Allowed

Marysadan Edathala International Pvt. Ltd. v. the Superintending Engineer

Kerala HC26 Sept 2023WP(C)/6910/2023

Case brief

AI extract

What is this about?

The Court set aside Ext.P7 issued by the Superintending Engineer which found work ongoing on 01.11.2018. The finding was based on presumption rather than enquiry. The order was also vitiated as it was settled without awaiting a report from the Executive Engineer. The matter is remanded for reconsideration.

What did the court decide?

Ext.P7 set aside; First respondent directed to reconsider petitioner's claim within three months following directions of previous judgments and available evidence.

Marysadan Edathala International Pvt. Ltd… — 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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TUESDAY, THE 26^TH DAY OF SEPTEMBER 2023 / 4TH ASWINA, 1945

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WP(C) NO. 6910 OF 2023

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PETITIONER:

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MARYSADAN EDATHALA INTERNATIONAL PVT. LTD. 8/465, EDATHALA BUILDING, NEAR ST. GEORGE CHAPPAL, YCA JUNCTION, NEELEESWARAM P.O., KALADY, ERNAKULAM DISTRICT, REPRESENTED BY ITS MANAGING DIRECTOR, A.P. GEORGE, S/O.PAPPU, AGED 64 YEARS, EDATHALA HOUSE, NEELEESWARAM, KALADY, ERNAKULAM DISTRICT, PIN - 683574 BY ADVS. BABU S. NAIR SMITHA BABU

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RESPONDENTS:

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1 THE SUPERINTENDING ENGINEER PUBLIC WORKS DEPARTMENT R & B CENTRAL CIRCLE, ALUVA, ERNAKULAM DISTRICT, PIN - 683101 2 THE EXECUTIVE ENGINEER PWD (ROADS)DIVISION, THRIKKAKARA, ERNAKULAM, ERNAKULAM DISTRICT, PIN - 682021 BY ADVS. SRI. RAJEEV JYOTHISH GEORGE, GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C).No. 6910 of 2023

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DEVAN RAMACHANDRAN, J. ========================= W.P.(C).No. 6910 of 2023

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========================== Dated this the 26^th day of September, 2023

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JUDGMENT

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The petitioner impugns Ext.P7 order issued by the 1^st respondent – Superintending Engineer, Public Works Department, on the ground that it has incorrectly found that the works in question were ongoing on 01.11.2018, without proper enquiry; and even when the Jurisdictional Executive Engineer did not respond to a letter issued to him to certify this.

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Smt.Smitha Babu – learned counsel for the petitioner, vehemently argued that the only reason in Ext.P7, for the Superintending Engineer to enter into a surmise that the work in question was ongoing on 01.11.2018, is because the site is stated to have been handed over on 16.10.2018 and 30.10.2018. She submitted that, however, no work could be begun by her client even on 01.11.2018, because the agreements in question – on the strength of which alone they could have acted – were entered much later in December 2018. She pointed out to Exts.P1 and P2 in substantiation; and thus prayed that Ext.P7 be set aside.

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Sri.Rajeev Jyothish George – learned Government Pleader, however, defended Ext.P7, saying that when the site was handed

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W.P.(C).No. 6910 of 2023

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over to the petitioner on 16.10.2018 and 30.10.2018, it can only be presumed that the work was ongoing as on 01.11.2018. He submitted that, therefore, the contentions of the petitioner against withholding of the amounts are not tenable; and hence that the Superintending Engineer was justified in having issued Ext.P7 order.

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I am afraid that I cannot find favour with the afore submissions of Sri.Rajeev Jyothish Geroge, because, as rightly argued by Smt.Smitha Babu, the finding entered in Ext.P7 by the Superintending Engineer, that the work was ongoing on 01.11.2018, is purely based on a presumption and nothing else. In fact, I do not have to elaborate on this because, the order itself says so.

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That said, Ext.P7 order is also vitiated for another reason, namely, that it records that the Superintending Engineer called for a report from the Executive Engineer on this issue, but that it had not been received. It is possible that if such a report had been received, perhaps, the Executive Engineer may have informed the Superintending Engineer that execution of the agreement had not been completed as asserted by the petitioner – without saying that it is true. However, even without awaiting such, Ext.P7 has been settled, merely because a time frame had been fixed by this Court

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W.P.(C).No. 6910 of 2023

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in an earlier judgment.

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Indubitably, therefore, this Court cannot find favour with Ext.P7 and that the matter will have to be reconsidered by the Superintending Engineer appropriately.

