Dismissed

Shento V.A v. Secretary, K.S.E.B

Kerala HC4 Dec 2020WP(C)/21237/2018

Case brief

AI extract

What is this about?

Petitioner, an approved contractor, filed a writ petition seeking implementation of revised National Building Code rates (SOR 2012) for work completed in 2015 that was awarded in 2011. The Court held that the adoption of new rates was prospective only; the contract lacked a price escalation clause, and claimed damages are not maintainable in writ proceedings.

What did the court decide?

The writ petition filed seeking revised rates for the executed work was dismissed.

Shento V.A Vs Secretary, K.S.E.B — Contract and Commercial Disputes | Kerala HC (2020)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE N.NAGARESH

¶4

FRIDAY,THE 4TH DAY OF DECEMBER 2020/13TH AGRAHAYANA,1942

¶5

WP(C).No.21237 OF 2018(D)

¶6

PETITIONER:

¶7

SHENTO V.A.,AGED 38 YEARS, S/O.V.P.ANTO, VALLACHIRAKKARAM HOUSE, P.O.CHERPU, TRICHUR DIST., PIN-680 561.

¶8

BY ADVS. SMT.JEENA JOSEPH SRI.G.D.PANICKER SMT.V.J.SUMI LIZA

¶9

RESPONDENTS:

¶10

1 THE SECRETARY, KERALA STATE ELECTRICITY BOARD (KSEB) LIMITED,VYDHUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM,PIN-695 004.

¶11

2 THE DEPUTY CHIEF ENGINEER, TRANSMISSION CIRCLE, MALAPPURAM, PIN-676 509.

¶12

3 THE EXECUTIVE ENGINEER, TRANSMISSION CIRCLE, MALAPPURAM, PIN-676 509.

¶13

4 THE ASST. EXECUTIVE ENGINEER, TRANSMISSION DIVISION, MALAPPURAM, MUNDUPARAMBA P.O., MALAPPURAM, PIN-676 509.

¶14

BY SRI.SUDHEER GANESH KUMAR, SC FOR KSEB

¶15

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-12-2020 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WPC No.21237/2018

: 2 :

N. NAGARESH, J.

W.P.(C) No.21237 of 2018

¶21

Dated this the 4^th day of December, 2020

¶22

J U D G M E N T

¶23

~ ~ ~ ~ ~ ~ ~ ~ ~

¶24

The petitioner, who is an approved Contractor of KSEB Ltd., is before this Court seeking to implement the revised rate of SOR 2012 to the petitioner's work for the construction of Nilambur – Adyanpara 33 KVSC line and to direct the respondents to re-calculate the final bill of the petitioner's awarded work based on the revision in SOR 2012 and on the basis of Ext.P10 statement of the 3^rd respondent.

¶25

The petitioner states that he is an approved Contractor of the KSEB Ltd. who has been undertaking contract works. The petitioner was awarded the work of Nilambur-Adyanpara 33 KVSC lane as per work order dated

¶26

WPC No.21237/2018

¶27

: 3 :

¶28

15.09.2011. Ext.P1 agreement was executed by the petitioner with the Executive Engineer, Transmission Division on 30.09.2011. The work was for an amount of `69,02,029/-.

¶29

The petitioner states that the work had to be completed by 31.03.2012. But, the work was considerably delayed due to unforeseen circumstances arising after the execution of the agreement. The work was completed only on 30.04.2015 and the final bill amount was paid to the petitioner on 24.05.2016.

¶30

The petitioner states that the estimate of the work undertaken and completed by the petitioner was worked out as per SOR 2010. In the interregnum, the CPWD SOR 2012 was brought into force, taking into account the escalation of price of commodities and labour costs. The Kerala State Electricity Board, as per Ext.P5 order dated 25.07.2014, adopted the SOR 2012 and National Building Code Guidelines in the Kerala State Electricity Board Ltd. The petitioner states that since the SOR 2012 was intended to be applied from the year 2012 and the petitioner could start

¶31

WPC No.21237/2018

¶32

: 4 :

¶33

work only in the year 2014, the respondents are liable to revise the estimate of the work completed by the petitioner in tune with Ext.P5 order and pay the balance amount due to the petitioner forthwith.

¶34

The learned counsel for the petitioner would argue that the work could not be started and completed within time for no fault of the petitioner. The work could not be started in time since there was an interim order of the Additional District Magistrate, Malappuram, inhibiting commencement of work. The work could be commenced only after the litigation. The respondents are aware of the fact that the delay in commencing and completing the work is not due to any fault of the petitioner.

¶35

Respondents 1 to 4 contested the writ petition filing counter affidavit. According to the respondents, the dispute raised by the petitioner is of civil nature and has to be adjudicated before Civil Court. The respondents pointed out that the petitioner was awarded the work at 39% above the estimate. Therefore, delay in execution of the work has not

¶36

WPC No.21237/2018

¶37

: 5 :

¶38

adversely affected the petitioner in a substantial manner.

¶39

The learned Standing Counsel for respondents 1 to 4 further pointed out that the KSEB Ltd. has accorded sanction to adopt CPWD SOR 2012 in Ext.P5 dated 25.07.2014, with prospective effect only. Therefore, the said revision will be applicable only to those work which have been assigned on or after 25.07.2014. The petitioner has no legal right to claim the revised rates. Assuming that the petitioner is entitled thereto, the revised amount would come only `1,20,449/-, which is 2.07% above agreed rate. The writ petition is liable to be dismissed for all the above reasons, contended the Standing Counsel for the KSEB.

