Allowed

M/S.N.J.Thomas and Co. v. Union of India

Kerala HC11 Nov 2014WP(C)/852/2014

Case brief

AI extract

What is this about?

Petitioner contractor challenged work stoppage due to delay in payment deposit. Court directed respondents to foreclose contract without risk and costs within four weeks and release retention amount and return bank guarantee within one month.

What did the court decide?

Direction to foreclose work without risk and costs within four weeks, release retention amount, and return original bank guarantee within one month.

M/S.N.J.Thomas and Co. Vs Union of India — Public Procurement and Tenders | Kerala HC (2014)

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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 A.MUHAMED MUSTAQUE

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TUESDAY, THE 11TH DAY OF NOVEMBER 2014/20TH KARTHIKA, 1936

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WP(C).No. 852 of 2014 (F)

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PETITIONER :

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M/S. N.J.THOMAS & CO., MATTEETHARA COLONY, Y.W.C.A.LANE, BAKER JUNCTION, KOTTAYAM-686 001, REPRESENTED BY THE MANAGING PARTNER, SIBY THOMAS.

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BY SRI.K.L.VARGHESE,SENIOR ADVOCATE ADV.SRI.RANJITH VARGHESE

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RESPONDENT(S):

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1. THE UNION OF INDIA, REPRESENTED BY THE EXECUTIVE ENGINEER, KOTTAYAM CENTRAL DIVISION, CENTRAL PUBLIC WORKS DEPARTMENT,

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PUBLIC LIBRARY BUILDING, KOTTAYAM-686 001.

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2. THE SUPERINTENDING ENGINEER, TRIVANDRUM CENTRAL CIRCLE, CENTRAL PUBLIC WORKS DEPARTMENT, CGO COMPLEX, POONKULAM, TRIVANDRUM-695 522.

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*ADDL.R3 IMPLEADED

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*ADDL.R3: THE CHIEF ENGINEER/SZ V, CENTRAL PUBLIC WORKS DEPARTMENT, OFFICE OF THE CHIEF ENGINEER(SZ) V, CGO COMPLEX, POONKULAM, TRIVANDRUM-695 522.

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*ADDL.R3 IS IMPLEADED AS PER ORDER DATED 11/11/2014 IN IA.NO.15352/14

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R1 & R2 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C).No. 852 of 2014 (F)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P1 -	TRUE COPY OF THE LETTER OF AWARD OF WORK DT. 2-5-2011 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.
EXT.P2 -	TRUE COPY OF LETTER DT. 17-5-2011 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT.
EXT.P3 -	TRUE COPY OF LETTER DT. 3-6-2011 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT.
EXT.P4 -	TRUE COPY OF LETTER DT. 29-7-2011 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT.
EXT.P5 -	TRUE COPY OF LETTER DT. 24-11-2011 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT.
EXT.P6 -	TRUE COPY OF LETTER DT. 20-12-2011 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT.
EXT.P7 -	TRUE COPY OF LETTER DT. 8-3-2012 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT.
EXT.P8 -	TRUE COPY OF LETTER DT. 30-4-2012 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT.
EXT.P9 -	TRUE COPY OF LETTER DT. 10-5-2012 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT.
EXT.P10 -	TRUE COPY OF LETTER DT. 6-8-2012 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT.
EXT.P11 -	TRUE COPY OF LETTER DT. 24-9-2012 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT.
EXT.P12 -	TRUE COPY OF LETTER DT. 7-6-2013 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT.
EXT.P13 -	TRUE COPY OF LETTER DT. 19-8-2013 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT.
EXT.P14 -	TRUE COPYOF LETTER DT. 20-8-2013 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.
EXT.P15 -	TRUE COPY OF LETER DT. 27-8-2013 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT.
EXT.P16(A) -	TRUE COPY OF THE APPLICATION SUBMTITTED UNDER THE RIGHT TO INFORMATION ACT DT. 5-12-2013. 2/-

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-2-

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WP(C).NO.852/2014

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EXT.P16(B) - TRUE COPY OF THE COVERING LETTER DT. 13-12-2013 OF THE CENTRAL PUBLIC INFORMATION OFFICER

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EXT.P16(C) - TRUE COPY OF LETTER DT. 22-6-2013 ISSUED BY THE EXECUTIVE ENGINEER

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EXT.P17 - TRUE COPY OF THE APPLICATION DT. 13-08-2013 SUBMITTED BY THE STAFF OF THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT.

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EXT.P18 - TRUE COPY OF THE REPLY OF EXT.P17 ISSUED BY THE CENTRAL PUBLIC INFORMATION OFFICER.

