Kerala High Court
M/S Malabar Plus Constructions ... vs State Of Kerala on 1 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942
WP(C).No.4073 OF 2021(H)
PETITIONER:
M/S MALABAR PLUS CONSTRUCTIONS PVT. LTD.
BUILDING NO.MM 21/28A, KUTTIPARA, PAYYANAD, MANJERI,
MALAPPURAM DISTRICT-676 122, REPRESENTED BY ITS
DIRECTOR, HANEEZ, S/O.KUNHIMUHAMMED, RESIDING AT
VADAKKANGARA PALLIKKARA HOUSE, KUTTIPARA, PAYYANAD,
MANJERI, ELANKUR, MALAPPURAM DISTRICT-676 122.
BY ADVS.
SRI.JOMY GEORGE
SRI.R.PADMARAJ
SRI.M.J.BENNY
SRI.DEEPAK MOHAN
SMT. CHITRA N. DAS
SHRI.RISHAB S.
SRI.R.AJITH KUMAR [V.K.EDOM]
SHRI.GEORGE J MOOLAMKUNNAM
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE SECRETARY, PUBLIC WORKS DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
3 THE SUPERINTENDING ENGINEER,
PWD ROADS NORTH CIRCLE, PWD COMPLEX, MANANCHIRA,
KOZHIKODE-673 001.
4 THE EXECUTIVE ENGINEER,
PWD ROADS DIVISION, MANJERI, MALAPPURAM DSITRICT-676
121.
SMT.PRINCY XAVIER, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.4073 OF 2021(H)
2
JUDGMENT
Dated this the 1st day of March 2021
The petitioner is a contractor who is
aggrieved by the refusal on the part of the
respondents to adjust the pending bill against
the performance guarantee. It is stated that
the petitioner was awarded the work of "Budget
work 2020-21-Improvements to Chungam Pazhur
Road by providing BM&BC from km 0/000 to 2/300
in Kottakkal LAC" as per Ext.P1 selection
notice dated 01.2021. He was also directed to
furnish the performance guarantee of
Rs.4,93,100/- out of which 50% shall be by way
of treasury deposit. The petitioner points out
that a sum of Rs.45,05,804/- is due to it
towards the work of "SLTF 2018-19 (Flood
Damaged works) BM&BC renewal and drain works
to Tirur-Malappuram Road between km 0/000 to
0/350 and km 1/900 to 2/040 in Tirur LAC in
Malappuram District" and the same has been
WP(C).No.4073 OF 2021(H)
certified in Exts.P2 and P2(a) issued by the
4th respondent. The petitioner points out that
the Government has as per Ext.P4 -G.O.(Rt)
No.3834/2020/Fin dated 23.06.2020 ordered that
the amount under audited and passed bills of
contractors would be accepted as Performance
Guarantee/Additional Performance Guarantee for
new contracts.
2. Petitioner therefore requested the 3rd
respondent to adjust the requisite amount out
of the pending bill towards the performance
guarantee. The request of the petitioner for
adjustment of the bill against performance
guarantee was rejected by the 3rd respondent as
per Ext.P5 order, stating that bills can be
adjusted towards performance guarantee only on
the basis of indemnity certificate issued
online in EMLI application and the said
application is not available in online so far.
This Writ Petition is filed at this stage,
pointing out that the EMLI software has not so
WP(C).No.4073 OF 2021(H)
far been modified in tune with Ext.P4 order.
3. Petitioner points out that in the case
of several contractors pending bills are
already adjusted manually on the basis of
directions from this Court since the EMLI
software has not been modified so far in tune
with Ext.P4 Government Order.
4. Learned Government Pleader also
submitted that the EMLI software is not
modified so far.
5. Ext.P4 Government order has been issued
as early as on 23.06.2020. As per sub clause
(v) of Clause 3 of Ext.P4 order, amount due
under audited and passed bills of contractors
would be accepted as Performance Guarantee for
new works being awarded, only on the basis of
indemnity certificate issued online in EMLI
application. Clause 4 provides for effecting
necessary modifications in EMLI to facilitate
the new system. The facility for adjustment of
the bills have been ordered by the Government
WP(C).No.4073 OF 2021(H)
for the benefit of the contractors on their
request. When such a facility is ordered,
Government has also to see that suitable
modifications are effected in the software so
as to enable the contractors to enjoy the
benefit of the order. The petitioner cannot
therefore be denied the benefit of the same,
in case it satisfies other conditions in
Ext.P4 order. This Court has in several cases
directed the respondents to carry out the
adjustment manually.
6. Therefore, there shall be a direction
to the 3rd respondent to consider the request
of the petitioner for adjustment of the amount
from the pending bill towards performance
guarantee and to adjust the admissible amount,
if any under the pending bill covered by
Ext.P2 letter towards performance guarantee in
accordance with Ext.P4 Government Order
manually, i.e., without insisting for
indemnity certificate through EMLI. This shall
WP(C).No.4073 OF 2021(H)
be done within a period of 'two weeks' from
the date of receipt of a copy of the judgment.
Petitioner shall also be granted time for
execution of agreement by a further period of
'two weeks'.
The Writ Petition is disposed of
accordingly.
Sd/-
P.V.ASHA
JUDGE
DM
WP(C).No.4073 OF 2021(H)
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE SECTION NOTICE
NO.DC 07/RD/2020/2475 DATED 01.2021
ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE CERTIFICATE NO.A2-
D7/1857/2020 DATED 08.01.2021 ISSUED
BY THE 4TH RESPONDENT.
EXHIBIT P2 A TRUE COPY OF THE CHECKLIST GENERAL
BILL DATED 23.12.2020.
EXHIBIT P3 TRUE COPY OF THE REPRESENTATION
DATED 14.02.2021 SUBMITTED BY THE
PETITIONER BEFORE THE 3RD
RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE GOVERNMENT ORDER
GO(RT) NO.3834/2020/FIN DATED
23.06.2020.
EXHIBIT P5 TRUE COPY OF THE REJECTION ORDER
DATED 15.02.2021 OF THE 3RD
RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED
09.11.2020 IN WPC NO.22048/2020 OF
THIS HON'BLE COURT.
