M/S Theruvath Builders vs The Project Director
2022 Latest Caselaw 2684 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
 FRIDAY, THE 11TH DAY OF MARCH 2022 / 20TH PHALGUNA, 1943
                    WP(C) NO. 28122 OF 2021
PETITIONER:

         M/S THERUVATH BUILDERS
         REPRESENTED BY ITS EXECUTIVE PARTNER, THERUVATH
         BUILDING, UZHAVOOR POST-686634, KOTTAYAM
         DISTRICT.
         BY ADVS.
         P.K.VIJAYAMOHANAN
         AISWARYA V.S.


RESPONDENTS:

    1    THE PROJECT DIRECTOR
         PROJECT MANAGEMENT UNIT, KERALA ROAD FUND BOARD,
         SREEBALA BUILDING, NANTHANCODE, KAWDIAR,
         THIRUVANANTHAPURAM-695003.
    2    THE CHIEF EXECUTIVE OFFICER
         KIIFB, STATUE JUNCTION, THIRUVANANTHAPURAM-
         695001.
         BY ADVS.
         S.CHANDRASEKHARAN NAIR
         S.GOKUL BABU
         RAJU GEORGE (KARUVATTA)
         BALAMURALI K.P.
         JEREES J.
         AMALA.J.RAJ


THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.03.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.P.(C).No.28122 of 2021
                                       2



                               JUDGMENT

Dated this the 11th day of March, 2022

The petitioner states that they undertook the work of

"Project under KIIFB 2016-17-Improvements to Changanassery

- Kaviyoor Road 0/000 to 13/300 in Pathanamthitta District."

Ext.P1 is the letter of acceptance dated 01.10.2018. The work

had to be completed within two years.

2. The petitioner submits that the contractors of Water

Authority took over the Site where the petitioner was

proceeding with the contract. Therefore, he could not complete

the work within the two year stipulated period. It is the specific

case of the petitioner that more than 90% of the work is

completed and the balance work remained to be completed for

the sole reason that the contractors of Water Authority took over

the site.

3. Learned counsel for the petitioner submitted that

there is a fundamental breach of contact as contemplated by W.P.(C).No.28122 of 2021

Ext.P2- Extract of General Conditions. As per Clause 54.1 of

Ext.P2, the Employer or the Contractor can terminate the

Contract if the other party causes a fundamental breach of the

contract. As per Clause 54.2, if an engineer instructs the

contractor to delay the progress of the work and the instruction

is not withdrawn within 28 days, the same would amount to

fundamental breach. The petitioner submits that the petitioner

was orally required to stop the work and even after 28 days

period, no further instruction was given and therefore, there is a

fundamental breach of contract. The learned counsel for the

petitioner submits that in such circumstances, the contract is

liable to be foreclosed without imposing any risk and cost on the

petitioner.

4. The learned Standing Counsel appearing for

respondents 1 and 2 controverted the contentions of the

petitioner made in the writ petition. According to the learned

Standing Counsel for the 1st respondent, the breach of contract

is committed by the petitioner and not by the respondents. W.P.(C).No.28122 of 2021

Going by the facts of the case, the respondents are entitled to

terminate the contract with the petitioner at their risk and cost,

contended the Standing Counsel for the respondents 1 and 2.

5. I have heard the learned counsel for the petitioner

and the respective Standing Counsel appearing for

respondents 1 and 2.

6. The petitioner states that they have completed 90%

of work. The respondents have disputed the said fact. This is a

question of fact which cannot be gone into by this Court. Going

by the pleadings, it is seen that the petitioner has preferred

Ext.P10 representation before the 1st respondent. To meet the

ends of justice, it will be sufficient that the 1st respondent is

directed to consider Ext.P10 representation submitted by the

petitioner in accordance with law.

Therefore, the writ petition is disposed of directing the 1 st

respondent to consider the grievance of the petitioner as

contained in Ext.P10 representation and take a decision

thereon within a period of one month after granting an W.P.(C).No.28122 of 2021

opportunity of hearing to the petitioner. It is made clear that this

Court has not passed any orders on merits, of the claim by the

petitioner.

Sd/-

N.NAGARESH,

JUDGE rpk W.P.(C).No.28122 of 2021

APPENDIX OF WP(C) 28122/2021

PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE LETTER OF ACCEPTANCE DATED 01.10.2018 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.

Exhibit P2 THE TRUE EXTRACT OF CLAUSES 50 TO 55 OF THE GENERAL CONDITIONS OF THE TENDER. Exhibit P3 THE TRUE COPY OF THE COMMUNICATION DATED 04.02.2020 OF THE PETITIONER TO THE 1ST RESPONDENT.

Exhibit P4 THE TRUE COPY OF THE COMMUNICATION DATED 08.05.2020 OF THE PETITIONER TO THE 1ST RESPONDENT.

Exhibit P5 THE TRUE COPY OF THE MINUTES OF THE MEETING DATED 14.09.2021.

Exhibit P6 THE TRUE COPY OF THE COMMUNICATION DATED 24.02.2021 OF THE PETITIONER TO THE 2ND RESPONDENT.

Exhibit P7 THE TRUE COPY OF THE LETTER NO.PWD004-62-

TIW-PIP-01 DATED 13.07.2021 OF KIIFB TO THE 1ST RESPONDENT.

Exhibit P8 THE TRUE COPY OF THE LETTER NO.KRFB-/PTA/KTM/AE1-19/2021 DATED 03.11.2021 OF THE 1ST RESPONDENT TO THE PETITIONER.

Exhibit P9 THE TRUE COPY OF THE LETTER DATED 11.11.2021 OF THE PETITIONER TO THE 1ST RESPONDENT.

Exhibit P10 THE TRUE COPY OF THE LETTER NO.17/TB/CKROAD/2019 DATED 18.11.2021 OF THE PETITIONER TO THE 1ST RESPONDENT. W.P.(C).No.28122 of 2021

RESPONDENTS' EXHIBITS Exhibit R2(A) THE TRUE COPY OF THE PROCEEDINGS ORDER NO.APR-1/144/2017/KIIFB DATED 18.09.2017