T.Shaji vs State Of Kerala
2021 Latest Caselaw 10252 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

     FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943

                       WP(C).No.862 OF 2021(G)


PETITIONER:

               T.SHAJI
               AGED 49 YEARS
               S/O NARAYANAN T.K., THOTTUNGAL HOUSE, KUMBIDI P.O.,
               PALAKKAD DISTRICT

               BY ADVS.
               SRI.JACOB SEBASTIAN
               SRI.K.V.WINSTON
               SMT.ANU JACOB

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY SECRETARY TO GOVERNMENT, IRRIGATION
               DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM,PIN-695
               001

      2        THE SUPERINTENDING ENGINEER (ROADS DIVISION),
               OFFICE OF THE SUPERINTENDING ENGINEER, PUBLIC WORKS
               DEPARTMENT, NORTH ZONE, KOZHIKODE,PIN-673 001

      3        THE EXECUTIVE ENGINEER,
               PWD ROADS DIVISION, PALAKKAD,PIN-678 001

      4        THE ADDITIONAL CHIEF SECRETARY,
               FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM,PIN-695 001

      5        THE CHIEF SECRETARY,
               GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
               PIN-695 001



               SMT.VINITHA.B, GP

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.862 OF 2021(G)

                                2




                            JUDGMENT

Dated this the 26th day of March 2021

The petitioner is an A class Contractor,

who wants substitution of bills which were

pledged in respect of 5 items of work towards

performance guarantee by the bill covered by

Ext.P1 certificate. Even though the petitioner

had submitted Ext.P2 application for

substituting the same, as per Exts.P4 to P8

letters the 3rd respondent informed that it can

be made only through indemnity certificate

through EMLI. The EMLI software is not so far

modified. Though petitioner submitted Ext.P10

representation to 2nd respondent it is not so

far considered. The petitioner relies on

Ext.P11 judgment in W.P.(C) No.17718 of 2020

and submits that in the light of the Government

Order Ext.P3 dated 23.06.2020, the performance

guarantee can be substituted. WP(C).No.862 OF 2021(G)

2. I have already considered a similar

issue in the common judgment dated 05.03.2021

in W.P.(C)No.23018 of 2021 and connected cases

and has held that in the light of the G.O.(Rt)

No.5989/2020 dated 16.10.2020 in modification

of Ext.P3 order dated 23.06.2020 the amount

under audited and passed bills can be accepted

as performance guarantee/additional performance

guarantee not only to new works but also to

ongoing works. It was held that performance

guarantee, which was already furnished in

whatever form, can be substituted by adjusting

the amount under an audited and passed bill. In

the present case the petitioner's application

for substitution was rejected as per Exts.P4 to

P8 letters on the ground that the pledging

procedure through EMLI is not possible since

the software is not updated. The said issue was

also considered in that judgment and directions

were issued to grant the benefit manually.

3. Though the Government ordered WP(C).No.862 OF 2021(G)

modification of the EMLI software to enable the

adjustment ordered on 23.06.2020 as per Ext.P3

order, so far no such modification is made.

Hence, the adjustment of bill amount towards

performance guarantee permitted under the order

dated 23.06.2020 is being made manually, on

directions from this Court in a series of

cases. The position continues to be the same

even now. Therefore, in order to extend the

benefit of Ext.P3 order and its modification by

order dated 16.10.2020, to the petitioner the

competent authorities would have to do the

adjustment/substitution manually till the

software is updated.

4. The respondents 2 and 3 shall

therefore, re-consider the request made by the

petitioner in Ext.P2 application and in case

the bill covered by Ext.P1 would be admissible

as against the performance guarantee furnished

by the petitioner towards the work mentioned in

Ext.P2 application, by way of the bills already WP(C).No.862 OF 2021(G)

pledged, appropriate action shall be taken in

accordance with law for substituting the

pending bill covered by Ext.P1, manually,

without any further delay and at any rate

within a period of one month from the date of

receipt of a copy of the judgment.

The writ petition is accordingly disposed

of.

Sd/-

P.V.ASHA JUDGE DM WP(C).No.862 OF 2021(G)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE CERTIFICATE DATED 7 JANUARY 2021 ISSUED BY THE THIRD RESPONDENT

EXHIBIT P2 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR SUBSTITUTION OF SECURITY DEPOSIT DATED DECEMBER 28,2020

EXHIBIT P3 A TRUE COPY OF G.O(RT) NO.3834/2020 DATED 23.06.2020

EXHIBIT P4 A TRUE COPY OF THE LETTER DATED 7 JANUARY 2021 ISSUED BY THE THIRD RESPONDENT IN RELATION TO WORK NUMBER ONE

EXHIBIT P5 A TRUE COPY OF THE LETTER DATED 7 JANUARY 2021 ISSUED BY THE THIRD RESPONDENT IN RELATION TO WORK NUMBER TWO

EXHIBIT P6 A TRUE COPY OF THE LETTER DATED 7 JANUARY 2021 ISSUED BY THE THIRD RESPONDENT IN RELATION TO WORK NUMBER THREE

EXHIBIT P7 A TRUE COPY OF THE LETTER DATED 7 JANUARY 2021 ISSUED BY THE THIRD RESPONDENT IN RELATION TO WORK NUMBER FOUR

EXHIBIT P8 A TRUE COPY OF THE LETTER DATED 7 JANUARY 2021 ISSUED BY THE THIRD RESPONDENT IN RELATION TO WORK NUMBER FIVE

EXHIBIT P9 A TRUE COPY OF THE LETTER DATED 28.07.2020 ISSUED BY THE SECOND RESPONDENT

EXHIBIT P10 A TRUE COPY OF THE REPRESENTATION DATED JANUARY 9,2021 SUBMITTED BY THE PETITIONER BEFORE THE SECOND WP(C).No.862 OF 2021(G)

RESPONDENT

EXHIBIT P11 A TRUE COPY OF THE JUDGMENT DATED AUGUST 25,2020 IN WPC NO.17718/2020 AND CONNECTED CASES

RESPONDENTS EXHIBITS: NIL

//TRUE COPY//

PA TO JUDGE