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2017 DIGILAW 253 (KER)

STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT v. DELCO (DELAMBADI CONCERN) PWD CONTRACTORS, POST THEKKIL KASARGOD, REPRESENTED BY PARTNER SHRI T. D. AHAMAD

2017-02-03

SATHISH NINAN, V.CHITAMBARESH

body2017
JUDGMENT : SATHISH NINAN, J. A decree for money is under challenge by the defendants in the suit. The suit was for recovery of Rs.33,60,295/- with interest thereon. The suit was decreed in part, for realisation of Rs.27,72,803/- with interest. 2. The plaintiff is a contractor. He entered into a contract with the defendants for the construction of an approach road for a bridge. The time stipulated for completion of the work was 18 months from the date of handing over of the site by the defendants. The site was formally handed over on 03.09.1988 and the work was to be completed on or before 03.03.1990. According to the plaintiff, the obligations on the part of the defendants were not fulfilled by them which resulted in delay in performance of the contract. So also, additional works were required to be done. The suit was lodged claiming amounts under various heads, viz., for works for maintaining traffic, for formation of diversion road, for sprinkling water, escalation charges at enhanced rate, extra costs incurred for protected blasting works, etc. 3. The defendants admitted that certain extra items of works were done by the plaintiff. It was contended that the delay in completion of the work was due to the slackness of the plaintiff. The excess rate claimed by the plaintiff for formation of diversion road, for maintaining traffic, etc., as extra works were contended to be not sustainable. As regards the claim for expenses for sprinkling of water, it was contended that it is part of the main work for which the defendants are not liable to give any additional amount. As regards the claim under the head of protective blasting of rocks, it was contended that the soil at the site was only hard laterite which did not require any protected blasting. It was also contended that the suit is barred by limitation. 4. Heard the learned Government Pleader for the appellants and the learned counsel for the respondent. 5. Though contentions regarding limitation and delay in performance of the contract at the hands of the plaintiff are raised in the appeal, the same are not seriously pursued. It was also contended that the suit is barred by limitation. 4. Heard the learned Government Pleader for the appellants and the learned counsel for the respondent. 5. Though contentions regarding limitation and delay in performance of the contract at the hands of the plaintiff are raised in the appeal, the same are not seriously pursued. The court below has referring to the contents of Ext.A21 reply notice dated 01.12.1993 found that the liability of the defendants has been admitted therein and that there is no final settlement of accounts between the parties, and held that the suit is well within the period of limitation. As regards the question as to at whose instance delay was caused, the court below has found, especially with reference to Ext.B9(a) letter dated 07.01.1989 sent by the Executive Engineer to the Sub Divisional Officer, Telephones, Taliparamba that the delay was caused at the hands of the defendants and that even as on that date, the site has not been fully handed over to the plaintiff. The court below also referred to Ext.B10 (f), (h) and (i) letters and the cross-examination of DW1 to conclude that the delay was caused at the hands of the defendants. 6. Coming to the claim for expenses for formation of diversion road, plaintiff claimed Rs.150/- per cubic metre for the rough stone packing. The claim is seen to have been allowed at the said rate referring to the claims made earlier by other contractors in different situations. However, for a similar work covered by Ext.X3, Rs.90/- per cubic metre and in yet another work covered by Ext.X4 Rs.90.75 per cubic metre are awarded. Under such circumstances, we feel that it would be reasonable and appropriate that the rate under this head is fixed as Rs.100/- per cubic metre. The quantity of work done under the said head referred to as item No.6 in paragraph 11 of the plaint is 770 cubic metres. Therefore, an amount of Rs.38,500/- being the difference in the amount consequent to the reduction in the rate, is liable to be deducted from the claim under the said head. 7. Coming to the claim under the head sprinkling of water, an amount of Rs.3 lakhs is awarded. Therefore, an amount of Rs.38,500/- being the difference in the amount consequent to the reduction in the rate, is liable to be deducted from the claim under the said head. 7. Coming to the claim under the head sprinkling of water, an amount of Rs.3 lakhs is awarded. It is to be taken note of that the period from June to November is rainy season and the claim for expenses for sprinkling water is to be limited by excluding the said period. Therefore, the amount awarded under the said head is limited to Rs.1,50,000/-. 8. Coming to the claim for expenses towards blasting operations, the plaintiff claimed at the rate of Rs.90/- per cubic metre for 18,000 cubic metres. It is seen that the claim as such is allowed. The court below did not appreciate the expert reports which indicate that the rock was only medium hard rock. In a similar situation, as seen from Ext.X2, the rate for blasting of medium rock was granted at the rate of Rs.82.10 per cubic metre and for hard rock the rate awarded was Rs.151/- per cubic metre. We feel that fixing the rate at Rs.80/- per cubic metre would be just and proper. Accordingly the amount granted by the court below under the said head is to be reduced by Rs.1,80,000/-. 9. The amounts awarded under other heads are not liable to be interfered with since acceptable materials are not brought to our notice enabling the defendants to seek for reduction of the claim. 10. Thus from what has been held as above, an amount of Rs.38,500/- + Rs.1,50,000/- + Rs.1,80,000/- = Rs.3,68,500/-, is liable to be deducted from the amount as is presently decreed by the court below. Thus the plaintiff will be entitled for an amount of Rs.24,04,303/- with interest thereon as granted by the court below. In the result, modifying the judgment and decree passed by the court below, a decree is passed allowing the plaintiff to recover a sum of Rs.24,04,303/- (Rupees Twenty four lakhs four thousand three hundred and three only) with interest at the rate of 10% per annum from the date of suit till realisation, and also proportionate costs from the 1st defendant. The Appeal Suit is allowed, as above.