Dismissed

T.K.Kesavan v. Kerala Police Housing Construction Corporation Limited

Kerala HC5 Feb 2021WP(C)/21595/2013

Case brief

AI extract

What is this about?

Petitioner challenged a fine imposed for delay in completing a construction contract, citing reasons attributable to the respondent's decision to change roofing materials. The Court found the fine was legally calculated under tender terms, condoned much of the delay, and dismissed the writ petition without interference.

What did the court decide?

The writ petition is dismissed without granting further relief.

T.K.Kesavan Vs Kerala Police Housing… — 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 MR.JUSTICE N.NAGARESH

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FRIDAY, THE 05TH DAY OF FEBRUARY 2021/16TH MAGHA,1942

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WP(C).No.21595 OF 2013(Y)

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PETITIONER:

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T.K.KESAVAN, THALIYARA HOUSE, P.O.NIRAMARUDUR, TIRUR, MALAPPURAM DISTRICT-676 109.

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BY ADV. SRI.O.D.SIVADAS

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RESPONDENTS:

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1 KERALA POLICE HOUSING CONSTRUCTION CORPORATION LIMITED, CHANDRASEKHARAN NAIR STADIUM, VIKAS BHAVAN.P.O., THIRUVANANTHAPURAM-695 033, REPRESENTED BY ITS MANAGING DIRECTOR.

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2 THE MANAGING DIRECTOR, KERALA POLICE HOUSING CONSTRUCTION CORPORATION LIMITED, CHANDRASEKHARAN NAIR STADIUM, VIKAS BHAVAN.P.O., THIRUVANANTHAPURAM-695 033.

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3 THE SENIOR PROJECT ENGINEER, KERALA POLICE HOUSING AND CONSTRUCTION CORPORATION LIMITED, CHANDRASEKHARAN NAIR STADIUM, VIKAS BHAVAN.P.O., THIRUVANANTHAPURAM-695 033.

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R1-3 BY SRI.GOVINDAN.C.K., SC, KPHCC BY ADV. SMT.M.V.LIGI

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) No.21595/2013

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J U D G M E N T

~ ~ ~ ~ ~ ~ ~ ~ ~

Dated this the 5^th day of February, 2021

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The petitioner, who is a Building Contractor, has

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filed this writ petition seeking the following reliefs:-

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“i) call for the records leading tot he proceeding and quash Ext.P9 and P12 by issuing a writ of certiorari.

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ii) issue a writ of mandamus or any other appropriate writ, order or direction tot he respondents to sanction and disburse balance amount of ₹3,06,920/- with interest at 18% per annum for the delay in payment without effecting any recovery.”

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2. The petitioner states that as per Ext.P1 letter, he

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was awarded the work of construction of Truss Roofing for the Administrative Block of KAP-I Battalion, Ramavarmapuram, Thrissur. Work order was received on 28.02.2011 and Agreement was executed on 06.04.2011. The stipulated date of completion of work was 24.04.2011. The 3^rd respondent

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WP(C) No.21595/2013

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orally informed the petitioner that instead of the proposed ordinary G.I. roofing sheets, Lloyd sheets should be used for the truss. By Exts.P2 to P4 letters, the petitioner requested to confirm the roofing material. The decision on change of roofing material was approved by the 2^nd respondent only on 12.04.2012.

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By the time, the stipulated date for completion of work had expired. However, the petitioner completed the work by 25.08.2012. To the surprise of the petitioner, the respondents issued Ext.P7 show-cause notice dated 25.01.2013 on the petitioner, proposing to impose penalty for 53 days delay in completion of work. The petitioner submitted Ext.P8 reply on 30.01.2013. The respondents, without considering the explanation given, imposed a fine of ₹25,903/- as per Ext.P9 order dated 19.03.2013. In appeal, the 2^nd respondent reduced the fine as ₹15,000/-.

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The petitioner would submit that after the completion of work, the petitioner submitted a final bill for ₹5,39,284/-, but only an amount of ₹2,32,364/- has been paid

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WP(C) No.21595/2013

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to the petitioner. An amount of ₹3,06,920/- was withheld due to insufficiency of funds. The petitioner would submit that the non-payment of the full amount under final bill is grossly arbitrary. The imposing of ₹15,000/- as fine for the delay in completion of work is also illegal, since the delay was not caused due to any fault of the petitioner.

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On 30.08.2013, when this writ petition was admitted, this Court passed an interim order directing that the admitted amount shall be released to the petitioner forthwith. The petitioner states that pursuant to the interim order, ₹3,06,920/- has been paid to the petitioner. Therefore, the remaining question to be decided in this writ petition is as regards the sustainability of imposition of fine.

