IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 OP.No. 34194 of 2001(U) ---------------------------------- PETITIONER: ------------------- SREE NARAYANA CONSTRUCTIONS PRIVATE LIMITED, NEAR K.S.R.T.C. BUS STATION, JETTY ROAD, KOLLAM. BY ADV. MR.P.K.BALAKRISHNAN NAIR. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, IRRIGATION DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM. 2. THE SUPERINTENDING ENGINEER, FIELD STUDIES CIRCLE, IRRIGATION COMPLEX, CHEMBUKKAVU, THRISSUR. R1 & R2 BY GOVT. PLEADER SMT. SMITHA SUKUMAR. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 34194/2001-U: APPENDIX PETITIONERS' EXHIBITS: P1: COPY OF THE LETTER FROM R.2. TO THE EXECUTIVE ENGINEER, HYDROLOGY DIVISION, ADOOR DTD. 14/09/2001. P2: COPY OF THE LETTER FROM PETITIONER TO THE EXECUTIVE ENGINEER, HYDROLOGY DIVISION, NELLIMOOTTILPADY DTD. 22/09/2001. P3: COPY OF THE LETTER FROM R.2. TO THE PETITIONER DTD. 29/09/2001. P4: COPY OF THE LETTER FROM PETITIONER TO THE R.2. DTD. 03/10/2001. P5: COPY OF THE LETTER FROM PETITIONER TO THE ASST. ENGINEER, HYDROLOGY SECTION, KIP COMPOUND, KOLLAM DTD. 04/09/2001. P6: COPY OF THE ORDER NO. D4/97/2001 DTD. 11/10/2001. P7: COPY OF THE REPLY LETTER FROM PETITIONER TO THE R.2. DTD. 17/10/2001. P8: COPY OF THE RELEVANT PORTION OF THE AGREEMENT CONDITIONS. P9: COPY OF THE SUPPLEMENTAL AGREEMENT DTD. 14/12/2001. P10: COPY OF THE GOVERNMENT ORDER DTD. 18/12/2000. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.SIRI JAGAN, J. ================== O.P.No. 34194 of 2001 ================== Dated this the 25th day of March, 2009 J U D G M E N T The petitioner is a contractor who has undertaken certain works on behalf of the respondents. According to the petitioner, on account of change of design made by the respondents for the work, additional work had to be undertaken, for which revised rates had to be fixed. The petitioner took up that matter for revised rates and approval of the fresh design and estimate. Because of delay in doing so by the respondents, the work could not be completed. The petitioner applied for extension of the Intended Competition Date, instead of allowing which, fine was imposed on the petitioner. The petitioner, therefore, seeks the following reliefs: “i) to issue a writ of certiorari, order or direction of the like nature quashing exhibit P5 order only to the extent of imposing fine of Rs.87,500/- for extension of Intended Competition Date to enable the petitioner to complete the contract work. ii) to issue a writ of mandamus, order or direction of the like nature directing the 2nd respondent to finalise the estimate and extra rate for the extra work for the purpose of completing the work by executing supplemental agreement. iii) to issue a writ of prohibition, order or direction of the like nature restraining the respondents from imposing any fine in the nature of liquidated damages for extension of Intended Competition Date without any adjudication.” 2. A counter affidavit has been filed by the 2nd respondent disputing the contentions of the petitioner. According to the 2nd o.p.34194/01 2 respondent, the delay in competition of the work was only on account of the default of the petitioner and not on account of any laches on the part of the 2nd respondent. Therefore, as per the clauses in the agreement executed by the petitioner, imposition of penalty was perfectly in order, is the contention of the respondents. 3. I am of opinion that in order to decide the dispute involved in this original petition, it is necessary to take evidence, which cannot be done in this original petition. Therefore, the remedy of the petitioner lies in filing a suit for the reliefs claimed in this writ petition. Therefore, without prejudice to that remedy of the petitioner, this original petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 34194 of 2001-U ================== J U D G M E N T 25th March, 2009