Back
2021 Supreme(Ker) 275
IN THE HIGH COURT OF KERALA AT ERNAKULAM
N. NAGARESH, J.
M/s. Ajit Associates Architectural Consultants Pvt. Ltd. – Petitioner
Versus
State of Kerala, Rep. by its Principal Secretary, Department of Ports – Respondent
W.P. (C) Nos. 23006 of 2019, 15489 of 2020
Decided On : 26-04-2021
Advocate Appeared:
For the Petitioners: Sri. Babu Karukapadath, Sri. P.U. Vinod Kumar, Sri. Avinash P. Raveendran, Smt. M.A. Vaheeda Babu, Smt. Arya Raghunath, Smt. Anjaly N.S.
For the Respondents: Sri. Johnson Gomez, Sri. C. Unnikrishnan, Sri. S. Biju, Sri. Gajendra Singh Rajpurohit, Sri. D. Jayakrishnan, Sri. K.P. Sudheer, Sri. K.B. Pradeep, Sri. Harisankar R., Sri. Sreeraj M.D., Smt. A.V. Indira, Smt. Jane Maria Tomy, Smt. Karishma Jojo, Smt. Gayathri V. Nair, Smt. Liya Elza Alex, Smt. Uthara A.S.
Point of Law: Work contract - Dismissal of petition seeking not release amounts to Respondent - Delay in construction and escalation of cost of construction is not attributable to the 4th respondent.
Headnote:
Kerala Maritime Board Act, 2017 - Sections 10 and 11 - Architect for construction of campuses - Contract work - Payments - Seeks to direct not to release any more amounts - Appointment of petitioner as an Architect for construction of campuses of 3rd respondent - Kerala Maritime Institute - Petitioner entered into an agreement dated with 3rd respondent - Petitioner would contend that for construction of a library with ground plus one floor and an academic block with a ground +2 floors, only shallow foundation/footing design was necessary - However, 4th respondent insisted for a pile foundation - Petitioner would state that when bills submitted by 4th respondent was scrutinised and examined, it was noticed that amounts already paid were in excess by Rs. 2.9 Crore - Noticing this excess payment by respondents 2 and 3 to 4th respondent-contractor and also noticing certain anomalies, petitioner sent a letter dated.
Finding of the Court:
As discussed and found herein above, delay in construction and escalation of cost of construction is not attributable to 4th respondent - Alleged excess payment made to 4th respondent, Director of Ports has considered issue in detail in Ext.P5 and observed that petitioner has suggested to recover amounts from 4th respondent in a revengeful manner - Prayers of petitioner in W.P. (C) No. to release amounts due to him under contract, 3rd respondent in their counter affidavit in W.P. (C) No has stated that Director of Ports is totally unable to make measurements of work carried out by 4th respondent without service of petitioner since petitioner is expected to carry out joint measurement along with the Engineer of 4th respondent to verify and certify such measurements before recommending bills submitted by 4th respondent for payment.
Result: W.P. (C) No. 23006/2019 is dismissed and W.P. (C) No. 15489/2020 is disposed of.
JUDGMENT :
N. NAGARESH, J.
1. The petitioner in W.P. (C) No. 23006 of 2019 is a Company engaged in the activities of Architects, Designers and as Project Managers and Supervisors of such activities. The petitioner seeks to direct respondents 1 to 3 not to release any more amounts to the 4th respondent without considering the points of objections raised by the petitioner in Exts.P6 to P9. The 4th respondent in W.P. (C) No. 23006/2019, is the petitioner in W.P. (C) No. 15489 of 2020. In W.P. (C) No. 15489 of 2020, the 4th respondent-petitioner seeks to command respondents 1 to 3 to release Rs. 2,72,98,311/- illegally withheld from him along with interest at the rate of 18% per annum from various bills of effecting deductions, with future interest.
2. As both these writ petitions relate to one contract work and to payments pursuant to the contract, they are heard together and being disposed of by a common judgment. The parties in these writ petitions are referred to in this judgment, as they are arrayed in W.P. (C) No. 23006/2019.
3. The Government of Kerala approved the appointment of petitioner as an Architect for construction of the campuses of the 3rd respondent-Kerala Maritime Institute at Neendakara. The petitioner entered into an agreement dated 03.07.2010 with the 3rd respondent. The petitioner would contend that for construction of a library with ground plus one floor and an academic block with a ground +2 floors, only shallow foundation/footing design was necessary. However, the 4th respondent insisted for a pile foundation. According to the petitioner, actually the piling drawings were meant only for the hostel block which was of 8 floors.
4. The petitioner would state that when the bills submitted by the 4th respondent was scrutinised and examined, it was noticed that the amounts already paid were in excess by Rs. 2.9 Crore. Noticing this excess payment by respondents 2 and 3 to the 4th respondent-contractor and also noticing certain anomalies, the petitioner sent a letter dated 09.02.2019 to the 2nd and 3rd respondents requesting to withhold further payments to the 4th respondent. According to the petitioner, a sum of Rs. 9.906 Crores was to be recovered from the 4th respondent under various heads.
5. In spite of the objections of the petitioner the officials attached to the office of the 2nd and 3rd respondents continued to insist for payment of undeserving amount to the 4th respondent-contractor. A meeting in the presence of the Minister for Sports was held on 02.08.2019. The Managing Director of the petitioner was laid up and could not attend the meeting. In the meeting, certain unfounded allegations were raised against the petitioner. The petitioner sent a letter dated 03.08.2019 to the Minister for Sports, pointing out corruption in the matter of payment of amounts to the 4th respondent-contractor. However, respondents 1 to 3 are trying to close the contract with the 4th respondent, discharging the 4th respondent from further contractual liability and to pay him further amount without effecting recovery of excess amount already paid. In the circumstances, the petitioner seeks to direct respondents 1 to 3 to realise the excess amount paid to the 4th respondent in violation of the advice and instructions given by the petitioner in Exts.P6 to P9.
6. In the writ petition filed by the 4th respondent, the 4th respondent stated that the 4th respondent participated in the tender for construction floated by the Director of Ports, the 2nd respondent, and as the bid of the 4th respondent being lowest, the tender was awarded to the 4th respondent. The petitioner was appointed as the Project Management Consultant of the Project. The petitioner being the Consultant, had prepared the bid document and specifications for construction of Institute buildings. The petitioner issued drawings and the 4th respondent commenced construction accordingly.
7. The petitioner-Consultant had issued pile foundation drawings for all the structures init
