Patna High Court
Kems Services Pvt. Ltd vs The State Of Bihar & Ors on 3 August, 2017
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Revision No.24 of 2015
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1. Kems Services Pvt. Ltd. through its Managing Director Mr. Mohan Kumar
Khandelwal. Son of Shri Durga Prasad Khandelwal. 76, B1/B, Mourya Lok
Complex, Dak Bunglow Road, P.S.- Kotwali, Patna - 1, State - Bihar.
.... .... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Water Resources Department,
"Sinchai Bhawan", Harding Road, Patna.
2. The Engineer-in-Chief (North), Water Resources Department, "Sinchai Bhawan",
Harding Road, Patna.
3. The Chief Engineer, Water Resources Department, Bhagalpur.
4. The Superintending Engineer, Water Resources Department, Sinchai Anchal,
Bhagalpur.
5. The Executive Engineer, Water Resources Department, Flood Control Division,
Naugahia, District - Bhagalpur.
6. The Executive Engineer, Water Resources Department, Irrigation Division,
District - Bhagalpur.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Rajendra Narayan
Mr. Manish Sahay
Mr. Anil Kumar Sinha
For the Respondent/s : Mr. Kameshwar Prasad
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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
ORAL JUDGMENT
Date: 03-08-2017
Supplementary counter affidavit as well as reply to the
rejoinder are separately filed on behalf of the opposite parties. let
supplementary counter affidavit as well as reply to the rejoinder be
kept on record.
2. Heard learned counsel for the petitioner as well as
learned counsel appearing for the opposite parties.
Patna High Court C.R. No.24 of 2015 dt.03-08-2017
2/8
3. Petitioner is aggrieved by the part of award dated
25.11.2014passed in Reference Case no. 26 of 2013 by Bihar Public Works Contracts Disputes Arbitration Tribunal, Patna by which and whereunder the Tribunal has refused to release the amount of security deposit as well as amount which was deducted under the head of "time extension" and Tribunal only released the amount of Rs. 4,53,45,473/- to the petitioner.
4. The facts of the present case are almost admitted between the parties. It is an admitted position that petitioner was allotted the work of anti- erosion work for restoration of damage spur nos. 3, 4, 5, 6 and 7 of Ismailpur- Bindtoli, Vikramshila for the year 2011-12 and accordingly, the agreement between the parties was executed on 25.04.2011 and petitioner had to complete the work within 36 days meaning thereby till 31.05.2011 but before the expiry of time given to the petitioner for completion of work subsequently, the period for completion of work was extended to 10.07.2011. However, before expiry of extended period another contractor was appointed by the department for completion of the work earlier allotted to the petitioner. The department rescinded the contract of the petitioner on 4.12.2011 and also black listed the petitioner. However, it is an admitted position that petitioner challenged the above stated order of department before this Court and in several round of Patna High Court C.R. No.24 of 2015 dt.03-08-2017 3/8 litigations, lastly this Court set aside the order of blacklisting the petitioner and also set aside the order of rescind on the ground of violation of natural justice and liberty was granted to the department to take fresh step after giving proper notice to the petitioner. However, after the order of this Court, the department again passed order in respect of blacklisting of the petitioner but again the aforesaid order of the department was set aside by Division Bench of this Court.
5. The petitioner approached before the tribunal for payment of his dues and the Tribunal having considered the materials available before him passed the impugned award. For determination of the dispute of the parties, tribunal framed following issues;-
(1) Whether the petitioners shall be entitled to payment towards the unpaid dues for the work done ?
(2) Whether the petitioners shall be entitled to payment for deduction towards security deposit ?
(3) Whether the petitioner shall be entitled to refund of the deducted amount for extension of time ?
(4) Whether the petitioner shall be entitled to deduction towards quality control and miscellaneous deduction ?
(5) Whether the petitioner shall be entitled to payment towards deduction of sales Tax, Income Tax, royalty in Earth work and work, In regard to the boulders as also labourcess ?
Patna High Court C.R. No.24 of 2015 dt.03-08-2017 4/8 (6) To what relief or reliefs, the petitioner shall be entitled.
6. Learned counsel appearing for the petitioner submits that Tribunal while dealing with point no. 1 made wrong calculation because it was admitted case of the department that petitioner done the work up to Rs.4,53,45,473 lacs and only Rs. 65,33,000 lacs was paid to the petitioner and, therefore, the Tribunal committed error in calculating the amount in question. In support of his contention, learned counsel for the petitioner drew my attention towards Annexures-1 and -2 series.
