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2021 Supreme(Online)(KER) 10963
HIGH COURT OF KERALA
N. NAGARESH, J
MKMS BUILDERS, – Appellant
Versus
KERALA INFRASTRUCTURE AND TECHNOLOGY FOR EDUCATION INFRASTRUCTURE DIVISION (KITE), – Respondent
WP(C)/6762/2020
SRI.T.SANJAY, SR. GOVERNMENT PLEADER, SRI.K.V.MANOJ KUMAR
Court emphasizes the primacy of contractual dispute resolution mechanisms in construction contracts over judicial remedies.
Headnote:
Contract - Writ Petition - Clause 24 - The court referred to General Conditions of Contract, specifically Clause 24, regarding dispute resolution for termination of contracts and bank guarantee realization, emphasizing contractual remedies as primary.
Fact of the Case:
Petitioner challenged termination of a construction contract and bank guarantee realization. The work was retendered, and the petitioner was advised to seek remedies through the contract's provisions.
Finding of the Court:
The court found that since the work had already been retendered, the petitioner should resolve disputes through the contractual remedy instead of litigation.
Issues: Whether the petitioner's disputes on contract termination and bank guarantee realization could be adjudicated in court, or if they should utilize the contractual remedy process.
Ratio Decidendi: The court held that contractual disputes should be resolved via the remedies specified in the contract, promoting adherence to contractual terms over judicial intervention.
Final Decision: The writ petitions were disposed of, directing the petitioner to follow the contractual remedy process.
J U D G M E N T
~ ~ ~ ~ ~ ~ ~ ~ ~
Dated this the 24th day of February, 2021 [WP(C) Nos.6762 & 9585 of 2020]
These writ petitions have been filed by the petitioner against termination of the contract, realisation of Bank Guarantee and re-tender of the work.
2. When this matter came up today, it was submitted at the Bar that the work in question has already been retendered. If the petitioner has any dispute regarding the termination of the contract, re-tender or realisation of Bank Guarantee, the petitioner can invoke Clause 24(2) of the General Conditions of the Contract in Ext.P10 to resolve the same.
In the circumstances, relegating the petitioner to avail the said remedy available under the contract, these writ petitions are disposed of.
Sd/-
N. NAGARESH, JUDGE aks/24.02.2021 The words and figure 'Clause 24(2) of the General Conditions of the Contract' occurring in paragraph No.2 of the judgment dated 24.02.2021 in W.P.(C) Nos.6762/2020 and 9585/2020 stand corrected as 'Clause 24 under Kerala Public Works (Bldgs. & L.W.) Department Form No.83 – Notice Inviting Tenders for Work' as per order dated 16.03.2021 in IA No.3/2021 in W.P.(C) No.6762/2020.
Sd/-
Deputy Registrar APPENDIX OF WP(C) 6762/2020 PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE PHOTOCOPY OF THE LETTER OF AWARD.
EXHIBIT P2 A TRUE COPY OF THE AGREEMENT DATED
10/05/2018 ENTERED INTO BETWEEN THE PETITIONER AND THE 1ST RESPONDENT, AWARDING THE WORK.
EXHIBIT P3 A TRUE COPY OF THE PERFORMANCE SECURITY DATED 25/04/2018.
EXHIBIT P4 A TRUE COPY OF THE AGREEMENT DATED
6/5/2019.
EXHIBIT P5 A TRUE COPY OF THE SCHEDULE REFLECTING THE DELAY MADE IN THE PAYMENTS.
EXHIBIT P6 A TRUE COPY OF THE RECEIPT OF THE COMPLAINT DATED 15/02/2020.
EXHIBIT P7 A TRUE COPY OF THE SHOW CAUSE NOTICE IN REGARD TO THE DELAY OF WORK.
EXHIBIT P8 A TRUE COPY OF THE REPLY DATED
17/02/2020.
