Dismissed

Joshy Varghese v. State of Kerala

Kerala HC18 Dec 2020WP(C)/11166/2020

Case brief

AI extract

What is this about?

Petitioner, a government contractor, sought refund of performance security deposit via writ petition. The Court held the petition not maintainable as the core dispute regarding defects during the liability period was a factual issue beyond judicial review under Article 226. Petition dismissed.

What did the court decide?

No refund of performance security deposit; petitioner directed to claim through other appropriate legal proceedings.

Joshy Varghese Vs State of Kerala — Service and Employment | Kerala HC (2020)

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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 N.NAGARESH

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FRIDAY, THE 18TH DAY OF DECEMBER 2020/27TH AGRAHAYANA, 1942

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WP(C).No.11166 OF 2020(U)

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PETITIONER:

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JOSHY VARGHESE, AGED 57 YEARS, S/O. VAREETH, THELAKKADAN HOUSE, MALAMURI, PULLUVAZHY P.O, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, MOB. 8547521980

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BY ADVS.

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SRI.V.RAJENDRAN (PERUMBAVOOR) SHRI.GEORGE VARGHESE KIZHAKKAMBALAM SRI.N.RAJESH

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, IRRIGATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 SUPERINTENDING ENGINEER, MINOR IRRIGATION CENTRAL CIRCLE, ERNAKULAM, CIVIL STATION, KAKKANAD-682 030

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3 EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION, THRISSUR-680 020

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4 ASSISTANT EXECUTIVE ENGINEER, MINOR IRRIGATION SUB DIVISION, THRISSUR-680 020

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5 ASSISTANT ENGINEER, MINOR IRRIGATION SECTION, CHERPU, THRISSUR-680 561

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6 SMT.AJITHA T.A., AGE AND NAME OF HUSBAND/FATHER NOT KNOWN ASSISTANT ENGINEER, MINOR IRRIGATION SECTION, CHERPU, THRISSUR - 680 561.

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R1-4 GOVERNMENT PLEADER SMT. DEEPA NARAYANAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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J U D G M E N T

~ ~ ~ ~ ~ ~ ~ ~ ~

Dated this the 18^th day of December, 2020

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The petitioner, who is a A-Class Government Contractor, is before this Court seeking to quash Ext.P17 and to direct the 2^nd respondent to refund the security amount deposited by the petitioner in connection with Ext.P1 work, immediately within a time limit, together with interest at the rate of 12% per annum.

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The petitioner states that he is an A-Class Government Contractor. The petitioner was allotted a work by name “Renovation of one pond in each Panchayat-Thrissur District – Karuvannur River basin – Improvements to Thiruvanchirakulam in Avinissery Panchayat”. Ext. P1 is the selection notice. As per the tender notice and Ext.P1 selection notice, the petitioner remitted `4,70,000/- as performance guarantee and executed agreement with the 2^nd respondent on 31.03.2015.

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The petitioner completed the scheduled work and additional works, to the satisfaction of the Department. The 2^nd respondent issued a Certificate of Experience as per Ext.P4. The 2^nd respondent forwarded the revised estimate with recommendation to the Chief Engineer on 02.11.2016. However in spite of expiry of more than two years, the 1^st respondent did not respond. The petitioner therefore filed W.P(C) No.36084/2018 before this Court praying to declare that he is entitled to get the amount spent by him for additional works. This court as per Ext.P5 judgment, directed the 2^nd respondent to consider and pass appropriate orders in the proposal to allow the amount covered by the revised estimate, within a period of two months.

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The petitioner states that he had made a prayer for a direction to refund performance guarantee, in W.P(C) No.36084/2018. However, his prayer was not considered by this Court. The petitioner therefore filed Review Petition No.12/2019 in W.P(C) No.36084/2018. In the Review Petition, the respondents took a stand that the President of Avinissery

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Grama Panchayat has communicated that damages are caused to the retaining wall of the pond renovated by the petitioner and it requires rectification. In view of the said allegation, the petitioner is forced to file this writ petition.

