Mkms Builders, vs Kerala Infrastructure and Technology for Education Infrastructure Division (Kite), - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH WEDNESDAY, THE 24TH DAY OF FEBRUARY 2021/5TH PHALGUNA, 1942 WP(C).No.6762 OF 2020(U) WRIT PETITIONER: M/s. MKMS BUILDERS, HEAD OFFICE AT NO.23 CHAMIERS ROAD, NANDANAM, CHENNAI - 600 035, REPRESENTED BY ITS MANAGING PARTNER, A.SHAJAHAN SAIT. BY ADVS. SHRI.SANIL KUMAR G. SHRI.MIDHUN R. RESPONDENTS: 1 KERALA INFRASTRUCTURE AND TECHNOLOGY FOR EDUCATION INFRASTRUCTURE DIVISION (KITE), (GOVT. OF KERALA UNDERTAKING) SCERT BUILDING, POOJAPPURA, KARAMANA, THIRUMALA ROAD POOJAPPURA, THIRUVANANTHAPURAM - 695 012, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR. 2 THE PROJECT MANAGER, KERALA INFRASTRUCTURE AND TECHNOLOGY FOR EDUCATION INFRASTRUCTURE DIVISION (KITE), (GOVT. OF KERALA UNDERTAKING) SCERT BUILDING, POOJAPPURA, KARAMANA, THIRUMALA ROAD, POOJAPPURA, THIRUVANANTHAPURAM - 695 012. 3 THE COORDINATOR TECHNICAL, KERALA INFRASTRUCTURE AND TECHNOLOGY FOR EDUCATION INFRASTRUCTURE DIVISION (KITE), (GOVT. OF KERALA UNDERTAKING) SCERT BUILDING, POOJAPPURA, KARAMANA, THIRUMALA ROAD, POOJAPPURA, THIRUVANANTHAPURAM - 695 012. :2 : 4 WATER AND POWER CONSULTANCY SERVICE LIMITED (WAPCOS), 4TH FLOOR, ISAACS TOWER, JAWAHAAR NAGAR NEAR BREAD WORLD, NEW KUDUMBI COLONY, KADAVANTHRA KOCHI, COCHIN - 682 020, REPRESENTED BY REGIONAL MANAGER.

5 KERALA INFRASTRUCTURE INVESTMENT FUND BOARD (KIIFB), 2ND FLOOR, FELICITY SQUARE, M.G.ROAD, REPRESENTED BY CEO AND MEMBER SECRETARY, THIRUVANANTHAPURAM P.O. - 695 001. 6 KERALA INDUSTRIES AND TECHNICAL CONSULTANCY ORGANISATION (KITCO), FEMITH'S, P.B.NO.4407, PUTHIYA ROAD, NH BYPASS, VENNALA, COCHIN - 682028, REPRESENTED BY ITS CHAIRMAN. 7 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. R6 BY ADV. SRI.VIZZY GEORGE KOKKAT, SC R6 BY ADV. SRI.NITHIN GEORGE, SC R6 BY ADV. SRI.B.DEEPAK, SC R7 SR. GOVERNMENT PLEADER, SRI K.V.MANOJ KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.02.2021, ALONG WITH WP(C).9585/2020(W), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: :3 :

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH WEDNESDAY, THE 24TH DAY OF FEBRUARY 2021/5TH PHALGUNA, 1942 WP(C).No.9585 OF 2020(W) PETITIONERS: 1 M/s. MKMS BUILDERS, REPRESENTED BY ITS MANAGING PARTNER, A.SHAJAHAN SAIT, AGED 52 , S/O. M.S.ABDUL SALAM, HEAD OFFICE AT NO.23, CHAMIERS ROAD, NANDANAM, CHENNAI-600035 2 SHAJAHAN SAIT, AGED 52 YEARS, S/O. M.S.ABDUL SALAM, NO.23, CHAMIERS ROAD, NANDANAM, CHENNAI-600035 BY ADV. SRI.T.SANJAY RESPONDENTS: 1 STATE OF KERALA, REPRESENTED BY SECRETARY TO THE DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAN, PIN-695 001 2 KERALA INFRASTRUCTURE AND TECHNOLOGY FOR EDUCATION (KITE), REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, SCERT BUILDING, KARAMANA, THIRUMALA ROAD, POOJAPPURA, THIRUVANANTHAPURAM, PIN-695 012 3 THE PROJECT MANAGER, KERALA INFRASTRUCTURE AND TECHNOLOGY FOR EDUCATION (KITE), SCERT BUILDING, KARAMANA THIRUMALA ROAD, POOJAPPURA, THIRUVANANTHAPURAM, PIN-695 012 :4 : 4 THE COORDINATOR TECHNICAL, KERALA INFRASTRUCTURE AND TECHNOLOGY FOR EDUCATION (KITE), SCERT BUILDING, KARAMANA THIRUMALA ROAD, POOJAPPURA, THIRUVANANTHAPURAM, PIN-695 012

R1 BY SR. GOVERNMENT PLEADER, SRI.K.V.MANOJ KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.02.2021, ALONG WITH WP(C).6762/2020(U), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: :5 :

JUDGMENT

Dated this the 24th day of February, 2021 [WP(C) Nos.6762 & 9585 of 2020] These writ petitions have been filed by the petitioner against termination of the contract, realisation of Bank Guarantee and re-tender of the work.

