IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 WP(C).No. 19773 of 2009(N) -------------------------- PETITIONER(S): --------------- SMT.THILAKAM, D/O.LATE P.K.VASUDEVAN PULLARKAT, PURAYAR, PO. DESOM, ALUVA BY ADV. SRI.S.EASWARAN SRI.P.MURALEEDHARAN (IRIMPANAM) RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SUPERINTENDING ENGINEER, N.H.SOUTH CIRCLE, THIRUVANANTHAPURAM. 3. THE EXECUTIVE ENGINEER, N.H.DIVISION KODUNGALLUR. 4. THE FEDERAL BANK LTD, FEDERAL TOWERS MARINE DRIVE, ERNAKULAM KOCHI 682 031, REPRESENTED BY ITS CHIEF MANAGER. 5. SHRI.C.V.JAYADAS ,S/O. VELAYUDHAN CHAMBADIYIL HOUSE, KADAVANTHARA, ERNAKULAM, KOCHI 682 020. BY GOVERNMENT PLEADER SRI. M.A.ASIF FOR R1-3 ADV. SRI.GEORGE VARGHESE (MANACHIRACKEL) FOR R4 SRI.P.K.BALAKRISHNAN NAIR FOR R5 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 19773 OF 2009 -------------------------- Dated this the 2nd day of December, 2009 J U D G M E N T The fifth respondent contractor had executed a work awarded by respondents 1 to 3. He had availed a loan from the fourth respondent bank for carrying out the said work. When the loan was not repaid, the fourth respondent bank filed O.A. No. 376 of 2002 in the Debts Recovery Tribunal, Kerala and Lakshadweep, Ernakulam. The petitioner, who was one among the sureties for the loan transaction was also a defendant in O.A. No. 376 of 2002. O.A. No. 376 of 2002 is still pending. 2. The fifth respondent did not complete the work in time. The contract with him was terminated and work was re-tendered at his risk and cost. The re-tender was at a lesser expense and therefore the fifth respondent was not proceeded against. However, the bill amount is remaining unpaid for want of a no objection certificate. In this writ petition, the petitioner states that the fifth respondent has executed a power of attorney in favour of the fourth respondent bank authorising the bank to collect the amounts due to the fifth respondent from respondents 1 to 3. This writ petition is filed W.P.(C) No. 19773/09 2 aggrieved by the non-payment of the amount due to the fifth respondent for the work executed by him, to the fourth respondent. 3. A counter affidavit has been filed on behalf of the second respondent. Para 3 of the statement reads as follows: “3. It is submitted that subsequently the work terminated at the risk and cost of the 5th respondent was re-arranged at a lower rate than that quoted by the 5th respondent and he was freed from the risk and cost liabilities. As requested by the 5th respondent the non liability certificate has been issued to him on 15.06.2004. True copy of the non-liability certificate issued to the 5th respondent is produced herewith and marked as Ext.R2 (a). The 5th respondent had admitted the same in his letter dated 08.02.2005. True copy of the 5th respondent's letter is produced herewith and marked as Ext.R2(b). As such there is no liability outstanding against the 5th respondent and there is no impediment for the 3rd respondent to disburse the contract bills due to the 5th respondent. It is submitted that the real facts being as stated above, the respondents 1 to 3 are not party to the present dispute between the petitioner and the respondents 4 & 5. Since there is no privity of any contract between the petitioner and respondents 1 to 3, the reliefs prayed for in the Writ Petition cannot be granted. The Writ Petition fails and same is liable to be dismissed.” 4. It is evident from para 3 of the counter affidavit extracted above that no amount is due from the fifth respondent to the official respondents. The pleadings disclose that the official respondents W.P.(C) No. 19773/09 3 have no objection to for payment of the amount withheld by them to the fourth respondent bank. In such circumstances, I dispose of this writ petition with a direction to respondents 1 to 3 to disburse the balance amount payable to the fifth respondent to the fourth respondent. The fourth respondent shall after appropriating the amounts towards the amount payable by the fifth respondent. The amount thus received shall be adjusted towards the amounts claimed by the fourth respondent in O.A. No. 376 of 2002. Payment as directed above shall be made on or before 31.12.2009 to the fourth respondent, on the fourth respondent bank producing a certified copy of this judgment before the third respondent. It will be open to the petitioner and the fifth respondent to move the Debts Recovery Tribunal seeking adjustment of the amounts paid under this judgment to the fourth respondent bank. P.N.RAVINDRAN, JUDGE vps