Dismissed

Nissam.v.a v. State of Kerala

Kerala HC12 Feb 2020WP(C)/1186/2020

Case brief

AI extract

What is this about?

The Court dismissed a writ petition filed by a government contractor seeking quashing of a contract cancellation order and directions to grant time or payment. Rejecting the claim that the re-tender was wasteful, the Court held that the petitioner completed only a small portion of the total work, rendering the prayers unsustainable.

What did the court decide?

Quashing of Ext.P9 order, direction to grant time for work completion, and direction to pay the retained amount were all rejected.

Nissam.v.a Vs State of Kerala — Contract and Commercial Disputes | 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 MRS. JUSTICE ANU SIVARAMAN

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WEDNESDAY, THE 12TH DAY OF FEBRUARY 2020 / 23RD MAGHA, 1941

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WP(C).No.1186 OF 2020(W)

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PETITIONER:

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NISSAM.V.A AGED 45 YEARS S/O.M.ABDUL RAHIMAN, VETTALACHEM VEEDU, KANNANKARA BHAGOM, MANAYIL.P.O., KOLLAM-691583

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BY ADVS. SRI.P.M.SANEER SRI.R.GOPAN

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY, FISHERIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001

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2 THE SUPERINTENDING ENGINEER HARBOUR ENGINEERING SOUTH CIRCLE, KAMALESWARAM, MANACAUD.P.O., THIRUVANANTHAPURAM695009

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BY ADV. SMT. VINITHA.B. G.P.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.1186 OF 2020(W)

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JUDGMENT

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Dated this the 12th day of February 2020

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This writ petition is filed seeking the following prayers:

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(i) Call for the records leading to Ext.P9 and quash the same by issuing writ of certiorari.

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(ii) Issue a writ of mandamus or other appropriate writ, order or direction directing the 2^nd respondent grant 30 days time to the petitioner for completing the work as per Ext.P4.

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(ii) Issue a writ of mandamus or other appropriate writ, order or direction directing the 2^nd respondent to measure the work completed by the petitioner as per Ext.P4 agreement and disburse the amount along with performance guarantee amount deposited by the petitioner forthwith.

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(iv) Issue a writ of mandamus or other appropriate writ, order or direction directing the 2^nd respondent to dispose of Ext.P10 representation submitted by the petitioner. (v) Stay all further proceedings pursuant to Ext.P11 tender notice.

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Heard the learned counsel for the petitioner and the learned Government Pleader.

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The petitioner was a Government contractor committed for a work of 'Development of Fish Seed Production

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WP(C).No.1186 OF 2020(W)

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Centre at West Kallada', pursuant to Ext.P1. It is submitted by the learned counsel for the petitioner that the agreement had been executed and the site had been handed over. However, the petitioner could not complete the work within the time specified in the agreement. The petitioner, therefore, had submitted a request for extension of time. It is contended that by Ext.P6 proceedings, the time granted for completion of the work was extended till 30.06.2019. However, it is stated that the petitioner received the copy of Ext.P6 proceedings only on 23.07.2019 and as such he was unable to complete the work as directed in Ext.P6. He had submitted applications seeking further extension of time. However, the contract was cancelled by Ext.P9 order dated 29.06.2019, even without waiting for the time as specified in Ext.P6 and the work has been re-tendered by Ext.P11 at an exorbitant rate, according to the learned counsel for the petitioner.

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It is submitted by the learned counsel for the petitioner that the petitioner had completed 90% of the work and that the work has now been re-tendered for almost the value at which the petitioner had did the work, which amounts to wasteful expenditure.

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A statement has been placed on record by the 2^nd

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respondent, wherein it is specifically stated that the PAC of the work was Rs.2,58,05,527/- (Rupees Two Crores Fifty Eight Lakhs Five Thousand Five Hundred and Twenty Seven only) and the petitioner had quoted at 12.72% below for an amount of Rs.2,25,23,064/- (Rupees Two Crores Twenty Five Lakhs Twenty Three Thousand and Sixty Four only). It is stated that the petitioner did not turn up to execute the agreement as stipulated and notice had to be issued to execute the agreement after making the statutory payments. It is stated that the agreement was finally executed on 07.03.2018, after imposing a fine of Rs.25,000/- for the delay in execution.

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It is stated that the petitioner had completed only 90% of one component of the work, which is earth filling and the said component comes to only 15% of the total quantum of work. It is stated that there are several other components including construction of RCC tanks, office cum feed store electrical room, pump room, outer bund, fencing and construction of earthern pond etc. and the petitioner had not even attempted to start any of the above works. It is stated that the value of the work completed

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by the petitioner would come to only Rs.38 Lakhs and that the said amount has been reduced from the initial estimated amount of Rs.2,58,05,527/- and the work is tendered with an estimate of Rs.2,20,03,836/-. It is therefore, contended that there is absolutely no merit in the contentions raised by the petitioner and the amounts payable to the petitioner or due from the petitioner shall be calculated in accordance with the terms of the agreement entered in between the petitioner and the respondents. The petitioner has submitted a reply affidavit stating that the non receipt of Ext.P6 proceedings is the reason for his non completion of the work and that the petitioner was unable to complete the work only due to the heavy rain and floods. It is stated that if the petitioner is granted 60 days time, he will be able to compete the work at the agreed rates and that the amount of Rs.38,01,691/which is admittedly due to the petitioner is liable to be paid.

