Allowed

Sukesini Constructions and Developers (India) Pvt. Ltd. v. State of Kerala

Kerala HC16 Feb 2024WP(C)/2368/2024

Case brief

AI extract

What is this about?

The High Court allowed the writ petition seeking to quash an order denying payment for completed construction works. Relying on a prior judgment, the Court directed the Chief Engineer to constitute a committee to audit the works and decide the payable amounts, with disbursement mandated within two months of the audit completion.

What did the court decide?

Constitution of a Committee to audit works and determine payable amounts; order to be completed within four months, with disbursement within two months thereafter.

Sukesini Constructions and Developers… — Contract and Commercial Disputes | 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

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FRIDAY, THE 16TH DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945

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WP(C) NO. 2368 OF 2024

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PETITIONER:

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SUKESINI CONSTRUCTIONS AND DEVELOPERS (INDIA)
PVT. LTD., SUKESINI BUILDING, MARAKKADA MUKKU,
PALACHIRA P.O., VARKALA, THIRUVANANTHAPURAM
DISTRICT-695143 REPRESENTED BY ITS DIRECTOR.,
PIN – 695143

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BY ADV LATHEESH SEBASTIAN

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001

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2 SECRETARY, IRRIGATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001

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3 CHIEF ENGINEER, IRRIGATION AND ADMINISTRATION, IRRIGATION DEPARTMENT, CWC BUILDING, LMS COMPOUND, THIRUVANANTHAPURAM, PIN – 695033

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4 SUPERINTENDING ENGINEER, IRRIGATION SOUTH CIRCLE, 2ND FLOOR, CWC BUILDING, LMS COMPOUND, THIRUVANANTHAPURAM, PIN – 695033

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5 EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE ENGINEER, IRRIGATION DIVISION,ASRAMAM, KOLLAM, PIN – 691002

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6 ASSISTANT EXECUTIVE ENGINEER, OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER, IRRIGATION SUB DIVISION, ASRAMAM, KOLLAM, PIN – 691002

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7 ASSISTANT ENGINEER, OFFICE OF THE ASSISTANT ENGINEER, IRRIGATION SECTION, ASRAMAM, KOLLAM, PIN – 691002

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BY ADV

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SRI. SUJITH MATHEW JOSE - SPL GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WPC 2368/24

JUDGMENT

The petitioner is stated to be a construction company, awarded

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with the contract of construction of groyne field between chainage 9.00 k.m. to 10.00 k.m. at ‘Kulathilpadam’ to ‘Garfil Nagar’ area, in Eravipuram Constituency on 19.08.2015. They say that, though the work has been completed substantially, eligible amounts due to them have been denied on various untenable reasons; and thus assail Ext.P4 order of the 5 th respondent – Executive Engineer (Irrigation Division), arguing that, what is stated therein is factually incorrect and baseless. They, therefore, pray that Ext.P4 be quashed and the respondents be directed to pay them an amount of Rs.1,01,50,401.70, which is the amount due to them, when the contract had been terminated.

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Sri.Latheesh Sebastian – learned counsel for the petitioner , submitted that, since the termination of contract was compelled for reasons which were beyond the control of his client, the imputations made by the respondents against them are uncharitable and unfortunate; and that, therefore, before any liability could be cast

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WPC 2368/24

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upon them, the respondents ought to have re-audited their works, as

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also the accounts, to verify whether such action was tenable or otherwise. He relied upon Ext.P5 judgment of this Court - which was obtained by another contractor - in substantiation, saying that, on a similar set of circumstances, this Court directed the competent Authority to constitute a Committee for re-auditing the work of the petitioner therein and take a fresh decision regarding the amounts payable to them. He thus prayed that the respondents be directed to adopt a procedure as ordered by this Court in Ext.P5 in his client’s case also.

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Pertinently, Sri.Sujith Mathews Jose – learned Government

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Pleader, submitted that Ext.P4 suffers from no vice, particularly because the contract of the petitioner had earlier been terminated. He, however, submitted that if this Court is only inclined to direct the procedure as ordered by this Court in Ext.P5 judgment, the competent Authority would not stand in the way of appropriate orders being issued. He, however, prayed that no affirmative declaration be made in favour of the petitioner in this judgment.

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When I evaluate and consider the afore submissions, it is

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WPC 2368/24

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evident that Ext.P4 has been issued by the Authorities adverting to various factual and documentary inputs, as are available, consequent

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to the contract having been entered into between the parties. Normally, this Court cannot enter into the merits of the same conclusively, while acting under Article 226 of the Constitution of

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India, because any re-evaluation of such factors are proscribed.

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I have, however, examined Ext.P5 judgment and notice that it was delivered in a case where the petitioner therein had been notified of a negative amount as regards his claim, after having been imposed with fines. In that case, the petitioner also impelled similar claims as the petitioner herein; and alleged that amounts due to them had not been properly evaluated or assessed.

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Since the learned Government Pleader concedes that the course adopted by this Court in Ext.P5 can be made applicable to the petitioner in this case also, I deem it necessary that it be so ordered.

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Resultantly, this Writ Petition is allowed and the 3 rd respondent – Chief Engineer, is directed to constitute a Committee to audit the

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works executed/completed by the petitioner, leading to the said

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WPC 2368/24

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Authority to take a decision regarding the amounts payable to them, adverting to their claim.

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The afore exercise shall be completed, after affording the

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petitioner an opportunity of being heard; thus culminating in an appropriate order/necessary action thereon, as expeditiously as is possible, but not later than four months from the date of receipt of a copy of this judgment.

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Needless to say, on the afore being completed, the eligible amounts due to them shall be disbursed within a period of two months thereafter.

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Sd/-

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RR

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 DEVAN RAMACHANDRAN
JUDGE

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WPC 2368/24

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APPENDIX OF WP(C) 2368/2024

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`PETITIONER`	`EXHIBITS`
`ExhibitP 1`	`TRUE COPY OF THE SCHEDULE OF WORK FOR THE` `CONSTRUCTION OF GROYNE FIELD BETWEEN` `CHAINAGE 9.00 KM TO 10.00 KM AT` `KULATHILPADAM TO GARFIL NAGAR AREA IN` `ERAVIPURAM CONSTITUENCY OF KOLLAM DISTRICT`
`Exhibit P2`	`TRUE COPY OF THE CLOSURE AGREEMENT` `EXECUTED BY THE PETITIONER AND THE 4TH` `RESPONDENT DATED 01.12.2020`
`Exhibit P3`	`TRUE COPY OF THE JUDGMENT OF THIS HON'BLE` `COURT IN W.P(C)NO 11005/2022 DATED` `17.06.2022`
`Exhibit P4`	`TRUE COPY OF THE ORDER OF THE 5TH` `RESPONDENT DATED 05.09.2022`
`Exhibit P5`	`TRUE COPY OF THE JUDGMENT OF THIS HON'BLE` `COURT IN W.P(C) NO.29685/2022 DATED` `20.10.2022`
`Exhibit P6`	`TRUE COPY OF THE ORDER OF THE 1ST` `RESPONDENT DATED 15.07.2023 BEARING` `NO.G.O.(RT)641/2023/WRD`

Sukesini Constructions and Developers (India) Pvt. Ltd. v. State of Kerala

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Sukesini Constructions and Developers (India) Pvt. Ltd. v. State of Kerala

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