Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI THURSDAY, THE3D DAY OF APRIL201413TH CHAITHRA, 1936 WP(C).No. 13326 of 2011 (M) ---------------------------- PETITIONER: -------------- JAYACHANDRAN.K ILLIKULATH VEEDU, THOTTATHUM MURI, THIRUTHIKARA P.O. KUNNATHOOR, KOLLAM. BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA SMT.D.S.THUSHARA RESPONDENT: ----------------- THE MANAGING DIRECTOR ROADS AND BRIDGES DEVELOPMENT CORPORATION KERALA LTD., 2ND FLOOR, PREETHI BUILDING, M.V.ROAD, PALARIVATTOM, KOCHI-25. R,R1 BY ADV. SRI.M.VIJAYA KUMAR, SC, RBDCK THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON0304-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 13326 of 2011 (M) :
2. : APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE AGREEMENT EXECUTED BY THE PETITIONER AND RESPONDENT ON1808.2010. EXT.P2 : TRUE COPY OF THE BANK GUARANTEE WITH COVERING LETTER DATED1608.2010. EXT.P3 : TRUE COPY OF THE REPRESENTATION DATED0710.2010. EXT.P4 : TRUE COPY OF THE REPRESENTATION DATED0203.2011. EXT.P5 : TRUE COPY OF THE NEWS PAPER REPORT DATED1904.2011. EXT.P6 : TRUE COPY OF THE NEWS PAPER REPORT DATED1904.2011. EXT.P7 : TRUE COPY OF THE REPRESENTATION BEFORE THE RESPONDENT ON2004.2011. EXT.P8 : TRUE COPY OF THE PROCEEDINGS ISSUED BY THE RESPONDENT DATED0305.2011. EXT.P9 : TRUE COPY OF THE ACKNOWLEDGEMENT OF HANING OVER THE SITE DATED0905.2011. EXT.P10 : TRUE COPY OF THE INFORMATION GIVEN BY UNDER THE RIGHT TO INFORMATION ACT. EXT.P11 : TRUE COPY OF THE APPLICATION UNDER THE RIGHT TO INFORMATION ACT. EXT.P12 : TRUE COPY OF THE PROCEEDINGS OF BANK DATED1608.2011. RESPONDENTS' EXHIBITS: EXT.R1(a) : TRUE COPY OF THE NOTICE DATED0309.2010. EXT.R1(b) : TRUE COPY OF THE NOTICE DATED1409.2010. EXT.R1(c) : TRUE COPY OF THE NOTICE DATED2009.2010. EXT.R1(d) : TRUE COPY OF THE NOTICE DATED0303.2011. EXT.R1(e) : TRUE COPY OF THE NOTICE DATED2603.2011. EXT.R1(f) : TRUE COPY OF THE NOTICE DATED2004.2011. //TRUE COPY// P.A. TO JUDGE rv A.-W.P.(C). V. RAMAKRISHNA PILLAI, J.
- - - - - - -13326- - --- - - - - - Dated this the- 3rd day of-April,-2014. - - - - -No.- - - - -of-2011- JUDGMENT
Aggrieved by the recovery pursuant to Ext.P8 notice and the attempt to encash the bank guarantee by the respondent, the petitioner has come up before this Court.
2. The petitioner, who is a contractor, entered into an agreement for the collection of toll from Muzhuppilangad Railway Over Bridge from 01.08.2010 to 31.07.2011 as evident from Ext.P1. A sum of ` 28,05,000/- was given as security. The petitioner alleges that ultimately in February 2011, another bridge which was very close to the aforesaid over bridge collapsed and therefore, the traffic was diverted by the police resulting in considerable reduction of toll collection as evident from Ext.P3. Considering the request of the petitioner, the contract was cancelled as evident from Ext.P8. The grievance of the petitioner is that the recovery of arrears as per the contract is being proceeded against, even though Exts.P4 and P7 would go to show that there is W.P.(C) No. 13326/2011 :
2. : no inaction on the part of the petitioner in performing the contract.
3. In the counter affidavit filed by the respondent, it is contended that the contract with the petitioner was terminated as per Ext.P8 as on 09.05.2011 considering the defaults made by him and his unwillingness to proceed with the contract, and that the petitioner was directed to remit all the outstanding dues as on the aforesaid date and to settle the accounts before 10.05.2011. The definite stand taken by the respondent is that R1(d) to R1(f) notices were issued to the petitioner. However, instead of clearing the dues, the petitioner as per Ext.P7 letter informed that the traffic through the bridge was reduced due to an accident occurred on 18.04.2011 on another bridge called Moidu Bridge on NH17causing reduction in collection.
4. These contentions were refuted by the petitioner through his reply affidavit.
5. Arguments have been heard.
6. It appears that Ext.P7 representation is now W.P.(C) No. 13326/2011 :
3. : pending before the respondent. As it is the definite case of the petitioner that Ext.P8 is silent regarding the exact liability of the petitioner, this Court is of the definite view that the matter requires a re-look by the respondent. Therefore, this writ petition is disposed of directing the respondent to consider Ext.P7 after affording the petitioner an opportunity of being heard. This exercise shall be completed within a period of three months. To facilitate an early action in the matter, it shall be open to the petitioner to produce a copy of this judgment along with the representation before the respondent within one month. Needless to say that the existing state of affairs shall continue till a final decision is taken by the respondent on Ext.P7. sd/- A. V. RAMAKRISHNA PILLAI, JUDGE. rv W.P.(C) No. 13326/2011 :
4. :