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CASE NO.:

Appeal (civil) 7333 of 2004

PETITIONER:

State of Kerala & Anr

RESPONDENT:

M.A. Mathai

DATE OF JUDGMENT: 09/04/2007

BENCH:

Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT:

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

Challenge in this appeal is to the judgment rendered by a

Division Bench of the Kerala High Court dismissing the appeal

filed by the appellant-State and its functionary questioning

legality of the judgment and decree in O.S. No.859 of 1988 on

the file of the Sub Court, Trichur. The suit was filed for

recovery of money in connection with the award of work

undertaken by the respondent-plaintiff who is the contractor.

The High Court was of the view that the court below had

fixed award of damage of Rs.9,53,669/- and found that the

plaintiff was entitled to damage under other head and,

therefore, restricted the decretal amount to Rs.10,00,000/-

The appeal was accordingly dismissed.

In support of the appeal learned counsel for the appellant

submitted that the letters on which reliance had been placed

show that the contractor was not doing the work within

stipulated period and had been asked for to apply for

extension. The basic stand of the plaintiff\026respondent was

that the extensions had been sought for and supplemental

agreements were executed not on the free will and free consent

of the plaintiff but it was due to circumstances which

prevailed at that time which necessitated the plaintiff to agree

to the commands of the defendants. To put it differently as

noted above the plaintiff had contented that it was due to

coercion that these supplemental agreements were executed.

The trial court concluded that on the threat of forfeiture, re-

allocation and re-arrangement at the cost of the plaintiff the

execution of supplemental agreement was done. It is pointed

out that there was no clause for any escalation. It was wrongly

assumed by the trial court that the supplemental agreements

and declarations made by the plaintiff were not binding on

him as it was not obtained by free consent and free will and in

the normal course of events.

In response, learned counsel for the respondent

submitted that the amounts awarded were not for damages

and it was only in respect of extra work done that the amounts

has been awarded. It was submitted that the department itself

had recommended for payment for the extra work done and as

per rates under the contracts the amounts have been

awarded. Though the Government did not agree to the

proposal, that itself shows about the genuineness of the

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respondent’s claim. In respect of another contract the extra

amounts have been paid.

The trial court and the High Court appear to have been

totally confused about the nature of the suit. The plaint itself

indicated that it was a "suit for recovery of money for

damages". In fact the High Court itself observed at para 8 that

the primary issue related to assessment of damages. It also

found that the plaintiff was entitled to damages under various

heads.

Additionally, the trial court concluded that the

supplemental agreements (Ex. B-2 to Ex. B-6) and

Declarations (B-10 to B-14) were not at all binding on the

plaintiff. If that was really so, there could not have been any

extension. The finding that these documents were not

obtained by free will and free consent and in the normal

course of events, to say the least, is an inferential conclusion

not supported by any evidence.

As noted above, the trial court proceeded on the basis as

to whether plaintiff was entitled to damages and if so what is

the amount and quantum is to be fixed. It was noted that

being a suit for damages, the plaintiff was claiming so many

items of damages in terms of money involving many

calculations. This is contrary to respondent’s plea before us.

Their stand is that the amount was not for damages