Dismissed

Modern Construction Company Pvt. Ltd. v. State of Kerala

Kerala HC11 Feb 2021WP(C)/6744/2020

Case brief

AI extract

What is this about?

Writ petition challenging termination of construction contract. Court held disputed facts require other remedies, dismissed on merits but granted liberty to approach Micro and Small Enterprises Facilitation Council with deferral of Bank Guarantee invocation.

What did the court decide?

Petitioners granted liberty to approach Micro and Small Enterprises Facilitation Council, Gujarat, within three months; invocation of Bank Guarantee deferred contingent on approaching said forum.

Modern Construction Company 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 MR.JUSTICE N.NAGARESH

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THURSDAY, THE 11TH DAY OF FEBRUARY 2021 / 22ND MAGHA,1942

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WP(C).No.6744 OF 2020(P)

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PETITIONERS:

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1 M/S. MODERN CONSTRUCTION COMPANY PVT. LTD., NO.54, HK HOUSE, ASHRAM ROAD, AHAMADABAD-380009, REPRESENTED BY ITS EXECUTIVE DIRECTOR, SAUMIL PATEL.

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2 SAUMIL PATEL, S/O.ARUN PATEL, EXECUTIVE DIRECTOR, M/S.MODERN CONSTRUCTION COMPANY PVT. LTD., NO.54, HK HOUSE, ASHRAM ROAD, AHAMADABAD-380009.

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BY ADVS. SRI.D.KISHORE SMT.MINI GOPINATH SMT.MEERA GOPINATH SRI.R.MURALEEKRISHNAN (MALAKKARA)

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF WATER RESOURCES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 THE KERALA WATER AUTHORITY, REPRESENTED BY ITS MANAGING DIRECTOR, THIRUVANANTHAPURAM-695033.

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3 THE EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, THIRUVANANTHAPURAM-695033.

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4 THE PROJECT COORDINATOR, JNNURM PROJECT IMPLEMENTATION UNIT (JAWAHARLAL NEHRU NATIONAL URBAN RENEWAL MISSION), KERALA WATER AUTHORITY, THIRUVANANTHAPURAM-695033.

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WP(C).No.6744/2020(P)

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ADDL. 5 EXECUTIVE ENGINEER, BUILDING SPECIAL DIVISION, THIRUVANANTHAPURAM.

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ADDITIONAL R5 IS SUO MOTU IMPLEADED AS PER THE ORDER DATED 20.11.2020 IN WP(C) 6744/2020.

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R1-4 BY SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY ADDL.R5 BY SR. GOVERNMENT PLEADER SRI K.V. MANOJ KUMAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.6744/2020(P)

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JUDGMENT

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Dated this the 11^th day of February, 2021

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The petitioners undertook certain work of the respondents 2 to 4. As the work was allegedly delayed, the Managing Director of the Kerala Water Authority decided not to execute the balance work under the contract through the petitioners.

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The petitioners thereupon filed W.P.(C) No.3585 of 2014 before this Court. The prime reason for delay in execution of work, urged by the petitioners, was that the respondents have not obtained requisite statutory permissions to further proceed with the work. This Court disposed of the W.P.(C) No.3585 of 2014 as per Ext.P20 judgment directing the respondents to secure whatever

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WP(C).No.6744/2020(P)

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permission necessitated from the Statutory authorities or others within a period of two months and the petitioners were given 6 months periods there after to complete the work.

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The petitioners submit that they have already raised a claim against the respondents before the Micro and Small Enterprises Facilitation Council at Gujarat. The respondents question the maintainability of the proceedings before the Micro and Small Enterprises Facilitation Council, Gujarat. This Court in Ext.P20 judgment made it clear that this Court has not expressed any opinion on the claim raised by the respondents before the Micro and Small Enterprises Facilitation Council at Gujarat.

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After the said Ext.P20 judgment, the respondents terminated the contract with the petitioners as per Ext.P48 order dated 03.03.2020. It is primarily challenging the said order of termination that the petitioners have approached this Court. Before this Court also, the learned counsel for the petitioners contended that permissions from Statutory

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authorities have not been obtained by the respondents so far and urged that they are willing to carry out the balance work provided the respondents get all Statutory permissions. Thereupon this Court passed an interim order on 20.11.2020 directing the additional 5^th respondent-Executive Engineer, Building Special Division, Thiruvananthapuram to make an inspection and submit a report in this regard, before this Court.

