Allowed

T.I.Varghese, v. the Principal General Manager of Telcom

Kerala HC12 Mar 2021WP(C)/6870/2019

Case brief

AI extract

What is this about?

Petitioner, a contractor for BSNL, filed a writ petition seeking payment on earlier bills under a prior judgment that quashed BSNL's unauthorised deduction method. The court held the quashing order relates back to all transactions and directed BSNL to pay the differential amount.

What did the court decide?

Respondents directed to calculate and pay differential amount for bills P6 to P25, P27 and P28 within 6 months.

T.I.Varghese, Vs the Principal General… — 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.6870 OF 2019(G)

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PETITIONER:

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T.I.VARGHESE, AGED 65 YEARS, S/O.ISSAC, THEKKEKKUTTU HOUSE, KOOTHATTUKULAM P.O., KOOTHATTUKULAM, PIN-686662.

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BY ADV. SHRI.P.M.JOSHI

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RESPONDENTS:

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1 THE PRINCIPAL GENERAL MANAGER OF TELCOM, BSNL BHAVAN, ERNAKULAM, KOCHI-16, ERNAKULAM DISTRICT.

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2 ASST. GENERAL MANAGER (C.P.), O/O. PRINCIPAL GENERAL MANAGER OF TELCOM, BSNL BHAVAN, ERNAKULAM, KOCHI-16, ERNAKULAM DISTRICT.

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3 THE CHIEF ACCOUNTS OFFICER, O/O.PRINCIPAL GENERAL MANAGER OF TELCOM, BSNL BHAVAN, ERNAKULAM, KOCHI-16, ERNAKULAM DISTRICT.

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4 THE ACCOUNTS OFFICER (CASH), O/O.PRINCIPAL GENERAL MANAGER OF TELCOM, BSNL BHAVAN, ERNAKULAM, KOCHI-16, ERNAKULAM DISTRICT. 5 THE DIVISIONAL ENGINEER TELCOM, TRANSMISSION MAINTENANCE, TELPHONE EXCHANGE BUILDING, MUVATTUPUZHA, PIN-686661.

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R1-5 BY SRI.MATHEWS K.PHILIP,SC, BSNL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.6870/2019(G)

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JUDGMENT

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Dated this the 12^th day of March, 2021

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The petitioner is a contractor of BSNL. The petitioner entered into Ext.P2 Agreement with the respondents to lay optical fibre cables in Zone-I, Muvattupuzha. Ext.P1 is the tender notification. In Ext.P1 tender notification, a scale of payment was stipulated for digging trenches of lesser depths, subject to condition that relaxation will be granted by the competent authority for lesser depths. The Schedule in Ext.P1 NIT is as follows:

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Depth between	Reduction in rates
<165 Cms. to >=150 Cms.	5% of approved rates
<150 Cms to >=130 Cms	12.5% of approved rates
<130 Cms to >=100 Cms	25% of approved rates
Below 100 Cms	40% of approved rates

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In Ext.P2 Agreement, Clause No.II stated that the

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conditions in Ext.P1 tender notification will be treated as part of

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WP(C).No.6870/2019(G)

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the agreement.

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However, to the surprise and predicament of the petitioner, the respondents while processing the bills of the petitioner issued Ext.P4 prescribing a new mode of reduction, which is as follows:

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“P=(100-ROR)RAD where P=payment for one meter 100*ND length of trench

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ROR = reduction in rate in % as applicable as per table below. RA = approved rate of trenching per meter and D= actual depth in cms. ND = Nominal depth of trench in cms, in the instant case, ND=165cm”

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Depth between	Reduction in rates
<165 Cms. to >=150 Cms.	5% of approved rates
<150 Cms to >=130 Cms	12.5% of approved rates
<130 Cms to >=100 Cms	25% of approved rates
Below 100 Cms	40% of approved rates

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This new mode caused reduction in payments due to the petitioner. There upon the petitioner filed W.P.(C) No.18687 of 2009. By Ext.P29 judgment, this Court quashed Ext.P4 and directed the BSNL to follow the rates as prescribed in Ext.P1 contract.

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WP(C).No.6870/2019(G)

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In respect of 3 bills submitted by the petitioner, the respondents honoured Ext.P29 judgment. However, in respect of Exts.P6 to P28 bills, the benefit of Ext.P29 judgment was not extended. Under the circumstances, the petitioner filed Contempt Case (Civil) No.2397 of 2018. Pending the Contempt Case, the respondents honoured the aforesaid 3 bills. In view of such payment the Contempt Case was closed by this Court, granting liberty to the petitioner to agitate the issue, if required.

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The petitioner contends that Ext.P9 judgment is in respect of Ext.P1 tender notification and Ext.P2 Agreement entered into by the petitioner and the respondents. The judgment is not confined to the 3 bills which were already honoured at the rate prescribed in Ext.P1. The respondents are therefore compellable to honour the remaining bills also following deductions prescribed in Ext.P1 and P2.

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The learned Standing Counsel appearing for the BSNL strongly opposed the writ petition. The learned Standing Counsel submitted that the judgment of this Court happened to

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be delivered when the 3 bills of the petitioner was pending

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WP(C).No.6870/2019(G)

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payment. This court has passed Ext.P9 judgment in the context

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of non payment of those bills only. Therefore the judgment cannot be made applicable to other bills.

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The learned Standing counsel further pointed out that the bills Exts.P6 to P28 were honoured and settled long back and the petitioner cannot at this stage dig up the settled bills and claim that the benefit of Ext.P29 judgment should be extended to him. If the petitioner has any dispute in that regard, the agreement contains an Arbitrational Clause and it is open to the petitioner to find a solution by Arbitral proceedings. A writ petition under Article 226 of the Constitution of India is not the proper remedy for seeking enhancement in respect of bills settled with out any protest, long back.

