IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 19TH NOVEMBER 2010 / 28TH KARTHIKA 1932 WP(C).No. 24325 of 2009(I) -------------------------------------- PETITIONER(S): ----------------------- M/S.AFCONS INFRASTRUCTURE LIMITED, A PRIVATE LIMITED COMPANY INCORPORATED UNDER COMPANIES ACT HAVING HEAD OFFICE AT 'AFCONS HOUSE' 16-SHAH INDUSTRIAL ESTATE, VEERA DESAI ROAD, P.O.AZAD NAGAR, P.B.NO.11978, ANDHERI (W), MUMBAI-400 053, REP. BY ITS CONSTITUTED ATTORNEY SHRI JUDE ROCHA. BY SRI.K.G.RAGHAVAN, SENIOR ADVOCATE, ADV. SMT.K.A.SANJEETHA, SRI.ANEESH JOSEPH, SRI.M.RAMESH CHANDER. RESPONDENT(S): ------------------------- 1. THE CHAIRMAN, M/S.COCHIN PORT TRUST, WILLINGDON ISLAND, COCHIN - 682 009. 2. GOSHREE ISLAND DEVELOPMENT AUTHORITY, PARK AVENUE, ERNAKULAM, REPRESENTED BY ITS SECRETARY. *ADDL. R3 IMPLEADED ADDL. R3: M/S. CHERIAN VARKEY CONSTRUCTION CO.(P) LTD., ENGINEERS AND COTRACTORS, G-95, PANAMPILLY NAGAR, KOCHI-682 036, REPRESENTED BY THE MANAGING DIRECTOR CHERIAN VARKEY. * IS IMPLEADED AS ADDL. 3RD RESPONDENT AS PER ORDER DATED 16/09/2009 IN I.A.11437/2009. R1 BY SRI.B.S.KRISHNAN, SENIOR ADVOCATE, ADV. SRI.K.ANAND, SMT.LATHA KRISHNAN. R2 BY SRI.R.D. SHENOY, SENIOR ADVOCATE, ADV. SRI.VARGHESE K.PAUL. ADDL. R3 BY SRI.K.L.VARGHESE, SENIOR ADVOCATE, ADV. SMT.SANTHA VARGHESE, SRI.NIHAD MOHAMED BASHEER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/11/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 24325 of 2009(I) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPEAL BY AFCONS NO.2940/KS/11620 DATED 07/01/2005. EXT.P2: COPY OF THE CPT LETTER NO.P/S/AFCONS/05/S DATED 24/05/2005. EXT.P3: COPY OF THE LETTER DATED 14/06/2005. EXT.P4: COPY OF THE CPT PROCEEDINGS OF THE CHAIRMAN DATED 26/07/2005. EXT.P5: COPY OF THE CPT-ORDER DATED 28/07/2005. EXT.P6: COPY OF THE CPT LETTER NO.GP/CLAIMS/05-C DATED 22/12/2005. EXT.P7: COPY OF THE CPT LETTER NO.GP/CLAIMS/05-C DATED 19/01/2006. EXT.P8: COPY OF THE LETTER NO.2940/JR/9255 DATED 29/10/2006. EXT.P9: COPY OF THE LETTER NO.2940/JR/9302 DATED 07/12/2006. EXT.P10: COPY OF THE LETTER NO.2940/JR/9341 DATED 29/01/2007. EXT.P11: COPY OF THE LETTER DATED 05/07/2007. EXT.P12: COPY OF THE LETTER DATED 17/03/2009. EXT.P13: COPY OF THE LETTER DATED 21/05/2009. EXT.P14: COPY OF THE JUDGMENT OF THE HONOURABLE SUPREME COURT OF INDIA IN CIVIL APPEAL NO.6000 OF 2010 DATED 26/07/2010. RESPONDENT'S EXHIBITS: EXT.R3: COPY OF THE LETTER DATED 10/01/2008 SUBMITTED BY THE PETITIONER TO THE CHAIRMAN OF THE COCHIN PORT TRUST. EXT.R3(a): COPY OF THE ITEMIZED STATEMENT OF O.S.424/2004. EXT.R3(b): COPY OF THE ITEMIZED STATEMENT OF O.S.441/2006. EXT.R3(c): COPY OF THE AFCON'S CLAIM AGAINST COCHIN PORT TRUST. EXT.R3(d): COPY OF THE CLAIMS RAISED BY ADDL. 3RD RESPONDENT AGAINST THE PETITIONER. EXT.R3(e): COPY OF THE LETTER DATED 17/08/2005 ISSUED BY UNION BANK OF INDIA. //TRUE COPY// P.A. TO JUDGE rs T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.24325/2009-I ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 19th day of November, 2010 J U D G M E N T The petitioner who is a Civil Construction Company is seeking for a direction to the first respondent-Chairman, Cochin Port Trust to obtain a report regarding the recommendation of the Expert Committee constituted by him as per Ext.P4, as expeditiously as possible, and dispose of the appeal Ext.P1 without delay and to pass consequential orders directing payment of amounts due to the petitioner. The second prayer is to direct the first respondent to pay the amount due to the petitioner as claimed, on the plea that the petitioner has fulfilled the terms of the contract after successfully completing the whole of the works and handing over the project to the first and second respondents making it fully operational for public use on 15/03/2004. The dispute herein is in a narrow compass. The essential facts necessary for the disposal of the case are the following: 2. The petitioner company, which is engaged in the construction of bridges and roads responded to a public tender for the construction of bridges and roads known as “Vypeen bridges”. The first respondent awarded the W.P.(C). No.24325/2009 -:2:- contract to the petitioner. The second respondent is the owner and the first respondent is the consultant-cum- executing agency of the said project. Agreement is dated 20/04/2001 and the contract price was Rs.39,36,82,165/-. The time stipulated for the completion of the project was 30 months from the date of commencement of work. The project comprised of three stages known as Part-I, Part-II and Part-III. According to the learned Senior Counsel for the petitioner, the petitioner planned to take up the construction of the bridges in the following sequence, namely, (i)Ernakulam to Bolgatty, (ii) Bolgatty to Vallarpadam & (iii) Vallarpadam to Vypeen. Pile foundation of the bridge, viz. Ernakulam to Bolgatty was completed by January, 2002. It appears that the work had to be suspended at the instance of the first respondent for a period of four months from February 2002 to June 2002 for deciding further course of action to be taken-up to proceed with the construction works, on account of failure of the pile to take up the design load and deliberations took place between various parties. Some modifications had to be undertaken for proceeding with the work. The details of those are not necessary to be discussed here in the light of the fact that subsequently, the petitioner, on completion of the project by 15/03/2004 raised various W.P.