Kerala High Court
Seguro Foundations And Structures Pvt ... vs Kerala Road Fund Board- Project ... on 31 January, 2020
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY, THE 31ST DAY OF JANUARY 2020 / 11TH MAGHA, 1941
WP(C).No.35673 OF 2019(H)
PETITIONER:
SEGURO FOUNDATIONS AND STRUCTURES PVT LTD.
REPRESENTED BY ITS AUTHORISED SIGNATORY AFSAL M.,
REGISTERED OFFICE, DOOR NO.VII/710 E AND E1, 2ND
FLOOR, MAVELIPURAM, THRIKKAKARA MUNICIPALITY,
ERNAKULAM, PIN CODE-682 030.
BY ADV. SRI.M.R.SUDHEENDRAN
RESPONDENTS:
1 KERALA ROAD FUND BOARD- PROJECT MANAGEMENT UNIT
SREEBALA BUILDING, 5TH FLOOR, KESTON ROAD,
NANDANCODE, THIRUVANANTHAPURAM-695 003 REPRESENTED
BY ITS PROJECT DIRECTOR.
2 KERALA INFRASTRUCTURE INVESTMENT FUND BOARD
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, OFFICE
OF THE KIIFB, STATUE, TRIVANDRUM.-695 001
3 THE EXECUTIVE ENGINEER
PWD (BRIDGES) DIVISION, ALAPPUZHA. -688 001
4 STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM.-695 001
BY ADVS.
SRI.V.G.ARUN (K/795/2004)-R2
SMT.V.JAYA RAGI-R2
SRI.SR. GP. K.V. MANOJ KUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
31.01.2020, ALONG WITH WP(C).35692/2019(J), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.P.(C)No.35673 & 35692 of 2019
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY, THE 31ST DAY OF JANUARY 2020 / 11TH MAGHA, 1941
WP(C).No.35692 OF 2019(J)
PETITIONER:
SEGURO FOUNDATIONS AND STRUCTURES PVT LTD.,
REGISTERED OFFICE DOOR NO.VII/710 E AND E1, IIND
FLOOR, MAVELIPURAM, THRIKKAKARA MUNICIPALITY,
ERNAKULAM, PIN CODE - 682 030, REPRESENTED BY ITS
AUTHORIZED SIGNATORY HAFZAL M.
BY ADV. SRI.M.R.SUDHEENDRAN
RESPONDENTS:
1 KERALA ROAD FUND BOARD,
PROJECT MANAGEMENT UNIT, SREEBALA BUILDING, 5TH
FLOOR, KESTON ROAD, NANDANCODE,
THIRUVANANTHAPURAM - 695 003, REPRESENTED BY ITS
PROJECT DIRECTOR.
2 KERALA INFRASTRUCTURE INVESTMENT FUND BOARD,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,
OFFICE OF THE KIIFB, STATUE, TRIVANDRUM-695 003
3 THE EXECUTIVE ENGINEER,
PWD (BRIDGES) DIVISION, ALAPPUZHA.-688 001
4 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,
PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM.-695 001
BY ADVS
SRI.K.V.MANOJ KUMAR, GOVT.PLEADER-R1
SRI.V.G.ARUN (K/795/2004)-R2
SMT.V.JAYA RAGI-R2
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
31.01.2020, ALONG WITH WP(C).35673/2019(H), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.P.(C)No.35673 & 35692 of 2019
3
JUDGMENT
These writ petitions are filed challenging termination of contracts which had been entered into by the petitioners with the 1 st respondent Kerala Road Fund Board.
2. Heard the learned counsel for the petitioner and the learned Government Pleader appearing for the respondent Nos.1, 3 and 4 as well as the learned Standing Counsel appearing for the 2 nd respondent.
3. W.P(C) No.35673/2019 is with regard to the termination of a contract entered into by the petitioner for the work of construction of the Thottappally-Naluchira bridge across the Pampa river in Alappuzha district. Ext.P23 is the order of termination of contract.
4. The learned counsel for the petitioner submits that the petitioner, which is a company incorporated under the Companies Act, had submitted the tender and had entrusted with a work by Ext.P1. It is submitted that the agreement was executed on 02-03-2019 and the site was handed over on 08-03-2019. The schedule for carrying out the works was also duly submitted. After the work commenced, it is submitted that the petitioner noticed that there W.P.(C)No.35673 & 35692 of 2019 4 were several hindrances to carrying out the works since the land acquisition proceedings for the land span approaches to the bridge in question had not been completed and there were obstructions from the landlords. It is stated that there were posts belonging to the KSEB directly in the line of works which would have to be shifted. These aspects were brought to the notice of the respondents by Ext.P9 letter dated 12-06-2019. Thereafter also, the petitioner had informed the 3rd respondent of the reasons for the delay in carrying out the work in question due to the hindrances on the site.
