Disposed

Mahadevan.T.R v. Kitco Ltd.

Kerala HC21 Jun 2023WP(C)/4762/2023

Case brief

AI extract

What is this about?

In this Writ Petition, the petitioner challenged termination of a construction contract and initiation of recovery proceedings without hearing. The Court directed the respondent to consider the petitioner's representation after a hearing and deferred recovery proceedings.

What did the court decide?

Direction to 1st respondent to consider Ext.P16 within one month after hearing petitioner; directions recovery proceedings on Ext.P17; judgement copy to be produced.

Mahadevan.T.R Vs Kitco Ltd. — Specific Performance | 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

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WEDNESDAY, THE 21ST DAY OF JUNE 2023 / 31ST JYAISHTA,

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1945

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WP(C) NO. 4762 OF 2023

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PETITIONER:

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MAHADEVAN.T.R
AGED 66 YEARS
S/O.LATE RAMAKRISHNAN, UDAYAGIRI, MATHILIL
P.O, THRIKKADAVOOR VILLAGE, KOLLAM, PIN -
691601
BY ADVS.
BINU GEORGE
HEMALATHA(K/1287/1999)
AMANTA MATHEW(K/001960/2022)

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RESPONDENTS:

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1 KITCO LTD REGISTERED OFFICE AT FEMITH'S, P.B. NO.4407, PUTHIYA ROAD, NH BYPASS, VENNALA, KOCHI REPRESENTED BY ITS MANAGING DIRECTOR, PIN - 682028

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2 CHIEF FINANCE OFFICER KITCO LTD. REGISTERED OFFICE AT FEMITH'S, P.B. NO.4407, PUTHIYA ROAD, NH BYPASS, VENNALA, KOCHI -, PIN - 682028

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3 THE DIRECTOR TOURISM DIRECTORATE, PARK VIEW, THIRUVANANTHAPURAM, PIN - 695033

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4 THE DEPUTY DIRECTOR

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DEPARTMENT OF TOURISM, KOLLAM, PIN - 691002

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5 THE SECRETARY DISTRICT TOURISM PROMOTION COUNCIL, NEAR KSRTC BUS STAND, KOLLAM -, PIN - 691002 SRI.NITHIN GEORGE, SC, SRI.B.S.SYAMANTAK, GP

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WP(C) NO. 4762 OF 2023

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 4762 OF 2023

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P.V.KUNHIKRISHNAN, J.

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=========================

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W.P.(C) No. 4762 of 2023

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=================================== Dated this the 21st day of June, 2023

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===================================

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JUDGMENT

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The above Writ petition is filed with the following prayers:

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i. To issue a Writ of certiorari to to call for the records leading to the issuance of Ext.P5 order of termination of contract and Ext.P14 order revoking security deposit of the petitioner and Ext.P15 order revoking bank guaranty of the petitioner and quash the same.

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ii. To issue a Writ of mandamus or any other appropriate writ, order or direction commanding the respondents to revive Ext.P1 letter of award and direct the respondents to grant 6 months time from the date of receipt of lab report for completing the specified work.

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iii. To declare that the petitioner had performed his part of the contract and the non execution of the work is due to the failure to hand over the hindrance free site to the petitioner, which is beyond his control and coming under Clause 2.31.04 of the agreement.

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WP(C) NO. 4762 OF 2023

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iv. To declare that the petitioner is entitled to perform the entire contract as per the agreement entered between the petitioner and the 1^st respondent notwithstanding the termination orders and other communications issued in this regard.

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v. To direct the 1^st respondent to consider and pass orders on Ext.P16 representation within a time limit specified by this Hon’ble Court and further direct the 1^st respondent to release the security deposit and bank guaranty of the petitioner in the event of continuing the order of termination.

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vi. To grant such other reliefs as this Hon’ble Court may deem fit and proper in the circumstances of the case. (SIC)

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The 1^st respondent issued Ext.P1 work for the

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construction of World Class Toilet Blocks at Kollam on 8.07.2021

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to the petitioner stipulating that the work is to be completed within 6 months. Petitioner executed agreement on 23.07.2021. The work site was handed over to the petitioner only on 11.05.2022 is the submission of the petitioner. Since there was Standing trees in the

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work site and those trees are to be cut and removed, the

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WP(C) NO. 4762 OF 2023

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permission of the the first Forest Department is also necessary is the submission. Later the trees were cut, but the same was stacked in the work site itself. After removing the logs, it is submitted that PWD stacked materials. In such circumstances, it is submitted that the petitioner was not able to collect the samples for soil test, excavation test and other specified test for getting sanction for tenderer. It is also submitted that the site was handed over to the petitioner only on 11.05.2022 and immediately thereafter the petitioner erected boundaries in the work site and a board as per the direction of the respondents. But it is the case of the petitioner that the first respondent issued Ext. P5 on 10.10.2022 terminating the contract and forfeiting the security deposit of the petitioner without issuing any show cause notice. Now a recovery proceedings is initiated as evident by Ext.P17. Hence this Writ petition.

