Kerala High Court
M/S.Ghv-Ekk (Joint Venture) vs The State Of Kerala on 5 May, 2014
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 16TH DAY OF MARCH 2017/25TH PHALGUNA, 1938
WP(C).No. 1700 of 2017 (J)
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PETITIONER :
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M/S.GHV-EKK (JOINT VENTURE),
REPRESENTED BY THE POWER OF ATTORNEY HOLDER,
SANJU MUHAMMED, IIND FLOOR, MUNICIPAL BUILDING,
A.M.ROAD, PERUMBAVOOR -683 542,
ERNAKULAM DISTRICT.
BY SRI.K.L.VARGHESE,SENIOR ADVOCATE
ADVS. SMT.SANTHA VARGHESE
SRI.RAHUL VARGHESE
SRI.RANJITH VARGHESE
RESPONDENT(S):
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1. THE STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM- 695 001.
2. THE PROJECT DIRECTOR,
KERALA STATE TRANSPORT PROJECT,
T.C.11/339, JAGAD BUILDING, KESTON ROAD,
KOWDIAR P.O, THIRUVANANTHAPURAM -695 003.
R1 & R2 BY SR GOVERNMENT PLEADER SRI.K.V.MANOJ KUMAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 16-03-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
sts
WP(C).No. 1700 of 2017 (J)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 TRUE COPY OF THE CONTRACT AGREEMENT DATED 5.5.2014 ENTERED
INTO BETWEEN THE PETITIONER AND THE 2ND RESPONDENT
P2 TRUE COPY OF THE SUPPLEMENTAL AGREEMENT/VARIATION ORDER
EXECUTED BETWEEN THE PETITIONER AND THE 2ND RESPONDENT
P3 TRUE COPY OF THE TERM IN THE AGREEMENT RELATING TO
CONSTITUTION OF DISPUTE REVIEW BOARD
P4 TRUE COPY OF THE LETTER DATED 18.11.2016 ISSUED BY THE 2ND
RESPONDENT TO THE PETITIONER
P5 TRUE COPY OF PAGE NO. 174 OF THE CONTRACT AGREEMENT
CONTAINING CLAUSE 14.7 AND 14.8.
P6 TRUE COPY OF THE LETTER DATED 27/02/2017 ISSUED BY THE RESIDENT
ENGINEER/TEAM LEADER TO THE 2ND RESPONDENT CERTIFYING FOR
PAYMENT OF IPC 38
P7 TRUE COPY OF THE LETTER DATED 06/03/2017 ISSUED BY THE RESIDENT
ENGINEER/TEAM LEADER TO THE 2ND RESPONDENT CERTIFYING FOR
PAYMENT OF IPC 39
P8(A) TRUE COPY OF THE PHOTOGRAPH SHOWING THE PRESENT CONDITION
OF THE ROAD PARTLY DONE FOR KSTP WORK
P8(B) TRUE COPY OF THE PHOTOGRAPH SHOWING THE PRESENT CONDITION
OF THE ROAD PARTLY DONE FOR KSTP WORK
P8(C) TRUE COPY OF THE PHOTOGRAPH SHOWING THE PRESENT CONDITION
OF THE ROAD PARTLY DONE FOR KSTP WORK
P9(A) TRUE COPY OF THE PHOTOGRAPH SHOWING THE PRESENT CONDITION
OF THE ROAD PARTLY DONE FOR RICK PACKAGE WORK.
P9(B) TRUE COPY OF THE PHOTOGRAPH SHOWING THE PRESENT CONDITION
OF THE ROAD PARTLY DONE FOR RICK PACKAGE WORK.
P9(C) TRUE COPY OF THE PHOTOGRAPH SHOWING THE PRESENT CONDITION
OF THE ROAD PARTLY DONE FOR RICK PACKAGE WORK.
P9(D) TRUE COPY OF THE PHOTOGRAPH SHOWING THE PRESENT CONDITION
OF THE ROAD PARTLY DONE FOR RICK PACKAGE WORK.
P10 TRUE COPY OF LETTER DATED 6/3/2017 ISSUED BY STATE BANK OF
TRAVANCORE, COMMERCIAL BRANCH, ERNAKULAM.
2/-
-2-
WP(C).NO.1700/2017
P11 TRUE COPY OF CIRCULAR NO.12/10/11 DATED 28/10/2011 ISSUED BY THE
CENTRAL VIGILANCE COMMISSION
P11(A) TRUE COPY OF THE CIRCULAR NO.3(V)/99/9 DATED 01/10/1999 ISSUED BY
THE CENTRAL VIGILANCE COMMISSION
P11(B) TRUE COPY OF THE CIRCULAR ISSUED BY THE CENTRAL VIGILANCE
COMMISSION WITH INDEX.
