M/S. DEENS CONSTRUCTIONS v. STATE OF KERALA and OTHERS

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI`** ``` & ``` ## **`THE HONOURABLE MR.JUSTICE V.G.ARUN`** ``` THURSDAY, THE 27[TH] DAY OF JULY 2023 / 5TH SRAVANA, 1945 ``` ``` WA NO. 1286OF 2023 ``` ``` AGAINST THE JUDGMENT IN WP(C) 12643/2023 OF HIGH COURT OF ``` ## **`KERALA`** ## **`APPELLANT/PETITIONER:`** ``` M/S. DEENS CONSTRUCTIONS FIRST FLOOR, DEENS BUILDING, PERINGALA P.O., ERNAKULAM REPRESENTED BY ITS MANAGING PARTNER, SHRI. SHAHUL HAMEED., PIN – 684 565 ``` ``` BY ADVS. SANTHOSH MATHEW ARUN THOMAS KARTHIKA MARIA ANIL SEBASTIAN PULICKEL ABI BENNY AREECKAL MATHEW NEVIN THOMAS KURIAN ANTONY MATHEW ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA, PIN – 695 001 2 CHIEF ENGINEER PWD ROADS DIVISION, THIRUVANANTHAPURAM, PIN – 695 033 3 SUPERINTENDING ENGINEER PWD ROADS DIVISION, CENTRAL CIRCLE, ALUVA ERNAKULAM, KERALA., PIN – 683 101 ``` W.A.No.1286 of 2023 2 - `4 EXECUTIVE ENGINEER PWD ROADS DIVISION, ERNAKULAM, PIN – 682 024` - `5 ASSISTANT EXECUTIVE ENGINEER PWD, ROADS SUB-DIVISION, NORTH PARAVUR, PIN – 683 513` - `6 ASSISTANT ENGINEER, PWD, ROADS SECTION, NJARAKKAL – 682 503` ``` BY SR.GP.K.V.MANOJ KUMAR ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.A.No.1286 of 2023 3 ## **JUDGMENT** Dated this the 27[th] day of July 2023 ## **A.J. Desai, C.J** By way of the present appeal filed under section 5 of the Kerala High Court Act, 1958, the original petitioner has challenged the judgment dated 25.04.2023 by the learned single Judge by which the petition filed by the present appellant came to be dismissed. 2. The challenge before the learned single Judge is that the petitioner participated in the tender issued by the 3[rd] respondent in tender No.PWD/PQ-2020-2021/19019/CENTRAL for the work “Special Package Non-Plan works 2020-21Improvements (BM&BC) to Vypin-Pallipuram Parallel road Ch.11/000 to 17/000”. The petitioner was awarded the work vide Exhibit P2 letter of acceptance dated 01.07.2021. The petitioner and the 3[rd] respondent entered into Exhibit P3 agreement dated 08.09.2021 pursuant to Exhibit P2. As part of its performance security-related obligations, the petitioner has W.A.No.1286 of 2023 4 provided a Bank Guarantee of Rs.8,83,750/- (with a claim period valid up to 14.01.2027) and a treasury deposit of Rs.8,83,750/-. 3. It is also the case of the petitioner that vide Exhibit P4, the petitioner had submitted initial levels to the 6[th] respondent on 18.08.2021. However, these levels were not approved for a long period of time. It is submitted that the work involves scarifying the existing surface of the site. This was part of the petitioner’s scope of work and necessary for the execution of the work as a whole. Vide Exhibit P5 observation memo dated 11.11.2021, the Chief Technical Examiner of the 1[st] respondent had directed the 4[th] respondent herein to report the intermediate levels after scarifying the existing carriageway and rolling the scarified materials before laying the GSB layer. The same instruction was passed on to the petitioner by the 6[th] respondent vide Exhibit P6 letter dated 07.12.2021. 4. It is also the case of the petitioner that the petitioner was obstructed from carrying out the scarification by the members of the local public including elected representatives W.A.No.1286 of 2023 5 of the local panchayat and therefore could not complete the work. Hence, by the impugned decision (Exhibit P26), the contract was terminated by the 3[rd] respondent. 5. The writ petition came to be dismissed by the impugned judgment. 6. The learned Advocate appearing for the appellant has raised several legal and factual issues with regard to the termination of the contract. He would submit that, though several representations were made, the claim for payment of the amount for which the work was already carried out by the appellant, was rejected. 7. He would further submit that the appellant would like to file civil proceedings before the competent court and shall make appropriate prayers before the civil court. He would further submit that till he files a civil suit and prays for appropriate relief in the suit, the Bank Guarantee may not be invoked. He would further submit that appropriate observations may be made with regard to the decision of the W.A.No.1286 of 2023 6 learned single Judge impugned in this appeal. 8. Learned Advocate for the appellant would also submit that the appellant would keep the Bank Guarantee alive. 9. On the other hand, the learned Advocate appearing for the respondents has opposed this appeal. By relying upon the decision of the Hon’ble Supreme Court in **Ansal Engineering Projects Ltd. v. Tehri Hydro Development Corporation Ltd.** **and another** reported in (1996) 5 SCC 450, he would submit that the court may not interfere with the right to invoke the Bank Guarantee. 10. We have heard the learned Advocates appearing for the respective parties. Having regard to the submission made on behalf of the appellant, we dispose of this appeal with the following observations: - i) The appellant/original petitioner is permitted to take out appropriate civil proceedings with regard to the reliefs claimed in the writ petition. W.A.No.1286 of 2023 7 ii) It would be open to the appellant to file an interim application in the civil proceedings with regard to the relief prayed in the present proceedings also. iii) The civil court shall decide the case in accordance with law, without being influenced by the observation made by the learned single Judge in the impugned judgment dated 25.04.2023 passed in the captioned writ petition. - iv) The 3[rd] respondent shall not invoke the Bank Guarantee for a period of two months from today. - v) If no order is granted by the civil court, it would be open for the 3[rd] respondent to invoke the Bank Guarantee. ## **Sd/-** **A.J. Desai Chief Justice** **Sd/-** **V.G. Arun Judge** **vpv** W.A.No.1286 of 2023 8 ## **`APPENDIX OF WA 1286/2023`** ``` PETITIONER ANNEXURES ``` ``` Annexure-A1 A TRUE COPY OF THE LETTER OF THE 3RD RESPONDENT GRANTING APPROVAL TO THE INITIAL LEVELS DATED 06.02.2023. ``` //TRUE COPY// P.A. TO JUDGE