Sebastian Jose vs. The Kerala Land Development Corporation Limited
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL FRIDAY, THE 23RD DAY OF OCTOBER 2020 / 1ST KARTHIKA, 1942 WP(C).No.22433 OF 2020(D) PETITIONER: SEBASTIAN JOSE, AGED 37 YEARS, S/O.K. P. JOSE, RESIDING AT KOORAN KALLUKARAN HOUSE, PULLIYANAM POST, ANGAMALY, ERNAKULAM-682 017 BY ADVS. SRI.SANTHOSH MATHEW SRI.ARUN THOMAS SRI.JENNIS STEPHEN SRI.VIJAY V. PAUL SMT.KARTHIKA MARIA SRI.ANIL SEBASTIAN PULICKEL SMT.VEENA RAVEENDRAN SMT.DIVYA SARA GEORGE SMT.JAISY ELZA JOE SHRI.ABI BENNY AREECKAL SMT.LEAH RACHEL NINAN SMT.NANDA SANAL RESPONDENTS: 1 THE KERALA LAND DEVELOPMENT CORPORATION LIMITED, TC 11/570, MUSEUM BAINS COMPOUND, KOWDIAR P.O., TRIVANDRUM-695 003, REP. BY ITS MANAGING DIRECTOR. 2 THE CONSTRUCTION ENGINEER, KLDC LTD, THRISSUR, 28/725, CHEMBUKAVU, NEAR RAMA NILAYAM, THRISSUR-680 020 3 NATIONAL BANK FOR AGRICULTURE AND RURAL DEVELOPMENT, PLOT C-24, G BLOCK, BANDRA KURLA COMPLEX, BKC ROAD, BANDRA EAST, MUMBAI, MAHARASHTRA 400051 REP.BY ITS MANAGING DIRECTOR 4 THE CONSTRUCTION ENGINEER, KLDC LTD., ALAPUZHA, ALAPUZHA 688 011. 5 ASSISTANT COMMISSIONER OF STATE TAX, MATTANCHERRY, 2ND FLOOR, BAZAAR ROAD, MATTANCHERRY, ERNAKULAM, KOCHI 682 002
WP(C).No.22433 OF 2020 -2- R1 BY ADV. SRI.G.BAIJURAJ OTHER PRESENT: GP SMT JASMINE M M THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.22433 OF 2020 -3- JUDGMENT Dated this the 23rd day of October 2020 Petitioner, an A class contractor through the instant writ petition, has approached this Court for issuance of the following directions: “i)Issue a writ of mandamus or any other appropriate writ order or direction, commanding the respondents 1 & 2 to pay the GST component in the part bills to the petitioner in accordance with the terms and conditions prescribed in Ext.P1 tender document along with interest at 18% p.a. ii) Issue a writ of mandamus or any other appropriate writ order or direction, commanding the 5th respondent to not initiate any coercive action against the petitioner on account of non-filing of GST returns till the amounts towards GST are paid by the 1st and 2nd respondents in accordance with the tender document iii) Issue a writ of mandamus or any other appropriate writ order or direction, commanding the 1st and 4th respondent to adjust the security amount which is to be deposited by the petitioner in order to execute the agreement in accordance with Ext.P11 from the admitted bill, Ext.P8 due to the petitioner by the 1st respondent department. iv) Issue a writ of mandamus or any other appropriate wit order or direction, commanding the 1st respondent to disburse the entire amount as per Ext.P8 and P9 after
WP(C).No.22433 OF 2020 -4- adjusting the security deposit against Ext.P11, within a time frame fixed by this Honourable Court. v) Issue a writ of mandamus or any other appropriate writ order or direction, commanding the 1st and 2nd respondents to pass orders on Ext.P6 representation in the light of Clause 3.3.3 and 3.3.6 of Part 1 read with Clause 34 of Part II in Ext.P1 and Ext.P7 judgment. vi) To issue such other appropriate writ order or direction which this Hon'ble Court may deem fit and just under the circumstances of the case.” In support of the aforementioned prayer, it is alleged that a notice inviting tender was published by the respondents for the work titled NABARD RIDF XXII infrastructural works in Kurinjikkal for the purpose of constructing a bridge across Puzhakkal Thoddu in Kurinjikkal Puthurkkara in Thrissur District.
