Dismissed

The Managing Director v. H.Dileep Kumar

Kerala HC9 Sept 2021WA/377/2021

Case brief

AI extract

What is this about?

This writ appeal filed by the Managing Director of United Electrical Industries Ltd. challenging a Single Judge's order directing the payment of a final bill was dismissed. The Court held that the direction to process the bill and take a reasoned decision was lawful and did not constitute illegality justifying interference.

What did the court decide?

Writ appeal dismissed, maintaining the Single Judge's order to process the final bill.

The Managing Director Vs H.Dileep Kumar — Contract and Commercial Disputes | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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THURSDAY, THE 9^TH DAY OF SEPTEMBER 2021 / 18TH BHADRA, 1943

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WA NO. 377 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 13419/2013 OF HIGH COURT OF KERALA

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APPELLANT/3rd RESPONDENT:

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THE MANAGING DIRECTOR

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UNITED ELECTRICAL INDUSTRIES LTD., A GOVERNMENT OF KERALA COMPANY, PALLIMUKKU, VDAKEVILA P.O., KOLLAM-691 010.

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BY ADV THOUFEEK AHAMED

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RESPONDENTS:PETITIONER & RESPONDENTS 2, 1 & 4

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1 H.DILEEP KUMAR S/O.K.HARIDASAN NAIR, PROPRIETOR, HI ELECT ENTERPRISES, TC 42/1305(1), ANRA111, ASAN NAGAR, VALLAKADAVU P.O., THIRUVANANTHAPURAM-695 008.

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2 THE PROJECT MANAGER, PROJECT IMPLEMENTATION UNIT, KERALA SUSTAINABLE URBAN DEVELOPMENT PROJECT, CORPORATION OF KOLLAM-691 013.

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3 THE SECRETARY, INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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4 PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, STATE OF KERALA, 4TH FLOOR, SECRETARIAT ANNEX, ROOM NO.403, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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SRI.K.R.SUNIL FOR R1

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SRI.M.K.CHANDRAMOHAN DAS,STANDING COUNSEL FOR R2

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SRI.TEK CHAND, LEARNED SENIOR GOVERNMENT PLEADER FOR R3

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& R4

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.09.2021, THE

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COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A. No.377 of 2021

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JUDGMENT

Dated this the 9^th day of September, 2021

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SHAJI P.CHALY,J.

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This appeal is filed by the 3^rd respondent in W.P.(C) No.13419 of 2020, challenging the judgment dated 26.11.2020. The reliefs sought for by the petitioner in the writ petition are as follows:

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“i) issue a writ of mandamus compelling the 1^st , 2^nd and 3^rd respondents to release the balance amount shown in Exhibit P4 forthwith.

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ii) Issue such other writs, orders or directions deem fit and proper in the interest of justice.

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The subject issue relates to a contract awarded to the writ

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petitioner as per an agreement dated 18.4.2009 and the alleged nonpayment of the entire amount due to the writ petitioner. The appellant had filed a detailed counter affidavit along with documents and submitted that the writ petitioner is not entitled to get any amount from

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the appellant and further that the issue was settled in an earlier writ petition and in a contempt petition filed in consequence to the non

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W.A. No.377 of 2021 : 3 :

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compliance of the directions contained in the Judgment. However, the learned Single Judge, after taking into account the contentions put forth by the rival parties, has disposed of the writ petition basically directing the appellant and the Project Manager, Project Implementation Unit, Kerala Sustainable Urban Development Project Corporation, Kollam, - 2^nd respondent, to process the final bill of the petitioner in the light of the observations made in the judgment, within a period of four weeks and pay the balance amount to the petitioner within a further period of four weeks.

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The basic contention advanced by the appellant is that the appellant and the writ petitioner have signed Exhibits P1, P2 and R3(a) agreements and as the contractual obligations entered into by and between them involved complicated questions of facts to be proved, the writ petitioner ought to have been relegated to a civil court rather than adjudicating the disputed issue by and between the parties by the writ court. It is also contended that it is a well settled position in law that whenever there are disputed questions of fact in contractual matters, the writ court may not exercise its jurisdiction in order to resolve the issue. It was also contended that the writ petitioner has pleaded in the reply

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W.A. No.377 of 2021

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affidavit that periodical endorsement, and acknowledgement in Measurement Book was maintained by the appellant and the 2^nd respondent, clearly proves the fallacy of the allegations.

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Therefore, the sum and substance of the contention advanced is that going by the contention advanced by the writ petitioner himself, in order to prove the allegations, Measurement Book should be brought in evidence and for that, a civil suit is to be filed. Therefore, according to the appellant, the directions given by the learned Single Judge to process the final bill, taking into account the observations contained in the judgment, cannot be sustained under law. It is also contended that already an amount of Rs.59,65,252/- was paid to the writ petitioner and the balance remaining due will be only Rs.4,14,430/-. In the above backdrop, appellant seeks to vacate the directions contained in the judgment.

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We have heard, learned counsel for the appellant Sri.Thoufeek Ahamed, learned Senior Government Pleader Sri.Tek Chand, Sri.K.R.Sunil for the writ petitioner/1^st respondent and perused the pleadings and materials on record.

