Cresent Construction Company vs Kitco Ltd
2023 Latest Caselaw 6854 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
              THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
   THURSDAY, THE 22ND DAY OF JUNE 2023 / 1ST ASHADHA, 1945
                     WP(C) NO. 22272 OF 2022
PETITIONER:

         CRESENT CONSTRUCTION COMPANY
         TC 39/1295, POOJAPPURA P.O., THIRUVANANTHAPURAM-
         695012, REPRESENTED BY ITS PARTNER, ANEEZ BABU.
         BY ADVS.
         DEEPU THANKAN
         UMMUL FIDA
         LAKSHMI SREEDHAR
         SHAHNAS K.P
         R.RAJANANDINI MENON

RESPONDENTS:

    1    KITCO LTD
         PUTHIYA ROAD, NH BY-PASS ROAD, VENNALA, ERNAKULAM
         - 682028, REPRESENTED BY ITS MANAGING DIRECTOR.
    2    KERALA INFRASTRUCTURE INVESTMENT FUND BOARD
         (KIIFB),
         2ND FLOOR, FELICITY SQUARE BUILDING, STATUE, MG
         ROAD, THIRUVANANTHAPURAM - 695001, REPRESENTED BY
         ITS CHIEF EXECUTIVE OFFICER.
    3    STATE OF KERALA
         REPRESENTED BY ITS SECRETARY, DEPARTMENT OF SPORTS
         & YOUTH AFFAIRS, GOVERNMENT SECRETARIAT,
         THIRUVANANTHAPURAM - 695033.
         BY ADV ABRAHAM P.MEACHINKARA
               ADV. CHANDRASEKHARAN NAIR


OTHER PRESENT:
          GP - BIMAL K. NATH
    THIS WRIT PETITION (CIVIL) HAVING COME UP
FOR ADMISSION ON 22.06.2023, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C). No.22272 of 2022         :2:



                          VIJU ABRAHAM, J.
         --     -- -- -- -- -- -- -- -- -- -- -- --
                      W.P.(C). No.22272 of 2022
         --     -- -- -- -- -- -- -- -- -- -- -- --
                  Dated this the 22nd day of June, 2023

                               JUDGMENT

The above writ petition is filed seeking the following reliefs:

(i) issue a writ of mandamus or any other appropriate writ, order, or direction directing the respondents 1 to 3 to consider Exhibit P-22 and allow the petitioner to resume the work as per the enhanced rates demanded by the petitioner;

(ii) issue a writ of mandamus or any other appropriate writ, order, or direction directing the respondents, if they do not agree to the revised rates as demanded by the petitioner, order for foreclosure for the contract as requested by the petitioner vide Exhibit P- 23 and to pay necessary compensation to the petitioner;

(ii) issue a writ of mandamus or any other appropriate writ, order, or direction directing the respondents to extend the time for the completion of the contract as per the rate claimed by the petitioner in Exhibit P-22; and

(iv) pass such other orders as this Hon'ble Court deems, fit, proper, and necessary in the circumstances of the case.

2. When the matter was taken up for consideration, the

learned Standing Counsel for the 1 st respondent upon instructions

submitted that they have taken a decision to pay all amounts

(Security deposit, Bank Guarantee, Additional Performance

Guarantee) to the petitioner except the retention amount at the

rate of 2.5% from all the bills, which will be returned to the

petitioner after the Defect Liability Period. It is also stated that the

petitioner has to execute a closure agreement with the 1 st

respondent and for which the petitioner shall sign the No Liability

claim and No Due Certificate which KITCO has already forwarded

to the petitioner.

3. The petitioner submits that necessary steps in this regard

will be taken within a period of 10 days from today and that in view

of the decision now taken by the 1 st respondent, no further orders

are required in the writ petition.

The above said submission is recorded and accordingly, the

writ petition is closed. It is made clear that the respondents shall

take all further steps to see that the amounts due to the petitioner

are paid, at any rate within a period of 2 months from the date of

receipt of a copy of this judgment.

Sd/-

VIJU ABRAHAM JUDGE sm/

APPENDIX OF WP(C) 22272/2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTICE INVITING TENDER DATED 06/08/2018.

Exhibit P2 TRUE COPY OF THE LETTER OF AWARD OF WORK ISSUED BY THE FIRST RESPONDENT DATED 26/10/2018.

Exhibit P3 TRUE COPY OF THE COVERING LETTER DATED 08/11/2018 OF THE PETITIONER.

Exhibit P4 TRUE COPY OF THE AGREEMENT DATED 09/11/2018 EXECUTED BETWEEN THE PETITIONER AND THE FIRST RESPONDENT. Exhibit P5 TRUE COPY OF THE COMMUNICATION OF THE PETITIONER TO THE FIRST RESPONDENT DATED 31/01/2019.

Exhibit P6 TRUE COPY OF THE COMMUNICATION DATED 04/03/2019 ISSUED BY THE PETITIONER. Exhibit P7 TRUE COPY OF THE COMMUNICATION OF THE FIRST RESPONDENT DATED 11/04/2019 . Exhibit P8 TRUE COPY OF THE COMMUNICATION DATED 09/10/2019 OF THE FIRST RESPONDENT. Exhibit P9 TRUE COPY OF THE COMMUNICATION OF THE SECOND RESPONDENT TO THE FIRST RESPONDENT DATED 01/10/2019.

Exhibit P10 TRUE COPY OF THE COMMUNICATION DATED 26/10/2019 ISSUED BY THE PETITIONER. Exhibit P11 TRUE COPY OF THE COMMUNICATION OF THE FIRST RESPONDENT DATED 14/12/2019. Exhibit P12 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 17/12/2019.

Exhibit P13 TRUE COPY OF THE COMMUNICATION DATED 20/01/2020 OF THE SECOND RESPONDENT. Exhibit P14 TRUE COPY OF THE COMMUNICATION OF THE FIRST RESPONDENT DATED 20/03/2020. Exhibit P15 TRUE COPY OF THE LETTER OF THE FIRST RESPONDENT DATED 15/07/2020.

Exhibit P16 TRUE COPY OF THE COMMUNICATIONS DATED 21/11/2020.

Exhibit P17 TRUE COPY OF THE LETTER DATED 25/11/2020 OF THE PETITIONER ALONG WITH THE ATTACHMENT.

Exhibit P18 TRUE COPY OF THE LETTER OF THE SECOND RESPONDENT DATED 16/08/2021 ISSUED TO THE FIRST AND THIRD RESPONDENTS.

Exhibit P19 TRUE COPY OF THE LETTER OF THE PETITIONER DATED 30/08/2021.

Exhibit P20 TRUE COPY OF THE LETTER OF THE FIRST RESPONDENT DATED 15/09/2021.

Exhibit P21 TRUE COPY OF THE LETTER OF THE PETITIONER DATED 12/10/2021.

Exhibit P22 TRUE COPY OF THE LETTER DATED 30/11/2021 AND THE ATTACHMENTS STATED THEREIN. Exhibit P23 TRUE COPY OF THE NOTICE OF TERMINATION OF CONTRACT DATED 04/03/2022.

Exhibit P-24 A TRUE COPY OF THE COMMUNICATION DATED 17/11/2022 RESPONDENT EXHIBITS Exhibit R1(E) True Copy of the IA2-1696-2018-KIIFB Colley DATED 18-11-2019 - Procedure for revoking suspension and True copy of Letter No. SYA001-08-TIW-INSP-01 dated 22.01.2020 Exhibit R1(B) True copy of the relevant pages of the drawing issue register Exhibit R1(C) True copy of the Work Hindrance Sheet Exhibit R1(D) True copy of the report dated 3-5-2019 Exhibit R1(G) True copy of the relevant pages of the contract document Exhibit R1(F) True copy of the Supplementary agreement dated 19-11-2022 for extension of time Exhibit R1(H) True Copy of the minutes of the meeting dated 18.11.2021 Exhibit R1(A) True copy of the Relevant pages of the Contract Document Exhibit R1(J) True copy of the Letter No. 3871:DP-

888:G:R2022 dated 17-11- 2022 regarding foreclosure of present agreement addressed to the Petitioner Exhibit R1(I) True copy of the minutes of the meeting dated 07.06.2022