J. Abdul Vahid vs The Managing Director
2021 Latest Caselaw 6822 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

    FRIDAY, THE 26TH DAY OF FEBRUARY 2021 / 7TH PHALGUNA, 1942

                       WP(C).No.1190 OF 2021(W)


PETITIONER:

               J. ABDUL VAHID,
               AGED 59 YEARS
               S/O. JAMALUDEEN KUNJU, E. J . CONSTRUCTIONS,
               KURUNDANTAYYATHU HOUSE, KADATHOOR P. O., THAZHAVA,
               KOLLAM.

               BY ADVS.
               SRI.R.SUNIL KUMAR
               SMT.A.SALINI LAL
               SHRI.ARUN KRISHNA

RESPONDENTS:

      1        THE MANAGING DIRECTOR
               KERALA STATE TRANSPORT CORPORATION, TRANSPORT BHAVAN,
               FORT, THIRUVANANTHAPURAM - 695023.

      2        THE CHIEF ENGINEER (P AND CW)
               KERALA STATE TRANSPORT CORPORATION, TRANSPORT BHAVAN,
               FORT, THIRUVANANTHAPURAM - 695023.

      3        THE EXECUTIVE ENGINEER
               KERALA STATE TRANSPORT CORPORATION, TRANSPORT BHAVAN,
               FORT, THIRUVANANTHAPURAM - 695023.

      4        THE ASSISTANT ENGINEER
               KERALA STATE TRANSPORT CORPORATION OFFICE, ERNAKULAM
               - 682011.

      5        DIVISIONAL ACCOUNTS OFFICER
               KERALA STATE TRANSPORT CORPORATION, TRANSPORT BHAVAN,
               FORT, THIRUVANANTHAPURAM - 695023.

               R1-5 BY ADV. SRI.P.C.CHACKO(PARATHANAM)

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.1190 OF 2021(W)

                                      2




                                    JUDGMENT

Dated this the 26th day of February 2021

The writ petition is filed seeking the

following reliefs:-

"i) To issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to pay an amount of Rs.22,030,771/- with interest at the rate of 12% forthwith.

ii) Pass such other orders as this Hon'ble court deems fit and proper in the facts and circumstances of the case."

2. On the basis of notice inviting tender,

the petitioner had submitted e-tender on

26.09.2014 and 24.11.2014. Based on Ext.P1

selection notice issued on 09.01.2015, the

petitioner executed Ext.P2 agreement on 25.06.2015

and carried out the construction of KSRTC bus

terminal cum shopping complex at Haripad. The

petitioner submits that the work was completed on

29.09.2018 and payment towards the final bill was

made on 18.05.2020. According to the petitioner WP(C).No.1190 OF 2021(W)

the defect liability period as per Ext.P2

agreement is only one year and therefore, the

petitioner is entitled to refund of the security

amount.

3. The writ petition is filed seeking a

direction to make the paymentof a sum of

Rs.2,20,30,771/- which according to the petitioner

is the balance amount.

4. The respondents have filed a counter

affidavit stating that, as per Ext.R1(a) letter,

the KSRTC has addressed the Deputy General

Manager, HLL Life Care Limited for assessment of

structural stability and quality of the

constructions under KSRTC. Serial No.1 in the said

letter relates to the work carried out by the

petitioner. It is stated that as per Ext.R1(b)

letter, the Government has agreed that Central

PSUs ie, M/s.HLL Life Care Limited and M/s.

Hindustan Pre Fab Limited shall be the project

management consultant for existing and future work

of KSRTC.

WP(C).No.1190 OF 2021(W)

5. The contention of the learned counsel for

the petitioner is that Ext.R1(b) letter can not

relate to the work of the petitioner as the said

work was already completed well before 19.10.2020.

6. Even though, the petitioner has, in

paragraph No.5 of the writ petition stated that

the defect liability period in respect of the work

under taken by the petitioner is over as it was

completed on 29.09.2018, the counter affidavit

filed by the respondents does not dispute the

same. They have only stated that the payment can

be made only after evaluation of structural

stability by the project management consultant.

As the petitioner's contention remains undisputed

with respect to the date of completion of the work

as well as with respect to the defect liability

period, the respondents can not delay further

payment due to the petitioner, awaiting the report

from the Project consultant, for which steps are

taken in the year 2020 and consent is given by

government on 06.11.2020 in Ext.R1(b) letter. As WP(C).No.1190 OF 2021(W)

rightly contended by the learned Counsel for the

petitioner, a work which was completed in 2018,

can not be said to be a work which was existing as

on 06.11.2020 when Ext R1(b) letter was issued or

as on 19.10.2020, when Ext.R1(a)letter was issued

or because the respondents included the work

carried out by the petitioner in Ext R1(a)

letter.

7. As the learned Counsel for the

respondents submitted that KSRTC is facing serious

financial crunch, there shall be a direction to

the respondents to see that the balance payment

due to the petitioner under various heads is made

within a period of six months, provided 50% of the

same is paid within three months.

The writ petition is disposed of accordingly.

Sd/-

P.V.ASHA JUDGE DM WP(C).No.1190 OF 2021(W)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DATED 9.1.2015.

EXHIBIT P2 COPY OF THE AGREEMENT DATED 25.06.2015 BETWEEN PETITIONER AND 2ND RESPONDENT.

EXHIBIT P3 COPY OF THE LETTER RECEIVED UNDER THE RIGHT TO INFORMATION ACT DATED 01.12.2020.

EXHIBIT P4 COPY OF THE FINAL BILL ISSUED BY THE RESPONDENTS TO THE PETITIONER WITH BILL NO.6/19.

EXHIBIT P5 COPY OF THE REVENUE RECOVERY NOTICE DATED 6.1.21 ISSUED BY THE KFC TO THE PETITIONER.

RESPONDENTS' EXHIBITS:

EXHIBIT R1(a) TRUE COPY OF THE ORDER DATED 19.10.2020 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT R1(b) TRUE COPY OF THE ORDER DATED 06.11.2020 ISSUED BY THE GOVERNMENT OF KERALA.

//TRUE COPY//

PA TO JUDGE