Partly allowed

G.v.Davis v. the Superintending Engineer

Kerala HC4 Dec 2023WP(C)/37111/2023

Case brief

AI extract

What is this about?

In this writ petition, the High Court held that it is not appropriate under Article 226 to adjudicate factual disputes regarding a contract cancellation and security deposit forfeiture. It directed the departmental authority to finally consider the petitioner's representation and afford him a hearing before taking any decision on liability.

What did the court decide?

Directed the 1st respondent to hear the petitioner on his representation before deciding on risk and cost; further recovery actions stayed pending this outcome.

G.v.Davis Vs the Superintending Engineer — Contract and Commercial Disputes | 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 DEVAN RAMACHANDRAN

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MONDAY, THE 4TH DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945

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WP(C) NO. 37111 OF 2023

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PETITIONER:

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G.V.DAVIS
AGED 65 YEARS
S/O. G.O VARGHESE GOPURATHINGAL HOUSE, KARUKUTTY,
ANGAMALY P.O, ERNAKULAM DISTRICT., PIN - 683576
BY ADVS.
V.RAJENDRAN (PERUMBAVOOR)
N.RAJESH
GOPAKUMAR P.
JERRY JAISON

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RESPONDENTS:

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1THE SUPERINTENDING ENGINEER
PWD ROADS, CENTRAL CIRCLE ALUVA, PIN - 689101
2THE EXECUTIVE ENGINEER
PWD ROADS, ERNAKULAM, PIN - 682021
3THE ASSISTANT EXECUTIVE ENGINEER
PWD ROADS SUB DIVISION, ALUVA., PIN - 683101
4THE ASSISTANT ENGINEER
PWD, ANGAMALY, PIN - 683572
SRI K V MANOJKUMAR-SR GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 37111 OF 2023

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JUDGMENT

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The petitioner impugns Exts.P11 and P15

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orders issued by the 1st respondent –f19+ Public
Works Department (PWD); and argues that they are
illegal and unlawful because the contract, under
Ext.A1 Agreement, cannot be cancelled at his risk
and cost, so as to forfeit the Security Deposit,
since there are no faults that can be attributed
to him in any manner whatsoever.

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2.The petitioner says that, after the
contract was entered into, there was acute

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shortage of materials, which is compounded by the
fact by the Kerala Water Authority (KWA) had to
lay pipelines, subsequent to which, COVID-19

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pandemic disruption occurred and that he became
afflicted by a cardiac issue. He says that all

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these factors stood against him; and was,

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WP(C) NO. 37111 OF 2023

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therefore, unable to complete the work, which has
now led to the impugned Exts.P11 and P15 orders.
He conceded that the work has now been rearranged
to another contractor and therefore, pleaded that

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the contract between him and the ‘PWD’ be
directed to be cancelled by its competent
Authority, but without any risk and cost being
attached to him. He says that he has already
preferred Ext.P13 representation before the 1st
respondent for this purpose; and prays that same
be directed to be taken up and disposed of,
without any avoidable delay, because he will be
able to convince the said Authority about the
veracity of the afore extenuating circumstances.

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3.Sri.K.V.Manoj Kumar – learned Senior
Government Pleader appearing for the ‘PWD’,

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responded to the afore submissions of

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Sri.N.Rajesh – learned counsel for the

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WP(C) NO. 37111 OF 2023

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petitioner, says that, normally, when a work is
not completed by a contractor as per the
Agreement, it will entail its cancellation at his
risk and cost, because the rearrangement and the

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consequent completion of the same, would
otherwise, create unnecessary burden on the
department. He submitted that, however, since the
petitioner says that he has preferred Ext.P13
representation before the 1st respondent, the
said Authority is willing to hear him and take a
decision thereon, adverting to the circumstances
which he has presented; however, praying that

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this Court may not make any affirmative

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declarations in his favour.

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4.When I consider and evaluate the afore
submissions, it is without doubt that the
petitioner himself admits that he could not

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complete the work, but cites specific reasons for

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WP(C) NO. 37111 OF 2023

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such. Though this Court may have some empathy for
the petitioner, it would not be possible for me
to take any conclusive decision on the facts
stated by him, since it will require assessment
of factual circumstances and materials, which

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cannot be done under Article 226 of the

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Constitution of India.