2. When this matter came up today, it was submitted

at the Bar that the work in question has already been retendered. If the petitioner has any dispute regarding the termination of the contract, re-tender or realisation of Bank Guarantee, the petitioner can invoke Clause 24(2) of the General Conditions of the Contract in Ext.P10 to resolve the same. In the circumstances, relegating the petitioner to avail the said remedy available under the contract, these writ petitions are disposed of. Sd/- N. NAGARESH, JUDGE aks/24.02.2021 :6 : The words and figure 'Clause 24(2) of the General Conditions of the Contract' occurring in paragraph No.2 of the

judgment dated 24.02.2021 in W.P.(C) Nos.6762/2020 and

Works (Bldgs. & L.W.) Department Form No.83 - Notice Inviting Tenders for Work' as per order dated 16.03.2021 in IA No.3/2021 in W.P.(C) No.6762/2020. Sd/- Deputy Registrar :7 : APPENDIX OF WP(C) 6762/2020 PETITIONER'S EXHIBITS: EXHIBIT P1 A TRUE PHOTOCOPY OF THE LETTER OF AWARD. EXHIBIT P2 A TRUE COPY OF THE AGREEMENT DATED PETITIONER AND THE 1ST RESPONDENT, AWARDING THE WORK. EXHIBIT P3 A TRUE COPY OF THE PERFORMANCE SECURITY DATED 25/04/2018. EXHIBIT P4 A TRUE COPY OF THE AGREEMENT DATED EXHIBIT P5 A TRUE COPY OF THE SCHEDULE REFLECTING THE DELAY MADE IN THE PAYMENTS. EXHIBIT P6 A TRUE COPY OF THE RECEIPT OF THE COMPLAINT DATED 15/02/2020. EXHIBIT P7 A TRUE COPY OF THE SHOW CAUSE NOTICE IN REGARD TO THE DELAY OF WORK. EXHIBIT P8 A TRUE COPY OF THE REPLY DATED EXHIBIT P9 A TRUE COPY OF THE DETAILED REPLY TO THE SHOW CAUSE NOTICE TO BE HANDED OVER TO THE RESPONDENT. EXHIBIT P10 A TRUE COPY OF THE SECTION 6 OF GENERAL CONDITIONS OF CONTRACT OF TENDER NO.KITE/CLUSTER - 6/01. EXHIBIT P11 A TRUE COPY OF THE TERMINATION LETTER DATED 26/2/2020, SENT VIA EMAIL. EXHIBIT P12 A TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT DATED 27.01.2020. :8 : EXHIBIT P13 A TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT DATED 17.02.2020. EXHIBIT P14 A TRUE COPY OF THE SUPPLEMENTARY

AGREEMENT DATED 03.02.2020 ENTERED INTO BY KERALA INFRASTRUCTURE AND TECHNOLOGY FOR EDUCATION (KITE) AND THE PETITIONER BUILDER. EXHIBIT P15 THE PHOTOGRAPH OF THE ADMINITRATIVE BLOCK OF THE MADRAS HIGH COURT ALONG WITH THE RELEVANT TESTIMONIAL. EXHIBIT P16 THE PHOTOGRAPH DEPICTING THE ODISHA BHAVAN IN TAMIL NADU ALONG WITH THE RELEVANT TESTIMONIAL. EXHIBIT P17 THE PHOTOGRAPH OF THE SRI RAMACHANDRA MEDICAL COLLEGE PG HOSTEL CONSTRUCTED BY THE PETITIONER BUILDER ALONG WITH THE RELEVANT TESTIMONIAL. EXHIBIT P18 THE PHOTOGRAPH OF THE TAMIL NADU GOVERNMENT DENTAL COLLEGE AND HOSPITAL, CHENNAI CONSTRUCTED BY THE PETITIONER BUILDER ALONG WITH THE RELEVANT TESTIMONIAL.

