Disposed

C. Abdul Raouf v. State of Kerala

Kerala HC12 Mar 2021WP(C)/3401/2021

Case brief

AI extract

What is this about?

The petitioner, a contractor, challenged termination of his agreement by the KSCADC for slow progress on school building works. The Court declined to adjudicate disputed facts on pace of work or contract termination merits instead directing the petitioner to submit representations to the authority.

What did the court decide?

The writ petition was disposed of with no opinion expressed on the legal merit of the termination claim; the petitioner was at liberty to approach the respondents with appropriate representations.

C. Abdul Raouf Vs State of Kerala — 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 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942

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WP(C).No.3401 OF 2021(A)

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PETITIONER:

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C. ABDUL RAOUF, AGED 31 YEARS, RIHAB MANZIL, CHENGALA P.O. KASARGOD DISTRICT-671 541. BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR)

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, FISHERIES AND HARBOUR ENGINEERING, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM-695 001.

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2 KERALA STATE COASTAL AREA DEVELOPMENT CORPORATION LTD (KSCADC), REPRESENTED BY ITS MANAGING DIRECTOR, CHALACHITHRA KALABHAVAN BUILDING 1ST FLOOR, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014.

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3 CHIEF ENGINEER, KERALA STATE COASTAL AREA DEVELOPMENT CORPORATION (KSCADC), CHALACHITHRA KALABHAVAN BUILDING 1ST FLOOR, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014.

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4 ASSISTANT EXECUTIVE ENGINEER, NORTH ZONE-KERLA STATE COASTAL AREA DEVELOPMENT CORPORATION LTD (KSCADC), REGIONAL OFFICE, FISHERIES COMMUNITY RESOURCES CENTER VELLAYIL, KOZHIKODE-673 011.

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R2 BY ADV. SRI.A.K.ALEX R2 BY ADV. SMT.SHEELA R. CHANDRAN BY GOVERNMENT PLEADER – SRI. JUSTIN ANTONY

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.03.2021, ALONG WITH WP(C).3476/2021(H), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.3401/2021(A)

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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 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942

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WP(C).No.3476 OF 2021(H)

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PETITIONER:

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C.ABDUL RAOUF, AGED 31 YEARS, RIHAB MANZIL, CHENGALA P.O., KASARGOD DISTRICT - 671 541.

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BY ADVS. SRI.UNNI. K.K. (EZHUMATTOOR) SRI.PRAFIN JOSEPH ZACHARIA

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, FISHERIES AND HARBOUR ENGINEERING , GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.

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2 KERALA STATE COASTAL AREA DEVELOPMENT CORPORATION LIMITED (KSCADC), REPRESENTED BY ITS MANGING DIRECTOR, CHALACHITHRA KALABHAVAN BUILDING 1ST FLOOR, VAZHUTHACAUD, THIRUVANANTHAPURAM 695 014.

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3 CHIEF ENGINEER, KERALA STATE COASTAL AREA DEVELOPMENT CORPORATION LIMITED (KSCADC), CHALACHITHRA KALABHAVAN BUILDING 1ST FLOOR, VAZHUTHACAUD, THIRUVANANTHAPURAM 695 014.

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4 ASSISTANT EXECUTIVE ENGINEER, NORTH ZONE-KERALA STATE COASTAL AREA DEVELOPMENT

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WP(C).No.3401/2021(A)

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CORPORATION LIMITED (KSCADC), REGIONAL OFFICE, FISHERIES COMMUNITY RESOURCES CENTER VELLAYIL, KOZHIKODE 673 011.

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R2 BY ADV. SRI.A.K.ALEX R2 BY ADV. SMT.SHEELA R. CHANDRAN BY GOVERNMENT PLEADER – SRI. JUSTIN ANTONY

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.03.2021, ALONG WITH WP(C).3401/2021(A), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.3401/2021(A)

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JUDGMENT

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Dated this the 12^th day of March, 2021 [ WP(C).3401/2021, WP(C).3476/2021 ]

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The petitioner, who is a contractor, entered into an agreement with the 3^rd respondent-Chief Engineer, Kerala State Coastal Area Development Corporation Limited to carry out Ext.P1 work in W.P(C) Nos.3401 and 3476 of 2021.

