K.A.Johnson vs The Kerala State Nirmithi Kendra
2021 Latest Caselaw 7740 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

              THE HONOURABLE MR.JUSTICE N.NAGARESH

 FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942

                   WP(C).No.15251 OF 2020(F)

PETITIONER:

              K.A.JOHNSON,
              AGED 55 YEARS,
              S/O. KUNJAVARA, KOLENCHERRY HOUSE,
              NEELEESWARAM P.O., KALADY(VIA),
              ERNAKULAM DISTRICT-683 584

              BY ADVS.
              SRI.S.SHANAVAS KHAN
              SMT.S.INDU

RESPONDENTS:

        1     THE KERALA STATE NIRMITHI KENDRA,
              PTP NAGAR, THIRUVANANTHAPURAM-695 038,
              REPRESENTED BY ITS DIRECTOR

        2     THE REGIONAL ENGINEER,
              KERALA STATE NIRMITHI KENDRA,
              REGIONAL CENTRE, CHENAKALA ROAD,
              HMT COLONY P.O., KALAMASSERY,
              ERNAKULAM-683 503

        3     THE UNIVERSITY ENGINEER,
              SREE SANKARA UNIVERSITY OF SANSKRIT,
              KALADY, ANGAMALY, ERNAKULAM-683 574

ADDL.   4     THE SREE SANKARA UNIVERSITY
              OF SANSKRIT (SSUS), KALADY,
              ANGAMALY, ERNAKULAM - 683514.
              REPRESENTED BY ITS VICE CHANCELLOR.

            ADDL.R4 IS IMPLEADED AS PER ORDER DATED
            30.07.2020 IN IA NO.1/2020.
            R1-2 BY ADV. SRI.G.RANJU MOHAN
            R3-4 BY SHRI.PRASANTH S., SC, SREE
            SANKARACHARYA UNIVERSITY OF SANSKRIT
     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 05.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) No.15251/2020
                                :2 :