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The said Engineer has submitted a report before this Court. It is reported that requisite permissions are there and further permissions are not required for the petitioners to proceed with the work. The petitioners vehemently denied the said report of the Executive Engineer.

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After perusing the pleadings in the writ petition

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and after hearing the counsel on either sides, this Court is of the considered opinion that the writ petition involves disputed questions of fact, which this Court cannot adjudicate in a proceedings under Article 226 of the Constitution of India. In

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WP(C).No.6744/2020(P)

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the circumstances, the petitioners will have to be relegated

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to other appropriate remedies.

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The petitioners submit that they have already approached the Micro and Small Enterprises Facilitation Council, Gujarat and the petitioners may be given liberty to approach the said forum for adjudication of their grievances. In view of the facts alleged in the writ petition, this Court finds that the Bank Guarantee provided by the petitioners, if revoked unilaterally by the respondents at this stage, the petitioners will be put to untold hardship. In the circumstances, the petitioners are given liberty as sought for, to approach the Micro and Small Enterprises Facilitation Council, Gujarat within a period of three months. If the petitioners approach the said forum within three months, then the invocation of Bank Guarantee should stand deferred, till the proceedings are finalized. The petitioners will have to renew the Bank Guarantee from time to time.

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It is made clear that this Court has not

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WP(C).No.6744/2020(P)

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pronounced anything on merit of the claims made by either parties or on the maintainability of any proceedings before the Micro and Small Enterprises Facilitation Council, Gujarat. It is further made clear that this Court has also not made any

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findings on the acceptability or otherwise of the report filed by the additional 5^th respondent before this Court.

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The writ petition is disposed of as above.

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Sd/N. NAGARESH JUDGE

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WP(C).No.6744/2020(P)

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APPENDIX OF WP(C) 6744/2020

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PETITIONERS' EXHIBITS:

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EXHIBIT P1	TRUE COPY AGREEMENT RESPONDENT	OF THE RELEVANT EXTRACTS OF THE DATED 8.4.2010 BETWEEN THE 4TH AND THE 1ST PETITIONER.
EXHIBIT P2	TRUE COPY DATED 15.2	OF THE SUPPLEMENTARY AGREEMENT .2012.
EXHIBIT P3	TRUE COPY SUBMITTED 4TH RESPON	OF THE LETTER DATED 20.2.2012 BY THE 1ST PETITIONER BEFORE THE DENT.
EXHIBIT P4	TRUE COPY SUBMITTED 3RD RESPON	OF THE LETTER DATED 8.3.2012 BY THE 1ST PETITIONER BEFORE THE DENT.
EXHIBIT P5	TRUE COP AGREEMENT	Y OF THE 2ND SUPPLEMENTARY DATED NIL.
EXHIBIT P6	TRUE COPY SUBMITTED 4TH RESPON	OF THE LETTER DATED 12.12.2012 BY THE 1ST PETITIONER BEFORE THE DENT.
EXHIBIT P7	TRUE COP AGREEMENT	Y OF THE 3RD SUPPLEMENTARY DATED NIL.
EXHIBIT P8	TRUE COPY MINUTES O MEETING HE	OF THE RELEVANT EXTRACT OF THE F THE 39TH EMPOWERED COMMITTEE LD ON 22.5.2013.
EXHIBIT P9	TRUE COPY SUBMITTED RESPONDENT	OF THE LETTER DATED 14.12.2013 BY THE PETITIONERS BEFORE THE 4TH .
EXHIBIT P10	TRUE COPY 22.1.2014	OF THE E-TENDER NOTICE DATED PUBLISHED BY THE 4TH RESPONDENT.
EXHIBIT P11	TRUE COPY SUBMITTED RESPONDENT	OF THE REQUEST DATED 10.2.2016 BY THE PETITIONER BEFORE THE 4TH .
EXHIBIT P12	TRUE COPY OF THE HON	OF THE JUDGMENT DATED 19.10.2016 OURABLE HIGH COURT OF GUJARAT.