Mr.Santhosh Mathew, learned counsel appearing on behalf of the petitioner submits that in pursuance to the above mentioned bids, petitioner was the successful bidder which resulted into execution of an agreement containing certain Clauses. It is specified in Clauses 3.3.3 and 3.3.6 of Part 1 read with Clause 34 of Part II of the notice
WP(C).No.22433 OF 2020 -5- inviting tenders that the rates to be quoted by the bidder would include cost of all materials and conveyance, labour charges, hire charges of plant, machinery, overheads, all incidental charges for execution of the contract and the rate quoted shall also include all statutory taxes and other mandatory remittances payable by the contractor as per existing tax systems, government orders which are applicable to the contract, except Goods and Service Tax (GST). Accordingly, after having accepted the bid, a work order dated 11.10.2018 was issued. Petitioner commenced work and completed a portion of the work and invoice for release of 1st stage part payment was submitted. Consequently, the petitioner was paid a part payment of Rs.1,13,56,399/- after working out the value of the work of an amount of Rs.1,21,45,882/- in accordance with the bill dated 16.03.2019 as evidenced from Ext.P5. To the utter surprise of the petitioner, the 2nd respondent refused to pay the GST component in the bill. In this regard, petitioner submitted a detailed representation Ext.P6 dated 17.09.2020 before the 1st and 2nd respondents
WP(C).No.22433 OF 2020 -6- requesting them to pay the GST amount of Rs.14,57,506/-.
He would then contend that the Division Bench of this Court in Writ Appeal No.445 of 2018 [C.A. George Vs. State of Kerala & Others] while interpreting similar kind of an agreement, directed that the bidder cannot be blamed to have not incorporated the tax element in the bid amount. Another bid, submitted by the petitioner was found successful vide Ext.P11, the Petitioner is required to submit a Performance Guarantee of Rs.6,23,850/- and additional Performance Guarantee of Rs.12,58,890/-. He submits that the request of the petitioner through instant writ petition is to disburse the outstanding amount of Rs.1,24,03,259/- as evidenced from Ext.P8, which is deemed to have been admitted due towards the petitioner. The petitioner may be paid the amount after adjustment of the performance guarantee and the additional Performance Guarantee to be submitted in the other agreement and this kind of request had been accepted by this Court as evidenced from the judgment dated 26.08.2020 in writ petition No.17976 of 2020 placed on
WP(C).No.22433 OF 2020 -7- record as Ext.P12 along with I.A.No.1 of 2020. 4. Mr. G. Baijuraj, learned counsel appearing on behalf of the respondents, on instructions from his clients submitted that the respondents do not deny the outstanding payment of Rs.1,24,03,259/- and also would not be averse in adjustment of the amount to be submitted by the petitioner as Performance Guarantee and additional Performance Guarantee. The respondents would adjust the amount of Performance Guarantee and additional Performance Guarantee as received from Ext.P11 and would pay the balance amount to the petitioner within a period of one month. The department would also not be averse in taking a call on the representation Ext.P6 with regard to the claim of the petitioner qua GST.
Having heard the counsel for the parties and since major controversy in the writ petition is not in dispute, I dispose of this writ petition by issuing direction to the respondents to adjust the payment of the Performance Guarantee and additional Performance Guarantee from the outstanding due to the petitioner as
WP(C).No.22433 OF 2020 -8- reflected in Ext.P8 and pay the balance amount as undertaken, within a period of one month. Respondents are also directed to take a call on representation Ext.P6 regarding the liability of the petitioner vis a vis the GST within a period of one month from the date of receipt of a certified copy of the judgment. This writ petition with the aforementioned directions stands disposed of. AMIT RAWAL vv JUDGE
WP(C).No.22433 OF 2020 -9- APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE RELEVANT PAGES OF THE TENDER DOCUMENT. EXHIBIT P2OF THE BID SUBMITTED BY THE PETITIONER DATED 8.8.2018. EXHIBIT P3OF THE PRINT OUT OF THE BOQ SUBMITTED ALONG WITH THE BID EXHIBIT P4OF THE SELECTION NOTICE DATED 28.9.2018 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P5 COPY OF THE MEMORANDUM OF PAYMENT AGAINST 1ST PART BILL EXHIBIT P6OF THE REPRESENTATION ALONG WITH THE POSTAL RECEIPT. EXHIBIT P7 COPY OF THE JUDGMENT IN WA NO.445/2018 DATED 18.12.2019. EXHIBIT P8OF THE MEMORANDUM OF PAYMENTS WITH RESPECT TO CC II AND ADMITTED PART BILL DATED 20.2.2020 EXHIBIT P9OF THE WORK BILL ALONG WITH CERTIFICATE FOR THE 3RD PART BILL DATED 18.8.2020. EXHIBIT P10OF THE PAYMENT CERTIFICATE DATED 14.10.2020. EXHIBIT P11OF THE SELECTION NOTICE DATED 13.10.2020. EXHIBIT P12OF THE JUDGMENT IN WPC NO 17976/2020 DATED 26.8.2020 //// PA TO JUDGE
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.