Dismissed

K. Mohammed Kunhi v. State of Kerala

Kerala HC17 Dec 2018WP(C)/39179/2015

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ petition filed by a civil contractor seeking refund of a security deposit and a declaration that a demand notice was unsustainable as it was based on a post-guarantee-period inspection that was issued but not served.

What did the court decide?

Petitioner's plea for refund of security deposit and declaration of invalidity of demand notice rejected.

K. Mohammed Kunhi Vs State of Kerala — Contract and Commercial Disputes | Kerala HC (2018)

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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 V.G.ARUN

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MONDAY ,THE 17TH DAY OF DECEMBER 2018 / 26TH AGRAHAYANA, 1940

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WP(C).No. 39179 of 2015

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PETITIONER:

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K. MOHAMMED KUNHI P.W.D.CONTRACTOR, MOONA MANZIL, P.O.CHEMNAD, KASARAGOD DISTRICT.

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BY ADV. SRI.P.M.PAREETH

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT PUBLIC WORKS (F) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 CHIEF ENGINEER PWD (ADMINISTRATION), THIRUVANANTHAPURAM-695001.

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3 EXECUTIVE ENGINEER PWD ROADS DIVISION, KASARAGOD, KASARAGOD DISTRICT-671 121.

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4 ASSISTANT ENGINEER PWD ROADS SECTION, WEST ELERI, KASARAGOD DISTRICT-671314.

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GP. ADV.SRI. DILIP S.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 39179 of 2015

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JUDGMENT

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The petitioner a civil contractor, was awarded the work of surface renewal of the Beemanady-Mukkada road between km 2/000 to 3/000 in Kasaragod District. The agreement for the work was executed on 24.08.2011. The work commenced on 28.01.2012 and was completed on 22.03.2012, though the time for completion of the work was extended up to 31.03.2012. The amount due to the petitioner, on the basis of the bills raised by him, was paid by the department. As the work was completed on 22.03.2012, the one year guarantee period expired on 21.03.2013. The writ petition was filed on the petitioner being served with Ext.P2 notice, directing him to remit an amount of Rs.1,98,811/-, as directed by the Secretary to Government, in order to make good the alleged loss sustained by the Government, in rectifying the damages on the road, due to poor workmanship in executing the work awarded to the petitioner.

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The learned counsel for the petitioner points out that Ext.P2 was issued on the basis of a surprise check, alleged to have been conducted by the VACB unit, Northern Range, Kozhikode. Ext.P3 is the copy of letter dated 11.02.2014 of the Director, Vigilance & Anti-Corruption Bureau, Thiruvananthapuram addressed to the first respondent, appending Ext.P4 surprise check report dated 29.10.2013. It was submitted by the learned

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WP(C).No. 39179 of 2015

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counsel for the petitioner that the surprise check based on which Ext.P2 was issued, having been conducted after the guarantee period, the petitioner cannot be mulcted with any liability for the damages that had occurred to the road in question. It is therefore, contended that no recovery can be effected from the petitioner and that the respondents are bound to refund the security deposit, which is illegally retained.

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Counter affidavits have been filed by the 1^st and the 3^rd respondents. In the counter affidavit filed by the 3^rd respondent, it is specifically contended that Ext.R3(a) letter dated 04.07.2012 was issued by the Assistant Engineer concerned to the petitioner, requiring the petitioner to rectify the damages occurred to the road surface. Identical contention has been put forward in the counter affidavit filed on behalf of the 1^st respondent also. In Ext.P1 inspection report also there is specific mention with regard to Ext.R3(a) letter, which was issued before completion of the work by the petitioner.

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The learned counsel for the petitioner has strenuously contended that Ext.R3(a) letter was never served on the petitioner and further that, it is a document that has been created by the Assistant Engineer concerned, to wriggle out of his liability. It is further contended that, even going by Ext.P4 report, the inspection team was not able to specifically state the reason for the damages sustained to the road surface. It is pointed out that the terrain over

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WP(C).No. 39179 of 2015

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which the road is built is such that, free flow of water is not possible, and that in such circumstances, the damages could have been caused by incessant rains.

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It cannot be disputed that, if as contended by the respondents, Ext.R3 (a) letter was issued to the petitioner, then the petitioner was under a liability to have acted in terms of the direction contained in the letter. When the letter is on record, the petitioner cannot put forward a contention that, since the surprise inspection was conducted after the guarantee period, the consequential demand is unsustainable. The factual dispute as to whether Ext.R3(a) letter was actually served on the petitioner cannot be resolved in this writ petition. Even in the face of the strong contentions urged by the learned counsel for the petitioner, against the authenticity of Ext.R3(a) letter, I am constrained to accept that Ext.R3 (a) letter was actually issued, based on the statements in the counter affidavits filed by the 1^st and the 3^rd respondents, as also the statement to that effect in Ext. P4 report. Since I have come to the conclusion that the petitioner was issued with Ext.R3 (a) letter, while the contract was subsisting, I am not in a position to accept the contention that Ext. P2 is invalid.

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The learned counsel for the petitioner points out that even as per Ext.P4 report, the recommendation was to recover the amount required for

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WP(C).No. 39179 of 2015

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rectification of the surface damages, from the officials concerned. The liability to make good loss sustained by the Government for rectifying the damages to the road surface being principally of the person who had executed the work, the fact that recommendation was made by the Vigilance and AntiCorruption Bureau to recover the loss from the official respondents would not inure to the benefit of the petitioner.

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In the result, the writ petition is dismissed.

Sd/-

V.G.ARUN

JUDGE

mpm

WP(C).No. 39179 of 2015

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 A TRUE PHOTO COPY OF THE LETER NO.E21982/2015 DATED 17.12.2015 ISSUED BY THE OFFICE OF THE 3RD RESPONDENT. EXHIBIT P2 A TRUE PHOTO COPY OF THE NOTICE NO.A6VIG-1843/2015 DATED 26.11.2015 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P3 A TRUE PHOTO COPY OF THE LETTER DATED 11.2.2014 OF THE DIRECTOR, VIGILANCE & ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM ADDRESSED TO THE FIRST RESPONDENT AND FORWARDING ENDORSEMENT OF THE SUPERINTENDENT OF POLICE, VACB, KOZHIKODE. EXHIBIT P4 A TRUE PHOTOCOPY OF THE SURPRISE CHECK REPORT DATED 29.10.2013 PREPARED BY THE INSPECTOR OF POLICE, VACB KASARAGOD UNIT. EXHIBIT P5 A TRUE PHOTO COPY OF THE GOVERNMENT LETTER NO.7815/F2/14/PWD DATED 21.7.2015.

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RESPONDENTS' EXHIBITS

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EXHIBIT R1 (A) TRUE COPY OF THE LETTER NO.7815/F2/14/PWD DATED 21.07.2015 EXHIBIT R3 (A) TRUE COPY OF THE LETTER NO.AE/WE/GL/2011-12

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//TRUE COPY//

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PA TO JUDGE

K. Mohammed Kunhi v. State of Kerala

Case brief

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K. Mohammed Kunhi v. State of Kerala

Case brief

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