5. It is stated that a meeting was convened by the District Collector, Alappuzha and a Land Acquisition Officer was appointed and directed to take steps for completion of the acquisition proceedings. It is stated that the petitioner thereafter informed the 3rd respondent that GFC drawings for pile caps were required to be made available by the 3rd respondent, but the said drawings were not made available. The petitioner had also brought this aspect to the notice of the 3rd respondent by issuing Ext.P13 letter. The petitioner relies on the communications between the petitioner and the respondents to contend that there were clear hindrances to carrying W.P.(C)No.35673 & 35692 of 2019 5 out the works, the petitioner had repeatedly informed the respondents about the same, which were not addressed by the respondents, which resulted in the progress of the work being rendered slow.
6. However it is submitted that notices had been issued by the respondents and a stop memo was issued on 04-11-2019 and 06-11-2019, stating that since the progress of the work was slow the petitioner should desist from doing any further works and that the work is liable to be terminated at his risk and cost. It is submitted that the petitioner had received a notice by E-mail on 04-12-2019 from the 1st respondent requiring him to attend a meeting to assess the situation and to discuss the follow up action in respect of the work. It is stated that the petitioner attended the meeting on 06-12-2019 and appraised the 1st respondent about the reasons for the slow progress of the work and had requested for appropriate remedial action. However, Ext.P23 order has been passed on 16-12-2019, deciding to terminate the work at the risk and cost of the petitioner and forfeiting the security deposit to the 3rd respondent. It is contended that Ext.P23 which is rendered without considering the W.P.(C)No.35673 & 35692 of 2019 6 request of the petitioner with regard to removal of hindrances for the completion of a work, is completely illegal and that the petitioner is liable to be granted another chance to state his grievances before the 1st respondent and the decision with regard to termination is liable to be re-considered.
7. The first respondent has placed counter affidavit on record. It is stated that the address of the petitioner at the site of executing the agreement was M/s. Seguro Foundations and Structures Pvt.Ltd, Door No.635-A4, 2nd floor, Chakkappan Centre, Edappally P.O, Cochin- 682 024. It is stated that the petitioner had changed his office to a new address without communicating the fact to the respondents. It is stated that after the handing over the site the preliminary works were not promptly carried out by the petitioner and no steps were taken for mobilisation of equipment, installation of site office, setting up of laboratory etc., and that the petitioner had been put on notice as early as on 07-06-2019 that the progress of the work was slow. It is stated that 68 piles ought to have been completed before 11-11-2019 but in June 2019 only 7 piles had been completed by the petitioner. It is stated that a meeting of the land owners was W.P.(C)No.35673 & 35692 of 2019 7 conducted by the Land Acquisition Deputy Collector on 11-07-2019 and the land owners had been assured that the land acquisition proceedings will be completed without delay. It is stated that after the said meeting the land owners had never interfered with the progress of the work and the petitioner is still to carry out the works. It is further submitted that the factual disputes raised by the petitioner are not to be considered by this Court in exercise of its jurisdiction of judicial review and that the fact of the matter was that the petitioner had been put on notice of the delay in completion of the works which was not properly explained by the petitioner. It is stated that the Executive Engineer had reported that the work was at a standstill and that the last work executed on site was 7 th pile concrete at land span on 05-09-2019 and that only 4% of works was completed after seven months of the date of the handing over of the site instead of the 30% which ought to have been completed according to the work schedule. It is stated that initial termination notice had been issued to the petitioner and thereafter Ext.R1(g) notice was also issued on 30-10-2019.
8. Thereafter a meeting was convened by the Ministry of Public W.P.(C)No.35673 & 35692 of 2019 8 Works on 18-11-2019 and since there was no progress in the works in respect of which the petitioner had executed agreements, it was decided that the petitioner would withdraw from the works in question and inform the Executive Engineer appropriately. It is stated that even thereafter, the petitioner had not taken any steps to restart the work or for showing his bonafides with regard to the same and therefore, the order had been passed terminating the work at the risk and cost of the petitioner. It is submitted that the said action is not liable to be re-considered in view of the specific fact that the petitioner had voluntarily agreed to withdraw from the work in question and that no purpose would be served by the re-consideration of the issue since the fact remains that after 05-09-2019 no work has been conducted on site and that the contentions of the petitioner is mainly with regard to the reason for the delay carrying out the works in question.
9. W.P(C) No.35692/2019 is filed with regard to the termination of the contract for construction of Perumbalam- Panavally bridge in Alappuzha district. The contention of the petitioner in the said writ petition is that though the agreement was executed on 31-08-2019 W.P.(C)No.35673 & 35692 of 2019 9 and the site was handed over only much later on 17-10-2019. It is stated that the petitioner was facing financial crisis to the petitioner and that the petitioner could not start the work at site. It is stated that by Ext.P3 letter dated 10-10-2019, the petitioner had informed the respondents about the reasons for the delay. However a stop memo was issued to the petitioner on 06-11-2019 and thereafter the present order of termination was issued without considering any of the contentions raised by the petitioner.