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

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It is not in dispute that the petitioner has entered into Ext.P2 Agreement in terms of Ext.P1. The terms of Ext.P2 Agreement would show that the conditions prescribed in Ext.P1 tender notification are to be made conditions of the agreements.

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WP(C).No.6870/2019(G)

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The deductions in respect of the charges for trenching has been varied as per Ext.P4. This Court specifically found that the variation/deduction made as per Ext.P4 is illegal and accordingly quashed Ext.P4.

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Naturally, the quashing of Ext.P4 would have consequences on the entire transactions pursuant to the agreement. This Court cannot agree to the contention of the respondents that quashing of Ext.P4 will not relate back to the settled bills.

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In such circumstances, this Court is of the considered opinion that the benefit of Ext.P29 judgment should be made available to the petitioner in respect of all transactions made pursuant to Ext.P2 agreement. The petitioner is therefore entitled to succeed in this writ petition.

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Accordingly, the respondents are directed to calculate and effect payment of the Exts.P6 to P25,P27 and P28 bills of the petitioner without regard to Ext.P4 and in accordance with Exts.P1 and P2. The differential amount shall

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be paid to the petitioner within a period of 6 months.

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WP(C).No.6870/2019(G)

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The writ petition is allowed as above.

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Sd/- N. NAGARESH JUDGE

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WP(C).No.6870/2019(G)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	THE TRUE COPY OF T 1167/2007-08/6 DAT	HE TENDER NO.DEC/100- ED 03.01.2008.
EXHIBIT P2	THE TRUE COPY OF 13.5.08 SIGNED BY 2ND RESPONDENT.	THE AGREEMENT DATED THE PETITIONER AND
EXHIBIT P3	THE TRUE COPY OF T MUVATTUPUZHA SDCA	HE APPROVED RATES IN ZONE NO.1.
EXHIBIT P4	THE COPY OF THE	LETTER DATED 31.3.09
	ISSUED BY THE 2N PETITIONER.	D RESPONDENT TO THE
EXHIBIT P5	COPY OF THE REPLY PETITIONER.	DATED 4.4.09 SENT BY
EXHIBIT P6	TRUE COPY OF THE B 4.12.2010.	ILL NO.15/2010 DATED
EXHIBIT P7	THE TRUE COPY OF DATED 13.5.2011.	THE BILL NO.16/2011
EXHIBIT P8	THE TRUE COPY OF DATED 28.5.2010.	THE BILL NO.9/2010
EXHIBIT P9	THE TRUE COPY OF DATED 14.2.2010.	THE BILL NO.14/2010
EXHIBIT P10	THE TRUE COPY OF DATED 4.8.2010.	THE BILL NO.13/2010
EXHIBIT P11	THE TRUE COPY OF DATED 6.7.2010.	THE BILL NO.12/2010
EXHIBIT P12	THE TRUE COPY OF DATED 7.7.2010.	THE BILL NO.11/2010
EXHIBIT P13	THE TRUE COPY OF DATED 8.6.2010.	THE BILL NO.10/2010
EXHIBIT P14	THE TRUE COPY OF DATED 22.3.2010.	THE BILL NO.8/2010
EXHIBIT P15	THE TRUE COPY OF	THE BILL NO.7/2010

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WP(C).No.6870/2019(G)

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	DATED 22.3.2010.
EXHIBIT P16	THE TRUE COPY OF DATED 8.3.2010.	THE BILL NO.5/2010
EXHIBIT P17	THE TRUE COPY OF DATED 24.2.2010.	THE BILL NO.4/2010
EXHIBIT P18	THE TRUE COPY OF DATED 24.2.2010.	THE BILL NO.3/2010
EXHIBIT P19	THE TRUE COPY OF DATED 20.2.2010.	THE BILL NO.1/2010
EXHIBIT P20	THE TRUE COPY OF DATED 26.8.2009.	THE BILL NO.20/2009
EXHIBIT P21	THE TRUE COPY OF DATED 22.3.2010.	THE BILL NO.6/2010
EXHIBIT P22	THE TRUE COPY OF DATED 25.8.2009.	THE BILL NO.19/2009
EXHIBIT P23	THE TRUE BILL 25.8.2009.	NO.18/2009 DATED
EXHIBIT P24	THE TRUE COPY OF DATED 22.7.2009.	THE BILL NO.7/2009
EXHIBIT P25	THE TRUE COPY OF DATED 23.5.2009.	THE BILL NO.16/2009
EXHIBIT P26	THE TRUE COPY OF T DATED 29.9.2009.	HE INTIMATION LETTER
EXHIBIT P27	THE TRUE COPY OF 25.2.2010.	THE BILL NO.1 DATED
EXHIBIT P28	THE TRUE COPY OF DATED 20-02-2010	THE BILL NO.1/2010
EXHIBIT P29	THE TRUE COPY OF NO.18687/2009 DATED	JUDGMENT IN W.P.(C) 8.11.2017.
EXHIBIT P30	THE TRUE COPY OF L TO THE RESPONDENTS.	ETTER DATED 26.2.2018
EXHIBIT P31	THE TRUE COPY OF C DATED 1.12.2018.	ONTEMPT COURT NOTICE

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WP(C).No.6870/2019(G)

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EXHIBIT P32 THE TRUE COPY OF THE LETTER DATED 16.12.2018 ISSUED TO THE 2ND RESPONDENT. EXHIBIT P33 THE TRUE COPY OF JUDGMENT IN C.C.(C) NO.2397 OF 2018 DATED 21.12.2018.

T.I.Varghese, v. the Principal General Manager of Telcom

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T.I.Varghese, v. the Principal General Manager of Telcom

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