T.C.Kurian vs Greater Cochin Development Authority
2024 Latest Caselaw 5888 Ker

Citation : 2024 Latest Caselaw 5888 Ker
Judgement Date : 23 February, 2024

Kerala High Court

T.C.Kurian vs Greater Cochin Development Authority on 23 February, 2024

Author: P Gopinath

Bench: P Gopinath

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
    FRIDAY, THE 23RD DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945
                        WP(C) NO. 19940 OF 2021
PETITIONER/S:

          T.C.KURIAN, AGED 66 YEARS
          S/O. C.T CHANDY, CHERUKUZHIYIL HOUSE,
          MULANTHURUTHY P.O, ERNAKULAM 682 314
          BY ADVS.
          R.SANJITH
          C.S.SINDHU KRISHNAH
          ANOOP GEORGE
          NIYA BENNY


RESPONDENT/S:

    1     GREATER COCHIN DEVELOPMENT AUTHORITY
          REPRESENTED BY ITS SECRETARY,
           P.B NO. 2012, KOCHI 682 020
    2     SUPERINTENDING ENGINEER,
          GREATER COCHIN DEVELOPMENT AUTHORITY,
          P.B NO. 2012, KOCHI 682 020
          BY ADV VIPIN P.VARGHESE


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 19940 OF 2021             2



                                JUDGMENT

Petitioner was awarded tender for renovation of plumbing

lines and toilet blocks at the Jawaharlal Nehru International

Stadium, Kaloor in connection with FIFA under -17 world cup

matches. In terms of the award, the petitioner was required to

deposit a performance guarantee of Rs.8,43,300/- (Rupees Eight

lakhs forty three thousand and three hundred only), which the

petitioner complied with by providing Ext.P2 bank guarantee for

Rs.4 lakhs and by depositing a sum of Rs.4,43,000/- in the

treasury, in favour of the 1st respondent. According to the

petitioner, the petitioner completed the work on time. It is the

case of the petitioner that the defect liability period stipulated is

three years from 26.06.2017 (i.e, the date of completion of the

work) and thus defect liability period was over by 26.06.2020.

On receipt of Ext.P5 letter from the Federal Bank ,which had

issued Ext.P2 bank guarantee, the petitioner preferred a

representation dated 30.09.2020 to the 2nd respondent requesting

to release/return the security deposit receipt and the bank

guarantee. Ext.P6 is a copy of the letter issued by the petitioner

to the 2nd respondent. According to the petitioner, to his utter

shock and surprise, he was thereafter issued with Ext.P7 letter,

stating that a leak had been noticed in shop room No.1106 which

is situated within the stadium and informing the petitioner that it

has to be ascertained as to whether the same is on account of any

defect in the work completed by the petitioner. Though the

petitioner has put up a contention that he has no liability after

the defect liability period and issued Ext.P8 to the 2 nd respondent,

no action has been taken by the 2nd respondent and therefore, the

petitioner has approached this Court, seeking the following

reliefs:-

''(i) To issue a writ of mandamus and command respondents to return / release the performance guarantee of Rs.8,43,000/- given by the petitioner by way of Exhibit P2 and treasury deposit, pursuant to Exhibit P1 award of tender, along with interest @ 12% from the date it has fallen due i.e, 27/06/2020 to the actual date of realization, with a time frame to be fixed by this Honourable Court;

(ii) To issue a writ of mandamus and command the respondents to consider and pass orders on Exhibit P8 representation preferred by the petitioner, after affording an opportunity of hearing to him, with a time frame to be fixed by this Honourable Court;

(iii) To pass any other and such other orders as this Honourable Court deem fit to pass in the nature and circumstance of the case;

(iv) To award the cost of this proceedings to the petitioner.''

2. Learned counsel appearing for the respondents would

refer to the counter affidavit filed in this Court. It is submitted

that, within the defect liability period, the 2 nd respondent had

received complaint from the allottee of shop room No.1106 that

there has been a leak. It is submitted that since the said

complaint was within the defect liability period and since it was

prima facie felt that the leak had occurred on account of a defect

in the work completed by the petitioner, Ext.P7 communication

was issued to the petitioner. It is submitted that the petitioner

had also been present at the time of inspection and had been

satisfied that the leak had occurred on account of the defect in

the work carried out by the petitioner. It is submitted that the

petitioner had also deployed a plumber to carry out repairs. It is

submitted that since the complaint could not be rectified by the

petitioner, the work had to be attended to by another contractor

engaged by the respondents. It is submitted that the said

contractor has not yet submitted his bills and it is only thereafter

that the liability of the petitioner can be ascertained.

3. Having heard the learned counsel appearing for the

petitioner and the learned counsel appearing for the

respondents, I am of the opinion that the petitioner is entitled to

succeed. There is no dispute that the petitioner completed the

work contemplated by Ext.P1 on 26.06.2017 and the defect

liability period expired on 26.06.2020. I have gone through the

original of the files which has been placed before this Court and

though it appears that a complaint had indeed been received by

the respondents from the allottee of room No.1106 stating that

there was a leak, it is clear that no communication was issued to

the petitioner to rectify the same within the defect liability

period. It is only after the petitioner requested for return of the

bank guarantee and the treasury deposit receipt, that the

respondents had issued Ext.P7 to the petitioner. Since the

petitioner had not been called upon to rectify any defect within

the defect liability period, the respondents cannot insist that the

petitioner should carry out repairs at his cost.

Therefore, this writ petition is allowed and the respondents

are directed to return the original of Ext.P2 bank guarantee and

the treasury deposit receipt submitted by the petitioner in terms

of the conditions specified in Ext.P1, without undue delay and at

any rate, within a period of two months from the date of receipt

of a certified copy of this judgment.

Sd/-

GOPINATH P. JUDGE ajt

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE LETTER BEARING NO.

E2/2674/2016/GCDA DATED 30-05-2016 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

Exhibit P2 TRUE COPY OF THE BANK GUARANTEE BEARING NO.

IBG 69491 DATED 18-06-2016 Exhibit P3 TRUE COPY OF THE COMPLETION CERTIFICATE BEARING NO. 2558/E2/2016/GCDA DATED 20-03-

Exhibit P4 TRUE COPY OF THE CONTRACTORS WORK REGISTER Exhibit P5 TRUE COPY OF THE LETTER DATED 20-08-2020 ISSUED BY THE FEDERAL BANK TO THE PETITIONER Exhibit P6 TRUE COPY OF THE REPRESENTATION DATED 30-09- 2020 PREFERRED BY THE PETITIONER TO THE 2ND RESPONDENT ALONG WITH THE POSTAL RECEIPT.

Exhibit P7 TRUE COPY OF THE LETTER DATED 27-10-2020 BEARING NO. 2674/E2/2016/GCDA ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

Exhibit P8 TRUE COPY OF THE REPRESENTATION DATED 15-04- 2021 PREFERRED BY THE PETITIONER ALONG WITH POSTAL RECEIPT.