Hind Erectors v. Travancore Titanium Products Ltd and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` FRIDAY, THE 11[TH] DAY OF AUGUST 2023 / 20TH SRAVANA, 1945 ``` ``` WP(C) NO. 42205 OF 2022 ``` ## **`PETITIONER:`** ``` HIND ERECTORS, REPRESENTED BY MANAGING PARTNER AJAYAKUMAR GHOSH GANGADHARAN, S/O GANGADHARAN, AGED 65 YEARS, DEVASWOM BUILDING, FIRST FLOOR, POST BOX NO: IV KARUNAGAPPALLY -690518, KOLLAM(DIST), KERALA, INDIA ``` ``` BY ADVS. TREESA MANJILA MEERA RAMESH E.ADITHYAN ``` ## **`RESPONDENTS:`** - **`1 TRAVANCORE TITANIUM PRODUCTS LIMITED REPRESENTED BY GENERAL MANAGER, KOCHUVELI, THIRUVANANTHAPURAM - 695021`** - **`2 MANAGER (COMMERCIAL) TRAVANCORE TITANIUM PRODUCTS LIMITED, KOCHUVELI, THIRUVANANTHAPURAM - 695021`** - **`3 HEAD OF DEPARTMENT, COMMERCIAL DEPARTMENT, TRAVANCORE TITANIUM PRODUCTS LIMITED, KOCHUVELI, THIRUVANANTHAPURAM - 695021 BY ADV LATHA ANAND, SC`** ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.08.2023, ``` ``` THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No.42205 of 2022 2 ## **VIJU ABRAHAM, J.** **................................................................. W.P.(C) No.42205 of 2022 .................................................................** Dated this the 11[th] day of August, 2023 ## **JUDGMENT** The above writ petition is filed seeking a direction to the 2[nd] respondent not to seize the additional charges of Rs.3,66,202/- from the running bills as per Ext.P21. 2. Petitioner is a partnership firm who was the successful tenderer in the tender floated as per Ext.P1 and Ext.P2 work order was issued in favour of the petitioner. By Ext.P3 the petitioner made a request for cancellation of Ext.P2 work order on the ground that there was an increase of 60% in the steel price during the last five months. By Ext.P4 the 2[nd] respondent issued a reply informing that the work order was received on 30.11.2020 and they had to complete the work within 60 days period and now there is a delay of almost five months and therefore they requested the petitioner to supply the materials at the earliest, remit security deposit and execute agreement immediately, failing which they will be arranging the work with other sources at the petitioner’s risk and cost. Petitioner submits that there is no delay on his part and he has in fact approached the site representative for proceeding with the supply and erection work. Essentially the contention of the petitioner is that no permission was granted by the respondent company and they were informed that the WP(C) No.42205 of 2022 3 work could not be started during the shut down period as they did not get any clearance or intimation from the respondents. It is also contended that the cost of steel has increased roughly 80% after the tender quotation period making it unaffordable for the petitioners. Later by Ext.P15 the work was re-tendered and thereafter Ext.P16 letter was issued wherein it is intimated that after the cancellation of the work order issued in favour of the petitioner the work was retendered whereby the company incurred an additional expense of Rs.3,66,202/- and the petitioner was directed to remit the said amount towards additional cost involved in executing the aforesaid work by another contractor. Petitioner by Ext.P17 requested to relieve of this penalty amount. Thereafter as is evident from Ext.P22 the amount of Rs.3,66,202/- towards additional cost involved in executing the aforesaid work through another contractor was deducted from the running bill of the petitioner. 3. A detailed counter affidavit has been filed by the respondents mainly contending that the petitioner has not completed the work despite repeated requests from the respondents and contract was ultimately terminated as per communication dated 07.06.2021 specifically informing the petitioner that the work would be undertaken at the risk and cost of the petitioner. Even after the said communication, the petitioner was given opportunities to comply with the contractual obligation but the petitioner did not avail any of the WP(C) No.42205 of 2022 4 said opportunities to complete the work. Consequently the termination of contract was confirmed and the same was informed to the petitioner as per Ext.P14 communication. Subsequently, the additional expenses incurred by the respondents for execution of the work was quantified and informed the petitioner vide Ext.P18 communication and since the petitioner failed to pay the same, the amount was deducted from the running bill of the petitioner as early as on 03.10.2022 as is evident from Ext.P22 ledger. The tender invited was for “the supply, installation of sulphuric acid tank of size 6.2 m ID x 2.5 metres height on turnkey basis” . Though work order was issued to the petitioner on 20.11.2020 and as per clause 10(3) read with clause 5 of Ext.P2 work order the work was agreed to be completed within 105 days of the issuance of work order and as per clause 10(5) the petitioner was required to remit 5% of the contract value as security deposit within 15 days from the date of issue of the work order and also as per clause 10(6) the petitioner was bound to execute a performance agreement within 15 days of the remittance of the security deposit and start the work immediately after remitting the security deposit, the petitioner failed to remit the security deposit and to execute the performance agreement, instead the petitioner vide Ext.P13 requested to cancel the work order citing increase in the price of steel. Ultimately the work was re-tendered and Ext.R1(e) work order was issued to the new contractor and the said contractor WP(C) No.42205 of 2022 5 completed the work and the additional cost involved in executing the work through the said contractor