Dismissed

Lurdh Matha Constructions v. the Superintending Engineer

Kerala HC4 Nov 2019WP(C)/19497/2019

Case brief

AI extract

What is this about?

Petitioners in a construction contract sought relief for delays attributed to the department. The High Court held that contractual issues regarding liability and rate revisions cannot be adjudicated via writ proceedings under Article 226 and dismissed the petition without merits, directing them to civil courts.

What did the court decide?

The writ petition was dismissed as it concerned contractual disputes requiring adjudication in a civil court.

Lurdh Matha Constructions Vs the… — Contract and Commercial Disputes | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

¶4

MONDAY, THE 04TH DAY OF NOVEMBER 2019 / 13TH KARTHIKA, 1941

¶5

WP(C).No.19497 OF 2019(J)

¶6

PETITIONERS:

¶7

1 M/S. LURDH MATHA CONSTRUCTIONS REPRESENTED BY JOMON MATHEW, S/O. MATHEW, AGED 45 YEARS, MANAGING PARTNER, LURDH MATHA CONSTRUCTIONS, MURICKASSERY P. O., IDUKKI DISTRICT, PIN - 685 604.

¶8

2 JOMON MATHEW AGED 45 YEARS

¶9

SON OF MATHEW, MANAGING PARTNER, LURDH MATHA CONSTRUCTIONS, MURICKASSERY P. O., IDUKKI DISTRICT, PIN - 685 604., RESIDING AT POOVELIL HOUSE, MURICKASSERY P.O., IDUKKI DISTRICT, PIN - 685 604.

¶10

BY ADVS. SMT.S.AMBILY SRI.SAJI THOMAS SMT.NAMITHA NAMBIAR SHRI.MICKY THOMAS

¶11

RESPONDENTS:

¶12

1 THE SUPERINTENDING ENGINEER PUBLIC WORKS DEPARTMENT, JUDICIAL BUILDING CIRCLE, ERNAKULAM, PWD COMPLEX, EDAPPALLY, KOCHI - 682 024.

¶13

2 THE EXECUTIVE ENGINEER

¶14

PUBLIC WORKS DEPARTMENT, BUILDINGS DIVISION, IDUKKI, PIN - 685 603.

¶15

3 THE ASSISTANT EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT, BUILDINGS SUB DIVISION, NEDUMKANDAM, IDUKKI DISTRICT, PIN - 685 553.

¶16

4 THE ASSISTANT ENGINEER PUBLIC WORKS DEPARTMENT, BUILDINGS SECTION, VANDANMEDU, KATTAPPANA, IDUKKI DISTRICT, PIN - 685 551.

¶17

5 CHIEF ENGINEER PUBLIC WORKS DEPARTMENT, BUILDINGS, THIRUVANANTHAPURAM - 695 004.

¶18

WP(C).No.19497 OF 2019(J)

¶19

¶20

6 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVT. SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

¶21

7 ADVOCATE T. P. MATHEW PRESIDENT, BAR ASSOCIATION, KATTAPPANA, IDUKKI DISTRICT, PIN - 685 553.

¶22

R1-6 BY ADV. SRI.K.V.MANOJKUMAR, GOVERNMENT PLEADER

¶23

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶24

WP(C).No.19497 OF 2019(J)

¶25

¶26

W.P.(C) No.19497 of 2019

¶27

J U D G M E N T

¶28

The first petitioner is a firm undertaking civil works on contract basis and the second petitioner is its managing partner. The first petitioner firm was awarded the contract for construction of additional judicial complex at Kattappana. Ext.P1 is the award. In terms of the agreement executed by the first petitioner with the first respondent for execution of the said work, the work should have been completed on or before 08.04.2020. It is alleged by the petitioners that though the site of the work was handed over, the work could not be commenced as the department has not made arrangements for stacking the soil to be removed from the site for commencing the construction and has prevented the petitioners from removing the said soil. It is alleged by the petitioners that the petitioners have, therefore, preferred various representations for a solution to the problem faced by them. It is stated that as there was no response to the said representations, they preferred Ext.P5 representation seeking orders for revising the rate offered by them by 20% or relieving the petitioners from the obligations under the contract without risk and

¶29

¶30

WP(C).No.19497 OF 2019(J)

¶31

cost. Alleging inaction on the part of the respondents in taking a decision on Ext.P5, the first petitioner approached this court in W.P.(C) No.9946 of 2019, and the said writ petition was disposed of in terms of Ext.P11 judgment directing the first respondent to take a decision on Ext.P5 representation preferred by the petitioners. In compliance with Ext.P11 judgment, the first respondent has now issued Ext.P14 communication, which is under challenge in the writ petition.

¶32

Heard the learned Senior Counsel for the petitioners as also the learned Government Pleader.

¶33

The learned Senior Counsel for the petitioners contended that Ext.P14 communication is vitiated by non-application of mind. It was pointed out that none of the grievances voiced by the petitioners in the representation directed to be disposed of was considered.

¶34

The learned Government Pleader submitted that since the petitioners did not carry out the levelling work of the site which was part of the contract on account of various difficulties, the department has executed that part of the work. The learned Government Pleader has also submitted that if the petitioners are prepared to execute the work, they can commence the work forthwith and that there may not be any problem in extending the period of completion of the work appropriately. The learned Senior Counsel then pointed out that the petitioners may not be in a position to execute the

¶35

WP(C).No.19497 OF 2019(J)

¶36

¶37

work now at the rate at which the work was awarded to them and

¶38

sought an adjudication on the correctness of Ext.P14 communication.

