Blue Roots Tech Services LLP v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 17[TH] DAY OF FEBRUARY 2023 / 28TH MAGHA, 1944** ## **WP(C) NO. 9638 OF 2021** ## **PETITIONER:** BLUE ROOTS TECHNO SERVICES LLP 6B YASORAM,THEJUS APARTMENT, VENNALA.P.O, 682028,ERNAKULAM, REPRESENTED BY IT' DESIGNATED PARTNER MR.SUBI THOMAS VARGHESE. BY ADVS. K.G.MARY SRI.ARUN P. ANTONY ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY IT'S SECRETARY, DEPARTMENT OF INDUSTRIES, THIRUVANANTHAPURAM-695001. 2 STEEL INDUSTRIES KERALA LIMITED(SILK), REPRESENTED BY ITS MANAGING DIRECTOR,ATHANI.P.O, THRISSUR-680581. 3 STATE WATER TRANSPORT DEPARTMENT, REPRESENTED BY IT'S SECRETARY, TRIVANDRUM-688011. 4 CHIEF SECRETARY GOVERNMENT OF KERALA,SECRETARIAT,TRIVANDRUM-695001 BY ADV LATHA ANAND ## **OTHER PRESENT:** GP RIYAL DEVASSY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.12.2022, THE COURT ON 17.02.2023 DELIVERED THE FOLLOWING: W.P.(C).9638/2021 2 ## **JUDGMENT** Dated this the 17[th] day of February, 2023 The petitioner was awarded the work -'Rectification of damaged slipway' at Ayittikadavu in Payyannur as per Ext.P1 work order dated 05.12.2018. The value of the work was fixed as Rs.27,79,894/- and the term of contract, as 45 days. During execution of the work, an inspection was conducted at the work site on 27.11.2019 and Ext. P4 communication was issued by the consultant, noticing the following balance works; i) new foundation for the pulley and ii) fixing the pulley and the rope. Thereafter, the petitioner submitted Ext. P3 bill for Rs.29,48,892/-, claiming the works to have been completed. Along with Ext. P3, the petitioner also submitted Ext. P2 invoice for an additional amount of Rs.4,25,502/-, for works executed in addition to those covered by Ext.P1. The 2[nd] respondent issued Ext. P5 reply to Ext. P3, pointing out that the works are yet to be completed and an amount of Rs. 13 Lakhs had already been released. Thereafter Ext.P8 was also W.P.(C).9638/2021 3 issued, referring to a meeting held on 17.07.2020 at the instance of the Minister and reminding the petitioner of its assurance to complete balance works. The petitioner's demand for payment and the 2[nd] respondent's insistence on completing the work continued upto Ext. P14 communication dated 29.01.2021. Respondents 2 and 3 having failed to honour the demand raised in Ext. P14 and earlier communications, this writ petition is filed seeking the following reliefs; i) A writ of mandamus or other appropriate writ, order direction directing 2[nd] respondent to conduct inspection, issue work completion certificate, process bills and release the funds forthwith. ii) A writ of mandamus or other appropriate writ, order or direction directing the 2[nd] respondent to issue work experience certificate to the petitioner relating to the rectification work of slipway executed and completed in the subject matter work site at Ayittikadavu. iii) Such other writs, order or directions as this Hon'ble court may deem fit and necessary in the facts and circumstances of the case. iv) Award the cost of these proceedings. 2. Learned Counsel for the petitioner strenuously contended that the documents produced along with the writ W.P.(C).9638/2021 4 petition are sufficient proof of the fact that additional works were executed by the petitioner. Except banking on certain disputes among the partners of the firm, no justifiable reason is stated for not meeting the demand. Being instrumentalities of State, respondents 2 and 3 are bound to act in a fair and reasonable manner. 