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W.A. No.377 of 2021

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It is true, in order to identify the issues involved the learned Single Judge has made certain observations in the judgment taking into account the documents produced by the rival parties and the possibility of the amounts remaining due to the writ petitioner. For the sake of brevity, the relevant observations contained in the Judgment are extracted hereunder:

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“17. In view of Ext.P3 Completion Certificate issued by the 3rd respondent and Ext.R3(b) Completion Certificate issued by the 2^nd respondent, it is evident that respondents 2 and 3 were satisfied that the work has been completed satisfactorily, the site with completed work was handed over by the petitioner and there was no material deviation.

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The 2^nd respondent-KSUDP has issued Ext.R3(b) certifying that the work mentioned was completed on 31.12.2011 and handed over on 30.06.2012 and further that there have been no material deviations from the sanctioned plans and specifications other than those sanctioned by the competent authority. The 3rd respondent has stated in its counter affidavit dated 23.09.2013 that Galvanized Octagonal Poles are claimed as more durable and safe. The 2nd respondent has not disputed this fact. The petitioner is not claiming any higher amount

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W.A. No.377 of 2021

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for the better and costlier Poles used. Therefore, going through Exts.P3 and R3(b), the only conclusion possible is that substitution of poles by using better material is with the sanction of respondents 2 and 3. If variation order in this regard is to be passed, it has to be passed by the 2^nd respondent, taking into account the fact that better material has been used and if the deviation, if any, is made, it is with the sanction of the competent authority, as certified in Exts.P3 and R3(b). The petitioner is therefore entitled to receive the balance amount as per the contract.

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Ext.P4 would show that the petitioner has received only Rs.60,42,998/- towards the contractual amount. Therefore, the contract amount being Rs.1,11,52,500/- as is evident from Ext.P1, the petitioner has yet to be paid the balance amount which will be more than Rs.51 lakhs.

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As regards the amount payable to the petitioner, Ext.P1 of the 3rd respondent would show that the total purchase value is Rs.1,11,52,500/-. The petitioner has admitted receipt of Rs.60,42,998/- in Ext.P4. Going by Exts.P1 and P4, the balance payable would be Rs.51,09,502/-, subject to statutory deductions, if any. However, by Ext.R3(e), the 3rd respondent has taken a stand

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W.A. No.377 of 2021

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that the balance due is Rs.4,14,430/- only.

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Ext.P8 of the 3rd respondent would indicate that the amount payable to the petitioner is Rs.67,80,387/-. This amount outstanding must necessarily be as on 27.05.2014, the date of Ext.P8. In Ext.P8, the 3rd respondent again deducted Rs.59,65,252/- from the outstanding of Rs.67,80,387/-, stating that Rs.59,65,252/- is already paid to the petitioner. The outstanding of Rs.63,79,682/- being after adjusting the amounts already paid to the petitioner, the further deduction of Rs.59,65,252/- therefrom can only be an arithmetical mistake. The balance payable to the petitioner, indeed is much higher than Rs.4,14,430/-.

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Another reason for not settling the Bill of the petitioner, advanced by the 3rd respondent, is that in the invoice submitted by KSUDP, the total value of work executed by the Company is shown as Rs.94,07,794/-. This is for the reason that the KSUDP has not approved the Bill for extra items. In fact, the Team leader of KSUDP as per Ext.P11 has required the 2^nd respondent for approval for the substituted street poles and extra items. The 2^nd respondent is bound to consider whether the extra items were necessary for the work and whether actually used by the contractor and take an

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W.A. No.377 of 2021

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informed decision. The 2^nd respondent may accept or refuse payment for extra items, but it should be for reasons recorded. Without considering these aspects, the 2nd respondent just cannot sit on the bills and say that those are not approved.”

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Going by the judgment of the learned Single Judge, it is categoric and clear that learned Single Judge has granted liberty to 2^nd and 3^rd respondent/appellant, to consider the issues raised by the writ petitioner and arrive at a conclusion assigning reasons. It is also clear that the 2^nd respondent was given the liberty to consider whether extra items were necessary for the work and whether actually used by the Contractor and pass an informed decision.

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Having analysed the contentions raised by the appellant, we are of the opinion that appellant has not made out any case of illegality or other legal infirmities, justifying us to interfere with the judgment since direction is issued only to process the final bill taking into account the observations contained in the judgment. Even though, learned counsel for appellant submitted that the 2^nd respondent i.e., Project Manager, Project Implementation Unit, Kollam, has not filed any counter and was not co-operating in regard to the claims raised by the writ petitioner, we

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are of the view that it can never be treated as a ground to vacate the directions issued by the learned Single Judge to process the final bill and take appropriate reasoned decision, also taking into account the observations contained in the judgment. It was after understanding the true implications in the matter alone, instead of directing to release the amount to the writ petitioner, the direction to process the final bill was issued., which can never be said to be illegal. To put it short the appellant has not made out any case for interference in the Judgment.

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Needless to say, writ appeal fails, accordingly it is dismissed.

Sd/-

S. MANIKUMAR,

CHIEF JUSTICE.

Sd/-

SHAJI P. CHALY, JUDGE.

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smv

The Managing Director v. H.Dileep Kumar

Case brief

What is this about?

What did the court decide?

The Managing Director v. H.Dileep Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

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