Disposed

M and T Constructions v. State of Kerala

Kerala HC13 Sept 2021WP(C)/10714/2021

Case brief

AI extract

What is this about?

The High Court of Kerala directed the Superintending Engineer to reconsider a direction to furnish an additional performance guarantee. This decision was based on a Government Order (Ext.P7) waiving such guarantees for low-quoted items during the pandemic.

What did the court decide?

Directed the 3rd respondent to reconsider the direction in Ext.P3 to furnish additional performance guarantee within four weeks.

M and T Constructions Vs State of Kerala — Service and Employment | 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 MR. JUSTICE P.V.KUNHIKRISHNAN

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MONDAY, THE 13^TH DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943

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WP(C) NO. 10714 OF 2021

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PETITIONER:

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M & T CONSTRUCTIONS VALIYAKAVALA, VAIKOM P.O., KOTTAYAM DISTRICT, REPRESENTED BY ITS MANAGING PARTNER, MANOJ KRISHNA BY ADVS. BABU JOSEPH KURUVATHAZHA SRI.M.G.SREEJITH SMT.K.S.ARCHANA

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF PUBLIC WORKS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001

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2 CHIEF ENGINEER (ADMINISTRATION) PUBLIC WORKS DEPARTMENT, PUBLIC OFFICE BUILDING, MUSEUM, THIRUVANANTHAPURAM-695 033

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3 SUPERINTENDING ENGINEER, PUBLIC WORKS DEPARTMENT (ROADS & BRIDGES) SOUTH CIRCLE, PUBLIC OFFICE BUILDING, MUSEUM, THIRUVANANTHAPURAM-695 033

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4 EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT (ROADS DIVISION), KOTTAYAM-686 001

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BY ADV.DEEPA NARAYANAN, SR. GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C).No.10714/2021

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P.V.KUNHIKRISHNAN, J.

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W.P.(C).No.10714 of 2021

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Dated this the 13^th day of September, 2021

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JUDGMENT

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This writ petition is filed with following prayers:

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i. Issue a writ of certiorari or any other appropriate writ, order or direction, quashing the operation of Ext.P3, to the extent directing the petitioner to furnish additional performance guarantee.

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ii. issue any appropriate writ, order or direction declaring that petitioner need not furnish additional performance guarantee for extending the time of completion of work involved in Agreement No.99/SESC/201/-19 dated 3.10.2018, in view of Exts.P4 to P6 Office Memorandums issued on behalf of the Government of India and Ext.P7 order of the 1^st respondent.

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iii. Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 3^rd respondent to consider and dispose of Ext.P8 representation, in the light of Exts.P4 to P6 Office Memorandums issued on behalf of the Government of India and Ext.P7 order of the 1^st respondent, forthwith, with notice to the petitioner.

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W.P.(C).No.10714/2021

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iv. Issue such other writ, order or direction which may deem fit in the facts and circumstances of the case.

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Construction of Kaduthuruthy byepass Phase II from Ch.0/190 to 0/785 was awarded to the petitioner and he executed the agreement on furnishing the performance guarantee worth Rs.37,47,800/- valid for 56 months and additional performance security deposit worth Rs.53,26,708/in the form of bank guarantee, valid upto 30.06.2020. According to the petitioner, since inordinate delay was occurred at the office of the respondents in recording the initial levels and handing over work site, free from obstructions, the petitioner could not complete the work within 18 months. Hence he submitted Ext.P2 representation along with an application in the proper format, seeking extension of time up to 31.08.2021. It is the case of the petitioner that the said application was duly recommended by AE, AEE and the 4^th respondent, for extending the time without fine. But, as per Ext.P3, the petitioner was directed by the 3^rd respondent to furnish additional performance guarantee, when the furnishing of additional performance guarantee is to be waived as per Exts.P4 to P6 Office

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W.P.(C).No.10714/2021

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Memorandums issued by the Government of India and Ext.P7 order of the 1^st respondent. Hence this writ petition is filed to quash the direction in Ext.P3 to furnish additional performance guarantee.

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Heard the counsel for the petitioner and the Government Pleader.

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The counsel for the petitioner reiterated his contentions in the writ petition. The counsel submitted that, in the light of Ext.P7 Government Order, the direction in Ext.P3 to furnish additional performance guarantee is unsustainable. The Government Pleader submitted that the respondents extended the term without imposing fine.

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After hearing both sides, I think there can be a direction to the 3^rd respondent to reconsider the direction to furnish additional performance guarantee in the light of Ext.P7 Government Order. The 3^rd respondent will look into Ext.P7 while passing orders in accordance to law.

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Clause 4(3) of Ext.P7 order is extracted hereunder:

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“Additional performance Guarantee is waived for the low quoted items on the condition that the bidder shall furnish an undertaking to execute all low quoted items in full as per contract terms.”

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W.P.(C).No.10714/2021

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Ext.P7 order is passed in connection with the the Covid-19 pandemic situation. In the light of Clause 4(3) in Ext.P7, the direction in Ext.P3 to furnish additional performance guarantee can be reconsidered by the 3^rd respondent.

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Therefore, this writ petition is disposed in the following manner:

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The 3^rd respondent is directed to reconsider the direction in Ext.P3 to furnish additional performance guarante, in the light of Ext.P7 order.

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The above exercise should be completed by the 3^rd respondent, as expeditiously as possible, at any rate, within four weeks from the date of receipt of a copy of this judgment.

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sd/-

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P.V.KUNHIKRISHNAN

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JUDGE

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W.P.(C).No.10714/2021

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APPENDIX OF WP(C) 10714/2021

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PETITION	ER EXH	IBITS
EXHIBIT	P1	TRUE COPY OF THE SELECTION NOTICE NO.DB4.674/2018 DATED 09.1028 ISSUED BY THE 3RD RESPONDENT
EXHIBIT	P2	TRUE COPY OF THE REPRESENTATION DATED 10.6.2020 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT
EXHIBIT	P3	TRUE COPY OF THE LETTER NO.D.B 3 (7) 2-674/2018 DATED 12.4.2021 ISSUED BY THE 3RD RESPONDENT
EXHIBIT	P4	TRUE COPY OF THE OFFICE MEMORANDUM NO.F.18/4/2020-PPD DATED 13.5.2020 ISSUED BY THE PROCUREMENT POLICY DIVISION,MINISTRY OF FINANCE, DEPARTMENT OF EXPENDITURE, GOVERNMENT OF INDIA
EXHIBIT	P5	TRUE COPY OF THE OFFICE MEMORANDUM NO.F.9/4/2020-PPD DATED 12.11.2020 ISSUED BY THE PROCUREMENT POLICY DIVISION,MINISTRY OF FINANCE, DEPARTMENT OF EXPENDITURE, GOVERNMENT OF INDIA
EXHIBIT	P6	TRUE COPY OF THE OFFICE MEMORANDUM NO.F.9/4/2020-PPD DATED 12.11.2020 ISSUED BY THE PROCUREMENT POLICY DIVISION,MINISTRY OF FINANCE, DEPARTMENT OF EXPENDITURE, GOVERNMENT OF INDIA
EXHIBIT	P7	TRUE COPY OF G.O(P) NO.7/2021/FIND DATED 7.1.2021 ISSUED BY THE 1ST RESPONDENT
EXHIBIT	P8	TRUE COPY OF THE REPRESENTATION DATED 20.4.2021 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT

M and T Constructions v. State of Kerala

Case brief

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M and T Constructions v. State of Kerala

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