Disposed

Biju Prasad P. v. the Chief Gneral Manager, BSNL

Kerala HC21 Nov 2013WP(C)/13802/2013

Case brief

AI extract

What is this about?

In W.P(C).No. 13802 of 2013, the petitioner sought relief for non-payment of dues regarding completed cable laying works alleged to be withheld due to defects. The court found a disputed question of fact regarding defects and directed the first respondent to consider the petitioner's representation after a hearing within six weeks.

What did the court decide?

Direction to the first respondent to consider the petitioner's representation after a hearing and finalize proceedings for payment within six weeks.

Biju Prasad P. Vs the Chief Gneral Manager… — Contract and Commercial Disputes | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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THURSDAY, THE 21ST DAY OF NOVEMBER 2013/30TH KARTHIKA, 1935

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WP(C).No. 13802 of 2013 (A)

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PETITIONER : -

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BIJU PRASAD P., CABLE LAYING CONTRACTOR, VADAKKEVARAMBIL HOUSE(GOKULAM), KARUMOM.P.O., THIRUVANANTHAPURAM-695002.

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BY ADV. SRI.S.VISHNU

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RESPONDENTS : -

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THE CHIEF GNERAL MANAGER, BHARAT SANCHAR NIGAM LIMITED, KERALA CIRCLE, THIRUVANANTHAPURAM-695033.

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THE GENERAL MANAGER, KOLLAM TELECOM DISTRICT, BHARAT SANCHAR NIGAM LIMITED, VELLAYITTAMBALAM, KOLLAM-691012.

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THE ASSISTANT GENERAL MANAGER(CABLE PLANNING), OFFICE OF GENERAL MANAGER, BHARAT SANCHAR NIGAM LIMITED, KOLLAM SECONDARY SWITCHING AREA, VELLAYITTAMBALAM, KOLLAM-691012.

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THE DIVISIONAL ENGINEER(SUBURBAN), BSNL BHARAT SANCHAR NIGAM LIMITED, VELLAYITTAMBALAM, KOLLAM-691012.

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THE DIVISIONAL ENGINEER(CHATHANNUR), BHARAT SANCHAR NIGAM LIMITED, CHATHANNUR, KOLLAM, PIN-691572.

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R1-R5 BY ADV. SRI.K.KESAVANKUTTY, SC, BSNL BY SRI.MATHEWS K.PHILIP,SC, BSNL

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 13802 of 2013 (A)

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APPENDIX

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PETITIONER'S Exhibit P1 :	EXHIBITS :- TRUE COPY OF THE ORDER NO. N-4/TENDER/2003-04/120 DATED 5.6.2004 BY THE OFFICE OF THE 2^ndRESPONDENT.
Exhibit P2 :	TRUE COPY OF WORK ORDER No. WO/AMD/05-06/1 DATED 26.7.2005 ISSUED BY THE DIVISIONAL ENGINEER, BSNL.
Exhibit P2 (a) :	TRUE COPY OF THE BILL SUBMITTED BY THE PETITIONER FOR AN AMOUNT OF Rs. 52,490/- TO THE 3^rdRESPONDENT.
Exhibit P3 :	TRUE COPY OF WORK ORDER No. DE (S/U)/WO/04-05/06 DATED 6.9.2004 ISSUED BY THE DIVISIONAL ENGINEER, BSNL, KOLLAM.
Exhibit P3 (a) :	TRUE COPY OF THE BILL SUBMITTED BY THE PETITIONER FOR AN AMOUNT OF Rs.1,18,398/- TO THE 3^rdRESPONDENT.
Exhibit P4 :	TRUE COPY OF WORK ORDER No. WO/AMD/05-06/IA DATED 20.12.2005 ISSUED BY THE DIVISIONAL ENGINEER, BSNL, KOLLAM.
Exhibit P4(a) :	TRUE COPY OF THE BILL SUBMITED BY THE PETITIONER FOR AN AMOUNT OF Rs. 2,51,605/- TO THE 3^rdRESPONDENT.
Exhibit P5 :	TRUE COPY OF WORK ORDER No. WO/AMD/05-06/2A DATED 4.1.2006 ISSUED BY THE DIVISIONAL ENGINEER, BSNL, KOLLAM.
Exhibit P5(a) :	TRUE COPY OF THE BILL SUBMITTED BY THE PETITIONER FOR AN AMOUNT OF Rs. 2,26,918/- TO THE 3^rdRESPONDENT.
Exhibit P6 :	TRUE COPY OF WORK ORDER No. W4/04-05/I DATED 1.7.2004 ISSUED BY THE DIVISIONAL ENGINEER, BSNL, KOLLAM.
Exhibit P6(a) :	TRUE COPY OF THE BILL SUBMITTED BY THE PETITIONER FOR AN AMOUNT OF Rs. 41,244/- TO THE 3^rdRESPONDENT.
Exhibit P7 :	TRUE COPY OF WORK ORDER No. DE(S/U)/W4-04-05/2 DATED 2.7.2004 ISSUED BY THE DIVISIONAL ENGINEER, BSNL, KOLLAM.
Exhibit P7 (a) :	TRUE COPY OF THE BILL SUBMITTED BY THE PETITIONER FOR AN AMOUNT OF Rs. 73,386/- TO THE 3^rdRESPONDENT.
Exhibit P8 :	TRUE COPY OF WORK ORDER No. KRDC/C-WORK ORDER/2004-2005/2 DATED 28.2.2005 ISSUED BY THE SUB DIVISIONAL ENGINEER, BSNL, KARIKODE.
Exhibit P8 (a) :	TRUE COPY OF THE BILL SUBMITTED BY THE PETITIONER FOR AN AMOUNT OF Rs. 1,49,752/- TO THE 3^rdRESPONDENT.
Exhibit P9 :	TRUE COPY OF WORK ORDER No. N4/04-05 DATED 28.4.2004 ISSUED BY THE SUB DIVISIONAL ENGINEER, BSNL, KARIKODE.
Exhibit P9(a) :	TRUE COPY OF THE BILL SUBMITTED BY THE PETITIONER FOR AN AMOUNT OF Rs. 1,77,394/- TO THE 3^rdRESPONDENT.
Exhibit P10 :	TRUE COPY OF THE ADVOCATE NOTICE DATED 13.5.2008 TO THE RESPONDENTS 3 AND 4.

