Kerala High Court
V.Govindankutty vs The Southern Railway on 26 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 26TH DAY OF FEBRUARY 2021/7TH PHALGUNA, 1942
WP(C).No.18640 OF 2019(D)
PETITIONERS:
V.GOVINDANKUTTY, S/O.RAMAN NAIR,
AGED 69 YEARS, GOVERNMENT CONTRACTOR,
VELLAMKANDATH HOUSE, ENKAKAD P.O.,
THRISSUR DISTRICT - 680 589.
BY ADV. SRI.BINOY VASUDEVAN
RESPONDENTS:
1 THE SOUTHERN RAILWAY,
REPRESENTED BY ITS GENERAL MANAGER,
SOUTHERN RAILWAY HEADQUARTERS,
CHENNAI - 600 003.
2 THE CHIEF ENGINEER, CONSTRUCTION,
SOUTHERN RAILWAY, ERNAKULAM - 682 016.
3 THE DEPUTY CHIEF ENGINEER, CONSTRUCTION,
SOUTHERN RAILWAY, ERNAKULAM - 682 016.
ADDL. 4 THE PRINCIPAL SECRETARY TO THE GOVERNMENT,
PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM- 695 001.
ADDL. 5 THE CHIEF ENGINEER, PWD/ROADS AND BRIDGES,
THIRUVANANTHAPURAM-695 033.
ADDITIONAL R4 AND R5 ARE IMPLEADED AS PER ORDER DATED
26.11.2019 IN IA NO.1/2019.
R1-R3 BY SRI.N.K.SUBRAMANIAN, SC, RAILWAYS
R4-R5 BY GOVERNMENT PLEADER SMT. DEEPA NARAYANAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
26.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C)No.18640/2019
2
JUDGMENT
Dated this the 26th day of February, 2021
The petitioner, a Government Contractor, has
approached this Court seeking to command respondents 1
to 3 to release the final bill payable to the petitioner as
approved in Ext.P4 along with the security deposit payable
to the petitioner pursuant to the subject matter contract as
expeditiously as possible.
2. The petitioner states that he executed an
agreement with the 3rd respondent-Deputy Chief Engineer,
Construction, Southern Railway, for construction of a
Railway Over Bridge at Wadakkancherry. It was a deposit
work entrusted by the Public Works Department,
Government of Kerala. According to the petitioner, the
delay in disbursal of requisite amount by the PWD resulted
in delay in completion of the work.
WP(C)No.18640/2019
3. The petitioner would contend that it is an
admitted fact that there was no default on the part of the
petitioner to complete the work. However, the agreement
with the petitioner was foreclosed by respondents 1 to 3 and
the remaining work was later awarded to another
Contractor. The amount due to the petitioner for the work
he has completed, has not been paid so far.
4. The learned Standing Counsel for respondents 1
to 3 would state that this was a deposit work undertaken on
behalf of the Public Works Department. There were
material deviations from the original proposal. For
executing the work, the amount under sanction has been
exceeded and hence a revised completion estimate was
sent to PWD. However, PWD did not reply to the proposal.
Therefore, the Railway is unable to process the bill of the
petitioner and to close the file.
5. The learned Standing Counsel for respondents 1
to 3 pointed out that in the original contract it is clearly
WP(C)No.18640/2019
mentioned that any deviation from the original estimate shall
be accepted by the Depositing Authority and hence the
responsibility to clear the completion estimate is also with
the Depositing Authority. But unfortunately, PWD has not
taken any steps even after giving completion estimate.
6. The learned Government Pleader on the other
hand submitted that the construction work was deposited for
an amount of `2,42,23,000/- as per sanctioned estimate.
