M. Haneefa v. Pathanamthitta Municipality, Zakir Hussain, M. Muhammed Huwaiz, State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 20[TH] DAY OF FEBRUARY 2024 / 1ST PHALGUNA, 1945** ## **RFA NO. 375 OF 2016** **AGAINST THE JUDGMENT IN OS 203/2009 OF SUB COURT, PATHANAMTHITTA** **-----** ## **APPELLANT/PLAINTIFF:** M.HANEEFA, AGED 63 YEARS, S/O.MUSTHAFA MEERAVU RAWTHER, KUREEKATTIL HOUSE, CHITTUR WARD,PATHANAMTHITTA. BY ADV SRI.S.ABDUL RAZZAK ## **RESPONDENTS/DEFENDANTS:** 1 THE PATHANAMTHITTA MUNICIPALITY, REPRESENTED BY ITS SECRETARY,MUNICIPAL OFFICE, PATHANAMTHITTA689 645. 2 MR.ZAKIR HUSSAIN, AGED 44 YEARS, S/O.THANKAKUTTY, [FORMERLY CHAIRMAN, PATHNAMTHITTA MUNICIPALITY],BEENA MANZIL, AZHOOR, PATHANAMTHITTA, 689 645. 3 M.MUHAMMED HUWAIZ, AGED 43 YEARS, S/O.K.MUHAMMED KUNJU, [FORMERLY SECRETARY, PATHANAMTHITTA MUNICIPALITY],KALEELIL HOUSE, PUTHENCHANTHA P.O, CHAVARA, 691 583, KOLLAM DISTRICT. **RFA NO. 375 OF 2016 -2-** 4 STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001. BY ADVS. SRI.V.K.SUNIL(SC) B/O SRI.MANU RAMACHANDRAN SMT.KRIPA ELIZABETH MATHEWS SMT.PRIYANKA VARGHESE SMT.P.F.ROSY SRI.V.M.SYAM KUMAR SMT.K.B.SONY, GOVT. PLEADER (B/O) THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 20.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.F.A. No.375 of 2016** **= = = = = = = = = = = = = = = = = = Dated this the 20[th] day of February, 2024** ## **J U D G M E N T** The suit for money under a construction contract was decreed in part. Dissatisfied with the decree, the plaintiff is in appeal. 2. On 14.09.2007, Ext.A1 agreement was entered into between the plaintiff and the defendants with regard to metalling work in the bus stand yard of the Municipality. The period fixed for completion of the work was three months. There occurred delay in completion and there arose disputes between the parties. The contract was terminated and the work was retendered. There were various litigations with regard to the same which are not being adverted to herein as they are not relevant for the purpose of disposal of this case. The work was completed by the subsequent contractor. The suit is for money for the work done by **RFA No.375/2016** **==> picture [34 x 9] intentionally omitted <==** the plaintiff, the cost of materials, loss caused to the plaintiff consequent to the delay allegedly caused by the defendants etc. 3. The defendants allege that the plaintiff was responsible for the delay and that the contract had to be terminated consequent on the failure of the plaintiff to complete the work in terms of the contract. He prayed for dismissal of the suit. 4. The trial court found that, the plaintiff though had not completed the work, had done part thereof and was entitled for its value. Accordingly the suit was decreed in part. This appeal has been filed by the plaintiff in so far as it relates to the portion of the plaint claim which was not granted by the trial court. There is no appeal by the defendants. 5. I have heard Sri.S.Abdul Razzak, the learned counsel for the appellant and Sri.V.K.Sunil, the learned counsel for the defendant-Muncipality, and Sri.Manu **RFA No.375/2016** -: 3 :- Ramachandran and Sri. V.M. Syam Kumar, on behalf of the party respondents. ## 6. The points that arise for consideration are, _(i) Is the plaintiff entitled for value for the work done in addition to the cost of the materials utilized?_ _(ii) Is not the plaintiff entitled for return of the security deposit?_ _(iii) Is the plaintiff entitled for value of the metal provided for at the site for the second phase of work, which he was not able to carry out?_ ## 7. Ext.A1 agreement which was entered into on 14.09.2007, fixed three months for completion of the work. It is not in dispute that the site was handed over to the plaintiff only belatedly, in February, 2008. On account of the various differences, the contract was terminated. We are not concerned about the justifiability or otherwise of the termination. 8. Ext.A1 agreement related to five items of work; out of the same items 1, 2 and 3 related to supply of **RFA No.375/2016** -: 4 :- materials, and items 4 and 5 related to labour. The work was to be done in two stages-firstly, the soling and secondly, the layer on its top. It is not in dispute that the materials in items 1 and 3 are necessary for carrying out the first phase of work namely, soling. 