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2021 Supreme(Online)(KER) 32298

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH MONDAY, THE 26TH DAY OF APRIL 2021 / 6TH VAISAKHA, 1943 WP(C).No.23006 OF 2019(A)
PETITIONER:
M/s.AJIT ASSOCIATES ARCHITECTURAL CONSULTANTS PVT. LTD., HAVING ITS OFFICE AT 3RD FLOOR, PUTHOORAN PLAZA, KPCC JUNCTION, M.G. ROAD, ERNAKULAM, KOCHI -682011, REPRESENTED BY ITS MANAGING DIRECTOR MR.(AR.) B.R. AJIT.
BY ADVS.
SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SHRI.P.U.VINOD KUMAR SRI.AVINASH P RAVEENDRAN SMT.ARYA RAGHUNATH SMT.ANJALY N.S.
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF PORTS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 DIRECTOR OF PORTS, GOVERNMENT OF KERALA, VELIYATHURA, VALLAKKADAVU, THIRUVANANTHAPURAM-695008.
3 THE KERALA MARITIME SOCIETY, NEENDAKARA, KOLLAM-691582, REPRESENTED BY ITS SPECIAL OFFICER.
4 M/S. SOUTH INDIAN CONSTRUCTIONS, VAVVAKKAVU P.O., KOLLAM-690528.
ADDL. 5 KERALA MARITIME BOARD, REPRESENTED BY ITS CHIEF OPERATING OFFICER, VALIYATHURA, VALLAKADAVU P.O., THIRUVANANTHAPURAM - 695008 (ADDL.R5 IS IMPLEADED AS PER ORDER DATED
10.10.2019 IN IA No.1/2019.)
ADDL.
6 MR.RATNAKUMAR.A.
TRAINING CO-ORDINATOR, KERALA MARITIME INSTITUTE (MECHANICAL MARINE ENGINEER), DIRECTORATE OF PORTS, NEAR VALIYATHURA BRIDGE, VALLAKADAVU P.O., THIRUVANANTHAPURAM-695008.
(ADDL. R6 IS IMPLEADED AS PER ORDER DATED
26.4.2021 IN I.A.NO.3 OF 2019.)
R4 BY ADV. SRI.JOHNSON GOMEZ R4 BY ADV. SRI.C.UNNIKRISHNAN (KOLLAM)
R4 BY ADV. SMT.A.V.INDIRA R4 BY ADV. SRI.S.BIJU (KIZHAKKANELA)
R4 BY ADV. SMT. JANE MARIA TOMY R4 BY ADV. SMT.UTHARA A.S R4 BY ADV. SMT.KARISHMA JOJO R4 BY ADV. SHRI.GAJENDRA SINGH RAJPUROHIT R4 BY ADV. SMT.GAYATHRI V NAIR R4 BY ADV. SMT.LIYA ELZA ALEX R4 BY ADV. SRI.D.JAYAKRISHNAN R5 BY ADV. K.P.SUDHEER R6 BY ADV. SRI.K.B.PRADEEP R6 BY ADV. SHRI.HARISANKAR R R6 BY ADV. SHRI.SREERAJ M.D.
R1-2 BY GOVERNMENT PLEADER K.V MANOJ KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-04-2021, ALONG WITH WP(C).15489/2020(I), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH MONDAY, THE 26TH DAY OF APRIL 2021 / 6TH VAISAKHA, 1943 WP(C).No.15489 OF 2020(I)
PETITIONER:
SOUTH INDIAN CONSTRUCTIONS PVT. LTD., VAVVAKKAVU P.O., KARUNAGAPALLY REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, MR.R. VINOD KUMAR, AGED 47 YEARS, S/O. RAGHAVAN, RESIDING AT KOCHUPARAYATTU, VAVVAKKAVU, KARUNAGAPALLY, KOLLAM.
BY ADVS.
SRI.C.UNNIKRISHNAN (KOLLAM)
SMT.A.V.INDIRA SHRI.ANANDA PADMANABHAN SMT.LIYA ELZA ALEX RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF PORTS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.
2 DIRECTOR OF PORTS, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM 695 002.
3 THE KERALA MARITIME BOARD, VALIYATHURA, VALAKAKADAVU, THIRUVANANTHAPURAM 695 008, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER.
4 M/S. AJITH ASSOCIATES, ARCHITECTURAL CONSULTANTS PVT.LTD., HAVING ITS OFFICE AT 3RD FLOOR, PUTHOORAN PLAZA, KPCC JUNCTION, M.G. ROAD, ERNAKULAM, PIN-682 001, REPRESENTED BY ITS DIRECTOR MR. AJIT.
R3 BY GOVERNMENT PLEADER SRI.K.V.MANOJKUMAR R4 BY ADV. SRI.BABU KARUKAPADATH R4 BY ADV. SMT.M.A.VAHEEDA BABU R4 BY ADV. SRI.P.U.VINOD KUMAR R4 BY ADV. SMT.ARYA RAGHUNATH R4 BY ADV. SMT.VAISAKHI V.
R4 BY ADV. SRI.T.M.MUHAMMED MUSTHAQ BY ADV. SRI.K.P.SUDHEER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-04-2021, ALONG WITH WP(C).23006/2019(A), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

Advocates:
['BABU KARUKAPADATH', '', 'SMT M A VAHEEDA BABU', 'SRI P U VINOD KUMAR', 'SRI AVINASH P RAVEENDRAN', 'SMT ARYA RAGHUNATH', 'SMT ANJALY N S', 'SRI JOHNSON GOMEZ', 'SRI C UNNIKRISHNAN KOLLAMSMT A V INDIRASRI S BIJU KIZHAKKANELASMT JANE MARIA TOMYSMT UTHARA A SSMT KARISHMA JOJOSHRI GAJENDRA SINGH RAJPUROHITSMT GAYATHRI V NAIRSMT LIYA ELZA ALEXSRI D JAYAKRISHNAN', 'K P SUDHEER', 'SRI K B PRADEEP']

The judgment underscores the importance of contractual compliance and cooperation in project management for determining payment obligations.

Headnote:
Payment - Contractual Obligations - WP(C) No.23006/2019, WP(C) No.15489/2020 - The case addresses disputes over payment entitlements under a construction contract, highlighting the obligations of each party while analyzing the validity of withheld and additional payments.
Fact of the Case:

The petitioner, a Project Management Consultant, seeks to prevent further payments to the contractor, citing excess payments already made and alleging corruption. The contractor, on the other hand, requests the release of withheld payments due to completed works.
Finding of the Court:

The court found that the delays and issues arose from the petitioner's failure to cooperate and complete necessary certifications. Thus, the claims of excess payments against the contractor were viewed as retaliatory for consultancy fee disputes.
Issues: Whether the payment to the contractor should proceed despite the objections raised by the Project Management Consultant, and the legitimacy of the excess amounts claimed.
Ratio Decidendi: The principles of contract enforcement and responsible management of payments under contractual agreements were emphasized, clarifying that the Consultant's obligation to certify work and cooperation was paramount.
Final Decision: WP(C) No.23006/2019 is dismissed; WP(C) No.15489/2020 directs release of withheld payments within two months.

JUDGMENT

~ ~ ~ ~ ~ ~ ~ ~ ~

Dated this the 26th day of April, 2021

The petitioner in WP(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 WP(C) No.23006/2019, is the petitioner in WP(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 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 WP(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 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 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 str

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