Heather Constructions vs Union Of India
2021 Latest Caselaw 13684 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                   THE HONOURABLE MR. JUSTICE T.R.RAVI
         FRIDAY, THE 2ND DAY OF JULY 2021 / 11TH ASHADHA, 1943
                         WP(C) NO. 10866 OF 2020


PETITIONER:

              M/S.HEATHER CONSTRUCTIONS
              REPRESENTED BY ITS MANAGING DIRECTOR,
              T.C 9/1226, MANGALAM LANE, SASTHAMANGALAM,
              THIRUVANANTHAPURAM 695 010

              BY ADVS.
              SRI.V.G.ARUN (K/795/2004)
              SMT.V.JAYA RAGI
              SRI.R.HARIKRISHNAN (KAMBISSERIL)
              SRI.NEERAJ NARAYAN



RESPONDENTS:

     1        UNION OF INDIA
              REPRESENTED BY PRINCIPAL SECRETARY,
              MINISTRY OF HEALTH AND FAMILY WELFARE,
              GOVERNMENT OF INDIA 100 001.

     2        STATE OF KERALA,
              REPRESENTED BY PRINCIPAL SECRETARY HEALTH,
              SECRETARIAT, THIRUVANANTHAPURAM 695 001

     3        THE SECRETARY,
              DEPARTMENT OF FINANCE, SECRETARIAT,
              THIRUVANANTHAPURAM 695 001

     4        STATE MISSION DIRECTOR (SMD), NHM,
              GENERAL HOSPITAL JUNCTION,
              THIRUVANANTHAPURAM, 695 001.

     5        THE CHIEF ENGINEER,
              NHM, STATE MISSION,
              GENERAL HOSPITAL JUNCTION,
 WP(C) NO. 10866 OF 2020
                               2



          THIRUVANANTHAPURAM 695 035

    6     HSCC(INDIA) LTD,
          DEPUTY GENERAL MANAGER, CORPORATE OFFICE,
          E-R(A), SECTOR-1, NOIDA(UP) 201301

          BY ADVS.
          SHRI.P.VIJAYAKUMAR, ASG OF INDIA
          SRI.M.AJAY, SC, NATIONAL RURAL HEALTH MISSION
          SMT.K.N.RAJANI
          SRI.RADHIKA RAJASEKHARAN P.
          SRI.K.P.SHIBU
          SMT.ANILA PETER
          SRI.SAJEN THAMPAN
          SRI.ANIL S.RAJ
          SRI.GOVT. PLEADER SMT.DEEPA NARAYANAN



THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 10866 OF 2020
                                       3




                               JUDGMENT

The writ petition has been filed by the petitioner

complaining that the amounts due to them towards their

final bill with regard to the construction of 50 Bed

MCH at Taluk Head Quarters Hospital, Irinjalakkuda,

Thrissur is not paid in its entirety. Admittedly, the

6th respondent has withheld a sum of ₹30 lakhs from the

bill for the reason that the 4th respondent who is

liable to pay 7% of the project cost towards management

consultancy charges has paid only 5% as charges. The

case of the petitioner is that the dispute between the

4th respondent and the 6th respondent cannot be a reason

to withhold the amounts which are due to the

petitioner.

2. Today, when the case was taken up, the learned

counsel appearing for the 6th respondent submitted that

out of the amounts which have been made over to them by

the 4th respondent, an amount of ₹16,08,374/- is WP(C) NO. 10866 OF 2020

available with them for payment. It is also pointed

out that the 4th respondent in their counter affidavit

have stated that they have released to the 6th

respondent the entire amounts due towards the final

payment after withholding an amount of ₹6,21,511/- for

rectifying the defects pointed out by the hospital

authorities and that on further inspection by the

Assistant Engineer of the Public Works Department, it

is reported that the rectification of defects may

require ₹15 lakhs.

3. In the above circumstances, the 6th respondent

is directed to pay a sum of ₹15 lakhs to the petitioner

out of ₹30 lakhs which has been withheld from the final

bill. The right of the petitioner to claim the balance

amounts due will not in any way be prejudiced by their

accepting the payment of ₹15 lakhs from the 6 th

respondent. The 6th respondent is at liberty to take up

the issue regarding the reduced 2% from their

management consultancy charges with the 4th respondent WP(C) NO. 10866 OF 2020

and this Court is not making any observation regarding

their right to receive the same. The amount of ₹15

lakhs shall be paid within a period of 3 weeks. All

other issues which have been raised in the writ

petition and in the counter affidavits of the parties

are left open.

This writ petition is disposed of accordingly.

