Allowed

M/S.Ekk Infrastructure Limited v. State of Kerala

Kerala HC14 Feb 2024WP(C)/223/2022

Case brief

AI extract

What is this about?

A contractor sought release of a bank guarantee and treasury deposit furnished for PWD road works. The State cited two uncrystallised recovery objections. The court allowed the petition, directing the respondents to finalise proceedings within two months after hearing the petitioner, failing which amounts to be released on self-bond.

What did the court decide?

Directions to conclude objection proceedings within two months with hearing; failing which bank guarantee and security deposit released on self-bond.

M/S.Ekk Infrastructure Limited Vs State of… — Public Procurement and Tenders | Kerala HC (2024)

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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 WEDNESDAY, THE 14^TH DAY OF FEBRUARY 2024 / 25TH MAGHA, 1945 WP(C) NO. 223 OF 2022

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PETITIONER:

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M/S.EKK INFRASTRUCTURE LIMITED 2ND FLOOR, MUNICIPAL BUILDING, A.M ROAD, PERUMBAVOOR, ERNAKULAM 683542, REPRESENTED BY ITS MANAGING DIRECTOR, SANJU MUHAMMAD, AGED 40 YEARS, S/O. E K K MUHAMMAD, ENJAKUDY HOUSE, OKKAL P.O, CHELAMATTOM , PERUMBAVOOR, ERNAKULAM - 683550 BY ADV. SMT.M.S.KIRAN

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM 695 001 2 SECRETARY TO GOVERNMENT DEPARTMENT OF FINANCE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001 3 THE CHIEF ENGINEER PUBLIC WORKS DEPARTMENT (ROADS AND BRIDGES) THIRUVANANTHAPURAM 695 001 4 SUPERINTENDING ENGINEER, PUBLIC WORKS DEPARTMENT, (ROADS AND BRIDGES) CENTRAL CIRCLE, ALUVA, ERNAKULAM 683101 5 THE EXECUTIVE ENGINEER KERALA PUBLIC WORKS DEPARTMENT, PWD ROADS DIVISION, MUVATTUPUZHA, ERNAKULAM 686 661 6 ADDL.R6. THE ACCOUNTANT GENERAL ACCOUNTANT GENERAL'S OFFICE COMPLEX, CANTONMENT STATION ROAD, STATUE, PALAYAM, THIRUVANANTHAPURAM- KERALA 695001 [ADDITIONAL 6TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 12.12.2023 IN I.A.1/2022 IN WP(C)]. BY ADV.

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SRI.K.V.MANOJ KUMAR – SR.GP.

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W.P.(C).No. 223 of 2022

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C).No. 223 of 2022

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JUDGMENT

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The petitioner, who is stated to be a contractor, asserts that he completed certain works on behalf of the Public Works Department (PWD); and has thus approached this Court, seeking a direction to them to release the bank guarantee for Rs.36,24,050/- and treasury deposit of Rs.36,24,050/-, as evident from Exts.P3 and P4, which were offered as security/guarantee, within a time frame to be fixed by this Court.

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2. However, in response to the afore submissions of Smt.M.S.Kiran – learned counsel for the petitioner, Sri.K.V.Manoj Kumar – learned Senior Government Pleader, submitted that, his client is incapacitated from acceding to the afore request of the petitioner because, there are two heads of liability suspected to be recoverable from the petitioner. He pointed out that, for the first, though the agreement condition was to use Natural Rubber Modified Bitumen ('NRMB', for short), for Bitumen Concrete outlay of the road, the inspection thereafter conducted gave rise to an objection relating to the non recovery of the price difference

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W.P.(C).No. 223 of 2022

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of 'NRMB' and 'VG-30' – which was permitted to be used by the petitioner, reckoning the market value instead of the estimate rate, and he pointed out that this is to the extent of Rs.55,51,320/-. He submitted that, apart from this, the Accountant General has also raised an objection regarding certain amounts paid to the petitioner, being the difference in rate of bitumen on the date of invoice and its market rate on the date of submission of tender, which is to a sum of Rs.63,04,574/-. He submitted that, unless these two issues are fully dealt with and decided, the petitioner's request cannot be acceded to.

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3. When I evaluate and consider the afore submissions, it is evident that there is no complaint against the petitioner's work impelled before this Court; while, even as per the respondents, they only say that some amounts are due from them on the afore two heads.

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4. As far as the first of the afore two heads is concerned, this is an issue that the 'PWD' itself will have to consider; while, the second depends upon the clearing of the audit objection, under the aegis of the Accountant General.

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5. However, that said, as matters now stand, none of

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W.P.(C).No. 223 of 2022

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these objections have crystallized into any proceedings against the petitioner; and, therefore, they are fully justified in seeking that their bank guarantee and security deposit be released. The petitioner cannot be made to wait ad infinitum for this, merely because the afore objections are pending.

