Point of Law: Termination of Agreement - Disputed questions of fact which this Court cannot adjudicate in writ jurisdiction - Degree of compliance of the principles of natural justice applicable to administrative actions of State cannot be made applicable with the same force.

JUDGMENT :

N. NAGARESH, J.

1. The petitioner, a registered Private Limited Company which has entered into Ext.P3 Bilateral Agreement and Ext.P6 Supplemental Agreement with the 3rd respondent, is aggrieved by the termination of those agreements by the 3rd respondent.

2. The petitioner states that the petitioner-Company entered into Ext.P3 agreement with the 3rd respondent for construction of the flagship project of “Cochin Cancer Research Centre, Ernakulam.” The project is funded by the 2nd respondent-Kerala State Infrastructural Investment Fund Board (KIIFB). The 3rd respondent is a Special Purpose Vehicle (SPV) for the Cochin Cancer Center Project, acting on behalf of the 1st respondent-State of Kerala.

3. The petitioner was the successful bidder. The work was awarded for Rs. 87,14,32,492/- on 13.06.2018. Ext.P3 agreement with the SPV was signed on 06.08.2018. The work was to be completed within 730 days. The petitioner started the work on 25.07.2018 and had to complete the work by 23.07.2020. The unprecedented floods in the years 2018 and 2019 and the Covid-19 pandemic of 2020 caused hindrance. These coupled with non-payment of pending bills, labour problems and delay in approval of drawings, made it impossible to complete the work in time.

4. The petitioner has been communicating to the respondents regarding delays occurring at various stages of the work due to unforeseen events as well as for reasons attributable to the 3rd respondent. The petitioner requested for extension of time to complete the work. Thereupon, Ext.P6 Supplemental Agreement was executed on 24.09.2020 extending the completion date upto 28.02.2021, though the petitioner had opposed the time frame.

5. In spite of extension of time, the 3rd respondent did not release pending bills and showed lethargy in approval of designs and drawings. The continuing threat of Covid-19 pandemic added to the hardships. In spite of all these, the petitioner proceeded with the work. However, on 26.12.2020, the 3rd respondent issued Ext.P8 show-cause notice alleging that the progress of work is slow. The petitioner submitted Ext.P9 reply. The petitioner also issued Ext.P10 letter dated 06.01.2021 to the 3rd respondent raising a dispute and requesting to constitute a Dispute Redressal Committee invoking Clause No. 25 of Ext.P4 General Conditions of Contract. Without considering the representation of the petitioner, the 3rd respondent issued Ext.P13 on 18.01.2021 terminating Exts.P3 and P6 Agreements. The petitioner challenges Ext.P13 order of termination.

6. The 3rd respondent contested the writ petition. The 3rd respondent stated that the delay caused is not due to non-payment of part bills, labour disputes or delay in providing drawings, etc. The petitioner has been delaying the work from the very beginning. The agreement provided 10 milestones of work. It was a condition that if any milestone is not achieved on the stipulated day, bill amounts will be withheld and paid only after reaching and completing the subsequent milestone within the respective time limit.

7. As the petitioner failed to complete the work as agreed in Ext.P3, Ext.P6 Supplemental Agreement was signed extending the period up to 28.02.2021, taking into account Covid-19 pandemic. The petitioner cannot rely on floods for failure to complete work, after signing Ext.P6 Supplemental Agreement. The petitioner was paid Rs. 4.36 Crores as mobilisation advance. The petitioner did not renew bank guarantees executed to secure the mobilisation advance, after 30.11.2020. The petitioner was given secured advance of Rs. 2,09,42,271/-. The delay or withholding of payments is due to non-completion of milestones. An amount of Rs. 6,47,049/- was paid to the petitioner towards RAB 06 after adjusting the amount to be recovered from the petitioner. RAB 07 is under process.

8. Due to poor progress of work, Ext.P8 show-cause notice was issued to the petitioner. As per Clause III of the General Conditions of Contract, the contract can be te