Kerala High Court
Tuaman Engineering Limited vs The Fertilizers And Chemicals ... on 9 September, 2025
Author: N.Nagaresh
Bench: N.Nagaresh
2025:KER:66360
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 9TH DAY OF SEPTEMBER 2025 / 18TH BHADRA, 1947
WP(C) NO. 28771 OF 2025
PETITIONER
TUAMAN ENGINEERING LIMITED
REGISTERED OFFICE AT FORTUNA TOWERS,
8TH FLOOR, 23A, NETAJI SUBHAS ROAD,
SUIT-16, KOLKATA, PIN - 700001
REPRESENTED BY ITS RESIDENT CONSTRUCTION MANAGER:
KURIAKOSE V.M,
BY ADVS.
SRI.NITHIN GEORGE
SRI.M.V.HARIDAS MENON
SRI.VIZZY GEORGE KOKKAT
SRI.RITHU JOSE
SRI.M.R.HARIRAJ (SR.)
RESPONDENTS:
1 THE FERTILIZERS AND CHEMICALS TRAVANCORE LIMITED (FACT)
ELOOR, UDYOGAMANDAL, KOCHI.,
KERALA STATE, PIN - 683501
REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR.
2 THE FACT ENGINEERING AND DESIGN ORGANIZATION (FEDO)
UDYOGAMANDAL, KOCHI,
KERALA STATE. PIN - 683501
REPRESENTED BY THE RESIDENT CONSTRUCTION MANAGER.
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W.P.(C) No.28771/2025
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BY ADVS.
SHRI.M.GOPIKRISHNAN NAMBIAR
SRI.K.JOHN MATHAI
SRI.JOSON MANAVALAN
SRI.KURYAN THOMAS
SRI.PAULOSE C. ABRAHAM
SRI.RAJA KANNAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 27.08.2025 AND THE COURT ON 09.09.2025
DELIVERED THE FOLLOWING:
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W.P.(C) No.28771/2025
:3:
N. NAGARESH, J.
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W.P.(C) No.28771 of 2025
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Dated this the 9th day of September, 2025
JUDGMENT
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The petitioner, which is a construction company,
seeks to quash Ext.47 termination notice and to direct the
respondents not to give effect and/or further effect to the
impugned Ext.P47 termination notice.
2. The petitioner submitted tender for the work of
construction of Additional Phosphoric Acid Storage Tanks at
Q10 Birth, Willington Island, Cochin for the 1st respondent-
FACT Limited. The petitioner was issued Ext.P1 work order
dated 12.02.2021 for an amount of ₹25,09,55,440/-. The
petitioner submitted security deposit bank guarantee of
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₹2,50,95,944/- on 26.02.2021. Agreement was executed on
11.03.2021.
3. The petitioner states that "Work to Proceed" notice
was issued to the petitioner on 09.04.2021. The duration of
the contract was ten months and work had to be completed by
08.02.2022. The worksite was not hindrance free. There
were underground obstructions like old PCC structure below
the finished ground level. The 1st respondent did not appraise
the petitioner of such obstacles before entering the contract
though the 1st respondent had knowledge of the extra work
need to be carried out.
4. There was inordinate delay to release of work
fronts. Work front around the mechanical workshop was
handed over only in January, 2023 after the stipulated
deadline. Work front for TRI, BTI, structural columns and
trestle bridge was released only on 14.02.2024, which was 36
months after the period of contract. Portion of the dyke wall,
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pump foundation, sump, rain water pit and pipes sleeper
foundations works were kept under hold during this period.
20 piles out of the 65 piles were kept under hold. In view of
such restrictions, there was no enough area for working and
storage of materials.
5. When the Corona pandemic broke, supply of
industrial oxygen was stopped from 22.04.2021. The
petitioner therefore could not proceed with the work. The
agreement provided for mechanical use of piling works using
DMC tractor method. The respondents, however, insisted for
manual work for lowering the pipes using tripods and chisels.
6. The petitioner issued RA Bill No.1 on 09.06.2021.
The bill was not honoured till 05.08.2021. The 1st respondent
chose to hold 20% retention amount though the petitioner had
provided bank guarantee for 10%. In spite of sending Ext.P7
letter dated 11.08.2021, the respondents did not release
payments. In the meanwhile, the petitioner sent letter dated
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16.04.2022 for extension of time to complete the work. The
respondents extended the time by five months from the work
restart date 11.04.2022 as per Ext.P11. The 1st respondent
further extended the time till 10.12.2022 as per Ext.P13.
