Allowed

Jabir Usman C.K. v. State of Kerala

Kerala HC11 Sept 2020WP(C)/18149/2020

Case brief

AI extract

What is this about?

Petitioner, an A Class contractor, challenged non-payment of bills and sought to utilize audited bills as performance guarantee under a Government Order. The Court allowed the petition, directing respondents to admit the unpaid bill towards guarantee and extending the time for executing the additional performance guarantee by two weeks.

What did the court decide?

Directions to admit unpaid bill towards performance guarantee and security deposit; extension of time for executing additional performance guarantee by two weeks.

Jabir Usman C.K. 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 SMT. JUSTICE P.V.ASHA

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FRIDAY, THE 11TH DAY OF SEPTEMBER 2020 / 20TH BHADRA, 1942 WP(C).No.18149 OF 2020(P)

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PETITIONER:

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JABIR USMAN C.K., AGED 50 YEARS, CHALATHIL KALLADITHODI HOUSE, MELMURI P.O., MALAPPURAM DISTRICT.

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BY ADVS. SRI.JOMY GEORGE SRI.R.PADMARAJ SRI.DEEPAK MOHAN SMT. CHITRA N. DAS SHRI.RISHAB S.

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 THE SECRETARY, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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3 THE EXECUTIVE ENGINEER, PWD ROADS DIVISION, MANJERI, MALAPPURAM DISTRICT-676121.

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4 THE SUPERINTENDING ENGINEER, PWD ROADS NORTH CIRCLE, PWD COMPLEX, MANANCHIRA, KOZHIKODE-673001.

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BY ADV. SMT.PRINCY XAVIER, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.18149 of 2020

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JUDGMENT

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The petitioner, who is an A Class contractor submits that payment is due to him based on Exts.P2 and P3 bills for a sum of Rs.7,92,799/- and Rs.27,66,189/- respectively and these bills were already submitted on 09.07.2020 and 27.04.2020 respectively.

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2. The petitioner has also submitted his Bid consequent to Ext.P1 notification, which requires furnishing of performance guarantee of

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Rs.15,84,200/-, apart from additional performance guarantee of Rs.19,54,500/- and 50% of which shall be in the form of Treasury Deposit having validity for 9 months.

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3. The learned counsel for the petitioner submits that he is entitled to the benefit of Ext.P5 Government Order, which provides as follows:

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“3. The amounts under the audited and passed bills of contractors will be accepted as Performance Guarantee/ Additional Performance Guarantee for new contracts being awarded subject to the

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W.P.(C) No.18547 of 2020

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following conditions.

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(i) This facility will be available only for the bills processed for payments in the EMILI application by the Works Departments (i.e. Public Works Department, Irrigation Department, Harbour Engineering Department etc).

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(ii) This facility will be applicable to the audited and passed contract bills only.

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(iii) The indemnified amount for Guarantee of a work shall be transferred permanently to the disposal of the officer, who is the agreement authority for the new work in which agreement is to be executed and the balance amount after deducting the statutory recoveries and other liabilities, if any, will be paid to the contractor when the work bill is cleared. (iv) The indemnified amount will not be considered for discounting under the Bill Discounting Scheme (BDS) (i.e. The contractor can opt BDS for the balance payment after deducting the indemnified amount as per Performance Guarantee/ Additional Performance Guarantee).”

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4. It is admitted by both sides that this Court has been issuing directions permitting the contractors to seek the benefit of Ext.P5

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W.P.(C) No.18547 of 2020

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Government Order as against the pending bills. Therefore the writ petition is allowed directing the respondents to admit the unpaid bill

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to the extent necessary towards performance guarantee as well as Security Deposit for the work covered by Ext.P1 notification. The time for execution of the additional performance guarantee as well as Security Deposit shall stand extended by two weeks.

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Sd/P.V.ASHA JUDGE

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W.P.(C) No.18547 of 2020

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE SELECTION NOTICE NO.DC05PRICE/2019/2322 DATED 29.07.2020 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P2 TRUE COPY OF THE BILL DATED 09.07.2020 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P3 TRUE COPY OF THE E-BILL DATED 27.04.2020 TOOK FROM THE WEBSITE OF PUBLIC WORKS DEPARTMENT. EXHIBIT P4 TRUE COPY OF THE LETTER DATED 14.08.2020 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. EXHIBIT P5 TRUE COPY OF THE GOVERNMENT ORDER G.O(RT.)NO.3834/2020/FIN DATED 23.06.2020. EXHIBIT P6 TRUE COPY OF THE LETTER DATED 17.08.2020 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.

Jabir Usman C.K. v. State of Kerala

Case brief

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Jabir Usman C.K. v. State of Kerala

Case brief

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