Disposed

M/S. Sreenarayana Constructions Pct.Ltd v. State of Kerala

Kerala HC9 Feb 2024WP(C)/32208/2017

Case brief

AI extract

What is this about?

The Court disposed of a writ petition challenging termination of a construction award. It directed the Additional Respondent to consider the petitioner's representation after an opportunity of hearing, complete measurement of work carried out, and examine the contention regarding absolution from the risk and cost clause due to project abandonment, to be done within four months.

What did the court decide?

The Additional 7th Respondent is directed to consider Ext.P20, hear the petitioner, complete measurement of work done, and decide on absolution from risk/cost dues within four months.

M/S. Sreenarayana Constructions Pct.Ltd Vs… — 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 GOPINATH P.

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FRIDAY, THE 9TH DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945

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WP(C) NO. 32208 OF 2017

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PETITIONER:

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M/S. SREENARAYANA CONSTRUCTIONS PVT.LTD
OPPOSITE K.S.R.T.C. BUS STATION, JETTY ROAD,
KOLLAM- 691 001, REPRESENTED BY ITS MANAGING
DIRECTOR, VARADARAJAN.

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BY ADVS.

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 SRI.S.SANTHOSH KUMAR
 SMT.P.LISSY JOSE.

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RESPONDENTS:

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1STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
WATER RESOURCES DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM- 695 001.

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2 THE CHIEF ENGINEER IRRIGATION AND ADMINISTRATION, MUSEUM PO, THIRUVANANTHAPURAM -695 033.

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3THE DIRECTOR
INLAND NAVIGATION DIRECTORATE,
IRRIGATION DEPARTMENT, KALLADA HOUSE, ASRAMAM PO,
KOLLAM -691 002.

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4 THE EXECUTIVE ENGINEER INLAND NAVIGATION DIVISION, ASRAMAM PO, KOLLAM -691 002.

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5 THE ASSISTANT EXECUTIVE ENGINEER INLAND NAVIGATION SUB DIVISION, CHAVARA, KOLLAM -691 583.

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W.P.(C) No.32208/2017

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-:2:-

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6THEKKUMBHAGOM GRAMA PANCHAYAT
CHAVARA SOUTH PO, KOLLAM- 691584,
REPRESENTED BY ITS SECRETARY.

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7ADDL R7, THE CHIEF ENGINEER,
INLAND NAVIGATION AND KOOTTANADU PACKAGE,
ALAPPUZHA, PIN-688 009.
ADDL R7 IMPLEADED AS PER ORDER DATED 22-11-2019
IN IA NO. 1/2019.

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BY ADVS.
 SRI. BINOY DAVIS (GP)
 SRI.K.SUBASH CHANDRA BOSE (FOR R6)

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 09.02.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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W.P.(C) No.32208/2017

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J U D G M E N T

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The petitioner is a company engaged in construction activities. The petitioner was awarded some work by the 3^rd respondent. This writ petition was filed in the year 2017 challenging the termination of the work awarded to the petitioner, at the risk and cost of the petitioner.

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When this matter is taken up for consideration today, it is the submission of the learned counsel for the petitioner that though the award to the petitioner was terminated, the competent authority did to award the work to any other contractor and the project itself has been abandoned. It is submitted that in such circumstances, the question of recovering risk and cost from the petitioner does not arise. It is submitted that the petitioner has therefore filed Ext.P20 representation before the additional 7^th respondent and the same may be directed to be considered and disposed of in accordance with the law within a time to be specified by this Court. It is submitted that the other contentions raised in the writ petition may be left open for consideration at a later stage, if required.

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W.P.(C) No.32208/2017

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The learned Government Pleader submits that the earlier representation of the petitioner for absolving him from the risk and cost clause has already been rejected by the additional 7^th respondent. Reference is made in this regard to order No.W1-297/CE/IN/2019 dated 03-07-2023 issued by the additional 7^th respondent.

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Having heard the learned counsel for the petitioner and the learned Government Pleader, I am of the view that this writ petition can be disposed of directing the additional 7^th respondent to consider and pass orders on Ext.P20 after affording an opportunity of hearing to the petitioner. Before disposing of Ext.P20 the measurement of the work actually carried out by the petitioner shall also be completed. Since the contention of the petitioner is that the work has been abandoned and therefore no amount under the risk and cost clause can be recovered from the petitioner has to be considered by the additional 7^th respondent while passing the order dated 03-07-2023, it is directed that this aspect shall also be considered by the additional 7^th respondent while passing orders on Ext.P20.

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Accordingly, this writ petition will stand disposed of

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W.P.(C) No.32208/2017

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directing the additional 7^th respondent to consider and pass orders on Ext.P20 after affording an opportunity of hearing to the petitioner and after ensuring that measurement of the work stated to have been carried out by the petitioner is also carried out. The additional 7^th respondent shall also consider the question as to whether the petitioner can be absolved from the risk and cost clause on account of the fact that the project has been abandoned by the Government and was not re-tendered to another contractor. I make it clear that I have not expressed any opinion on the merits of the petitioner’s claim and it will be open to the additional 7^th respondent to consider the matter in accordance with the law as directed above. The additional 7^th respondent shall endeavour to pass orders on Ext.P20, as directed above, within a period of four months from the date of receipt of a certified copy of this judgment. All other contentions raised by the petitioner are left open.

