Partly allowed

The Superintending Engiineer v. Top Constructions

Kerala HC25 Oct 2023WA/2270/2016

Case brief

AI extract

What is this about?

The High Court of Kerala modified a partial allowance of the original Writ Petition to adjust dispute resolution between a contractor and the State PWD. Orders regulate the deposit of specific liabilities, authorize civil suits for recovery of claimed and deducted amounts, and extend limitation periods for such suits to ensure expedited judicial adjudication independent of previous observations.

What did the court decide?

The Superintending Engineer to deposit Rs.25,61,514/- in a bank; Power to file suits in two months to recover Rs.72,43,216/-; Exclusion of limitation period for such suits.

The Superintending Engiineer Vs Top… — Public Procurement and Tenders | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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WEDNESDAY, THE 25^TH DAY OF OCTOBER 2023 / 3RD KARTHIKA,

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1945

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WA NO. 1523 OF 2016

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AGAINST THE ORDER/JUDGMENT WPC 5694/2006 OF HIGH COURT OF

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KERALA

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APPELLANT/S:

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1 TOP CONSTRUCTIONS REPRESENTED BY MANAGING PARTNER, T.OOMMEN PANICKER, TOPS MANOR, PANAVELI P.O., KOTTARAKKARA.

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2 OOMMEN THOMAS PANICKER , AGED 42 YEARS.S/O T. OOMMEN PANICKER, RESIDING AT TOPS MANOR, MANAVELI P.O., KOTTARAKKARA =691544. *THE ADDL.APPELLANT 2 IS IMPLEADED AS PER ORDER DATED 23.2.2023 IN I.A.1/2023 IN WA 1523/2016.

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BY ADV SRI.S.ABDUL RAZZAK

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RESPONDENT/S:

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1 THE SUPERINTENDING ENGINEER PWD ROADS & BRIDGES, SOUTH CIRCLE, THIRUVANANTHAPURAM, PIN-695 001.

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2 THE CHIEF ENGINEER

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PWD ROADS & BRIDGES, THIRUVANANTHAPURAM, PIN695 001.

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3 GOVERNMENT OF KERALA

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REPRESENTED BY ITS SECRETARY, PWD, SECRETARIAT, THIRUVANANTHAPURAM, PIN- 695 001.

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OTHER PRESENT:

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SPL.GP.K.V.MANOJKUMAR

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WA Nos.1523 & 2270 of 2016

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25.10.2023, ALONG WITH WA.2270/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WA Nos.1523 & 2270 of 2016

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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WEDNESDAY, THE 25^TH DAY OF OCTOBER 2023 / 3RD KARTHIKA,

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1945

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WA NO. 2270 OF 2016

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AGAINST THE ORDER/JUDGMENT WPC 5694/2006 OF HIGH COURT OF

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KERALA

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APPELLANT/S:

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1 THE SUPERINTENDING ENGIINEER

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PWD ROADS & BRIDGES,SOUTH

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CIRCLE,THIRUVANANTHAPURAM.

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2 THE CHIEF ENGINEER

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PUBLIC WORKS(R&B),THIRUVANANTHAPURAM.

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3 STATE OF KERALA

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REPRESENTED BY ITS

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SECRETARY,P.W.D,SECRETARIAT,THIRUVANANTHAPURAM. BY ADV GOVERNMENT PLEADER

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RESPONDENT/S:

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TOP CONSTRUCTIONS

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MANAGING PARTNER T.OOMMEN PANICKER,TOPS MANOR,PANAVELI.P.O,KOTTARAKKARA. BY ADV SRI.S.ABDUL RAZZAK (B/O)

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25.10.2023, ALONG WITH WA.1523/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WA Nos.1523 & 2270 of 2016

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JUDGMENT

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Dated this the 25^th day of October, 2023

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A.J.Desai, C.J.

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The challenge in these two appeals is against the judgment dated 29.03.2016 in W.P.(C) No.5694 of 2006, by which the learned Single Judge has allowed the writ petition in part in favour of the appellant in W.A No.2270 of 2016 by issuing the following directions;

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proceedings to the extent it impose risk and cost on the petitioner and to the extent it order forfeiture of the security and retention amounts of the petitioner will stand quashed.

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(ii) The aforestated amount of Rs.60,50,847/- (Rupees sixty lakhs, fifty thousand eight hundred and forty seven only) shall be paid by the respondents to the petitioner within four months from the date of production of a certified copy of this judgment.

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WA Nos.1523 & 2270 of 2016

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-5-

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liberty to file a suit before the competent civil court concerned for recovery of any amounts allegedly due to them from the petitioner, more particularly, the amount of Rs.25,61,514/referred to as Serial No.5 of the aforestated alleged liabilities. If such a suit is filed, then the Civil Court concerned will adjudicate and decide the same independently and untrammelled by any of the observations made by this Court in this judgment.