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The learned counsel for the petitioner argued that the petitioner claimed refund of the security deposit and the respondents are resisting the claim stating that damage has occurred to the retaining wall before expiry of the security period and hence the petitioner will be entitled to get refund of the amount only after rectification of the damages. The petitioner had contended that Ext.P8 notice was never served on him by the 5^th respondent. The allegation subsequently made by the 5^th respondent is incorrect.

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The learned counsel for the petitioner further argued that in view of Section 27 of the General Clauses Act, it has to be assumed that the letter pointing out the defect in the work of the petitioner, has not been served on the petitioner. There is no proof to show that Ext.P8 was ever sent or served on the petitioner. The respondents are acting

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arbitrarily so as to deny the petitioner the amounts legally due to him. In the circumstances, the petitioner prayed that a direction be given to the 2^nd respondent to refund the security amount deposited by the petitioner, with interest.

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The 2^nd respondent defended the writ petition filing counter affidavit. The 2^nd respondent stated that the Avinissery Grama Panchayat passed a resolution requesting the 2^nd and 3^rd respondents to construct a 3 m. wide road along the east and north sides of the pond and also requested to raise the height of the protection wall at the west side to the level of the existing Panchayat tarred road. The petitioner executed the work completely and has carried out certain excess quantity of work as per the request of the Panchayat and local inhabitants. An amount of `93,85,425/- was paid to the petitioner limiting the amount with agreed PAC.

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On the basis of the request made by the Panchayat authorities, the petitioner carried out additional work. Accordingly, a revised estimate was prepared and submitted to higher authorities for approval. The revised estimate is yet

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to be approved.

The Government Pleader pointed out that the performance security deposit of the petitioner could not be paid to the petitioner because during the defect liability period the Assistant Engineer instructed the petitioner to rectify the damage occurred on the west side of the pond for a length of 30 m. as per letter dated 21.04.2018. Such damage was noted and the petitioner was required to cure the defects before the expiry of the defect liability period. This was not done. Under the circumstances, the respondents cannot pay the performance security deposit to the petitioner.

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I have heard the learned counsel for the petitioner and the learned counsel appearing for the respondents.

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Performance security deposits are made a requirement of the contracts so as to ensure that the contractors cure defects if any in respect of their work, arising during the defect liability period. In the case of the petitioner, the petitioner completed the work on 30.08.2016. Therefore, the defect liability period would expire only on 30.08.2018.

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Ext.P7 letter of the President of the Avinissery Grama Panchayat would indicate that the Panchayat authorities noted certain definitive defects in the work carried out by the petitioner and the same was communicated to the Assistant Engineer. The Assistant Engineer in turn, issued Ext.P8 letter

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to the petitioner on 21.04.2018, whereby the petitioner was required to cure the defects. Ext.P8 was issued during the currency of the defect ability period. Therefore, without curing the defects pointed out by the respondents during the defect liability period, the petitioner cannot legally get refund of the performance security deposit.

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The case of the petitioner is that Ext.P7 letter has been issued by the President of the Grama Panchayat not because there was any defect in the work of the petitioner, but with an intention to deny the petitioner his dues. The petitioner specifically stated that he was not served with Ext.P8 letter requiring him to cure the defects. According to the petitioner, the so called defects were brought to his notice only after the defect liability period. And hence he is not

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legally bound to cure the defects which were noted after the defect liability period.

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Going by the respective pleadings and arguments raised by either side, it is clear that the material dispute revolves around a question whether there was any defect in the work carried out by the petitioner and whether such defect was pointed out to the petitioner, during the currency of the defect liability period. When the petitioner asserts that he has not been communicated with such defect during the defect liability period, the respondents would swear that material defects were pointed out by the President of the Grama Panchayat and those defects were communicated to the petitioner as per Ext.P8.

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If defects in the work of the petitioner was pointed out to the petitioner during the currency of the defect ability period and the petitioner failed to cure such defects, the petitioner cannot legally insist that the performance security deposit should be refunded to him. Though the learned counsel for the petitioner placing reliance on Section 27 of the

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General Clauses Act would strenuously contend that the communication of defect was in fact not made to him during the currency of defect liability period, this Court finds that the said issue is a disputed question of fact, which this Court cannot decide in exercise of the powers of this Court under Article 226 of the Constitution of India.

