State Of Kerala vs M/S. Thoppil Contractors (India) ...
2021 Latest Caselaw 18696 Ker

W.A.No.932 of 2021              1

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
         THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                &
            THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 9TH DAY OF SEPTEMBER 2021 / 18TH BHADRA, 1943
                       WA NO. 932 OF 2021
 AGAINST THE JUDGMENT IN WP(C) 29625/2016 OF HIGH COURT OF
                        KERALA, ERNAKULAM
APPELLANTS/RESPONDENTS 1 TO 4 IN W.P.(C):

     1      STATE OF KERALA
            REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT,
            PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT,
            THIRUVANANTHAPURAM - 695 001.
     2      THE CHIEF ENGINEER
            PUBLIC WORKS DEPARTMENT (ROADS AND BRIDGES),
            PUBLIC OFFICE, THIRUVANANTHAPURAM - 695 033.
     3      THE EXECUTIVE ENGINEER
            PUBLIC WORKS DEPARTMENT (ROADS DIVISION), P.M.G.
            JUNCTION, THIRUVANANTHAPURAM - 695 033.
     4      THE SUPERINTENDING ENGINEER
            PUBLIC WORKS DEPARTMENT, ROADS & BRIDGES (SC),
            PUBLIC OFFICE, THIRUVANANTHAPURAM - 695 033.
            BY SENIOR GOVERNMENT PLEADERSRI.K.V.MANOJ KUMAR


RESPONDENTS/PETITIONER & 5TH & 6TH RESPONDENTS IN W.P.(C):

     1      M/S. THOPPIL CONTRACTORS (INDIA) PRIVATE LIMITED
            REPRESENTED BY NIZAMUDEEN.A., MANAGING
            DIRECTOR,THOPPIL BUILDINGS, THOLIKUZHI, ADAYAMON
            P.O., KILIMANOOR, THIRUVANANTHAPURAM-695 001.
 W.A.No.932 of 2021                  2

     2       KERALA STATE CONSTRUCTION CORPORATION
             LTD.,REPRESENTED BY MANAGING DIRECTOR, VYTTILA,
             ERNAKULAM - 682 019.
     3       THE REGIONAL MANAGER
             KERALA STATE CONSTRUCTION CORPORATION LTD.,
             REGIONAL OFFICE, P.W.D. STORE COMPOUND,
             P.M.G.JUNCTION, THIRUVANANTHAPURAM - 695 033.
             BY ADVS.
             SRI.RENJITH THAMPAN (SR.)
             SRI.M.RAJAGOPALAN NAIR
             SRI.G.BIJU, STANDING COUNSEL
             SRI.AJITH KRISHNAN



      THIS    WRIT    APPEAL   HAVING     COME   UP    FOR    ADMISSION   ON
09.09.2021,     THE    COURT   ON   THE     SAME      DAY    DELIVERED    THE
FOLLOWING:
 W.A. No.932 of 2021                   :   3:




                                  JUDGMENT

Dated this the 9th day of September, 2021

SHAJI P.CHALY,J.

The captioned writ appeal is filed by respondents 1 to 4 in

W.P.(C) No.29625 of 2016, challenging the judgment dated 21.5.2020.

2. The subject issue relates to an agreement executed by and

between the writ petitioner /1st respondent with the Kerala State

Construction Corporation Ltd., Ernakulam - 2 nd respondent, in regard to

the work of "35th National Games - Improvements to Thiruvallam

Junction - Pachalloor Vazhamuttom road from ch.0/000 to 2/200 (Part I)

Poonkulam Junction Agricultural College Vellayani from Ch 0/000 to

1/200 (Part II) and Agricultural College Internal Road up to stadium at

Vellayani (Part III)", for an amount of Rs.6,21,47,829/-, which is at

0.05% below the estimate rate and less cost of departmental materials.

In fact the State Government is carrying out various public works through

the Kerala State Construction Corporation Ltd, who is granted the liberty

to sub contract, and the issue at hand is one such instance.

3. The grievance highlighted by the writ petitioner was that the work

was completed to the satisfaction of the appellants and the Kerala State

Construction Corporation Ltd. and the entire amount was paid. However,

as per Exhibit P2 communication dated 23.7.2016, the Executive

Engineer, PWD Roads Division, Thiruvananthapuram addressed the

Kerala State Construction Corporation Ltd. informing that an amount of

Rs.84,86, 670/- was not recovered from the amounts due to the writ

petitioner, on account of the terms and conditions of the contract and

the Government Orders as regards the purchase of bitumen by the writ

petitioner in regard to the work in question. Accordingly, the Executive

Engineer informed the Kerala State Construction Corporation Ltd. that

the said amount will be recovered from other pending bills viz., NABARD

- Impts to Vithura Peppara road from Km.0/000 to 9/500 CC 6th part and

final bill. Consequently, the Kerala State Construction Corporation Ltd. as

per Exhibit P3 communication dated 27.7.2016, informed that recovery

will be effected as directed by the Executive Engineer since excess

payment was made in the subject work due to application of cost index

in rate of materials. It was thus challenging Exhibits P2 and P3, the writ

petition was filed.

