IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 4TH JULY 2011 / 13TH ASHADHA 1933 WP(C).No. 11192 of 2011(Y) -------------------------- PETITIONER: --------------- M/S.T.A.XAVIER & SONS, ENGINEERS & CONTRACTORS, 18/1028, THAREPARAMBIL HOUSE, PALLURUTHY, KOCHI- 682 006, REPRESENTED BY THE MANAGING PARTNER, T.A.XAVIER. BY ADV. SRI.K.L.VARGHESE, SENIOR ADVOCATE SMT.SANTHA VARGHESE SRI.RAHUL VARGHESE SRI.RANJITH VARGHESE RESPONDENT: --------------- GURUVAYOOR MUNICIPALITY, GURUVAYOOR, REPRESENTED BY THE SECRETARY. ADV. SRI.P.A.AHAMMED SRI.M.SREEKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/06/2011, THE COURT ON 04/07/2011 DELIVERED THE FOLLOWING: WP(C).No. 11192 of 2011(Y) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF LETTER DT. 10.11.2009 ISSUED BY THE PETITIONER TO THE RESPONDENT. EXT.P2 : TRUE COPY OF THE LAWYER'S NOTICE DTD.24.11.2010 ISSUED ON BEHALF OF THE PETITIONER TO THE RESPONDENT. EXT.P2(a) ; TRUE COPY OF THE POSTAL ACKNOWLEDGEMENT RECEIPT EVIDENCING RECEIPT OF EXT.P2 NOTICE BY THE RESPONDENT. /TRUE COPY/ P.S. TO JUDGE. P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No.11192 OF 2011 ......................................................................... Dated this the 4th July , 2011 J U D G M E N T The petitioner, who is a contractor, had participated in the tender floated by the respondent for the construction of 'Bell Mouth Shopping Complex' on 13.04.2005. After scrutiny and analysing the credentials , the tender submitted by the petitioner was found to be eligible for awarding the work. But the work was not awarded allegedly for want of approval from the Government and it remained as such for more than five years. The case of the petitioner is that the petitioner had submitted EMD of Rs.50,000/- at the time of tendering, followed by remittance of a sum of Rs.50,000/- towards Security Deposit, thus effecting a total payment of Rs. One lakh. According to the petitioner, it was given to understand that the respondent had abandoned the project work for want of Government approval and in the said circumstance, the petitioner had sought for return of EMD and W.P.(C) No.11192 OF 2011 2 Security Deposit as per Ext. P1 representation dated 10.11.2009 followed by Ext. P2 lawyer's notice. Since the same did not evoke any positive response, the petitioner is stated as constrained to approach this Court, seeking for a direction to be given to the respondent to release the EMD and Security Deposit ( Rs. one lakh in total ) with interest. 2. The respondent has filed a counter affidavit rebutting the averments and allegations in the writ petition, stating that pursuant to the tender floated by the respondent, the writ petitioner and three others had submitted their tenders; the petitioner having quoted 17.33% over the estimate amount of Rs.1,10,00,000/- and was the lowest, the respondent decided to accept the same on 14.06.2005, subject to Government approval; thereafter, the Government approved the tender and selection memo was issued to the petitioner on 02.12.2005, simultaneously forwarding the agreement to be executed by the petitioner; it was at this point, the petitioner sought to take a 'U' turn, who did not sign the agreement stating that the cost for execution of work had increased much in the meantime and he W.P.(C) No.11192 OF 2011 3 was not in a position to execute the work; that the petitioner was given an opportunity of personal hearing on 07.06.2006 and the partner of the firm by name T.X. Augustine appeared for the hearing; though the respondent had conveyed the position to the Government , the request of the petitioner to have the rate increased was turned down as per letter dated 11.12.2006 which was communicated to the petitioner, despite which the petitioner did not choose to execute the work, as awarded to him, which necessitated re-tender of the work on a much higher rate causing much loss and hardship to the respondent, followed by further steps taken by the respondent to initiate action against the petitioner, in view of the lapse/failure to execute the work and delay in implementation of the project work. 3. The petitioner has filed a reply affidavit referring to the various decisions rendered by the Apex Court and by this Court, as to the scope and extent of forfeiture of the EMD/Security Deposit. 4. When the matter had come up for consideration before this Court on 12.04.2011, the learned Standing Counsel W.P.(C) No.11192 OF 2011 4 appearing for the respondent submitted that the EMD as well as the Security Deposit made by the petitioner had already been forfeited in view of the lapse on the part of the petitioner. Mr. K.L. Varghese, the learned Sr. Counsel appearing for the petitioner submits that by virtue of binding judicial precedents, as referred to in the reply affidavit, it is not open to the respondent to forfeit the entire EMD/ security deposit . It is also stated that the work was not re-arranged and as such, there was no loss caused to the respondent and hence the petitioner is entitled to have refund of the EMD/Security Deposit. 5. True, there cannot be any dispute with regard to the law laid down by the Apex Court as to the scope and extent of forfeiture of the EMD/Security Deposit and that the extent of loss has to be assessed to enable the respondent, before proceeding with the steps for realisation of alleged loss, if any. Even if the work is not re-arranged as on date, it is very much possible that the respondent might have suffered some or other loss in connection with previous tender floated in the year 2005 and the steps taken, followed by the consequences because of W.P.(C) No.11192 OF 2011 5 the refusal on the part of the petitioner to execute the agreement and to carry out the work. What is the extent of loss caused, what are the terms of the agreement and what is the extent of relief, if at all any, to be given to the petitioner; are matters which are to be considered and decided on the basis of the specific pleadings and evidence to be let in. This exercise does not come within the purview of the discretionary jurisdiction of this Court under Article 226 of the Constitution of India and the remedy of the petitioner, if any, lies elsewhere. In the said circumstance, this Court finds that the writ petition filed by the petitioner is not maintainable. Interference is declined and the writ petition is dismissed, however, without prejudice to the rights and liberties of the petitioner to pursue other appropriate remedy, if so advised. P.R. RAMACHANDRA MENON, JUDGE. lk