P12 TRUE COPY OF THE LETTER DATED 14/12/2016 ISSUED BY THE
RESPONDENT TO THE DISPUTE BOARD.
P13 TRUE COPY OF THE LETTER DATED 02/03/2016 ISSUED BY THE
RESPONDENT T CONTRACTORS INCLUDING PETITIONER.
P14 TRUE COPY OF THE SCHEDULE OF RATES APPROVED BY BPCL-KOCHI
REFINERY.
P15 TRUE COPY OF THE CERTIFICATE OF PENDING PAYMENTS CERTIFIED BY
ENGINEER-IPC 39
P16 TRUE COPY OF THE LETTER DATED 10/03/2017 ISSUED BY TEAM LEADER
TO THE 2ND RESPONDENT WITH COPY TO PETITIONER.
P17 TRUE COPY OF THE RECOMMENDATIONS OF DISPUTE BOARD ALONG
WITH COVERING LETTER DATED 07/01/2017 TO THE PETITIONER AND
RESPONDENT
P18 TRUE COPY OF THE LETTER DATED 19/02/2016 ISSUED BY THE
PETITIONER TO THE TEAM LEADER
RESPONDENT(S)' EXHIBITS
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R2(A) COPY OF THE DOCUMENT SHOWING THE RATE OF ITEM NOT NEGOTIATED
WITH THE PETITIONER.
R2(B) COPY OF THE RELEVANT PAGE OF THE CONTRACT.
R2(C) COPY OF THE LETTER
R2(D) COPY OF THE DECISION TAKEN BY THE STEERING COMMITTEE.
R2(E) COPY OF THE COMMENTS/RECOMMENDATION ON THE VARIATIONS OF THE
WORK FORWARDED BY ACB.
R2(F) COPY OF THE SHOWING THE DISPUTE REFERRED THE PETITIONER.
R2(G) COPY OF THE DOCUMENT.
/TRUE COPY/
sts P.A.TO JUDGE
SHAJI P. CHALY, J.
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W.P.(C). NO. 1700 OF 2017
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Dated this the 16th day of March, 2017
JUDGMENT
Petitioner has entered into Ext. P1 agreement for upgradation of a road. According to the petitioner, the project was being financed by world bank and therefore, there is no difficulty for payment to be effected. According to the petitioner, other contractors doing similar works are paid, overlooking petitioner's priority and against the principle of 'first done first paid' as held by this Court in State of Kerala v. Anil [2002 (1) KLT 371 (FB)]. During the course of the work, a part bill was raised by the petitioner and according to the petitioner, the certified bill alone will come to Rs. 68 Crores and respondents are duty bound to release the bill amount to the petitioner. It is in this background seeking appropriate directions, this writ petition is filed.
W.P.(C). NO. 1700 OF 2017 2
2. A detailed counter affidavit is filed by the respondents disputing the claims and demands raised by the petitioner. Other circumstances are also pointed out to canvass the proposition that considering the contract entered into by and between the parties and the deviations that have to be noted down, amounts are due from the petitioner to the respondents. It is also stated in the counter affidavit that an amount of Rs. 40.92 Crores is paid in excess to the contractor/petitioner, which is liable to be recouped from the petitioner. Other contentions are also raised to suggest a proposition that disputes are pending by and between the parties in respect to the contract awarded.
3. Anyhow since respondents have stated that according to their assessment an amount of Rs. 40.92 Crores is remaining due from the petitioner consequent to the excess payment, I am of the considered opinion that still amounts are remaining due to the petitioner, in accordance with the bills raised. In that view of the matter, I think it is only appropriate that a direction is issued to the competent W.P.(C). NO. 1700 OF 2017 3 among the respondents to release the balance amount other than the amount of Rs. 40.92 Crores stated in the counter affidavit filed by the respondents, within a time frame and other questions raised by the parties in the writ petition as well as in the counter affidavit can be left open to be agitated before the appropriate forum during the appropriate time.
4. Having heard learned Senior Counsel for the petitioner and learned Senior Government Pleader and perusing the documents on record and the pleadings, there will be a direction to the second respondent to release the balance amount after retaining an amount of Rs. 40.92 Crores suggested in the counter affidavit as allegedly due from the petitioner, after making all statutory deductions. 30% of the amount shall be paid on or before 31.03.2017 and the balance within a further period of thirty days. I make it clear that all the questions of fact and law raised in the writ petition and counter affidavit are left open to be agitated before the appropriate forum. I also make it clear W.P.(C). NO. 1700 OF 2017 4 that the second respondent shall consider the question of release of the half of the retention amount also within the time frame so provided.
Writ petition is disposed of accordingly.
SHAJI P. CHALY JUDGE DCS