was calculated as Rs.3,66,202/which was directed to be deposited by the petitioner and due to the failure on the part of the petitioner to make the deposit, the same was recovered from the running bills. It is contended that the default was absolutely on the petitioner and they failed to fulfil the contractual obligation. The respondents have also taken a contention that the issues raised in the writ petition cannot be adjudicated in a writ proceeding since the issues arise essentially out of a contractual relationship between the petitioner and the respondents and it will fall within the realm of private law and therefore the reliefs sought for by the petitioner cannot be granted in this proceedings. To substantiate their contentions, they rely on the judgments of the Supreme Court in _**State of U.P. and others v. Bridge & Roof Company (India) Ltd, (1996) 6 SCC 22**_ and _**Kerala State Electricity Board and another v. Kurien E. Kalathil and others, (2000) 6 SCC 293**_ and therefore the petitioner if aggrieved by any of the proceedings initiated by the respondents as part of the contract, they have to approach the competent civil court. 4. I have heard the rival contentions of both the parties. 5. The specific contention of the respondents is that the petitioner failed to execute the work as per the conditions in the work order despite the several chances given and it is thereafter the work order WP(C) No.42205 of 2022 6 was cancelled and the work was re-tendered at the risk and cost of the petitioner. It is the additional cost of Rs.3,66,202/- was also recovered from the running bills of the petitioner as is evident from Ext.P22 ledger. Petitioner has not challenged Exts.P9, P14 and P18 which are orders regarding the cancellation of the work order and consequential recovery of the loss due to re-tendering of the work. Even otherwise, admittedly the said dispute arising out of a contract and the matter in issue can be adjudicated only by a competent civil court after adducing evidence and the same cannot be adjudicated in a writ proceedings. Therefore the writ petition is dismissed. It is made clear that if the petitioner chooses to approach the Civil Court to adjudicate the claim, the time during which this writ petition was pending before this Court will be excluded while calculating the period of limitation. Sd/- ## **VIJU ABRAHAM** **JUDGE** cks WP(C) No.42205 of 2022 7 ## **`APPENDIX OF WP(C) 42205/2022`** ``` PETITIONER EXHIBITS ExhibitP1EXHIBIT P 1 TRUE COPY OF THE TENDER FORWARDED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 22.09.2020 ExhibitP2TRUE COPY OF THE WORK ORDER AWARDED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 30.11.2020. ExhibitP3TRUE COPY OF THE LETTER INTIMATION DATED 19.04.2021 FORWARDED BY THE PETITIONER TO THE 2ND RESPONDENT. Exhibit P4TRUE COPY OF THE LETTER INTIMATION FORWARDED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 20.04.2021 Exhibit P5TRUE COPY OF THE LETTER INTIMATION FORWARDED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 22.04.2021 Exhibit P6TRUE COPY OF THE LETTER INTIMATION FORWARDED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 05.05.2021 Exhibit P7TRUE COPY OF THE LETTER INTIMATION FORWARDED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 06.05.2021 Exhibit P8TRUE COPY OF THE LETTER INTIMATION FORWARDED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 12.05.2021 ``` ``` Exhibit P9TRUE COPY OF THE LETTER INTIMATION FORWARDED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 07.06.2021 ``` ``` Exhibit P10TRUE COPY OF THE LETTER INTIMATION FORWARDED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 08.06.2021 Exhibit P11TRUE COPY OF THE LETTER INTIMATION FORWARDED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 11.06.2021 ``` WP(C) No.42205 of 2022 8 ``` Exhibit P12TRUE COPY OF THE LETTER INTIMATION FORWARDED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 17.06.2021 Exhibit P13TRUE COPY OF THE LETTER INTIMATION FORWARDED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 18.06.2021. ``` ``` Exhibit P14TRUE COPY OF THE LETTER INTIMATION FORWARDED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 23.06.2021. Exhibit P15TRUE COPY OF THE LETTER INTIMATION FORWARDED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 26.06.2021 Exhibit P16TRUE COPY OF THE LETTER INTIMATION FORWARDED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 18.07.2022 Exhibit P17TRUE COPY OF THE LETTER INTIMATION FORWARDED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 30.07.2022 Exhibit P18TRUE COPY OF THE LETTER INTIMATION FORWARDED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 16.09.2022 ``` - `Exhibit P19 TRUE COPY OF THE LETTER INTIMATION FORWARDED BY THE PETITIONER TO THE 3RD RESPONDENT DATED 16.09.2022` - `Exhibit P20 TRUE COPY OF THE LETTER INTIMATION FORWARDED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 19.09.2022` - `Exhibit P21 TRUE COPY OF THE DETAILED` - `REPRESENTATION FORWARDED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 07.12.2022.` ``` Exhibit P22TRUE COPY OF THE LEDGER DATED 16.12.2022 . ``` ``` RESPONDENT EXHIBITS ``` ``` Exhibit R1(a)True copy of the letter dated 04.05.2021 issued by the 2nd ``` WP(C) No.42205 of 2022 9 ||`respondent to the petitioner`| |---|---| |`Exhibit R1(b)`|`True copy of the letter dated`| ||`13.05.2021 issued by the petitioner`| ||`to the 1st respondent`| |`Exhibit R1(c)`|`True copy of the letter dated`| ||`07.06.2021issued by the 2nd`| ||`respondent to the petitioner`| |`Exhibit R1(d)`|`True copy of the letter dated`| ||`12.06.2021 issued by the petitioner`| ||`to the 2nd respondent`| |`Exhibit R1(e)`|`True copy of the work order dated`| ||`07.09.2021 issued to M/s.Deepak`| ||`Engineering Works`|