10. A counter affidavit has been placed on record by the 1 st respondent, stating that though the agreement was executed on 31-08-2019 and proforma for handing over the site was sent to the petitioner through registered post in the address given in the agreement, the same was returned on 14-10-2019 to the sender due to non availability of the addressee. Thereafter, notices were issued to the petitioner and the petitioner accepted the notices and the site could be handed over in October, 2019 due to the fact that the petitioner had shifted the office without giving intimation to the respondents. It is stated that thereafter also no steps had been taken for starting the work even after the handing over of the site and that W.P.(C)No.35673 & 35692 of 2019 10 the petitioner had been repeatedly put on notice that in case the work is not starting the contract will be terminated at his risk and cost. It is stated that no explanation could be provided by the petitioner about the work terminating at his risk and cost.
11. The contention of the learned counsel for the petitioner is that the reasons for the delay in executing the work, which had been brought to the notice of the respondents, had not been properly considered and that as such the termination of the work was not warranted.
12. Having considered the contentions advanced and the averments in the writ petitions as well as the counter affidavits, I find that the issue is with regard to the factual aspects involved in the termination of a contract between the parties. It is trite law that the issue with regard to termination of a contract cannot be considered by this Court when the questions raised are factual in nature. In the instant case, I find that all the questions involved are essentially factual. In view of the specific provisions of the PWD manual with regard to the termination of work at the risk and cost as a consequence of non starting of works within 28 days from the date of W.P.(C)No.35673 & 35692 of 2019 11 the handing over of the site and as a consequence of not meeting the work schedule, I am of the opinion that the question with regard to termination cannot be considered by this Court in these proceedings. The further contentions of the petitioner with regard to consent of the petitioner to withdraw from the work have been recorded in the minutes of the meeting held on 06-12-2019 are also factual aspects which this Court would not be empowered to adjudicate. In the above view of the matter, I am of the opinion that the prayers sought for in these writ petitions cannot be granted. These writ petitions fail and the same is accordingly dismissed.
Sd/-
ANU SIVARAMAN JUDGE KAS W.P.(C)No.35673 & 35692 of 2019 12 APPENDIX OF WP(C) 35673/2019 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE LETTER OF ACCEPTANCE DATED 07.01.2019 ISSUED BY THE FIRST RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE AGREEMENT DATED 02.03.2019.
EXHIBIT P3 TRUE COPY OF THE ACKNOWLEDGMENT FORM OF THE HANDING OVER OF THE SITE TO THE CONTRACTOR.
EXHIBIT P4 TRUE COPY OF THE CONCRETE MIX DESIGN REQUEST DATED 25.03.2019 SUBMITTED BY THE PETITIONER.
EXHIBIT P5 TRUE COPY OF THE E-MAIL DATED 04.04.2019 FORWARDING SITE LEVEL CALCULATION SHEET AND VOLUME CALCULATION SHEET OF RED EARTH FILLING.
EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 04.05.2019 SUBMITTED STEEL SAMPLE FOR TESTING BEFORE CUSAT AND COCHIN SHIPYARD.
EXHIBIT P7 TRUE COPY OF THE LETTER DATED 14.05.2019 OF THE 3RD RESPONDENT COMPLAINING ABOUT THE SLOW PROGRESS OF THE WORK OF THE PETITIONER.
EXHIBIT P8 TRUE COPY OF THE COMMUNICATION DATED 24.05.2019 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE LETTER DATED 12.06.2019.
EXHIBIT P10 TRUE COPY OF THE COMMUNICATION DATED 19.06.2019 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT.
EXHIBIT P11 TRUE COPY OF THE RELEVANT PAGES OF THE PROCEEDINGS OF MEETING ON 26.06.2019.
W.P.(C)No.35673 & 35692 of 2019 13 EXHIBIT P12 TRUE COPY OF THE COMMUNICATION DATED 20.07.2019 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT.
EXHIBIT P13 TRUE COPY OF THE COMMUNICATION DATED 23.08.2019 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT.
EXHIBIT P14 TRUE COPY OF THE ABOVE COMMUNICATION DATED 17.09.2019.
EXHIBIT P15 TRUE COPY OF THE LETTER DATED 30.10.2019 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.
EXHIBIT P16 TRUE COPY OF THE COMMUNICATION DATED 08.11.2019 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT.
EXHIBIT P17 TRUE COPY OF THE STOP MEMO DATED 04.11.2019 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.
EXHIBIT P18 TRUE COPY OF THE STOP MEMO DATED 06.11.2019.
