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K.A.Johnson vs. The Kerala State Nirmithi Kendra

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WP(C)/15251/2020HC KeralaGSTCNR KLHC01038507202005 March 2021Bench: HONOURABLE MR.JUSTICE N.NAGARESH9 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942 WP(C).No.15251 OF 2020(F) PETITIONER: K.A.JOHNSON, AGED 55 YEARS, S/O. KUNJAVARA, KOLENCHERRY HOUSE, NEELEESWARAM P.O., KALADY(VIA), ERNAKULAM DISTRICT-683 584 BY ADVS. SRI.S.SHANAVAS KHAN SMT.S.INDU RESPONDENTS: 1 THE KERALA STATE NIRMITHI KENDRA, PTP NAGAR, THIRUVANANTHAPURAM-695 038, REPRESENTED BY ITS DIRECTOR 2 THE REGIONAL ENGINEER, KERALA STATE NIRMITHI KENDRA, REGIONAL CENTRE, CHENAKALA ROAD, HMT COLONY P.O., KALAMASSERY, ERNAKULAM-683 503 3 THE UNIVERSITY ENGINEER, SREE SANKARA UNIVERSITY OF SANSKRIT, KALADY, ANGAMALY, ERNAKULAM-683 574 ADDL. 4 THE SREE SANKARA UNIVERSITY OF SANSKRIT (SSUS), KALADY, ANGAMALY, ERNAKULAM - 683514. REPRESENTED BY ITS VICE CHANCELLOR. ADDL.R4 IS IMPLEADED AS PER ORDER DATED 30.07.2020 IN IA NO.1/2020. R1-2 BY ADV. SRI.G.RANJU MOHAN R3-4 BY SHRI.PRASANTH S., SC, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) No.15251/2020 : 2 : J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 5th day of March, 2021 The petitioner, a building contractor, was awarded construction work of an auditorium in the main campus of the additional 4th respondent-University. The value of contract was ₹2,67,87,040/- and the work had to be completed within 9 months.

2.

The petitioner would state that he has completed almost 90% of the work by December, 2019. He could not complete the remaining work due to the wrong decision making of the respondents on piling and change of design of auditorium to air condition and sound proofing. As the delay in completion of the work is not attributable to the petitioner, no fine was imposed on the petitioner.

3.

Though the work was of the additional 4th respondent-University, it was executed through the 1st

WP(C) No.15251/2020 : 3 : respondent-Kerala State Nirmithi Kendra. Respondents 1 and 2 withheld 25% of retention money and GST amount. Due to the failure of the respondents to facilitate execution of remaining work, the petitioner is not in a position to proceed further. In the circumstances, the petitioner prayed that retention money, security deposit and bank guarantee be released to him forthwith and he may be permitted to foreclose the contract.

4.

Respondents 1 and 2 filed a statement. Respondents 1 and 2 stated that they are only consultants of the additional 4th respondent-University. As per Clause 2.5 of Ext.R2(a) Memorandum of Understanding, 25% of the estimate amount will be released by the additional 4th respondent only after the submission of the final bill on completion of the works in all respects.

5.

Respondents 1 and 2 admitted that the petitioner has completed about 70% of the works which was entrusted to him. Further bills will be released only on completion of the work.

WP(C) No.15251/2020 : 4 :

6.

Respondents 3 and 4 filed counter affidavit. Respondents 3 and 4 stated that the University has already paid advance of ₹3 Crores to the 1st respondent. The balance need to be paid only on completion of the work. ₹2.62 Crores have been paid to the petitioner and a balance of nearly ₹91,27,866/- is being retained by the 1st respondent. The University has not made restrictions on any payment to the petitioner.

7.

From the pleadings in the writ petition and submissions made at the Bar, it is evident that the petitioner has completed substantial portion of the work entrusted to him. Huge amounts are retained by respondents 1 and 2 as retention money, which is to be paid only after completion of the work. It may be true that 25% of the contract amount is to be paid only after the work is executed in full. But, it is to be noted that the petitioner is ready and willing to complete the work. But, he cannot move further without the cooperation of the respondents. In such circumstances, amounts otherwise due to the petitioner should not be withheld by the

WP(C) No.15251/2020 : 5 : respondents, contended the learned counsel for the petitioner.

8.

During the pendency of this writ petition, a meeting was convened at the Chamber of the

Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.