Allowed

M/S. Creative Builders, v. Controller of Defence Accounts

Kerala HC4 Jul 2023WP(C)/1501/2023

Case brief

AI extract

What is this about?

In a writ petition filed by an A-Class construction contractor, the High Court of Kerala directed the 5th respondent to consider bills and disburse eligible escalation charges within one month based on a previous judgment in a similar matter.

What did the court decide?

Directed respondent to consider bills and disburse eligible escalation amount within one month.

M/S. Creative Builders, Vs Controller of Defence Accounts — Company and Corporate | 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 MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 4TH DAY OF JULY 2023 / 13TH ASHADHA, 1945
WP(C) NO. 1501 OF 2023

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PETITIONER:

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M/S. CREATIVE BUILDERS,
DOOR NO. 27/3554 B, 2ND FLOOR,
GOOD NEWS BUILDING, SHARADI LANE,
PERUMANOOR P.O., ERNAKULAM - 682015
REPRESENTED BY ITS MANAGING PARTNER,
VISHNU T.P. KARTHA, PIN - 682015
BY ADVS.
DEEPU THANKAN
UMMUL FIDA
LAKSHMI SREEDHAR
LEKSHMI P. NAIR
NAMITHA K.M.

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RESPONDENTS:

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1 CONTROLLER OF DEFENCE ACCOUNTS 618, ANNA SALAI, TENYAMPET, CHENNAI- 600018.

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2 SENIOR ACCOUNT OFFICER (E SECTION) OFFICE OF CONTROLLER OF DEFENSE ACCOUNTS, 618, ANNA SALAI, TENYAMPET, CHENNAI- 600018

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3 SENIOR ACCOUNT OFFICER GE (M) & (P), GARRISON ENGINEER (M) & (P), INA EZHIMALA, KANNUR - 670310

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4 CHIEF ENGINEER (NW) MILITARY ENGINEER SERVICE, NAVAL BASE P.O., KOCHI- 682004

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5 GARRISON ENGINEER (P) MILITARY ENGINEER SERVICE, INA EZHIMALA, KANNUR- 670310 BY ADV VISHNU JAYAPALAN, CGC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 04.07.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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WP(C).No.1501/2023

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P.V.KUNHIKRISHNAN, J.

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W.P.(C).No.1501 of 2023

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---------------------------------------------Dated this the 04^th day of July, 2023

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JUDGMENT

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This writ petition is filed with following prayers:

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i. issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to accept Exhibit P-8 & P-9 additional RARS submitted by the petitioner based upon Condition 63 of the General Conditions of Contract for the work covered by Exhibit P2 & P3 namely Provision of Single Accommodation for JCO's/OR's posted at INA Ezhimala and to release the amount forthwith.

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ii. issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exhibit P-16 and further direct the respondents to release the payments of Exhibit P8 & P9 RARS as approved by the fifth respondent;.

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iii. such other orders as this Hon'ble Court deems, fit, proper and necessary in the circumstances of the case.

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WP(C).No.1501/2023

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Petitioner is a partnership firm engaged in the business of construction and it is enlisted as "A CLASS" contractor of Military Engineer Services (MES). MES is a special agency under the Ministry of Defense of the Government of India which awards work contracts for the works of the Defense Department. It is the case of the petitioner that the petitioner was awarded a contract for Construction Provision of Single Accommodation for JCOs/OR's posted at INA Ezhimala by the 4^th respondent. It is also the case of the petitioner that as per condition No.63 of the General Conditions of the Contract applicable in the present work, if there is an increase in the price of the materials or wages over and above 10%, reimbursement is to be made to the contractor by MES and if there is a decrease in the price of the materials or wages of the labourers, refund is to be made by the contractor to the MES. The Government of Kerala, as per Ext.P6 notification under the Minimum Wages Act, enhanced the daily wages of the workers after the submission of the tender and which resulted in the payment of an additional amount to the labourers by the petitioner is the

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WP(C).No.1501/2023

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submission. Thereby the petitioner after the successful completion of the work, submitted Exts.P8 and P9 pre-final Running Account Receipts (RARS) along with Ext.P10 letter claiming the escalation charges invoking condition No.63 of the General Condition of Contract. However, it is submitted that, claim for the escalation has not been considered by the respondents so far and informed the petitioner that the same can be considered only if there is a direction from this Court. It is also submitted that in similar situation, this Court passed Ext.P15 judgment. Hence the above writ petition.

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Heard the learned counsel for the petitioner and the learned Central Government Counsel (CGC).

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The counsel for the petitioner takes me through Condition No.63 of Ext.P4 and also Ext.P15 judgment. The counsel also takes me through Ext.P16 in which it is stated that the RAR submitted by the petitioner have already been checked and forwarded for payment. It is submitted that even then the amount is not paid. The CGC submitted that there is objection from the 1^st respondent relying on 29(g) of Defense Works Procedure 2007 and that is why the amount is not paid.