However, the respondents continued to withhold the bill
amounts.
7. Finally, the petitioner sent Ext.P20 representation
to invoke Clause 16 of the special conditions of contract
providing for arbitration and short for amicable settlement as a
prelude to reference of the dispute to arbitration. Thereupon,
the petitioner and the respondents came to a set of terms
recorded as per Ext.P22 minutes. On 26.11.2024, the
respondents issued Ext.P29 letter insisting for revalidation of
the bank guarantee and threatened to terminate the contract
at the risk and cost of the petitioner.
8. On 21.01.2025, the respondents issued Ext.P35
letter by way of show-cause notice. The petitioner gave
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Ext.P36 explanation. The petitioner was called upon to attend
a meeting on 03.03.2025. By Ext.P40, the respondents asked
the petitioner to provide the tentative date for completion,
inspection and handover the PA tanks at the site.
9. Ultimately, the petitioner filed an arbitration petition
being AR No.30/2025 before this Court seeking appointment
of Arbitrator. This Court, by Ext.P44, appointed Hon'ble Mr.
K.M. Joseph (Former Judge, Supreme Court) as sole
Arbitrator. The petitioner filed Section 7 application before the
Arbitrator seeking appropriate orders against coercive steps
by the respondents including encashment of bank guarantee.
On 07.07.2025, the Arbitrator dismissed the application. On
10.07.2025, the respondents terminated the contract as per
Ext.P47. The petitioner fears that respondents having
terminated the contract will take steps to illegally confiscate
the materials and machinery of the petitioner. The petitioner
apprehends that he will be deprived of huge amount of money
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due to the petitioner. Hence, the petitioner seeks to quash
Ext.P47 termination notice.
10. The respondent filed counter affidavit. A writ
petition is not maintainable if instrumentality of State has
issued arbitrary orders. The petitioner filed application before
the Arbitrator seeking to direct the respondent not to invoke
bank guarantee. The application was dismissed. The said
order was challenged before the commercial court,
Ernakulam. The commercial court did not grant interlocutory
order on invocation of bank guarantee. The petitioner filed a
civil suit before the Civil Judge, Fourth Court, Alipore for
permanent injunction restraining HDFC Bank from encashing
bank guarantee. The said court did not grant interim
injunction. In appeal, the District Judge, Alipore passed ex-
parte interim injunction order. The petitioner has approached
this Court without clean hands. The writ petition is therefore
liable to be dismissed.
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11. I have heard the learned counsel for the petitioner
and the learned Standing Counsel appearing for the
respondents.
12. The petitioner was awarded with the work of
construction of Additional Phosphoric Acid Storage Tanks at
Q10 Birth, Willington Island, Cochin for the 1st respondent for
an amount of ₹25,09,55,440/- as per Ext.P1. Work to
Proceed notice was issued to the petitioner on 09.04.2021.
The work had to be completed by 08.02.2022.
13. The petitioner states that the site handed over to
the petitioner was not hindrance free. Large quantity of work
which was not envisaged by the agreement had to be carried
out in order to start the work. The respondents were aware of
this issue. The shortage of industrial oxygen due to Covid-19
pandemic also affected the progress of the work. The
respondents deliberately delayed release of Bill payments,
contends the petitioner. Huge amounts were illegally withheld
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as retention amount.
14. The petitioner would state that knowing the
difficulties faced in completion of work, the respondents had
extended the time for completion of work till 10.12.2022. The
work could not be carried out by the petitioner within that time.
There were subsequent agreements between the parties
regarding completion of work. The respondents, however,
terminated the contract on 10.07.2025 as per Ext.P47.
15. Ext.P47 would indicate that even after four years of
signing the agreement, the petitioner has completed only 40%
of the work. The time for completion of work was provisionally
extended upto 10.12.2022 and later it was further extended
upto 28.03.2025. In spite of that, the petitioner has not
completed the work.
16. During this time, the petitioner had invoked remedy
under the Arbitration and Conciliation Act and this Court has
appointed Justice K.M. Joseph (Former Judge, Supreme
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Court of India) as Arbitrator. The disputes leading to the
issuance of Ext.P47 termination notice are subject of
arbitration now pending. The issues raised by the petitioner
involve disputed questions of fact which cannot be gone into
in writ proceedings.