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(iv) The question of interest payable to the petitioner is left open to be decided in appropriate civil court proceedings that may be initiated by the petitioner in that regard and the period from the date of institution of this Writ Petition (24.2.2006) upto the date of receipt of the certified copy of this judgment will stand excluded in terms of the provisions contained in Sec. 14 of the Limitation Act for the purpose of the institution of such suit.”

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After hearing the matter at length and

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scrutinising the documents, we suggested certain terms and conditions to the Advocates appearing for the respective parties, ie, on behalf of the

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WA Nos.1523 & 2270 of 2016

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State of Kerala and the original petitioner/contractor, taking into account the fact that the writ petition is of the year 2006 and these writ appeals are pending since 2016. The Advocates having agreed to the terms and conditions suggested, we modify the judgment passed by the learned Single Judge and dispose of the appeals with the following directions;

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(i) Out of the amount of Rs.60,50,847/(Rupees sixty lakhs fifty thousand eight hundred and forty seven only) in dispute, the appellant in WA No.2270 of 2016, ie, the Superintending Engineer, PWD, shall deposit an amount of

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Rs.25,61,514/- (Rupees twenty five lakhs sixty one thousand five hundred and fourteen only) in favour of the appellant in W.A.No.1523 of 2016 in a nationalised bank for a period of three years.

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(ii) The amount which the State of Kerala claims towards liability incurred for repairing of the road, the State may file a suit for

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WA Nos.1523 & 2270 of 2016

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recovery of money before the appropriate court within a period of two months.

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(iii) The original petitioner/appellant in WA No.1523 of 2016 may also file a suit for recovery of an amount of Rs.11,21,702/- (Rupees eleven lakh twenty one thousand seven hundred and two only), which is sought to be deducted by the Superintending Engineer under the head; risk and cost of the re-arrangement of the balance work.

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(iv) The rest of the amount, [Rs.60,50,84736,83,216 (25,61,514 + 11,21,702)] ie, an amount of Rs.23,67,631/- (Rupees twenty three lakhs sixty seven thousand six hundred and thirty one only) shall be paid to the appellant/original

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petitioner in W.A.No.1523 of 2016 by the

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Superintending Engineer within a period of six weeks from today.

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(v) The original petitioner can also file a

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suit claiming interest for belated payment of the amounts due under the bills submitted.

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WA Nos.1523 & 2270 of 2016

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(vi) The concerned civil court shall

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decide the suit on its merits, after examining

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the documents as well as witnesses if any, strictly in accordance with law untrammeled and uninfluenced by the observations made by the learned Single Judge in W.P.(C) No.5694 of 2006.

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(vii) We also direct the court below to

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expedite the hearing of the suit and dispose of the same within a period of one year from the date of submission of pleadings by the parties.

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(viii) The court or the parties shall not

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raise any objection with regard to the limitation in filing the suits if the same are filed within a period of two months from today.

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(ix) It is hereby made clear that the above directions are issued considering the peculiar facts and circumstances of the case and the

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suggestions made by the court being accepted by the parties. The same shall not be treated as precedent, since the decision is not rendered

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WA Nos.1523 & 2270 of 2016

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based on the interpretation of any of the terms and conditions of the contract entered into between the parties.

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sd/A.J.Desai Chief Justice sd/V.G.Arun Judge

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Scl/

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WA Nos.1523 & 2270 of 2016

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APPENDIX OF WA 2270/2016

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PETITIONER ANNEXURES

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Annexure -1 TRUE COPY OF THE RELEVANT PAGES OF "FIRST AND FINAL BILL" IN RESPECT OF WORK NAMELY "URGENT REPAIR WORK TO PARIPPALLY - MADATHARA ROAD (CH:29/00 TO 33/09)" Annexure -2 TRUE COPY OF THE RELEVANT PAGES OF FINAL BILL IN RESPECT OF WORK NAMELY "URGENT REPAIR WORK TO PARIPPALLY - MADATHARA ROAD (CH:21/400 TO 29/000)" Annexure -3 TRUE COPY OF THE RELEVANT PAGES OF "CC FIRST AND FINAL BILL" IN RESPECT OF WORK NAMELY "URGENT REPAIR WORK TO PARIPPALLY - MADATHARA ROAD (CH:16/400 TO 21/400)"

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WA Nos.1523 & 2270 of 2016

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APPENDIX OF WA 1523/2016

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RESPONDENT ANNEXURES Annexure P1 TRUE PHOTOCOPY OF PETITIONER'S FATHER'S (T. OOMMAN PANICKER) DEATH CERTIFICATE DATED 6.12.2022 ISSUED FROM THIRUVANANTHAPURAM CORPORATION

The Superintending Engiineer v. Top Constructions

Case brief

What is this about?

What did the court decide?

The Superintending Engiineer v. Top Constructions

Case brief

What is this about?

What did the court decide?

What the court decided

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