Guruvayoor Devaswom Multi Purpose Co-Operative Society vs. The Commissioner
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR.JUSTICE N.NAGARESH THUR AY, THE 30TH DAY OF MAY 2019 / 9TH JYAISHTA, 1941 WP(C).No. 14382 of 2019 PETITIONERS: *GURUVAYOOR DEVASWOM MULTI PURPOSE CO-OPERATIVE SOCIETY(NO.R-1214),GURUVAYOOR, REPRESENTED BY ITS PRESIDENT SUBRAMANIAN PAKKATH, PAKKATH HOUSE, SHARUN NIVAS, GURUVAYOOR, THRISSUR-680 101 BY ADV. SMT.K.NANDINI *CORRECTED NAME OF THE PETITIONER: GURUVAYOOR MULTI PURPOSE CO-OPERATIVE SOCIETY (NO. R-1214) NAME OF PETITIONER CORRECTED AS PER ORDER DATED 30/05/2019 IN I.A.NO.2/19. RESPONDENTS: 1 THE COMMISSIONER,GURUVAYOOR DEVASWOM BOARD, THIRUVANANTHAPURAM-695 001. 2 THE ADMINISTRATOR, GURUVAYOOR DEVASWOM, GURUVAYOOR, THRISSUR-680 101 3 THE CHAIRMAN,GURUVAYOOR DEVASWOM, GURUVAYOOR, THRISSUR-680 101 4 THE MANAGING COMMITTEE,GURUVAYOOR DEVASWOM, GURUVAYOOR, THRISSUR-680 101 BY ADV. SRI.T.K.VIPINDAS, STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C).14382/2019 2 JUDGMENT N. Nagaresh, J. The petitioner which is a Multi-purpose Co-operative Society seeks to stay all proceedings pursuant to Ext.P3 re-tender scheduled on 24.5.2019 and Ext.P1 notice.
The respondents who are authorities under the Guruvayoor Devaswom Board issued Ext.P7 notification inviting tender for conduct of cloak room and footwear counter of the Devaswom. The duration of the contract was for a period of one year from 1.8.2018 to 31.7.2019. The petitioner-Society submitted Ext.P8 tender offering Rs.52 lakhs. The offer of the petitioner was accepted. The petitioner states that the entire tender amount of Rs.52 lakhs was paid by the petitioner in instalments.
According to the petitioner, while the petitioner was discharging the obligations under the contract, they had to face the consequences of the unprecedented floods in Kerala pursuant to which the flow of devotees to the temple was reduced considerably, which
W.P.(C).14382/2019 3 affected the running of the cloak room. The Society was running at a heavy loss. While so, on 8.5.2019, the second respondent demanded GST amount from the petitioner. According to the petitioner, there was no agreement at all regarding payment of GST by the petitioner, at the time of tender. GST was an extra burden on the petitioner- Society.
While so, the petitioner happened to saw Ext.P3 notification in respect of the same work being carried out by the petitioner. The respondents intended to terminate the contract with the petitioner and give the work to others. The petitioner therefore submitted Exts.P4 and P5 representations to the respondents. The petitioner sought exemption from payment of GST. Since the representations were not considered and the fresh tender proceedings are in progress, the petitioner has filed this writ petition. According the petitioner, since the petitioner was not made known of the liability to pay GST and since the work was running at a loss, they are not in a position to pay the GST. The petitioner should be permitted to carry out the work till
W.P.(C).14382/2019 4 the expiry of the tenure, up to 31.7.2019. 5. The respondents resisted the writ petition filing detailed counter affidavit. According to the respondents, they have invited tenders for the conduct of cloak room at East Nada for a period from 1.8.2018 to 31.7.2019. The petitioner quoted the highest amount of Rs.52 lakhs. Therefore, work was allotted to the petitioner. The amount of Rs.52 lakhs was to be paid in lump. However, on 21.6.2018, the petitioner submitted a request stating that they are remitting Rs.25 lakhs as first instalment and requested four months time to pay the balance amount. The respondents considered the request and granted time to the petitioner up to 31.8.2018. The petitioner was also required to remit Rs.9,36,000/- towards GST and Rs.2,60,000/- towards security deposit. The outstanding amounts were directed to be paid before 31.7.2018. 6. However, the petitioner-Society neither did pay the amount nor came forward to execute agreement. Subsequently on 3.11.2018, the petitioner submitted a letter stating that petitioner had paid the
W.P.(C).14382/2019 5 agreed amount totalling Rs.52 lakhs and additional amount towards 18% GST cannot be paid. The petitioner took a specific stand that since liability to pay GST was not known to them at the time of tender, they are not liable to pay the GST. As of now, the situation is that the period of contract is to expire on 31.7.2019 and the petitioner has not agreed to pay the GST and the security deposit, which come to a huge amount. In such circumstances, the respondents have decided to terminate the agreement. The petitioner cannot be permitted to continue without paying dues to the respondents which will cause huge loss to Devaswom. The writ petition is therefore liable to be dismissed, contended the respondents.
We have heard the learned counsel for the petitioner and the Standing Counsel representing the respondents. It is an admitted fact that the petitioner had taken over the cloak room and the footwear counter agreeing to pay Rs.52 lakhs. An agreement in this regard was to be executed in writing. Though the amount was to be paid in lump, perhaps taking into account the fact that the petitioner is a Co-
W.P.(C).14382/2019 6 operative society, the Devaswom has accepted Rs.25 lakhs initially and granted time to pay the balance amount. GST being a statutory requirement, the petitioner cannot be heard to contend that the petitioner is not liable to pay GST. The respondents also cannot take a stand that they will absolve the petitioner from payment of GST since GST is a statutory mandate and not a contractual obligation. In the circumstances, we find no reason to agree with the arguments of the learned counsel for the petitioner who seeks to absolve the petitioner from payment of GST.