9. Though there is some dispute between the parties with regard to the area of work done under phase-I it is not in dispute that phase-I was completed by the plaintiff. The engineer reported that the plaintiff had carried out the phase-I for an area of 12030 sq. metres though he claimed to have done work for an area of 15550 sq. meters. The quantity of materials used in item No.1 viz. hard blue granite broken stone was found to be 1203.10 M[3] . It was found that though the thickness was to be 7 centimeter, the average thickness of the work done was only 6.25 centimeters. The quantity of the materials was measured by the engineer, as noted above. So the court concluded that the plaintiff did excess **RFA No.375/2016** -: 5 :- area with less quantity of material. 10. It is not in dispute that the subsequent contractor carried out the second phase of the work upon the first phase already carried out by the plaintiff. There is no case for the defendants that the subsequent contractor had to do extra work over the first phase resulting in extra cost. Taking note of the same the trial court has held that the plaintiff is entitled for value of the materials collected under item No.1 for completion of phase-I. 11. However, the trial court did not take note of the fact that item No.3 was also essential for completing phase-I, which was also utilized by the plaintiff. So also the labour under item No.4 for completion of phase-I was not taken note of by the trial court. As noticed, there is no claim for the defendants that they had sustained any damages. There is no counter claim for any damages, much less a plea to the said **RFA No.375/2016** -: 6 :- effect. Therefore, the plaintiff is entitled for the value of the materials supplied under item Nos.1 and 3 and also the value of the labour for item No.4. 12. Coming to the quantity of material under item No.3, Ext.A1 specifies the quantity at 473.00 M[3] . The rate fixed is ` 220/- per M[3] . However, in Ext.A14 report of the Superintending Engineer it is reported that as per the M. Book, the quantity of gravel earth supplied is noted as 270 M[3] . The total value for the same is ` 59,400/-. The rate quoted by the plaintiff was 23.1% below the estimated rate. Therefore, the same has to be deducted to arrive at the amount that the plaintiff is entitled for. The said amount comes to ` 45,679/-. Though the learned counsel for the plaintiff would contend that the entire quantity as was specified in the tender was and had to be utilised to do the work, as noticed above, records show otherwise. Hence the said argument can only be repelled. **RFA No.375/2016** -: 7 :- 13. Now coming to the cost of the labour namely item 4, as per Ext.A1, the quantity of materials in Serial No.1 required for an area of 13514 square metres, as mentioned in serial number 4, is 1352 M[3] . The engineer had reported that the quantity of item No.1 collected/supplied by the plaintiff is 1203.10 M[3] . The proportionate area would accordingly be roughly 12030 M[2] . Though going by Ext.A15 report of the Executive Engineer to the Chief Engineer the area is 14002.54 M[2] as was noticed by the trial court, the plaintiff has used only lesser quantity for completing the larger area and the thickness is also less than what was required. Therefore, it is not appropriate to grant the cost of labour for the excess area done by him. In Ext.A14 report of the Superintending Engineer referred to supra it has been reported that, with the quantity of materials supplied the area that could be metaled is 12072 M[2] . The plaintiff could be granted the cost of **RFA No.375/2016** -: 8 :- labour for the area which alone he could have done with the said material supplied viz. 12072 M[2] . Ext.A1 specifies the rate of item No.4 as ` 304/- per 10 M[2] . Thus the total cost is 1207.2 x 304 = ` 3,66,989/-. As noticed earlier the quoted rate of the plaintiff is less 23.1% below the estimated rate. Therefore, the said amount is to be deducted therefrom ie. 3,66,989 - 84,774 = ` 2,82,215. The plaintiff is entitled for that much amount under item No.4. 