M And T Constructions vs State Of Kerala
2021 Latest Caselaw 19043 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
 MONDAY, THE 13TH DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943
                     WP(C) NO. 10714 OF 2021
PETITIONER:

            M & T CONSTRUCTIONS
            VALIYAKAVALA, VAIKOM P.O., KOTTAYAM DISTRICT,
            REPRESENTED BY ITS MANAGING PARTNER, MANOJ KRISHNA
            BY ADVS.
            BABU JOSEPH KURUVATHAZHA
            SRI.M.G.SREEJITH
            SMT.K.S.ARCHANA

RESPONDENTS:

    1       STATE OF KERALA
            REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
            DEPARTMENT OF PUBLIC WORKS, GOVERNMENT
            SECRETARIAT, THIRUVANANTHAPURAM-695 001

    2       CHIEF ENGINEER (ADMINISTRATION)
            PUBLIC WORKS DEPARTMENT, PUBLIC OFFICE BUILDING,
            MUSEUM, THIRUVANANTHAPURAM-695 033

    3       SUPERINTENDING ENGINEER,
            PUBLIC WORKS DEPARTMENT (ROADS & BRIDGES) SOUTH
            CIRCLE, PUBLIC OFFICE BUILDING, MUSEUM,
            THIRUVANANTHAPURAM-695 033

    4       EXECUTIVE ENGINEER,
            PUBLIC WORKS DEPARTMENT (ROADS DIVISION),
            KOTTAYAM-686 001

            BY ADV.DEEPA NARAYANAN, SR. GOVERNMENT PLEADER

     THIS     WRIT   PETITION    (CIVIL)     HAVING    COME   UP    FOR
ADMISSION     ON   13.09.2021,    THE     COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
 W.P.(C).No.10714/2021

                                          2


                      P.V.KUNHIKRISHNAN, J.
                        -------------------------------
                      W.P.(C).No.10714 of 2021
                ----------------------------------------------
            Dated this the 13th day of September, 2021


                                    JUDGMENT

This writ petition is filed with following prayers:

i. Issue a writ of certiorari or any other appropriate writ, order or direction, quashing the operation of Ext.P3, to the extent directing the petitioner to furnish additional performance guarantee. ii. issue any appropriate writ, order or direction declaring that petitioner need not furnish additional performance guarantee for extending the time of completion of work involved in Agreement No.99/SESC/201/-19 dated 3.10.2018, in view of Exts.P4 to P6 Office Memorandums issued on behalf of the Government of India and Ext.P7 order of the 1 st respondent.

iii. Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 3rd respondent to consider and dispose of Ext.P8 representation, in the light of Exts.P4 to P6 Office Memorandums issued on behalf of the Government of India and Ext.P7 order of the 1 st respondent, forthwith, with notice to the petitioner.

W.P.(C).No.10714/2021

iv. Issue such other writ, order or direction which may deem fit in the facts and circumstances of the case.

2. Construction of Kaduthuruthy byepass Phase II

from Ch.0/190 to 0/785 was awarded to the petitioner and he

executed the agreement on furnishing the performance

guarantee worth Rs.37,47,800/- valid for 56 months and

additional performance security deposit worth Rs.53,26,708/-

in the form of bank guarantee, valid upto 30.06.2020.

According to the petitioner, since inordinate delay was

occurred at the office of the respondents in recording the

initial levels and handing over work site, free from

obstructions, the petitioner could not complete the work

within 18 months. Hence he submitted Ext.P2 representation

along with an application in the proper format, seeking

extension of time up to 31.08.2021. It is the case of the

petitioner that the said application was duly recommended by

AE, AEE and the 4th respondent, for extending the time

without fine. But, as per Ext.P3, the petitioner was directed

by the 3rd respondent to furnish additional performance

guarantee, when the furnishing of additional performance

guarantee is to be waived as per Exts.P4 to P6 Office W.P.(C).No.10714/2021

Memorandums issued by the Government of India and Ext.P7

order of the 1st respondent. Hence this writ petition is filed to

quash the direction in Ext.P3 to furnish additional

performance guarantee.

3. Heard the counsel for the petitioner and the

Government Pleader.

4. The counsel for the petitioner reiterated his

contentions in the writ petition. The counsel submitted that,

in the light of Ext.P7 Government Order, the direction in

Ext.P3 to furnish additional performance guarantee is

unsustainable. The Government Pleader submitted that the

respondents extended the term without imposing fine.

5. After hearing both sides, I think there can be a

direction to the 3rd respondent to reconsider the direction to

furnish additional performance guarantee in the light of

Ext.P7 Government Order. The 3rd respondent will look into

Ext.P7 while passing orders in accordance to law.

6. Clause 4(3) of Ext.P7 order is extracted hereunder:

"Additional performance Guarantee is waived for the low quoted items on the condition that the bidder shall furnish an undertaking to execute all low quoted items in full as per contract terms."

W.P.(C).No.10714/2021

7. Ext.P7 order is passed in connection with the the

Covid-19 pandemic situation. In the light of Clause 4(3) in

Ext.P7, the direction in Ext.P3 to furnish additional

performance guarantee can be reconsidered by the 3 rd

respondent.

Therefore, this writ petition is disposed in the following

manner:

1. The 3rd respondent is directed to reconsider

the direction in Ext.P3 to furnish additional

performance guarante, in the light of Ext.P7

order.

2. The above exercise should be completed by the

3rd respondent, as expeditiously as possible, at

any rate, within four weeks from the date of

receipt of a copy of this judgment.

sd/-

P.V.KUNHIKRISHNAN JV JUDGE W.P.(C).No.10714/2021

APPENDIX OF WP(C) 10714/2021

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE SELECTION NOTICE NO.DB4.674/2018 DATED 09.1028 ISSUED BY THE 3RD RESPONDENT EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED 10.6.2020 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT EXHIBIT P3 TRUE COPY OF THE LETTER NO.D.B 3 (7) 2-674/2018 DATED 12.4.2021 ISSUED BY THE 3RD RESPONDENT EXHIBIT P4 TRUE COPY OF THE OFFICE MEMORANDUM NO.F.18/4/2020-PPD DATED 13.5.2020 ISSUED BY THE PROCUREMENT POLICY DIVISION,MINISTRY OF FINANCE, DEPARTMENT OF EXPENDITURE, GOVERNMENT OF INDIA EXHIBIT P5 TRUE COPY OF THE OFFICE MEMORANDUM NO.F.9/4/2020-PPD DATED 12.11.2020 ISSUED BY THE PROCUREMENT POLICY DIVISION,MINISTRY OF FINANCE, DEPARTMENT OF EXPENDITURE, GOVERNMENT OF INDIA EXHIBIT P6 TRUE COPY OF THE OFFICE MEMORANDUM NO.F.9/4/2020-PPD DATED 12.11.2020 ISSUED BY THE PROCUREMENT POLICY DIVISION,MINISTRY OF FINANCE, DEPARTMENT OF EXPENDITURE, GOVERNMENT OF INDIA EXHIBIT P7 TRUE COPY OF G.O(P) NO.7/2021/FIND DATED 7.1.2021 ISSUED BY THE 1ST RESPONDENT EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 20.4.2021 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT