BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 21.03.2025 CORAM THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN AND THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN W.A(MD) No.1072 of 2022 and C.M.P.(MD)No.8584 of 2022 M/s.The Indian Hume Pipe Co. Ltd., No.8, First Street, Gopalapuram, Chennai-600006. ... Appellant / Petitioner Vs

1.TWAD Board, Urban Division, No.7/33, Rajappa Nagar, 4th Street, M.C.Road, Thanjavur.

2.The Executive Engineer, TWAD Board, Urban Division, No.7/33, Rajappa Nagar, 4th Street, M.C.Road, Thanjavur. ... Respondents / Respondents PRAYER: Writ Appeal filed under Clause 15 of Letters Patent, praying this Court to set aside the order passed by this Court in W.P.(MD)No.

10263 of 2010, dated 23.06.2022 and allow the same.

For Appellant : Mr.B.Saravanan Senior Counsel for Mr.D.Kirubakaran For Respondents : Mr.Ajmal Khan Additional Advocate General assisted by Mr.B.Vijay Karthikeyan

ORDER

(Order of the Court was made by G.R.SWAMINATHAN, J.)

The writ petitioner was awarded the work namely CWSS to Nagapattinam Municipality Kilvelure & Velankanni RTP's with Bulk provision for 890 Rural habitations in Nagapattinam, Keezhaiyur, Thirumarugal, Thalainayar and Kilvelur Panchayat Unions in Nagapattinam District by TWAD Board. The work order was issued on 26.12.2003. The project consisted of various components and one of the components was the construction of collection wells and foot-bridges in Coleroon river near Ammaiyappan & Vandayarirupu. The work was commenced on 09.01.2004. When the work was nearing completion, there was an unprecedented rain on 24.10.2005. From mettur dam, a huge quantity of water was also released. As a result, the collection wells I & II were heavily damaged. Deck slab was also washed away.

For almost a month, the contractor could not resume their work. At this stage, the Executive Engineer, TWAD Board, Urban Division, Thanjavur called upon the contractor to commence the construction work of foot-bridges for collection well I at Vandayar Irupu for the flood damaged work with well foundation and complete the balance work as per the agreement conditions immediately. The balance details including the depth of well foundation were also furnished to the contractor. In response to the said letter dated 21.12.2005, the contractor replied as follows:-

“1. Major Changes have been done in the design of Foot Bridge.

The structure of foundation has been changed from friction pile foundation to well foundation which require long period for construction. We require minimum 6 months for doing all works as per your revised drawing. 2. The tender for this project was called during 2003 and cost of the major materials have increased unprecedently during last two years. Hence, we are not in a position to execute the above supplemental works as per the agreement rates.”

Parallely, the extension of time to complete the work by 30.06.2006 without price escalation was also granted. While the contractor completed the other works, they refused to carry out the flood damaged work as per the revised terms and conditions. Therefore, the TWAD Board was left with no other option but to get the said work done through a third party. In fact, for the work done by the contractor, the TWAD Board paid the entire payment. Subsequently, there was an audit objection. In view of the same, the TWAD Board vide letter dated 23.07.2010 ordered recovery of a sum of Rs.32,24,219/- from the contractor's bill of payment. Challenging the same, the contractor filed W.P.(MD)No.10263 of 2010. The learned single Judge vide order dated

23.06.2002 dismissed the writ petition in the following terms:-

“11.It is settled position, if there are factual disputes especially in contractual matter, this Court cannot exercise its jurisdiction under Article 226 of Constitution of India. The present impugned order has been passed to recover certain amount from the writ petitioner on the ground that he has committed breach of contract by refusing to execute the work as per agree