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WP(C).No. 13802 of 2013 (A)

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-------------------- Exhibit P11 :	------------------ TRUE COPY OF REPRESENTATION DATED 13.5.2013 ADDRESSED TO THE 1^stRESPONDENT.
Exhibit P12 :	TRUE COPY OF THE ORDER No. DE (S/U)/WO/04-05/06 DATED 6.9.2004 ALONG WITH ACCEPTANCE TESTING REPORT OF THE DIVISIONAL ENGINEER.
Exhibit P13 :	TRUE COPY OF THE BILL FOR CABLE LAYING WORK AT ANCHALUMOODU TELEPHONE EXCHANGE AREA IN RESPECT OF WORK ORDER No. AMD/05-06/2A DATED 4.1.2006 ALONG WITH ACCEPTANCE TESTING REPORT OF THE DIVISIONAL ENGINEER.
Exhibit P14 :	TRUE COPY OF THE BILL FOR CABLE LAYING WORK AT ANCHALUMOODU TELEPHONE EXCHANGE AREA IN RESPECT OF WORK ORDER No. WO/AMD/05-06/1A DATED 20.12.2005 ALONG WITH ACCEPTANCE TESTING REPORT OF THE DIVISIONAL ENGINEER.
Exhibit P15 :	TRUE COPY OF THE BILL FOR CABLE LAYING WORK AT ANCHALUMOODU TELEPHONE EXCHANGE AREA IN RESPECT OF WORK ORDER No. WO/AMD/05-06/1 DATED 26.7.2005 ALONG WITH ACCEPTANCE TESTING REPORT OF THE DIVISIONAL ENGINEER.
Exhibit P16 :	TRUE COPY OF THE BILL FOR CABLE LAYING WORK AT KAVANADU TELEPHONE EXCHANGE AREA IN RESPECT OF WORK ORDER No. W4/04- 05/1 DATED 1.7.2004 ALONG WITH ACCEPTANCE TESTING REPORT OF THE DIVISIONAL ENGINEER.
Exhibit P17 :	TRUE COPY OF THE BILL FOR CABLE LAYING WORK AT KAVANADU TELEPHONE EXCHANGE AREA IN RESPECT OF WORK ORDER No. DE(S/U)/ W4/04-05/02 DATED 2.7.2004 ALONG WITH ACCEPTANCE TESTING REPORT OF THE DIVISIONAL ENGINEER.
Exhibit P18 :	TRUE COPY OF THE CLAUSE 8.2.6 OF THE BID DOCUMENT, TENDER FOR UNDERGROUND CABLE CONSTRUCTION WORK IN RESPECT OF WORK EXECUTED BY THE PETITIONER IN TRIVANDRUM SSA (RELEVANT PORTION).
RESPONDENT Exhibit R3(a) :	S'EXHIBITS : TRUE COPY OF INTIMATION DATED 6.6.2008 GIVEN BY RESPONDENTS TO THE PETITIONER.
Exhibit R3(b) :	TRUE COPY OF THE INTIMATION DATED 28.6.2008 GIVEN BY THE RESPONDENTS (3^rdRESPONDENT) TO THE PETITIONER.
Exhibit R3(c) :	TRUE COPY OF THE LETTER DATED NIL GIVEN BY THE PETITIONER TO 3^rdRESPONDENT.
Exhibit R3(d) :	TRUE COPY OF THE REPLY NOTICE DATED 21.6.2008 GIVEN TO Sri.VISHNU S. CHEMPAZHANTHIYIL, ADVOCATE FOR THE PETITIONER.
Exhibit R3(e) :	TRUE COPY INTIMATION DATED 17.7.2008 GIVEN BY THE 3^rd RESPONDENT TO THE PETITIONER. // TRUE COPY //