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In the circumstances, this Court holds that the writ petition is not maintainable as the question involved in the writ petition is a disputed question of fact. No relief as prayed for by the petitioner can be granted in this writ petition. Accordingly, this writ petition is dismissed. It is made clear that the petitioner will be at liberty to claim payment of performance security guarantee if he is so advised, through any other appropriate legal proceedings that may be available to him.

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Sd/- N. NAGARESH, JUDGE

aks/23.12.2020

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APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF SELECTION NOTICE ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT ON 20-03-2015 BEARING NO. D2-3123(1)/13 EXHIBIT P2 A PHOTOGRAPH SHOWING THE RENOVATED CONDITION OF THE POND EXHIBIT P3 A NEWS ITEM PUBLISHED IN MALAYALA MANORAMA DAILY REGARDING THE RENOVATED CONDITION OF THE POND EXHIBIT P4 TRUE COPY OF CERTIFICATE OF EXPERIENCE ISSUED BY 2ND RESPONDENT TO THE PETITIONER ON 26-09-2018 EXHIBIT P5 TRUE COPY OF JUDGMENT IN W.P(C) NO. 36084/18 OF THIS HON'BLE COURT DATED 17-12-2018 EXHIBIT P6 TRUE COPY OF STATEMENT FILED BY 2ND RESPONDENT (3RD RESPONDENT IN W.P(C) NO. 36084/18) IN R.P NO. 12/19 IN W.P(C) NO. 36084/18 ON 25-03-2019 EXHIBIT P7 TRUE COPY OF LETTER CLAIMED TO HAVE SENT BY PRESIDENT AVINISSERY PANCHAYATH TO THE 5TH RESPONDENT ON 18-04-2018 EXHIBIT P8 TRUE COPY OF LETTER CLAIMED TO HAVE SENT BY 5TH RESPONDENT TO THE PETITIONER ON 21-04-2018 EXHIBIT P9 TRUE COPY OF ESTIMATE PREPARED BY 4TH RESPONDENT ON 23-03-2019

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EXHIBIT P10	TRUE COPY OF REPLY AFFIDAVIT FILED BY PETITIONER IN R.P NO. 12/19 IN W.P(C) 36084/18 ON 11-04-2019
EXHIBIT P11	TRUE COPY OF ORDER R.P NO. 12/19 IN W.P(C) NO. 36084/18 ON 14-10-2019
EXHIBIT P12	TRUE COPY OF PETITION FILED BY COUNSEL FOR THE PETITIONER UNDER THE R.I ACT BEFORE THE 5TH RESPONDENT ON 16-04- 2019
EXHIBIT P13	TRUE COPY OF REPLY TO EXT.P12 SENT BY 5TH RESPONDENT TO THE PETITIONER BEARING NO. MIC-26/2012-13 DATED 25- 05-2019
EXHIBIT P14	TRUE COPY OF COVERING LETTER ISSUED BY 5TH RESPONDENT TO THE PETITIONER ALONG WITH EXT.P13 ON 24-06-2019 BEARING NO. MIC-26/2012-13
EXHIBIT P15	TRUE COPY OF PETITION FILED BY COUNSEL FOR THE PETITIONER UNDER THE R.I ACT BEFORE THE 4TH RESPONDENT ON 22-04- 2019
EXHIBIT P16	TRUE COPY OF REPLY TO EXT.P15 SENT BY 4TH RESPONDENT TO THE PETITIONER BEARING NO.D2/712/13 DATED 20-05-2019
EXHIBIT P17	TRUE COPY OF ORDER NO. F1-3800/2018 DATED 21-12-2019 ISSUED BY 2ND RESPONDENT.
EXHIBIT P18	TRUE COPY OF RELEVANT PAGE OF PWD MANUAL

Joshy Varghese v. State of Kerala

Case brief

What is this about?

What did the court decide?

Joshy Varghese v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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