K.T. SANKARAN,J.
The defendants in O.S.No.130/1997 on the file of the Court of Additional Subordinate Judge, Alappuzha are the appellants. The suit was filed by the respondent for realisation of a sum of 3,54,695/- together with future interest at 18% per annum from the defendants. The plaintiff also prayed for a decree of permanent injunction against the defendants restraining them from taking any steps against the plaintiff for realising any amount as per the agreement executed between the plaintiff and the defendants.
2. The plaintiff is a Government contractor. The 2nd A.S.No.651/2000 2 defendant invited tenders for the work "collection of toll at Nedumudi-Pallathuruthy bridges in Alappuzha- Changanassery Road" for the period from 1.4.1994 to 31.3.1995. The plaintiff was a successful bidder and he was granted licence to collect the toll for a period from 10.6.1994 to 31.3.1995. An agreement was executed between the parties. As per the agreement, the plaintiff was liable to pay to the State a sum of 5,13,219/- in 20 instalments. A security deposit of 62,000/- was made by the plaintiff as per the agreement. The plaintiff was entitled to collect 50 paise for two wheelers, 3 for light motor vehicles and 10 for heavy vehicles passing through the toll gate. Due to heavy monsoon and flood, the embankment and western approach road of Pallathuruty bridge was damaged. The 3rd defendant banned vehicular traffic through the bridge as per order dated 5.8.1994. The ban was subsequently lifted partially allowing traffic A.S.No.651/2000 3 for light vehicles as per the order dated 12.8.1994. No vehicular traffic was allowed through the toll gate for the period from 5.8.1994 to 12.8.1994. Thereafter only light vehicles were allowed to pass through the bridge. The entry of heavy vehicles with load through the bridge was not allowed from 5.8.1994 onwards.
3. According to the plaintiff, the toll collection was reduced to 25% of the collection which made it impossible for him to remit the balance instalments. Though the 2nd defendant duly informed about and prayed for exempting the plaintiff from remitting the amount, it did not evoke any response. The plaintiff contended that the contract was frustrated, as a result of ban of vehicles. It was also contended that there was a breach of contract and the plaintiff was discharged from his obligation of remitting the instalments. The plaintiff estimated his loss at 75% of PAC, i.e., at 3,84,914/-. According to the plaintiff, he A.S.No.651/2000 4 was liable to remit only 1,28,305/-. However, the plaintiff was compelled to remit a sum of 3,08,350/- when a threat was made for taking coercive steps against the plaintiff. Thus the plaintiff claimed that there was an excess remittance of 1,80,045/-. The security deposit of 62,000/- was also liable to be released to the plaintiff. Though a notice under Section 80 of the Code of Civil Procedure was issued to the defendants, no reply was sent by them.
4. The defendants contended that as per the traffic census conducted at the toll gate for the past few years, the total percentage of heavy vehicles passing through the toll gate was estimated at 16 to 26 percentage only. The traffic through Pallathuruthy bridge was restricted in three phases, namely, total ban on 5.8.1994, which was lifted allowing cars and two wheelers and three wheelers to ply though the bridge from 12.8.1994 onwards A.S.No.651/2000 5 and thirdly, restriction for taking loaded lorries. However, lorries carrying Civil Supplies ration articles were permitted as a special case. The restrictions imposed were not deliberate but it was due to circumstances which compelled imposition of the ban. There is no provision in the agreement to exempt the licencee from remitting the instalments partially or fully. Before the defendants could take any steps, the suit was filed. It was also contended that for a period of one year after the period of contract in question, the plaintiff had bid for the same contract for a sum of 8,10,953/-. According to the defendant, they are entitled to get a sum of 2,32,815/- together with interest and fine as per t he conditions of the agreement.
5. Before the Court below, the plaintiff was examined as PW1 and Exts.A1 to A5 series were marked. DW1 was examined on behalf of the defendants and ExtsB1 and B2 were marked.
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6. The Court below held that there was no fault on the part of the plaintiff and he could not collect the toll fee fully only because of the ban imposed by the defendants. Taking into account the admission in paragraph 2 of the written statement with respect to the data regarding percentage of vehicles passing through the bridge, the Court below held that 20% of the traffic could be taken as the traffic in respect of the heavy vehicles with load. Based on that criterion, the computation was made and it was held that the plaintiff was liable to pay a sum of 2,26,553/-. It was held that the plaintiff had already deposited 3,08,350/-. Thus the Court below held that there was excess payment of 81,797/- by the plaintiff, as against the claim made by the plaintiff at 1,80,045/-. The Court below also held that the plaintiff was entitled to get back the deposit of 62,000/-. Thus it was held that the plaintiff was entitled to realise a sum of A.S.No.651/2000 7 1,43,797/- For the security deposit of 62,000/- the interest at the rate of 12% was awarded from 1.4.1995 till realisation. In respect of the excess payment of 81,797/-, the interest was awarded only at 6% per annum from the date of decree till realisation.
7. Heard the learned Government Pleader and the learned counsel for the respondent-plaintiff. We have also perused the documentary and oral evidence in the case. As already held by the Court below, the plaintiff was disabled from collecting the entire toll fee for the period of contract. He was incapacitated from doing so not because of any fault on his part but because of the circumstances which led to the ban of the traffic absolutely for a certain period and partially for the rest of the period. On the basis of the materials produced by the defendants, the Court below arrived at the conclusion that the share of traffic of heavy vehicles with load could be taken as 20%. A.S.No.651/2000 8 This assessment was just and reasonable. Based on such assessment, the Court below computed the loss sustained by the plaintiff and held that he is entitled to get refund of the excess amount paid by him. It was also rightly held that the plaintiff was entitled to get refund of the security deposit. The interest awarded is also just and reasonable. Though interest was claimed at 18% per annum, the interest was awarded only at 12% for the security amount.. With respect to the excess amount paid by the plaintiff, future interest was awarded only at 6% per annum. No interest was awarded for the period from the payment of excess amount to the date of suit on such excess payment. The transaction being a commercial transaction, it cannot be said that the award of interest at 12% on the security deposit was illegal or unjustifiable. The findings rendered by the Court below are legal and proper. We do not find any ground to interfere with the A.S.No.651/2000 9 well considered judgment of the Court below.
For the aforesaid reasons, the appeal is dismissed. However, no order as to costs.
K.T. SANKARAN, JUDGE.
P.D. RAJAN, JUDGE.
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