Kerala High Court
M/Sthoppil Construction (India) ... vs Kerala Road Fund Board on 17 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
Friday, the 17th day of June 2022 / 27th Jyaishta, 1944
W.A.NO. 730 OF 2022
AGAINST THE JUDGMENT DATED 03.06.2022 IN W.P.(C) 14968/2022 OF THIS COURT
APPELLANT/PETITIONER IN WP(C):
M/S.THOPPIL CONSTRUCTION (INDIA) PVT. LTD., THOLIKUZHY, ADAYAMON
P.O., KILIMANOOR, THIRUVANANTHAPURAM 695614 REPRESENTED BY ITS
MANAGING DIRECTOR, NIZAMUDEEN A.
BY ADVS. M/S.SURIN GEORGE IPE, SREEDEV U. & ADHIL P.
RESPONDENTS/RESPONDENTS 1 TO 4 IN WP(C):
1. KERALA ROAD FUND BOARD PROJECT MANAGEMENT UNIT, SREEBALA BUILING, T
C 11/339, 5TH FLOOR, KESTON ROAD, NATHANCODE, KOWDIAR P.O.,
THRIVANANTHAPURAM - 695003. REPRESENTED BY ITS PROJECT DIRECTOR
2. EXECUTIVE ENGINEER,KERALA ROAD FUND BOARD PROJECT MANAGEMENT
UNIT, SREEBALA BUILDING, TC 11/339, 5-TH F KESTON ROAD, NANTHANCODE,
KOWDIAR P.O., THIRUVANANTHAPURAM - 695003
3. KERALA INDFRASTRUCTURE INVESTMENT BOARD(KIIFB), 2ND FLOOR, FELICITY
CENTRE, MAHATMA GANDHI ROAD, STATUE, THIRUVANANTHAPURAM 695001.
REPRESENTED BY ITS CHEIF EXECUTIVE OFFICER
4. THE EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD LTD.,
NEDUMANGAD, THIRUVANANTHAPURAM - 695541.
BY SRI.K.V.MANOJ KUMAR, STANDING COUNSEL for R1 & R2
SRI.S. CHANDRASEKHARAN NAIR, STANDING COUNSEL for R3
SRI.RIJI RAJENDRAN, STANDING COUNSEL for R4
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to stay all further procedings initiated by the respondent to en-cash the
bank guarantee and treasury deposit submitted at the time of executing the
agreement, pending disposal of the writ appeal.
This Writ Appeal coming on for orders on 17.06.2022 upon perusing
the appeal memorandum, the court on the same day passed the following:
[P.T.O.]
EXT. P8: TRUE COPY OF THE PHOTOGRAPHS SHOWING THE COMMENCEMENT OF THE WORK BY
PETITIONER
EXT.P9: TRUE COPY OF THE RELEVANT PAGES OF THE TENDER NOTICE DATED 19.04.2022
S. MANIKUMAR, C. J. & SHAJI P. CHALY, J.
======================================
W. A. No. 730 of 2022
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Dated this the 17th day of June, 2022
ORDER
S. Manikumar, C. J.
Appellant had preferred W. P. (C) No. 5837 of 2022 seeking the
issuance of a writ of mandamus directing the respondents not to
terminate the contract executed by the appellant and encash the
amounts submitted by the appellant at the time of the contract.
Appellant had further sought for the expeditious consideration of
representation dated 15.12.2021 and to stay the encashment of the
amounts submitted by the appellant till the disposal of the
representation.
2. Appellant had preferred W.P. (C) No. 6846 of 2022 seeking
the issuance of writ of certiorari to quash the termination order dated
18.02.2022 issued by the 1st respondent.
3. As both the writ petitions pertain to contract / termination,
issues being interconnected, they were taken up together, and the writ
W. A. No. 730 of 2022
court, by common judgment in W. P. (C) Nos. 5837 and 6846 of 2022
dated 04.04.2022, set aside Ext. P8 termination order, which is the
subject matter of challenge in W.P. (C) No. 6846 of 2022, and ordered
thus:-
"In the circumstances, the writ petitions are disposed of
setting aside Ext.P8 in W.P.(C) No.6846 of 2022 and directing the
respondents to permit the petitioner to complete the work
undertaken by the petitioner within a period of 45 days from the
date of receipt of a copy of this judgment. The respondents shall
also process the 8th and part bill submitted by the petitioner in the
meanwhile, and make payment found due to the petitioner under
the said Bill. It is made clear that irrespective of payment or non-
payment of the part bill, if the petitioner fails to complete the
work within 45 days as directed above, the respondents will be
free to proceed against the petitioner in accordance with the
terms of the contract and in accordance with law.
