U. Muhammed Kunhi v. State of Kerala and The Superintending Engineer, Roads and Bridges, P.W.D., North Circle, Calicut

## **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. 345 of 2001()** **------------------------------** **AS.198/1995 of DISTRICT COURT,KOZHIKODE OS.305/1989 of I ADDL.SUB COURT, KOZHIKODE ....................** ## **APPELLANT(S): (APPELLANT/ PLAINTIFF)** **-----------------------------------------------------------** **U.MUHHAMMED KUNHI, D/O. UMMER, P.W.D. CONTRACTOR, PANALAM HOUSE, P.O. CHENGALA, KASARAGOD.** **BY ADVS. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SRI.JOJI VARGHESE SRI.M.HARISHARMA** **SRI.T.P.ELDHOSE** ## **RESPONDENT(S): RESPONDENT/ DEFENDANT** **-----------------------------------------------------------------** **1. STATE OF KERALA, REP.BY THE DISTRICT COLLECTOR, KOZHIKODE.** **2. THE SUPERINTENDING ENGINEER, ROADS AND BRIDGES, P.W.D., NORTH CIRCLE, CALICUT 1.** ## **R1 & R2 BY GOVERNMENT PLEADER** **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. 345 OF 2001** **------------------------------DATED THIS THE 1ST DAY OF OCTOBER, 2010** ## **JUDGMENT** Appellant is the plaintiff in O.S.305/89 on the file of the Sub Court, Kozhikode. This appeal is directed against the judgment and decree in AS.No.198/95 on the file of the District Court, Kozhikode. The suit filed for rendition of account was dismissed. Relying on the decision reported in **S.S.Nair v. Travancore Devaswom Board (1987 (2) KLT 182)** the court below held that the suit for settlement of account is not maintainable and therefore the plaintiff is not entitled to get a decree as prayed for. The Lower Appellate Court framed the sole issue “whether the suit for rendition of account is maintainable?” The Lower Appellate Court relying on the said decision, which was relied on by the trial court, held that the suit for rendition of account is not maintainable and that the suit ought to have filed as one for damages. **-2-** ## S.A.No.345/2001 2. The dispute in the suit is with regard to the work of improvement of Kulangarath Aroor Eramban Kuni Gulikapuzha road. The work was allotted to the plaintiff and the plaintiff had executed an agreement on 16/11/1984. The plaintiff's case is that the work could not be completed at the end of the extended period due to the default on the part of the defendants. It is alleged in the plaint that the defendants have not supplied materials in time, that they failed to approve the initial level and also failed to supply of steel and cement to meet the requirements in time and thus the delay has been caused. It is also pleaded that there was an injunction suit filed by a third party which also caused obstruction to the plaintiff in carrying out the work. Defendants are State of Kerala and the Superintending Engineer, Roads and Bridges, PWD, Calicut. They denied the plaint allegations and prayed for dismissal of the suit. According to the defendants, the plaintiff is responsible for not completing the work within the time fixed by **-3-** ## S.A.No.345/2001 them and that since the plaintiff failed to complete the work as agreed, they were compelled to terminate the contract at the risk and costs of the plaintiff. The issues framed are; whether the plaintiff is entitled to get a decree for rendition of accounts, whether the plaintiff is entitled to realise any amount from the defendants and reliefs and costs. The court found that the site was handed over as early as on 9/10/1984 and that the supplemental agreement was executed on 2/9/1986; but the work was not completed by the plaimtiff till 12/10/1988. So the defendants are fully justified in terminating the contract at the risk and cost of the plaintiff. The trial court considered the contention of the defendants that the suit for settlement of accounts of this nature is not maintainable. The court relied on the decision reported in **S.S.Nair's case (1987 (2) KLT 182)** referred supra and held that the suit is not maintainable. The court also held that even if the contract was not performed due to the default of the defendants, the **-4-** ## S.A.No.345/2001 suit for settlement of account is not maintainable and so the plaintiff is not entitled to get a decree as prayed for. The Lower Appellate Court for the same reasons confirmed the decision of the trial court in A.S.No.198/95. 3. The very same plaintiff filed O.S.No.303/89 before the same court for rendition of accounts and realisation of money. That suit was filed in respect of the work of improvement to KavilTheekuni Kuttiady road. The averments in the said suit and in the present suit are more or less same. The court below, after relying on the decision in **S.S.Nair's case (1987(2) KLT 182),** dismissed the said suit finding that the suit is not maintainable. The Lower Appellate Court in A.S.No.155/94 preferred by the very same plaintiff against the judgment dismissing O.S.No.303/89 reversed the judgment and passed a preliminary decree. The Appellate Court relying on the decision referred above, which was relied on by the trial court, held that on the facts of the case the dictum laid down in **-5-** ## S.A.No.345/2001 the said decision is not applicable. On merits confirming the findings of the trial court the Appellate Court held that the termination of the contract by the defendants is void and that the plaintiff is entitled to the relief claimed in the suit. In the said suit which was filed on the very same allegations against the defendants, the trial court framed 8 issues which are extracted below: ## “i) Whether the suit is maintainable? ii) Whether there was any delay on the part of the defendant department in handing over the site to the plaintiff? iii) Whether th departmental materials were issued in time? iv) Whether there was any delay in payment of part bills? - v) Whether the termination order issued by the 2[nd] defendant is legal? vi) Whether there was any breach of contract on the part of the defendants? vii) Whether the plaintiff is entitled to any relief? **-6-** S.A.No.345/2001 viii) What order as to costs?” 4. This Court today heard S.A.No.911/98 filed against the judgment and decree in A.S.No.155/94 which arises from the judgment and decree in O.S.No.303/89. This Court upheld the decision of the Lower Appellate Court in that case finding that the said suit is maintainable and the decision rendered by this Court in **S.S.Nair's case** is clearly distinguishable on facts. Since the suit was also filed more or less on the same set of allegations, the matter requires re-consideration. The trial court shall consider the question as to whether it is necessary to frame additional issues and if found necessary, shall frame additional issues as framed in O.S.No.303/89 which are extracted above. The trial court, after framing additional issues, if necessary, shall consider the question afresh and dispose of the suit in accordance with law. In the result, the appeal is allowed. The judgment and decree passed by the courts below are set aside. The case is **-7-** ## S.A.No.345/2001 remanded to the trial court for fresh consideration in accordance with law. The trial court shall dispose of the suit within a period of six months from the date of appearance of the parties. The parties shall appear before the court below on 28/10/2010. There will no order as to costs. **HARUN-UL-RASHID, Judge.** **kcv.**