In the afore circumstances, the writ petition is
dismissed leaving liberty to the petitioner to prosecute his
claims in the arbitration proceedings.
Sd/-
N. NAGARESH, JUDGE
aks/01.09.2025
2025:KER:66360
APPENDIX OF WP(C) 28771/2025
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE WORK ORDER NO.
4800014487 DATED 12.02.2021 ISSUED BY
THE 1ST RESPONDENT TO THE PETITIONER
Exhibit P2 TRUE COPY OF THE MINUTES OF THE
MEETING DATED 27.05.2021
Exhibit P3 TRUE COPY OF THE MINUTES OF THE
MEETING DATED 25.06.2021.
Exhibit P4 TRUE COPY OF THE RA BILL NO.1 DATED
09.06.2021
Exhibit P5 TRUE COPY OF THE LETTER DATED
15.07.2021 ISSUED BY THE PETITIONER TO
THE 2ND RESPONDENT
Exhibit P6 TRUE COPY OF THE LETTER DATED
09.08.2021 ISSUED BY THE PETITIONER TO
THE 2ND RESPONDENT
Exhibit P7 TRUE COPY OF THE LETTER DATED
11.08.2021 ISSUED BY THE PETITIONER TO
THE 2ND RESPONDENT
Exhibit P8 TRUE COPY OF THE LETTER DATED
24.08.2021 ISSUED BY THE PETITIONER TO
THE 2ND RESPONDENT
Exhibit P9 TRUE COPY OF THE EMAIL DATED
16.12.2021 ISSUED BY THE 2ND
RESPONDENT TO THE PETITIONER
Exhibit P10 TRUE COPY OF THE LETTER DATED
17.12.2021 ISSUED BY THE PETITIONER TO
THE 2ND RESPONDENT
Exhibit P11 TRUE COPY OF THE LETTER DATED
26.04.2022 ISSUED BY THE RESPONDENT TO
THE PETITIONER
Exhibit P12 TRUE COPY OF THE EMAIL DATED
13.08.2022 ISSUED BY THE 2ND
RESPONDENT TO THE PETITIONER
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Exhibit P13 TRUE COPY OF THE EMAIL DATED
04.11.2022 ISSUED BY THE 2ND
RESPONDENT TO THE PETITIONER
Exhibit P14 TRUE COPY OF THE LETTER DATED
24.01.2023
Exhibit P15 TRUE COPY OF THE LETTER DATED
12.05.2023 ISSUED BY THE PETITIONER TO
THE RESPONDENTS
Exhibit P16 TRUE COPY OF THE LETTER DATED 17.05.
2023 ISSUED BY THE PETITIONER TO THE
RESPONDENT
Exhibit P17 TRUE COPY OF THE LETTER DATED
14.06.2023 ISSUED BY THE PETITIONER TO
THE RESPONDENTS
Exhibit P18 TRUE COPY OF THE LETTER DATED
27.07.2024 ISSUED BY THE PETITIONER TO
THE RESPONDENTS
Exhibit P19 TRUE COPY OF THE LETTER DATED
13.05.2024 ISSUED BY THE PETITIONER TO
THE RESPONDENTS
Exhibit P20 TRUE COPY OF THE LETTER DATED
13.05.2024 ISSUED BY THE PETITIONER
AND ADDRESSED TO THE CHAIRMAN AND
MANAGING DIRECTOR OF THE FIRST
RESPONDENT WITH COPY TO THE SECOND
RESPONDENT
Exhibit P21 TRUE COPY OF THE LAWYERS NOTICE DATED
03.09.2024
Exhibit P22 TRUE COPY OF THE MINUTES OF THE
MEETING DATED 24.09.2024
Exhibit P23 TRUE COPY OF THE LETTER DATED
08.11.2024 ISSUED BY THE PETITIONER TO
THE RCM OF THE SECOND RESPONDENT
Exhibit P24 TRUE COPY OF THE LETTER DATED
11.11.2024 ISSUED BY THE 1ST
RESPONDENT TO THE PETITIONER.
Exhibit P25 TRUE COPY OF THE LETTER DATED
19.11.2024 ISSUED BY THE PETITIONER TO
THE RESPONDENTS
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Exhibit P26 TRUE COPY OF THE MINUTES OF THE
MEETING DATED 25.11.2024.
