Allowed

Rajesh Varkey v. State of Kerala

Kerala HC9 Dec 2020WP(C)/27526/2020

Case brief

AI extract

What is this about?

This court set aside an order rejecting a contractor's request for bill adjustment against Performance Guarantees due to a non-functional EMLI application. It directed authorities to adjust bills manually and grant an extension for the Agreement.

What did the court decide?

Set aside Ext.P6 direction; direct 3rd respondent to adjust bills against Performance Guarantee within two weeks; if EMLI not fixed, mandate manual adjustment with extension for agreement execution.

Rajesh Varkey 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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WEDNESDAY, THE 09TH DAY OF DECEMBER 2020 / 18TH AGRAHAYANA, 1942 WP(C).No.27526 OF 2020(M)

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PETITIONER/S:

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RAJESH VARKEY, S/O K J VARKEY AGED 40 YEARS, PWD CONTRACTOR, KARIMPANAKKAL HOUSE, PLACHIKARA P O, VELLARIKNDU, KASARAGODE

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BY ADVS. SRI.JOMY GEORGE SRI.R.PADMARAJ SRI.M.J.BENNY SRI.DEEPAK MOHAN SMT. CHITRA N. DAS SHRI.RISHAB S. SRI.R.AJITH KUMAR [V.K.EDOM]

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – 695 001

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2 THE SECRETARY, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – 695 001

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3 THE SUPERINTENDING ENGINEER, PWD ROADS NORTH CIRCLE, PWD COMPLEX, MANACHIRA, KOZHIKODE - 673001

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4 THE EXECUTIVE ENGINEER, PWD ROADS DIVISION, PWD COMPLEX, PULIKKUNNU, KASARAGODE – 671 121

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SMT.PRINCY XAVIER, GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.27526 OF 2020 (M)

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JUDGMENT

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Dated this the 9^th day of December 2020

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The petitioner is a contractor, who has

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been awarded the work as per Ext.P1 selection notice dated 06.11.2020. Towards the Performance Guarantee and Additional

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Performance Guarantee, petitioner has requested

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for adjustment of Ext.P2 bill, submitting

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Ext.P3 and Ext.P4 representation producing

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bill.

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It is stated that, the 4^th respondent

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thereupon forwarded Ext.P2 representation, along with the bill note as per Ext.P4 letter to the 3^rd respondent. As per Ext.P5 letter,

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the representation has been rejected stating

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that, as per Ext.P6 Government Order, the

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pending bill amount would be accepted as

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guarantee for new works being awarded, only on the basis of indemnity certificate issued only

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WP(C).No.27526 OF 2020 (M)

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in EMLI application on the bills registered from 01.04.2020 onwards.

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The learned counsel for the petitioner

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points out that, this Court has in various judgments allowed manual adjustment of bills

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since the EMLI application is not in

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operation.

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Heard the learned Government Pleader

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also. It is not disputed that, EMLI

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application is not working. Therefore Ext.P6 is set aside. There shall be a direction to the 3^rd respondent to reconsider the request of the petitioner and to take appropriate steps

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for the adjustment of the bills as requested by the petitioner against the Performance Guarantee as well as Additional Performance Guarantee within a period of two weeks.

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In case the EMLI application is not

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rectified, the respondents shall see that, the

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WP(C).No.27526 OF 2020 (M)

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bill is adjusted manually. Corresponding extension shall be given to the petitioner to execute the Agreement and to commence the work.

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This Writ Petition is disposed of

accordingly.

SdP.V.ASHA JUDGE

WP(C).No.27526 OF 2020 (M)

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APPENDIX

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PETITIONERS'S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE SELECTI	ON NOTICE
	NO.DC06/RD/2019/3672 DATED ISSUED BY THE 3RD RESPONDENT	06.11.2020
EXHIBIT P2	TRUE COPY OF THE PROFORMA ISS 4TH RESPONDENT	UED BY THE
EXHIBIT P3	TRUE COPY OF THE REPRESENTA 25.11.2020 SUBMITTED BY THE BEFORE THE 3RD RESPONDENT	TION DATED PETITIONER
EXHIBIT P4	TRUE COPY OF THE LETT 19.11.2020 SENT BY THE 4TH TO THE 3RD RESPONDENT ALONG COPY OF THE BILL	ER DATED RESPONDENT WITH THE
EXHIBIT P5	TRUE COPY OF THE NO.DC6/RD/2019/3672 DATED 04. THE 3RD RESPONDENT	ORDER 12.2020 OF
EXHIBIT P6	TRUE COPY OF THE GOVERNMENT (Rt).NO.3834/2020 FIN DATED 2	ORDER G.O. 3.06.2020
EXHIBIT P7	TRUE COPY OF THE JUDGM	ENT DATED
	25.08.2020 IN W.P.C.NO.1750 THIS HON'BLE COURT	0/2020 OF

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RESPONDENTS EXHIBITS: NIL

Rajesh Varkey v. State of Kerala

Case brief

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Rajesh Varkey v. State of Kerala

Case brief

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