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The petitioner was expected to complete the work undertaken pursuant to Ext.P1 in W.P.(C) No.3401 of 2021 within a period of 8 months and the work under Ext.P1 in W.P. (C) No.3476 of 2021 within a period of 6 months. The site was handed over to the petitioner on 01.10.2020. According to the petitioner, he had time up to 10.06.2021 to complete the work.

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The petitioner states that he did in fact commence the work. Due to Covid-19 pandemic affliction in the family in the month of October, 2020, the petitioner could not

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WP(C).No.3401/2021(A)

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proceed with the work for sometime. However, subsequently, the petitioner resumed the work by storing requisite material in land. While so the respondents have issued orders terminating the contract at the risk and cost of the petitioner. The petitioner challenges the orders of termination of the agreements at his risk and cost.

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The learned counsel for the petitioner argued that pursuant to the agreements, the petitioner had actually started the work and was proceeding. The petitioner had sufficient time till June, 2021 to complete the work. Without any reasonable cause the respondents have terminated the work, much earlier than the deadline, that too at the risk and cost of the petitioner.

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The petitioner would submit that the termination of contract is with ulterior motives. Even if the petitioner is now permitted to continue the work, the petitioner will be able to complete the work to the satisfaction of the respondents within time. In the circumstances, the petitioner prays that the

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WP(C).No.3401/2021(A)

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impugned orders at Ext.P5 be quashed and the petitioner may be permitted to continue the work in accordance with Ext.P1 agreements.

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The learned Standing Counsel appearing for the 2^nd respondent filed a counter affidavit and contested the writ petition. According to the 2^nd respondent, though the site were handover to the petitioner as earlier in the month of October, 2020, the petitioner did not commence the work promptly. The agreement work was for improvement of School buildings. The Schools will have to be reopened by the month of June, 2021. In the circumstances, the work had to be completed in a time bound manner.

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The respondents, finding that the work is not being proceeded with at the requisite pace, tried to contact the petitioner through phone. However, there was no response. As the work was not progressing at the speed required, it was clear that the work could not have been completed by the petitioner within the stipulated time. Therefore taking into

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WP(C).No.3401/2021(A)

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account the urgency for the completion of work, the respondents have terminated the agreement at the risk and cost of the petitioner. The termination order therefore are legal and justifiable. The learned Standing counsel for the 2^nd respondent would further submit that the work has already been re-tendered.

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

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Pleadings in the writ petition would show that the agreements were executed on 22.09.2020 and 10.11.2020. The work had to be completed within 8 months and 6 months respectively. Though the petitioner submits that his family was afflicted with Covid-19 in the month of October, 2020, the contention of the respondents is that even thereafter the petitioner did not proceed with the work. Ext.P4 letter final notice issued on behalf of the Chief Engineer would show that inspite of the attempts of the respondents, the petitioner did not resume the work. Exts.P3 and P4 would show that the

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WP(C).No.3401/2021(A)

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respondents have issued registered notices to the petitioner.

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The learned counsel for the petitioner would submit that as soon as the respondents contacted the petitioner, he had commenced the work by storing large quantity of materials at the site and while he was proceeding with the work the contract was terminated. This is a disputed question of fact and this Court cannot make a factual adjudication. As the issue involves disputed questions of facts, it will not be proper for this Court to adjudicate the matter under Article 226 of the Constitution of India.

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In the circumstances, this Court finds no reason to interfere with the termination orders. The learned counsel for the petitioner submits that he has stored large quantity of materials in the work site and if the respondents permit him to complete the work, it will be beneficial not only to the petitioner but to the respondents also, as re-tendering and awarding fresh contract would be taking longer time. The petitioner is at liberty to submit these facts before the respondents by way of

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WP(C).No.3401/2021(A)

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appropriate representations. This Court will not express any

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opinion on merit of that claim.