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Heard the Counsel for the petitioner and the standing

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Counsel appearing for the first respondent. I also heard the Govenment Pleader.

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WP(C) NO. 4762 OF 2023

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After hearing both sides I think this writ petition can be disposed of directing the 1^st respondent to consider Ext.P16. The specific case of the petitioner is that Ext.P5 order is passed without giving an opportunity of hearing to the petitioner. If that is the case, there can be a direction to the first respondent to consider P16 after giving an opportunity of hearing to the petitioner and till then, recovery proceedings based on P17 can be deferred. Therefore, this Writ petition is disposed of with the following directions.

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i. The 1^st respondent is directed to consider and pass appropriate orders in Ext.16 after giving an opportunity of hearing

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to the petitioner as expeditiously as possible at any rate within a period of one month from the date of receipt of a certified copy of this judgment.

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ii. Till final notice are passed as directed above the recovery proceedings based on Ext.P17 shall be deferred.

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Iii. The petitioner will produce a certified copy of the

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WP(C) NO. 4762 OF 2023

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judgment along with a copy of this Writ petition to the 1^st

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respondent for compliance.

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Sd/-

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P.V.KUNHIKRISHNAN

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JUDGE

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mus

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WP(C) NO. 4762 OF 2023

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APPENDIX OF WP(C) 4762/2023

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`PETITIO` `Exhibit`	`NER EXH` `P1`	`IBITS` `A TRUE COPY OF THE LETTER OF AWARD OF` `WORK DATED 8.7.2021 ISSUED BY THE 1ST` `RESPONDENT TO THE PETITIONER`
`Exhibit`	`P2`	`. A TRUE COPY OF THE E-MAIL` `COMMUNICATION DATED 10.8.2022`
		`SUBMITTED TO THE RESPONDENTS`
`Exhibit`	`P3`	`TRUE COPY OF THE PHOTOGRAPHS SHOWING` `THE ERECTION OF THE BOARD AND` `BOUNDARIES IN THE WORK SITE`
`Exhibit`	`P4`	`THE COPY OF E-MAIL COMMUNICATION` `DATED 2.9.2022 SUBMITTED BY THE` `PETITIONER`
`Exhibit`	`P5`	`A TRUE COPY OF THE LETTER NO.3301DP-` `1022:RT:2020 DATED 10.10.2022`
`Exhibit`	`P6`	`A COPY OF THE PHOTOGRAPH SHOWING THE` `STORAGE OF MATERIALS IN THE WORK SITE`
`Exhibit`	`P7`	`TRUE COPY OF THE LETTER FORWARDING` `THE SAMPLES TO THE LAB DATED` `18.7.2022` `NO.14/DP-1022/WCT-KOLLAM/2022`
`Exhibit`	`P8`	`TRUE COPY OF THE LETTER FORWARDING` `THE SAMPLES TO THE LAB DATED` `18.7.2022` `NO.18/DP-1022/WCT-KOLLAM/2022`
`Exhibit`	`P9`	`TRUE COPY OF THE LETTER FORWARDING` `THE SAMPLES TO THE LAB DATED` `18.7.2022` `NO.17/DP-1022/WCT-KOLLAM/2022`
`Exhibit`	`P10`	`TRUE COPY OF THE LETTER FORWARDING` `THE SAMPLES TO THE LAB DATED` `18.7.2022` `NO.16/DP-1022/WCT-KOLLAM/2022`
`Exhibit`	`P11`	`TRUE COPY OF THE LETTER FORWARDING` `THE SAMPLES TO THE LAB DATED` `18.7.2022` `NO.20/DP-1022/WCT-KOLLAM/2022`
`Exhibit`	`P12`	`TRUE COPY OF THE LETTER FORWARDING` `THE SAMPLES TO THE LAB DATED` `18.7.2022`

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WP(C) NO. 4762 OF 2023

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NO.19/DP-1022/WCT-KOLLAM/2022
Exhibit13A TRUE COPY OF THE HANDING OVER
DOCUMENT ISSUED BY THE 1ST RESPONDENT
TO THE PETITIONER ON 11.5.2022
Exhibit P14A TRUE COPY OF THE LETTER NO.
3999:ACC:TFD:230:DP1022:2022 DATED
22.11.2022 ISSUED BY THE 1ST
RESPONDENT
Exhibit P15A TRUE COPY OF THE LETTER ISSUED BY
THE 1ST RESPONDENT DATED 25.11.2022
Exhibit P16A TRUE COPY OF THE LETTER DATED
12.9.2022 SUBMITTED BY THE PETITIONER
TO THE 1ST RESPONDENT
Exhibit P17A TRUE COPY OF NOTICE DATED
29.05.2023 ISSUED BY THE 1ST
RESPONDENT.

Mahadevan.T.R v. Kitco Ltd.

Case brief

What is this about?

What did the court decide?

Mahadevan.T.R v. Kitco Ltd.

Case brief

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