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I have considered contentions advanced. It appears that the work had been awarded to the petitioner in February 2018 at 12.72% below estimate and the petitioner was required to execute the agreement. There appears to have been a delay in execution of the agreement for which a fine of Rs.25,000/- was imposed by

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Ext.P3. It is stated that Ext.P4(a) agreement was executed on 07.03.2018 and the time for completion of the entire work was

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nine months from the date of the agreement or the date of the handing over of the site. It is not in dispute that the work was not completed during the above time. Ext.P6 is a proceedings, which extended the time for completion of the entire work till 30.06.2019 on penalty of Rs.70,000/-.

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The learned counsel for the petitioner submits that Ext.P6 proceedings was received by the petitioner only on 22.07.2019. In any view of the matter, it is not in dispute that the work did not progress and that Ext.P9 order was issued on 29.06.2019. Ext.P9 order specifically refers to the proceedings which preceded the same as also meetings and discussions with regard to the work, which are referred to as Sl.Nos.7, 8, 9 & 10. It is clear that the petitioner had also been put on notice and heard before Ext.P9 order were passed.

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In view of the fact that the PAC of the work initially was for an amount of Rs.2,58,05,527/- and since only the earth filling works for a value of about Rs.38 lakhs has been completed by the petitioner, it appears that the estimate at Ext.P11 re-tender for an

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WP(C).No.1186 OF 2020(W)

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amount of Rs.2,20,03,836/- is justifiable, since the petitioner had completed only 90% of one component which comes to only 15% of the entire work. In the above factual situation, I am of the opinion that the prayers sought for in the writ petition cannot be allowed. The contention of the petitioner that he will be able to complete the work within 60 days also does not deserve to be considered in view of the facts of the case.

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The writ petition fails and the same is accordingly dismissed.

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Sd/-

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ANU SIVARAMAN JUDGE

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SVP

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	PHOTOCOPY OF THE TENDER ACCEPTED ORDER NO.D2/2841/2017/SE DATED 1.2.2018 ISSUED BY THE 2ND RESPONDENT
EXHIBIT P2	PHOTOCOPY OF THE SELECTION NOTICE NO.D2/2841/17/SE DATED 1.2.2018 ISSUED BY THE 2ND RESPONDENT
EXHIBIT P3	PHOTOCOPY OF THE ORDER NO.D2-2841/2017/SE DATED 7.3.2018 ISSUED BY THE 2ND RESPONDENT
EXHIBIT P4	PHOTOCOPY OF THE RELEVANT PAGES OF THE AGREEMENT NO.58/HESC/2017-2018 DATED 7.3.2018 EXECUTED BETWEEN THE PETITIONER AND THE 2ND RESPONDENT
EXHIBIT P4A	PHOTOCOPY OF THE AGREEMENT SCHEDULE FOR WORK
EXHIBIT P5	PHOTOCOPY OF THE LETTER NO.D2/2841/2017/SE ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 20.3.2018
EXHIBIT P6	PHOTOCOPY OF THE ORDER NO.D2/2841/2017/SE DATED 15.06.2019 ISSUED BY THE 2ND RESPONDENT
EXHIBIT P7	PHOTOCOPY OF THE POSTAL ENVELOPE SHOWING THE DATE
EXHIBIT P8	PHOTOCOPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 24.07.2019
EXHIBIT P9	PHOTOCOPY OF THE ORDER NO.D2/2841/2017/SE DATED 29.06.2019 ISSUED BY TEH 2ND RESPONDENT
EXHIBIT P10	PHOTOCOPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE MINISTER OF FISHERIES DEPARTMENT DATED 20.08.2019
EXHIBIT P11	PHOTOCOPY OF THE COMPUTER PRINT OF THE TENDER NOTICE PUBLISHED IN THE WEBSITE OF THE DEPARTMENT NO.D2/2315/2019/SE DATED

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28.12.2019

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EXHIBIT P12 PHOTOGRAPHS SHOWING COMPELTED 90% COMPONENT EARTH FILLING WORK AND SITE DOING THE ROLLING WORK

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT 2(A) TRUE COPY OF THE AGREEMENT NO.58/HESC/201718 DATED 07.03.2018. EXHIBIT R2(B) TRUE COPY OF THE PROCEEDINGS NO.D2/2841/2017/SE DATED 07.03.2018.

Nissam.v.a v. State of Kerala

Case brief

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Nissam.v.a v. State of Kerala

Case brief

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