IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 WP(C).No. 24664 of 2011(G) -------------------------- PETITIONER(S): --------------- V.M.JOSE, P.W.D. CONTRACTOR, VEMBANATT HOUSE, PUTHIYAKAVU, TRIPUNITHURA. BY ADV. SRI.P.JACOB VARGHESE, SENIOR ADVOCATE SRI.VIVEK VARGHESE P.J. SRI.VARUGHESE M EASO RESPONDENT(S): --------------- 1. THE SUPERINTENDING ENGINEER PUBLIC WORKS DEPARTMENT, P.W.D ROADS & BRIDGES 'NORTH CIRCLE, CALICUT. 2. THE SECRETARY PUBLIC WORKS & TRANSPORT (M) SECRETARIAT THIRUVANANTHAPURAM 695 011. SR GP M.J.RAJASHREE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).24664/11 APPENDIX PETITIONER(S) EXHIBITS EXT.P1 TRUE COPY OF THE LICENCE OF THE PETITIONER VALID UPTO 31.3.2012. EXT.P2 TRUE COPY OF THE ACCEPTANCE LETTER DT.27.8.11. EXT.P3 TRUE COPY OF OTHE ORDER DT.17.11.09 AND THE COPY OF THE ACCEPTED SCHEDULE. EXT.P4 TRUE COPY OF THE ACCEPTANCE LETTER AND PAC AND ESTIMATE OF THE WORK FOR RS.82,39,360/DT.5.3.2010. EXT.P5 TRUE COPY OF THE TENDER AND THE ESTIMATE DT.7.12.2009. EXT.P6 TRUE COPY OF THE CERTIFICATE OF REGISTRATION IN RESPECT OF VEHICLE NO.KL-7/2-9059. EXT.P6(A) TRUE COPY OF THE CRTIFICATE OF REGISTRATION IN RESPECT OF OF VEHICLE NO.KL 7/04/D-6623. EXT.P6(B) TRUE COPY OF THE CRTIFICATE OF REGISTRATION IN RESPECT OF OF VEHICLE NO.KL 7/05/4316. EXT.P6(C) TRUE COPY OF THE CRTIFICATE OF REGISTRATION IN RESPECT OF OF VEHICLE NO.KL 7/05/G/784. EXT.P6(D) TRUE COPY OF THE CRTIFICATE OF REGISTRATION IN RESPECT OF OF VEHICLE NO.KL -39-3006. EXT.P6(E) TRUE COPY OF THE CRTIFICATE OF REGISTRATION IN RESPECT OF OF VEHICLE NO.KL 7.39-B-5489. EXT.P6(F) TRUE COPY OF THE CRTIFICATE OF REGISTRATION IN RESPECT OF OF VEHICLE NO.KL 7-39-A-8199. EXT.P6(G) TRUE COPY OF THE CRTIFICATE OF REGISTRATION IN RESPECT OF OF VEHICLE NO.KL 07-Q-7659. (True copy) P.A. To Judge ANTONY DOMINIC, J ....................................................... W.P.(C).24664/2011 .............................................. Dated this the 24th day of October, 2011 JUDGMENT Petitioner is an A class PWD contractor. The second respondent invited tenders for the work of conveyance of bitumen (bulk) in tanker lorries from Cochin Oil Refinery at Ambalamughal in various work sites under the Roads Division. Petitioner submitted his tender which was finally accepted. According to him, he was issued Ext.P2 conveying acceptance of his tender. Among other conditions, one of the conditions in the tender was that the petitioner should produce performance guarantee for an amount of Rs.14,98,100/-. 2. According to the petitioner, for the various works executed by him for the respondents, substantial amounts are due and that the said pending bills should be accepted in lieu of performance guarantee. In the alternative, petitioner also submitted that immovable property should be accepted. It is in these circumstances, the writ petition has been filed with the following prayer. W.P.(C).24664/11 2 Issue a writ of mandamus or any other appropriate writ, direction or order directing to the respondents to allow the petitioner to execute the agreements by accepting the amounts due to the petitioner from the Government in various bills or to allow the petitioner to produce solvency certificate from the Revenue authorities in lieu of the Performance Guarantee. 3. A statement has been filed on behalf of the first respondent. In paragraph 3 and 4 of which, it is stated thus:- “It is humbly submitted that, performance guarantee is to be produced in the Form of NSC, Treasury Savings Certificate. This is permitted in the form of pending bill also. If the petitioner contractor had such pending bills, net amount of which is not less than the amount of performance guarantee to be produced and if he wishes to produce the same as performance guarantee, he has to submit the details of pending bills before the agreement authority and also an undertaking from the paying authority of those bills pledging them as surety so as to enable to take appropriate action to consider the amount as performance guarantee in favour of the agreement authority. He has not requested or submitted the details to the office. Performance guarantee is not accepted in the form of Solvency Certificate. The work was entrusted to him on the basis of quoted rate and also based on the facilities available with him including the tanker and trucks. This movable assets cannot be treated as performance guarantee. Only deposit of title deeds of W.P.(C).24664/11 3 immovable property for the like amount registered in favour of the Government will be accepted as security.” 4. Therefore, it appears that the respondents have offered the petitioner two options ie, he can offer the pending bills as security or he can deposit the title deeds of immovable properties subject to other conditions that are mentioned in paragraph 3 and 4 of the statement. 5. Therefore, I dispose of this writ petition directing that it will be open to the petitioner to accept either of the two options suggested by the first respondent in the statement filed and furnish security in lieu of performance guarantee that he is called upon to furnish. ANTONY DOMINIC, Judge mrcs