Travancore Devaswom Board v. M. Bineesh and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 15TH DAY OF JULY 2020 / 24TH ASHADHA, 1942** ## **RFA.No.273 OF 2016** **AGAINST THE JUDGMENT IN OS 280/2011 DATED 06-10-2015 OF PRINCIPAL SUB COURT,TRIVANDRUM** ## **APPELLANTS/DEFENDANTS 1 & 2:** **1 TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, TRAVANCORE DEVASWOM BOARD OFFICE, NANTHANCODE, THIRUVANANTHAPURAM.** **2 TRAVANCORE DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM.** **BY ADVS. SRI.V.KRISHNA MENON, SC SRI.S.RAJMOHAN, SC, TDB SRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD SRI.KRISHNA MENON, SC, TRAVANCORE DEVASWOM BOARD** ## **RESPONDENTS/PLAINTIFF & DEFENDANTS 3 & 4:** **1 M BINEESH AGED 42 YEARS S/O.MURALEEDHARAN, “BINEESH”, NAMBARUVIKALA, ALUMKADAVU POST - 690573, KARUNAGAPPALLY, KARUNAGAPPALLY TALUK,KOLLAM DISTRICT.** - **2 THE CHIEF COMMISSIONER TRAVANCORE DEVASWOM BOARD, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001** **3 P.B.NALINAKSHAN NAIR FORMER DEVASWOM COMMISSIONER FOR TRAVANCORE DEVASWOM BOARD, RESIDING AT “SAROVARAM”, 6/916, THRIKKAKARA P.O., KOCHI-682 021.** ## **R1 BY ADV. SRI.V.PHILIP MATHEW** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 15.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- RFA.No.273 OF 2016 ## **J U D G M E N T** This appeal has been filed by the Travancore Devaswom Board (hereinafter “Board” for brevity) and its Commissioner assailing the judgment and decree of the Principal Sub Court, Thiruvananthapuram in O.S.No.280/2011. 2. The afore suit was filed by the 1[st] respondent herein seeking return of the amount of Earnest Money Deposit (EMD for short) remitted by him, along with a tender submitted before the appellants, for the right to collect the toll and fee at the parking ground at Pumba, alleging that the retention of the same by the appellants is illegal and unlawful. The specific case of the 1[st] respondent/plaintiff was that he had remitted the amount of Rs.7,60,000/- as EMD, along with his tender made pursuant to the notification of the Travancore Devaswom Board, a copy of which has been marked on record as Ext.A1, but that instead of accepting the same and awarding him the contract, the Board took over the collection of the parking toll and fees to themselves, thus frustrating the tender process and consequently, that he is entitled to the return of the EMD. 3. In response, a written statement was filed by the appellants contending that it was the 1[st] respondent/plaintiff, who -3- RFA.No.273 OF 2016 had withdrawn from the tender notification unilaterally and therefore, that going by the provisions of Ext.A1 tender notification, they are entitled to forfeit the entire EMD, in the nature of a penalty. 4. The suit was, thereafter, taken into trial by the Court and Exts.A1 to A9(b) were marked on the side of the plaintiff, while he himself deposed as PW1 on his behalf. The Tranvancore Devaswom Board did not lead any evidence - either oral or documentary - and the Trial Court allowed the suit, holding that the 1[st] respondent/plaintiff is entitled to an amount of Rs.8,48,350/-, along with 9% interest from the date of suit till the date of decree and future interest at the rate of 6% per annum till realization on the principal amount. 5. It is this judgment and decree of the Trial Court which has been impugned by the Travancore Devaswom Board and its Commissioner in this appeal. 6. I have heard Sri.G.Biju, learned Standing Counsel for the appellants and Sri.Philip Mathew, learned counsel appearing for respondent No.1. 7. When I examine the judgment of the Trial Court from the standpoint of the evidence available on record, it is evident -4- RFA.No.273 OF 2016 that the said Court has concluded that since there is no stipulation in Ext.A1, the appellants cannot retain the EMD and thus that the plaintiff is entitled to return of the same. The Court has also considered the contentions of the appellants hinged on Section 55 of the Travancore Cochin Hindu Religious Institution Act, (TCHRI Act for short) finding it against them. 8. Sri.G.Biju, learned Standing Counsel for the Tranvancore Devaswom Board, began by saying that the appellants are not pressing their contentions under Section 55 of the TCHRI Act; but vehemently predicating that the Trial Court has erred in concluding that Ext.A1 does not permit the retention of the EMD amounts because it specifically provides that all “the prevalent Rules in Travancore Devaswom Board and as per Notification No.ROC/1142/09/Sab dated 25.10.2009” (sic) will be applicable and therefore, that the stipulations of forfeiture of the EMD, which is part of the aforementioned Rules and Notification would apply fully. He, however, concedes in the same breath that neither the Rules nor the Notification referred to in Ext.A1 have been produced on record, nor has any evidence been led by his party to substantiate this contention. 