Allowed

T P Prakasan v. State of Kerala

Kerala HC24 Jan 2023WP(C)/2051/2023

Case brief

AI extract

What is this about?

The High Court allowed the writ petition filed by a contractor seeking to adjust pending bills as additional performance guarantee and extending the agreement execution period. The court directed the second respondent to treat due amounts as guarantee upon certification and audit.

What did the court decide?

Directed the respondents to treat any certified and audited amount due to the petitioner as additional performance guarantee and extend the time for executing the agreement till compliance.

T P Prakasan Vs State of Kerala — Public Procurement and Tenders | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 24TH DAY OF JANUARY 2023 / 4TH MAGHA, 1944

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WP(C) NO. 2051 OF 2023

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PETITIONER:

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T P PRAKASAN
AGED 58 YEARS
THEKKIRIPURAYIL HOUSE,THALIYIL,
KALLIASSERY P.O., KANNUR, PIN – 670562

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BY ADV JOMY GEORGE

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -.

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PIN - 695001

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2 THE SUPERINTENDING ENGINEER (BUILDINGS) PWD, NORTH CIRCLE, KOZHIKODE - 673 001.

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3 THE EXECUTIVE ENGINEER (BUILDINGS) BUILDING DIVISION OFFICE, THALASSERY, KANNUR DISTRICT

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PIN – 670101

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SRI.K.V. MANOJ KUMAR SPL GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 2051 OF 2023

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JUDGMENT

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This writ petition is filed by the petitioner seeking

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the following reliefs:-

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“ i) issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents to permit the petitioner to enter into the agreement for execution of the works awarded under Exhibit P-2 adjusting the necessary amount from the amount mentioned in Exhibit P-3 manually towards the additional performance guarantee as demanded in Exhibit P-2.

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ii) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to take immediate steps to issue indemnity certificate available through EMLI to the petitioner.

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Iii) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to extend the time for executing the agreement, till Exhibit P-1 is fully implemented by the respondents.

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iv) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to waive the conditions mentioned in Exhibit P-1 for accepting the amount mentioned in Exhibit P-3 towards additional performance guarantee for Exhibit P-2 works till it is fully implemented by the respondents.

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v) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to pay immediately the amount mentioned in Exhibit P-3 with 18% interest for delayed payment.”

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As per Ext.P1 Government Order dated

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23.06.2020, the Government permitted the contractors to accept pending bills as performance guarantee/additional

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WP(C) NO. 2051 OF 2023

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3

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performance guarantee for executing agreements for other works.

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According to the petitioner, Ext.P2 letter of acceptance is issued in the name of the petitioner by the Superintending Engineer (Buildings), PWD, North Circle, Kozhikode-2^nd respondent specifying the acceptance of the rates quoted by the petitioner. It is the case of the petitioner that on 09.01.2023 Ext.P3 representation was submitted by the petitioner requesting to accept and adjust the additional performance guarantee from pending bills towards the petitioner. However, the 2^nd respondent issued Ext.P4 letter dated 13.01.2023 rejecting the representation of the petitioner showing their inability in adjusting the pending bill towards additional performance guarantee.

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It is also submitted that under similar circumstances, Ext.P5 interim order was passed by this Court in W.P.(C) No.28536 of 2022, whereby the

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WP(C) NO. 2051 OF 2023

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respondents therein were directed to accept pending bill in lieu of additional performance guarantee if the online system with respect to the EMLI Certificate is not functioning. It is thus challenging the legality and correctness of Ext.P4 the writ petition is filed.

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I have heard the learned counsel for the petitioner Sri.R.Padmaraj and the learned Special Government Pleader Sri.K.V. Manoj Kumar and perused the pleadings and material on record.

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The sole question to be considered is whether any interference is required to Ext.P4. In my considered opinion, as per Ext.P4, the 2^nd respondent has never rejected the request of the petitioner. But, apart from the adjustment of the pending bill against the additional performance guarantee, it is stated that an Indemnity Certificate issued online in EMLI application is to be made by the petitioner. Taking into consideration the fact that amounts are due to the petitioner from the respondents

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WP(C) NO. 2051 OF 2023

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and it is an accepted practice that such bills are accepted against additional performance security, it is only appropriate that the writ petition is disposed of with a direction. There will be a direction to the 2^nd respondent to treat any amount due to the petitioner as additional performance guarantee if the bills are certified and audited in accordance with law. Anyhow, a decision shall be taken, at the earliest and at any rate, within two weeks from the date of receipt of a copy of this judgment. I make it clear that if the EMLI is functional, the petitioner may explore the possibility for executing such Certificate in the online system. The period of executing the agreement would stand extended till the direction as above is complied with.

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The writ petition is disposed of as above.

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Sd/-

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SHAJI P.CHALY JUDGE

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spk

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WP(C) NO. 2051 OF 2023

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PETITIONER EXHIBITS

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Exhibit-P1TRUE COPY OF THE GOVERNMENT ORDER G.O.
(RT).NO.3834/2020/FIN DATED 23.06.2020
Exhibit-P2TRUE COPY OF LETTER OF ACCEPETANCE
DATED NIL.
Exhibit- P3TRUE COPY OF REPRESENTATION DATED
09/1/2023
Exhibit-P4TRUE COPY OF REJECTION LETTER DATED
13/1/2023
Exhibit-P5TRUE COPY OF ORDER DATED 2/9/2022 IN
WP(C).28536/2022

T P Prakasan v. State of Kerala

Case brief

What is this about?

What did the court decide?

T P Prakasan v. State of Kerala

Case brief

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What did the court decide?

What the court decided

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