Kerala High Court
Malabar Plus Constructions Pvt. ... vs State Of Kerala on 5 February, 2021
WP(C).No.2322 OF 2021(M)
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942
WP(C).No.2322 OF 2021(M)
PETITIONER/S:
MALABAR PLUS CONSTRUCTIONS PVT. LTD.,
BUILDING NO.MM21/28A,KUTTIPARA,
PAYYANAD,MANJERI,MALAPPURAM DISTRICT-
676122,REPRESENTED BY ITS DIRECTOR,HANEEZ,S/O
KUNHIMUHAMMED,RESIDING AT VADAKKANGARA PALLIKKARA
HOUSE, KUTTIPARA,PAYYANAD,MANJERI,ELANKUR,
MALAPPURAM DISTRICT-676122.
BY ADVS.
SRI.JOMY GEORGE
SRI.R.PADMARAJ
SRI.M.J.BENNY
SRI.DEEPAK MOHAN
SMT. CHITRA N. DAS
SHRI.RISHAB S.
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE SECRETARY,
PUBLIC WORKS DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
3 THE SUPERINTENDING ENGINEER,
PWD ROADS NORTH CIRCLE,
PWD COMPLEX,MANANCHIRA,
KOZHIKODE-673001.
4 THE EXECUTIVE ENGINEER,
PWD ROADS DIVISION,MANJERI,
MALAPPURAM DISTRICT-676121.
WP(C).No.2322 OF 2021(M)
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OTHER PRESENT:
SR.K.V.MANOJ KUMAR, SRGP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.2322 OF 2021(M)
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JUDGMENT
Dated this the 5th day of February 2021
Pursuant to the notice inviting tender petitioner has been
awarded the work of "budget works 2017-18-for special sanction
providing BM& BC works between Km.3/000 and 8/000 of Tirur-
Malappuram road, including land acquisition and widening works
at town areas in Tanur LAC in Malappuram District" and
"providing BM&BC to Pattambi-Veterinary Hospital Muthuthala road
Km.0/000 to 8/000 in Palakkad District" covered by Exts.P1 and
P2 selection notice. Petitioner was asked to furnish performance
guarantee of Rs.23,81,900/- in the first work and Rs.28,28,700/-
in the 2nd work and 50% of both of these amount are to be
submitted in the form of treasury deposit. It is stated that
based on Exts.P6 and P7 total amount payable has been reduced to
Rs.31,26,400/-. The petitioner submits that a sum of
Rs.45,05,804/- is due to him for the work "SLTF 2018-19 (Flood
Damaged works) BM&BC renewal and drain works to Tirur-Malappuram
road between km 0/000 to0/350 and km 1/900 to 2/040 in Tirur LAC
Malappuram District covered by Exts.P3 and P3(a) certificates.
As per Ext.P4 -G.O.(Rt) No. 3834/2020/Fin dated 23.06.2020
Government has ordered that the amount under audited and passed
bills of contractors would be accepted as Performance
Guarantee/Additional Performance Guarantee for new contracts. In
WP(C).No.2322 OF 2021(M)
the light of Ext.P4 Government order dated 23.06.2020 petitioner
had submitted application to adjust the performance guarantee
from the amount due to him in Exts.P3 and P3(a).
2. The 3rd respondent thereupon informed the petitioner as
per Ext.P5 letter that bill amount would be accepted towards
performance guarantee on the basis of indemnity certificate
issued online in EMLI application, as provided in Ext.P4 order.
This writ petition is filed at this stage, as the EMLI software
has not so far been modified in tune with Ext.P4 order.
3. Petitioner points out that in the case of several
contractors pending bills are already adjusted manually on the
basis of directions from this Court since the EMLI software has
not been modified so far in tune with Ext.P4 Government Order.
4. Learned Government Pleader also submitted that the EMLI
software is not modified so far.
5. Ext.P4 Government order has been issued as early as on
23.06.2020. As per sub clause (v) of Clause 3 of Ext.P4 order,
work bill amount will be accepted as Guarantee for new works
being awarded, only on the basis of indemnity certificate issued
online in EMLI application. Clause 4 provides for effecting
necessary modifications in EMLI to facilitate the new system.
The facility for adjustment of the bills have been ordered by
Government for the benefit of the contractors on their request.
When such a facility is ordered, Government has also to see that
suitable modifications are effected in the software so as to
WP(C).No.2322 OF 2021(M)
enable the contractors to enjoy the benefit of the order. The
petitioner cannot therefore be denied the benefit of the order.
This Court has in several cases directed the respondents to
carry out the adjustment manually.
Therefore, there shall be a direction to the 3 rd respondent
to re-consider the request of the petitioner and to adjust the
admissible amount under the pending bill covered by Exts.P3 and
P3(a) towards performance guarantee in accordance with Ext.P4
Government Order manually, i.e., without insisting for indemnity
certificate through EMLI. This shall be done within a period of
'three weeks' from the date of receipt of a copy of the
judgment. Petitioner shall also be granted time for execution of
agreement by a further period of 'two weeks'.
Sd/-
P.V.ASHA
rkc JUDGE
WP(C).No.2322 OF 2021(M)
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE SELECTION NOTICE NO.DC
07/2017/10927 DATED 30.12.2020
EXHIBIT P2 TRUE COPY OF THE SELECTION NOTICE
DCO8/PRICE/2018/868 DATED 30.12.2020
EXHIBIT P3 TRUE COPY OF THE CERTIFICATE NO.A2-
D7/1857/2020 DATED 08.01.2021 ISSUED BY THE
4TH RESPONDENT
EXHIBIT P3(A) TRUE COPY OF THE CHECKLIST-GENERAL BILL
DT.23.12.2020
EXHIBIT P4 TRUE COPY OF THE GOVERNMENT ORDER G.O.
(RT)NO.3834/2020/FIN DATED 23.06.2020
EXHIBIT P5 TRUE COPY OF THE REJECTION ORDER DATED
18.01.2021 OF THE 3RD RESPONDENT
EXHIBIT P6 THE TRUE COPY OF THE LETTER DATED
21.01.2021 ISSUED BY THE 3RD RESPONDENT
WITH REGARD TO THE REDUCTION OF PERFORMANCE
GUARANTEE AS 3% FOR EXHIBIT P-1 WORK
EXHIBIT P7 THE TRUE COPY OF THE LETTER DATED
20.01.2021 ISSUED BY THE 3RD RESPONDENT
WITH REGARD TO THE REDUCTION OF PERFORMANCE
GUARANTEE AS 3% FOR EXHIBIT P-2 WORK
EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 09.11.2020
IN W.P(C)NO.22048/2020 OF THIS HONOURABLE
COURT.