Sd/-

GOPINATH P.

JUDGE

ats

W.P.(C) No.32208/2017

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APPENDIX OF WP(C) 32208/2017

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`PETITIO`	`NER’S EXHIBITS`
`EXHIBIT`	`P1` `TRUE COPY OF THE AGREEMENT DATED 27.11.2013`
`EXHIBIT`	`P2` `TRUE COPY OF THE LETTER DATED 07.08.2015 OF` `THE PETITIONER TO THE 3RD RESPONDENT`
`EXHIBIT`	`P2 A` `TRUE COPY OF THE LETTER DATED 17.12.2015 OF` `THE PETITIONER TO THE 3RD RESPONDENT`
`EXHIBIT`	`P3` `TRUE COPY OF THE JUDGMENT DATED 17.02.2016` `IN THE WPC.NO. 3755/2016`
`EXHIBIT`	`P4` `TRUE COPY OF THE ORDER DATED 04.04.2016 OF` `THE 3RD RESPONDENT`
`EXHIBIT`	`P5` `TRUE COPY OF THE LETTER DATED 29.03.2016 OF` `THE SECRETARY OF THE 6TH RESPONDENT, GRAMA` `PANCHAYATH`
`EXHIBIT`	`P6` `TRUE COPY OF THE ORDER DATED 26.07.2016 IN` `IA.NO. 11572/2016 IN WPC.NO. 3755/2016`
`EXHIBIT`	`P7` `TRUE COPY OF THE ORDER DATED 06.10.2016 OF` `THE 3RD RESPONDENT`
`EXHIBIT`	`P8` `TRUE COPY OF THE APPLICATION DATED` `14.12.2016 FOR EXTENSION OF TIME ALONG WITH` `COVERING LETTER FILED BY THE PETITIONER`
`EXHIBIT`	`P9` `TRUE COPY OF THE LETTER DATED 04.02.2017 OF` `THE 3RD RESPONDENT TO THE PETITIONER`
`EXHIBIT`	`P10` `TRUE COPY OF THE LETTER DATED 05.04.2017 OF` `THE SECRETARY, 6TH RESPONDENT GRAMA` `PANCHAYATH TO THE ASSISTANT ENGINEER ALONG` `WITH RESOLUTION DATED 04.04.2017 OF THE` `PANCHAYATH`
`EXHIBIT`	`P11` `TRUE COPY OF THE LETTER DATED 12.06.2017 OF` `THE PETITIONER TO THE 3RD RESPONDENT`
`EXHIBIT`	`P12` `TRUE COPY OF THE ORDER NO.` `D1.2/DIR/INDT/2013 DATED 23.08.2017 PASSED` `BY THE 3RD RESPONDENT`
`EXHIBIT`	`P13` `TRUE COPY OF LETTER DATED INCC/13/2012` `DATED 19/3/2016 OF THE ASSISTANT ENGINEER` `TO THE 6TH RESPONDENT.`

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W.P.(C) No.32208/2017

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`EXHIBIT`	`P14` `A TRUE COPY OF THE LETTER DATED 3/8/2016 OF` `THE ASSISTANT ENGINEER TO THE 6TH` `RESPONDENT`
`EXHIBIT`	`P15` `A TRUE COPY OF THE APPLICATION FOR` `EXTENSION OF TIME DATED 22/11/2014 ALONG` `WITH COVERING LETTER.`
`EXHIBIT`	`P16` `A TRUE COPY OF THE LETTER DATED 27/6/2014` `OF THE PETITIONER TO THE ASSISTANT` `ENGINEER.`
`EXHIBIT`	`P17` `A TRUE COPY OF THE LETTER DATED 18/7/2016` `ISSUED BY THE ASSISTANT ENGINEER TO THE 5TH` `RESPONDENT.`
`EXHIBIT`	`P18` `A TRUE COPY OF THE LETTER DATED 28/2/2017` `OF THE ASSISTANT ENGINEER TO THE 5TH` `RESPONDENT ALONG WITH APPLICATION DATED` `14/12/2016`
`EXHIBIT`	`P19` `TRUE COPY OF PETITION DATED 25/10/2019` `FILED BY THE PETITIONER BEFORE THE CHIEF` `ENGINEER, INLAND NAVIGATION AND KOOTTANADU` `PACKAGE, ALAPPUZHA.`
`Exhibit`	`P20` `TRUE COPY OF THE PETITION DATED 30/06/2023` `FILED BY THE APPLICANT BEFORE THE 7TH` `RESPONDENT.`

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RESPONDENT’S EXHIBITS

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`EXHIBIT R3(a)`	`A TRUE COPY` `TENDERS FOR`	`OF FORM NO.83, NOTICE INVITING` `WORKS`
`EXHIBIT R3(b)`	`A TRUE COPY`	`OF LETTER NO.C4-1956/16 DATED`
	`29.3.2016`

M/S. Sreenarayana Constructions Pct.Ltd v. State of Kerala

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M/S. Sreenarayana Constructions Pct.Ltd v. State of Kerala

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