¶40

The petitioner entered into an agreement with the respondents as per Ext.P1 agreement dated 30.09.2011. During the said period, SOR 2010 was applicable. Estimate was prepared on that basis. Subsequently, the CPWD revised their rates as per SOR 2012. The revision of rates by the CPWD will not give any rights to the petitioner for payment at revised rates.

¶41

WPC No.21237/2018

¶42

: 6 :

¶43

The petitioner has raised her claim on Ext.P5 order of the KSEB by which the KSEB adopted SOR 2012. Ext. P5 order would unequivocally state that “ sanction is also accorded to adopt CPWD SOR and National Building Code Guidelines in the Kerala State Electricity Board Ltd. with prospective effect ”. This shall be made applicable to civil and electrical works with prospective effect. Therefore, it is crystal clear that the petitioner's contract with the respondents being anterior to the date of Ext.P5, the petitioner cannot claim revised rates under Ext.P5.

¶44

The argument of the learned counsel for the petitioner is that the petitioner entered into an agreement with KSEB and work order was issued to the petitioner in the year 2011. Due to unexpected litigations, the work could not be commenced till 2014. The litigation arose not due to any volition of the petitioner. The work which originally was to be completed in the year 2012, could be completed only in the year 2015. In the meanwhile, the cost of materials and labour has increased. As the delay in execution of the work

¶45

WPC No.21237/2018

¶46

: 7 :

¶47

was not due to any fault of the petitioner, the respondents are bound to compensate the petitioner for the cost escalation.

¶48

It is an admitted case that, the agreement entered into by the petitioner with the respondents, has no price escalation clause. Therefore, the petitioner cannot make any claim for price escalation based on the agreement. May be the petitioner has a claim for damages. But, such damages cannot be computed and awarded in writ proceedings. Ext.P11 judgment of this Court in W.P.(C) No.32929/2014 relied on by the petitioner, is distinguishable on facts.

¶49

In the circumstances, this Court finds no merit in the claim made by the petitioner. The writ petition is therefore dismissed.

¶50

Sd/-

¶51

N. NAGARESH, JUDGE

aks/02.12.2020

WPC No.21237/2018

: 8 :

APPENDIX

PETITIONER'S EXHIBITS:

¶57

EXHIBIT P1 AN EXTRACT COPY OF THE AGREEMENT EXECUTED BY THE PETITIONER DATED 30.9.2011.

¶58

EXHIBIT P2 A TRUE PHOTOCOPY OF THE LETTER DATED 20.11.2013 ISSUED BY THE KSEB IN ORDER TO SHOW THAT THE SEVERAL CASES HAVE FILED AGAINST THE CONSTRUCTION WORKS.

¶59

EXHIBIT P3 A TRUE PHOTOCOPY OF THE LETTER DATED 7.3.2015 ISSUED BY THE KSEB. EXHIBIT P4 A TRUE PHOTOCOPY OF THE LETTER DATED 4.10.2013 SENT BY THE PETITIONER ADDRESSED TO THE 2ND RESPONDENT.

¶60

EXHIBIT P5 A TRUE PHOTOCOPY OF THE ORDER DATED 25.7.2014 OF THE KSEB.

¶61

EXHIBIT P6 A TRUE PHOTOCOPY OF THE LETTER DATED 5.6.2015 ADDRESSED TO THE 2ND RESPONDENT.

¶62

EXHIBIT P7 A TRUE PHOTOCOPY OF THE LETTER 14.7.2016 ISSUED BY THE PETITIONER ADDRESSED TO THE CHIEF ENGINEER KSEB, TRIVANDRUM.

¶63

EXHIBIT P8 A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 22.6.2017 BEFORE THE RESPONDENTS.

¶64

EXHIBIT P9 A TRUE PHOTOCOPY OF THE LETTER DATED 19.9.2016 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT.

¶65

EXHIBIT P10 A TRUE PHOTOCOPY OF THE COMPARISON STATEMENT OF WORK DONE BY THE PETITIONER.

¶66

EXHIBIT P11 A TRUE PHOTOCOPY OF THE JUDGMENT DATED 19.11.2015 OF THIS HONOURABLE COURT IN WPC NO.32929/2014.

¶67

WPC No.21237/2018

¶68

: 9 :

¶69

EXHIBIT P12 A TRUE PHOTOCOPY OF THE BOARD ORDER DATED 5.1.2018 (LEGIBLE COPY ATTACHED).

¶70

EXHIBIT P13 A TRUE PHOTOCOPY OF THE LETTER DATED 11.1.2018 OF THE DEPUTY CHIEF ENGINEER.

¶71

EXHIBIT P14 A TRUE PHOTOCOPY OF THE JUDGMENT IN CCC.NO.1983/2017 OF THE HONOURABLE HIGH COURT OF KERALA DATED 28.5.2018.

¶72

RESPONDENTS' EXHIBITS

¶73

EXHIBIT R1A THE TRUE COPY OF THE CALCULATION STATEMENT BASED ON WHICH THE RATE REVISION AMOUNT HAS BEEN ARRIVED.

Shento V.A v. Secretary, K.S.E.B

Case brief

What is this about?

What did the court decide?

Shento V.A v. Secretary, K.S.E.B

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Johnson v John, Vs the Chief Controller of Explosives

Joseph Vs State of Kerala

Pennamma Mohanan Vs State of Kerala

Sunil Joseph, Vs State of Kerala

Chandran.K Vs State of Kerala

Triofab Constructions Pvt. Ltd. Vs Joseph Xavier