Disposed

Pramod K., v. University of Kerala

Kerala HC13 Feb 2024WP(C)/8563/2021

Case brief

AI extract

What is this about?

In a writ petition challenging a notice for contract cancellation and security deposit forfeiture, the Kerala High Court held the notice to be a show-cause notice due to lack of hearing. The court directed the University to reconsider the matter after providing the petitioner an opportunity to be heard, explicitly stating no opinion was formed on the merits of the arguments.

What did the court decide?

Ext.P5 notice treated as show cause notice; petitioner allowed four weeks to file reply; University directed to take fresh decision after hearing.

Pramod K., Vs University of Kerala — 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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TUESDAY, THE 13TH DAY OF FEBRUARY 2024 / 24TH MAGHA, 1945
WP(C) NO. 8563 OF 2021

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PETITIONER/S:

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PRAMOD K.,AGED 42 YEARS
S/O. KRISHNAN NAIR, PWD CONTRACTOR,
NELLIKOTTU PANAYIL VEEDU, SREEKRISHNAPURAM,
POWDIKONAM P.O, THIRUVANANTHAPURAM 695 587, MOBILE-
9497883883.
BY ADVS.
P.K.RAMKUMAR
SMT.ANITHA MENON

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RESPONDENT/S:

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UNIVERSITY OF KERALA
REP. BY ITS REGISTRAR,
THIRUVANANTHAPURAM, KERALA-695 034
BY ADV SHRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 8563 OF 2021 2

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JUDGMENT

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The petitioner was awarded a contract for cutting and removing 1810 Acacia timber trees and 990 Acacia firewood trees in 25 hectares of land in the Karyavattom campus of the Kerala University for an amount of Rs.1,01,72,685/-. An agreement in this regard was entered into between the petitioner and the University on 27.06.2019. On the request of the petitioner, the petitioner was permitted to pay the amount quoted by the petitioner in four instalments and the petitioner has remitted the first instalment of Rs.31,77,694/-, including tax. According to the petitioner, owing to the lock-down and consequential restrictions in place on account of the Covid-19 pandemic, the petitioner was not in a position to complete the work within the time specified. It is submitted that though the University had granted extension of time, these extensions were also within the period of the pandemic and the restrictions in place on account of the same and this aspect of the matter was not considered by the University while issuing Ext.P5 notice, proposing to forfeit the security deposit of Rs.10,17,300/- and while informing the petitioner that the work would be re-tendered at the risk and cost of the petitioner.

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WP(C) NO. 8563 OF 2021 3

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Learned counsel appearing for the petitioner would submit that even Ext.P5 notice was issued on 16.10.2020 when the Covid 19 pandemic had not died down. It is submitted that the impossibility of performance during the height of Covid-19 pandemic has not been considered by the University while deciding to forfeit the security deposit and while deciding that the re-tender of the work will be at the risk and cost of the petitioner. It is submitted that Ext.P5 is, therefore, liable to be set aside and the University is to be directed to refund the security deposit of the petitioner. It is further submitted that Ext.P5 has been issued without affording to the petitioner any opportunity of hearing.

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Learned Standing Counsel appearing for the University would submit that there is a clear breach of the terms of the agreement executed between the petitioner and the University on 27.06.2019. It is submitted that the petitioner put forth various excuses for failure to complete the work within the time specified. It is submitted that, in terms of Ext.P1 agreement, the petitioner was required to cut and remove the trees and complete the work within a period of 30 days of the award of the contract, which cannot be later than the date of the agreement. It is submitted that the petitioner is now citing the Covid-19 pandemic as a

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WP(C) NO. 8563 OF 2021 4

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reason for the failure on the part of the petitioner to complete the work and this cannot be a reason as the time for completion of the work was much before the onset of the Covid-19 pandemic. It is submitted that the fact that the University had granted extension of time, on the request of the petitioner, is no ground to hold that the petitioner can be relieved of his obligations under Ext.P1 agreement on the ground that there were lock-downs and restrictions in place on account of the Covid-19 pandemic in the extended period. It is submitted that the lock-down and the restrictions on account of the pandemic were initially imposed only in the last week of March-2020 and not earlier than that.

