Kerala High Court
T.K.Kesavan vs Kerala Police Housing ... on 5 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 05TH DAY OF FEBRUARY 2021/16TH MAGHA,1942
WP(C).No.21595 OF 2013(Y)
PETITIONER:
T.K.KESAVAN,
THALIYARA HOUSE, P.O.NIRAMARUDUR,
TIRUR, MALAPPURAM DISTRICT-676 109.
BY ADV. SRI.O.D.SIVADAS
RESPONDENTS:
1 KERALA POLICE HOUSING CONSTRUCTION
CORPORATION LIMITED,
CHANDRASEKHARAN NAIR STADIUM,
VIKAS BHAVAN.P.O.,
THIRUVANANTHAPURAM-695 033,
REPRESENTED BY ITS MANAGING DIRECTOR.
2 THE MANAGING DIRECTOR,
KERALA POLICE HOUSING CONSTRUCTION
CORPORATION LIMITED,
CHANDRASEKHARAN NAIR STADIUM,
VIKAS BHAVAN.P.O.,
THIRUVANANTHAPURAM-695 033.
3 THE SENIOR PROJECT ENGINEER,
KERALA POLICE HOUSING AND CONSTRUCTION
CORPORATION LIMITED,
CHANDRASEKHARAN NAIR STADIUM,
VIKAS BHAVAN.P.O.,
THIRUVANANTHAPURAM-695 033.
R1-3 BY SRI.GOVINDAN.C.K., SC, KPHCC
BY ADV. SMT.M.V.LIGI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 05.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) No.21595/2013
:2 :
JUDGMENT
~~~~~~~~~
Dated this the 5th day of February, 2021
The petitioner, who is a Building Contractor, has
filed this writ petition seeking the following reliefs:-
"i) call for the records leading tot he
proceeding and quash Ext.P9 and P12 by issuing a
writ of certiorari.
ii) issue a writ of mandamus or any other
appropriate writ, order or direction tot he respondents
to sanction and disburse balance amount of
₹3,06,920/- with interest at 18% per annum for the
delay in payment without effecting any recovery."
2. The petitioner states that as per Ext.P1 letter, he
was awarded the work of construction of Truss Roofing for the
Administrative Block of KAP-I Battalion, Ramavarmapuram,
Thrissur. Work order was received on 28.02.2011 and
Agreement was executed on 06.04.2011. The stipulated date
of completion of work was 24.04.2011. The 3 rd respondent
WP(C) No.21595/2013
orally informed the petitioner that instead of the proposed
ordinary G.I. roofing sheets, Lloyd sheets should be used for
the truss. By Exts.P2 to P4 letters, the petitioner requested to
confirm the roofing material. The decision on change of
roofing material was approved by the 2 nd respondent only on
12.04.2012.
3. By the time, the stipulated date for completion of
work had expired. However, the petitioner completed the
work by 25.08.2012. To the surprise of the petitioner, the
respondents issued Ext.P7 show-cause notice dated
25.01.2013 on the petitioner, proposing to impose penalty for
53 days delay in completion of work. The petitioner submitted
Ext.P8 reply on 30.01.2013. The respondents, without
considering the explanation given, imposed a fine of
₹25,903/- as per Ext.P9 order dated 19.03.2013. In appeal,
the 2nd respondent reduced the fine as ₹15,000/-.
4. The petitioner would submit that after the
completion of work, the petitioner submitted a final bill for
₹5,39,284/-, but only an amount of ₹2,32,364/- has been paid
WP(C) No.21595/2013
to the petitioner. An amount of ₹3,06,920/- was withheld due
to insufficiency of funds. The petitioner would submit that the
non-payment of the full amount under final bill is grossly
arbitrary. The imposing of ₹15,000/- as fine for the delay in
completion of work is also illegal, since the delay was not
caused due to any fault of the petitioner.
5. On 30.08.2013, when this writ petition was
admitted, this Court passed an interim order directing that the
admitted amount shall be released to the petitioner forthwith.
The petitioner states that pursuant to the interim order,
₹3,06,920/- has been paid to the petitioner. Therefore, the
remaining question to be decided in this writ petition is as
regards the sustainability of imposition of fine.
