Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN MONDAY, THE 23RD DAY OF JANUARY 2023 / 3RD MAGHA, 1944 WP(C) NO. 23143 OF 2021 PETITIONER/S:
M.A ABBAS VASHID S/O.M.ABDULLA KUNHI, 'USMANIA', MASTHIKUND, MULIAR ROAD, KASARAGOD.
BY ADVS.
B.S.SWATHI KUMAR ANITHA RAVINDRAN HARISANKAR N UNNI SARANGADHARAN P.
NAVVYA UNNI RESPONDENTS:
1 KERALA STATE ELECTRONIC DEVELOPMENT CORPORATION LTD KELTRON HOUSE, VELLAYAMBALAM, THIRUVANANTHAPURAM- 695033, REPRESENTED BY ITS MANAGING DIRECTOR.
2 THE HEAD/EXECUTIVE (PURCHASE), KERALA ELECTRONICS DEVELOPMENT CORPORATION LTD, KELTRON EQUIPMENT COMPLEX, KARAKULAM, ARUVIKKARA, THIRUVANANTHAPURAM-695564.
3 THE CHIEF GENERAL MANAGER, KELTRON EQUIPMENT COMPLEX, KARAKULAM, ARUVIKKARA, THIRUVANANTHAPURAM-695564.
BY ADV M.A.ZOHRA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.08.2022, THE COURT ON 23.01.2023 DELIVERED THE FOLLOWING:
W.P.(C). 23143/2021 2 JUDGMENT Dated this the 23rd day of January, 2023 The petitioner, a registered B Class contractor, was awarded the work 'Removing tree roots and levelling of surface at 8 Acres land, Naval Academy, Ezhimala, Kannur' by the 1st respondent. As per Ext. P1 work order dated 01.12.2018, the work was valued at Rs.18,95,000/- and the period of contract was fixed as 30 days from the date of issue of the order. According to the petitioner, the work was completed within time and Ext.P2 bill presented on 02.02.2019. Instead of effecting payment, the 1st respondent issued Ext. P4 communication, stating that the petitioner had failed to complete the work as per the work order and payment can be effected only after the work is completed.
Thereupon, petitioner carried out the balance work pointed out by the respondents and obtained Ext. P5 completion certificate dated 22.06.2019. Thereafter, the petitioner was required to attend a meeting convened by the 2nd respondent and
W.P.(C). 23143/2021 3 compelled to sign Ext. P5(a) document, agreeing to accept an amount of Rs.12 Lakhs plus GST in full and final settlement of his claim. As per the terms of Ext. P5(a), the agreed amount of Rs.12 Lakhs was to be paid within three months, in two installments, of which the 1st installment was to be released before 17.07.2019. Contrary to the above stipulation, the first installment was paid only on 03.08.2019, by way of a cheque for Rs.6,51,691.08, and the amount of Rs.3,02,500/- was paid by way of cheque on 05.02.2020 and the third cheque for Rs.3,49,191.08 was handed over on 30.11.2020.
2. The petitioner's contention is that, the respondents having failed to abide by the conditions in Ext. P5(a) agreement, the terms of the work order got resurrected entitling the petitioner for the actual contract value of Rs.18,95,000/-. As the respondents failed to accede to honour the demand for the actual value raised as per Ext.P9 and instead issued Ext.P10 amended purchase order, the writ petition is filed seeking the following reliefs;
i) to declare that the respondents are liable to pay the amount as per Ext.P1 to the petitioner with interest and that Ext.P5(a) has
W.P.(C). 23143/2021 4 become non-est and further declare that Ext.P10 issued solely on the basis of Ext.P5(a) is legally unsustainable and liable only to be quashed.
ii) issue a writ of mandamus or any other appropriate writ, order or direction commanding and compelling the respondents to pay the amount of Rs.5,91,700/- being the balance amount after deducting Rs.13,03,200/- (being the amount paid) from the total amount of Rs.18,95,000/- due to the petitioner as per Ext.P1 with interest @ 12% per annum from 8.7.2019;
3. Heard Advs. B.S. Swathi Kumar and Anitha Ravindran for the petitioner and Adv. M.A. Zohra, Standing Counsel for the respondents.
4. Learned Counsel for the petitioner submitted that the respondents having failed to abide by the terms of Ext.P5(a) agreement are bound to effect payment in accordance with the terms of Ext. P1 work order. It is submitted that the petitioner had relented to the request of the respondents, expecting that, atleast the reduced amount will be paid within time.
Contrary to the expectation, the agreed amount was paid after a delay of 16 months, resulting in the petitioner sustaining huge loss. The 1st respondent being an instrumentality of
W.P.(C). 23143/2021 5 State cannot act in such arbitrary and capricious manner.
