Disposed

M/S.Vallikatt Constructions v. the Kerala State Electricity Board

Kerala HC2 Sept 2013WP(C)/4482/2013

Case brief

AI extract

What is this about?

A writ petition challenging coercive steps and potential encashment of a bank guarantee by the Kerala State Electricity Board. The petitioner sought a stay pending adjudication of disputed supplies and liabilities. The court did not go into merits as the respondent stated it would allow a hearing before finalizing liability.

What did the court decide?

No coercive steps to be pursued until the petitioner is given an opportunity to substantiate facts and figures for finalization of the matter.

M/S.Vallikatt Constructions Vs the Kerala… — 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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MONDAY, THE 2ND DAY OF SEPTEMBER 2013/11TH BHADRA, 1935

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WP(C).No. 4482 of 2013 (I)

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PETITIONER :

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M/S. VALLIKKAT CONSTRUCTIONS, THEKKUMBAGOM P.O., THODUPUZHA-685 585, REPRESENTED BY ITS PROPRIETOR, JUSTIN JOSEPH.

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BY SRI.K.L.VARGHESE,SENIOR ADVOCATE ADVS. SMT.SANTHA VARGHESE SRI.RAHUL VARGHESE SRI.RANJITH VARGHESE

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RESPONDENT(S):

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1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY THE SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN- 695 004.

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2. THE CHIEF ENGINEER (SCM) KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695 004.

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3. THE CHIEF ENGINEER (DISTRIBUTION-CENTRAL), KERALA STATE ELECTRICITY BOARD, ERNAKULAM-682 016

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4. THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, KERALA STATE ELECTRICITY BOARD, THODUPUZHA.

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5. THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, KERALA STATE ELECTRICITY BOARD, ERNAKULAM-682 016.

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BY ADV.SRI.SAJEEVKUMAR K.GOPAL,SC,KSEB SRI.T.R.RAJAN,SC,K.S.E.B.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C)NO.4482/2013

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1 COPY OF THE PURCHASE ORDER DATED 23/04/2005

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P2 COPY OF THE PURCHASE ORDER DATED 20/05/2005

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P3 COPY OF THE LETTER DATED 06/07/2007 ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT

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P4 COPY OF THE LETTER DATED 31/01/2006 ISSUED BY THE PETITIONER TO THE RESPONDENT.

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P5 COPY OF THE LETTER DATED 07/08/2006 ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT.

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P6 COPY OF THE LETTER DATED 07/08/2006 ISSUED BY THE PETITIONER TO THE RESPONDENT.

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P7 COPY OF THE LETTER DATED 16/10/2006 ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT.

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P8 COPY OF THE LETTER DATED 01/12/2006 ISSUED BY THE PETITIONER TO THE RESPONDENT.

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P9 COPY OF THE LETTER DATED 30/04/2007 ISSUED BY THE PETITIONER TO THE RESPONDENT.

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P10 COPY OF THE LETTER DATED 26/06/2007 ISSUED BY THE PETITIONER TO THE RESPONDENT

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P11 COPY OF THE LETTER DATED 20/08/2007 ISSUED BY THE PETITIONER TO THE RESPONDENT.

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P12 COPY OF THE LETTER DATED 28/06/2008 ISSUED BY THE PETITIONER TO THE RESPONDENT.

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P13 COPY OF THE LAWYER NOTICE DATED 27/06/2007 ISSUED BY PETITIONER'S ADVOCATES TO THE 1ST RESPONDENT.

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P14 COPY OF THE NOTICE DATED 3/8/2012 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

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*CORRECTED AS EXT.P14 DATED 3/8/2012 AS PER ORDER DATED 27/2/13 IN IA.NO.2970/2013.

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P14A COPY OF THE LETTER DATED 2/5/2012 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

2/-

sts

-2-

WP(C)NO.4482/2013

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P15 COPY OF THE LAWYER NOTICE DATED 17/08/2012 ISSUED BY PETITIONER'S ADVOCATES TO THE 2ND RESPONDENT

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ADDL.EXT.P16 COPY OF THE LETTER DATED 20/09/2007 ISSUED BY THE CHIEF ENGINEER (T,C&M) TO THE DEPUTY CHIEF ENGINEER WITH COPY OF THE PETITIONER.