EXHIBIT P19 TRUE COPY OF THE WORK SCHEDULE WITH REGARD TO GOVERNMENT HIGHER SECONDARY SCHOOL VECHOOCHIRA COLONY. EXHIBIT P20 TRUE COPY OF THE WORK SCHEDULE WITH REGARD TO GOVERNMENT BOYS HIGHER SECONDARY SCHOOL ADOOR, ADOOR. EXHIBIT P21 TRUE COPY OF THE WORK SCHEDULE WITH REGARD TO KANNASSA SMARAKA G.H.S.S. KADAPRA. EXHIBIT P22 TRUE COPY OF THE WORK SCHEDULE WITH REGARD TO G.H.S.S KOZHENCHERRY. EXHIBIT P22(A) TRUE COPY OF THE WORK SCHEDULE WITH REGARD TO G.H.S.S. KONNI. EXHIBIT P23 PHOTOGRAPH OF THE CONSTRUCTION WORK FOR THE GOVERNMENT BOYS H.S.S ADOOR. :9 : EXHIBIT P24 PHOTOGRAPH OF THE CONSTRUCTION WORK FOR THE GOVERNMENT H.S.S KONNI. EXHIBIT P25 PHOTOGRAPH OF THE C0NSTRUCTION WORK FOR THE GOVERNMENT H.S.S VECHOOCHIRA. EXHIBIT P26 PHOTOGRAPH OF THE CONSTRUCTION WORK FOR THE KANASSA SMARAKA G.H.S.S KADAPRA. EXHIBIT P27 PHOTOGRAPH OF THE CONSTRUCTION WORK FOR THE G.H.S.S, KOZHENCHERY. EXHIBIT P28 TRUE COPY OF THE TENDER NOTICE PUBLISHED IN THE WEBSITE. EXHIBIT P29 THE TRUE COPY OF THE EMAIL SENT TO THE PETITIONER DATED 13.03.2020. EXHIBIT P30 TRUE COPY OF THE EMAIL DATED

17.02.2020 SENT BY THE PETITIONER TO THE RESPONDENT 1-2 AND THE PERSONAL EMAIL OF THE 3RD RESPONDENT.

EXHIBIT P31 TRUE COPY OF THE AGREEMENTS PREPARED ON THE STAMP PAPER DATED 30.01.2020 FOR THE KANASSA SMARAKA GHSS, KADAPRA. EXHIBIT P31(a) TRUE COPY OF THE AGREEMENTS PREPARED ON THE STAMP PAPER DATED 30.01.2020 FOR THE GHS KOZHENCHERRY. EXHIBIT P32 TRUE COPY OF THE STOP MEMO ISSUED BY KITE TO THE 4TH RESPONDENT. EXHIBIT P33 TRUE COPY OF THE INTERIM ORDER DATED 21.01.2021 IN WP 6762/2020. EXHIBIT P34 TRUE COPY OF THE LETTER DATED 05.01.2021 SENT BY 3RD RESPONDENT. EXHIBIT P35 TRUE COPY OF THE LETTER DATED 15.01.2021 SENT BY 3RD RESPONDENT. EXHIBIT P36 TRUE COPY OF LETTER DATED 08.01.2021 SENT BY PETITIONER TO BANK. EXHIBIT P37 TRUE COPY OF LETTER DATED 18.01.2021 SEND BY PETITIONER TO BANK. : 10 : RESPONDENTS' EXHIBITS: EXHIBIT R3(A) TRUE COPY OF THE SUPPLEMENTARY AGREEMENT DATED 06.05.2019. EXHIBIT R3(B) TRUE COPY OF THE SUPPLEMENTARY AGREEMENT DATED 14.06.2019. EXHIBIT R3(C) TRUE COPY OF THE SUPPLEMENTARY AGREEMENT DATED 25.10.2019. EXHIBIT R3(D) TRUE COPY OF THE NOTICE ISSUED TO THE

PETITIONER NOTIFYING THE DELAY AND FAILURE IN EXECUTING THE WORK AND ALSO WARRANTING TERMINATION OF THE CONTRACT.