There being no disputed facts involved, this Court has got ample power to direct payment of the actual contract value.
5. In response, learned Standing Counsel put forth the following contentions;
The 1st respondent had received an order from the Indian Naval Academy, Ezhimala for the supply, installation, testing, commissioning and maintenance of 3.3Mwp Solar Power Plant.
As the site had to be cleared, the petitioner was awarded the work of removing tree roots and levelling of surface at 8 acres of land in the Naval Academy. The scope of the work included removing tree roots, filling of trenches and levelling of surface, including excavation in any type of soil, averaging 15 cms deep and not exceeding 30 cms deep. The contractor was also liable to dispose all materials and debris from the work site. The petitioner raised Ext. P2 tax invoice, claiming to have completed the work, but on inspection it was found that the work was incomplete. After removing the tree roots, the petitioner had failed to clear the debris from the site.
W.P.(C). 23143/2021 6 Therefore, Ext.P4 was issued calling upon the petitioner to remove the roots and other debris from the site and the Naval Academy premises. Only thereafter the petitioner removed tree roots and levelled the surface, in terms of the contract awarded to him. Thus, it was the petitioner who violated the terms of the work order. As per Clause 11 of Ext.P1 he could have been made liable for liquidated damages at 0.5% per week for the delayed part of the work, subject to a maximum of 5% value. Instead of proceeding in that manner, the 1st respondent deemed it appropriate to settle the dispute. In the settlement meeting convened by the 2nd respondent, Ext.P5(a) agreement was entered into between the parties voluntarily.
The main reason that had prompted the respondents to reduce the bill amount was the mistake in having issued a lumpsum work order, instead of fixing the contract value based on the measurement of the roots removed from the site. It is contended that if the petitioner is aggrieved by the violation of the terms of Ext. P5(a) agreement, his remedy is to approach the competent civil court.
W.P.(C). 23143/2021 7 6. From the rival contentions advanced it comes out that disputed questions of fact are involved. While the petitioner contends that he had completed the work within the contract period, the respondents rely on Ext.P4 to contend that the work was completed only by 22.06.2019. Such contentious issues cannot be resolved in a writ petition under Article 226.
7. Even accepting the contention that there was delay on the part of the respondents in disbursing the amount within the time stipulated in Ext. P5(a), the petitioner will have to work out his remedies before the civil court. As held by the Apex Court in Assistant Commissioner of State Tax and Ors. v. Commercial Steel Limited [(2021) SCC Online SC 884], even though an alternative remedy is not an absolute bar to the maintainability of writ petition under Article 226, there have to be exceptional circumstances such as; (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation for the writ petition to be entertained. In the instant case, I
W.P.(C). 23143/2021 8 am unable to find any such exceptional circumstances, the petitioner having entered into Ext.P5(a) agreement voluntarily.
As such, the petitioner's remedy, if aggrieved by the alleged violation of Ext. P5(a), is to approach the civil court.
For the aforementioned reasons, the writ petition is dismissed.
Sd/- V.G.ARUN JUDGE
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W.P.(C). 23143/2021 9 APPENDIX OF WP(C) 23143/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE WORK ORDER NO.KEC/P/FNAEK/P19003/28845 DATED 1-12-2018 Exhibit P2 TRUE COPY OF THE TAX INVOICE NO.101 DATED 2- 2-2019 ISSUED BY VIJAYA BANK, CHERKALA.
Exhibit P3 TRUE COPY OF THE REQUEST DATED 4-4-2019 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.
Exhibit P4 TRUE COPY OF THE REPLY NO.MKTG/F2/CSP203/PEG(S)/2019-20/54 OF THE 3RD RESPONDENT DATED 21-5-2019 Exhibit P5 TRUE COPY OF THE COMPLETION CERTIFICATION DATED 22-6-2019 ISSUED BY THE 1ST RESPONDENT Exhibit P5(A) TRUE COPY OF THE MINUTES OF THE MEETING DATED 9-7-2019 OF THE 1ST RESPONDENT.
Exhibit P6 TRUE COPY OF THE INTIMATION NO KE/PUR DATED 3-8-2019 ISSUED BY THE 3RD RESPONDENT.
Exhibit P7 TRUE COPY OF THE INTIMATION NO KEC/PUR DATED 5-2-2020 ISUSED BY THE 3RD RESPONDENT.
Exhibit P8 TRUE COPY OF THE INTIMATION NO KEC/PUR DATED 3O-11-2020 ISSUED BY THE 3RD RESPONDENT.