9. In response to the submissions of the learned Standing Counsel for the Board, Sri.Philip Mathew, the learned counsel for -5- RFA.No.273 OF 2016 the respondent, submits that the case build up by the Board against his client is based on incorrect facts. He says that at no point of time had his client withdrawn from the tender submitted by him and that Ext.A4 telegram, stated by the appellants to have been issued by his client withdrawing from his offer, was neither not so issued, by him, nor properly proved by them. He says that, in fact, his client came to be aware that the stand of the Board was that Ext.A4 telegram had been issued by his client, only when he had approached this Court by filing O.P. (C)No.22302/2010 seeking repayment of the EMD amount, when this telegram was produced by them on record and that his client, thereafter, obtained a certified copy of the same from this Court and produced it before the Trial Court during evidence. He says that this does not exonerate the Board from the liability of having to prove the contents of the telegram, especially when his client testified, during his evidence as PW1, that he did not issue the said telegram. 10. Moving further, Sri.Philip Mathew submits that the Board had, in fact, obtained seven tenders, out of which only the tender of a certain Sri.M.P.George was found to be above the minimum reserve price and therefore, that an opportunity was given to all the tenderers, including his client, to quote higher if -6- RFA.No.273 OF 2016 they were so interested. Sri.Philip Mathew submits that his client quoted an amount of Rs.1,78,55,351/- in response, but that even before the same was considered, the contract was awarded to Sri.M.P.George, who, however, but that he refused to execute the agreement. Sri.Philip Mathew says that nothing was heard by his client from the Board as regard his offer, but that they began the toll collection directly on 10.11.2009 itself. Sri.Philip Mathew thus contends that this is not a case where the Board has suffered any liability or loss on account of anything attributable to his client and therefore, that the judgments of this Court in **Soji Peter v. Vijayan [2017 (4) KHC 456]** and **Kerala State Electricity Board Ltd. v. Hanjong Energy and Technology Private Ltd. [2020 (2) KLT 885]** apply in full force, thus incapacitating from retaining his client's EMD further. He concluded reiteratingly asserting that the Trial Court was wholly justified in having issued the impugned judgment and decree. 11. The law relating to the retention or return of EMD is now too well settled to be restated. Two Division Benches of this Court have already considered these aspects in great detail in **Soji Peter** (supra) and **Kerala State Electricity Board Ltd.** (supra) and the emphatic declaration of law therein is to the effect that since the EMD is only a sum of money which is a pre- -7- RFA.No.273 OF 2016 estimate of the actual damage that may be caused to a party in the event of breach of the agreement and which is fixed by both parties even at the time when the agreement was entered into, it is only in the event that a Court feels that what has fixed in the contract represents the actual damages, which is pre-estimated by the parties that it will allow the same to be forfeited by the awarder. 12. When I say this, I am cognizant of the submissions of Sri.G.Biju, that the facts of this case are at variance from the facts noticed by this Court in **Soji Peter** (supra) and **Kerala State Electricity Board Ltd.** (supra) and that the declarations of the Hon'ble Supreme Court in **National Thermal Power Corporation Ltd. v. Ashok Kumar Sing (M/s) and others [2015 (4) SCC 252]** would have greater application. This submission is edificed on the allegation that an agreement had not been entered into between the parties in this case and that the 1[st] respondent had withdrawn his tender even before the same was finalized by the Board. 13. When I evaluate the afore contention of Sri.Biju, it will be profitable to first go through the averments of the Board in the counter affidavit filed by them in W.P.