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Having heard the learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the University, I am of the opinion that since Ext.P5 notice has been issued to the petitioner without affording to the petitioner an opportunity of being heard, Ext.P5 will be treated as a show cause notice. The question as to whether the restrictions in place on account of the Covid-19 pandemic had any bearing on the performance of the contract by the petitioner also does not appear to have been considered in Ext.P5.

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Accordingly, Ext.P5 is directed to be treated as a show

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WP(C) NO. 8563 OF 2021 5

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cause notice. The petitioner will file his reply/objections to the proposals (including the proposal to forfeit his security deposit and to award the work to another contractor at the risk and cost of the petitioner) contained in Ext.P5 before the competent authority of the University, within a period of four weeks from the date of receipt of a certified copy of this judgment. Thereafter, a fresh decision shall be taken in the matter by the University,after affording to the petitioner an opportunity of hearing . I make it clear that I have not expressed any opinion on the merits of the contentions raised by both sides.

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The writ petition is disposed of as above.

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Sd/-

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GOPINATH P.
JUDGE

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ajt

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WP(C) NO. 8563 OF 2021 6

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APPENDIX OF WP(C) 8563/2021

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PETITIONER EXHIBITS
EXHIBIT P1TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN
PETITIONER AND RESPONDENT DT. 27.6.19.
EXHIBIT P2TRUE COPY OF THE NOTICE ISSUED BY RESPONDENT
TO THE PETITIONER DT. 18.5.2020.
EXHIBIT P3TRUE COPY OF THE NOTICE ISSUED BY RESPONDENT
TO THE PETITIONER DT. 5.6.2020.
EXHIBIT P4TRUE COPY OF THE REPRESENTATION ADDRESSED TO
THE RESPONDENTS VICE CHANCELLOR WITH COPY TO
THE RESPONDENT DT. 5.6.2020.
EXHIBIT P5TRUE COPY OF THE NOTICE ISSUED TO PETITIONER
BY RESPONDENT INTIMATING FOREFEITURE OF
SECURITY DEPOSIT AND CANCELLATION OF
CONTRACT.
EXHIBIT P6TRUE COPY OF THE REPRESENTATION DT. 27.1.2021
ADDRESSED TO THE RESPONDENT.
RESPONDENT EXHIBITS
EXHIBIT R1(a)The true copy of the e-tender cum e-auction
notification dated 11.6.2019 issued by the
University of Kerala
EXHIBIT R1(b)The true copy of the minutes of the
negotiation meeting held on 29.7.2019
EXHIBIT R1(c)The true copy of the letter dated 3.8.2019
submitted by the petitioner
EXHIBIT R1(d)The true copy of the minutes of the meeting
of the Syndicate held on 8.8.2019
EXHIBIT R1(e)The true copy of the letter dated 19.8.2019
sent by the Registrar, University of Kerala
to the petitioner
EXHIBIT R1(f)The true copy of the agreement dated
26.10.2019 entered into between the
petitioner and the respondent University
EXHIBIT R1(g)The true copy of the letter No. EO(1).[Ad.B1]
841/2015/001 dated 16.1.2020 sent by the
Registrar to the petitioner
EXHIBIT R1(h)The true copy of the letter
No.C.A./Admin/39/737/2020 dated 16.1.2020

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WP(C) NO. 8563 OF 2021 7

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sent to the petitioner
EXHIBIT R1(i)The true copy of the stop memo No.EO(1).
[Ad.B1].841/2015/001 issued by the university
of Kerala to the petitioner dated 19.02.2020
EXHIBIT R1(j)The true copy of the minutes of the sub-
committee meeting held on 18.3.2020 in the
chamber of the Pro-Vice Chancellor
EXHIBIT R1(k)The true copy of the minutes of the Syndicate
meeting held on 15.5.2020

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EXHIBIT R1(l)The true copy of the letter dated 5.6.2020
submitted by the petitioner
EXHIBIT R1(m)The true copy of the letter No.EO(1).[Ad.B1].
841/2015/001 dated 16.6.2020 sent by the
Registrar to the petitioner
EXHIBIT R1(n)The true copy of the minutes of the meeting
of the Syndicate held on 17.7.2020

Pramod K., v. University of Kerala

Case brief

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Pramod K., v. University of Kerala

Case brief

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