Disposed

M.M.Varghese v. Kerala Water Authority

Kerala HC23 Jul 2019WP(C)/6337/2018

Case brief

AI extract

What is this about?

In a writ petition by a contractor challenging orders for refund and demand of amounts, the High Court directed the 1st respondent to reconsider the impugned order externally. The Court ordered release of 50% of pending dues to the petitioner and stayed coercive action pending consideration, leaving substantive legal questions open.

What did the court decide?

The 1st respondent shall consider the entire issue de hors Ex.P19; 50% of dues due for other works to be released; coercive action pending Ex.P19 consideration stayed.

M.M.Varghese Vs Kerala Water Authority — Contract and Commercial Disputes | Kerala HC (2019)

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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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TUESDAY, THE 23RD DAY OF JULY 2019 / 1ST SRAVANA, 1941

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WP(C).No.6337 of 2018

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PETITIONER/S:

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M.M.VARGHESE

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AGED 68 YEARS, S/O.M.V.MATHAI, GOVERNMENT CONTRACTOR,RESIDING AT MUTTAVANCHERRY HOUSE, THAMARACHAL, KIZHAKKAMBALAM P.O., ALUVA-683562.

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BY ADVS. SMT.TESSY JOSE SRI.K.L.VARGHESE (SR.)

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RESPONDENT/S:

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1 KERALA WATER AUTHORITY REPRESENTED BY THE MANAGING DIRECTOR,JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM PO,THIRUVANANTHAPURAM DISTRICT.

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2 THE SUPERINTENDING ENGINEER

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P.H.CIRCLE, KERALA WATER AUTHORITY,KOCHI-682011.

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3 THE EXECUTIVE ENGINEER KERALA WATER AUTHORITY P.H.DIVISION, KOCHI-682016.

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4 THE CHIEF ENGINEER KERALA WATER AUTHORITY CENTRAL REGION, KOCHI-11.

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5 THE ASSISTANT EXECUTIVE ENGINEER KERALA WATER AUTHORITY

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SUB DIVISION, KALOOR, KOCHI-17.

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BY ADV. SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.6337 of 2018

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JUDGMENT

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This writ petition is filed by the petitioner seeking the following reliefs:

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“a) to issue a writ of certiorari calling for all the records leading to Ext.P19 order passed by the 2^nd respondent and Ext.P25 order passed by the 3^rd respondent and quash the same to the extent of demand or coercive step for realisation of Rs.84,60,344/- as per Ext.P19 and Rs.1,64,19,541/- as per Ext.P25 respectively.

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b) to stay all further proceedings pursuant to Ext.P19 order dated 10.11.2017 passed by the 2^nd respondent and Ext.P25 order dated 15.15.2018 passed by the 3^rd respondent demanding Rs.1,64,19,541/or any other amount and all further follow up actions to that end.

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c) to issue a writ of mandamus or any other appropriate writ, order or direction calling upon the respondents to evaluate the cost of work done by the petitioner as on the date of stoppage of work on 14.10.2014 as stated in paragraph 14 of the writ petition.”

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Petitioner is a contractor engaged by the Kerala Water

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Authority. However, later action was initiated against the petitioner and finally as per Ext.P19 order dated 10.11.2017, petitioner was directed to pay an amount of Rs.84,60,344/-. It is thus challenging Ext.P19, this writ petition is filed. According to the petitioner, on account of Ext.P19, amounts due to the petitioner in respect of other works are also detained by the respondents.

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WP(C).No.6337 of 2018

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Learned Counsel appearing for the water authority submitted that the entire issue with respect to Ext.P19 will be reconsidered by the 1^st respondent and so far as the amounts due to the petitioner with respect to other works are concerned, it will be released without much delay.

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Having heard learned Senior Counsel for the petitioner and the learned Standing Counsel appearing for the water authority, there will be a direction to the 1^st respondent to consider the entire issues de hors the findings in Ext.P19 and any other documents, at the earliest and at any rate within two months from the date of receipt of a copy of this judgment, after providing an opportunity of hearing and participation to the petitioner. In the meanwhile, there will be a direction to the competent among the respondents to release 50% of the amount due in respect of the other works within a period of one month and the balance amount within one month thereafter. I also make it clear that, till such time, the issue with respect to Ext.P19 is considered by the 1^st respondent, coercive action if any pertaining to the same shall be kept in abeyance. The respondent will also be at liberty to retain the amounts as is specified in Ext.P19, till such time the decision is taken. All the

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WP(C).No.6337 of 2018

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questions of facts and law raised in this writ petition are left open.

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The writ petition is disposed of accordingly.

Sd/

SHAJI P.CHALY

JUDGE

WP(C).No.6337 of 2018

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 (TRUE COPY OF THE GENERAL POWER OF ATTORNEY EXECUTED BY K.A.ABRAHAM, MANAGING PARTNER, J & B ENGINEERING & CONSTRUCTION COMPANY IN FAVOUR OF 1ST PETITIONER M.M.VARGHESE DATED 7.12.2013). RESIDING AT JENUS, KANDESWARAM, IRINJALAKKUDA, THRISSUR DISTRICT. RESIDING AT JENUS, KANDESWARAM, IRINJALAKKUDA, THRISSUR DISTRICT. 7 CONSTRU EXHIBIT P2 (TRUE COPY OF AGREEMENT DATED 12.2.2014 EXECUTED BETWEEN THE PETITIONERS AND 2ND RESPONDENT). EXHIBIT P3 (TRUE COPY OF COMMUNICATION DATED 29.5.2014 FROM PETITIONER TO THE 2ND RESPONDENT). EXHIBIT P4 (TRUE COPY OF COMMUNICATION DATED 21.7.2014 BY THE PETITIONER TO THE 2ND RESPONDENT). EXHIBIT P5 (TRUE COPY OF COMMUNICATION DATED 26.11.2014 SENT BY PETITIONER TO THE 1ST RESPONDENT). EXHIBIT P6 (TRUE COPY OF THE COMMUNICATION DATED 2.3.2015 SENT BY THE PETITIONER TO THE 3RD RESPONDENT). EXHIBIT P7 (TRUE COPY OF LETTER DATED 17.3.2015 SENT BY THE PETITIONER TO THE 2ND RESPONDENT). EXHIBIT P8 (TRUE COPY OF COMMUNICATION DATED 25.4.2015 SENT BY THE PETITIONER TO THE 3RD RESPONDENT). EXHIBIT P9 (TRUE COPY OF COMMUNICATION SENT BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT DATED 29.5.2015). EXHIBIT P10 (TRUE COPY OF THE COMMUNICATION DATED 21.7.2015 ISSUED BY 2ND RESPONDENT TO THE PETITIONER).

