M/S. RELIABLE CONSTRUCTION COMPANY v. STATE OF KERALA

SRI. VENUGOPAL V (GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

05.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 7382 OF 2014 2 JUDGMENT The petitioner is a partnership firm engaged in business of undertaking Government contracts. The petitioner responded to Ext.P1 tender and was awarded the work as is evident from Ext.P2. The petitioner, however, failed to execute a formal agreement as a consequence of Ext.P2 since it failed to arrange a performance guarantee for Rs.31,82,616/-. The repeated notices issued to the petitioner for executing the agreement were returned ‘unclaimed’. Therefore, on 26.11.2012, the authorities issued Ext.P6 terminating the work awarded in terms of Ext.P2 at the risk and cost of the petitioner. By Ext.P7 proceedings dated

13.12.2012, the Earnest Money Deposit furnished by the petitioner was also forfeited. The petitioner approached this Court by filing W.P.(C) No.2095 of 2013, challenging Ext.P6. However, that writ petition was dismissed by a learned Single Judgment of this Court by judgment dated 11.03.2013. Challenging the dismissal of the said writ petition, the petitioner filed Writ Appeal No.888 of 2013, but that writ appeal was also dismissed by the Division Bench of this Court by judgment dated

14.06.2013. WP(C) NO. 7382 OF 2014 3

2. The next lowest bidder in Ext.P1 tender had approached this Court by filing W.P.(C) No.26547 of 2012, claiming that since the petitioner had not come forward to execute the agreement, the work must be awarded to him. This Court, through Ext.P9 judgment, directed a consideration of the claim of the petitioner in WP(C) No.26547 of 2012. However, since the petitioner in WP(C) No.26547 of 2012 refused to undertake the work at the rate quoted by the petitioner, the work was re-tendered and Ext.P10 order was issued, provisionally quantifying the liability of the petitioner under the ‘risk and cost’ clause @ Rs.11,82,386/-. It is challenging Ext.P10 that the petitioner has approached this Court through the aforesaid writ petition.

3. The 2nd respondent has filed a counter affidavit where in Paragraph No.5, it is stated that the work was re-tendered at

28.53% below the estimate rate. It is stated that since the petitioner had quoted for the work at 36.01% below the estimate rate, the difference between the two rates was provisionally quantified as the liability of the petitioner. It is submitted that the work was terminated at the risk and cost of the petitioner by Ext.P6. It is submitted that since Ext.P6 has already been upheld WP(C) NO. 7382 OF 2014 4 by this Court, there is no question of now determining the validity of Ext.P10. It is pointed out that this Court had not even reserved the liberty of the petitioner to dispute the liability fixed under the risk and cost clause and therefore, this writ petition is clearly not maintainable.

4. I have considered the contentions raised. As already noticed above, through Ext.P6 order dated 26.11.2012, the work originally awarded to to the petitioner under Ext.P2 was terminated at his risk and cost. The work was re-tendered and the successful bidder had quoted 28.53% below the estimate rate. As is evident from the pleadings of the petitioner himself, the petitioner had initially quoted 36.01% below estimate rate. Therefore, the higher amount, which has been spent by the Government to complete the work was quantified as the amount payable by the petitioner under the risk and cost Clause. As rightly pointed out by the learned Government Pleader, the petitioner having challenged Ext.P6 unsuccessfully before this Court by filing W.P.(C.) No.2095 of 2013, he cannot turn around and challenge the termination of work at risk and cost by filing the present writ petition. That apart, it is also to be noted that even while rejecting the challenge raised by the petitioner in WP(C) NO. 7382 OF 2014 5 Ext.P6 proceedings terminating the award of work at the risk and cost of the petitioner, this Court had not reserved the liberty of the petitioner to challenge the quantification of the amount liable to be paid by the petitioner under the risk and cost clause. Therefore, I find no reason to interfere with Ext.P10 order. The writ petition fails and it is accordingly, dismissed. Sd/- GOPINATH P. JUDGE WP(C) NO. 7382 OF 2014 6 APPENDIX OF WP(C) 7382/2014 PETITIONER EXHIBITS EXHIBIT P1 EXHIBIT P2 EXHIBIT P3 EXHIBIT P4 EXHIBIT P5 EXHIBIT P6 EXHIBIT P7 EXHIBIT P8 EXHIBIT P9 EXHIBIT P10 RESPONDENTS EXHIBITS EXHIBIT R2(a) EXHIBIT R2(b) EXHIBIT R2(c) EXHIBIT R2(d) COPY OF THE TENDER NOTICE NO.DB-`1830/2011/ISC DTED 12/6/2012 ISSUED BY THE 2ND RESPONDENT COPY OF THE SELECTION NOTICE BEARING NO.D10- 13/2012 /ISC DATED 19/10/2012 ISSUED BY THE 2ND RESPONDENT COPY OF CLAUSE XV OF GO(P) NO. 84/97/PW & T DATED 19/8/97 ISSUED BY THE GOVERNMENT COPY OF THE CIRCULAR NO. 22563/MPI/12/WRD DATED 19/10/2012 ISSUED BY THE GOVERNMENT COPY OF THE LETTER DATRED 320/7/2012 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT COPY OF THE LETTER NO.D10-13/12/ISC DATED 26/11/2012 ISSUED BY THE 2ND RESPONDENT COPY OF THE ORDER NO.D10-13/12/ISC DATED 13/12/2012 ISSUED BY THE 2ND RESPONDENT COPY OF PARA 13 OF THE NOTICE INVITING TENDERS PROVIDED IN THE KERALA PUBLIC WORKS DEPARTMENT CODE COPY OF THE JUDGMENT DATED 15/11/2012 IN WPC NO.26547/20`12 OF THIS HON'BLE COURT COPY OF THE ORDER NO. D10-13/12/ISC DATED 29/4/2013 ISSUED BY THE 2ND RESPONDENT THE PHOTOCOPY OF THE ACKNOWLEDGMENT WITH RECEIPT OF THE NOTICE SHOWN AS UNCLAIMED THE PHOTOCOPY OF THE ACKNOWLEDGMENT WITH RECEIPT OF THE NOTICE SHOWN AS REFUSED THE PHOTOCOPY OF THE CIRCULAR REGARDING THE INTRODUCTION OF PERFORMANCE GUARANTEE A PHOTOCOPY OF THE RELEVANT PAGES OF THE EXTRACT OF KERALA PUBLIC WORKS DEPARTMENT