Kerala High Court
University Of Calicut vs University Of Calicut on 10 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942
WA.No.164 OF 2021
AGAINST THE ORDER DATED 05.01.2021 IN WP(C) 19503/2020(K) OF HIGH COURT
OF KERALA
APPELLANTS/RESPONDENTS:
1 UNIVERSITY OF CALICUT,
CALICUT UNIVERSITY (P.O.), MALAPPURAM 673 635,
REPRESEND BY ITS REGISTRAR.
2 THE DIRECTOR,
DEPARTMENT OF PHYSICAL EDUCATION, UNIVERSITY OF CALICUT,
CALICUT UNIVERSITY (P.O.), MALAPPURAM 673 835.
BY ADV. SRI.P.C.SASIDHARAN
RESPONDENT/PETITIONER:
M/S ETERNITY POOLS AND GARDENS PVT. LTD,
TC 2/573-4, RNRA 138, RAJIV GANDHI NAGAR, MEDICAL COLLEGE,
THIRUVANANTHAPURAM 695 011, REPRESENTED BY ITS MANGING
DIRECTOR, SAJITH. K. UNNI.
SRI GRASHIOUS KURIAKOSE (SR)
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.02.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. No. 164/2021 :2:
Dated this the 10th day of February, 2021.
JUDGMENT
SHAJI P. CHALY, J.
The captioned writ appeal is preferred by the respondents in W.P.
(C) No.19503 of 2020 challenging the interim order passed by the
learned single Judge dated 10.11.2020 as modified by the order dated
05.01.2021.
2. Various grounds are raised in regard to the interim orders
passed by the learned single Judge. However, when the matter came up
before us on 21.01.2021, we passed the following order.
"Instant writ appeal is filed challenging the interim orders dated
10.11.2020, 17.12.2020 and 5.1.2021 in W.P.(C)No.19503 of 2020. Appellants
are the respondents in the writ petition and they sought for an interim direction to
stay the operation and implementation of the impugned orders dated 10.11.2020
and 5.1.2021 in W.P.(C)No.19503 of 2020. Orders impugned are as follows:
"Order dated 10.11.2020:
The learned Standing Counsel submits that a counter
affidavit filed. But the learned counsel for the petitioner has not
received it. It is not on record also. It appears that there is a
dispute regarding the work done. However, there shall be a
direction to the respondents to make payment of the admitted
amount within a period of two weeks.
Post on 01-12-2020.
Order dated 05.01.2020:
The learned Senior Counsel appearing for the petitioner
submits that the interim order is not complied with so far.
The learned Standing Counsel seeks two weeks time. Post
on 22-1-2021.
In case the respondents are not complying with the interim
order or the interim order is not varied in the meantime, the 2 nd
respondent shall appear in person before this court on 22-1-2021."
2. We heard the submissions of the learned counsel appearing for both
parties.
3.The University issued a tender notification inviting e-tender in two cover
technical bid for the purchase and installation of various equipments/accessories
to the newly constructed swimming pool at the University. Tender notification is
for the purchase of the equipments and also for installation.
4. Being the successful bidder, the writ petitioner was issued with the
supply order with a direction to execute an agreement in the format prescribed.
5. Contention of the appellants is that the writ petitioner though supplied
18 equipments/accessories, certain items received are not in good condition as
per the specification mandated in the tender notification. The petitioner has not
installed the equipments or accessories supplied in terms of the work order.
6. Respondent/writ petitioner has contended that even after repeated
requests to make the payment of admitted invoice amount, the
appellants/respondents have not endeavoured to clear the bill.
7. It is evident from the materials available on record that in paragraph 6
of the counter affidavit filed by the University/appellants in the writ petition, it is
averred that "out of the 18 equipments/accessories, four items received are not in
good condition to the satisfaction or in the specification mandated as per the e-
tender.