Sd/-

T.R.RAVI JUDGE

Pn WP(C) NO. 10866 OF 2020

APPENDIX OF WP(C) 10866/2020

PETITIONERS' EXHIBITS

EXHIBIT P1 TRUE COPY OF NOTIFICATION OF AWARD DATED 21-01-2014 BEARING NO. HSCC/NRHM-KRL/MCH- IRINJALAKUDA/HC/2014 ISSUED BY THE 6TH RESPONDENT ACCEPTING THE FINAL OFFER FOR A TOTAL ESTIMATED CONTRACT PRICE OF RS.9,92,03,796/- ( RUPEES NINE CRORES, NINETY TWO LAKHS, THREE THOUSAND, SEVEN HUNDRED AND NINETY SIX ONLY)

EXHIBIT P2 TRUE COPY OF THE FORM OF AGREEMENT DATED 05-03-2014 BETWEEN STATE MISSION DIRECTOR, NRHM, GOVERNMENT OF KERALA FOR THE CONSTRUCTION OF 50 BEDDED MCH BLOCK AT THQH, IRINJALAKUDA, THRISSUR, KERALA UNDER NRHM AND M/S. HEATHER CONSTRUCTIONS, T.C 9/1226, MANGALAM LANE, SASTHAMANGALAM, THIRUVANANTHAPURAM 695 010

EXHIBIT P3 TRUE COPY OF THE COMPLETION CERTIFICATE DATED 31-01-2016 ISSUED AND SIGNED BY THE 4TH RESPONDENT, COUNTER SIGNED BY SUPT/MO- SUPERINTENDENT, GENERAL HOSPITAL, IRINJALAKUDA

EXHIBIT P4 TRUE COPY OF THE LETTER COMMUNICATION BETWEEN THE 6TH RESPONDENT AND 5TH RESPONDENT DATED 03--02-2018 WITH REF NO. HSCC/SAT-TVM/2016/54

EXHIBIT P5 TRUE COPY OF PAYMENT ADVICE OF BILL-FINAL BILL (10TH RA) CONFIRMING RS. 81,28,934/- (RUPEES EIGHTY ONE LAKHS TWENTY EIGHT THOUSAND NINE HUNDRED AND THIRTY FOUR ONLY) DATED 31-01-2016 (MEASURED UP TO 31.01.2016) WP(C) NO. 10866 OF 2020

EXHIBIT P6 TRUE COPY OF DETAIL OF WITHHOLD TOWARDS NON AVAILABILITY OF FUND ISSUED BY NRHM, KERALA (INRINJALAKUDA) TO M/S. HEATHER CONSTRUCTIONS- FINAL BILL (10TH RA) M.DT.31/01/16

RESPONDENTS' EXHIBITS

EXHIBIT R4(a) A TRUE COPY OF THE G.O(P) NO.408/2007/FIN DATED 07.09.2007 ISSUED BY SECOND RESPONDENT.

EXHIBIT R4(b) A TRUE COPY OF THE AGREEMENT DATED 2.3.2013 BETWEEN SIXTH RESPONDENT AND THE NRHM.

EXHIBIT R4(c) A TRUE COPY OF THE G.O(P) NO.311/14/2007/FIN DATED 30.07.2014 ISSUED BY SECOND RESPONDENT.

EXHIBIT R4(d) A TRUE COPY OF THE LETTER COMMUNICATION DATED 26/04/2019 FROM SUPERINTENDENT, GH IRINJALAKUDA TO FIFTH RESPONDENT.

EXHIBIT R4(e) A TRUE COPY OF THE LETTER COMMUNICATION ADDRESSED TO ADDITIONAL CHIEF SECRETARY (FINANCE) OF THE SECOND RESPONDENT BY FOURTH RESPONDENT DATED 20/11/2019.

EXHIBIT R4(f) A TRUE COPY OF THE LETTER COMMUNICATION ADDRESSED TO FOURTH RESPONDENT BY ADDITIONAL CHIEF SECRETARY (FINANCE) OF THE SECOND RESPONDENT DATED 18.03.2020.

EXHIBIT R4(g) A TRUE COPY OF THE MINUTES OF MEETING CONVENED BY THE HON. MINISTER FOR HEALTH & FAMILY WELFARE ON 14.1.2020.

WP(C) NO. 10866 OF 2020

EXHIBIT R6(A) TRUE COPY OF AGREEMENT DATED 5.3.2014 ENTERED INTO BETWEEN THE 4TH RESPONDENT REPRESENTED BY 6TH RESPONDENT

EXHIBIT R6(B) TRUE COPY OF GCC CLAUSE 25 VIZ 'SETTLEMENT OF DISPUTES AND ARBITRATION' BEING THE RELEVANT PAGES OF THE AGREEMENT DATED 5.3.2014 ENTERED INTO BETWEEN THE PETITIONER AND 4TH RESPONDENT REPRESENTED BY THE 6TH RESPONDENT

EXHIBIT R6(C) TRUE COPY OF THE CLAUSE 1(F), 1(V) AND 1(X) OF SPECIAL CONDITION OF THE CONTRACT BEING THE RELEVANT PAGES OF THE AGREEMENT DATED 5.3.2014 ENTERED INTO BETWEEN THE PETITIONER AND 4TH RESPONDENT REPRESENTED BY THE 6TH RESPONDENT

EXHIBIT R6(D) TRUE COPY OF THE LETTER ISSUED BY THE 6TH RESPONDENT TO THE 5TH RESPONDENT DATED 3.2.2018

EXHIBIT R6(E) TRUE COPY OF THE LETTER ISSUED BY THE 5TH RESPONDENT TO THE 6TH RESPONDENT DATED 17.7.2019

EXHIBIT R6(F) TRUE COPY OF LETTER SENT BY THE 6TH RESPONDENT TO THE 5TH RESPONDENT DATED 14.10.2019