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ADDL.EXT.P17 COPY OF THE CAG'S REPORT UNDER CHAPTER II.

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RESPONDENT'S EXHIBITS:

NIL

/TRUE COPY/

P.A.TO.JUDGE

sts

P.R. RAMACHANDRA MENON J.

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W.P.(C) No. 4482 of 2013

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Dated, this the 2^nd day of September, 2013

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JUDGMENT

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The rights and liberties arising out of a contract, forms the subject matter of this Writ Petition.

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The petitioner has approached this Court with the following prayers :

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“(i) Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the Respondents not to proceed any coercive step including encashment of Bank Guarantee or recovery of any amount without proper consideration of Petitioner's grievance as set out in Ext. P15 as per law in the light of the decisions set out in para 10 therein and reiterated in para 13 and Ground (C) of the Memorandum of Writ Petition.

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(ii) Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to coercive steps to be initiated against the petitioner without proper adjudication, in the facts and circumstances of the case and quash the same.

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(iii) Grant an order of stay of coercive steps, if any already initiated by the Respondents against the Petition for realization of any amount from the petitioner without

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W.P.(C) No. 4482 of 2013

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: 2 :

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proper adjudication of the disputed issued between the parties set out herein above.

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(iv) Grant costs of the petitioner and such other reliefs as are prayed for deemed fit to be granted in the circumstances of the case.

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The learned counsel appearing for the petitioner submits

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that the petitioner was discharging the duty arising out of Exts. P1 and P2 purchase orders. The alleged default was occurred only due to the lapse on the part of the respondent in honouring the commitment by procuring the finished materials from the petitioner on time, making the petitioner to take a decision to divert the supply of materials to other approved Circles as well, so as to meet the requirements and to keep the unit running. The stand of the petitioner is sought to be rebutted from the part of the respondents. It is stated that, by virtue of the relevant terms of the contract, it was obligatory for the petitioner to satisfy the requisite extent of material and it was clearly stipulated that the requirement of the department might vary from time to time, which in turn had to be satisfied, as and when the requisite extent was sought to be supplied. There is total failure on the part of the petitioner in this regard and hence the proceedings.

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W.P.(C) No. 4482 of 2013

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: 3 :

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The apprehension of the petitioner with regard to the 'unilateral' fixation of the liability and the steps being taken in this regard has been answered by the respondents by filing a statement, particularly to the effect that the matter will be finalized only after giving an opportunity of hearing to the petitioner and that no coercive proceedings will be taken against the petitioner before finalization of matter. Paragraphs 17 to 19 of the said statement are relevant, which hence are extracted below :

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“17. The risk and cost amount has not been finalized by the Board. The same will be finalized only after hearing the petitioner. As the first step, the petitioner was directed vide letter dated 03.08.2012 of the Chief Engineer (SCM) to show cause as to why action should not be taken to recover the risk and cost amount on account of non supply of poles by the contractor.

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The Bank Guarantee for Rs. 25 lakh furnished by the petitioner can be released only after the settlement of accounts of the contract. Only an amount of Rs. 17974/is retained by the Board as retention amount.

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The recovery proceedings will not be initiated by the Kerala State Electricity Board, before finalizing the liability of the Petitioner. The liabilities of the Petitioner will be finalized only after hearing the petitioner and

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W.P.(C) No. 4482 of 2013

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: 4 :

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putting him to notice. The allegations made by the petitioner are unfounded.

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After hearing both the sides and in view of the stand

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taken by respondents Board, this Court does not find it necessary to go into the facts and figures or to adjudicate the issue on merits. The Writ Petition is disposed of, making it clear that petitioner shall be given an opportunity to substantiate facts and figures before finalization of the matter and that no coercive steps shall be pursued against the petitioner till then. All issues raised in this writ petition, both factual and legal, are left open.

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The Writ Petition is disposed of.

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Sd/-

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P. R. RAMACHANDRA MENON,

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(JUDGE)

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kmd

M/S.Vallikatt Constructions v. the Kerala State Electricity Board

Case brief

What is this about?

What did the court decide?

M/S.Vallikatt Constructions v. the Kerala State Electricity Board

Case brief

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