EXHIBIT P9 A TRUE COPY OF THE DETAILED REPLY TO THE SHOW CAUSE NOTICE TO BE HANDED OVER TO THE RESPONDENT.
EXHIBIT P10 A TRUE COPY OF THE SECTION 6 OF GENERAL CONDITIONS OF CONTRACT OF TENDER NO.KITE/CLUSTER - 6/01.
EXHIBIT P11 A TRUE COPY OF THE TERMINATION LETTER DATED 26/2/2020, SENT VIA EMAIL.
EXHIBIT P12 A TRUE COPY OF THE ORDER ISSUED BY THE
3RD RESPONDENT DATED 27.01.2020.
EXHIBIT P13 A TRUE COPY OF THE ORDER ISSUED BY THE
3RD RESPONDENT DATED 17.02.2020.
EXHIBIT P14 A TRUE COPY OF THE SUPPLEMENTARY AGREEMENT DATED 03.02.2020 ENTERED INTO BY KERALA INFRASTRUCTURE AND TECHNOLOGY FOR EDUCATION (KITE) AND THE PETITIONER BUILDER.
EXHIBIT P15 THE PHOTOGRAPH OF THE ADMINITRATIVE BLOCK OF THE MADRAS HIGH COURT ALONG WITH THE RELEVANT TESTIMONIAL.
EXHIBIT P16 THE PHOTOGRAPH DEPICTING THE ODISHA BHAVAN IN TAMIL NADU ALONG WITH THE RELEVANT TESTIMONIAL.
EXHIBIT P17 THE PHOTOGRAPH OF THE SRI RAMACHANDRA MEDICAL COLLEGE PG HOSTEL CONSTRUCTED BY THE PETITIONER BUILDER ALONG WITH THE RELEVANT TESTIMONIAL.
EXHIBIT P18 THE PHOTOGRAPH OF THE TAMIL NADU GOVERNMENT DENTAL COLLEGE AND HOSPITAL, CHENNAI CONSTRUCTED BY THE PETITIONER BUILDER ALONG WITH THE RELEVANT TESTIMONIAL.
EXHIBIT P19 TRUE COPY OF THE WORK SCHEDULE WITH REGARD TO GOVERNMENT HIGHER SECONDARY SCHOOL VECHOOCHIRA COLONY.
EXHIBIT P20 TRUE COPY OF THE WORK SCHEDULE WITH REGARD TO GOVERNMENT BOYS HIGHER SECONDARY SCHOOL ADOOR, ADOOR.
EXHIBIT P21 TRUE COPY OF THE WORK SCHEDULE WITH REGARD TO KANNASSA SMARAKA G.H.S.S.
KADAPRA.
EXHIBIT P22 TRUE COPY OF THE WORK SCHEDULE WITH REGARD TO G.H.S.S KOZHENCHERRY.
EXHIBIT P22(A) TRUE COPY OF THE WORK SCHEDULE WITH REGARD TO G.H.S.S. KONNI.
EXHIBIT P23 PHOTOGRAPH OF THE CONSTRUCTION WORK FOR THE GOVERNMENT BOYS H.S.S ADOOR.
EXHIBIT P24 PHOTOGRAPH OF THE CONSTRUCTION WORK FOR THE GOVERNMENT H.S.S KONNI.
EXHIBIT P25 PHOTOGRAPH OF THE C0NSTRUCTION WORK FOR THE GOVERNMENT H.S.S VECHOOCHIRA.
EXHIBIT P26 PHOTOGRAPH OF THE CONSTRUCTION WORK FOR THE KANASSA SMARAKA G.H.S.S KADAPRA.
EXHIBIT P27 PHOTOGRAPH OF THE CONSTRUCTION WORK FOR THE G.H.S.S, KOZHENCHERY.
EXHIBIT P28 TRUE COPY OF THE TENDER NOTICE PUBLISHED IN THE WEBSITE.
EXHIBIT P29 THE TRUE COPY OF THE EMAIL SENT TO THE PETITI