8. Further, for effecting payment, equipments/accessories are to be
received in good condition and proper stock entries also to be made. Only after
delivering good quality equipment/accessories as indicated in the purchase order,
stock entries will be carried out. The petitioner was requested to replace the poor
quality products and complete installation of all the equipments supplied. But the
installation of all the items supplied is not yet completed."
9. Attention of this court is drawn to clauses 12 and 13 of the notice
inviting tender dated 25.2.2019 and the same reads as under:
"12.(a) All payments to the contractors will be made by the
Purchasing Officer in due course;_
(i) by cheques or drafts on State Bank of India (at any of their
Principal Branches in India).
(ii) in the case of supplies from abroad by drafts as may be
arranged between the contracting parties.
(b) All incidental expenses incurred by the University for making
payments outside the district in which the claim arises shall be
borne by the contractor.
12. The tenderers shall quote also the percentage of rebate
(discount) offered by them in case the payment is made promptly
within fifteen days/within one month of taking delivery of stores.
13. Ordinarily payments will be made only after the supplies are
actually verified and taken to stock but in exceptional cases,
payments against satisfactory shipping documents including
certificates of insurance will be made up to 90 percent of the value
of the materials at the discretion of University. Bank charges
incurred in connection with payment against documents through
bank will be to the account of the contractor. The firms will
produce stamped pre-receipted invoices in all cases where
payments (advance/final) for release of raiway receipts/shipping
documents are made through banks. In exceptional cases where
the stamped receipts of the firms are not received for the
payments (in advance) the unstamped receipt of the Bank (ie.,
counterfoils of pay-in-slips issued by the Bank) alone may be
accepted as a valid proof for the payment made."
10. Taking note of the rival submissions, we are inclined to grant interim
stay of the order dated 5.1.2020 in W.P.(C)No.19503/2020 insofar as, personal
appearnce is concerned. Appellant is directed to furnish the details of the four
equipements/accessories, which according to them are not in good condition, to
their satisfaction or as per the specification mandated, as per the e-tender.
Post on 5.2.2021."
3. In compliance with the directions issued, an affidavit is filed by
the appellants, the relevant portion of which reads thus:
"4. The Technical Committee for the inspection of the
Swimming Pool equipments constituted by the University conducted
the inspection with notice to the respondent. The true copy of the
minutes of the meeting of the Technical Committee dated 05.02.2021
is produced herewith and marked as Annexure A1. Annexure speaks of
itself.
5. It is submitted that for effecting payment, the respondent is to
execute an agreement in a stamped paper guarantying the performance
of the equipments supplied for the period in terms of the tender
notification and also undertaking to repair/replace the same during the
defect liability period.
6. Further the respondent had to submit the bills duly certified.
The installation is also the integral part of the work, which is also to be
carried in terms of the contract so also to provide Bank Guarantee of
indemnity."
4. After having heard the learned counsel on both sides and perusing
the materials on record, we are of the view that a threadbare discussion
of the issue is not at all required, since the learned Senior Counsel
appearing for the writ petitioner/first respondent submitted that the first
respondent is prepared to comply with the requirements put forth by
the appellant University in paragraphs 5 and 6 of the affidavit extracted
above.
5. In that view of the matter, we do not think, anything survives to
be considered, insofar as the appeal is concerned. Accordingly, the writ
appeal is disposed of recording the aforesaid statement and directing the
University to take steps to release the amounts in regard to the
materials supplied by the writ petitioner/first respondent which are not
defective and immediately on the writ petitioner/1st respondent
complying with the requirements contained under paragraphs 5 and 6 of
the affidavit extracted above.
S. MANIKUMAR,
CHIEF JUSTICE.
SHAJI P. CHALY,
JUDGE.
Rv
APPENDIX
APPELLANTS' EXHIBITS:
ANNEXURE A1: TRUE COPY OF THE MINUTES DATED 05.02.2021 OF THE MEETING OF
THE TECHNICAL COMMITTEE FOR THE INSPECTION OF THE SWIMMING POOL
EQUIPMENTS
RESPONDENTS' EXHIBITS: NIL
/True Copy/
PS to Judge.
rv
