Allowed

Anish Zachariah v. Executive Engineer, PWD Roads and Bridges Division

Kerala HC26 Oct 2016WP(C)/12736/2016

Case brief

AI extract

What is this about?

The High Court directed the Public Works Department respondents to release outstanding dues to a licensed contractor, holding that defects raised during work execution were cured and no dispute existed at the time of completion.

What did the court decide?

The respondents shall release the amount due to the petitioner within two months from the date of receipt of this judgment unless any other dispute exists.

Anish Zachariah Vs Executive Engineer, PWD… — Contract and Commercial Disputes | Kerala HC (2016)

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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 SHAJI P.CHALY

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WEDNESDAY, THE 26TH DAY OF OCTOBER 2016/4TH KARTHIKA, 1938

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WP(C).No. 12736 of 2016 (N)

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PETITIONER(S):

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ANISH ZACHARIAH, KADAKKETHU HOUSE, RANNI P.O.

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BY ADVS.SRI.K.SASIKUMAR, SRI.S.ARAVIND, SRI.R.ROHITH, SRI.P.S.RAGHUKUMAR.

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RESPONDENT(S):

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1. EXECUTIVE ENGINEER, PWD ROADS AND BRIDGES DIVISION, PATHANAMTHITTA-689 645.

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2. THE ASSISTANT EXECUTIVE ENGINEER, PWD ROADS SUB DIVISION, RANNI-689 531.

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3. THE ASSISTANT ENGINEER, PWD ROAD SECTION, LAHA, PATHANAMTHITTA DISTRICT-689 646.

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BY SR. GOVT. PLEADER SMT.K.R. DEEPA.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 12736 of 2016 (N)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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P1. TRUE COPY OF THE LETTER OF ACCEPTANCE DATED 24/11/2014 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER

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P2. TRUE COPY OF THE LETTER OF ACCEPTANCE DATED 05/03/2015 ISSUED BY THE 1ST RESPONDENT.

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P2A COPY OF THE LETTER DATED 16/10/2014 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.

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P2B COPY OF THE RELEVANT PAGE OF M BOOK.

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P3. TRUE COPY OF THE CALCULATION SHEET PREPARED AT THE 1ST RESPONDENT'S OFFICE.

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P4. TRUE COPY OF THE RELEVANT PORTION OF THE CALCULATION SHEET PREPARED AT THE 1ST RESPONDENT.

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P5. TRUE COPY OF THE TEST REPORT DATED 23/02/2015 IN RESPECT OF EXT.P1. WORK.

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P6. TRUE COPY OF THE TEST REPORT DATED 23/02/2015 IN RESPECT OF EXT.P2. WORK.

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P7. TRUE COPY OF THE LETTER DATED 18/09/2015 FORWARDED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT.

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P8. TRUE COPY OF THE LETTER DATED 09/10/2015 FORWARDED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT WORK.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

SHAJI P. CHALY, J.

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W.P.(C)No.12736 of 2016

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Dated this the 26^th day of October, 2016

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J U D G M E N T

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Petitioner is a licenced A Class Contractor under the

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Public Works Department of the Government of Kerala. The grievance voiced by the petitioner in this writ petition is, in spite of the clearance given by the reports of test on bituminous mix in respect of two PWD works undertaken by the petitioner, respondents are not releasing the amounts. According to the petitioner, under Ext.P1 an amount of Rs.19,03,188/- and as per Ext.P2 an amount of Rs.22,03,434/-is due. As per Exts.P5 and P6 test results were obtained showing adequate quantity of bitumen used in the works and the same were forwarded to the 1^st respondent by Ext.P7 letter from the 2^nd respondent. The 1^st respondent thereafter conducted an inspection and became satisfied of the quality of work. In spite of all these efforts the amounts due to the petitioner is not paid. It is in this

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W.P.(C)No.12736 of 2016 2

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background seeking appropriate direction, this writ petition is filed.

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First respondent has filed a statement basically contenting that in respect of two works executed by the petitioner as per Exts.P1 and P2 an amount of Rs.4,44,140/- alone is remain outstanding. However, as per the PWD manual the quality of work done under the department is to be tested and certified by the Quality Control Wing of the Department when the work is in progress. When tests were conducted during the execution of the work, were found to be unsatisfactory. It is also stated that the quality test done by a nonGovernmental agency cannot be be taken at face value, since, in the instant case the Quality Control Wing of the Department had already submitted unsatisfactory report regarding certain specification in the schedule of the work. The contractor on receiving the unsatisfactory report ought to have rectified the defect and again requested the Quality Control Wing to retest the said specifications. But in this case they opted for retest by a

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W.P.(C)No.12736 of 2016 3

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non-Governmental agency. According to the 1^st respondent such a course adopted by the petitioner cannot be sustained under law.

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Petitioner has filed reply refuting the allegations and statements made in the statement filed by the 1^st respondent and reiterated the stand adopted in the writ petition. It is also made clear in the reply that Rajiv Gandhi Institute of Technology is a Government Engineering College and the test was conducted by the officers of PWD Department and Exts.P7 and P8 communications were issued after conducting the test on completion of the work by the petitioner.

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Heard learned counsel for the petitioner, learned Government Pleader and perused the documents

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on record and pleadings put forth by the respective parties.

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The question to be decided is whether there is any dispute exist by and between the petitioner and the respondents disabling the petitioner from receiving the amount outstanding on the basis of Exts.P1 and P2

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W.P.(C)No.12736 of 2016 4

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agreements entered into by and between the petitioner and the 1^st respondent. On a reading of Exts.P7 and P8 what is discernible is that, after the completion of the work test was conducted by the officers of the department and it was found that the work done by the petitioner is defect free. Exts.P7 and P8 documents issued by the officers of the department is not under dispute in any circumstances. In my considered opinion, the sole dispute raised in the statement filed by the respondent is that during the course of work, test was conducted and noted some defects. But, however, on a reading of Exts.P7 and P8 shows that, if at all there was any defect, the same was cured during the course of work. That being the situation, it cannot be said that after the completion of the work any complaint is existing against the petitioner with respect to the work carried out as per Exts.P1 and P2.

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Taking note of the said situation, I am of the considered opinion that, respondents shall take necessary steps to release the amount due to the petitioner unless

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W.P.(C)No.12736 of 2016

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there is any other dispute existing by and between the

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petitioner and the respondents within two months from

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the date of receipt of a copy of this judgment.

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Writ petition is disposed of accordingly.

Sd/-

SHAJI P. CHALY,

JUDGE.

[ True copy]

P.A. to Judge

rmm/27/10/2016

Anish Zachariah v. Executive Engineer, PWD Roads and Bridges Division

Case brief

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Anish Zachariah v. Executive Engineer, PWD Roads and Bridges Division

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