The work was completed in the year 2012 and the ROB was
opened to public. Till 25.07.2019, no extra claim was made
by the Railway. On 25.07.2019, the Deputy Chief Engineer
II/Construction, Ernakulam intimated the additional 4th
respondent that the completion estimate was drawn for a
value of `3,31,84,476/- against the already approved
sanctioned estimate value of `2,42,22,729/- and an amount
of `91,86,819/- has been included towards anticipated
further outlay. This is evident from Ext.R4(a) of the 3 rd
respondent. In Ext.R4(a), the 3rd respondent stated that an
WP(C)No.18640/2019
amount of `2,42,23,000/- had been deposited by the PWD
for the work and based on completion report, a balance
amount of `89,61,475/- has to be deposited to Railway for
closing the account. The 3rd respondent has also stated that
an amount of `10,87,191/- is pending to be paid to the
petitioner.
7. I have heard the learned counsel for the
petitioner, learned Standing Counsel for respondents 1 to 3
and the learned Government Pleader appearing for
additional respondents 4 and 5.
8. The work of construction of ROB was a deposit
work entrusted by the PWD to respondents 1 to 3.
Therefore respondents 4 and 5 are bound to honour any
demand made by respondents 1 to 3 in accordance with the
contract entered into between them on completion of work.
Additional respondents 4 and 5 would submit that such
payment is not contemplated under the terms of the
agreement and additional respondents are not bound to pay
WP(C)No.18640/2019
the amount which was belatedly made.
9. Respondents 1 to 3 do not dispute the
completion of the work by the petitioner, for which bills have
been raised. The defence of respondents 1 to 3 is that this
being a deposit work, without receiving the amount from
respondents 4 and 5, payment cannot be made to the
petitioner.
10. This Court finds that the said statement made by
respondents 1 to 3 cannot stand the scrutiny of law. As long
as agreement between the petitioner and respondents 1 to
3 does not state that the amounts will be paid to the
petitioner only as and when additional respondents 4 and 5
provide funds for the deposit work, respondents 1 to 3
cannot deny amount legitimately due to the petitioner. The
dispute between respondents 1 to 3 on the one part and
additional respondents 4 and 5 on the other part, cannot be
a justifiable reason for respondents 1 to 3 for non-payment
of dues to the petitioner.
WP(C)No.18640/2019
In the circumstances, the writ petition is allowed and
respondents 1 to 3 are directed to make the payment of the
admitted outstanding dues to the petitioner within a period
of three months. It is made clear that this judgment shall
not in any manner be treated as deciding any issues
between respondents 1 to 3 and additional respondents 4
and 5, in respect of the agreement between them.
Sd/-
N. NAGARESH
JUDGE
ncd/26.02.2021
WP(C)No.18640/2019
APPENDIX
PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE AGREEMENT EXECUTED BY
THE PETITIONER WITH THE RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE REQUEST SUBMITTED BY
THE PETITIONER BEFORE THE 2ND RESPONDENT
DATED 25/01/2017.
EXHIBIT P3 TRUE COPY OF THE REQUEST SUBMITTED BY
THE PETITIONER BEFORE THE 2ND RESPONDENT
DATED 01/03/2018.
EXHIBIT P4 TRUE COPY OF THE FINAL BILL EXECUTED BY
THE 3RD RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE RIDER AGREEMENT DATED
27/12/2018 EXECUTED BY THE PETITIONER
WITH THE 3RD RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE REMINDER SUBMITTED BY
THE PETITIONER BEFORE THE 3RD RESPONDENT
ON 24/05/2019.
RESPONDENTS' EXHIBITS:
EXHIBIT R3(a) COPY OF LETTER DATED 26.7.2019 ISSUED
BY 3RD RESPONDENT TO THE PETITIONER.
EXHIBIT R3(b) COPY OF LETTER DATED 25.7.2019 ISSUED
BY 3RD RESPONDENT TO THE CHIEF
ENGINEER, PUBLIC WORKS DEPARTMENT.
EXHIBIT R4(a) TRUE COPY OF THE LETTER NO.
148/CN/MVPA/25 DATED 25.7.2019.