The facts revealed from the pleadings would show that the tender work commenced from 1.8.2018 and the petitioner-Society has paid Rs.52 lakhs, which is the tender amount. Taking into account the fact that the petitioner has paid the entire tender amount and what is remaining is only payment of GST and the security deposit, we are inclined to direct the respondents to permit the petitioner to continue the work till the expiry of the period i.e., 31.7.2019, on conditions.
In the circumstances, the writ petition is disposed of with the
W.P.(C).14382/2019 7 following directions:- (i) If the petitioner-Society deposits an amount of Rs.2,60,000/- (Rupees two lakhs sixty thousand) towards security deposit and executes agreement with the respondents inclusive of GST requirements on or before 6.6.2019, the petitioner-Society shall be permitted to continue with the work till the expiry of the contract period. (ii) The petitioner will make payment of an amount of Rs.9,36,000/- (Rupees nine lakhs thirty six thousand) towards GST on or before 25.6.2019. (iii) If the petitioner remits the security deposit and executes the agreement on or before 6.6.2019 and remits the entire GST dues on or before 25.6.2019, the petitioner- Society will be permitted to operate the cloak room and footwear counter till 31.7.2019. (iv) If the petitioner commits default in any of the
W.P.(C).14382/2019 8 above said conditions, the respondents will be at liberty to proceed with Ext.P3 and the petitioner shall give vacant possession of the cloak room and footwear counter to the respondents. (v) If the petitioner defaults in payments as indicated above, the respondents will be at liberty to proceed against the petitioner for recovery of the amount due, in accordance with law. C.T.RAVIKUMAR JUDGE N.NAGARESH JUDGE
W.P.(C).14382/2019 9 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1OF THE NOTICE DATED 8.5.2019 FROM 2ND RESPONDENT TO PETITIONER EXHIBIT P2OF THE REPLY FROM THE PETITIONER TO THE 4TH RESPONDENT DATED 20.7.2019 WITH POSTAL RECEIPT EXHIBIT P3OF THE NEWSPAPER ADVERTISEMENT DATED 8.5.2019 IN MATHRUBHUMI DAILY EXHIBIT P4OF THE REPRESENTATION DATED 14.5.2019 FROM THE PETITIONER SOCIETY TO THE 1ST RESPONDENT WITH POSTAL RECEIPT EXHIBIT P5OF THE REPRESENTATION DATED 25.2.2019 FROM PETITIONER TO THE 2ND RESPONDENT
DATED
2019
FROM PETITIONER TO THE 2ND RESPONDENT DATED 25.2.2019 EXHIBIT P6OF THE DRAFT TENDER AGREEMENT RESPONDENTS' EXHIBITS: EXHIBIT R2(A)OF THE APPLICATION INVITING TENDER DATED 19.04.2018 ALONG WITH THE CONDITIONS. EXHIBIT R2(B)OF THE REQUEST DATED 21.06.2018 EXHIBIT R2(C)OF THE RESOLUTION NO.34 OF THE GURUVAYUR DEVASWOM MANAGING COMMITTEE DATED 04.07.2018. W.P.(C).14382/2019 10 EXHIBIT R2(D)OF THE LETTER DATED 20.07.2018 ISSUED TO THE PRESIDENT OF THE GURUVAYUR CO-OPERATIVE MULTIPURPOSE SOCIETY EXHIBIT R2(F)OF THE RESOLUTION NO.1 OF GURUVAYUR DEVASWOM MANAGING COMMITTEE DATED 01.08.2018 EXHIBIT R2(G) THEOF THE WORK ORDER DATED 01.08.2018. EXHIBIT R2(H)OF THE RESOLUTION NO.7 OF THE GURUVAYUR DEVASWOM MANAGING COMMITTEE DATED 07.08.2018 EXHIBIT R2(I)OF THE SHOW CAUSE NOTICE DATED 30.08.2018 ISSUED TO THE SOCIETY. EXHIBIT R2(J)OF THE RESOLUTION NO.13 OF THE GURUVAYUR DEVASWOM MANAGING COMMITTEE DATED 25.09.2018 EXHIBIT R2(K) THEOF THE NOTICE ISSUED ON 29.09.2018. EXHIBIT R2(L)OF THE REPLY DATED 10.10.2018 SUBMITTED BY THE SOCIETY. EXHIBIT R2(M)OF THE LETTER DATED 3.11.2018 SUBMITTED BY THE SOCIETY EXHIBIT R2(N)OF THE RESOLUTION NO.32 OF THE GURUVAYUR DEVASWOM MANAGING COMMITTEE DATED 17.11.2018 EXHIBIT R2(O)OF THE RESOLUTION NO.1 OF THE GURUVAYUR DEVASWOM MANAGING COMMITTEE DATED 21.12.2018 EXHIBIT R2(P)OF THE NOTICE DATED 03.01.2019 ISSUED TO THE SOCIETY.
W.P.(C).14382/2019 11 EXHIBIT R2(Q)OF THE REQUEST DATED 25.02.2019 SUBMITTED BY THE SOCIETY. EXHIBIT R2(R)OF THE REQUEST LETTER DATED 06.05.2019. EXHIBIT R2(S)OF THE REQUEST LETTER DATED 06.05.2019 spc/
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.