IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 WP(C).No. 21420 of 2008(Y) -------------------------- PETITIONER(S): --------------- KOLLAM LABOUR CONTRACT CO-OPERATIVE SOCIETY LTD., NO. Q 1004, STADIUM COMPLEX, KOLLAM, REP. BY ITS SECRETARY. BY ADV. SRI.S.MUHAMMED HANEEFF RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY ITS ADDITIONAL CHIEF SECRETARY & PRINCIPAL SECRETARY TO GOVERNMENT, WATER RESOURCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. SUPERINTENDING ENGINEER, PROJECT CIRCLE, MOOVATTUPUZHA. 3. EXECUTIVE ENGINEER, NVIP DIVISON NO. 3, MOOVATTUPUZHA. 4. ASSISTANT EXECUTIVE ENGINEER, NVIP, SUB DIVISION NO.9, RAMAMANGALAM, MOOVATTUPUZHA. 5. ACCOUNTANT GENERALA, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.BOJOY CHANDRAN, THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). No. 21420/08. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE COMMUNICATION BY THE EXECUTIVE ENGINEER, MVIP DIVISION, NO.III, MUVATTPUZHA, DTD.26.5.08. P2. COPY OF THE LETTER DTD.18.10.2006 BY ASST. EXE. ENGINEER TO EXE. ENGINEER. P3. COPY OF THE REPRESENTATION DTD.10.6.08 BEFORE ADDL.CHIEF SECRETARY & PRINCIPAL SECRETARY TO GOVT. WATER RESOURCE DEPARTMENT. P4. COPY OF THE COMMUNICATION DTD.23.12.02 OF INDIAN AUDIT AND ACCOUNTS DEPT. TO THE GOVT. P5. COPY OF THE AGREEMENT DTD.14.5.02. P6. COPY OF THE SUPPLEMENTARY AGREEMENT DTD.12.12.03. P7. COPY OF THE AGREEMENT DTD.28.2.04. RESPONDENT(S)'EXHIBITS ANNEXURE R1. COPY OF THE AUDIT ENQUIRY NO.II OF 8/06. sdk+ ///True Copy/// P.A. To Judge S.SIRI JAGAN, J. ================== W.P(C).No.21420 of 2008 ================== Dated this the 15th day of July, 2009 J U D G M E N T The petitioner is a Labour Contract Co-operative Society. Respondents 2 to 4 floated a tender for execution of certain works in respect of Muvattupuzha Valley Irrigation Project, in 2002. The petitioner was the lowest tenderer. His tender was accepted. He executed Ext.P5 agreement for execution of the work. He completed the work as per the work schedule and submitted the final bill in 2004. Respondents 2 to 4 themselves floated another tender for some other work in respect of the same project. The petitioner submitted their tender along with several other tenderers. Being the lowest, the petitioner's tender was accepted. Ext.P6 agreement was executed. The petitioner completed the work as per the work schedule. Bills were raised and fully paid to the petitioner. Subsequently, when the question of payment of balance payment for the first work was taken up, the Accountant General raised an objection that although both works were identical, the rate quoted was very high for the second work compared to the rate for the first work and, therefore, the excess amount paid to the petitioner for the second work should be recovered from the bill amount for the first work. Accordingly, out of the amounts payable, an amount of Rs.10,68,619/- has been withheld. It is under w.p.c.21420/08 2 the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “1. Issue a writ of mandamus or other appropriate writ, order or direction directing the 1st respondent to release an amount of Rs.10,68,619/- withheld as per Ext.P1 with 18% interest and disburse the same to the petitioner forthwith. 2. Issue such other writs or pass such other orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.” 2. A statement has been filed on behalf of respondents 2 and 3. In the same, the contention raised is that part of the area covered by the first agreement was included in the second agreement also and since both works being identical, the Accountant General found that the petitioner could have done the second work also for the same rate as for the first work and, therefore, the difference was sought to be recovered from the petitioner. According to respondents 2 and 3, the withholding of the amount from the petitioner from the first bill is perfectly justifiable. 3. I have considered the rival contentions in detail. 4. Although the learned Government Pleader would try to contend that disputed questions fact are involved in this writ petition and, therefore, the matter being for enforcement of a contractual obligation, the petitioner should be relegated to the remedy by way of a suit. Certainly, if there are disputed questions of fact, which require adducing of evidence for resolution, this court would be slow in w.p.c.21420/08 3 entertaining the writ petition for enforcement of a contract. But from the facts revealed, I do not find any dispute regarding any aspect of the contract. It is not disputed before me that there were two separate works. It is not disputed before me that for the two works separate tenders were invited. It is not disputed before me that separate tenders of the petitioner for the two separate works were accepted separately. It is not disputed before me that two separate agreements were executed. It is not disputed before me that for the two agreements separate work schedules were there. It is not disputed before me that the petitioner has completed the two works satisfactorily. It is also not disputed before me that the bills were raised and the bills for the second work, which is the disputed work, were completely paid to the petitioner. As such, the only question that arises is as to whether on the basis of the audit objection, amounts can be deducted from the amounts due to the petitioner for the first work, on the ground that although both works were similar, the petitioner quoted for the second work at a much higher rate. As such, there is absolutely no dispute regarding any of the facts involved for deciding this writ petition. Therefore, I am of opinion that although the writ petition is for enforcement of a contractual obligation, the petitioner need not be relegated to a civil suit and the issue can be decided in this writ petition. w.p.c.21420/08 4 5. Then the question is as to whether, on the grounds that the same contractor quoted different rates for different works of the same project at the same site, and that for the second tender, the contractor quoted higher price, the alleged excess amounts paid could have been recovered from the amounts due for the first contract. It requires no racking of brains to say no. The Indian Contract Act is applicable to the respondents equally like the petitioner. With open eyes, respondents 2 and 3 floated two separate tenders, competitive tenders of the petitioner were accepted, separate agreements were executed and the works as per the two separate agreements were also executed separately. If the rate quoted for the second contract was higher for identical work, it was perfectly open to respondents 2 and 3 to refuse to accept the tender submitted by the petitioner. They willingly accepted the tender and awarded the contract to the petitioner. That being so, the respondents cannot now turn around and say that they will not pay the difference in the rate in so far as they are bound by the two separate agreements executed with the petitioner. In fact it is exactly what is stated in Ext.P4 letter from the office of the Accountant General to the Secretary of the Government. In that, the Audit Officer ultimately concludes that once an agreement incorporating an agreed rate is entered into, the department is bound to make payment on that basis. It is further stated that the audit w.p.c.21420/08 5 observation based on the rate analysis does not bar making payment to contractors. Therefore, the very same office, which raised audit objection, is of the definite opinion that the respondents cannot escape from the liability to pay the withheld amount also to the petitioner. 6. In view of the above findings, the petitioner is entitled to succeed in this writ petition. Accordingly, this writ petition is allowed and respondents 1 to 4 are directed to see that the balance amount of Rs.10,68,619/- withheld as per Ext.P1, is paid to the petitioner within two months from the date of receipt of a certified copy of this judgment. 7. The petitioner presses for interest. I am not inclined to consider the question of interest in these proceedings. If the petitioner so wishes, the petitioner may agitate their claim for interest in other appropriate proceedings. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge