Kerala High Court
The Superintending Engiineer vs Top Constructions on 25 October, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 25TH DAY OF OCTOBER 2023 / 3RD KARTHIKA,
1945
WA NO. 1523 OF 2016
AGAINST THE ORDER/JUDGMENT WPC 5694/2006 OF HIGH COURT OF
KERALA
APPELLANT/S:
1 TOP CONSTRUCTIONS
REPRESENTED BY MANAGING PARTNER, T.OOMMEN
PANICKER, TOPS MANOR, PANAVELI P.O.,
KOTTARAKKARA.
2 OOMMEN THOMAS PANICKER ,
AGED 42 YEARS.S/O T. OOMMEN PANICKER, RESIDING
AT TOPS MANOR, MANAVELI P.O., KOTTARAKKARA
=691544. *THE ADDL.APPELLANT 2 IS IMPLEADED AS
PER ORDER DATED 23.2.2023 IN I.A.1/2023 IN WA
1523/2016.
BY ADV SRI.S.ABDUL RAZZAK
RESPONDENT/S:
1 THE SUPERINTENDING ENGINEER
PWD ROADS & BRIDGES, SOUTH CIRCLE,
THIRUVANANTHAPURAM, PIN-695 001.
2 THE CHIEF ENGINEER
PWD ROADS & BRIDGES, THIRUVANANTHAPURAM, PIN-
695 001.
3 GOVERNMENT OF KERALA
REPRESENTED BY ITS SECRETARY, PWD, SECRETARIAT,
THIRUVANANTHAPURAM, PIN- 695 001.
OTHER PRESENT:
SPL.GP.K.V.MANOJKUMAR
WA Nos.1523 & 2270 of 2016
-2-
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
25.10.2023, ALONG WITH WA.2270/2016, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WA Nos.1523 & 2270 of 2016
-3-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 25TH DAY OF OCTOBER 2023 / 3RD KARTHIKA,
1945
WA NO. 2270 OF 2016
AGAINST THE ORDER/JUDGMENT WPC 5694/2006 OF HIGH COURT OF
KERALA
APPELLANT/S:
1 THE SUPERINTENDING ENGIINEER
PWD ROADS & BRIDGES,SOUTH
CIRCLE,THIRUVANANTHAPURAM.
2 THE CHIEF ENGINEER
PUBLIC WORKS(R&B),THIRUVANANTHAPURAM.
3 STATE OF KERALA
REPRESENTED BY ITS
SECRETARY,P.W.D,SECRETARIAT,THIRUVANANTHAPURAM.
BY ADV GOVERNMENT PLEADER
RESPONDENT/S:
TOP CONSTRUCTIONS
MANAGING PARTNER T.OOMMEN PANICKER,TOPS
MANOR,PANAVELI.P.O,KOTTARAKKARA.
BY ADV SRI.S.ABDUL RAZZAK (B/O)
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
25.10.2023, ALONG WITH WA.1523/2016, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WA Nos.1523 & 2270 of 2016
-4-
JUDGMENT
Dated this the 25th day of October, 2023
A.J.Desai, C.J.
The challenge in these two appeals is against
the judgment dated 29.03.2016 in W.P.(C) No.5694
of 2006, by which the learned Single Judge has
allowed the writ petition in part in favour of
the appellant in W.A No.2270 of 2016 by issuing
the following directions;
"(i) The impugned Exts.P-4 and P-6
proceedings to the extent it impose risk
and cost on the petitioner and to the
extent it order forfeiture of the security
and retention amounts of the petitioner
will stand quashed.
(ii) The aforestated amount of
Rs.60,50,847/- (Rupees sixty lakhs, fifty
thousand eight hundred and forty seven
only) shall be paid by the respondents to
the petitioner within four months from the
date of production of a certified copy of
this judgment.
(iii) The respondents will be at
WA Nos.1523 & 2270 of 2016
liberty to file a suit before the
competent civil court concerned for
recovery of any amounts allegedly due to
them from the petitioner, more
particularly, the amount of Rs.25,61,514/-
referred to as Serial No.5 of the
aforestated alleged liabilities. If such a
suit is filed, then the Civil Court
concerned will adjudicate and decide the
same independently and untrammelled by any
of the observations made by this Court in
this judgment.
(iv) The question of interest
payable to the petitioner is left open to
be decided in appropriate civil court
proceedings that may be initiated by the
petitioner in that regard and the period
from the date of institution of this Writ
Petition (24.2.2006) upto the date of
receipt of the certified copy of this
judgment will stand excluded in terms of
the provisions contained in Sec. 14 of the
Limitation Act for the purpose of the
institution of such suit."