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With the said observations, the writ petition is

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disposed of.

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Sd/- N. NAGARESH JUDGE

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WP(C).No.3401/2021(A)

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APPENDIX OF WP(C) 3401/2021

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE FORM NO 132 SHOWING THE DETAILS OF WORK AND AGREED AMOUNT EXHIBIT P2 TRUE COPY OF THE ACKNOWLEDGEMENT OF HANDING OVER OF THE SITE DATED 1.10.2020 EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 23.12.2020 OF THE 3RD RESPONDENT EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 8.1.2021 OF TH 3RD RESPONDENT EXHIBIT P5 TRUE COPY OF THE ORDER DATED 1.2.2021 OF THE 3RD RESPONDENT

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RESPONDENTS EXHIBITS:

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EXHIBIT R2(A) TRUE COPY OF THE RELEVANT PORTION OF PART -II GENERAL CONDITIONS OF CONTRACT EXHIBIT R2(B) A TRUE COPY OF THE RELEVANT PORTION OF CLAUSE B OF 20.7 OF EXT.R2(A) GENERAL CONDITIONS OF CONTRACT. EXHIBIT R2(C) TRUE COPY OF THE RELEVANT PORTION OF CLAUSE 79.1 OF THE GENERAL CONDITIONS OF THE AGREEMENT. EXHIBIT R2(D) THE DOCUMENTS WHICH SHOWS THAT TENDER WAS CONFIRMED ON 11.02.2021 IN THE NAME OF RAISUDHEEN C EXHIBIT R2(E) TRUE COPY OF THE DOCUMENT WHICH SHOWS THE AMOUNT QUOTED BY RAISUDHEEN C. AND SHAREEF M.A. EXHIBIT R2(F) TRUE COPY OF THE BID OPENING SUMMARY DATED 11-02-2021 EXHIBIT R2(G) TRUE COPY OF THE PRELIMINARY AGREEMENT FORMAT (PRELIMINARY AGREEMENT)

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WP(C).No.3401/2021(A)

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APPENDIX OF WP(C) 3476/2021

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE FORM NO.132 SHOWING THE DETAILS OF WORK AND AGREED AMOUNT.

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EXHIBIT P2 TRUE COPY OF THE ACKNOWLEDGEMENT OF HANDING OVER OF THE SITE DTD. 19/11/2020.

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EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 23.12.2020 OF THE 3RD RESPONDENT.

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EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 8.1.2021 OF THE 3RD RESPONDENT.

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EXHIBIT P5 TRUE COPY OF THE ORDER DATED 1.2.2021 OF THE 3RD RESPONDENT.

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RESPONDENTS' EXHIBITS:

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EXHIBIT R2(a) TRUE COPY OF THE RELEVANT PORTION PART IIGENERAL CONDITIONS OF CONTRACT.

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EXHIBIT R2(b) A TRUE COPY OF THE RELEVANT PORTION OF CLAUSE B OF 20.7 OF EXT R2(a) GENERAL CONDITIONS OF CONTRACT.

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EXHIBIT R2(c) TRUE COPY OF THE RELEVANT PORTION OF CLAUSE 79.1 OF THE GENERAL CONDITIONS OF THE AGREEMENT.

EXHIBIT R2(d)

EXHIBIT R2(e)

EXHIBIT R2(f)

EXHIBIT R2(g)

THE DOCUMENTS WHICH SHOWS THAT TENDER WAS CONFIRMED ON 11.02.2021 IN THE NAME OF RAISUDHEEN C

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TRUE COPY OF THE DOCUMENT WHICH SHOWS THE AMOUNT QUOTED BY RAISUDHEEN C.

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TRUE COPY OF THE BID OPENING SUMMARY DATED 11-02-2021

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TRUE COPY OF THE PRELIMINARY AGREEMENT FORMAT (PRELIMINARY AGREEMENT)

C. Abdul Raouf v. State of Kerala

Case brief

What is this about?

What did the court decide?

C. Abdul Raouf v. State of Kerala

Case brief

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What did the court decide?

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