HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE HARISANKAR v. MENON TUESDAY, THE

SRI.E.G.GORDEN, SR.G.P. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.35987 of 2023 3 2025:KER:28122 JUDGMENT The petitioner is stated to be a Contractor engaged in execution of various works awarded by the respondent Government. He participated in response to Ext.P1 tender and quoted an amount of Rs.34,04,146/- as against the estimated cost of work in excess of Rs.74 Lakhs. As seen from Ext.P2, the tender placed by the petitioner was accepted. The petitioner states that, by Ext.P3 order issued by the Government dated 28.09.2015, ‘additional performance guarantee’ was being demanded. The petitioner was before this Court by filing W.P.(C)No.5382 of 2023 seeking to challenge the demand of the additional performance guarantee. As per Ext.P5 interim order dated

17.02.2023, it is true, this Court directed the execution of the agreement on the petitioner providing the guarantee in the form of a ‘simple bond’. The writ petition referred to above has since been finally disposed of as per Ext.P6 judgment dated 21.03.2023, finding, among other things, that if the work is already completed, no additional performance guarantee need to be executed. W.P.(C)No.35987 of 2023 4 2025:KER:28122

2. The petitioner has filed the captioned writ petition contending that he has already completed the entire work and hence seeking to challenge Ext.P10, to the extent of proposal to terminate the work, if the additional performance guarantee is not executed within the period prescribed thereunder.

3. I have heard Sri.Babu Joseph Kuruvathazha, the learned counsel for the petitioner and Sri.E.G.Gorden, the learned senior Government Pleader.

4. A counter affidavit dated 29.09.2023 has been filed in the matter essentially pointing out that the work is not fully over and only 97% is complete, as on date. On 13.03.2025, noticing the rival submissions, this Court directed the learned Government Pleader to ascertain as to whether the work has been finalised as contended by the petitioner. Today, on the basis of the instructions received, Sri.E.G.Gorden, the learned Government Pleader admits that the entire work is completed. However he cautions that the petitioner is not entitled for the reliefs insofar as he has not furnished the guarantee as directed by this Court in Ext.P5 W.P.(C)No.35987 of 2023 5 2025:KER:28122 order.

5. I have considered the rival contention noticed as above. The learned Government Pleader is relying on the directions contained in Ext.P5 interim order. The counsel for the petitioner, Sir.Babu would contend that the petitioner has furnished the guarantee as directed at Ext.P5.

6. In any view of the matter, insofar as ultimately the writ petition itself has been finally disposed, there cannot be in reliance on the directions contained in Ext.P5. Once the work is already completed, the insistence on the additional performance guarantee can only be with reference to the final findings in Ext.P6 judgment. In Ext.P6 judgment, is is categorically found that if work is already completed, there cannot be any insistence for the additional performance guarantee.

7. In the light of the afore, I am of the opinion that the petitioner cannot be insisted to comply with the directions contained in Ext.P5, to the extent of furnishing the additional performance guarantee. Therefore, what remains W.P.(C)No.35987 of 2023 6 2025:KER:28122 for consideration is with reference to the entitlement of the petitioner for various amounts, on account of the completion of the work as above.

8. This Court notices that the petitioner has already furnished Ext.P11 application pointing out the facts and figures and seeking the disbursement of the various amounts due to him. In such circumstances, I dispose of this writ petition as under:- i. The petitioner is not liable to furnish any additional performance thereunder as sought to be demanded by Ext.P10 issued by the 3rd respondent. ii. In the light of the afore, the representation at Ext.P11 submitted by the petitioner to be considered and finally disposed of, within a period of six weeks from today. Sd/- HARISANKAR V. MENON JUDGE ANA W.P.(C)No.35987 of 2023 7 2025:KER:28122 APPENDIX OF WP(C) 35987/2023 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 Exhibit P9 TRUE COPY OF THE NOTICE INVITING TENDER (NIT) DATED 4.1.2023 ISSUED BY THE 3RD RESPONDENT. TRUE COPY OF THE LETTER OF ACCEPTANCE DATED 13.2.2023 ISSUED BY THE 3RD RESPONDENT. TRUE COPY OF G.O.(P) NO. 429/15/FIN DATED 28.9.2015 ISSUED BY THE GOVERNMENT. TRUE COPY OF G.O.(P) NO.19/2016/FIN DATED 3.2.2016 ISSUED BY THE GOVERNMENT. TRUE COPY OF THE ORDER OF THIS HON’BLE COURT DATED 17.2.2023 IN W.P.(C) NO.5382/2023. TRUE COPY OF THE JUDGMENT OF THIS HON’BLE COURT DATED 21.3.2023 IN W.P.(C) NO.5382/2023. TRUE COPY OF THE REPRESENTATION DATED 11.4.2023 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. TRUE COPY OF THE REPRESENTATION DATED 5.5.2023 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. TRUE COPY OF THE JUDGMENT OF THIS HON’BLE COURT DATED 23.5.2023 IN W.P.(C) NO.16343/2023. Exhibit P10 TRUE COPY OF THE LETTER NO.D7-7937/2023 DATED 30.9.2023 ISSUED BY THE 3RD RESPONDENT. W.P.(C)No.35987 of 2023 8 2025:KER:28122 Exhibit P11 Exhibit P12 Exhibit P13 TRUE COPY OF THE REPRESENTATION DATED 16.10.2023 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. TRUE COPY OF THE JUDGMENT OF THIS HON’BLE COURT DATED 17.1.2024 IN W.A.NO.997/2023. TRUE COPY OF THE PROCEEDING NO.D7- 7937/2023 DATED 24.1.2024 OF THE 3RD RESPONDENT, DIRECTING THE PETITIONER TO FURNISH THE ADDITIONAL PERFORMANCE GUARANTEE.