C.P.Sangeeth vs The Registrar, Sree ...
2023 Latest Caselaw 1707 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                  THE HONOURABLE MR.JUSTICE V.G.ARUN
    WEDNESDAY, THE 1ST DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944
                       WP(C) NO. 23856 OF 2022
PETITIONER:

          C.P.SANGEETH,
          AGED 47 YEARS
          PROPRIETOR, POWERLINE CONSULTANTS, IDA 1/248, MES SOUTH
          VAZHAKULAM, ALUVA, ERNAKULAM DISTRICT, PIN-683112.

          BY ADVS.
          R.MURALEEDHARAN
          K.P.JOSE PIOUS



RESPONDENTS:

    1     THE REGISTRAR, SREE SANKARACHARYA UNIVERSITY OF
          SANSKRIT, KALADY,
          KALADY P.O., ERNAKULAM DISTRICT,PIN- 683574.

    2     THE VICE CHANCELLOR, SREE SANKARACHARYA UNIVERSITY OF
          SANSKRIT,
          KALADY, KALADY P.O., ERNAKULAM DISTRICT, PIN- 683574.

          BY ADV SHRI.DINESH MATHEW J.MURICKEN, SC, SREE
          SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.11.2022, THE COURT ON 01.02.2023 DELIVERED THE FOLLOWING:
 W.P.(C). 23856/2022
                                      2




                               JUDGMENT

Dated this the 1st day of January, 2023

The Sree Sankaracharya University of Sanskrit invited

online bids for purchase and installation of 300 KVA diesel

generator set and suitable load sharing panel from registered

bidders of PWD/CPWD/MES etc. Out of the three bids, the

petitioner's bid was the lowest and his quote was 11.13% less

than the actual estimated amount. The petitioner was

awarded the contract and during the course of the work, he

also entrusted with certain additional works also. While

executing the work, the petitioner submitted running bills for

the supply and service of each item. As against the total bill

of Rs.52,87,385.30 with GST @ 18%, an amount of

Rs.47,55,990/- alone was paid. Therefore, the petitioner

requested to release the balance amount of Rs.4,94,486/-

due towards GST payable, after setting of TDS collected @

2%, and the amount deducted towards workers' welfare fund.

Thereupon, a further amount of Rs.1,06,371/- was released by W.P.(C). 23856/2022

the respondent. Again the petitioner submitted a request

seeking release of the balance amount and the first

respondent rejected the request by Ext. P13. In Ext. P13 the

reason stated is in the University there is no practice of

paying GST on service contracts and for supply of the

generator set, the GST had been paid. Aggrieved by the

refusal to release the amount payable towards GST, this

writ petition is filed seeking the following reliefs;

(a) issue a writ of mandamus or any other appropriate writ or order directing the 1st and 2nd respondents to pay the balance outstanding in the Bills submitted by the petitoner forthwith;

(b) declare that Sree Sankaracharya University of Sanskrit, Kalady is liable for payment of applicable Goods and Services Tax for the Goods or Services availed by them as per Ext..P1, P4 and P5 proceedings and as per the Invoices issued by the petitioner.

2. Adv. R. Muraleedharan, learned counsel for the

petitioner contended that, Ext. P3 estimated cost declared by

the first respondent was without taxes. Nowhere in the notice

inviting quotations for the supply of goods and services it was

specified that the bids should be inclusive of all applicable

taxes. As per Section 9 of the Goods and Services Tax Act W.P.(C). 23856/2022

tax is leviable on all intra-State supplies of goods or services

or both, except alcoholic liquor. As such the University is

statutorily bound to pay the GST remitted by the petitioner.

Moreover, having paid the full amount for the supply of

generator set including GST @ 18% the University is estopped

from refusing payment of applicable GST for the services.

3. Adv. Dinesh Mathew. J. Muricken, learned Standing

Counsel for the University submitted that, in Ext.R1(b) tender

document it is specifically stated that the bidders should

quote the amount including all taxes. In this regard, attention

is drawn to Clause 11(f) of the General Conditions of Tender,

which stipulates that all rates quoted should be inclusive of

sales tax also. It is contended that, after participating in the

tender and securing the contract, petitioner cannot claim the

GST amount in addition to the amount quoted by him. Had

the petitioner specified that his quote was without GST, some

other bidder, whose quote was inclusive of GST, would have

been awarded the contract. For supply of the diesel

generator payment was made inclusive of 18% GST since

generator falls under the category of supply of goods. For that W.P.(C). 23856/2022

reason, the University is bound to pay GST on other electrical

works included in the contract. The petitioner was fully aware

of this fact and had accepted the second and final part

payments without GST. Being so, this writ petition claiming

GST can be perceived only as an experimental litigation.

