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2013 Supreme(Online)(KER) 14387
HIGH COURT OF KERALA
T.R.RAMACHANDRAN NAIR, A.V.RAMAKRISHNA PILLAI, JJ
R MOHAN DAS – Appellant
Versus
STATE OF KERALA – Respondent
REGULAR FIRST APPEAL 373/2003
Contractors can claim additional costs incurred due to the unavailability of materials from designated sources if proven justified, overriding any general contract stipulations prohibiting such claims.
Headnote:
Contract - Construction Agreement - Act Section List - The court analyzed the conditions surrounding a construction contract, addressing the legitimate procurement of materials and the appropriateness of additional charges. It affirmed the contractor's entitlement to recover costs incurred due to the lack of materials from the designated quarry.
Fact of the Case:
A contractor claimed additional conveyance charges due to the non-availability of stones from a government quarry, asserting that he had to source materials from a distant quarry to complete the work. He sought recovery of significant expenses related to this situation.
Finding of the Court:
The court found that the contractor was justified in procuring stones from an alternative source due to the unavailability of materials as stipulated in the contract. Moreover, the court upheld the calculations provided by an expert commissioner regarding the quantification of additional charges.
Issues: The primary issue revolved around the entitlement of the contractor to additional conveyance charges for materials sourced from a distant quarry, considering the circumstances leading to the scarcity of materials in the designated quarry.
Ratio Decidendi: The court emphasized that the conditions of the contract did not restrict the contractor from seeking alternative sources for materials when faced with a material shortage, thus justifying additional conveyance charges.
Final Decision: The plaintiff is awarded a total of `35,52,833/- with specific interest rates and costs.
JUDGMENT
Ramakrishna Pillai, J.
Under challenge in these appeals are the judgment and decree dated
31.3.2003 passed by the Principal Sub Court, Thiruvananthapuram, in O.S No.538 of 1995. R.F.A No.373 of 2003 is by the plaintiff and R.F.A No.254 of 2004 is by the State of Kerala and the Superintending Engineer, Irrigation, who are the defendants in the original suit.
2. Briefly put, the facts of the case are as follows:
The plaintiff was a contractor for supply of stones for the work as per agreement dated 28.11.1999, on the basis of Ext.A1 selection notice. The work mainly consisted of supplying and making seawall with armour stones of 200 dm3 size, core stones of 45 dm3 size and soiling stones of 20 to 40 dm3 size for filling the voids. The estimate approved by the second defendant was prepared on the basis that the stones could be obtained from Vattappara Government quarry near Kovalam, which is within the initial lorry lead of 5 KMS, acquired in 1970 by the Department of Irrigation, for supply of armour, core and soiling stones required for the ASE work mainly at Poonthura and Panatharakkara coast coming under Irrigation Division, Thiruvananthapuram. The second defendant tendered the work based on these parametres and the plaintiff had quoted his minimum rates expecting that the various sizes of stones would be available for the work, within 5 KMS initial lead.
According to the plaintiff, after executing the agreement, he immediately took over the site and started the work. The plaintiff would allege that the second defendant had arranged many original and maintenance ASE works at this time for which, Vattappara quarry was assigned as the source for supply of these armour, core and soiling stones, which had resulted in shortage of these work stones in the said quarry.
The plaintiff would further allege that adding to this, there was frequent labour troubles also in the quarry which further aggravated the non-availability of the stones, and as such the plaintiff had informed the department, the selection of the quarry at Parippally and to satisfy about the quality of stones and approve the same. Thus, he started conveying the stones from Parippally so as to complete the work in time, which the department had accepted without raising any objections; it is alleged. He would also allege that the work originally scheduled to be completed by 2.2.1992 was extended till 25.5.1993 on valid grounds and by that time, the work was completed. According to the plaintiff, the peak working season of ASE works in a year is from November to May and he could generate only a meagre quantity of armour and core stones from Vattappara quarry. Therefore, the plaintiff would allege that he has incurred the following total expenditure by way of additional conveyance charges and seigniorage, in respect of stones brought from Parippally:
| Description of stone | Additional Rate /m3 | Quantity brought from Paripally | Additional amount due by way of additional conveyance charges | |
| i. | a) Soiling stones b) 45 dm3 stones (core stones) c) 200 dm3 stones (armour stones) | `494.08 `494.08 `70.81/Each | 1811 m3 6635 m3 38213 Nos. | `894779.00 `3278221.00 `2705862.00 ---------------------- `6878862.00 |
| ii. Seigniorage charge as per approved schedule rate 16088.6 x 0.90/m3 `14480.00 |
3. The defendants, who are the appellants in R.F.A No.254 of 2004 resisted the suit and contended that the plaintiff accepted the measurement of all the items of work recorded by the department and received a final payment due to him in respect of the work without raising any kind of protest. They would contend that the Government by order dated 30.9.1993 allowed 60% of the rate allowable to him as additional conveyance charges as special case and, therefore, there is a full
