Kerala High Court
M/S.Malabar Plus Constructions ... vs State Of Kerala on 24 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943
WP(C).No.7655 OF 2021(F)
PETITIONER:
M/S.MALABAR PLUS CONSTRUCTIONS PVT.LTD.,
BUILDING NO.MM21/28A, 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
SRI.RISHAB S.
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 DISTRICT-676 121.
5 THE EXECUTIVE ENGINEER,
PWD ROADS DIVISION, PALAKKAD-678 001.
WP(C).No.7655 of 2021(F)
2
6 THE EXECUTIVE ENGINEER,
PWD ROADS DIVISION, KOZHIKODE-673 104.
BY ADV. SMT.PRINCY XAVIER, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.7655 of 2021(F)
3
JUDGMENT
Petitioner is Contractor, who is
aggrieved by the rejection of its request
for adjustment of pending bill towards
Performance Guarantee.
2. Exts.P1 to P4 selection notices have
been issued to petitioner in respect of 4
works. Ext.P1 selection notice which is in
respect of the work "improvements to
Kolikkara Kokkur road from km.0/000 to 2/150
by providing BM and BC in Ponnani LAC",
directs the petitioner to furnish
Performance Guarantee of Rs.8,07,800/- out
of which 50% should be by way of Treasury
Deposit. Ext.P2 is another notice with
respect to the work of "providing drainage
facilities and improvements to Koppam Town
in Pattambi LAC in Palakkad District"
WP(C).No.7655 of 2021(F)
directing the petitioner to furnish
Performance Guarantee of Rs.4,70,900/-, 50%
of which should be in the form of Treasury
Deposit. Ext.P3 selection notice is
relating to the work of "improvements to
Francis road Junction-Vengali Gate road
Km.0/000 to 3/300 in Kozhikode", directing
the petitioner to furnish Performance
Guarantee of Rs.10,51,500/-, out of which
50% shall be by way of Treasury Deposit. By
Ext.P4 selection notice, with respect to the
work of "BC overlay of Valanchery Koppam
road km 5/035 to 13/525 in Pattambi LAC in
Palakkad District", directing the petitioner
to furnish Performance Guarantee of
Rs.11,04,900/-, out of which 50% shall be in
the form of Treasury Deposit.
3. Petitioner submits that it has
completed several works and a huge amount is
WP(C).No.7655 of 2021(F)
due towards the bills, which are pending.
It is stated that Ext.P5 certificate issued
by the 4th respondent along with Exts.P5(a),
Checklist-General Bill would show that a sum
of Rs.93,37,401/- is due to petitioner for
the work of "Kerala Budget work 2017-18
special sanctions improvements and providing
BM & BC works to Kodakkad-Vallikunnu Railway
station road between 0/000 to 01/700 in
Vallikunnu LAC".
4. In the light of Ext.P7 Government
Order dated 23.06.2020, which permits
adjustment of pending bills towards
Performance Guarantee, petitioner requested
the 3rd respondent to adjust the amount
covered by the said bill towards the
Performance security demanded towards
Exts.P1 to P4 selection notices by
submitting Ext.P6 representation. It is
WP(C).No.7655 of 2021(F)
stated that as per Exts.P7 to P11 orders,
petitioner has been asked to produce
Indemnity Certificate through EMLI, whereas
such a certificate would not be available
through EMLI.
5. 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.P7 Government Order.
6. Learned Government Pleader also
submitted that the EMLI software is not
modified so far.
7. Ext.P7 Government order has been
issued as early as on 23.06.2020. As per sub
clause (v) of Clause 3 of Ext.P7 order,
amount under audited and passed bills of
contractors would be accepted as Performance
WP(C).No.7655 of 2021(F)
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
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.P7 order. This Court has in several
cases directed the respondents to carry out
the adjustment manually.
Therefore, there shall be a direction
WP(C).No.7655 of 2021(F)
to the 2nd 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.P5 letter towards
Performance Guarantee in accordance with
Ext.P7 Government Order manually, i.e.,
without insisting for Indemnity Certificate
through EMLI. This shall 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
ww
WP(C).No.7655 of 2021(F)
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE SELECTION NOTICE NO.DC07/
RD/2020/4770 DATED 17.02.2021 ISSUED BY THE
3RD RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE SELECTION NOTICE NO.DC08/
PRICE/2020/5083 DATED 19.02.2021 ISSUED BY
THE 3RD RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE SELECTION NOTICE NO.DC01/
RD/2020/1464 DATED 20.02.2021 ISSUED BY THE
3RD RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE SELECTION NOTICE NO.DC08/
PRICE/2021/454 DATED 26.02.2021 ISSUED BY
THE 3RD RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE CERTIFICATE NO.A4/4170/
2021 DATED 15.02.2021 ISSUED BY THE 4TH
RESPONDENT.
EXHIBIT P5(A) TRUE COPY OF THE CHECKLIST-GENERAL BILL
DATED 22.01.2021.
EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED
01.03.2021 SUBMITTED BY THE PETITIONER
BEFORE THE 3RD RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE GOVERNMENT ORDER G.O.(RT)
NO.3834/2020/FIN DATED 23.06.2020.
EXHIBIT P8 TRUE COPY OF THE REJECTION ORDER DATED
01.03.2021 OF THE 3RD RESPONDENT WITH
REGARD TO EXHIBIT-P1 WORK.
EXHIBIT P9 TRUE COPY OF THE REJECTION ORDER DATED
05.03.2021 OF THE 3RD RESPONDENT WITH
REGARD TO EXHIBIT-P2 WORK.
EXHIBIT P10 TRUE COPY OF THE REJECTION ORDER DATED
15.03.2021 OF THE 3RD RESPONDENT WITH
REGARD TO EXHIBIT-P3 WORK.
WP(C).No.7655 of 2021(F)
EXHIBIT P11 TRUE COPY OF THE REJECTION ORDER DATED
05.03.2021 OF THE 3RD RESPONDENT WITH
REGARD TO EXHIBIT-P4 WORK.
EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 09.11.2020
IN WPC NO.22048/2020 OF THIS HON'BLE COURT.
