K.Kannan vs The Kerala Water Authority
2021 Latest Caselaw 5718 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

                    THE HONOURABLE SMT. JUSTICE P.V.ASHA

    WEDNESDAY, THE 17TH DAY OF FEBRUARY 2021 / 28TH MAGHA,1942

                         WP(C).No.17468 OF 2020(G)


PETITIONER:

               K.KANNAN
               AGED 58 YEARS
               S/O.KARUNAN, AMRUTHAM, CHIRAKKAL,
               CHIRAKKAL P.O., KANNUR-670011.

               BY ADVS.
               SRI.P.C.SASIDHARAN
               SHRI.GOPIDAS E.N.

RESPONDENTS:

      1        THE KERALA WATER AUTHORITY
               REPRESENTED BY ITS MANAGING DIRECTOR,
               JALABHAVAN, VELLAYAMBALAM,
               THIRUVANANTHAPURAM-695033.

      2        THE SUPERINTENDING ENGINEER,
               PH CIRCLE, KERALA WATER AUTHORITY,
               KANNUR-670012.

      3        THE EXECUTIVE ENGINEER,
               PROJECT DIVISION, KERALA WATER AUTHORITY,
               KANNUR-670012.

      4        THE MANAGER, KERALA GRAMIN BANK,
               THANA, KANNUR-670012.

               BY   SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY
               BY   ADV. SRI.M.GOPIKRISHNAN NAMBIAR
               BY   ADV. SRI.K.JOHN MATHAI
               BY   ADV. SRI.JOSON MANAVALAN
               BY   ADV. SRI.KURYAN THOMAS
               BY   ADV. SRI.PAULOSE C. ABRAHAM
               BY   ADV. SRI.RAJA KANNAN

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
17.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.17468 OF 2020(G)

                                      2




                              J U D G M E N T

Petitioner, who is an A class Contractor, was

awarded the work of construction of 14 MLD Output

Capacity of Water Treatment Plant (Rapid and Filter)

and Allied Structures at Madamthattu (Part-I) and

construction of 45 lakhs litre capacity GL tank at

Nelliyattupara (Part-II)-Package II. It is stated that

after executing Ext.P2 agreement on 03.06.2013, the

work was completed on 08.05.2014 and the final bill

was paid on 31.12.2015. The defect liability period as

per the agreement is 18 months from the date of

commissioning. It is stated that petitioner was asked

to furnish bank guarantee and accordingly Ext.P4 bank

guarantee was furnished on 13.07.2018 and it was

extended as can be seen from Ext.P5 and after

31.01.2020 the bank guarantee is not extended. It is

stated that since the water authority is not issuing

their consent letter the bank is not releasing the WP(C).No.17468 OF 2020(G)

bank guarantee.

2. Respondents 1 to 3 have filed a counter

affidavit stating that the defect liability period

would be over only on completion of 18 months from the

date of commissioning and that the work is not

commissioned. It is stated that the construction

carried out by the petitioner is of 45 MLD Capacity GL

Tank and the Bank guarantee can be released only after

the defect liability period is over as trial run can

be done only after the commissioning. According to

respondents though the work was completed in 2014,

trial run could not be done so far since water

treatment plant could not be commissioned. It is

stated that the contractor has to run the plant with

his operators and to take care of all chemicals, parts

specially required during the maintenance period and

the said maintenance period would start only from the

date of commissioning. It is also stated that the only

security with the respondents to cover liability from WP(C).No.17468 OF 2020(G)

the petitioner for defects if any, is the bank

guarantee and therefore consent cannot be granted for

releasing the same.

3. According to the learned counsel for the

petitioner, the delay in commissioning is not on

account of any default on the part of petitioner and

when the normal period of defect liability is only 18

months, the delay in commissioning even after more

than 6 years of the completion of the construction and

keeping the bank guarantee furnished by the petitioner

indefinitely with the respondent is arbitrary.

4. Though the learned Standing Counsel for the

water authority argued that the trial run has to be

conducted by the contractor as per the provisions in

the agreement and the bank guarantee has to be

retained till then, the learned counsel for the

petitioner points out that this Court has in a batch

of writ petitions, by Ext.P6 common judgment dated

11.04.2019 in W.P.(C).No.747/2019 & connected cases, WP(C).No.17468 OF 2020(G)

directed the respondents to release the retention

amount in such cases on securing a simple bond from

the contractors for a period of one year. Though the

learned Standing Counsel for the water authority

submitted that in the said cases bank guarantee was

not furnished, it also relates to the cases where

trial run was not conducted.

In the circumstances there shall be a direction

to the 3rd respondent to take appropriate action for

releasing the bank guarantee to petitioner after

securing sufficient assurance from the petitioner

getting a bond executed by him. This shall be done

within a period of 'six weeks' from the date of

receipt of a copy of the judgment.

The writ petition is disposed of accordingly.

Sd/-

P.V.ASHA, JUDGE AS WP(C).No.17468 OF 2020(G)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE WORK ORDER DATED 27.5.2013 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE AGREEMENT DATED 3.6.2013 EXECUTED BETWEEN THE PETITIONER AND THE 2ND RESPONDENT.

EXHIBIT P3 THE TRUE COPY OF THE VOUCHER DATED 31.12.2015 EVIDENCING THE FINAL PAYMENT.

EXHIBIT P4 TRUE COPY OF BANK GUARANTEE DATED 13.7.2018 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE LETTER DATED 12.12.2018 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN W.P.C.NO.7487 OF 2019 AND CONNECTED CASES DATED 11/4/2019