EXHIBIT P19 TRUE COPY OF THE REPLY DATED 12.11.2019 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT.
EXHIBIT P20 TRUE COPY OF THE LETTER DATED 06.12.2019 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT.
EXHIBIT P21 TRUE COPY OF THE LETTER DATED 13.12.2019 EXHIBIT P22 TRUE COPY OF THE E-MAIL COMMUNICATION. EXHIBIT P23 TRUE COPY OF THE PROCEEDINGS DATED 16.12.2019 ISSUED BY THE 1ST RESPONDENT.
W.P.(C)No.35673 & 35692 of 2019 14 RESPONDENT'S/S EXHIBITS:
EXHIBIT R1(A) TRUE COPY OF THE OFFICIAL ADDRESS SUBMITTED BY THE PETITIONER AT TIME OF EXECUTING AGREEMENT.
EXHIBIT R1(B) TRUE COPY OF THE G.O. NO.203/2019/PWD DATED 11.02.2019.
EXHIBIT R1(C) TRUE COPY OF THE LETTER NO.SFS/PROJECTS/036/2019-20 DATED 07.06.2019 TO THE ASSISTANT ENGINEER, PWD BRIDGES SECTION, THAKAZHI, ALAPPUZHA.
EXHIBIT R1(D) TRUE COPY OF THE CLAUSE 1113.1 AND CLAUSE 1118.
EXHIBIT R1(E) TRUE COPY OF THE ORDER WITH THE REFERENCE NUMBER DMG NO.314/2019- 20/7617/M3/2019 DATED 21.08.2019.
EXHIBIT R1(F) TRUE COPY OF THE MINUTES OF THE MEETING DATED 18.11.2019.
EXHIBIT R1(G) TRUE COPY OF THE NOTICE DATED 30.10.2019.
W.P.(C)No.35673 & 35692 of 2019 15 APPENDIX OF WP(C) 35692/2019 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE LETTER OF ACCEPTANCE DATED 05/08/2019 ISSUED BY THE FIRST RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE AGREEMENT DATED 31/08/2019.
EXHIBIT P3 TRUE COPY OF THE LETTER DATED 10/10/2019.
EXHIBIT P4 A TRUE COPY OF THE STOP MEMO DATED 04/11/2019.
EXHIBIT P5 TRUE COPY OF THE STOP MEMO DATED 16/11/2019.
EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 11/11/2019.
EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED 09/12/2019 SUBMITTED BY THE PETITIONER.
EXHIBIT P8 TRUE COPY OF THE LETTER DATED 13/12/2019.
EXHIBIT P9 TRUE COPY OF THE EMAIL COMMUNICATION DATED 04/12/2019.
EXHIBIT P10 TRUE COPY OF THE PROCEEDINGS DATED 16/12/2019 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P11 TRUE COPY OF THE LETTER DATED 18/11/2019 POSTED ON 16/12/2019 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P12 TRUE COPY OF THE REPLY DATED 17/12/2019.
EXHIBIT P13 TRUE COPY OF THE PILE DETAILED DRAWING DATED 16/12/2019.
W.P.(C)No.35673 & 35692 of 2019 16 RESPONDENT'S/S EXHIBITS:
EXHIBIT R1(A) TRUE COPY OF THE OFFICIAL ADDRESS SUBMITTED BY THE PETITIONER AT TIME OF EXECUTING AGREEMENT.
EXHIBIT R1(B) TRUE COPY OF THE LETTERS DATED 03.10.2019 AND 17.10.2019 ISSUED TO THE CONTRACTOR FROM THE OFFICE OF THE ASSISTANT ENGINEER PWD BRIDGES SECTIONS, ALAPPUZHA.
EXHIBIT R1(C) TRUE COPY OF THE LETTER DATED 20.09.2019.
EXHIBIT R1(D) TRUE COPY OF THE COMMUNICATION DATED 16.10.2019 TO MOBILIZE REQUIRED MEN AND MACHINERY AT SITE.
EXHIBIT R1(E) TRUE COPY OF THE MINUTES OF THE MEETING DATED 18.11.2019.
EXHIBIT R1(F) TRUE COPY OF CLAUSE 4.3(K) OF INTIMATION TO BIDDER AND CLAUSE 1.7 OF QUALIFICATION OF INFORMATION.
EXHIBIT R1(G) TRUE COPY OF THE NOTICE WARRANTING TERMINATION WAS ISSUED ON 30.10.2019 AND NOTICE DATED 18.11.2019.
EXHIBIT R1(H) TRUE COPY OF THE MINUTES OF HEARING HELD ON 06.12.2019.
EXHIBIT R1(I) TRUE COPY F DISPATCH REGISTER PAGE 56,57,58,59 QUALIFICATION OF INFORMATION.