Disposed

D.Prajaraj v. State of Kerala

Kerala HC7 Jul 2022WP(C)/20083/2022

Case brief

AI extract

What is this about?

In a writ petition regarding a construction contract where the site was not handed over in time, the Single Judge directed the authorities to consider the petitioner's representation regarding delays and refund the security amount, directing the termination notice to be kept on hold.

What did the court decide?

Directing the 3rd respondent to consider the petitioner's representation and take a reasoned decision on contract termination and refund of security within one month, while keeping coercive action on

D.Prajaraj Vs State of Kerala — Contract and Commercial Disputes | Kerala HC (2022)

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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 V.G.ARUN

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THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944

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WP(C) NO. 20083 OF 2022

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PETITIONER/S:

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D.PRAJARAJ

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AGED 63 YEARS

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S/O. DAMODARAN, CONTRACTOR, RESIDING AT THUNDIL RAJ
BHAVAN, OLIPPIL PUTHIYAKAVU, KILIMANOOR,
THIRUVANANTHAPURAM - 695 601.

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BY ADV K.M.MUHAMMED HUSSAIN

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM695 001.

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2 THE KERALA INSTITUTE OF LOCAL ADMINISTRATION, REPRESENTED BY ITS CHIEF MANAGER, KILA REGIONAL CENTRE, KUMARAPURAM, THIRUVANANTHAPURAM, PIN 695 011.

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3 THE CHIEF MANAGER,

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KILA REGIONAL CENTRE, KUMARAPURAM, THIRUVANANTHAPURAM, PIN 695 011.

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4 THE ASSISTANT EXECUTIVE ENGINEER, LSGD SUB - DIVISION, KILIMANOOR BLOCK PANCHAYATH, KILIMANOOR P.O, THIRUVANANTHAPURAM, PIN 695 601.

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5 THE ASSISTANT ENGINEER, LSGD ENGINEERING WING, PALLICKAL GRAMA PANCHAYATH, THIRUVANANTHAPURAM, PIN-695 604 .

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BY ADV V.A.MUHAMMED

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OTHER PRESENT:

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GP AMMINIKUTTY K

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 20083 OF 2022

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JUDGMENT

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Dated this the 7th day of July, 2022

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The petitioner was awarded the contract for construction of building in the Government H.S.S, Pallikkal. He executed Ext.P1 agreement on 4.6.2021, as per term of which, the petitioner had to complete the construction within nine months. The site was not handed over to the petitioner in time and the drawing were not approved by the 3^rd respondent. As a result, the petitioner was not able to commence the work. While so, the petitioner was served with Ext.P6 proposing to terminate the contract at the petitioner’s risk and cost. Thereupon, petitioner filed Ext.P8 representation stating the reasons for not commencing / completing the work as per schedule and requested to relieve him without risk and cost and to refund the security amount deposited.

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2.Learned counsel of the petitioner points out that the reasons for delay in commencing the work and the request for withdrawal were pointed out in Ext.P5, much before Ext.P6. Attention is drawn to Clause 3A of the General Conditions of Contract which reads as under:-

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“In case, the work cannot be started due to reasons not within the control of the contractor within 1/8^th of the stipulated time for completion of work or one month whichever is higher, either party may close the contract by giving notice to the other party stating the reasons. In such eventuality, the Performance Guarantee of the contractor shall be refunded within following time limits:

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a) Tendered value of work is up to Rs.1 Crore 15 days b) If the Tendered value of work is more than Rs.1 Crore and up to Rs.10 Crore 21 days C) If the Tendered value of work exceeds Rs.10 Crore: 30 days Neither party shall claim nay compensation for such eventuality.

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WP(C) NO. 20083 OF 2022

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This Clause is not applicable for any breach of the contract by either party.”

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It is contended that, in view of the aforementioned Clause, the petitioner is liable to be relieved from the contract, without risk and cost.

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4.Learned Standing counsel for respondents 2 and 3 submitted that all relevant aspects were taken into consideration before issuing Ext.P6. Learned Government Pleader also supported the above argument.

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Inasmuch as the petitioner has submitted Ext.P8 representation, detailing the circumstances which made the contract impossible of performance, it is only appropriate for the authorities to consider the representation and take a decision thereon.

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The writ petition is hence disposed of, directing the 3^rd respondent to consider Ext.P8 and take a reasoned decision thereon after issuing notice to the petitioner. The decision, as directed above, shall be taken within one month. Till such time, coercive action, if any proposed against the petitioner, shall be kept on hold.

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Sd/V.G ARUN JUDGE

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WP(C) NO. 20083 OF 2022

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`PETITION`	`ER EXHI`	`BITS`
`Exhibit`	`P1`	`TRUE COPY` `AGREEMENT`	`OF THE` `DATED 0`	`RELEVANT PORTION OF THE` `4.6.2021 .`
`Exhibit`	`P2`	`A TRUE CO` `16.10.202` `3RD RESPO`	`PY OF TH` `1 ISSUED` `NDENT.`	`E COMMUNICATION DATED` `BY THE PETITIONER TO THE`
`Exhibit`	`P3`	`TRUE COPY` `THE 4TH R` `SEEKING A` `12.11.202`	`OF THE` `ESPONDEN` `PPROVAL` `1.`	`COMMUNICATION ISSUED BY` `T TO THE 3RD RESPONDENT` `OF THE DRAWINGS DATED`
`Exhibit`	`P4`	`THE TRUE` `SUBMITTED` `RESPONDEN`	`COPY OF` `BY THE` `T DATED`	`THE COMMUNICATION` `PETITIONER BEFORE THE 5TH` `16.11.2021.`
`Exhibit`	`P5`	`TRUE COPY` `SUBMITTED` `RESPONDEN`	`OF THE` `BY THE` `T .`	`LETTER DATED 27-01-2022` `PETITIONER BEFORE THE 3RD`
`Exhibit`	`P6`	`TRUE COPY` `ISSUED BY`	`OF THE` `THE 3RD`	`LETTER DATED 09.05.2022` `RESPONDENT.`
`Exhibit`	`P7`	`TRUE COPY` `GENERAL C`	`OF THE` `ONDITION`	`RELEVANT PORTION OF THE` `S OF CONTRACT.`
`Exhibit`	`P8`	`TRUE COPY`	`OF THE`	`REPLY DATED 12.5.2022.`
`Exhibit`	`P9`	`TRUE COPY` `21159 OF`	`OF THE` `2021 DAT`	`JUDGMENT IN W.P(C) NO.` `ED 17-01-2022.`

D.Prajaraj v. State of Kerala

Case brief

What is this about?

What did the court decide?

D.Prajaraj v. State of Kerala

Case brief

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What did the court decide?

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