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Resultantly, this writ petition is allowed and Ext.P7 is set aside; with a consequential direction to the 1^st respondent – Superintending Engineer, to reconsider the claim of the petitioner, adverting to the directions of this Court in W.P.(C).No.15650/2021, as also to Exts.P1 and P2, and after affording him an opportunity of being heard; thus culminating in an appropriate order and necessary action thereon, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment.

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Sd/DEVAN RAMACHANDRAN JUDGE

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anm

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W.P.(C).No. 6910 of 2023

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APPENDIX OF WP(C) 6910/2023

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PETITIO	NER EXHI	BITS
Exhibit	P1	A TRUE COPY OF THE CONTRACTOR'S WORK REGISTER APPROVED BY THE 2ND RESPONDENT DATED, 21-12-2019
Exhibit	P2	A TRUE COPY OF THE CONTRACTOR'S WORK REGISTER APPROVED BY THE 2ND RESPONDENT DATED, NIL
Exhibit	P3	A TRUE COPY OF THE GOVERNMENT ORDER AS G.O.(RT.)NO.9386/2018/FIN., DATED, 13-11- 2018
Exhibit	P4	A TRUE COPY OF THE G.O. (RT)NO.3815/2021/FIN. DATED, 30-4-2021 ISSUED BY THE GOVERNMENT OF KERALA
Exhibit	P5	A TRUE COPY OF THE JUDGMENT IN W.P. (C)NO.23576/2021 DATED, 11-11-2021 OF THIS HON'BLE COURT
Exhibit	P6	A TRUE COPY OF THE JUDGMENT IN W.P. (C)NO.15650/2021 DATED, 22-12-2022 OF THIS HON'BLE COURT
Exhibit	P7	A TRUE COPY OF THE ORDER OF THE FIRST RESPONDENT DATED, 20-2-2023 AS NO.E2- 2405/2021
Exhibit	P8	A TRUE COPY OF THE REPLY GIVEN BY THE ASSISTANT EXECUTIVE ENGINEER, PWD(ROADS), THRISSUR DATED, 20-8-2023
Exhibit	P9	A TRUE COPY OF THE REPLY GIVEN BY THE EXECUTIVE ENGINEER, PWD(ROAD), MOOVATTUPUZHA DATED, 27-3-2023
Exhibit	P10	A TRUE COPY OF THE REPLY GIVEN BY THE ASSISTANT EXECUTIVE ENGINEER, PWD (ROADS), KODUNGALLUR DATED, 23-3-2023
Exhibit	P11	A TRUE COPY OF THE REPLY GIVEN BY THE ASSISTANT EXECUTIVE ENGINEER PWD(ROADS), THALIPARAMBU DATED, 23-3-2023
Exhibit	P12	A TRUE COPY OF THE REPLY GIVEN BY THE ASSISTANT EXECUTIVE ENGINEER, PWD(ROADS), KANNUR DATED, 4-4-2023
Exhibit	P13	A TRUE COPY OF THE REPLY GIVEN BY THE ASSISTANT EXECUTIVE ENGINEER, PWD (ROADS), KOTHAMANGALAM DATED, 11-4-2023
Exhibit	P14	A TRUE COPY OF THE REPLY GIVEN BY THE ASSISTANT EXECUTIVE ENGINEER, PWD (ROADS), PERUMBAVOOR DATED, 25-3-2023
Exhibit	P15	A TRUE COPY OF THE REPLY GIVEN BY THE EXECUTIVE ENGINEER, PWD(ROADS), CHEMBUKKAVU, THRISSUR DATEDM, 18-3-2023

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W.P.(C).No. 6910 of 2023

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Exhibit P16 A TRUE COPY OF THE REPLY GIVEN BY THE ASSISTANT EXECUTIVE ENGINEER, PWD(ROADS), IRINJALAKKUDA DATED, 22-3-2023 Exhibit P17 A TRUE COPY OF THE REPLY GIVEN BY THE EXECUTIVE ENGINEER, PWD(ROADS), KOZHIKKODE DATED, 3-4-2023 Exhibit P18 A TRUE COPY OF THE REPLY GIVEN BY THE EXECUTIVE ENGINEER, PWD (ROADS), THRISSUR DATED, 24-3-2023 Exhibit P19 A TRUE COPY OF THE REPLY GIVEN BY THE EXECUTIVE ENGINEER, PWD (ROADS), PALAKKAD DATED, 24-3-2023 RESPONDENT EXHIBITS Exhibit R2(a) TRUE COPY OF THE ACKOWLEDGEMENT OF HANDING OVER OF THE SITE TO THE PETITIONER.

Marysadan Edathala International Pvt. Ltd. v. the Superintending Engineer

Case brief

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Marysadan Edathala International Pvt. Ltd. v. the Superintending Engineer

Case brief

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