Dismissed

Sri Ganapathy Engineering Works v. The Superintending Engineer/Civil

Madras HC17 Nov 2022WP/33739/2018

Case brief

AI extract

What is this about?

Petitioner sought to quash an order terminating their contract for failing to commence civil works and demanded allotment under revised terms. The court dismissed the petition, finding the termination valid due to the contractor's unreasonable conduct and delay.

What did the court decide?

The writ petition allowing reopening of the tender or allowing fresh contract terms was dismissed as devoid of merits.

Sri Ganapathy Engineering Works Vs The… — Public Procurement and Tenders | Madras HC (2022)

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W.P.No.33739 of 2018

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 17.11.2022

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CORAM

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THE HONOURABLE MR. JUSTICE S.S.SUNDAR

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W.P.No.33739 of 2018

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Sri Ganapathy Engineering Works, Represented by its Managing Partner, P.Elangovan S/o.Perumal, No.20/6, Indra Nagar Extension, Vasavi College Post, Erode – 638 316.

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...Petitioner

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-Vs-

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1.The Superintending Engineer/Civil, Hydro Project / TANGEDCO, 955, EVN Road, TNEB Complex, Erode – 638 009.

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2.The Executive Engineer / MM & LA (I/c), O/o. The Superintending Engineer / Civil, Hydro Project / TANGEDCO, Erode. ...Respondents

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Prayer:- Writ petition filed under Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus calling the files relating to the order dated 03.05.2018 made in Lr.No.SE/C/HP/TS/EA/CHD/F.KPSHEP212/2016-17/C.248-2/18 and quash the same and consequently direct the 1^st respondent to re-open the tender to give allotment once again to the petitioner on

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the basis of the petitioner's representation dated 21.11.2008 within the stipulated time.

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For Petitioner : Mr.M.N.Kathir For Respondents : Mr.Abdul Kalam Standing Counsel for EB

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O R D E R

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This writ petition is filed for issuance of a writ of certiorarified mandamus

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to quash the impugned order dated 03.05.2018 made in Lr.No.SE/C/HP/TS/EA/CHD/F.KPSHEP-212/2016-17/C.248-2/18 issued by the 1^st respondent and to consequently direct the 1^st respondent to re-open the tender to give allotment once again to the petitioner on the basis of the petitioner's representation dated 21.11.2008.

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Brief facts that are necessary for the disposal of this writ petition are as follows:

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The petitioner states that he is a registered class I contractor and he is eligible to take up civil works above the value of Rs.75 lakhs at any State level undertakings by TNEB limited, TANGEDCO, and TANTRANSCO. The 1^st respondent issued a tender notification on 28.12.2016 inviting tender for the

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W.P.No.33739 of 2018

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execution of construction work of RR Masonry retaining wall on right side of the approach road to the main access Tunnel of KPSHEP at Emerald in Nilgiris District.

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The petitioner participated and got the said particular work and thereafter entered into an Agreement with the 1^st respondent vide agreement dated 04.05.2017. As per the Agreement, it is stated that the value of the work is approximately Rs.13,35,835/- including service tax. The earnest money deposit of Rs.14,100/- was paid by the petitioner on 30.12.2016 and the said payment was acknowledged. A sum of Rs.49,000/- was also paid by the petitioner on 02.05.2017 as security deposit. The fact that the petitioner executed the Agreement on 04.05.2017 and the terms and conditions for execution of the work are not in dispute. Further correspondence produced by the petitioner himself shows that the work undertaken by the petitioner was not commenced within the time.

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It is the grievance of the petitioner that the 1^st respondent gave the award letter only on 17.04.2017 and that the copy of the Agreement regarding the nature of the work was also given to the petitioner only in November 2017

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which was received by the petitioner on belatedly. Therefore the petitioner states that the delay in execution of the Agreement was on account of the conduct of the 1^st respondent. However, ignoring these facts and peculiar circumstances, it is stated by the petitioner that the 1^st respondent terminated the contract awarded in favour of the petitioner for the work. The reason stated by the 1^st respondent in the impugned order is that the petitioner did not fulfil the terms and conditions of the Agreement for taking up the work and that there is a considerable delay of nearly 1 year from the date of award in commencing the work. Since the work is urgently needed for the respondents and the petitioner did not commence the work, it is stated that the contract is terminated.

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No counter affidavit was filed on behalf of the respondents.

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The learned counsel appearing for the petitioner submitted that the petitioner received the award letter only on 17.04.2017 and therefore, it is highly arbitrary to expect the petitioner to complete the Agreement within the time stipulated. He also stated several reasons and one of them was by referring his representation earlier before the impugned order is passed. Pointing out that respondents 1 and 2 failed to issue copy of the work order and Agreement within

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a reasonable time and that the petitioner's contract was illegally terminated which resulted in forfeiting of the earnest money paid by the petitioner pursuant to the tender the learned counsel submitted that the impugned order is arbitrary. Stating that the 1^st respondent did not conduct any enquiry before passing the impugned order, the learned counsel contended that the order is also in violation of the principles of natural justice. This Court has considered the submissions of the learned counsel appearing for the petitioner and perused the materials placed on record.

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From the communications and the impugned order it is seen that the petitioner was awarded the contract and an intimation about the acceptance of work in favour of the petitioner was given long back vide communication dated 17.04.2017. The petitioner was informed that the period of completion of work is only two months and that therefore, the petitioner should be prepared to execute the work within two months from the date of taking over the site from the department. It is not disputed that the Agreement was also executed immediately thereafter. It is to be seen that as per the terms and conditions of the contract, the respondents have reserved the right to forfeit the earnest money deposit in case the contractor withdraws his tender or failed to adhere to any terms and

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conditions of the tender issued by the competent authority.

