IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 WP(C).No. 33149 of 2010(P) -------------------------------------- PETITIONER: ------------------- PAREED KUNJU CONTRACOTR, PALLATHUKATTIL HOUSE, H.M.T.COLONY P.O.,KALAMASSERY-VIA, ERNAKULAM DISTRICT. BY ADVS. SRI.BABU JOSEPH KURUVATHAZHA, SRI. T.K. BIJU (MANJINIKARA). RESPONDENTS: ------------------------ 1. KALAMASSERY MUNICIPALITY, REP.BY ITS SECRETARY,OFFICE OF THE KALAMASSERY MUNICIPALITY,SOUTH KALAMASSERY,ERNAKUALM KOCHI-682 033. 2. THE MUNICIPAL ENGINEER, KALAMASSERY MUNICIPALITY, SOUTH KALAMASSERY, ERNAKUALM KOCHI-682 033. 3. KALAMASSERY MUNICIPAL COUNCIL, REP.BY ITS CHAIRPERSON, OFFICE OF THE KALAMASSERY MUNICIPALITY, SOUTH KALAMASSERY, ERNAKULAM,KOCHI-682 033. R1 TO R3 BY ADV. SRI.M.K.ABOOBACKER.S.C. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.33149/2010-P: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE AGREEMENT NO.106/08-09 DTD. 18/03/2009 EXECUTED BETWEEN THE PETITIONER AND THE R.1. EXT.P.2: COPY OF THE SCHEDULE OF WORK INVOLVED IN EXT.P.1. AGREEMENT. EXT.P.3: COPY OF THE NOTICE DTD. NIL. ISSUED BY THE R.2. EXT.P.4: COPY OF THE PROCEEDING DTD. NIL. OF THE CONVENOR/PROJECT ENGINEER. EXT.P.5: COPY OF THE PROCEEDING DTD. NIL. OF THE DISTRICT PLANNING OFFICER. EXT.P.6: COPY OF THE REPRESENTATION DTD. 05/10/2009 SUBMITTED BY THE PETITIONER BEFORE THE R.2. EXT.P.7: COPY OF THE REPRESENTATION DTD. 19/10/2009 SUBMITTED BY THE PETITIONER BEFORE THE R.1. EXT.P.8: COPY OF THE REPRESENTATION DTD. 05/11/2009 SUBMITTED BY THE PETITIONER BEFORE THE 1ST AND 2ND RESPONDENTS. EXT.P.9: COPY OF THE REPRESENTATION DTD. 07/12/2009 SUBMITTED BY THE PETITIONER BEFORE THE CHAIRPERSON OF THE R.1. MUNICIPALITY. EXT.P.10: COPY OF THE JUDGMENT DTD. 19/01/2010 IN W.P.(C).NO.1672/2010 OF THIS HONOURABLE COURT. EXT.P.11: COPY OF THE JUDGMENT DTD. 16/09/2010 IN CONT. CASE (C).NO.991/2010. EXT.P.12: COPY OF THE ORDER DTD. 05/03/2010 ISSUED BY THE R.1. EXT.P.13: COPY OF THE APPEAL DTD. 20/09/2010 SUBMITTED BY THE PETITIONER BEFORE THE R.3. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 33149 OF 2010 -------------------------- Dated this the 13th day of December, 2010 J U D G M E N T The petitioner is a contractor. The respondents awarded to him the work of construction of the kitchen block for H.M.T. Educational Society School at Kalamassery. After the work was executed, the petitioner submitted his final bill as per which he claimed the sum of Rs.4,15,000/-. However, the work was not check measured and the bill amount paid. The petitioner thereupon sent Ext.P6 letter to the second respondent followed by Ext.P8 letter to the Secretary of the Kalamassery Municipality and the Municipal Engineer. He thereafter sent Ext.P9 letter to the Chairperson of the Kalamassery Municipality seeking expeditious payment. Later, he filed W.P.(C) No.1672 of 2010 in this Court seeking a direction to the respondents to consider the request made by him in Exts.P6 to P9 representations. By Ext.P10 judgment delivered on 19.1.2010, a learned single Judge of this Court directed the Secretary of Kalamassery Municipality to consider the petitioner’s request and take a decision thereon within four weeks from the date of production of a copy of the judgment. Pursuant to the said direction, Ext.P12 memo was issued by the Secretary of the Kalamassery WPC No.33149/2010 2 Municipality on 5.3.2010 informing the petitioner that though the H.M.T. Educational Society School is an aided school, the management of the school has not been handed over to the Municipality and therefore the beneficiary of the work done by the petitioner namely the H.M.T. Educational Society School should pay for the work done by the petitioner. Reliance was placed on section 70 of the Contract Act to justify the said stand. Upon receipt of Ext.P12 memo, the petitioner submitted Ext.P13 appeal before the Municipal council requesting that the payment may be effected for the work done by him. This writ petition is filed challenging Ext.P12 and seeking a direction to the respondents to check measure the work executed by the petitioner and to release payment together with interest at the treasury rate with effect from 18.9.2009 the date on which the execution of the work was completed. 2. The first respondent has filed a counter affidavit reiterating the stand taken in Ext.P12. It is contended that the H.M.T. Educational Society School is owned and manged by H.M.T. Educational Society, which is receiving aid from the Government and that the school has not so far been transferred to the Kalamassery Municipality and therefore, the Municipality is not bound to pay for WPC No.33149/2010 3 the work done by the petitioner. It is also contended that the H.M.T. School management is the beneficiary of the work and has enjoyed the benefit of the work done by the petitioner. Relying on section 70 of the Indian Contract Act, the first respondent contend that the beneficiary being the HMT School management, they are bound to make payment for the work done by the petitioner. 3. It is evident from the pleadings and the materials on record that the execution of work in question was tendered by the Kalamassery Municipality after the administrative sanction of the Government was obtained for execution of the work. If the school did not belong to the Kalamassery Municipality, it ought not have invited tenders for execution of the work. The work was awarded to the petitioner, whose tender was found to be the lowest. It was also completed within the stipulated time. Apart from the contention that the school belongs to the H.M.T. Educational Society, the respondents have not given any other reason for withholding payment. They have no case that the work was not properly executed by the petitioner or was belatedly executed. They have also no case that the workmanship is shoddy or that the work was executed without administrative sanction. In such circumstances, I WPC No.33149/2010 4 am of the opinion that the respondents are not justified in withholding payment for the work done by the petitioner. If as stated by the respondents, the school belongs to HMT Educational Society, it will be open to the Kalamassery Municipality to make good the loss if any sustained by them, after effecting payments to the petitioner, by realising the same from the H.M.T. Educational Society. The petitioner who had undertaken the work cannot in my opinion be visited with the consequences of the mistake, if any, committed by the respondents. I accordingly dispose of the writ petition with a direction to the respondents to check measure the work executed by the petitioner pursuant to the Ext.P1 agreement and release payment for the work done by him expeditiously and in any event within three months from the date on which the petitioner produces a certified copy of this judgment before the Secretary of Kalamassery Municipality, failing which the petitioner will be entitled to simple interest at the rate of 6% per annum on the bill amount from this day onwards. P.N.RAVINDRAN, (JUDGE) vps WPC No.33149/2010 5 WPC No.33149/2010 6