K.M. Kabeer v. Corporation of Cochin

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **THURSDAY, THE 8TH DECEMBER 2011 / 17TH AGRAHAYANA 1933** **WP(C).No. 27193 of 2006(K)** **------------------------------------** **PETITIONER(S):** **------------------------** **K.M.KABEER, KABEER MANZIL (ANAKKOTTIL HOUSE), ERAMALLOOR P.O., CHERTHALA - VIA, ALAPPUZHA DISTRICT.** **BY ADVS. SRI.BABU JOSEPH KURUVATHAZHA SRI.K.I.SAGEER** **RESPONDENT(S):** **-------------------------** **1. THE CORPORATION OF COCHIN REP. BY ITS SECRETARY, OFFICE OF THE COCHIN CORPORATION, COCHIN-11.** **2. THE SECRETARY, CORPORATION OF COCHIN, OFFICE OF THE COCHIN CORPORATION, COCHIN-11.** **ADV. SMT.ANU SIVARAMAN NAIR, SC, COCHIN CORP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **W.P.(C) NO.27193/2006** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** ## **P1:- COPY OF THE DEATH CERTIFICATE DTD. 10.9.04 ISSUED BY THE CORPORATION OF COCHIN DETAILING THE DEATH OF PETITIONER'S FATHER.** **P2:- COPY OF THE COUNTER AFFIDAVIT DTD. 24.3.04 FILED BY THE PETITIONER'S FATHER IN OP. 8444/03.** **P3:- PHOTOGRAPHS EVIDENCING THE SITE SITUATION ON 12.6.2004.** **P4:- COPY OF THE MATHRUBHUMI DAILY DTD. 12.6.04.** **P5:- COPY OF THE REPRESENTATION DTD. 18.7.04 SUBMITTED BY THE PETITIONER'S FATHER BEFORE THE 2ND RESPONDENT.** **P6:- COPY OF THE ORDER NO.M.O.E. 3/2922/03 DTD. 3.8.06 OF THE 2ND RESPONDENT.** **P7:- COPY OF THE PROCEEDING NO.M.O.E.3-2922/03 OF THE 2ND RESPONDENT.** **P8:- COPY OF THE ORDER OF THIS HONOURABLE COURT DTD. 19.10.2005 IN WPC. 29382/05 OF THIS HONOURABLE COURT.** ## **RESPONDENT'S EXHIBITS** **R19a):- COPY OF THE RELEVANT PAGES CONTRCT DTD. 14.3.2003.** **R1(b):- COPY OF THE NOTICE DTD. 15.5.03.** **R1(c):- COPY OF THE NOTICE DTD. 11.6.03.** **R1(d):- COPY OF THE ORDER DTD. 9.6.04.** **R1(e):- COPY OF THE ORDER DTD. 11.8.04.** **R1(f):- COPY OF THE NOTICE DTD. 30.9.03.** **R1(G):- COPY OF THE ODER DTD. 18.10.04.** **TRUE COPY** **P.A. TO JUDGE** **tss** S.SIRI JAGAN, J. ================== W.P.(C).No. 27193 of 2006 ================== Dated this the 8[th] day of December, 2011 ## J U D G M E N T The petitioner's father, who is no more, was a contractor, to whom, the work of widening of Mullassery canal in Ernakulam city for preventing water logging at Karikkamuri, KSRTC bus stand area, was awarded. He did not complete the work. According to the petitioner, his father could not complete the work because of obstructions for the work caused by various circumstances. According to him, electricity posts, telephone posts, cables, pipelines, sewage lines, etc. were to be removed, which were not removed and that is why his father could not complete the work. Later on, the award was cancelled and the work was got done by another contractor, by Ext.P6. The petitioner's father was directed to pay damages amounting to ` 47,91,083/-. After deducting the security amount and the amount for the work done by him, ` 44,02,811/- was directed to be paid by the petitioner's father by Ext.P7. After the death of his father, the petitioner was directed to pay the amount, failing which, destraint action was proposed. It is under the above circumstances, the petitioner has filed this writ petition seeking the following relief: “issue a writ of certiorari any other appropriate writ, order or direction quashing Ext.P6 and P7.” 2. The contention of the petitioner is that the petitioner's w.p.c.27193/06 - : 2 :- father has not committed any breach of contract. The petitioner's father was prevented from completing the work in accordance with the contract only because of the circumstances beyond his control. According to the petitioner, it was for the Corporation to make available the site free from all obstructions, which the Corporation had not done and that is why the petitioner's father could not complete the work as directed. He further submits that insofar as the petitioner disputes breach of contract, the Corporation who is a party to the contract cannot unilaterally decide as to whether the petitioner's father had committed any breach of contract. Further, damages cannot also be quantified by the Corporation, who is one of the contracting parties. He relies on the following decisions in support of his contentions: |1|State of Karnataka v. Rameshwara Rice Mills, Thirthahalli,<br>AIR 1987, SC 1359.| |---|---| |2.|BIHAR STATE MINERAL DEV. CORPN. v. ENCON BUILDERS<br>(I) (P)LTD.,(2003)7 SCC 418,| |3.|Marwar Tent Factoryv. Union of India, AIR 1975 Delhi 27.| |4.|M.C.Joseph v. State, AIR 1793 Kerala 216(V.60 C 76),| |5.|Shriram Engineering Construction Co. Ltd. v. K.S.I.D.C. and<br>another, 2007(1)ILR Ker.745, and| |6.|Pailyv. State of Kerala, 2000(3)KLT 343.| According to the petitioner, a party to a contract cannot unilaterally decide the question of breach of contract and determine the damages payable by the other party. The petitioner contends that both has to be decided by an independent adjudicating authority before resorting to w.p.c.27193/06 - : 3 :- proceedings for recovery. The petitioner further contends that insofar as the liability was quantified without notice to the petitioner or his father, recovery is in violation of principles of natural justice, if at all there is any breach of contract by the petitioner's father. 3. The respondents have filed a counter affidavit. According to them, the contract was awarded to the petitioner's father on 14.3.2003. As per the contract, the work was to be completed within two months. If the petitioner's father wanted extension of time, it was for him to apply for the same. It is submitted that despite Ext.R1(a) order dated 14.3.2003 and Ext.R1(c) dated 11.6.2003 requiring the petitioner's father to complete the work immediately, he did not do the same. The Residents' Association of Karikkamuri and some residents of the locality filed O.P.No. 8444/2003 before this Court and a Division Bench of this Court, by Ext.R1(d) order dated 9.6.2004, found that the petitioner's father was making lame excuses for not completing the awarded work and permitted the Corporation to get the work completed with a new contractor by negotiating the terms for execution of the work. It is pursuant to Ext.R1(d), negotiations were conducted with another contractor who agreed to do the work for 49% addition to the original amount agreed by the