Exhibit P27 TRUE COPY OF THE LETTER DATED
26.11.2024
Exhibit P28 TRUE COPY OF THE MINUTES OF THE
MEETING DATED 28.11.2024 SENT BY THE
PETITIONER TO THE RESPONDENTS UNDER
EMAIL DATED 28.11.2024
Exhibit P29 TRUE COPY OF THE LETTER DATED
26.11.2024 ISSUED BY THE 2ND
RESPONDENT
Exhibit P30 TRUE COPY OF THE LETTER DATED
03.12.2024 ISSUED BY THE PETITIONER TO
THE RESPONDENT
Exhibit P31 TRUE COPY OF THE LETTER DATED
11.12.2024
Exhibit P32 TRUE COPY OF THE LETTER DATED
12.12.2024
Exhibit P33 TRUE COPY OF THE LETTER DATED
21.12.2024
Exhibit P34 TRUE COPIES OF THE ORDERS DATED
27.12.2024, 06.01.2025 AND 06.02.2025
IN WP(C) 46444 OF 2024
Exhibit P35 TRUE COPY OF THE LETTER DATED
21.01.2025 ISSUED BY THE RESPONDENTS
TO THE PETITIONER.
Exhibit P36 TRUE COPY OF THE LETTER DATED
29.01.2025
Exhibit P37 TRUE COPY OF THE EMAIL DATED
20.02.2025 ISSUED BY THE PETITIONER TO
THE RESPONDENTS.
Exhibit P38 TRUE COPIES OF THE EMAILS DATED 28
FEBRUARY 2025 ISSUED BY THE
RESPONDENTS TO THE PETITIONER.
Exhibit P39 TRUE COPY OF THE EMAIL DATED 6 MARCH
2025 ISSUED BY THE PETITIONER TO THE
RESPONDENTS.
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Exhibit P40 TRUE COPY OF THE EMAIL DATED
07.03.2025 ISSUED BY THE 2ND
RESPONDENT TO THE PETITIONER
Exhibit P41 TRUE COPY OF THE LETTER DATED
15.03.2025 ISSUED BY THE PETITIONER TO
THE RESPONDENTS.
Exhibit P42 TRUE COPY OF THE EMAIL DATED
18.03.2025 ISSUED BY R2 TO PETITIONER.
Exhibit P43 TRUE COPY OF THE LETTER DATED
15.04.2025 ISSUED BY THE PETITIONER.
Exhibit P44 TRUE COPY OF THE ORDER DATED
28.03.2025 IN A.R NO. 30 OF 2025.
Exhibit P45 TRUE COPY OF THE ORDER DATED 7.04.2025
IN A.R NO. 30 OF 2025.
Exhibit P46 TRUE COPY OF THE ORDER DATED
07.07.2025 ISSUED BY THE LEARNED
ARBITRATOR.
Exhibit P47 TRUE COPY OF THE LETTER DATED
10.07.2025 ISSUED BY THE 1ST
RESPONDENT TO THE PETITIONER.
EXHIBIT P48 THE RELEVANT PAGES OF THE CONTRACT
CONTAINING ARTICLE 43 OF THE GENERAL
CONDITIONS OF CONTRACT
RESPONDENTS' EXHIBITS
Exhibit R1(a) TRUE COPY OF THE AGREEMENT DATED
12.2.2021 EXECUTED BETWEEN PETITIONER
AND THIS RESPONDENT PURSUANT EXHIBIT
P1 WORK ORDER
Exhibit R1(b) TRUE COPY OF THE APPLICATION DATED
21.7.2025 FILED BY THE PETITIONER
BEFORE THE HON'BLE ARBITRATOR UNDER
SECTION 17 OF THE ARBITRATION AND
CONCILIATION ACT, 1996, WITHOUT
ANNEXURES THERETO
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Exhibit R1(c) TRUE COPY OF I A NO.2 OF 2025 IN MA
(ARB.) NO. 236 OF 2025 DATED
09.07.2025 FILED BY THE PETITIONER
BEFORE COMMERCIAL COURT, ERNAKULAM,
WITHOUT DOCUMENTS
Exhibit R1(d) TRUE COPY OF ORDER DATED 9.7.2025 OF
CIVIL JUDGE (SR. DIVN), 4TH COURT,
ALIPORE IN TITLE SUIT NO. 1021/2025
Exhibit R1(e) TRUE COPY OF ORDER DATED 10.7.2025
DISTRICT JUDGE, ALIPORE IN MISC.
APPEAL NO. 218 OF 2025 (R-218)