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5.I am, therefore, of the firm view that

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the 1strespondent must take up Ext.P13
representation and hear the petitioner, before
a final decision on the imposition of risk and
cost against him is taken.

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In the afore circumstances, I allow this writ

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petition and direct the 1st respondent to take up
Ext.P13 representation of the petitioner and
afford him an opportunity of being heard; thus

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culminating in an appropriate order and

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necessary action on his claim, qua risk and cost

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WP(C) NO. 37111 OF 2023

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not being attached to him.

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The afore shall be done as expeditiously as
is possible; but until such time as resultant
order communicated to the petitioner, all
further action to recover any amounts from him or
to attach risk and cost responsibility on him,

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pursuant to Exts.P11 and P15, shall stand
deferred; and will be taken forward only
depending on the decision to be arrived,
resultant to the afore directions.

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Sd/-

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DEVAN RAMACHANDRAN

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JUDGE

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SAS

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WP(C) NO. 37111 OF 2023

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APPENDIX OF WP(C) 37111/2023

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PETITIONER’S EXHIBITS:

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Exhibit P1TRUE COPY OF THE RELEVANT PAGES OF AGREEMENT
NO. 146/SECCA/2019-2020 DATED 18.02.2020.
Exhibit P2TRUE COPY OF COMMUNICATION BEARING NO. A2-
1150/2018/ALY DATED 15.10.2020 ISSUED BY THE
3RD RESPONDENT TO THE 2ND RESPONDENT.
Exhibit P3TRUE COPY OF ORDER NO. DEA-11050/2018 DATED
27.01.2021 ISSUED BY THE 1ST RESPONDENT.
Exhibit P4TRUE COPY OF COMMUNICATION BEARING NO. A2-
11050/2018 DATED 23.03.2022 ADDRESSED BY THE
2ND RESPONDENT TO THE 1ST RESPONDENT .
Exhibit P5TRUE COPY OF THE ORDER BEARING NO.DEA-
11050/2018 DATED 30.3.2022 ISSUED BY THE 1ST
RESPONDENT
Exhibit P6TRUE COPY OF SUPPLEMENTAL AGREEMENT NO. II
DATED 30.03.2022 TO THE MAIN AGREEMENT NO.
146/SECCA/2019-20 DATED 18.02.2020
Exhibit P7TRUE COPY OF DISCHARGE SUMMARY ISSUED FROM THE
DEPARTMENT OF CARDIOLOGY, LISIE MEDICAL
INSTITUTION DATED 02.02.2014
Exhibit P8TRUE COPY OF THE MEDICAL REPORT ISSUED FROM
THE LISIE HOSPITAL, ERNAKULAM.
Exhibit P9TRUE COPY OF COMPLETION CERTIFICATE DATED
28.07.2022 ISSUED BY THE 4TH RESPONDENT .
Exhibit P10TRUE COPY OF COMMUNICATION BEARING NO. 68/18-
19/RD/2018/11050 DATED 18.01.2023 ISSUED BY
THE ASSISTANT ENGINEER, PWD, ANGAMALY TO THE
PETITIONER .
Exhibit P11TRUE COPY OF THE ORDER NO. DEA-11050/2018
DATED 21.03.2023 PASSED BY THE 1ST RESPONDENT.
Exhibit P12TRUE COPY OF COMMUNICATION BEARING NO. 68/18-
19/RD/2018/11050 DATED 10.02.2023 ISSUED BY
THE ASSISTANT ENGINEER, PWD ANGAMALY TO THE
3RD RESPONDENT .
Exhibit P13TRUE COPY OF REPRESENTATION DATED 12.05.2023
SUBMITTED BY THE PETITIONER TO THE 1ST
RESPONDENT .
Exhibit P14TRUE COPY OF COMMUNICATION BEARING

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WP(C) NO. 37111 OF 2023

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NO.FCR/4104/94 DATED 22.7.2023 ISSUED BY THE
1ST RESPONDENT TO THE PETITIONER .
Exhibit 15TRUE COPY OF COMMUNICATION BEARING NO.DEA-
11050/2018 DATED 16.5.2023 ADDRESSED TO THE
PETITIONER .

G.v.Davis v. the Superintending Engineer

Case brief

What is this about?

What did the court decide?

G.v.Davis v. the Superintending Engineer

Case brief

What is this about?

What did the court decide?

What the court decided

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