K.V.Anilkumar vs the General Manager

K.V.Anilkumar vs The General Manager

Type Court Judgment Court Kerala Decided Feb 01, 2021

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https://sooperkanoon.com/case/1707295

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Citation: sooperkanoon.com/1707295
Court: Kerala High Court
Judge: Honourable Smt. Justice P.V.Asha
Decided On: Feb 01, 2021
Case Number: WP(C)/27092/2020

Parties & Advocates

Appellant / Petitioner

K.V.Anilkumar

Respondent

The General Manager

Excerpt

.....the matter can only be sorted out in arbitration. the learned counsel for the petitioner submitted that 'no claim certificate' can be submitted without prejudice to the right of the petitioner to raise the issue before the arbitration. the learned standing counsel points out that in that event the entire matters have to go to arbitration. therefore, the petitioner would be free toresort to appropriate remedies for realising the payment in respect of the 2nd work. at the same time it would be open to the petitioner to submit 'no claim certificate' and to request for initiating foreclosure and in that event respondents shall take appropriate and expeditious steps as possible within a period of three months and to settle the accounts within a further period of three months.sd/- p.v.asha rkc judge appendix petitioner's/s exhibits: exhibit p1 true copy of the document evidencing the factum of measurement being taken by the respondents. exhibit p2 true copy of the letter dated 04/05/2010 issued by the petitioner to third respondent.exhibit p3 true copy of the work orderno.w496/cn/ers/0t/06/2014(02) dated exhibit p4 true copy of the letter dated 26/09/2018 issued to the 3rd respondent by petitioner. exhibit p5 true copy of the relevant page of the measurement book.

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE SMT. JUSTICE P.V.ASHA MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942 PETITIONER/S: K.V.ANILKUMAR AGED 53 YEARS S/O.VELAYUDHAN, KODATHU HOUSE, THOTTAKKATTUKARA P.O., OLD DESOM ROAD, ALUVA, ERNAKULAM DISTRICT - 683 108. BY ADVS. SRI.S.SHANAVAS KHAN SMT.S.INDU RESPONDENT/S: 1 THE GENERAL MANAGER SOUTHERN RAILWAY HEAD QUARTERS OFFICE, PARK TOWN, CHENNAI - 600 003. 2 THE FINANCIAL ADVISOR AND CHIEF ACCOUNTS OFFICER (CONSTRUCTION) SOUTHERN RAILWAY, EGMORE, CHENNAI - 600 003. 3 THE DEPUTY CHIEF ENGINEER-I (CONSTRUCTION) SOUTHERN RAILWAY, ERNAKULAM - 682 016. R1-3 BY SRI.P.L.VENUKUMAR, CGC OTHER PRESENT: SRI.ARJUN VENUGOPAL,SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Dated this the 1st day of February 2021 The petitioner who is a contractor has undertaken the work covered by Ext.P3 work order after executing agreement dated

22.06.2004. The complaint of the petitioner is that on completion of even additional work and after the foreclosure of the work respondents have not released the EMD and security deposit, even after several requests starting from 04.05.2010. He has undertaken another work after executing agreement dated 21.04.2015. However the said work could not be completed and

petitioner requested for foreclosing the contract. But respondents have not so far allowed the request for foreclosure and have not released EMD and Security Deposit.

2. The respondents have filed a statement. In respect of the 1st work it is stated that EMD and security deposit can be

released subject to adjustments if any upon full and final settlement of accounts and on receipt of 'no claim certificate' from the petitioner. It is also stated that due to financial and procedural constraints about 120 days is required for releasing the Security Deposit and Earnest Money Deposit. It is stated that an amount of Rs.99,838/- is lying with the Railways as the Security Deposit, including Earnest Money from the petitioner in relation to the said work.

3. Learned counsel for the petitioner submitted that 'no

claim certificate' would be submitted immediately. Therefore there shall be a direction to respondents to pay the amounts due to the petitioner, accordingly on production of the relevant certificates towards the first work.

4. In respect of 2nd work it is stated that a sum of Rs.3,68,938/- is lying with the Railway as security deposit including earnest money from the petitioner. It is stated that respondents would initiate foreclosure in case petitioner submits a request for the same along with a 'no claim certificate'.

5. The learned counsel for the petitioner submits that the

application for foreclosure was submitted as early as on 27.04.2017. However the learned Standing Counsel submits that when there is dispute regarding the amount due, the matter can only be sorted out in arbitration. The learned counsel for the petitioner submitted that 'no claim certificate' can be submitted without prejudice to the right of the petitioner to raise the issue before the arbitration. The learned Standing Counsel points out that in that event the entire matters have to go to arbitration. Therefore, the petitioner would be free to

resort to appropriate remedies for realising the payment in respect of the 2nd work. At the same time it would be open to the petitioner to submit 'no claim certificate' and to request for initiating foreclosure and in that event respondents shall take appropriate and expeditious steps as possible within a period of three months and to settle the accounts within a further period of three months.

Sd/- P.V.ASHA rkc JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE DOCUMENT EVIDENCING THE FACTUM OF MEASUREMENT BEING TAKEN BY THE RESPONDENTS. EXHIBIT P2 TRUE COPY OF THE LETTER DATED 04/05/2010 ISSUED BY THE PETITIONER TO THIRD RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE WORK ORDER

NO.W496/CN/ERS/0T/06/2014(02) DATED EXHIBIT P4 TRUE COPY OF THE LETTER DATED 26/09/2018 ISSUED TO THE 3RD RESPONDENT BY PETITIONER. EXHIBIT P5 TRUE COPY OF THE RELEVANT PAGE OF THE MEASUREMENT BOOK.

Same Court & Year Kerala · 2021 Same Parties K.V.Anilkumar vs The General Manager Same Judge Honourable Smt. Justice P.V.Asha