3. In reply, learned Standing Counsel for the 2[nd] respondent contended that the writ petition, based on private contract and seeking resolution of disputed facts, is not maintainable. In support of this contention, reliance is placed on the decisions in **State of U.P. and Ors. v. Bridge & Roof Co. (India) Ltd** . [(1996) 6 SCC 22], **Kerala State Electricity Board and Ors. v. Kurien E. Kalathil and Ors.** [(2000) 6 SCC 293) and **State of Bihar and Ors. v. Jain Plastics and Chemicals Ltd.** [(2002) 1 SCC 216]. On merits, it is contended that, even though the period of contract was 45 days, the petitioner did not even commence the work within that period and there was delay and latches at all stages of work. During execution of the work, the petitioner demolished the concrete slab around the foundation of the W.P.(C).9638/2021 5 slipway for constructing the pulley axle foundation. In order to reinstate the foundation, petitioner had to carry out earth filling and PCC work. In Ext.P5, the consultant had pointed out certain defects in the work, which also the petitioner was bound to cure. The petitioner is claiming the work relating to reinstatement of the concrete foundation and the rectification works as additional works. This is not acceptable, since these works form part of the work awarded under Ext. P1. Although, 2[nd] respondent had referred to an interse dispute among partners of the petitioner firm in its communication, non-payment of petitioner's bills are for other valid reasons. The main reason being the petitioner's failure to complete the work. 4. Learned counsel for the petitioner referred to Exts. P18 and P19 issued by the 2[nd] respondent to contend that, payment of Rs.13 Lakhs was towards the work of construction of retaining wall to the slipway awarded as per Ext. R2(a) work order. 5. The rival contentions reveal the existence of factual disputes which require appreciation of evidence, both oral and W.P.(C).9638/2021 6 documentary, to be tendered by the parties. Such exercise cannot be undertaken in a writ petition under Article 226. The remedy therefore is to approach the civil court or to resort to the alternate modes of dispute resolution. Mere, for the reason that respondents 2 and 3 are public authorities, the agreement cannot be termed as a statutory contract. The law on the point is well laid down in **Bridge & Roof Co. (India) Ltd.** (supra). The relevant portion of which is extracted hereunder; “16. Firstly, the contract between the parties is a contract in the realm of private law. It is not a statutory contract. It is governed by the provisions of the Contract Act or, maybe, also by certain provisions of the Sale of Goods Act. Any dispute relating to interpretation of the terms and conditions of such a contract cannot be agitated, and could not have been agitated, in a writ petition. That is a matter either for arbitration as provided by the contract or for the civil court, as the case may be. Whether any amount is due to the respondent from the appellant-Government under the contract and, if so, how much and the further question whether retention or refusal to pay any amount by the Government is justified, or not, are all matters which cannot be agitated in or adjudicated upon in a writ petition. The prayer in the writ petition, viz., to restrain the Government from deducting a particular amount from the writ petitioner's bill(s) was not a prayer which could be granted by the High Court under Article 226. Indeed, the High Court has not granted the said prayer.” W.P.