Madras High Court
Tamil Nadu Generation And ... vs P.Meeraza on 26 April, 2022
W.A.Nos.3038 and 3039 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.04.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.A.Nos.3038 and 3039 of 2021
1. Tamil Nadu Generation and Distribution Corporation Ltd
rep. by its Chief Engineer
North Chennai Thermal Power Station – I
Chennai – 600 120.
2. The Superintending Engineer/Mech-II
TANGEDCO
North Chennai Thermal Power Station – I
Chennai – 600 120.
3. The Superintending Engineer/Mech-I
TANGEDCO
North Chennai Thermal Power Station – I
Chennai – 600 120. .. Appellants
Vs
P.Meeraza .. Respondent
Prayer: Appeals under Clause 15 of the Letters Patent against the
judgment dated 24.2.2021 passed in W.P.No.13238 of 2020 and 2987
of 2021.
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W.A.Nos.3038 and 3039 of 2021
For the Appellants : Mr.J.Ravindran
Additional Advocate General
for M/s.L.Jaivenkatesh
For the Respondent : Mr.B.Kumar
Senior Advocate
for Mr.T.Sudhanraj
COMMON JUDGMENT
(Delivered by The Hon'ble Chief Justice)
Heard the writ appeals for challenge to the judgment dated
24.2.2021, whereby the writ petition filed by the petitioner/non-
appellant to quash the proceedings of the third appellant
withholding the amount which is due and payable to the
petitioner/non-appellant.
2. It is a case where the petitioner/non-appellant was given
three different works under three different contracts. The work in
respect of the first and second contracts was completed and,
accordingly, the appellants issued completion certificate to show
their satisfaction and made the entire payment due towards the first
and second contracts. While the third contract was still to be
executed by the petitioner/non-appellant, an order was passed to
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W.A.Nos.3038 and 3039 of 2021
recover the amount in reference to the first and second contracts
based on an audit objection and orders to this effect were passed on
15.12.2018 and 19.8.2020. Challenge to the aforesaid orders was
sustained for the reason that after issuance of the completion
certificate and payment of due amount, the recovery could not have
been effected in regard to the works executed qua the third contract.
3. Learned Additional Advocate General submits that even
after the issuance of the completion certificate and payment of due
amount pertaining to the first and second contracts, recovery was
permissible under paragraph 22 of the instructions to bidders, which
reads as under:
“22.0 Recoveries of Dues:
Amount due from the supplier to the Corporation for
the default in any other previous purchase orders will
be adjusted from the pending payments against the
purchase order placed on the vendor in this
specification, which may plead be noted.”
4. Paragraph 22 permits recovery of the amount due from
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W.A.Nos.3038 and 3039 of 2021
supplier to the Corporation for the default in any other previous
purchase orders and can be adjusted from the pending payment
against the purchase order placed on the vendor in this
specification. Paragraph 22 can be invoked in two situations (i)
there should be default in the previous purchase order, while it is
executed; and, (ii) on account of such default, the amount should
due from the supplier to the Corporation.
5. In the instant case, both the conditions are not made out
for the reason that on completion of the first and second contracts,
completion certificates were issued by the writ appellants and the
petitioner/non-appellant was paid the entire amount due. The issue
has been re-opened only in reference to the audit objection, without
showing any provision in the agreement entered into between the
parties to re-open the matter even after issuance of the completion
certificate and making payment.
6. Accordingly, the learned Single Judge found reason to cause
interference with the impugned orders. The audit objection was also
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W.A.Nos.3038 and 3039 of 2021
taken into consideration by the learned Single Judge in paragraph
(6) of the judgment. For ready reference, paragraph (6) is quoted
hereunder:
“6. In response to this audit objection, the learned
Senior Counsel appearing for the petitioner has drawn
the attention of this Court to the following tender
conditions.
'3.0 Supply of compressed air: The contractor
has to make his own arrangement for the
compressed air required for the work at his
cost.
4.0 Power Supply: Free power supply will be
provided to the Contractor from the nearest
available Corporation's power supply point, for
the contractor's offices and stores. The
contractor should make his own arrangement
to extend the power to the area of work and
also maintain such extension lines at his
cost.'”
7. Learned counsel for the petitioner/non-appellant submits
that as per the conditions of the agreement, the contractor was
entitled to free power supply for their requirement, but the
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W.A.Nos.3038 and 3039 of 2021
appellants failed to supply the electricity, because the first available
point was at the distance of 6 km and it was not possible to get
electricity from that place and otherwise it was the obligation of the
appellants to provide free power supply and, obviously, it has to be
at the place of execution of the work and not at a distance of 6 km
and in that circumstances, the petitioner/non-appellant was left with
no option but to use the diesel. It is to cover the default on the part
of the appellants in not supplying free power, the audit has raised
the erroneous objection about the usage of diesel instead of power
supply and mulcted the responsibility on the petitioner/non-
appellant.
8. The appellants have otherwise not shown any action taken
against the officials who had paid excess amount to the contractor.
Therefore, the audit objection remains for the sake of it and,
accordingly, the learned Single Judge has rightly caused interference
in the order passed by the appellants while allowing the writ
petition.
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W.A.Nos.3038 and 3039 of 2021
For the foregoing reasons, we do not find any error in the
judgment of the learned Single Judge warranting interference. The
appeals are dismissed. There will be no order as to costs.
Consequently, C.M.P.Nos.20835 and 20836 of 2021 are closed.
(M.N.B., CJ) (D.B.C., J.)
26.04.2022
Index : Yes/No
sasi
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W.A.Nos.3038 and 3039 of 2021
THE HON'BLE CHIEF JUSTICE
AND
D.BHARATHA CHAKRAVARTHY,J.
(sasi)
W.A.Nos.3038 and 3039 of 2021
26.04.2022
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