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WP(C).No.6337 of 2018

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EXHIBIT P11	(TRUE COPY CERTIFICATE ISSUED BY THE PETITIONER AND ACKNOWLEDGED BY THE LORRY DRIVER DATED 30.9.2015).
EXHIBIT P12	(TRUE COPY OF THE COMMUNICATION DATED 4.2.2016 SENT BY THE 5TH RESPONDENT TO THE SI OF POLICE ERNAKULAM NORTH POLICE STATION).
EXHIBIT P13	TRUE COPY OF THE FIR DATED 5.2.2016 PREPARED BY S.I.OF POLICE ERNAKULAM NORTH POLICE STATION).
EXHIBIT P14	(TRUE COPY OF PROCEEDINGS DATED 8.2.2016 ISSUED BY 2ND RESPONDENT).
EXHIBIT P15	(TRUE COPY OF REQUEST LETTER DATED 17.6.2016 SENT BY THE PETITIONER TO THE 2ND RESPONDENT).
EXHIBIT P16	(TRUE COPY OF THE SAID CERTIFICATE DATED 9.2.2016 OF THE PETITIONER ACKNOWLEDGED BY LORRY DRIVER).
EXHIBIT P17	(TRUE COPY OF THE JUDGMENT IN WP(C) NO.1066/2017 DATED 12.1.2017 OF THIS HON'BLE COURT).
EXHIBIT P18	(TRUE COPY OF THE STATEMENT DATED 31.10.2017 FILED BY THE RESPONDENT).
EXHIBIT P19	(TRUE COPY OF THE ORDER DATED 10.11.2017 ISSUED BY THE 2ND RESPONDENT TO THE RESPONDENT).
EXHIBIT P20	(TRUE COPY OF JUDGMENT IN CONTEMPT CASE NO.931/2017 DATED 20.12.2017 BY THIS HON'BLE COURT).
EXHIBIT P21	(TRUE COPY OF THE FINAL BILL DATED NIL SHOWING THE DETAILS OF THE ENTIRE LIST OF MATERIALS SUPPLIED BY THE PETITIONER.
EXHIBIT P22	(PHOTOGRAPHS OF THE MATERIALS ('SPECIALS') REMAINING IN THE RESPONDENT'S OFFICE.
EXHIBIT P22(A)	(PHOTOGRAPH OF MATERIALS REMAINING IN THE RESPONDENT'S OFFICE).
EXHIBIT P23	(PHOTOGRAPH OF THE BALANCE MATERIALS IN THE OFFICE OF THE RESPONDENT).

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WP(C).No.6337 of 2018

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EXHIBIT P23(A)	(PHOTOGRAPH OF THE BALANCE MATERIALS IN THE OFFICE OF THE RESPONDENT).
EXHIBIT P23(B)	(PHOTOGRAPH OF THE BALANCE MATERIALS IN THE OFFICE OF THE RESPONDENT).
EXHIBIT P23(C)	(PHOTOGRAPH OF THE BALANCE MATERIALS IN THE OFFICE OF THE RESPONDENT).
EXHIBIT P23(D)	(PHOTOGRAPH OF THE BALANCE MATERIALS IN THE OFFICE OF THE RESPONDENT).
EXHIBIT P23(E)	(PHOTOGRAPH OF THE BALANCE MATERIALS IN THE OFFICE OF THE RESPONDENT).
EXHIBIT P23(F)	(PHOTOGRAPH OF THE BALANCE MATERIALS IN THE OFFICE OF THE RESPONDENT).
EXHIBIT P24	(TRUE COPY OF THE PHOTOGRAPH OF SQUARE VALVE).
ADDL.EXHIBIT P2	TRUE COPY OF NOTICE DATED 15.5.2018 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER
ADDL.EXHIBIT 26	TRUE COPY OF LEGAL NOTICE SENT BY THE PETITIONER'S LAWYER TO THE RESPONDENTS DATED 4.06.2018
ADDL.EXHIBIT P2	TRUE COPY OF THE LETTER DATED 6.6.2018 SENT BY 3RD RESPONDENT TO THE PETITIONER'S LAWYER
RESPONDENT'S/S EXH	IBITS:
EXHIBIT R1(A):	TRUE COPY OF REQUESTS SUBMITTED BY THE PETITIONER DATED 26/11/2015.
EXHIBIT R1(B):	TRUE COPY OF REQUESTS SUBMITTED BY THE PETITIONER DATED 17/06/2016.
EXHIBIT R1(C):	TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 10/11/2017.
EXHIBIT R1(D):	TRUE COPY OF ACCEPTED SCHEDULE.

M.M.Varghese v. Kerala Water Authority

Case brief

What is this about?

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M.M.Varghese v. Kerala Water Authority

Case brief

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