14. The plaintiff has a claim for the cost of materials supplied under item No.3 in Ext.A1 agreement. With regard to the said materials, the Municipality had informed the plaintiff under Ext.A34 that the materials supplied under item No.2 is not in accordance with the specification and are to be removed from the site. In spite of the same, the plaintiff did not remove the same. The learned counsel for the plaintiff would contend that clause 10 in Ext.A1 specifically prohibited **RFA No.375/2016** -: 9 :- the plaintiff from removing the materials from the site. Clause-10 of Ext.A1 reads thus:- “IcmÀ ZpÀ-º-e-s¸-Sp-¯p-t¼mÄ {]-hr-¯n \-S-¯p-ó Øe-¯v kw-`-cn-¨p-sh-¨n-«p-Å Fñm \nÀ½m-W km-[-\§fpw b-t{´m-]-I-c-W-§fpw {]-hr-¯n \-S-¯p-ó Ø-e¯p-\n-óv I-cm-dp-Im-c³ am-äm³ ]m-Sp-ÅXñ. {]-kvXp-X km-[-\-§-sfñmw A-f-sh-Sp-¯-ti-jw {]-hr-¯n-¡p-thïn D-]-tbm-Kn¡mt\m te-ew sN-bv-Xv hn-äv B h-I-bnð e-`n-¡p-ó Xp-I \-ã-]-cn-lm-c-¯p-I-bnð h-I-bn-cp-¯póXnt\m ]-ôm-b-¯v/ap³-kn-¸m-en-än/tImÀ-¸-tdj-\v ]- cn-]qÀ-®am-b A-[n-Im-c-ap-ïm-bn-cn-¡p-ó-XmWv.” Clause-10 enables the defendants to utilize the materials available at the site or to auction it and appropriate the amount towards damages. It does not prohibit the defendants from requiring the plaintiff to remove the materials from the site. In fact it would only be more advantageous to the plaintiff. In spite of the specific demand under Ext.A34, the plaintiff failed to remove the materials. The plaintiff having failed to ## **RFA No.375/2016** -: 10 :- remove the materials, they cannot claim its value as damages. The plaintiff could be permitted to remove such materials from the site. 15. The next head of claim is return of the security deposit of one lakh. In the absence of any claim for damages, the defendants are bound to return the security deposit. The plaintiff is entitled to get return of the same. 16. The above heads under which the plaintiff is entitled for a decree have not been taken into consideration by the trial court. The decree and judgment of the trial court is liable to be modified to the above extent. 17. The learned counsel for the Municipality would contend that an error has crept in the decree of the trial court since the Court had failed to deduct 23.1% from the estimated rate, it being the rate quoted by the plaintiff. It is to be noted that, the defendants never ## **RFA No.375/2016** -: 11 :- chose to challenge the decree on any ground. However, it is apparent that the trial court has calculated the amount payable based on the estimated rate and not the quoted rate. Thus there has to be a deduction of 23.1% from the amount decreed by the trial court. Though there is no appeal by the defendants, the mistake/error being apparent, this Court is entitled to have the same corrected in exercise of the powers under Order XLI Rule 33 of the Code of Civil Procedure. Thus deducting 23.1%, the amount payable to the defendant in the place of the trial court decree is ` 5,84,674-00. 18. Therefore, the plaintiff is entitled for a decree under the following heads :- (i) Cost of materials supplied under item No.1 in Ext.A1. = `5,84,674-00 (ii) Cost of materials supplied under item No.3 in Ext.A1 = ` 45,679-00 ## **RFA No.375/2016** -: 12 :- (iii) Cost of labour for the work done under item No.4 in the agreement = ` 2,82,215-00 (iv) Security deposit = ` 1,00,000-00 ## **Total =** ` **10,12,56 8** 19. Referring to the judgment of the Apex Court in _**Ramachandra Narayan Nayak v. Karnataka Neeravari Nigam Ltd. And**_ _**Ors. 2013 AIR SCW 5913,**_ the learned counsel for the plaintiff would contend that the plaintiff is entitled for interest at the rate of 9% per annum on the amount payable. Considering the entire facts of the case in the light of the judgment of the Apex Court afore, I am of the opinion that the plaintiff is entitled for interest at the rate of 9% on the amount due, from the date of suit till the date of decree. The plaintiff shall be entitled for interest at the rate of 6% from the date of decree till realisation. Resultantly, this appeal is allowed. The decree and judgment of the trial court is set aside and a decree is ## **RFA No.375/2016** -: 13 :- passed allowing the plaintiff to realise an amount of ` 10,12,568-00 (Ten lakhs Twelve Thousand Five Hundred and Sixty Eight Only), with interest thereon at the rate of 9% per annum from the date of suit till date of decree, and thereafter at the rate of 6% per annum, from the first defendant and its assets. The plaintiff shall be entitled for proportionate costs throughout. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge ## **APPENDIX OF RFA 375/2016** PETITIONER ANNEXURES ANNEXURE A1 PHOTOCOPY OF THE CALCULATION STATEMENT -----