4. In reply, counsel for the petitioner contended that the

tender schedule issued by the University did not contain

provision for including GST and as per Clause 5 of the General

Conditions, the bidders are prevented from correcting the

entries in the tender schedule. As such, the petitioner could

only submit his tender schedule without including GST.

5. As rightly pointed out by the Standing Counsel,

Clause 11(f) of the General Conditions of Tender specifically

stipulate that all rates quoted should be inclusive of sales tax

also. After introduction of the GST regime, the term sales tax

has to be understood as goods and service tax. Thus, the

tender document provided for inclusion of goods and service

tax. Moreover, payment towards the second and final part

were accepted by the petitioner without GST. Any doubt

regarding inclusion of GST or otherwise, ought to have been W.P.(C). 23856/2022

cleared before participating in the bid. Instead, petitioner

chose to participate and is questioning the terms in the tender

document, after securing the contract and executing the work.

It is settled law that after participating in a tender process,

bidder cannot turn around and challenge the conditions in the

bid document. Even otherwise, the factual disputes involved

cannot be decided in a writ petition under Article 226.

For the aforementioned reasons, this writ petition is

dismissed.

Sd/-

V.G.ARUN JUDGE

sb W.P.(C). 23856/2022

APPENDIX OF WP(C) 23856/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT. DATED 19.01.2018.

Exhibit P2 TRUE COPY OF THE COMMUNICATION GIVEN TO THE PETITIONER BY THE 1STS RESPONDENT DATED 19.01.2018

Exhibit P3 TRUE COPY OF THE STATEMENT OF PARTICULARS OF WORKS TO BE DONE AND ITS ESTIMATED COST, ISSUED BY THE 1ST RESPONDENT.

Exhibit P4 TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 01.06.2018, ENTRUSTING ADDITIONAL WORKS.

Exhibit P5 TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 04.02.2019, ENTRUSTING ADDITIONAL WORKS.

Exhibit P6 TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT, DATED 09.08.2018.

Exhibit P7 TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT, DATED 18.09.2019.

Exhibit P8 TRUE COPY OF THE RELEVANT PAGES OF E-PASS BOOKS EVIDENCING PAYMENTS.

Exhibit P9 TRUE COPY OF THE REQUEST MADE BY THE PETITIONER FOR PAYMENT OF BALANCE OUTSTANDING, DATED 19.02.2019.

Exhibit P10 TRUE COPY OF THE REQUEST MADE BY THE PETITIONER FOR PAYMENT OF BALANCE OUTSTANDING DATED 19.09.2019.

Exhibit P11 TRUE COPY OF THE REMINDER MADE BY THE PETITIONER FOR PAYMENT OF BALANCE OUTSTANDING DATED 18.10.2019.

W.P.(C). 23856/2022

Exhibit P12 TRUE COPY OF THE REQUEST MADE BY THE PETITIONER FOR PAYMENT OF BALANCE OUTSTANDING DATED 30.11.2019.

Exhibit P13 TRUE COPY OF THE COMMUNICATION GIVEN BY THE 1ST RESPONDENT DECLINING PAYMENT DATED 23.03.2020.

Exhibit P14 TRUE COPY OF THE REQUEST MADE BY THE PETITIONER FOR PAYMENT OF BALANCE OUTSTANDING DATED 02.02.2022.

RESPONDENT EXHIBITS

Exhibit R1(a) True copy of e-tender advertisement dated 03.11.2017 inviting tenders for installing 300KVA diesel generator set and load sharing panel

Exhibit R1(b) True copy of tender document for the work of "installation of 300KVA diesel generator set and load sharing panel"

Exhibit R1(c) True copy of contract entered between the petitioner and 1st respondent University dated 06.03.2018

Exhibit R1(d) True copy of AOC summary issued to the petitioner dated 18.04.2018

Exhibit R1(e) True copy of order No.Engg/13829/SSUS/2015 dated 31.03.2018 issued by the 1st respondent

Exhibit R1(f) True copy of order No. Engg/13829/SSUS/2015 dated 09.08.2018 issued by the 1st respondent

PETITIONER EXHIBITS

Exhibit P15 TRUE COPY OF THE ORDER QUOTATION SUBMITTED BY THE PETITIONER FOR ONE OF THE SUPPLEMENTARY WORK, 22/12/2018.

Exhibit P16 TRUE COPY OF THE TAX INVOICE RAISED BY THE PETITIONER DATED 04/02/2019.