2. After hearing the matter at length and
scrutinising the documents, we suggested certain
terms and conditions to the Advocates appearing
for the respective parties, ie, on behalf of the
WA Nos.1523 & 2270 of 2016
State of Kerala and the original
petitioner/contractor, taking into account the
fact that the writ petition is of the year 2006
and these writ appeals are pending since 2016.
The Advocates having agreed to the terms and
conditions suggested, we modify the judgment
passed by the learned Single Judge and dispose of
the appeals with the following directions;
(i) Out of the amount of Rs.60,50,847/-
(Rupees sixty lakhs fifty thousand eight hundred
and forty seven only) in dispute, the appellant
in WA No.2270 of 2016, ie, the Superintending
Engineer, PWD, shall deposit an amount of
Rs.25,61,514/- (Rupees twenty five lakhs sixty
one thousand five hundred and fourteen only) in
favour of the appellant in W.A.No.1523 of 2016 in
a nationalised bank for a period of three years.
(ii) The amount which the State of Kerala
claims towards liability incurred for repairing
of the road, the State may file a suit for
WA Nos.1523 & 2270 of 2016
recovery of money before the appropriate court
within a period of two months.
(iii) The original petitioner/appellant in
WA No.1523 of 2016 may also file a suit for
recovery of an amount of Rs.11,21,702/- (Rupees
eleven lakh twenty one thousand seven hundred and
two only), which is sought to be deducted by the
Superintending Engineer under the head; risk and
cost of the re-arrangement of the balance work.
(iv) The rest of the amount, [Rs.60,50,847-
36,83,216 (25,61,514 + 11,21,702)] ie, an amount
of Rs.23,67,631/- (Rupees twenty three lakhs
sixty seven thousand six hundred and thirty one
only) shall be paid to the appellant/original
petitioner in W.A.No.1523 of 2016 by the
Superintending Engineer within a period of six
weeks from today.
(v) The original petitioner can also file a
suit claiming interest for belated payment of the
amounts due under the bills submitted.
WA Nos.1523 & 2270 of 2016
(vi) The concerned civil court shall
decide the suit on its merits, after examining
the documents as well as witnesses if any,
strictly in accordance with law untrammeled and
uninfluenced by the observations made by the
learned Single Judge in W.P.(C) No.5694 of 2006.
(vii) We also direct the court below to
expedite the hearing of the suit and dispose of
the same within a period of one year from the
date of submission of pleadings by the parties.
(viii) The court or the parties shall not
raise any objection with regard to the limitation
in filing the suits if the same are filed within
a period of two months from today.
(ix) It is hereby made clear that the above
directions are issued considering the peculiar
facts and circumstances of the case and the
suggestions made by the court being accepted by
the parties. The same shall not be treated as
precedent, since the decision is not rendered
WA Nos.1523 & 2270 of 2016
based on the interpretation of any of the terms
and conditions of the contract entered into
between the parties.
sd/-
A.J.Desai
Chief Justice
sd/-
V.G.Arun
Judge
Scl/
WA Nos.1523 & 2270 of 2016
APPENDIX OF WA 2270/2016
PETITIONER ANNEXURES
Annexure -1 TRUE COPY OF THE RELEVANT PAGES OF
"FIRST AND FINAL BILL" IN RESPECT OF
WORK NAMELY "URGENT REPAIR WORK TO
PARIPPALLY - MADATHARA ROAD (CH:29/00
TO 33/09)"
Annexure -2 TRUE COPY OF THE RELEVANT PAGES OF
FINAL BILL IN RESPECT OF WORK NAMELY
"URGENT REPAIR WORK TO PARIPPALLY -
MADATHARA ROAD (CH:21/400 TO 29/000)"
Annexure -3 TRUE COPY OF THE RELEVANT PAGES OF "CC
FIRST AND FINAL BILL" IN RESPECT OF
WORK NAMELY "URGENT REPAIR WORK TO
PARIPPALLY - MADATHARA ROAD (CH:16/400
TO 21/400)"
WA Nos.1523 & 2270 of 2016
APPENDIX OF WA 1523/2016
RESPONDENT ANNEXURES
Annexure P1 TRUE PHOTOCOPY OF PETITIONER'S
FATHER'S (T. OOMMAN PANICKER) DEATH
CERTIFICATE DATED 6.12.2022 ISSUED
FROM THIRUVANANTHAPURAM CORPORATION