(C). No.24325/2009 -:3:- claims to the tune of Rs.22,56,13,404/- before the Chief Engineer. The present dispute is the fall out of the decision taken by the Chief Engineer with regard to such claims raised by the petitioner which did not meet the entire claim of the petitioner. 3. The clause concerning the settlement of the dispute is 9.23.1 which shows that the decision of the Chief Engineer shall be final, conclusive and binding on all the parties. Clause 9.23.3 allows a further remedy to the Contractor and it is specified expressly therein that if the Contractor is not satisfied with the reply, he may appeal to the Chairman, Cochin Port Trust whose decision shall be final and binding on all parties as an award. There were repeated requests made by the petitioner in that regard and finally, the petitioner invoking clause 9.23.3 of the special conditions of the contract made an appeal to the Chairman as per Ext.P1. Correspondences and deliberations were there between parties and, by Ext.P4 a decision was rendered by the then Chairman. The operative portion of the same reads as follows:- “Most of the claims made by M/s.Afcons warrant consideration on technical grounds. An Expert Committee consisting of the Chief Engineer, Chennai Port Trust, the representative W.P.(C). No.24325/2009 -:4:- of GIDA, and an official not below the rank of Superintending Engineer representing the Roads & Bridges Development Corporation of Kerala Ltd., constituted for the purpose, may go through the claim of M/s.Afcons and make its recommendations, so that a considered decision in the matter can be taken by the Chairman. Representative of M/s.Afcons can be associated with the Expert Committee. CE and FA&CAO of the Cochin Port Trust would render necessary help to the Committee.” The said decision was taken obviously for the reason that various technical aspects are involved in the matter. 4. Thereafter, by Ext.P5, an Expert Committee was constituted consisting of (1) Chief Engineer, Chennai Port Trust, (2) a representative of GIDA and, (3) a representative of the Roads and Bridges Development Corporation of Kerala Ltd. It was also directed that a representative of the petitioner-M/s.Afcons could be associated with the Expert Committee; the FA&CAO and the Chief Engineer of Cochin Port Trust would render necessary help to the Committee and; the Chief Engineer, Cochin Port Trust would also arrange secretarial assistance to the Committee. The Expert Committee was expected to submit the W.P.(C). No.24325/2009 -:5:- recommendation within a period of one month. The Committee also took up the matter earnestly and thereafter meetings were held on different dates as evident from Exts.P6, P6(2) and P6(4) and; Ext.P7 will show that the Government of Kerala nominated Shri Gyanesh Kumar, I.A.S, Secretary to Government, Public Works Department in the place of the Town Planner of the Goshree Development Authority. 5. The petitioner in this writ petition is seeking for various reliefs as pointed out above in the light of the fact that so far the matter has not been completed by the first respondent and the appeal still remains to be disposed of. 6. The additional third respondent is the Sub Contractor appointed by the petitioner who got subsequently impleaded. It appears that there are certain disputes between the petitioner and the additional third respondent which culminated in the additional third respondent filing two civil suits as O.S.No.424/2004 and 441/2006 claiming a total amount of Rs.4.70 crores in Ernakulam Courts. Pursuant to an order passed by the Trial Court invoking Section 89 of the Code of Civil Procedure, which was confirmed by this Court, the matter reached the Apex Court and Ext.P14 is the Judgment in Civil Appeal No.6000/2010. The operative portion of the Judgment shows that the Apex W.P.(C). No.24325/2009 -:6:- Court set aside the orders and was of the view that the trial court will consider and decide upon a non- adjudicatory ADR process and, it is submitted at the Bar that the matter is being proceeded with by the Mediator appointed by the court and one meeting is already over. 7. Heard Shri K.G.Raghavan, the learned Senior Counsel appearing for the petitioner, Shri B.S.Krishnan, learned Senior Counsel appearing for the first respondent and Shri K.L.Varghese, learned Senior Counsel appearing for the additional third respondent. 