(C).9638/2021 7 ## In this context it may also be of benefit to read the following paragraph in **Jain Plastics and Chemicals Ltd.** (supra); “3. writ is not the remedy for enforcing contractual obligations. It is to be reiterated that writ petition under Article 226 is not the proper proceedings for adjudicating such disputes. Under the law, it was open to the respondent to approach the court of competent jurisdiction for appropriate relief for breach of contract. It is settled law that when an alternative and equally efficacious remedy is open to the litigant, he should be required to pursue that remedy and not invoke the writ jurisdiction of the High Court. Equally, the existence of alternative remedy does not affect the jurisdiction of the court to issue writ, but ordinarily that would be a good ground in refusing to exercise the discretion under Article 226.” The legal position being thus well settled, I find no reason to invoke the extraordinary jurisdiction under Article 226. In the result, the writ petition is dismissed. Sd/- **V.G.ARUN** **JUDGE** sb W.P.(C).9638/2021 8 ## **APPENDIX OF WP(C) 9638/2021** PETITIONER EXHIBITS |EXHIBIT P1|A TRUE COPY OF THE WORK ORDER DATED| |---|---| ||11.12.2018 ISSUED BY THE 2ND RESPONDENT| |EXHIBIT P2|A TRUE COPY OF THE INVOICE OF THE WORK OF| ||RS,4,25,202/-SENT BY THE PETITIONER TO THE| ||2ND RESPONDENT| |EXHIBIT P3|A TRUE COPY OF THE INVOICE DATED 16.06.2020| |EXHIBIT P4|A TRUE COPY OF THE INSPECTION REPORT DATED| ||27.11.2019| |EXHIBIT P5|A TRUE COPY OF THE EMAIL DATED 2.7.2020 SENT| ||BY 2ND RESPONDENT TO PETITIONER| |EXHIBIT P6|A TRUE COPY OF THE REPLY E MAIL DATED| ||3.7.2020 SENT BY THE PETITIONER TO THE 2ND| ||RESPONDENT| |EXHIBIT P7|A TRUE COPY OF THE E MAIL DATED 02.03.2019 BY| ||2ND RESPONDENT TO PETITIONER| |EXHIBIT P8|A TRUE COPY OF THE E MAIL DATED 14.08.2020 BY| ||2ND RESPONDENT TO PETITIONER| |EXHIBIT P9|A TRUE COPY OF THE REPLY EMAIL DATED| ||16.08.2020 SENT BY THE PETITIONER TO THE 2ND| ||RESPONDENT| |EXHIBIT P10|A TRUE COPY OF THE EMAIL DATED 28.10.2020| ||SENT BY THE 2ND RESPONDENT TO PETITIONER| |EXHIBIT P11|A TRUE COPY OF THE LAWYER NOTICE DATED| ||28.10.2020 SENT BY ONE OF THE PARTNERS TO THE| ||2ND RESPONDENT CONTAINING ALLEGATIONS AGAINST| ||THE OTHER PARTNER| |EXHIBIT P12|A TRUE COPY OF REPLY NOTICE DATED 21.12.2020| ||SENT BY ONE OF THE PARTNERS TO THE 2ND| ||RESPONDENT| 9 ## W.P.(C).9638/2021 |EXHIBIT P13|A TRUE COPY OF NOTICE ISSUED BY ICICI BANK| |---|---| ||COCHIN BRANCH DATED 18.03.2021 ISSUED SHOWING| ||THE LIABILITY| |EXHIBIT P14|A TRUE COPY OF THE REGISTERED NOTICE DATED| ||29.01.2021 SENT BY THE PETITIONER TO THE 2ND| ||RESPONDENT REQUESTING HIM TO INSPECT THE WORK| ||SITE| |EXHIBIT P15|A TRUE COPY OF THE POSTAL RECEIPT| |EXHIBIT P16|A TRUE COPY OF A/D CARD ENDORSED BY THE 2ND| ||RESPONDENT.| |Exhibit P17|A TRUE COPY OF THE EMAIL DATED 14/08/2019| ||SENT BY THE PETITIONER TO THE 2ND RESPONDENT.| |Exhibit P18|A TRUE COPY OF THE REPLY EMAIL DATED| ||17/08/2019 SENT BY THE 2ND RESPONDENT TO THE| ||PETITIONER.| |Exhibit P19|A TRUE COPY OF THE RELEVANT PAGE OF THE| ||ACCOUNT STATEMENT ATTACHED ALONG WITH EXT.P18| ||EMAIL.| |Exhibit P20|A TRUE COPY OF THE LETTER DATED 03/11/2021| ||2ND RESPONDENT TO THE DISTRICT INDUS CENTRE,| ||THRISSUR.| |Exhibit P21|A TRUE COPY OF THE MEETING MINUTES DATED| ||23/11/2019 AT ATHANI, THRISSUR.|