facts to be settled before any direction can be given either allowing the claim of the petitioner for payment of the contract amount or for realisation of the damages allegedly due to the Board. I do not think that these disputed facts can be properly worked out in an Original Petition of the present nature. 5. Rambal Co. v. Kerala State Science & Technology Museum (2000 (2) KLT 77 (page 73)) is authority for the proposition that question as to whether there is breach of contract and if so what is the quantum of damages, are all matters which are best left to be adjudicated upon by a Court or Tribunal and not by one of the contracting parties. When breach is not admitted, one of the contracting parties cannot arrogate to itself the power to claim compensation for the breach from the other party without there being any adjudication by an outside agency as to whether there was any breach of contract. 6. In view of the aforesaid legal position and also for the reason that the direction in Ext. P4 that the fixation of damages should be with notice to the petitioner stands violated, Ext. P5 order cannot be sustained. It is accordingly set aside. Both parties are directed to work out their remedies through the machinery, if any, contemplated in the contract executed between them or in other appropriate civil proceedings. P4 that the fixation of damages should be with notice to the petitioner stands violated, Ext. P5 order cannot be sustained. It is accordingly set aside. Both parties are directed to work out their remedies through the machinery, if any, contemplated in the contract executed between them or in other appropriate civil proceedings. Pending such adjudication, the petitioner shall not be entitled to get the sum of Rs. 15,231/-claimed by him; nor will the K.S.E.B. be justified in invoking coersive steps for recovering Rs. 50,675/-mentioned as outstanding in Ext. P5. The Original Petition is disposed of as above.