Allowed

Malabar Plus Constructions Pvt. Ltd. v. State of Kerala

Kerala HC21 Jan 2021WP(C)/156/2021

Case brief

AI extract

What is this about?

A Writ Petition regarding a PWD contractor seeking adjustment of a pending work bill towards performance and additional performance guarantees. The Court directed the respondents to manually effect the adjustment as per a Government Order, bypassing technical software restrictions.

What did the court decide?

Directed the 3rd respondent to adjust the admissible amount under pending bills towards performance and additional performance guarantees manually within three weeks, and granted the petitioner a furt

Malabar Plus Constructions Pvt. Ltd. Vs… — 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 SMT. JUSTICE P.V.ASHA

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THURSDAY, THE 21ST DAY OF JANUARY 2021 / 1ST MAGHA, 1942

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WP(C).No.156 OF 2021(T)

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PETITIONER:

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M/S.MALABAR PLUS CONSTRUCTIONS PVT. LTD. BUILDING NO.MM 21/28A, KUTTIPARA, PAYYANAD, MANJERI, MALAPPURAM DISTRICT-676 122 REPRESENTED BY ITS DIRECTOR HANEEZ, S/O. KUNHIMUHAMMED, RESIDING AT VADAKKANGARA PALLIKKARA HOUSE, KUTTIPARA, PAYYANAD, MANJERI, ELANKUR, MALAPPURAM DISTRICT-676 122.

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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.

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RESPONDENTS:

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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, MANANCHIRA, KOZHIKODE-673 001.

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4 THE EXECUTIVE ENGINEER PWD ROADS DIVISION, MANJERI, MALAPPURAM DISTRICT-676 121.

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OTHER PRESENT:

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SMT.PRINCY XAVIER, GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.156 OF 2021(T)

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A PWD contractor seeks adjustment of pending bill towards performance guarantee and additional performance guarantee for the new work, in the light of Ext.P3 order of Government.

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As per Ext.P1 selection notice dated 22.12.2019, in respect of the work of “Improvements by providing BM and BC to Koorachipadu Naduvattom road km. 1/000 to 3/440 in Palakkad District” the 3^rd respondent directed the petitioner, to deposit performance guarantee of Rs.16,15,800/- out of which Rs.4,69,750/- is to be by way of treasury deposit. It is also asked to furnish additional performance guarantee of Rs.100/- out of which 50% shall be in the form of Treasury Deposit, before executing the agreement.

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WP(C).No.156 OF 2021(T)

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Petitioner points out that it has already

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carried out of the work of “Flood works 2019-Urgent Rectification of damaged surfaces in between Km.3/500 and 4/000 on Manjeri-Olippuzha Road in Manjeri LAC Working Chainage km.3/710 to 3/970” for which a sum of Rs.24,05,218/- is due and this is

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covered by Exts.P2 certificate and P2(a) bill.

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As per Ext.P3 -G.O.(Rt) No. 3834/2020/Fin

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dated 23.06.2020 Government has ordered that the amount under audited and passed bills of contractors

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would be accepted as Performance

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Guarantee/Additional Performance Guarantee for new contracts. Petitioner therefore submitted an application dated 28.12.2020 requesting the 3^rd respondent to adjust the pending bill against the performance guarantee and the additional performance guarantee. The 3^rd respondent thereupon informed the petitioner that bill amount would be accepted

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WP(C).No.156 OF 2021(T)

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towards performance guarantee on the basis of indemnity certificate issued online in EMLI application, as provided in Ext.P3 order. This writ petition is filed at this stage, aggrieved by Ext.P4 letter, as the EMLI software has not so far been modified in tune with Ext.P3 order.

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Petitioner points out that in the case of several contractors pending bills are already adjusted manually on the basis of directions from this Court since the EMLI software has not been

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modified so far in tune with Ext.P3 Government Order.

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Learned Government Pleader also submitted

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that the EMLI software is not modified so far.

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Ext.P3 Government order has been issued as

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early as on 23.06.2020. As per sub clause (v) of Clause 3 of Ext.P3 order, work bill amount will be accepted as Guarantee for new works being awarded,

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WP(C).No.156 OF 2021(T)

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only on the basis of indemnity certificate issued online in EMLI application. Clause 4 provides for effecting necessary modifications in EMLI to facilitate the new system. The facility for adjustment of the bills have been ordered by Government for the benefit of the contractors on their request. When such a facility is ordered, Government has also to see that suitable modifications are effected in the software so as to enable the contractors to enjoy the benefit of the

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order. The petitioner cannot therefore be denied the benefit of the order. This Court has in several cases directed the respondents to carry out the adjustment manually.

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Therefore there shall be a direction to the 3^rd respondent to re-consider the request of the petitioner and to adjust the admissible amount under the pending bill covered by Exts.P2 and P2(a)

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WP(C).No.156 OF 2021(T)

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towards performance guarantee and additional performance guarantee in accordance with Ext.P3 Government Order manually, i.e., without insisting for indemnity certificate through EMLI. This shall be done within a period of 'three weeks' from the date of receipt of a copy of the judgment. Petitioner shall also be granted time for execution of agreement by a further period of 'two weeks'.

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Sd/- P.V.ASHA, JUDGE

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WP(C).No.156 OF 2021(T)

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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.DC 08/PRICE/2020/2289 DATED 22.12.2020 OF THE 3RD RESPONDENT. EXHIBIT P2 TRUE COPY OF THE CERTIFICATE NO.E311033/2020 DATED 28.12.2020 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P2(A) TRUE COPY OF THE CHECKLIST-GENERAL BILL DATED 23.12.2020. EXHIBIT P3 TRUE COPY OF THE GOVERNMENT ORDER G.O.(RT) NO.3834/2020/FIN DATED 23.6.2020. EXHIBIT P4 TRUE COPY OF THE LETTER DATED 30.12.2020 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 25.8.2020 IN WPC NO.17500/2020 OF THIS HON'BLE COURT.

Malabar Plus Constructions Pvt. Ltd. v. State of Kerala

Case brief

What is this about?

What did the court decide?

Malabar Plus Constructions Pvt. Ltd. v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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