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. 24049 of 2011(E) ----------------------------------------- PETITIONER(S): ------------------------ MR.K.K.ABRAHAM, KALAYIL HOUSE, PAMPADY P.O.,KOTTAYAM, KERALA, PIN-686 502. BY ADV. SRI.ALEX GEORGE ERUTHICKAL, SRI.GEORGE ZACHARIAH ERUTHICKAL. RESPONDENT(S): ---------------------------- 1. THE SOUTHERN RAILWAY, REPRESENTED BY THE DEPUTY CHIEF ENGINEER(CONSTRUCTION), ERNAKULAM,PIN-682 016. 2. THE CHIEF ENGINEER(CONSTRUCTION) SOUTHERN RAILWAY, ERNAKULAM,PIN-682 016. R1 & R2 BY ADV. SMT.REZIYA.P.A.,SC, RAILWAYS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.24049/2011 R APPENDIX PETITIONER'S EXHIBITS: EXT.P1:- TRUE COPY OF THE AGREEMENT NO.10/DCE/ERS DATED 4.6.2008 EXT.P2:- TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE DEPUTY CHIEF ENGINEER (CONSTRUCTION)DATED 22.3.2010. EXT.P3- TRUE COPY OF THE BANK GUARANTEE BOND DATED 22.3.2011 EXT.P4:- TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER DATED 19-4-2010 TO THE DEPUTY CHIEF ENGINEER EXT.P5:- TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER DATED 28.5.2010 TO THE 2ND RESPONDENT. EXT.P6:- TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER DATED 19.2.2011 TO THE 2ND RESONDENT. EXT.P7:- TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE IST RESPONDENT DATED 27.6.2011. EXT.P8:- TRUE COPY OF THE CERTIFICATE ISSUED BY THE PETITIONER TO TO THE IST RESPONDENT DATED 27.6.2010 EXT.P9:- TRUE COPY OF THE COMPLETION REPORT NO.W.148/CN/ERS/597 DATED 23.2.2010 EXT.P10:- TRUE COPY OF THE LETTER SENT TO THE BRANCH MANAGER, FEDERAL BANK DATED 30.6.2011. EXT.P11:- TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER DATED 17.8.2011 TO THE IST RESONDENT. RESPONDENT'S EXHIBITS: R1(A): COPY OF THE LETTER DTD. 11/12/09. R1 (B): COPY OF THE LETTER DTD. 27/01/2010. Kss ..2/- ..2.... WPC.NO.24049/2011 E R1(C): COPY OF THE INTIMATION DTD. 21/2/2011. R1(D): COPY OF THE COMMUNICATION DTD. 18/08/2011. R1(E): COPY OF THE LETTER DTD. 05/09/2011. R1(F): COPY OF THE LETTER DTD. 12/09/2011. R1(G): COPY OF THE LETTER DTD. 17/03/2011. /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J ....................................................... W.P.(C).24049/2011 .............................................. Dated this the 24th day of October, 2011 JUDGMENT According to the petitioner, some substantial amounts are due to him from the respondents for the execution of the works in pursuance to Ext.P1 agreement between the parties. It is complaining of non payment and seeking a direction for payment of the amounts due, the writ petition has been filed. 2. A counter affidavit has been filed by the respondents 1 and 2, wherein it is stated thus:- “It is submitted that subsequently the petitioner vide letter dated 27.1.2010 requested the respondent to release of Performance Guarantee Bond No.1BG 6075 dt.14.5.2008 for Rs.14,72,110/- (which was valid till 13.5.2010). The true copy of the letter dated 27.1.2010 requesting release of performance guarantee is produced herewith and marked as Ext.R1(b). However certain clarification were required by finance section in this regard as agreement value was revised to Rs.4,07,72,083/- from original value of Rs.2,94,42,195/- through negotiation. The executed value was coming less than this revised value. After clarifying these aspects the Performance Guarantee Bond was discharged, released and handed over to petitioner on 22.2.2011. The true copy of the intimation dated W.P.(C).24049/11 2 21.2.11 informing returning of Bank guarantee is produced herewith and marked as Ext.R1(c). As the works were completed, the official in charge recorded the final measurements in the Measurement Books and the following M Books were submitted in the office of the Deputy Chief Engineer for processing the final bill. S.No. Measurement Book No. 1 XEN/CN/ERS/606 2 XEN/CN/ERS/613 3 XEN/CN/ERS/ However, the part bills from CCI to CCV and part of CCVI for this work was recorded in the Measurement Book XEN/CN/ERS/600 and this M.Book was received only on 22.6.11 for processing the final bill. It is required all connected M.Book to do post audit technically and arithmetically of all payment done (GCC Clause 51(2)). After these checks the M.Books were returned to recording officials for carrying out correction required and after carrying out the corrections, the M.Books were again received only on 13.7.11. Based on corrected measurements the Final variation Statement (FVS) was prepared. Thereafter on 18.8.2011 the petitioner was advised to contact the office and sign the Final Variation Statement to effect the payment. The true copy of the communication dated 18.8.11 requesting the petitioner to sign the Final Variation Statement is produced herewith and marked as Ext.R1(d). However the petitioner did not turn up. Subsequently on 5.9.11 the respondent again requested the petitioner to attend office and sign the Final Variation Statement. True copy of the letter dated 5.9.11 is produced herewith and marked as Ext.R1(e). In respect to this letter, petitioner vide letter dated 12.9.11 informed that he is not W.P.(C).24049/11 3 willing to sign the Final Variation Statement and also requested that agreement does not contain any such clause to sign the Final Variation Statement. The true copy of the letter dated 12.9.11 is produced herewith and marked as Ext.R1(f). 3. Thus, according to the respondents refusal of the petitioner to sign the Final Variation Statement was the main reason for non payment of the amount due to him. 4. When the matter was taken up today, the learned counsel for the petitioner submits that the petitioner is willing to sign the said Statement and that the respondents may be directed to effect payment on that basis. 5. Having regard to the objections raised by the respondents in the counter affidavit and in view of the willingness expressed by the learned counsel for the petitioner, I dispose of this writ petition with the following directions :- It will be open to the petitioner to approach the first respondent any time within ten days from today, along with a copy of this judgment, and W.P.(C).24049/11 4 there upon, the first respondent shall permit the petitioner to sign the Final Variation Statement. Once the petitioner signs the Statement as above, the amount due to the petitioner will be paid as expeditiously as possible at any rate, within two months thereafter. Until the payment is made as above, further proceedings pursuant to Ext.P10 for invocation of bank guarantee, will be kept in abeyance. ANTONY DOMINIC, Judge mrcs