Research › Search › Judgment

Kerala High Court · body

2006 DIGILAW 148 (KER)

Corporation Of Cochin v. T J Augusthy

2006-03-03

JACOB BENJAMIN KOSHY, VINOD KUMAR BALI

body2006
JUDGMENT J.B. Koshy, J. 1. The respondent contractor in these writ appeals has entered into a contract with the appellant for the work "raising the drain on the side of the Banerji Road south side from Town Hall to west end in Division 41". Ext. P1 dated 24/09/1992 is the work order. As per the work order, the work has to be completed on or before 09/11/1992 with the supervision of the Junior Engineer. It is the case of the contractor that he submitted his final bill. He completed the work on 10/12/1994 and final bill was submitted on 16/04/1995. Since the amount was not paid, he filed O. S. No. 442 of 1997 before the Sub Court, Ernakulam, a suit claiming Rs. 2,20,000/- as the amount of contract with 18% interest from 1995. A written statement was filed denying the liability stating that the work was not completed in time. However, the above suit was rejected for non payment of court fee. It is the case of the contractor (writ petitioner) that he had no money to pay the court fee and, therefore, he did not pay the court fee. Because of the non payment of the admitted contractual amount, various contractors approached this court. This court directed the Corporation to pay the admitted amount in accordance with the priority. One of such judgment is Ext. P6. The contractor was continuing with the representations to the Corporation. Exts. P2, P4 and P5 are the representations given by the contractor. Since the amount was not paid, he approached this court contending that other contractors were paid overlooking the priority of his bill. Even though counsel for the Corporation was given notice, the contract amount was not disputed and the liability was also not disputed. The learned Judge disposed of the writ petition by directing the Corporation to pay the amount in accordance with priority by judgment dated 2nd June, 2003. No appeal was filed in time. When contempt petition was filed, a review petition was filed with a delay of 517 days. The learned single Judge gone through the entire files, papers etc. and found that the amount due to the respondent is Rs. 2,20,000/- and it should be paid and there is no justifiable ground to review the judgment. However, three months' time was allowed to pay the amount. The learned single Judge gone through the entire files, papers etc. and found that the amount due to the respondent is Rs. 2,20,000/- and it should be paid and there is no justifiable ground to review the judgment. However, three months' time was allowed to pay the amount. The learned Judge also held that no interest is liable to be paid. Against the judgment in the writ petition and the order in the review petition, these two writ appeals are filed. 2. The contention of the Corporation is that the contractor did not complete the work and, therefore, he is not entitled to any amount. It is further contended that since the civil suit filed by the petitioner was rejected for non payment of court fee, there is res judicata and the present petition is liable to be dismissed on the principle of res judicata. Thirdly it is contended that when the amount is disputed in a writ petition, no writ of mandamus can be issued to pay the contractual amount and parties should be relegated for civil action. We will take the second contention first. The earlier suit was rejected only for nonpayment of court fee. It is settled law that rejection of a claim for non payment of court fee will not act as res judicata as held by the Supreme Court in Delhi Wakf Board v. Jagdish Kumar Narang and others ( 1997 (10) SCC 192 ). O.7 R.13 of the Code of Civil Procedure also reads as follows: "13. Where rejection of plaint does not preclude presentation of fresh plaint.- The rejection of the plaint on any of the grounds hereinafter mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action." Therefore, petitioner's claim cannot be rejected on the principle of res judicata merely because his early plaint was rejected. 3. The contract was executed in 1992. It is the specific case of the petitioner that he completed the work on 10/12/1994 and final bill was given on 16/04/1995. In any event, the Corporation is not denying the fact that the work was entrusted to him by Ext. P1. 3. The contract was executed in 1992. It is the specific case of the petitioner that he completed the work on 10/12/1994 and final bill was given on 16/04/1995. In any event, the Corporation is not denying the fact that the work was entrusted to him by Ext. P1. In the review petition or writ appeals no record was produced by the Corporation to show that any letter was addressed to the contractor saying that he did not complete the work entrusted to him. The work of construction of drainage is an important work, that too in one of the most important road in the Kochi Corporation, viz., Banerji Road, Even though maintenance of road is the duty of the Public Works Department, raising of drain etc. are the obligation of the Corporation. When the road level was raised, raising of drain was also necessary and the work is a necessary item. Till the suit was filed, not even a single letter was given by the Corporation to the petitioner that he has not completed the work even after delay. Corporation also has no case that since the petitioner did not do the work, the work was entrusted to another contractor. Even when petition for non payment of final bill on the basis of priority was filed, the appellant Corporation did not contend that final bill was not submitted and work was not completed. Therefore, belated contentions that work was not completed and final bill was not submitted, when contempt case was filed, are incorrect and no interference is required in the order of the learned single Judge. It is true that if amount is genuinely disputed, this court cannot direct the Corporation to pay the amount. However, if the amount is disputed only as a ruse; this court can issue 'the writ as prayed for. In this case, final bill was submitted in 1995, but, the amount was not paid and writ petition was filed. There was no case that final bill was not submitted or the amount in the final bill was not correct. When the writ petition was filed, the learned single Judge did not order interest on the amount due from 1995. If an ordinary citizen undertakes a contract of a statutory authority and the statutory authority is not paying the admitted this court. When the writ petition was filed, the learned single Judge did not order interest on the amount due from 1995. If an ordinary citizen undertakes a contract of a statutory authority and the statutory authority is not paying the admitted this court. Learned single Judge has gone through the entire matter is detail and found that the amount of Rs. 2,20,000/- is actually the admitted amount and directed to pay it within three months from the date of the order. We see no ground to interfere with the above order. The amount is also not very large. However, we give one month's further time to pay the amount as the writ appeals were admitted and were pending. Both the writ appeals are dismissed.