8. One of the issues raised by the learned Senior Counsel for the additional third respondent is that the additional third respondent had completed the work as per the Sub Contract granted by the petitioner and if at all any directions are issued by this Court, it should be ensured that the claims of the additional third respondent is met by the first respondent. This is opposed by the learned Senior Counsel appearing for the petitioner and the first respondent. It is submitted by the learned Senior Counsel appearing for the first respondent that there is no agreement between the first and second respondents with the additional third respondent and, therefore, the scope of the appeal is limited to the claims raised by the petitioner and any direction issued by this Court with W.P.(C). No.24325/2009 -:7:- regard to pending Civil matter will go against the express directions issued by the Apex Court also. The said contention was also supported by the learned Senior Counsel appearing for the petitioner. Even though the learned Senior Counsel appearing for the additional third respondent vehemently contended that this Court should ensure payment of money as per the final decision to be taken in Ext.P1 in the light of the financial difficulties experienced by the additional third respondent, I refrain from doing so in the light of the fact that civil suits are pending between the parties and any observation made by this Court at this stage will influence the course of the pending civil suits. 9. Therefore, the only question to be considered is whether the petitioner is entitled for a direction as sought for in the writ petition. 10. The learned Senior Counsel for the first respondent submitted that the Committee had actually prepared a report but the same could not be made final in the light of the fact that one member of the Committee, Shri Gyanesh Kumar, I.A.S, Secretary to Government, Public Works Department representing the GIDA was subsequently transferred as he is no longer in the Kerala Cadre now. He fairly submitted that a new Committee can be constituted W.P.(C). No.24325/2009 -:8:- for proceeding with the matter. In the light of the said suggestion made which was incorporated in the interim order dated 18/11/2010, the petitioner and the first and second respondents have filed memos showing the names of persons to be appointed in the Expert Committee. Therefore, it is only proper that for a speedy disposal of the matter, a new Committee is constituted as suggested by these parties which can go into all the technical aspects for enabling the first respondent to take a decision on the appeal Ext.P1. The following are the names suggested by the parties. i. by petitioner: Shri P.Sridharan, Chief Engineer (Retd.), National Highways, Plot No.50, U.R.Nagar Extension, Anna Nagar Western Extension, Chennai-600 101. ii. by first respondent: Shri M.M.Kamath, Shree Matha, Mizar Ramakrishna Pai Compound, Mangalore-575 003 Mannagudda. iii. by second respondent: 1.Shri Shaji Joseph, Senior Town Planner (Ex.Engineer), Goshree Islands Development Authority, Park Avenue, Kochi, Ernakulam. W.P.(C). No.24325/2009 -:9:- 2.Smt.S.Meenakumari, Dy.Town Planner, (Asst.Ex.Engineer), Goshree Islands Development Authority, Park Avenue, Kochi, Ernakulam. Even though two names are suggested by the second respondent, the learned counsel submitted that Serial No.1 can be appointed, who is now working as Senior Town Planner. 11. Though an alternate suggestion was made earlier by the learned Senior Counsel for the petitioner during arguments which was supported by the learned Senior Counsel for the additional third respondent that the matter can be referred to an Arbitrator appointed by this Court if all parties agree, as rightly pointed out by the learned Senior Counsel for the first respondent, there is no clause for adjudication of any disputes by way of arbitration in the agreement executed by the petitioner. Therefore, I refrain from appointing an Arbitrator. Further between the petitioner and the additional third respondent, the direction issued by the Apex Court will be in force. 12. Therefore, the writ petition is disposed of in the following terms:- An Expert Committee by including the names suggested by the petitioner, the first respondent and Sl.No.1 in the memo of the second respondent is hereby W.P.(C). No.24325/2009 -:10:- appointed. They will go into various aspects as per the requirements, namely, technical aspects and after due deliberation and notice to the petitioner and second respondent herein, a report will be furnished to the first respondent expeditiously. After considering various aspects the first respondent will take a decision thereafter on Ext.P1 without delay and expeditiously. No costs. (T.R. Ramachandran Nair, Judge.) ms