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This Court considered the contentions of the

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WP(C).No.1501/2023

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petitioner and the respondents. This Court also perused Condition No.63 of Ext.P4 and also the judgment delivered by this Court in a similar situation, as evident by Ext.P15. In the light of the above facts, I think the petitioner is entitled the relief as ordered in Ext.P15 judgment.

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Therefore, this writ petition is disposed of in the following manner:

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The 5^th respondent is directed to consider the bills submitted by the petitioner in the light of paragraph 2 of Ext.P16 and pass appropriate orders and disburse the eligible amount to the petitioner, as expeditiously as possible, at any rate, within one month from the date of receipt of a stamped certified copy of this judgment.

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The petitioner will produce a stamped certified copy of this judgment along with a copy of this writ petition before the 5^th respondent for compliance.

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sd/-

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P.V.KUNHIKRISHNAN

JUDGE

WP(C).No.1501/2023

APPENDIX OF WP(C) 1501/2023

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`PETITIO`	`NER EXHI`	`BITS`
`Exhibit`	`P-1`	`TRUE COPY OF` `INVITING TEND` `TENDER FOR PR` `ACCOMMODATION` `INA EZHIMALA` `MES`	`THE` `ER W` `OVIS` `FOR` `DATE`	`EXTRACT OF THE NOTICE` `ITH RESPECT TO THE` `ION OF SINGLE` `JCOS/OR'S POSTED AT` `D NIL ISSUED BY THE`
`Exhibit`	`P-2`	`TRUE COPY OF` `TENDER OF THE` `FIRST RESPOND`	`THE` `PET` `ENT`	`LETTER ACCEPTING THE` `ITIONER ISSUED BY THE` `DATED 23/05/2019`
`Exhibit`	`P-3`	`TRUE COPY OF` `THE SECOND RE`	`THE` `SPON`	`WORK ORDER ISSUED BY` `DENT DATED 31/05/2019`
`Exhibit`	`P-4`	`TRUE COPY OF` `CONTRACTS (IA` `CONTRACTS DAT`	`THE` `FW 2` `ED N`	`GENERAL CONDITIONS OF` `249) FOR LUMP SUM` `IL`
`Exhibit`	`P-5`	`TRUE COPY OF` `CONTRACT DATE`	`THE` `D NI`	`RELEVANT PAGE OF THE` `L`
`Exhibit`	`P-6`	`TRUE COPY OF` `GAZETTE NOTIF`	`THE` `ICAT`	`KERALA EXTRAORDINARY` `ION DATED 29/07/2019`
`Exhibit`	`P-7`	`TRUE COPY OF` `CERTIFICATE D`	`THE` `ATED`	`COMPLETION` `24/12/2021`
`Exhibit`	`P-8`	`TRUE COPY OF` `SUBMITTED FOR` `PERIOD FROM 2`	`THE` `ESC` `0/08`	`SEPARATE BILL` `ALATION FOR THE` `/2019 TO 20/12/2021`
`Exhibit`	`P-9`	`TRUE COPY OF` `SUBMITTED FOR` `PERIOD FROM 0`	`THE` `ESC` `1/01`	`SEPARATE BILL` `ALATION FOR THE` `/2021 TO 20/12/2021`
`Exhibit`	`P-10`	`TRUE COPY OF` `DATED NIL`	`THE`	`COMBINED STATEMENT`
`Exhibit`	`P-11`	`TRUE COPY OF` `16/08/2022`	`THE`	`COVER LETTER DATED`
`Exhibit`	`P-12`	`TRUE COPY OF` `23/09/2022`	`THE`	`REMINDER LETTER DATED`
`Exhibit`	`P-13`	`TRUE COPY OF` `HON'BLE COURT` `16832/2022 DA`	`THE` `IN` `TED`	`JUDGMENT OF THIS` `W.P.(C) NO.` `02/06/2022`
`Exhibit`	`P-14`	`TRUE COPY OF` `HON'BLE COURT` `14513/2022 DA`	`THE` `IN` `TED`	`INTERIM ORDER OF THIS` `W.P.(C) NO.` `26/04/2022`

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WP(C).No.1501/2023

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Exhibit P-15TRUE COPY OF THE JUDGMENT OF THIS
HON'BLE COURT IN W.P.(C)NO. 14513
/2022 DATED 04/01/2023
Exhibit P-16TRUE COPY OF THE LETTER OF THE 5TH
RESPONDENT DATED 06/01/2023
RESPONDENT ANNEXURES
Annexure R1(a)A true copy of relevant portion of the
DWP,2007

M/S. Creative Builders, v. Controller of Defence Accounts

Case brief

What is this about?

What did the court decide?

M/S. Creative Builders, v. Controller of Defence Accounts

Case brief

What is this about?

What did the court decide?

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