EXHIBIT R3(E) TRUE COPY OF THE RELEVANT PAGE OF THE CONTRACT SHOWING CLAUSE 56. EXHIBIT R3(F) TRUE COPY OF THE MINUTES OF THE MEETING DATED 11.05.2019. : 11 : APPENDIX OF WP(C) 9585/2020 PETITIONERS' EXHIBITS: EXHIBIT P1 TRUE COPY OF THE LETTER OF ALLOTMENT DATED 18.04.2018 SIGNED ON 19.04.2018 EXHIBIT P2 TRUE COPY OF THE AGREEMENT DATED 10.05.2018 SIGNED BETWEEN THE 1ST PETITIONER FIRM AND THE 2ND RESPONDENT EXHIBIT P3 TRUE COPY OF THE AGREEMENT DATED 03.02.2020 IN RESPECT OF GHS VECHOOCHIRA COLONY AND GBHSS ADOOR EXHIBIT P4 TRUE COPY OF THE FINAL SHOW CAUSE NOTICE DATED 12.02.2020 EXHIBIT P5 TRUE COPY OF THE INITIAL REPLY FILED BY THE 1ST PETITIONER FIRM DATED 17.02.2020 TO THE FINAL SHOW CAUSE NOTICE EXHIBIT P6 TRUE COPY OF THE DETAILED REPLY FILED BY THE 1ST PETITIONER DATED 18.02.2020 TO THE FINAL SHOW CAUSE NOTICE EXHIBIT P7 TRUE COPY OF THE TERMINATION PROCEEDINGS DATED 26.02.2020 ISSUED BY THE 4TH RESPONDENT EXHIBIT P8 TRUE COPY OF THE INTERIM ORDER DATED 05.03.2020 PASSED BY THIS HON'BLE COURT IN WPC 6762 OF 2020 EXHIBIT P9 TRUE COPY OF THE FRESH TENDER NOTIFICATION DATED 13.03.2020 EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED 24.03.2020 FILED BY THE 1ST PETITIONER FIRM BEFORE THE RESPONDENT EXHIBIT P11 TRUE COPY OF THE DETAILED REPRESENTATION DATED 24.03.2020 FILED BY THE 1ST PETITIONER FIRM BEFORE THE RESPONDENTS : 12 : EXHIBIT P12 TRUE COPY OF CORRIGENDUM DATED 28.03.2020 EXHIBIT P13 TRUE COPY OF THE REPRESENTATION DATED 04.04.2020 FILED BY THE 1ST PETITIONER FIRM BEFORE THE CHIEF MINISTER OF KERALA EXHIBIT P14 TRUE COPY OF THE EMAIL DATED 05.04.2020 RECEIVED FROM THE CHIEF MINSTERS OFFICE EXHIBIT P15 TRUE COPY OF THE REPRESENTATION DATED 06.04.2020 EXHIBIT P16 TRUE COPY OF THE GO DATED 30.07.2015 ISSUED BY THE MINISTRY OF FINANCE EXHIBIT P17 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 24.04.2020 IN WP(C) TMP 144 OF 2020 EXHIBIT P18 TRUE COPY OF THE RE-TENDER PROCEEDINGS DATED 24.04.2020 FLOATED BY THE 2ND RESPONDENT EXHIBIT P19 PHOTOGRAPH OF THE CONSTRUCTION AT GBHSS ADOOR AT THE TIME OF TERMINATION OF CONTRACT EXHIBIT P19A PHOTOGRAPH OF THE CONSTRUCTION AT GHSS VECHICHIRA COLONY AT THE TIME OF TERMINATION OF CONTRACT EXHIBIT P19B PHOTOGRAPH OF THE CONSTRUCTION AT GHSS KONNI AT THE TIME OF TERMINATION OF CONTRACT EXHIBIT P19C PHOTOGRAPH OF THE CONSTRUCTION AT GHSS KADAPRA AT THE TIME OF TERMINATION OF CONTRACT EXHIBIT P19D PHOTOGRAPH OF THE CONSTRUCTION AT GHSS KOZHENCHERRY AT THE TIME OF TERMINATION OF CONTRACT EXHIBIT P20 TRUE COPY OF THE CORRIGENDUM TO EXHIBIT P18 ISSUED BY THE 2ND RESPONDENT DATED 28/04/2020. : 13 : EXHIBIT P21 TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT DATED 17/02/2020. EXHIBIT P22 TRUE COPY OF THE EMAIL DATED RESPONDENT. EXHIBIT P23 TRUE COPY OF THE DRAFT SUPPLEMENTAL AGREEMENT IN RESPECT OF GHSS KADAPRA. EXHIBIT P24 TRUE COPY OF THE DRAFT SUPPLEMENTAL AGREEMENT IN RESPECT OF GHSS KOZHENCHERRY. EXHIBIT P25 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPONDENT IN WP(C) 6762 OF 2020 WITHOUT ANNEXURES. EXHIBIT P26 TABLE SHOWING THE SAVINGS THAT ACCRUE UPON THE COMPLETION OF THE WORK BY THE PETITIONER. EXHIBIT P27 TABLE SHOWING THE TIME SCHEDULE FOR COMPLETION OF THE BALANCE WORK FOR ALL FIVE SCHOOLS. EXHIBIT P28 TRUE COPY OF THE INTERIM ORDER DATED 15.05.2020 IN WP 9585/2020 EXHIBIT P29 TRUE COPY OF ORDER DATED 26.05.2020 ISSUED BY THE 2ND RESPONDENT EXHIBIT P30 TRUE COPY OF DECISION DATED 15.05.2020 APPOINTING NEW CONTRACTOR. RESPONDENTS' EXHIBITS: EXHIBIT R1(a) TRUE COPIES OF THE PHOTOGRAPHS TAKEN AT THE TIME OF MEASUREMENTS. SR