6. The learned counsel for the petitioner would submit
that the delay in completion of work is substantially due to the
fact that the respondents proposed to change the material of
roofing. Though the petitioner submitted Exts.P2 to P4 letters
to the respondents, the final approval for change of material
was granted only on 12.04.2012. Due to this delay, there was
WP(C) No.21595/2013
an escalation in the cost of work, labour charges and
materials. There was delay in issuing sanction to substitute
the electrical work items also.
7. I have heard the learned counsel for the petitioner
and the learned Standing Counsel appearing for the
respondents.
8. As regards the competency of the respondents to
impose fine, the learned Standing Counsel would submit that
there is provision in the Agreement enabling the respondents
to impose fine by way of compensation for the delay in
completion of work resulting in breach of contract. A perusal
of the pleadings in the writ petition would show that though
the approval for change of materials was given on
12.04.2012, the petitioner did not complete the work within a
reasonable time thereafter. The respondents have condoned
substantial part of the delay, which can be attributable to the
change of materials and time taken to get approval for it.
9. Even excluding the period of getting approval for
change of materials, still there was substantial delay. The
WP(C) No.21595/2013
respondents have computed fine limiting the delay to a period
of 53 days only. The initial imposition of ₹25,903/- as fine was
reduced to ₹15,000/-. The fine has been calculated as per
the terms of the tender documents of the Kerala Police
Housing and Construction Corporation Limited.
In the circumstances, this Court does not find any
reason to interfere with the order of fine or quantum thereof.
No further relief can be granted in the writ petition. The writ
petition is therefore dismissed.
Sd/-
N. NAGARESH, JUDGE
aks/05.02.2021
WP(C) No.21595/2013
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE LETTER DATED
30.12.2010 OF THE RESPONDENTS.
EXHIBIT P2 TRUE COPY OF THE LETTER DATED
9.5.2011.
EXHIBIT P3 TRUE COPY OF THE LETTER DATED 4.8.2011
ADDRESSED TO THE 2ND RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE LETTER DATED
18.10.2011 ADDRESSED TO THE CHAIRMAN-
CUM-MANAGING DIRECTOR.
EXHIBIT P5 TRUE COPY OF THE APPROVAL DATED
12.4.2012.
EXHIBIT P6 TRUE COPY OF THE LETTER DATED
18.6.2012.
EXHIBIT P7 TRUE COPY OF THE SHOW CAUSE NOTICE
ISSUED BY THE RESPONDENTS.
EXHIBIT P8 TRUE COPY OF THE REPLY DATED 30.1.2013
SUBMITTED BY THE PETITIONER.
EXHIBIT P9 TRUE COPY OF THE PROCEEDING DATED
19.03.2013 ISSUED TO THE PETITIONER.
EXHIBIT P10 TRUE COPY OF THE PETITION DATED
29.03.2013 SUBMITTED TO THE 2ND
RESPONDENT.
EXHIBIT P11 TRUE COPY OF THE LETTER DATED
04.04.2013.
EXHIBIT P12 TRUE COPY OF THE PROCEEDING DATED
15.05.2013 ISSUED BY THE 2ND
RESPONDENT.
WP(C) No.21595/2013
RESPONDENTS EXHIBITS:
EXHIBIT R1(A) TRUE COPY OF AGREEMENT NO.08/2011-2012
DATED 16.04.2011
EXHIBIT R1(B) TRUE COPY OF LETTER
NO.TPS/3410/KPHCC/2010 DATED
17.04.2012 RESPONDENTS TO THE
PETITIONER
EXHIBIT R1(C) TRUE COPY OF WORK ORDER
NO.TPS/3410/KPHCC/2010 DATED
30.12.2010 ISSUED BY RESPONDENT TO THE
PETITIONER
EXHIBIT R1(D) TRUE COPY OF SHOW CAUSE NOTICE FOR
REMITTING THE PENALITY DATED
25.01.2013 ISSUED TO THE PETITIONER
EXHIBIT R1(E) TRUE COPY OF ORDER
NO.TPS/3410/KPHCC/2010 DATED
15.05.2013 ISSUED BY 3RD RESPONDENT TO
THE PETITIONER
SR
