R.V.RAVEENDRAN, J. - (1.) THIS is a plaintiff's appeal against the common judgment and decree dated 12-11-2002 of the High Court of Kerala in Appeal Suit No.481/1992 filed by the defendants, and Appeal Suit No. 697/1991 tiled by the plaintiff both against the judgment and decree dated 16-2-1991 in O.S. No.24/1990 on the file of the Subordinate Court, Muvattupuzha.
(2.) THE plaint averments, in brief, were as follows : (1) THE second respondent (THE Superintending Engineer, PWD, Central Circle, Alwaye, Kerala) invited tenders for execution of a construction work (Improvements to Thalakkad to Mularinad Road). THE appellant's offer was accepted and an agreement dated 7-6-1982 was executed between the State of Kerala as the employer (represented by second respondent), and the appellant as the contractor. THE estimated cost of the work was Rs. 11,28,595/- and the security deposit payable by the appellant was Rs.22,600/-. THE contract required the work to be completed within 18 months from the date of handing over of the site. As the site was formally handed over on 17-8-1982, the work had to be completed on or before 16-2-1984. According to the appellant, on account of delays, defaults and breaches committed by the Department, he could not complete the work. (2) THE appellant submitted an on account bill for Rs. 5,36,800/- on 25-8-1984. It was not paid. In spite of the delay in payment and other breaches by the department, the Appellant proceeded with the work and completed substantial portion of the work. He also sent various letters seeking payment. THE Executive Engineer by letters dated 4-7-1985 and 18-10-1985 informed the Chief Engineer (BandR) that the appellant had executed work worth about Rs. 10 lacs and the delay in payment was affecting the progress of the work. In spite of it, the payment was delayed and ultimately Rs.4,04,628/- was belatedly released on 26-3-1986 after making certain deductions (that is 10% towards errors in measurement, Rs.40,463/- as retention amount etc.). No further payments were made by the Department. (3) THE appellant alleged the following breaches by the respondents :- (i) Delay in issuing cement and steel required for the work which was the Department's responsibility (delay of 16 months in issuing cement and delay of 26 months in issuing steel); (ii) Default in releasing further cement and MS rods thereby preventing him from completing the work (two bridges); (iii) Failure to finalise the formation level of the road, thereby preventing him from metalling the road (delay in approving initial levels tentatively being 9 months); (iv) Delay in making on account payments for the work done as required by the contract terms (delay of 19 months in releasing the payment towards first part of bill); (v) Requiring him to do more than 25% in excess of the agreed quantities in regard to certain items of work; THE appellant contended that in view of the expiry of the contract period as also the extended period and the breaches committed by the Department preventing him from completing the work within the extended period, he was not liable to execute the balance work and that the Department cannot foist any liability on him in regard to any extra cost in getting the balance work completed through another agency. (4) THE appellant filed O.S. No.691/1987 on the file of the Sub- ordinate Judge, Ernakulam (later transferred and renumbered as O.S. No.24/1990 on the file of Sub-Judge, Moovattupuzha) against the respondents, for the following reliefs : (i) For recovery of Rs. 2 lacs towards the amount due for work done, with interest at 18% per annum. (THE appellant also claimed proper accounting and prayed that if the amount due for the work done was in excess of Rs.2 lacs estimated by him, he may be permitted to pay additional court fee in regard to the actual amount found due); (ii) For recovery of Rs. 1,000/- as damages and breach of contract with interest at 18% per annum thereon; (iii) For a declaration that he was not liable to execute the remaining part of the work and that the completion of the remaining work shall not be at his risk and cost, and for a consequential direction to refund the entire security deposit and retention money with interest at 18% per annum; (iv) For costs and such other reliefs as the court may deem fit to grant in the circumstances of the case. The appellant valued the suit, for the purposes of court fee, as follows, under the Kerala Court Fees and Suits Valuation Act, 1959 ('CF Act' for short) and paid court fee accordingly :- JUDGEMENT_265_AIR(SCW)_2006Html1.htm The suit was resisted by the State, inter alia, on the ground that there was no breach on its part. It was alleged that the work consisted of (a) cross drainage works, (b) Earth-work for forming the roadway, (c) protective works and (d) supply of materials like stone, metal etc. The respondents stated that cement was issued on 9-11-1983 when the appellant made arrangements for cross drainage works. It was also alleged that a part of steel rods were issued on 26-10-1984 and balance as and when the work progressed. It was contended that major items of work (like earthwork for road formation, supply of stone/metal for soling and metalling work) did not involve cement and steel and nothing prevented the appellant from proceeding with those works pending issue of cement and steel. It was also alleged that any delay in supply of materials by the Department would entitle the appellant only to extension of time and not to any extra payment. It was alleged that time was extended from 16-8-1984 to 31-3-1985 and again up to 31-12-1985 with fine of Rs. 100/- and the appellant did not complete the work in spite of such extensions and in spite of final notice dated 11-11-1986. The respondents contended that they would get the unfinished work completed at the risk and cost of the appellant and recover any extra cost in completing the work as also the cost of unreturned material from the security and retention amounts and other amounts due to the appellant.
(3.) DURING the pendency of the suit, the Department passed an order dated 31-5-1989 terminating the contract at the risk and cost of the appellant and ordering forfeiture of the security deposit amount of Rs. 22,600/-. The trial court framed the following issues : "1. Whether the defendants committed breach of contractual obligation and if so, what is the amount due to the plaintiff as damages for breach of contractual obligations ? 2. Whether the plaintiff is entitled to get the value of the work done and, if so, what is the amount due to him ? 3. Whether the plaintiff is entitled for a declaration that the balance work shall not be arranged at the risk and costs of the plaintiff and consequently directing the defendants to release security deposit and retention amount ? 4. Whether the plaintiff is entitled to get 18% interest per annum on the amount due to him from the date of the suit 16-7-1987 till the date of realization. 5. Cost and other reliefs." ;