7. Learned counsel for the petitioner further submitted that the Tribunal erroneously refused to release the amount of security deposit particularly, in the circumstance when the Tribunal held that the work could not be completed due to reciprocal default of the parties and moreover, it is an admitted position that before the expiry of period of completion of work, the work of the petitioner was allotted to another person and, therefore, in the aforesaid circumstance, the department had got no authority to forfeit the amount of security deposit. He further submitted that the Tribunal also refused to release the amount which was deducted under the head of "time extension" because admittedly, the time was extended by the department and before expiry of the time, the work of the petitioner Patna High Court C.R. No.24 of 2015 dt.03-08-2017 5/8 was allotted to another contractor.
8. On the other hand, learned counsel appearing for the respondents refuted the above stated submissions arguing that the Tribunal has discussed all the pros and cons of the matter and rightly refused to release the amount of security deposit as well as made deduction under the head of "time extension" because admittedly, the petitioner did not complete the work allotted to him and as per agreement, the Tribunal had authority to forfeit the security deposit and the department was also empowered to deduct the amount under the head of "time extension". Therefore, there is no ground for this Court to interfere into the findings of the Tribunal.
9. It would appear from the submissions of the parties as well as pleadings available on the record that the petitioner has three fold grievances. The first grievance of the petitioner is for none releasing the security deposit and second is deduction of amount towards "time extension" and thirdly, the wrong calculation of the amount by the Tribunal.
10. Annexure-1 to the petition goes to show that the department forfeited the security deposit amount of Rs. 36,27,637/- and also made deduction under the head of "time extension" to the tune of Rs. 12,24,990/-.
11. Annexure-2 series go to show that the petitioner did Patna High Court C.R. No.24 of 2015 dt.03-08-2017 6/8 work to the tune of Rs. 6,99.56 lacs and as per Annexure-1 only Rs. 4,53,45,473/- was paid to the petitioner out of above stated amount of Rs. 699.54 lacs, but it is obvious from perusal of impugned award that the tribunal made wrong calculation by calculating the admitted dues amount to the petitioner and, therefore, in my view, the grievance of petitioner in respect of wrong calculation made by the Tribunal is genuine.
12. Admittedly, The tribunal has refused to release the amount of security deposit on the ground that the department rescinded the contract when the petitioner failed to complete the work but as I have already stated that when the department rescinded the contract of the petitioner, he challenged the order of department before this Court by filing writ petition which was allowed and the order of department was set aside giving liberty to the department to take fresh step in accordance with law after giving proper opportunity to the petitioner but after that order of the High Court, the department never rescinded the contract rather passed order only in respect of blacklisting the petitioner which was subsequently, set aside by the Division Bench of this Court.
13. Therefore, in my view, the Tribunal wrongly held that the department had rescinded the contract of the petitioner and forfeited the security amount in accordance with law. Moreover, it is Patna High Court C.R. No.24 of 2015 dt.03-08-2017 7/8 an admitted position that before expiry of extended period, the department had appointed another contractor to complete the work of the petitioner without giving any notice to the petitioner and, therefore, in my view, the department had got no authority to foefeit the amount of security deposit because it was the department who had broken the terms and conditions of the contract and not the petitioner. Moreover, the department appointed another contractor for execution of the work without rescinding the contract of the petitioner.
14. Similarly, the department had no authority to deduct the amount under the head of "time extension" because initially, only 36 days were given to the petitioner to complete the work but subsequently, the department extended the period for completion of work till 10.07.2011 and before expiry of the aforesaid period, the department appointed another contractor, therefore, in the aforesaid circumstance, I am of the opinion that the Tribunal committed error in refusing to release the amount which was deducted by the department under the head of "time extension".
15. On the basis of aforesaid discussion, in my view, the amount of award dated 25.11.14 is liable to be modified and accordingly, the award dated 25.11.2014 passed by the Bihar Public Works Contracts Disputes Arbitration Tribunal, Patna is modified to Patna High Court C.R. No.24 of 2015 dt.03-08-2017 8/8 the above stated extent that the amount deducted under the head " of time extension" as well as security deposit will be released in favour of the petitioner and also the department shall make fresh calculation taking note of Annexures-1 and 2 series and ensure the payment of remaining dues to the petitioner with interest as fixed by the Tribunal itself within 30 days from the date of receipt/ production of a copy of this order.
16. Accordingly, this Revision petition stands dismissed.
(Hemant Kumar Srivastava, J) N.K/-
AFR/NAFR NARF CAV DATE NAFR Uploading Date 17.08.2017 Transmission 17.08.2017 Date