## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
**THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID**
## **FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932**
## **SA.No. 911 of 1998(A)**
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**AS.155/1994 of ADDL.DISTRICT COURT, KOZHIKODE OS.303/1989 of II ADDL.SUB COURT,KOZHIKODE**
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## **APPELLANT(S): RESPONDENTS/DEFENDANTS**
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**1. STATE OF KERALA, REP.BY DISTRICT COLLECTOR, KOZHIKODE.**
**2. THE SUPERINTENDING ENGINEER, P.W.D. (B&R) NORTH CIRCLE, CALICUT.**
**BY GOVERNMENT PLEADER SRI.RAVIKRISHNAN**
## **RESPONDENT(S): APPELLANT/ PLAINTIFF**
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**U.MOHAMMED KUNHI, S/O. UMMER, P.W.D. CONTRACTOR, PANALAM HOUSE, CHENGALA P.O., KASARAGOD.**
## **ADV. SRI.D.KRISHNAPRASAD**
**THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **tss**
## **HARUN-UL-RASHID,J. ------------------------------S.A. NO.911 OF 1998**
**------------------------------DATED THIS THE 1ST DAY OF OCTOBER, 2010**
## **JUDGMENT**
Defendants in O.S.No.303/89 on the file of the Sub Court, Kozhikode are the appellants. The appeal is directed against the judgment and decree in A.S.No.155/94 on the file of the District Court, Kozhikode. The suit was filed for rendition of account and realisation of money. The trial court accepted the case of the plaintiff that the plaintiff is in responsible for completing the work in time and hence Ext.A1 order for termination of work is not valid and sustainable and that the defendants are liable to pay for the work already completed. The trial court held that since the acquisition proceedings are not over even at the time of termination of the work on 9/11/88, Ext.A1 order of termination is void. The trial court further examined the question as to whether the suit for rendition of account is not maintainable. Relying the decision reported in **S.S. Nair v. Travancore Devaswom Board (1987**
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**KLT 182)** the trial court held that the suit is not maintainable and therefore the plaintiff is not entitled to get any reliefs as prayed for in the suit. The Lower Appellate court confirming the findings of the trial court on all issues other than the question of maintainability of the suit. The Lower Appellate set aside the finding of the trial court that the suit is not maintainable. The Lower Appellate Court held that the decision relied on by the trial court is distinguishable in all respects and therefore not applicable. The Lower Appellate court allowed the appeal and a preliminary decree was passed holding that the plaintiff is entitled to pay for the work and the extra work done by him at the rate specified in the agreement. The measurement and the work done was recorded in the measurement books of the department, the plaintiff is entitled to return of the earnest money and retention amount and other ancillary reliefs. Aggrieved by the decree and judgment passed by the Lower Appellate Court, State of Kerala and the Superintending Engineer have preferred this appeal.
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2. The plaintiff was entrusted with the work of improvement of the Kovil-Thikkuni road. It is the plaintiffs case that the work has been delayed solely due to the breach of the department, but the department terminated the contract on 9/11/9/88 and so the department is liable to pay the amount due along with damages.
3. The defendants denied the plaint averments and prayed for dismissal of the suit. It is pleaded in the written statement that the plaintiff has committed breach of contract, that the plaintiff has abandoned the work without any valid reason and therefore the contract has been terminated by the department and the plaintiff is not entitled to get any amount as damages or compensation, as there is no breach of contract on the part of the department. The trial court as well as the appellate considered the issues raised in the suit on the basis of the evidence on record. The courts below appreciated the documents produced and marked as Exts.A1 to A3 and B1 to B9. On facts the court found that the site
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was handed over to the plaintiff on 5/3/1985 and as per the agreement the work has to be completed by 4/3/1986. The court below examined the contentions of the defendants that the plaintiff did not complete the work as agreed by him and the time for completion of the work was extended on the request of the plaintiff. The court also examined further contention of the defendants that as to whether the plaintiff has stopped or abandoned the work without any reason and further contention that even after the request of the department to receive the work, the plaintiff failed to do so and hence the contract was terminated by Ext.A1order. The plaintiff as PW1 tendered evidence in the plaint. He testified before the court that the department failed to supply the materials and money in time to do the work and that the department also failed to give transfer for the extra item of work. He also tendered evidence to prove that actually the site which he was working was not handed over even at the time of termination of the work. Both the courts found on evidence that the acquisition proceedings were
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not even completed by the department even at the time of termination of contract and that the work was entrusted to the plaintiff before completing the acquisition of property. After appreciating the evidence on record, the court below held that the plaintiff cannot be complained for not completing the work in time and hence Ext.A1 order of termination of the work is not valid and sustainable and therefore the defendants are liable to pay the work already completed. Finding that the acquisition proceedings are not over even at the time of termination of the work. The court held that Ext.A1 is void. The court also held that the contention of the defendants that the department has rendered all co-operation and assistance for the speedy and proper completion of the work is absolutely incorrect. But the trial court dismissed the suit for rendition of the account accepting the contention of the defendants that the suit is not maintainable. The court relying on the decision reported in **S.S.Nair's case (1987 KLT 182)** referred supra held that the person, who knows the amount of damages incurred to
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him, can only file a suit for damages for a specified ascertained sum. Having failed to file a suit for damages for specified ascertained sum, the trial court also held that the suit is not maintainable. The Lower Appellate Court re-appreciated the evidence and held that the findings entered by the trial court on merits are correct and therefore confirmed the findings. The Lower Appellate Court further distinguished the decision referred above which was relied on by the trial court, and held that the principles laid down in the said decision is not applicable to the present case.
4. The learned Judge held that the defendants have a claim for damages for non-completion of the work within time, for the re-arrangement of the work and for the alleged retention of its materials by the plaintiff and claims adjustment of that amount in the amount, if any, payable to the plaintiff. Therefore, relying on the said contention the learned Judge rightly held that in the said circumstances, the plaintiff was not able to say what exactly is the amount due to him. In the said decision it is a case where the
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plaintiff knowing the amount spent by him and the amount of damages to which he is entitled. The question in the said decision is whether the suit on accounts is maintainable or not. The court held
that in such a case the suit is not maintainable. Going by the averments contained in the plaint and the contention of the defendants, the findings of the Lower Appellate Court that the decision is clearly distinguishable on facts, are justified. The court on facts found that the plaintiff was not able to say what exactly is the amount due to him. The decision that the suit is not maintainable was taken based on the aforesaid decision. Since the aforesaid decision is not applicable on the facts of this case, the Lower Appellate Court is justified in granting preliminary decree in terms of the plaint on the basis of the findings on other issues. The question as to whether the plaintiff is entitled to a decree was decided on the basis of the facts, materials and evidence on record. The appellants have not made out any valid grounds for interference with the said findings in exercise of this Court's
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jurisdiction under Section 100 CPC. No question of law much less any substantial questions of law arise for consideration in the appeal.
In the result, the appeal fails and accordingly
dismissed. No order as to costs.
**HARUN-UL-RASHID, JUDGE.**
**kcv.**