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ADDL.EXT.P19- TRUE COPY OF THE LETTER DATED 13/02/2014 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.

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ADDL.EXT.P20- TRUE COPY OF THE REPLY LETTER DATED 22/02/2014 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT.

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ADDL.EXT.P21- TRUE COPY OF THE LETTER DATED 24/09/2014 ISSUED BY THE CHIEF ENGINEER/SZ V TO THE COMMISSIONER, KENDRIYA VIDYALAYA SANGATHAN.

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ADDL.EXT.P22- TRUE COPY OF THE TENDER NOTIFICATION DATED 10/10/2014

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RESPONDENT(S)' EXHIBITS

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EXT.R1(A)-	TRUE COPY OF THE LETTER DATED 07/08/2013
EXT.R1(B)-	TRUE COPY OF THE LETTER DATED 14/08/2013
EXT.R1(C)-	TRUE COPY OF THE VOUCHER NO.46 DATED 25/11/2011
EXT.R1(D)-	TRUE COPY OF THE LETTER DATED 27/12/2011
EXT.R1(E)-	TRUE COPY OF THE LETTER DATED 27/12/2013.
EXT.R1(F)-	TRUE COPY OF THE FORM 65A FOR THE MONTH OF JANUARY 2014.
EXT.R1(G)-	TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN O.P.(CIVIL) NO.2695 OF 2012 DATED 11/03/2013.

/TRUE COPY/

P.A.TO.JUDGE

sts

A.MUHAMED MUSTAQUE, J.

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*****************************************************

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W.P.(C) No.852 of 2014

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*****************************************************

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Dated this the 11^th day of November, 2014

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JUDGMENT

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The petitioner has undertaken a work for construction of a building for Kendriya Vidyalaya at Kottayam. The above work was originally awarded to one Sri.T.M.Joseph. Sri.T.M.

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Joseph expired on 18.10.2010 and the contract was closed. Fresh tenders were invited for executing balance work. The balance work was awarded to the petitioner on May, 2011.

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However, due to non-receipt of sufficient deposit from Kendriya Vidyalaya for payment to the petitioner, work has been stopped. The petitioner made a request to pay the enhanced rate or foreclose the contract. It appears that several negotiations between the petitioner and authorities were held and nothing could not be materialised. As per the

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proceedings dated 24.9.2012, the additional third respondent

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W.P.(C) No.852 of 2014 2

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had made a recommendation to foreclose the contract without risk and costs and get the balance work completed through a separate contract. The petitioner submitted that by Ext.P22, fresh tender has been invited. However, it appears that there were no tenderers to execute the work.

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In the matter, a counter affidavit has been filed by the Executive Engineer. It is stated in the counter affidavit that there is an arbitration clause in the contract and the dispute espoused by the petitioner is covered by the arbitration agreement. It is further stated that there is no delay on effecting payments to the petitioner.

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The petitioner relies on Ext.P16(c) and submits that there is a considerable delay in effecting payment. The petitioner points out that recommendations were made for foreclosure of the contract. The petitioner also relies on Ext.P21, the recommendation made by the additional third

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W.P.(C) No.852 of 2014 3

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respondent to the Commissioner of Kendriya Vidyalaya. The petitioner further submits that there is no dispute as the respondents have accepted the reasons for foreclosure of the contract by the petitioner.

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The disputes, if any, between the parties of course could be referred to arbitration, if so warranted. The petitioner submits that they have justified in foreclosing the contract. They rely on Exts.P16 and P21.

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On going through Exts.P16 and P21, I am of the view that the petitioner cannot be found fault with, for not continuing the work. The reasons as spelt out from Ext.P16 and P21 itself would justify the action on the part of the petitioner. Therefore, there cannot be any difficulty in directing the respondents to terminate the work without risk and costs.

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Accordingly, there shall be a direction to the second respondent and the additional third respondent to foreclose

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W.P.(C) No.852 of 2014 4

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the work in the light of Exts.P16 and P21. Needful shall be done within a period of four weeks from the date of receipt of a copy of this judgment. Consequently, there shall be a direction to release any retention amount and also return the original bank guarantee furnished towards security, needful shall be done within a further period of one month. It is also open to the petitioner to raise any pending bill, if any, due to the petitioner.

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The writ petition is disposed of as above.

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Sd/- A.MUHAMED MUSTAQUE, JUDGE

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M/S.N.J.Thomas and Co. v. Union of India

Case brief

What is this about?

What did the court decide?

M/S.N.J.Thomas and Co. v. Union of India

Case brief

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