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Despite a few communications that are referred to in the order impugned, the petitioner has failed to commence the work as per the Agreement. Further some of the communications from the respondents would also reveal that the petitioner was offered to take over the site by a communication dated 23.08.2017. However, for reasons best to known to the petitioner, he has not proceeded further. The copy of the Agreement was also acknowledged by the respondents long before the order of termination. From the communication dated 04.12.2017, the petitioner was asked to commence the work before the lapse of 7 months and to take over the site. From the communications sent to the petitioner and the petitioner's representation, this Court is unable to countenance the arguments of the learned counsel appearing for the petitioner or the stand taken by the petitioner in the affidavit filed in support of the petition. After several intimations by a communication dated 16.02.2018, the petitioner has given a self explanation. The stand taken by the petitioner from the said communication would indicate how the petitioner is so unreasonable in approaching this Court. The petitioner's explanation in response to one of the letters signed by the respondents requesting to complete the work within the period specified in the Agreement reads as follows:

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@nkYk; ,e;j ntiyapid ehd; GST tUtjw;F Kd;ng gzpapid Koj;Jtpl;nld;/ j';fs; vd;id gHpth';Fk; nehf;fj;jpy; GST f;F Kd;ng Koj;j gzpf;F 18%-36,000/- ,Hg;gPL bra;a itj;jPh;fs;/ nkYk; jh';fs; jw;bghGJk; 12 khj';fSf;F Kd;g[ Koj;j Tender f;F ehd; tf;fPy; K:yk; tpsf;fk; nfl;lgpd;g[ nkw;fz;l S.P.No.214, S.P.No.212 Mfpa ntiyfSf;F 12.12.2017y; xU Agreement k; 15.12.2017 vd;W xU Agreement k; mDg;gpdPh;fs;/ nkYk; jw;bghGJ ehd; ,e;j gzpapid bra;a jahh; Mdhy; vdf;F GST f;F Kd;g[ bra;a ntz;oa gzpapid jh';fs; fhyjhkjk; bra;J

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fhy tpiuaj;ija[k;. gztpiuaj;ija[k; Vw;gLj;jp tpl;Oh;fs;/ vdf;F ,e;j ,uz;L ntiyfSf;Fk; cz;lhd GST bjhif 18% nkw;go vdf;F fcp;lkhFk; mjid vd; jtW VJk;gl;rj;jpy; ehd; Vw;fyhk; Mdhy; ,e;j fhy tpuaj;jw;F jh';fns bghWg;g [ Vw;fntz;Lk;/ nkYk; jw;bghGJ ESI, PF ,jw;fhd bryt[ nkYk; xU tUlj;jpy; kzypd; tpiynaw;wk; Ml;fs;. Rpbkz;l;. Mfpatw;wpd; tpiynaw;wk; nkYk; ,e;j Tenderf;fhf bryt[ bra;j EMD, ASD, bjhiff;fhd fhytpiuak; ,jw;F jh';fs; vdf;F vt;thW <Lbra;tPh;fs; vd vdf;F cWjpf; fojk; bfhLj;jhy; ehd; gzpapid bra;a jahuhf cs;nsd;/@

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Thereafter, the 1^st respondent passed the impugned order terminating the contract. It is surprising to note that after the termination of contract by the impugned order dated 03.05.2018, the petitioner came up with the reply on 21.11.2018. Even after the termination of the contract, the petitioner has demanded the respondents to revise the contract as per the new rates for executing the work. For reasons best known to the petitioner, he never realised the inconvenience that was caused to the respondents. The attitude and the conduct of the petitioner only revealed that the petitioner is not prudent or capable of realising the implications of violating the terms of the contract. The work entrusted to the petitioner is in the public interest. After finding that the petitioner could never commence the work despite the lapse of several months after the contract was signed, the 1^st respondent passed the impugned order terminating the contract. Even after termination, the petitioner has not expressed his willingness to execute the work but he wanted the 1^st respondent to consider the revision of the contract and execution of a fresh contract on fresh terms and conditions to compensate for the loss and inconvenience caused to the petitioner and on account of the delay for which the respondents are no way responsible as

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seen from the various reminders. The prayer in the writ petition is to direct the https://www.mhc.tn.gov.in/judis 8/11

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respondents to reallot the work on fresh terms.

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Having regard to the conduct and attitude of the petitioner, this Court finds no merits in the writ petition.

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Accordingly, this writ petition stands dismissed as devoid of merits.

No costs.

17.11.2022

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S.S.SUNDAR. J.,

cda

1.P.Elangovan, Managing Partner, Sri Ganapathy Engineering Works, No.20/6, Indra Nagar Extension, Vasavi College Post, Erode – 638 316.

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2.The Superintending Engineer/Civil, Hydro Project / TANGEDCO, 955, EVN Road, TNEB Complex, Erode – 638 009.

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3.The Executive Engineer / MM & LA (I/c), O/o. The Superintending Engineer / Civil, Hydro Project / TANGEDCO, Erode.

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Sri Ganapathy Engineering Works v. The Superintending Engineer/Civil

Case brief

What is this about?

What did the court decide?

Sri Ganapathy Engineering Works v. The Superintending Engineer/Civil

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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