¶39

Coming to Ext.P14 communication, it is seen that what was directed to be considered by this court in terms of Ext.P11 judgment is Exts.P4 and P5 representations in that case. Ext.P4 in Ext.P11 case is Ext.P5 representation in this case and Ext.P5 in Ext.P11 case is only a postal acknowledgement card. It appears, therefore, that what was directed to be considered by this court in terms of Ext.P11 judgment is Ext.P5 representation in this writ petition. In Ext.P5 representation, the petitioners sought revision of rates by 20% or in the alternative, orders absolving them from the liability to execute the contract on the ground that the delay in commencing the work was not due to any reasons attributable to the petitioners. Ext.P14 communication reads thus :

¶40

“The above work was awarded to you vide reference cited 1^st with a time of completion of 18 months. The under signed have heard you on 14/06/2019 and also examined Exhibits P4 and P5 representation in WP(C) 9946 of 2019 in detail.

¶41

The contentions raised during the hearing and in the representation mentioned above are untenable. Being an A Class contractor of PWD, you are well aware of the terms and conditions of the contract in PWD. As per the terms and conditions of the above contract, your are duty bound to carry out the work and to complete the work. Hence your request as per Exhibits P4 and P5 to relieve you from the above contract and to return the security deposit amount and the performance guarantee amount cannot be accepted. The directions of the Hon'ble High Court of Kerala in WP(C) 9946 of 2019 is complied. Hence you are directed to start

¶42

WP(C).No.19497 OF 2019(J)

¶43

¶44

the work immediately.”

¶45

As evident from the extracted order, it proceeds on the premise that the petitioners have committed breach of the terms of the contract. In other words, the stand of the petitioners that the delay on their part in commencing the work was not due to reasons attributable to them, is not accepted by the respondents. If that be so, the reliefs sought by the petitioners could be granted only on adjudication of the said issue. The said issue, according to me, cannot be adjudicated in a proceedings under Article 226 of the Constitution. The petitioners have to work out their remedies in a competent civil court. The writ petition in the circumstances, is without merits and the same is, accordingly, dismissed.

Sd/-

P.B.SURESH KUMAR

JUDGE

WP(C).No.19497 OF 2019(J)

¶51

¶52

APPENDIX

¶53

PETITIONER'S EXHIBITS:

¶54

EXHIBIT P1	COPY OF ACCEPTANCE LETTER DATED 15.09.2018 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P2	COPY OF THE RELEVANT PORTION OF SCHEDULE TO THE AGREEMENT DATED 01.10.2018.
EXHIBIT P3	COPY OF REPRESENTATION DATED 02.11.2018 GIVEN BY THE PETITIONER TO THE 1ST RESPONDENT.
EXHIBIT P4	COPY OF REPRESENTATION DATED 23.11.2018 GIVEN BY THE PETITIONER TO THE 1ST RESPONDENT.
EXHIBIT P5	COPY OF REPRESENTATION DATED 20.12.2018 GIVEN BY THE PETITIONER TO THE 1ST RESPONDENT.
EXHIBIT P6	COPY OF LETTER DATED 03.12.2018 FROM THE 1ST RESPONDENT TO THE 5TH RESPONDENT.
EXHIBIT P6 (a)	COPY OF REPORT DATED 28.11.2018 BY THE 4TH RESPONDENT.
EXHIBIT P6 (b)	COPY OF SURVEY REPORT DATED 01.11.2018.
EXHIBIT P7	COPY OF TENDER NOTICE DATED 11.01.2019.
EXHIBIT P8	COPY OF REPRESENTATION DATED 07.02.2019 BY THE PETITIONER TO THE 1ST RESPONDENT.
EXHIBIT P9	COPY OF REPLY DATED 14.02.2019 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.
EXHIBIT P10	COPY OF COUNTER FOIL OF CHALLAN DATED 19.03.2019.
EXHIBIT P11	COPY OF JUDGMENT DATED 04.06.19 IN WP(C) NO.9946/19.
EXHIBIT P12	COPY OF LETTER DATED 06.06.2019 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.
EXHIBIT P13	COPY OF LETTER DATED 17.04.2019 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.

¶55

WP(C).No.19497 OF 2019(J)

¶56

¶57

EXHIBIT P 14 COPY OF LETTER DATED 28.06.2019 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.

¶58

RESPONDENTS' EXHIBITS:

¶59

EXHIBIT-R1(a) TRUE COPY OF THE LETTER DATED 13/12/2018 EXHIBIT-R1(b) TRUE COPY OF THE LETTER DATED 01/06/2019 EXHIBI-R1(c) TRUE COPY OF THE LETTER DATED 18/07/2019

¶60

//TRUE COPY// PA TO JUDGE

Lurdh Matha Constructions v. the Superintending Engineer

Case brief

What is this about?

What did the court decide?

Lurdh Matha Constructions v. the Superintending Engineer

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

M/S Cheeran'S Structural'S and Foundation Vs the Regional Cancer Center

K.a.Kunhi Krishnan Vs Kerala Water Authority

Jose Sebastian Vs State of Kerala

Ashraf.N.M. Vs the Chief Executive Officer

Ambujakshan.K Vs Kerala Water Authority

Vasco Enviromental India Pvt. Ltd. Vs Kerala Water Authority