petitioner's father and by Ext.R1(e), the Government accorded sanction for awarding the work with the condition that the loss due to rearrangement of the work w.p.c.27193/06 - : 4 :- should be realised from the original contractor, viz. the petitioner's father. They would contend that it is under the above circumstances, the impugned demand was made on the petitioner's father. It is submitted that the contention that one of the contracting parties cannot decide the question of breach of contract and assess damages is not applicable to this case in view of the peculiar facts and circumstances of the case, insofar as a Division Bench of this Court has found that the petitioner's father had committed breach of contract. It is further submitted that this Court permitted the Corporation to award the contract to another contractor by negotiating the terms and in accordance with the said direction, negotiations were conducted with another contractor, who agreed to do the work for 49% above the original amount agreed to by the petitioner's father. According to the Corporation, there is no question of quantification in this case, since the difference between the original amount agreed to by the petitioner's father and the final award amount after negotiating with the new contractor in accordance with the direction of this Court would constitute the amount of damages, both of which amounts are known and there is no scope for adjudication of the same. Therefore, there is no merit in the contention of the petitioner, is the contention raised in the counter affidavit. 4. I have considered the rival contentions in detail. - : 5 :- w.p.c.27193/06 ## 5. Ext.R1(d) order of the Division Bench reads thus: “We have heard learned counsel for the parties at some length and are satisfied that the contractor (Respondent No.7) is making a lame excuse for not completing the awarded work and that he is not interested in completing the work early. Learned counsel for the Corporation states that the contract awarded to Respondent No.7 will be cancelled forthwith and that the work will be entrusted to a new contractor who will complete the work of widening the Mullassery canal to eliminate water logging at Karikkamuri, K.S.R.T.C. and South Railway Station area. The Corporation, while awarding the contract, will ensure that the remaining work is completed as far as possible within 60 days from the date when the work is awarded to the new contractor. The entire work will be completed except the culvert at Chittoor road. As a special case, we direct the Corporation to negotiate the terms with the new contractor and award the contract. This direction has been issued keeping in view of the urgency of the matter because water logging in the area is causing great nuisance to the residents of the area who have filed the present writ petition as a public interest litigation. The Corporation will also ensure that the obstructions, if any, over the area are removed for which it will be open to it to seek the assistance of the B.S.N.L., K.S.E. Board and the Kerala Water Authority. All these authorities will render co-operation and ensure that the work is completed on time. 2. Now that the rains have set it, the situation in the area has gone from bad to worse and the residents have been put to great inconvenience due to heavy water logging. Learned counsel appearing for the Corporation states that the Corporation will instal adequate number of pumps in the area to pump out the water so that the residents are not put to any inconvenience. He further states that temporary arrangements by way of wooden planks or otherwise shall be made for the free ingress and egress of the residents from their houses.” (underlining supplied) In the same, the Division Bench has specifically entered a finding that this Court is satisfied that the contractor, who was a party to the said writ petition, is making lame excuses for not completing the work awarded and he is not interested in completing the work early. Since the work is a work in an important busy locality of the city and the delay in completion of which, would cause traffic congestion in the city, it was imperative that the work should be completed within a w.p.c.27193/06 - : 6 :- reasonable time, which also has been stated by the Division Bench. In fact at the relevant time a hue and cry was raised by the citizens of the city against the delay in completion of the work. When this Court specifically found, that too, after hearing the petitioner's father, that he is making lame excuses for not completing the work awarded and that he is not interested in completing the work early, that is nothing but a finding that the petitioner's father committed breach of the contract awarded to him. As such, there is no necessity for a separate decision by an independent authority regarding breach of contract by the petitioner's father insofar as a Division Bench of this Court has entered such a finding in Ext.R1(d) order. Further the Division Bench of this Court permitted the Corporation to award the work to a new contractor after negotiating the terms with the new contractor. The Corporation was bound to comply with the said direction. They have negotiated the terms of the contract with a new contractor, who agreed to do the work with accepting 49% extra payment to the original amount agreed to by the petitioner's father. As such, there is no question of quantification since the damages suffered by the petitioner is the difference between the original amount agreed to by the petitioner's father and the amount for which the contract was finally awarded to another contractor. The decisions referred to by the petitioner apply only in cases where there is a genuine dispute w.p.c.27193/06 - : 7 :- regarding the breach of contract and the damages payable. In this case there is no scope for raising such a dispute insofar as the breach of contract has been found by the Division Bench of this Court in Ext.R1(d) order and the amount of damages is the difference between the original contract amount and the negotiated contract amount both of which are on record. In the above circumstances, I do not find any merit in the contentions of the petitioner and accordingly, this writ petition is dismissed. sdk+ Sd/S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge