The termination of a contract at the risk and cost of the contractor is valid if it is part of the contract terms, and recovery can be made without adjudication of dues by a competent court if the contract contains a risk and cost clause.

JUDGMENT :

N. Nagaresh, J.

1. The petitioner, who is a Government Contractor with Class-A grading, is before this Court seeking to direct respondents 1 to 3 to admeasure Ext.P1 work completed by him and to effect payment of amounts for the same and to allow him to participate in the proposed re-tender proceedings.

2. The petitioner states that he was the successful bidder and was entrusted with the work of "NABARD assisted Scheme under RIDF - XVIII - improvements and Side Protection Works to Nedinjil Ela Thodu from upstream of KWA Pump House to Vellayani lake in Kalliyoor Panchayat". The petitioner executed Ext.P1 agreement. He deposited Rs.50,000/- in cash and Rs.1,00,000/- worth National Savings Certificates as security. Under Ext.P1, the petitioner had to execute 18 items of work, with an estimated cost of Rs.44,79,163/-.

3. Though the petitioner commenced work, after four months, local people under the leadership of Nemom Block Member objected and resisted the work. They demanded realignment of the route. The petitioner was compelled to stop the work immediately. The petitioner informed the issue to respondents 2 and 3 and requested to take necessary remedial action. The petitioner had availed a loan of Rs.25 lakhs from the 4th respondent, to execute the work. There was a delay in payment of bills for the work executed by the petitioner.

4. The petitioner repeatedly required respondents 2 and 3 to take necessary action to subdue people's protest so that the petitioner can carry on with the work. Ext.P3 series of representations were submitted by the petitioner in this regard. The petitioner submits that he could not proceed with the work due to the obstructions from local people. The petitioner was not at fault in any manner. The 2nd respondent has cleared only Rs.11,72,440/- of his bill amount. Balance amounts are outstanding. In the meanwhile, the 2nd respondent has taken steps to re-tender the work by forfeiting the security deposit given by the petitioner. It is under such circumstances that the petitioner has approached this Court.

5. The 2nd respondent opposed the writ petition filing counter affidavit. The 2nd respondent stated that the resistance on the part of the local people was confined to only a small area. The remaining portions were free from issues. A few coconut trees standing were not an obstruction to execute the work. In spite of the availability of hindrance free site, the petitioner did not continue execution of the work. The Department sent repeated reminders to the petitioner to proceed with the remaining work. He did not respond to. On the other hand, the petitioner extended lame excuses. It was under such circumstances that respondents 1 to 3, on 20.09.2014, decided to terminate the contract with the petitioner at the risk and cost of the contractor.

6. The learned counsel for the petitioner argued that the petitioner could not have proceeded with the work due to the obstructions and resistance of the local people. The respondents were informed of the same. The respondents did not do anything to get the obstructions removed. Therefore, non-completion of the work is not due to the fault of the petitioner. The learned counsel for the petitioner further submitted that the proposed recovery of the cost from the petitioner is unsustainable. The respondents can recover only adjudicated amounts. Relying on a Division Bench judgment of this Court in Ponnappan K.A. v. DFO, Chalakudy and others, 1984 KLJ 853], the learned counsel for the petitioner argued that only a determined amount can be recovered from the petitioner. What is sought to be realised is not liquidated damages.

7. Relying on the judgment of this Court in State of Kerala v. Universal Marine Agencies, 1980 KLT 187], the learned counsel for the petitioner argued that as long as there is no adjudication of damages caused by the petitioner due to the alleged violation of contract, there cannot be any recovery. The action of the respondents in forfeiting