4. The learned Single Judge, after taking into account the rival

submissions, has set aside Exhibits P2 and P3 and directed the

appellants and the Kerala State Construction Corporation Ltd. to take

appropriate steps to see that the amount withheld from the writ

petitioner's 6th part and final bill is released without delay to the Kerala

State Construction Corporation Ltd. to effect payment to the writ

petitioner, within a period of three months from the date of receipt of a

copy of the judgment. The said direction was issued after finding that

from perusal of Exhibits P4, and P5 Government Orders and P6

agreement that in case where bitumen is not supplied departmentally,

the contractor is entitled to purchase the bitumen from the open market

and to reimburse the cost at market price. It was also found that it is

apparent from the pleadings placed on record that the bills and invoices

produced by the writ petitioner with regard to the market price of

bitumen and the expenses had been duly approved and passed.

Accordingly, learned Single Judge found that the findings in Exhibit P3

communication of Kerala State Construction Corporation Ltd. that the

cost index ought to have been deducted in the calculation and that the

writ petitioner has drawn the amount in excess is an incorrect statement,

and going by the provisions of the Government Orders as well as the

terms and conditions of the agreement executed between the parties,

the submissions put forth by the writ petitioner appears to be completely

justified. Also it was found that without any impartial quantification of

amounts in dispute, the direction for recovery of amounts is unjustified

and therefore, in case the appellants and the Kerala State Construction

Corporation Ltd. have any contention with regard to the drawal of excess

amounts by the writ petitioner, such dispute will have to be decided in a

manner known to law.

5. The basic contention advanced by the appellants is that there is

no contractual obligations and privity of contract between the appellants

and the writ petitioner; that the issue involved is of serious factual

dispute and interpretation of terms of contract, therefore, the writ

petition under Article 226 of the Constitution of India is not maintainable

as settled by the Apex Court in its various judgements. Other contentions

are also raised.

In fact in the writ appeal, appellants have produced hand receipts

along with invoices for purchase of bitumen from M/s.Bharat Petroleum

Corporation Limited to establish that excess payments were made and

that as of right the appellants and the Kerala State Construction

Corporation Ltd. are entitled to recover the excess amount paid to the

writ petitioner. Even though elaborate arguments were advanced on the

basis of the rival contentions, the documents and the additional

documents produced by the respective parties, learned Senior

Government Pleader Sri.K.V.Manoj Kumar submitted that the appellants

would be satisfied, if an opportunity is provided so as to establish the

claim of the appellants and the Kerala State Construction Corporation

Ltd. within a time frame to be fixed by this Court. Learned Senior

Counsel appearing for the writ petitioner Sri.Ranjith Thampan, assisted

by Sri.Ajith Krishnan, submitted that the writ petitioner has no objection

in the matter being considered by the State Government as well as the

Kerala State Construction Corporation Ltd. taking into account the

contentions put forth by the writ petitioner, however, the direction

issued by the learned Single Judge to release the amount recovered as

per Exhibits P2 and P3 may not be interfered with. It was also submitted

that the writ petitioner is prepared to provide bank guarantee for the

entire amount. Learned Senior Government Pleader also submitted that

the proposal suggested by the learned counsel for writ petitioner is

acceptable to the appellants.

6. In that view of the matter, we do not think any detailed

deliberation and adjudication of the matter is required as are sought for

in the writ appeal. Therefore, the writ appeal is disposed of directing the

appellants / the Kerala State Construction Corporation Ltd. to issue a

notice explaining the circumstances under which the amount of

Rs.84,86,670/- became due to the appellants and the Kerala State

Construction Corporation Ltd., secure a reply from the writ petitioner

and adjudicate the issue, within a period of six weeks from the date of

receipt of a copy of this judgment. It is further directed that the amount

of Rs.84,86,670/- recovered from the pending bill of work "NABARD -

Impts to Vithura Peppara road from Km.0/000 to 9/500 CC 6th part and

final bill" shall be released to the writ petitioner by the appellants/Kerala

State Construction Corporation Ltd., within a week from the production

of the bank guarantee for the said amount by the writ petitioner before

the Kerala State Construction Corporation Ltd. We also make it clear that

all questions of facts and law raised by the parties in the writ appeal are

left open to be adjudicated at a later point of time, if the situation

warrants.

Sd/-

S. MANIKUMAR,

CHIEF JUSTICE.

Sd/-

                                                   SHAJI P. CHALY,
smv                                                   JUDGE.