                        JUDGMENT

~~~~~~~~~

Dated this the 5th day of March, 2021

The petitioner, a building contractor, was awarded

construction work of an auditorium in the main campus of the

additional 4th respondent-University. The value of contract

was ₹2,67,87,040/- and the work had to be completed within 9

months.

2. The petitioner would state that he has completed

almost 90% of the work by December, 2019. He could not

complete the remaining work due to the wrong decision

making of the respondents on piling and change of design of

auditorium to air condition and sound proofing. As the delay

in completion of the work is not attributable to the petitioner,

no fine was imposed on the petitioner.

3. Though the work was of the additional 4th

respondent-University, it was executed through the 1 st WP(C) No.15251/2020

respondent-Kerala State Nirmithi Kendra. Respondents 1 and

2 withheld 25% of retention money and GST amount. Due to

the failure of the respondents to facilitate execution of

remaining work, the petitioner is not in a position to proceed

further. In the circumstances, the petitioner prayed that

retention money, security deposit and bank guarantee be

released to him forthwith and he may be permitted to foreclose

the contract.

4. Respondents 1 and 2 filed a statement.

Respondents 1 and 2 stated that they are only consultants of

the additional 4th respondent-University. As per Clause 2.5 of

Ext.R2(a) Memorandum of Understanding, 25% of the

estimate amount will be released by the additional 4 th

respondent only after the submission of the final bill on

completion of the works in all respects.

5. Respondents 1 and 2 admitted that the petitioner

has completed about 70% of the works which was entrusted to

him. Further bills will be released only on completion of the

work.

WP(C) No.15251/2020

6. Respondents 3 and 4 filed counter affidavit.

Respondents 3 and 4 stated that the University has already

paid advance of ₹3 Crores to the 1 st respondent. The balance

need to be paid only on completion of the work. ₹2.62 Crores

have been paid to the petitioner and a balance of nearly

₹91,27,866/- is being retained by the 1 st respondent. The

University has not made restrictions on any payment to the

petitioner.

7. From the pleadings in the writ petition and

submissions made at the Bar, it is evident that the petitioner

has completed substantial portion of the work entrusted to

him. Huge amounts are retained by respondents 1 and 2 as

retention money, which is to be paid only after completion of

the work. It may be true that 25% of the contract amount is to

be paid only after the work is executed in full. But, it is to be

noted that the petitioner is ready and willing to complete the

work. But, he cannot move further without the cooperation of

the respondents. In such circumstances, amounts otherwise

due to the petitioner should not be withheld by the WP(C) No.15251/2020

respondents, contended the learned counsel for the petitioner.

8. During the pendency of this writ petition, a meeting

was convened at the Chamber of the Registrar of the

additional 4th respondent-University on 04.12.2020. The

petitioner and the representative of the 1st respondent

participated in the meeting. Taking into consideration the

larger public interest, the parties have come to a tentative

agreement. The minutes of the meeting produced by the

University as Annexure-R4(b) reads as follows:-

"In this situation, Kerala State Nirmithi Kendra stated that if the University modify the above clause regarding payment of the balance 25% amount ie. One Crore, as per the present GO(P) No.311/14/Fin dated 30.07.2014 (which allows payment in 7 stages such as 20% of the estimate amount as first instalment, then next five instalments as 15% each based on actual value of work done and balance 5% of the executed value will be released after successful completion of the observation period), then they can also make modifications in corresponding terms and conditions of their agreement with the contractor."

9. The learned counsel for the 1st respondent

submitted that they are willing to pay the bill amounts due to

the petitioner in accordance with the said decision and WP(C) No.15251/2020

continue to proceed with the contract in terms of GO(P)

No.311/14/Fin dated 30.07.2014. The said proposal is

acceptable to the petitioner also.

In the circumstances, recording the above

agreement, the writ petition is disposed of. The amount

payable to the petitioner for the work he has carried out shall

be paid by the 1st respondent within a period of three weeks

as per the terms agreed to by the parties. The parties may

proceed with the contract in accordance with the agreement

arrived at as per Annexure-R4(b). The parties will be at liberty

to enter into additional agreements, if so advised.

Sd/-

N. NAGARESH, JUDGE

aks/05.03.2021 WP(C) No.15251/2020

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE COMMUNICATION NO.TECH 2/77/18 RNKE DATED 20.08.2018 ISSUED BY THE 2ND RESPONDENT

EXHIBIT P2 TRUE COPY OF THE COVERING LETTER DATED 31.08.2018 SUBMITTED BY PETITIONER BEFORE 2ND RESPONDENT

EXHIBIT P3 TRUE COPY OF THE AGREEMENT DATED 01.09.2018

EXHIBIT P4 TRUE COPY OF THE LETTER DATED 03.12.2018 ISSUED BY PETITIONER TO THE 2ND RESPONDENT EXHIBIT P5 TRUE COPY OF THE LETTER DATED 03.12.2018 ISSUED BY PETITIONER TO 2ND RESPONDENT REQUESTING FOR TIME AND PAYMENT

EXHIBIT P6 TRUE COPY OF THE LETTER DATED 06.12.2019 SENT BY PETITIONER TO THE VICE CHANCELLOR OF SREE SANKARA UNIVERSITY OF SANSKRIT, KALADY

EXHIBIT P7 TRUE COPY OF THE LETTER DATED 18.12.2019 ADDRESSED TO THE 2ND RESPONDENT BY THE PETITIONER

EXHIBIT P8 TRUE COPY OF THE LETTER DATED 31.01.2020 ADDRESSED TO THE 2ND RESPONDENT

EXHIBIT P9 TRUE COPY OF THE TAX INVOICE ISSUED BY NJALIATH QUALITY TILES AND SANITARIES, ANGAMALY

EXHIBIT P10 TRUE COPY OF THE LETTER DATED 02.07.2020 ISSUED TO THE 2ND RESPONDENT WP(C) No.15251/2020

RESPONDENTS' EXHIBITS:

EXHIBIT R2(a) TRUE COPY OF THE MOU DATED 22-02-2018 EXHIBIT R2(b) TRUE COPY OF THE LETTER NO.NG/851/SSUS/2015 DATED 14.08.2018 EXHIBIT R2(c) TRUE COPY OF THE SELECTION NOTICE DATED 20.08.2018 EXHIBIT R2(d) TRUE COPY OF THE MINUTES OF THE MEETING DATED 03.07.2019 EXHIBIT R2(e) TRUE COPY OF THE ROUGH COST ESTIMATE SUBMITTED BY THE 2ND RESPONDENT ALONG WITH A COVERING LETTER DATED 06.11.2019 EXHIBIT R2(f) TRUE COPY OF THE LETTER DATED 11.11.2019 ISSUED BY THE 3RD RESPONDENT EXHIBIT R2(g) TRUE COPY OF THE LETTER DATED 31.01.2020 SENT BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT EXHIBIT R2(h) TRUE COPY OF THE REMINDER LETTER DATED 13.03.2020 SENT BY THE 2ND RESPONDENT EXHIBIT R2(i) TRUE COPY OF THE FINAL ESTIMATE ALONG WITH THE COVERING LETTER DATED 15.05.2020 EXHIBIT R2(j) TRUE COPY OF THE REQUEST LETTER DATED 19.5.2020 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT EXHIBIT R2(k) TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT REJECTING THE EXT.R2(J) REQUEST LETTER SENT BY THE 2ND RESPONDENT.

ANNEXURE R2(l) TRUE COPY OF THE STATEMENT SHOWING THE AMOUNTS RELEASED TO THE PETITIONER ANNEXURE R2(m) TRUE COPY OF THE ESTIMATE FOR THE CONSTRUCTION OF THE AUDITORIUM EXHIBIT R2(n) TRUE COPY OF THE MOU DATED 12-02-2021 EXECUTED BETWEEN THE 2ND RESPONDENT AND THE ADDITIONAL 4TH RESPONDENT EXHIBIT R4(a) TRUE COPY OF THE MEMORANDUM OF UNDERSTANDING DATED 22-02-2018 BETWEEN THE UNIVERSITY AND THE 1ST RESPONDENT EXHIBIT R4(b) TRUE COPY OF THE ESTIMATE OF ADDITIONAL WORKS RECEIVED FROM THE 1ST RESPONDENT WP(C) No.15251/2020

EXHIBIT R4(c) TRUE COPY OF AUDIT ENQUIRY NO.23 DATED 01-11-2019 ISSUED BY THE ASST. AUDIT OFFICER, O/o ACCOUNTANT GENERAL (GSSA) KERALA ANNEXURE R4(b) TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 04-12-2020 IN THE CHAMBER OF THE REGISTRAR, SREE SANKARACHARY UNIVERSITY OF SANSKRIT

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