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6. In the afore circumstances, I am certain that this Court will be justified in fixing specific time frames, within which, the objections/liabilities will have to be dealt with and confirmed.

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Resultantly, this writ petition is allowed with the following directions:

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(a) The respondents are directed to ensure that all objections raised against the petitioner are considered and evaluated; thus culminating in appropriate proceedings, not later than two month from the date of receipt of a copy of this judgment. While doing so, necessary opportunities of being heard to the petitioner shall also be given.

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(b) If the afore is not done, then the amounts eligible to the petitioner – both under the bank

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W.P.(C).No. 223 of 2022

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guarantee and the security deposit – will be released to them, on a self-bond being executed by them, awaiting further orders from either the 'PWD' or the Accountant General; which, of course, the petitioner will be at liberty to deal with as per law, if it is to their detriment, for which purpose, all rival contentions in that regard are left open.

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Sd/DEVAN RAMACHANDRAN JUDGE

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anm

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W.P.(C).No. 223 of 2022

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APPENDIX OF WP(C) 223/2022

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PETITIO	NER EXHI	BITS
Exhibit	P1	THE TRUE COPY OF THE SELECTION NOTICE NO. DMP-5409/2017 DATED 20-10-2018 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER
Exhibit	P2	THE TRUE COPY OF THE BANK GUARANTEE FOR RS 3,23,900/- OF STATE BANK OF INDIA DATED 30-10-2018
Exhibit	P3	THE TRUE COPY OF THE BANK GUARANTEE FOR RS 36,24,050/- ISSUED BY STATE BANK OF INDIA WHICH IS VALID FROM 03-11-2018 TO 31-01-2021 FAVOURING 4TH RESPONDENT DATED 03-11-2018
Exhibit	P4	THE TRUE COPY OF THE TREASURY DEPOSIT CERTIFICATE FOR RS 36,24,050/- DATED 03- 11-2018 WITH VALIDITY PERIOD FOR 27 MONTHS
Exhibit	P5	THE TRUE COPY OF THE COVERING LETTER NO. EKK/MVPA/2018/456 DATED 03-11-2018 ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT
Exhibit	P6	THE TRUE COPY OF THE RELEVANT EXTRACT OF AGREEMENT DATED 03-11-2018 EXECUTED BETWEEN THE PETITIONER AND THE 4TH RESPONDENT
Exhibit	P7	THE TRUE COPY OF THE RELEVANT CLAUSES 7 AND AND 46 OF THE TENDER NOTIFICATION PQ3/SECCA/18-19 DATED 28-09-2018 ISSUED BY THE 4TH RESPONDENT
Exhibit	P8	THE TRUE COPY OF THE LETTER NO A2- 2018/5409 DATED 08-10-2018 ISSUED BY THE 5TH RESPONDENT TO BPCL
Exhibit	P9	THE TRUE COPY OF THE REPRESENTATION DATED 10-10-2018 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT
Exhibit	P10	THE TRUE COPY OF THE COMMUNICATION SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 4TH RESPONDENT DATED 11-10-2018
Exhibit	P11	THE TRUE COPY OF THE COMMUNICATION ISSUED BY 5TH RESPONDENT TO M/S BHARATH PETROLEUM CORPORATION LTD DATED 13-12- 2018 FOR ISSUANCE OF SUFFICIENT QUANITITY OF BITUMEN

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W.P.(C).No. 223 of 2022

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Exhibit P12	THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE 5TH RESPONDENT MATERIALS FOR BALANCE WORK DATED 31-12-2018
Exhibit P13	THE TRUE COPY OF THE REPRESENTATION DATED 28-05-2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT
Exhibit P14	THE TRUE COPY OF THE COMMUNICATION ISSUED BY 5TH RESPONDENT TO THE 4TH RESPONDENT RECOMMENDING THE DISCOUNTED AMOUNT REQUESTED BY THE PETITIONER AFTER DEDUCTING THE PRICE BY THE PETITIONER AFTER DEDUCTING THE PRICE DIFFERENCE IN THE PURCHASE OF BITUMINE (FOR USING VG30 INSTEAD OF NRMB) DATED 01-10-2019
Exhibit P15	THE TRUE COPY OF THE ORDER NO. G.O(RT) NO. 2816/2020/FIN DATED 17-04-2020, ISSUED BY THE STATE GOVERNMENT
Exhibit P16	THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT DATED 08-02-2021
Exhibit P17	THE TRUE COPY OF THE COMMUNICATION NO. DMP-5409/2018 DATED 03-09-2021 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.
Exhibit P18	THE TRUE COPY OF THE RELEVANT EXTRACT OF THE AUDIT OBJECTION ALONG WITH TYPED COPY

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RESPONDENTS' EXHIBITS : NIL.

M/S.Ekk Infrastructure Limited v. State of Kerala

Case brief

What is this about?

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M/S.Ekk Infrastructure Limited v. State of Kerala

Case brief

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