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2024 Supreme(Online)(KER) 4677
HIGH COURT OF KERALA
Devan Ramachandran, J
TOMCO ENGINEERING PVT. LTD – Appellant
Versus
STATE OF KERALA – Respondent
WP(C) 33496/2023
GEORGE MATHEW
M.D.SASIKUMARAN
SUNIL KUMAR
A.G MATHEW
K.T. GEORGE
K.V. STEPHY
K REGI MEDHA B.S.
V.V.JOSHY
C.CHANDRASEKHARAN NAIR
SUNIL KUMAR KURIAKOSE
The court emphasized the importance of commissioning the pipeline and addressing observation memos before releasing withheld amounts.
Headnote:
Contract Dispute - Delayed Disbursement - The court directed the Kerala Water Authority to disburse eligible amounts to the petitioner within a fixed time frame, emphasizing the need for commissioning the pipeline and addressing observation memos.
Fact of the Case:
The petitioner, a registered company, completed work for the Kerala Water Authority over 3½ years ago but has not received eligible amounts, including retention amounts, due to delayed commissioning of the pipeline.
Finding of the Court:
The court found that the delay in disbursing eligible amounts was due to the commissioning delay, and directed the Kerala Water Authority to address observation memos and consider the petitioner's claim for release of amounts within three months.
Issues: Disbursement delay, legality of retention amounts, commissioning delay, and liability of funding agency.
Ratio Decidendi: The court emphasized the need for commissioning the pipeline and addressing observation memos before releasing the amounts to the petitioner.
Final Decision: The court directed the Kerala Water Authority to disburse eligible amounts to the petitioner within three months and left the adjudication of claims to the authority.
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 19TH DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945 WP(C) NO. 33496 OF 2023 PETITIONER:
TOMCO ENGINEERING PVT. LTD, PALANNATTIL, KUNNACKAL POST, MUVATTUPUZHA, ERNAKULAM DISTRICT - 682 316 REP. BY ITS MANAGING DIRECTOR, PAUL P. THOMAS, S/O. LATE P.P. THOMAS, PALANNATTIL HOUSE, KUNNACKAL POST, MUVATTUPUZHA, ERNAKULAM, PIN – 682316.
BY ADVS.
GEORGE MATHEW M.D.SASIKUMARAN SUNIL KUMAR A.G MATHEW K.T. GEORGE K.V.
STEPHY K REGI MEDHA B.S.
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001.
2 KERALA WATER AUTHORITY REP. BY ITS MANAGING DIRECTOR, HEAD OFFICE, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN – 695033.
3 THE SUPERINTENDING ENGINEER, OFFICE OF THE SUPERINTENDING ENGINEER, KERALA WATER AUTHORITY, PH CIRCLE, MALAPPURAM, PIN – 670012.
4 EXECUTIVE ENGINEER OFFICE OF THE EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, PROJECT DIVISION, MALAPPURAM, PIN – 670012.
5 THE FINANCE MANAGER & CHIEF ACCOUNTS OFFICER KERALA WATER AUTHORITY, JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN – 695033.
6 KERALA INFRASTRUCTURE FUND BOARD (KIIFB)
REP. BY ITS. CHIEF EXECUTIVE OFFICER, FELICITY 2ND SQUARE, MAHATMA GANDHI ROAD, STATUE, THIRUVANANTHAPURAM, PIN – 695001.
BY ADV.SRI.V.V.JOSHY, SC SRI.C.CHANDRASEKHARAN NAIR, SC SRI.SUNIL KUMAR KURIAKOSE, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT The petitioner, which is stated to be a registered Company, entered into a contract with the Kerala Water Authority (‘KWA’) with respect to a particular work.
2. The petitioner says that even though they completed their entrusted work to the satisfaction of the Authorities more than 3½ years ago; no action has yet been taken to disburse the eligible amounts to them under their Final Bill, including the amounts retained towards commissioning and charging of the pipeline; and therefore, prays that it be directed to be done within a time frame to be fixed by this Court.
3. Sri.George Mathew – learned counsel for the petitioner, reiteratingly submitted that there is no complaint against his client with respect to the work in question and that the commissioning of the pipeline has been delayed by the ‘KWA’ for no reason that cannot be attributed to them. He contended that, therefore, the continuation of retention of the amounts under the Security Deposit, Commissioning and Maintenance Charges etc., as per Ext.P2, is illegal and unlawful, particularly when the guarantee period and the defect liability period have long elapsed. He, therefore, prayed that the reliefs sought for in this writ petition be granted.
4. Sri.V.V.Joshy – learned Standing Counsel for the ‘KWA’, very pertinently submitted that the delay in disbursing eligible amounts to the petitioner is only because the commissioning of the pipeline has not yet been able to be completed. He added that, this is because, the electric supply required for this had not been obtained by his client; but conceded, to a pointed question from this Court, that no fault can be attributed to the petitioner for this. He, nevertheless, submitted that, it is only after the pipeline is commissioned, that it can be found whether there is any defect in the line; and therefore, that the commissioning and retention amounts cannot be now released to the petitioner, however, adding that all other bills have already been honoured.
5. Sri.C.Chandrasekharan Nair, learned th Standing Counsel for the 6 respondent - Kerala Infrastructure Investment Fund Board (KIIFB), submitted that the ‘KWA’ has not answered any of the ‘Observation Memos’ issued by his client, namely Exts.R6(a) and R6(f); and therefore, that his client’s liability as a Funding Agency cannot be now called in. He submitted that it is only if the afore ‘Observation Memos’ are answered by the ‘KWA’, can h
