IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4570 of 2007 SHIV KRISHNA BUILDERS (PVT) LTD. Versus THE STATE OF BIHAR & ORS ----------- For the petitioner :- Chandra Shekhar, Sr. Adv. Anil Kumar Upadhya, Adv. Rana Randhir Singh, Adv. Mr. Bishwa Bibhuti Kumar Singh, Adv. For the State :- Bibhakar Tiwary, Asst. Counsel to G.P. XIX 4 18.04.2009 Petitioner states that due to typographical error petitioner has been referred to as Sri Krishna Builders Pvt. Ltd., which should be Shiv Krishna Builders Pvt. Ltd. Let it be so read. The subsisting grievance of the petitioner is with regard to non payment of his dues on account of work done and non refund of security. Further relief sought for is that there should not be any deduction on account of granting extension of time. Earlier the writ petition was filed challenging the cancellation of tender during pendency of the writ petition the remaining part of the work has been re-tendered and re-settled, therefore, the cancellation cannot be now interfered with. However, petitioner’s remaining grievances can still be considered. Petitioner having executed the work in part, he is entitled to payment in respect thereof. Payment on this account and refund of security deposit is being denied on the ground that the subsequent tender is at the risk and cost of the petitioner and is at the higher rate, therefore, there would be additional liability to be recovered from the petitioner, as such, the payments are being withheld. In my view that cannot be done. The future liability is yet to - 2 - be determined. It is an uncertain sum. For uncertain sum which may or may not become due, present payments cannot be withheld. The petitioner is thus liable to be paid for work already done as per proper measurement already done and would be entitled to refund of security deposit as well. However, this would be subject to petitioner filing an undertaking on affidavit before the authority concerned clearly undertaking to honour the demand in respect of the re-tender, which was made at the risk and cost of the petitioner which is, of course, subject to objections which the petitioner may be entitled to raise. Needless to state that petitioner with reference to various correspondences, right up to the Superintending Engineer, has brought on record materials to show that petitioner was entitled to get an extension of time in stead of that the agreement has been cancelled. Petitioner submits that if he is granted extension, the work would now be finished with no extra cost or no complications in any manner. Be that as it may, that is for the authorities to consider at the appropriate time as and when demand is raised. The next grievance of the petitioner is that there should be no deduction of 10% on the ground of extension of time. Petitioner submits and rightly so that this imposition of sur-charge of 10% is a discretionary imposition. It is not mechanical and automatic. Before such an imposition be realized the authorities have to apply their mind to the facts independently. Here, with the reference to various communications as noted above, petitioner has shown that authorities at the ground level were fully cognizant of the fact that it was beyond - 3 - petitioner’s control to complete the contract, yet authorities far removed from ground thought it otherwise without any basis and imposed a penalty. As has been said many times penalty is not to be imposed merely because there is authority to impose it. It can only be imposed when there are grounds justifying imposition thereof. In that view of the matter the decision to impose 10% penalty cannot be sustained. The department would have to reconsider the matter. With the aforesaid observation and direction the writ petition stands disposed of. Kundan (Navaniti Prasad Singh, J.)