Kerala High Court
Biju Augustine vs The Secretary on 9 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 9TH DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943
WP(C) NO. 28257 OF 2020
PETITIONER:
BIJU AUGUSTINE
AGED 52 YEARS
S/O. K.A AUGUSTINE, KUMPUCKAL HOUSE, KALIYAR P.O.,
THODUPUZHA, IDUKKI DISTRICT, PIN-685 607
BY ADVS.
ANIL GEORGE
SHRI.DAJISH JOHN
SRI.JOBY JACOB PULICKEKUDY
RESPONDENTS:
1 THE SECRETARY
KAINAGARI SUDHAJALA VITHARANA SCHEME LEVEL COMMITTEE,
ADIMALI P.O., IDUKKI-685 561
2 JALANIDHI
REP. BY ITS REGIONAL PROJECT DIRECTOR, REGIONAL PROJECT
MANAGEMENT UNIT, IDUKKI, KERALA RURAL WATER SUPPLY AND
AGENCY, MATHA ARCADE, THODUPUZHA-685 584
3 EXECUTIVE DIRECTOR,
JALANIDHI, KRWSA, PTC TOWERS, SS KOVIL ROAD,
THAMPANOOR, TRIVANDRUM
4 THE SECRETARY,
ADIMALI GRAMA PANCHAYATH, ADIMALI P.O., IDUKKI-685 561
BY ADVS.
MATHEWS K. UTHUPPACHAN
SRI.D.KISHORE
SMT.VIDYA KURIAKOSE, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO.28257/2020
2
P.V.KUNHIKRISHNAN, J
-------------------------------
W.P.(C)No.28257 of 2020
--------------------------------
Dated this the 09th day of November 2021
JUDGMENT
The above writ petition is filed with
following prayers:
(i) Issue a writ of mandamus or any
other appropriate writ, order or direction
directing the respondents to release a total
amount of Rs.20 lakhs which is withheld from
pre Final Bill as per Ext.P2, P4 & P6.
(ii) Issue a writ of mandamus or any
other appropriate writ, order or direction
directing the respondents to release the bank
guarantees given by the petitioner.
(iii) Grant such other and further reliefs
as this Hon'ble Court may deem fit and proper
in the interest of justice.
2. The petitioner is a registered
government contractor carrying out contract
works for the Kerala Water Authority. It is
the case of the petitioner that he entered
into three agreements with the 1st respondent
for the execution of work of Jalanidhi in
WP(C) NO.28257/2020
Adimali grama panchayat. It is the case of
the petitioner that he completed all three
works on 30.06.2017. According to the
petitioner, while disbursing the final bills,
a total amount of Rs.20 lakhs has been
withheld because it can be released only
after the defect liability period. According
to the petitioner, even after three years,
the amount is not disbursed. Hence this writ
petition is filed.
3. Heard the learned counsel for the
petitioner and the learned Standing counsel
for respondents 2 and 3.
4. The learned counsel for the
petitioner reiterated his contentions in the
writ petition and submitted that the amount
is withheld without any reason even after the
defect liability period.
5. The learned Standing counsel on the
other hand submitted that the defect
liability period was over on 01.02.2021 and a
WP(C) NO.28257/2020
statutory financial audit is necessary and
the same is going on and immediately after
the same the amount will be disbursed to the
petitioner.
6. I considered the contention of the
petitioner and respondents 2 and 3. I
perused the counter affidavit filed by the 2nd
respondent also. In the counter it is
specifically stated that the defect liability
period was completed on 01.02.2021.
According to the 2nd respondent, the amount
was withheld as retention money as per tender
conditions. Once the financial audit is
completed, the final settlement will be made
and the retention money will be released.
This can not go on like this indefinitely.
According to me, a time limit is necessary
for completing the financial audit and to
disburse the amount due to the petitioner.
Therefore, this writ petition is disposed of
fixing a time limit for completing the
WP(C) NO.28257/2020
financial audit and to disburse the amount
due to the petitioner as per the agreement.
Therefore, this writ petition is
disposed of in the following manner:
(i) Respondents 2 and 3 are directed
to take necessary steps to complete the
financial audit, as expeditiously as
possible, at any rate, within one month from
the date of receipt of a copy of this
judgment.
(ii) Immediately after the above
period, respondents 2 and 3 will disburse the
amount, if any, due to the petitioner
forthwith, at any rate, within two weeks from
the date on which the financial audit is
completed as directed above.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
DM
WP(C) NO.28257/2020
APPENDIX OF WP(C) 28257/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE PHOTOCOPY OF THE AGREEMENT
DATED 29.01.2016 SINGED BY THE
PETITIONER AND THE 1ST RESPONDENT
EXHIBIT P2 TRUE PHOTOCOPY OF THE ORDER PASSED
BY THE 2ND RESPONDENT DATED
02.12.2019
EXHIBIT P3 TRUE PHOTOCOPY OF THE AGREEMENT
DATED 29.01.2016 SINGED BY THE
PETITIONER AND THE 1ST RESPONDENT
EXHIBIT P4 TRUE PHOTOCOPY OF THE ORDER PASSED
BY THE 2ND RESPONDENT DATED
29.11.2019
EXHIBIT P5 TRUE PHOTOCOPY OF THE AGREEMENT
DATED 29.01.2016 SINGED BY THE
PETITIONER AND THE 1ST RESPONDENT
EXHIBIT P6 TRUE PHOTOCOPY OF THE ORDER PASSED
BY THE 2ND RESPONDENT DATED
29.11.2019
EXHIBIT P7 TRUE PHOTOCOPY OF THE PROCUREMENT
OF WORKS PROCEDURES ISSUED BY THE
2ND RESPONDENT
EXHIBIT P8 TRUE PHOTOCOPY OF THE
REPRESENTATION GIVEN TO THE 2ND
RESPONDENT DATED 24.11.2020
EXHIBIT P9 TRUE PHOTOCOPY OF THE
REPRESENTATION FOR THE RELEASE OF
THE BANK GUARANTEE GIVEN TO THE 2ND
RESPONDENT DATED 24.11.2020
RESPONDENTS EXHIBITS : NIL
//TRUE COPY// PA TO JUDGE