4. When the matter stood thus, Project Director, Kerala Road
Fund Board Project Management Unit, Thiruvananthapuram, the 1 st
respondent, has issued notice inviting tender dated 19.04.2022, in
respect of the same work, for which contract was already awarded,
terminated and set aside by common judgment in W. P. (C) Nos. 5837
and 6846 of 2022 dated 04.04.2022
W. A. No. 730 of 2022
5. Subsequent action of the Project Director, the 1 st respondent,
namely notice inviting tender dated 19.04.2022 was challenged in W.
P. (C) No. 14968 of 2022. Writ court, by judgment dated 03.06.2022,
dismissed the same as hereunder:-
"The challenge in this writ petition is against Ext.P9
notice inviting tender for the work of carrying out improvements
to the Vamanapuram - Chittar road. The alleged delay on the
petitioner's part has resulted in the work being re-tendered under
Ext.P9. The petitioners had approached this Court earlier and by
Ext.P5 judgment the time for executing the contract was
extended by 45 days. The learned Counsel for the petitioner
argued in extenso as to the reasons for not completing the work
within the time granted under Ext.P5 judgment. Learned
Standing Counsel for the 1st respondent submitted that the
reasons are frivolous and the attempt through this writ petition is
to get the time granted under Ext.P5 extended. Having carefully
perused Ext.P5 judgment, I find that the prayer sought in this writ
petition cannot be granted since, that would, in effect, amount to
modification or review of Ext.P5 judgment. The petitioner should
therefore seek review or modification of the judgment, rather
than filing a fresh writ petition.
The writ petition is hence closed, reserving the petitioners
right to seek appropriate remedy."
6. Being aggrieved by the later judgment, instant writ appeal is
W. A. No. 730 of 2022
filed.
7. Inviting the attention of this Court to the common judgment
made in W. P. (C) Nos. 5837 and 6846 of 2022 dated 04.04.2022, by
which the writ court has already set aside Ext. P8 termination dated
19.02.2022 and the grant of 45 days time, to complete the remaining
work, Mr. Surin George Ipe, learned counsel for the appellant,
submitted that even before the completion of the abovesaid period of
45 days, the Project Director, Kerala Road Fund Board Project
Management Unit, Thiruvananthapuram, the 1st respondent, has issued
a notice inviting Ext. P9 tender dated 19.04.2022 in W. P. (C) No.
14968 of 2022, which is erroneous.
8. He further submitted that when there were no bidders, the
Project Director, Kerala Road Fund Board Project Management Unit,
Thiruvananthapuram, the 1st respondent, issued another notification
dated 09.06.2022.
9. Giving due consideration to the submissions and the material
on record, we find that when Ext. P8 challenge in W. P. (C) No. 6846
of 2022, has already been set aside, and the writ court has already
granted 45 days time to complete the demand work, the Project
W. A. No. 730 of 2022
Director, Kerala Road Fund Board Project Management Unit,
Thiruvananthapuram, the 1st respondent, ought not have issued Ext. P9
notice inviting tender dated 19.04.2022 in W. P. 14968 of 2022.
10. Going by the submissions and material on record, we are of
the view that the respondents should not proceed further with notice
dated 09.06.2022. Status quo shall be maintained.
11. Mr. K. V. Manoj Kumar, learned Standing Counsel, takes
notice for respondent Nos. 1 and 2.
12. Mr. S. Chandrasekharan Nair, learned Standing Counsel,
takes notice for the 3rd respondent.
Mr. Riji Rajendran, learned Standing Counsel, takes notice for
the 4th respondent.
Post on 22.06.2022
Sd/-
S. MANIKUMAR
CHIEF JUSTICE
Sd/-
SHAJI P. CHALY
JUDGE
Eb
17-06-2022 /True Copy/ Assistant Registrar