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WP(C).No.6744/2020(P)

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EXHIBIT P13	TRUE COPY OF THE PROCEEDINGS DATED 6.7.2017
	OF THE ADDITIONAL COMMISSIONER OF INDUSTRIES, INDUSTRIES COMMISSIONERATE, GANDHINAGAR.
EXHIBIT P14	TRUE COPY OF THE COMMUNICATION DATED 25.7.2017 ISSUED BY THE GCCI TO HONOURABLE JUSTICE C.K.BUCH.
EXHIBIT P15	TRUE COPY OF THE PROCEEDINGS OF THE SOLE ARBITRATOR DATED 31.7.2017.
EXHIBIT P16	TRUE COPY OF THE REPRESENTATION DATED 18.3.2017 SUBMITTED BY THE PETITIONERS BEFORE THE 4TH RESPONDENT.
EXHIBIT P17	TRUE COPY OF THE PROCEEDINGS NO.KWA/JNNURM- PIU/WS-27/09/D1 DATED 24.7.2017 OF THE 4TH RESPONDENT.
EXHIBIT P18	TRUE COPY OF THE COMMUNICATION DATED 1.7.2017 SUBMITTED BY THE PETITIONERS TO THE 4TH RESPONDENT.
EXHIBIT P19	TRUE COPY OF THE PROCEEDINGS NO.KWA/JNNURM/PIU/WS-27/09/D1/11 DATED 23.1.2019 OF THE MANAGING DIRECTOR, KERALA WATER AUTHORITY.
EXHIBIT P20	TRUE COPY OF THE JUDGMENT DATED 29.5.2019 IN W.P.(C) NO.3585 OF 2014 OF THIS HONOURABLE COURT.
EXHIBIT P21	TRUE COPY OF THE LIST SHOWING THE DETAILS OF COMMUNICATIONS SUBMITTED BY THE PETITIONERS BEFORE THE KERALA WATER AUTHORITY.
EXHIBIT P22	A LIST OF LETTERS ISSUED BY THE PETITIONERS AS WELL AS BY THE RESPONDENTS.
EXHIBIT P23	TRUE COPY OF THE COMMUNICATION DATED 4.6.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

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WP(C).No.6744/2020(P)

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EXHIBIT P24	TRUE COPY OF THE	COMMUNICATION DATED
	7.6.2019 SUBMITTED BY THE 4TH RESPONDENT.	THE PETITIONER BEFORE
EXHIBIT P25	TRUE COPY OF THE 10.6.2019 SUBMITTED BEFORE THE 4TH RESPON	COMMUNICATION DATED BY THE PETITIONER DENT.
EXHIBIT P26	TRUE COPY OF THE 13.6.2019 SUBMITTED BEFORE THE 4TH RESPON	COMMUNICATION DATED BY THE PETITIONER DENT.
EXHIBIT P27	TRUE COPY OF THE 18.6.2019 SUBMITTED BEFORE THE 4TH RESPON	COMMUNICATION DATED BY THE PETITIONER DENT.
EXHIBIT P28	TRUE COPY OF THE 19.6.2019 SUBMITTED BEFORE THE 4TH RESPON	COMMUNICATION DATED BY THE PETITIONER DENT.
EXHIBIT P29	TRUE COPY OF THE MI HELD ON 25.6.2019.	NUTES OF THE MEETING
EXHIBIT P30	TRUE COPY OF THE MI HELD ON 2.7.2019.	NUTES OF THE MEETING
EXHIBIT P31	TRUE COPY OF THE 6.7.2019 SUBMITTED BY THE 4TH RESPONDENT .	COMMUNICATION DATED THE PETITIONER BEFORE
EXHIBIT P32	TRUE COPY OF THE O ISSUED BY THE 4TH RES	RDER DATED 17.7.2019 PONDENT.
EXHIBIT P33	TRUE COPY OF THE 19.7.2019 SUBMITTED BEFORE THE 4TH RESPON	COMMUNICATION DATED BY THE PETITIONER DENT.
EXHIBIT P34	TRUE COPY OF THE 24.7.2019 ISSUED BY T ENGINEER TO THE PETIT CHERUVETTUKADU AREA.	COMMUNICATION DATED HE ASSISTANT EXECUTIVE IONERS WITH RESPECT OF
EXHIBIT P34(A)	TRUE COPY OF THE 24.7.2019 ISSUED BY T ENGINEER TO THE PETIT 'RIVERS'.	COMMUNICATION DATED HE ASSISTANT EXECUTIVE IONERS WITH RESPECT TO

