Karnataka High Court
M/S Sanjay Marketing And Publicity ... vs Davanagere Smart City Limited on 21 December, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2023:KHC:46880
WP No. 13390 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 13390 OF 2023 (GM-TEN)
BETWEEN:
M/S. SANJAY MARKETING AND
PUBLICITY SERIVICES
A PROPRIETORSHIP CONCERN
HAVING ITS PRINCIPAL PLACE OF
BUSINESS AT NO. 131, 35TH CROSS
15TH MAIN, 4TH T BLOCK, JAYANAGARA
BENGLAURU - 560 011.
REPRESENTED BY ITS
PROPRIETOR REVANNA NAGARAJ
...PETITIONER
(BY SRI. D.R.RAVISHANKAR, SENIOR ADVOCATE A/W.,
SRI. SOURABH R. K., ADVOCATE)
AND:
Digitally signed by
PADMAVATHI B K
1. DAVANAGERE SMART CITY LIMITED
Location: HIGH
COURT OF A PUBLIC SECTOR UNDERTAKING OF THE
KARNATAKA
GOVERNMENT OF KARNATAKA
REGISTERED UNDER THE COMPANIES ACT, 2013
HAVING ITS REGISTERED PLACE OF
BUSINESS AT PLOT NO. 77
ZILLADALITHA BHAVAN PREMISES
KARUR INDUSTRIAL AREA, OLD P.B.ROAD
DAVANGERE - 577 006.
REPRESENTED BY ITS MANAGING DIRECTOR
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NC: 2023:KHC:46880
WP No. 13390 of 2023
2. THE EXECUTIVE ENGINEER
DAVANAGERE SMART CITY LIMITED
PLOT NO. 77, ZILLADALITHA BHAVANA PREMISES
KARUR INDUSTRIAL AREA, OLD P.B.ROAD
DAVANAGERE - 577 006.
...RESPONDENTS
(BY SRI. MAHESH S., ADVOCATE FOR R1 AND R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE TERMINATION ORDER BEARING NO. DSCL/KAAA-
A/CR-302/2022-23/1282 DATED 14.10.2022 PASSED BY THE
RESPONDENT NO. 2 AND TERMINATION ORDER BEARING NO.
DSLC/KAAA-2/CR-302/2022-23/1433 DATED 21.11.22 PASSED
BY THE RESP NO. 1 VIDE ANNEXURES-F AND H.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question an order of termination dated 14.10.2022, passed by respondent No.2 - the Executive Engineer.
2. Heard Sri D.R.Ravishankar, learned senior counsel for the petitioner and Sri Mahesh S., learned counsel for the respondents.
3. During the pendency of the petition, the petitioner was directed to file an affidavit indicating the timeline as to when he would complete the work. The petitioner has filed affidavit and -3- NC: 2023:KHC:46880 WP No. 13390 of 2023 an additional affidavit indicating the timeline for completion of the work. The affidavit dated 28.11.2023, reads as follows:
"AFFIDAVIT
1. I state that I am the proprietor of the Petitioner firm in the above case and I am well conversant with the facts of the case. I am competent to swear to the contents of this affidavit.
2. I state that the Petitioner firm was the successful bidder in respect of Tender Notification dated
04.05.2019 issued by Respondent No.1 in respect of the works - "Installation of Road Signage's and Road Safety measures Phase-II Including O&M for five years". I state that in view of the same, an agreement dated 16.08.2019 was entered into by and between the Petitioner and Respondent No.1.
3. I state that the Petitioner firm have completed some of the works in the aforesaid project and thereafter, as explained in the subject Writ Petition, Termination Order bearing No. DSCL/KaAa-2/CR- 302/2022-23/1282 dated 14.10.2022 was passed by the Respondent No. 2 and Termination Order bearing No. DSCL/KaAa-2/CR-302/2022-23/1433 dated 21.11.2022 was passed by the Respondent No.1.
4. I state that Petitioner firm undertakes to complete the remaining works in respect of the Agreement dated 16.08.2019 i.e., Works Contract for Installation of Road Signage's and Road Safety measures Phase-II including O&M for five years within 3 months from the date of handing over entire work site, and it the same is not completed, Respondent No. 1 may terminate the contract without noticsse.
5. I state that Petitioner firm will co-operate with the Respondent No. 1 to complete the said project within 3 months and I request to Respondent No.1 to extend co-operation for the same.
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6. I do hereby state and declare that this in my name and signature and the contents of this affidavit are true and correct to the best of my knowledge, information and belief.
The additional affidavit dated 19.12.2023, reads as follows:
"3. I state that the Respondent No.1 has agreed to the Petitioner's affidavit filed on 28-11-2023, but subject to adding certain additional clauses. The additional clauses suggested by the Respondent No.1 are as follows:
(i) Sites are already given to the petitioner, once again, revised allocation of sites shall be given to the petitioner after consulting stakeholder departments.
(ii) In case the petitioner does not complete the work within 3 months respondent is entitled to levy Liquidated damages as per tender clauses and agreement shall stand terminated.
(iii) Petitioner shall execute the works as per the balance Bill of Quantities of the Agreement, and there shall not be any change in the rates which is exclusive of GST.
(iv) The petitioner shall not claim any
Escalation and compensation for
executing the balance work and Bill of Quantities.
(v) All clause of the Agreement dated 16-08-
2019 shall be enforceable.
(vi) The petition shall bear all the Court and other expenses related to this petition.
4. I state that the petitioner is agreeable to all the aforesaid additional clauses, except Additional -5- NC: 2023:KHC:46880 WP No. 13390 of 2023 Clause No. (i) and (vi) above. In so far as Additional Clause No.(i) is concerned, the petitioner states that the main subject of dispute between the Petitioner and Respondent No.1 is regarding handing over of sites/providing locations for commencement of work. However, the Petitioner without pressing the said contention, in order to give a quietus to the dispute, is ready and willing to complete the remaining works, if revised allocation of sites is provided to the Petitioner by the Respondents after consulting stakeholder departments.
5. I state that Petitioner firm undertakes to complete the remaining works in respect of the Agreement dated 16.08.2019 i.e., Works Contract for Installation of Road Signage's and Road Safety measures - Phase-II including O&M for five years within three (3) months from the date of handing over entire work site, and if the same is not completed, the Respondent No.1 may terminate the contract without notice.
6. I state that Petitioner firm will co-operate with the Respondent No.1 to complete the said project within three (3) months and I request to Respondents to extend co-operation for the same."
The only chock projected by the learned counsel for respondents is that, the undertaking at paragraph 4 of the additional affidavit, is open ended. A perusal at the additional affidavit would indicate that it is not from the date on which the revised allocation of sites provided to the petitioner, but the petitioner shall complete the work within 3 weeks thereafter, without seeking any extension of time thereof.
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4. In the light of the affidavits of undertaking so filed by the petitioner and it is acceptable to the respondents, the petition stands disposed. As a matter of form, the order of termination dated 14.10.2022, is set aside.
Ordered accordingly.
Sd/-
JUDGE NVJ List No.: 1 Sl No.: 79 CT:SS