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DMR/-

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P.A. TO JUDGE

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P.R. RAMACHANDRA MENON,J.

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W.P (C) NO. 13802 of 2013

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Dated this the 21^st day of November, 2013

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JUDGMENT

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The grievance of the petitioner is with regard to non satisfaction of the due amount to the petitioner in respect

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of the work already completed by him (Cable Laying Works) under the respondents 4 and 5.

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The learned counsel for the petitioner submits

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that, there is an arbitrary exercise of power by the third respondent, whereby the proceedings have been caused to be stalled and every step is being taken to see that the petitioner does not get the amount due from the respondents. The learned counsel also submits that, the work assigned to the petitioner has already been completed to the satisfaction of all concerned, and only some part payment was released. Substantial amount is still due and the petitioner is made to run from pillar to post. The learned counsel further points out

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W.P (C) NO. 13802 of 2013 2

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that, the petitioner is also being made to suffer because of the coercive proceedings being taken by the financial institutions, particularly by some banks from whom much amounts were borrowed by the petitioner in connection with the work. This made the petitioner to approach this Court by filing the writ petition for appropriate reliefs, as Ext.P11 representation preferred by the petitioner pointing out the grievance before the first respondent has not evoked any positive response.

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The respondents have filed a counter affidavit dated 25.06.2013, followed by an additional counter affidavit dated 15.10.2013. The learned Standing Counsel for the BSNL submits that, the work was in relation to five different telephone exchanges and that the petitioner had submitted as many as 13 bills, all of which were found to be defective in various respects. The particulars of the defects noted have been given in the additional counter affidavit dated 15.10.2013 filed from the part of the respondents. The learned Standing Counsel points out that, if the petitioner cures all the defects pointed out, the bills will be processed and further steps will be taken to cause disbursement of the due amount. It is asserted that, there is no lapse or delay on the

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W.P (C) NO. 13802 of 2013

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part of the respondents, but for the lapse on the part of the petitioner to cure the defects.

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The learned counsel for the petitioner points out

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that, at no point of time the petitioner was told as to the existence of any defect and no notice whatsoever was issued. The petitioner came across the existence of such alleged defects only on filing the additional counter affidavit by the respondents. In any view of the matter, since the nature of the defects has already been disclosed as mentioned above, this Court does not find it necessary to probe in to any further question as to who was at fault and whether the defects were communicated earlier or not.

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After hearing both the sides, this Court finds there is a disputed question of fact, especially with regard to the alleged defects and the satisfaction of the same. It is brought to the notice of this Court that, the issue is pending consideration before the first respondent by way of Ext.P11 and as such, this Court finds it fit and proper to direct the first respondent to consider Ext.P11, after giving an opportunity of hearing to all concerned. It is ordered accordingly. The proceedings shall be finalized and the due amount shall be

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W.P (C) NO. 13802 of 2013

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disbursed to the petitioner on curing the defects, if any, within six weeks from the date of receipt of a copy of this judgment.

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The writ petition is disposed of.

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P.R. RAMACHANDRA MENON JUDGE

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DMR/-

Biju Prasad P. v. the Chief Gneral Manager, BSNL

Case brief

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Biju Prasad P. v. the Chief Gneral Manager, BSNL

Case brief

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