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The learned counsel for the petitioner would submit that the delay in completion of work is substantially due to the fact that the respondents proposed to change the material of roofing. Though the petitioner submitted Exts.P2 to P4 letters to the respondents, the final approval for change of material was granted only on 12.04.2012. Due to this delay, there was

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WP(C) No.21595/2013

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an escalation in the cost of work, labour charges and materials. There was delay in issuing sanction to substitute the electrical work items also.

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I have heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents.

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As regards the competency of the respondents to impose fine, the learned Standing Counsel would submit that there is provision in the Agreement enabling the respondents to impose fine by way of compensation for the delay in completion of work resulting in breach of contract. A perusal of the pleadings in the writ petition would show that though the approval for change of materials was given on 12.04.2012, the petitioner did not complete the work within a reasonable time thereafter. The respondents have condoned substantial part of the delay, which can be attributable to the change of materials and time taken to get approval for it.

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Even excluding the period of getting approval for change of materials, still there was substantial delay. The

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WP(C) No.21595/2013

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respondents have computed fine limiting the delay to a period of 53 days only. The initial imposition of ₹25,903/- as fine was reduced to ₹15,000/-. The fine has been calculated as per the terms of the tender documents of the Kerala Police Housing and Construction Corporation Limited.

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In the circumstances, this Court does not find any reason to interfere with the order of fine or quantum thereof. No further relief can be granted in the writ petition. The writ petition is therefore dismissed.

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Sd/-

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N. NAGARESH, JUDGE

aks/05.02.2021

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APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE 30.12	COPY .2010	OF OF THE	THE LETTER DATED RESPONDENTS.
EXHIBIT P2	TRUE 9.5.2	COPY 011.	OF	THE LETTER DATED
EXHIBIT P3	TRUE ADDRE	COPY SSED T	OF THE O THE	LETTER DATED 4.8.2011 2ND RESPONDENT.
EXHIBIT P4	TRUE 18.10 CUM-M	COPY .2011 ANAGIN	OF ADDRE G DIRE	THE LETTER DATED SSED TO THE CHAIRMAN- CTOR.
EXHIBIT P5	TRUE 12.4.	COPY 2012.	OF	THE APPROVAL DATED
EXHIBIT P6	TRUE 18.6.	COPY 2012.	OF	THE LETTER DATED
EXHIBIT P7	TRUE ISSUE	COPY D BY T	OF TH HE RES	E SHOW CAUSE NOTICE PONDENTS.
EXHIBIT P8	TRUE SUBMI	COPY TTED B	OF THE Y THE	REPLY DATED 30.1.2013 PETITIONER.
EXHIBIT P9	TRUE 19.03	COPY .2013	OF T ISSUED	HE PROCEEDING DATED TO THE PETITIONER.
EXHIBIT P10	TRUE	COPY	OF	THE PETITION DATED
	29.03 RESPO	.2013 NDENT.	SUBM	ITTED TO THE 2ND
EXHIBIT P11	TRUE 04.04	COPY .2013.	OF	THE LETTER DATED
EXHIBIT P12	TRUE	COPY	OF T	HE PROCEEDING DATED
	15.05 RESPO	.2013 NDENT.	ISS	UED BY THE 2ND

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RESPONDENTS EXHIBITS:

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EXHIBIT	R1(A) TRUE COPY DATED 16.04	OF AGREEME .2011	NT NO.	08/20	11-2012
EXHIBIT	R1(B) TRUE	COPY	OF		LETTER
	NO.TPS/3410	/KPHCC/201	0		DATED
	17.04.2012 PETITIONER	RESPON	DENTS	TO	THE
EXHIBIT	R1(C) TRUE CO	PY OF	WO	RK	ORDER
	NO.TPS/3410	/KPHCC/201	0		DATED
	30.12.2010 PETITIONER	ISSUED BY	RESPO	NDENT	TO THE
EXHIBIT	R1(D) TRUE COPY	OF SHOW	CAUSE	NOTI	CE FOR
	REMITTING	THE	PENALI	TY	DATED
	25.01.2013	ISSUED TO	THE PE	TITIO	NER
EXHIBIT	R1(E) TRUE	COPY	OF		ORDER
	NO.TPS/3410 15.05.2013 THE PETITIO	/KPHCC/201 ISSUED BY NER	0 3RD R	ESPON	DATED DENT TO

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T.K.Kesavan v. Kerala Police Housing Construction Corporation Limited

Case brief

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T.K.Kesavan v. Kerala Police Housing Construction Corporation Limited

Case brief

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T.K. Kesavan Vs Kerala Police Housing Construction Corporation Limited