(C)No.22302/2010, a certified copy of which has been marked by the Trial Court as -8- RFA.No.273 OF 2016 Ext.A8(a). The stand taken by the Board in the said counter affidavit is available in paragraph 7 thereof, which is extracted under for easy reference. “7. In view of the report of the Superintendent of Police (Vigilance & Security) and in view of Ext.R1(a) telegram sent by the petitioner, the Devaswom Commissioner had on 10.11.2009 addressed a letter to Sri.M.P.George informing him that the contract for the right to collect parking fee had been awarded to him and he was requested to execute the agreement with the Executive Officer, Sabarimala as well as remit 50% of the bid amount. It is submitted that inspite of receipt of the letter from the Devaswom Commissioner Sri.M.P.George had not, till the start of the festival season executed the agreement nor deposited 50% of the bid amount. Since the festival season had already commenced and since Sri.M.P.George had not come forward to execute the agreement the Board had been left with no other alternative but to collect the parking fee departmentally by engaging its own personnel” 14. It is ineluctable from the afore averments in Ext.A8(a) counter affidavit that the Board had awarded the contract to Sri.M.P.George and he was asked to execute the agreement, but there is not even a whisper that the petitioners' offer had been accepted, except by saying that since he had withdrawn the same through Ext.A4 telegram, it had not been considered. It is thus manifest that the Board had accepted the tender of Sri.M.P.George and that had he executed the contract, then there would be absolutely no obligation left with the 1[st] respondent as per his offer, even going by the Board's contentions now. -9- RFA.No.273 OF 2016 Therefore, from that perspective, it is extremely suspicious whether the Board can insist that the EMD of the respondent be allowed to be retained by them, particularly when the averments in Ext.R8(a) are completely silent as to whether they have suffered any loss or prejudice on account of the alleged withdrawal of his offer by the 1[st] respondent/plaintiff, after they admit that the contract had then been awarded to the aforementioned Sri.M.P.George. In any event, in the absence of any evidence having been lead by the appellants, neither can Ext.A4 be held proved, nor can the respondent be held to have issued it. 15. That apart, the real question in controversy is whether, even if all the factual narration of the Board is accepted to be true, they would be justified in forfeiting the EMD in the absence of a stipulation to that effect in Ext.A1 tender notification. The fact that there is no such prescription in the notification is conceded but the stand of the Board, as voiced through Sri.G.Biju, is that the Rules and the Notifications mentioned therein would permit the Board to do so. However, it is then unequivocally conceded in the same breath that neither these Rules nor the Notification have been produced before the Court; and evidently, therefore, the base assertion of the Board -10- RFA.No.273 OF 2016 that they are entitled to retain the EMD though not so mentioned in Ext.A1, obtain no legs to stand on. 16. In this context, the judgment in **National Thermal Power Corporation Ltd.** (supra), of the Hon'ble Supreme Court would apply only if the Board had been able to prove that there was a specific stipulation in the tender notification that in the event a tender is withdrawn before it is accepted by them, the 1[st] respondent would be liable to the extent of the EMD as penalty. Since the evidence is completely lacking in this regard – because the Board refused to offer either oral or documentary evidence – the Trial Court is wholly justified, in my firm view, in having rejected such contentions and to have decreed the suit as prayed for by the plaintiff. 17. The learned Standing Counsel for the Board – Sri.G.Biju at this time requested that his client be given an opportunity to produce the Notification and the Rules mentioned in Ext.A1 before this Court, under the provisions of Order XLI Rule 27 of the CPC, stating that these documents will completely substantiate their contentions. I am afraid that this request is too far-fetched because the Board has chosen not to produce any document or to offer evidence before the Trial Court nor have they produced anything before this Court until today, when the -11- RFA.No.273 OF 2016 matter has been finally heard; and I consequently, do not deem it appropriate or justified to grant any such lenitude to the appellants at this stage. Even though, I was initially inclined to impose compensatory costs on the appellants for the reason that they have ventured into this appeal knowing fully well that they had not led any evidence before the Trial Court or have produced the relevant documents on which they depend, solely by way of indulgence and acceding to the request of Sri.G.Biju, I refrain from doing so. In the afore circumstances, I see no reason to disturb any of the findings or holdings of the learned Trial Court, and to thus dismiss this appeal with costs to the respondents. It is so ordered. **SD/-** **DEVAN RAMACHANDRAN** ## **JUDGE** rp