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EXHIBIT P34(B) TRUE COPY OF THE COMMUNICATION DATED 24.7.2019 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER TO THE PETITIONERS WITH RESPECT TO THEKKUMMOODU-KANNAMMOOLA ROAD. EXHIBIT P34(C) TRUE COPY OF THE COMMUNICATION DATED 24.7.2019 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER TO THE PETITIONERS WITH RESPECT TO THIRUMALA-THRIKKANNAPURAM ROAD. EXHIBIT P34(D) TRUE COPY OF THE COMMUNICATION DATED 26.7.2019 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER TO THE PETITIONERS WITH RESPECT TO ULLOOR PRASANTH NAGAR ROAD. EXHIBIT P34(E) TRUE COPY OF THE COMMUNICATION DATED 24.7.2019 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER TO THE PETITIONERS WITH RESPECT TO SASTHRINAGAR-KARAMANA-NAMOM ROAD. EXHIBIT P34(F) TRUE COPY OF THE COMMUNICATION DATED 24.7.2019 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER TO THE PETITIONERS WITH RESPECT TO THIRUVALLOM-KALLADICHAMMOOLA ROAD. EXHIBIT P35 TRUE COPY OF THE COMMUNICATION DATED 30.7.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. EXHIBIT P36 TRUE COPY OF THE COMMUNICATION DATED 31.7.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. EXHIBIT P37 TRUE COPY OF THE COMMUNICATION DATED 14.8.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. EXHIBIT P38 TRUE COPY OF THE COMMUNICATION DATED 20.8.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. EXHIBIT P39 TRUE COPY OF THE COMMUNICATION DATED 28.8.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

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EXHIBIT P40	TRUE COPY OF THE COMMUNICATION DATED 8.9.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT ALONG WITH THE LIST OF LOCATIONS WERE WORK IS COMPLETED.
EXHIBIT P41	TRUE COPY OF THE COMMUNICATION DATED 18.9.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.
EXHIBIT P42	TRUE COPY OF THE COMMUNICATION DATED 1.10.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.
EXHIBIT P43	TRUE COPY OF THE COMMUNICATION DATED 4.11.2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.
EXHIBIT P44	TRUE COPY OF THE COMMUNICATION DATED 4.1.2020 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.
EXHIBIT P45	TRUE COPY OF THE FINAL NOTICE DATED 3.2.2020 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.
EXHIBIT P46	TRUE COPY OF THE EXPLANATION DATED 6.2.2020 TO EXHIBIT P45 SUBMITTED BY THE PETITIONERS BEFORE THE 4TH RESPONDENT.
EXHIBIT P47	TRUE COPY OF THE NOTICE DATED 12.2.2020 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONERS.
EXHIBIT P48	TRUE COPY OF THE PROCEEDINGS NO.KWA/JNNURM- PIU/WS-27/09/D1 DATED 3.3.2020 ISSUED BY THE 4TH RESPONDENT.
RESPONDENTS' EXH	IBITS:
ANNEXURE A1	A TRUE COPY OF THE MINUTES OF THE MEETING OF THE DISTRICT LEVEL PUBLIC UTILITY CO- ORDINATION COMMITTEE HELD ON 01.06.2019.
ANNEXURE A2	A TRUE COPY OF THE MINUTES OF THE EMPOWERED COMMITTEE HELD ON 01.06.2019.

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ANNEXURE A3	A TRUE COPY OF THE COMMUNICATION GIVEN TO THE PETITIONER ON 04.01.2020.
ANNEXURE A4	A TRUE COPY OF THE DIRECTION ISSUED TO THE PETITIONER.
ANNEXURE A5	A TRUE COPY OF THE DIRECTIONS ISSUED TO THE PETITIONER TOP MAKE INTERCONNECTIONS AND COMPLETE VALVE CHAMBERS.
EXHIBIT R2(I)	TRUE COPY OF THE LETTER DATED 15.09.2020 ISSUED BY THE ASST.ENGINEER PWD CITY ROAD SECTION, THIRUVANANTHAPURAM TO THE 3RD PETITIONER/RESPONDENT.
ANNEXURE I	TRUE COPY OF THE SUBMISSION DATED 09.12.2020 MADE BY THE PETITIONER BEFORE THE 5TH RESPONDENT.
ANNEXURE II SR	TRUE COPY OF THE REPRESENTATION DATED 12.12.2020 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT ALONG WITH THE DRAWINGS. //TRUE COPY// PA TO JUDGE

Modern Construction Company Pvt. Ltd. v. State of Kerala

Case brief

What is this about?

What did the court decide?

Modern Construction Company Pvt. Ltd. v. State of Kerala

Case brief

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What did the court decide?

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