IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 WP(C).No. 23077 of 2009(D) ---------------------------------------- PETITIONER(S): ------------------------ N.ANIL KUMAR, NARAYANA VILASOM, IRUMPIL, NEYYATTINKARA P.O., TRIVANDRUM. BY ADV. MR.S.MOHAMMED AL RAFI RESPONDENT(S): ---------------------------- SUPERINTENDING ENGINEER, HARBOUR ENGINEERING SOUTH CIRCLE, KAMALESWARAM, MANAKKAD P.O., TRIVANDRUM. BY GOVERNMENT PLEADER MR. P.NARAYANAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss V.GIRI,J. ------------------------- W.P ( C) No. 23077 of 2009 -------------------------- Dated this the 13th August,2009 J U D G M E N T Petitioner responded to a notification issued by the respondent inviting tenders for the execution of the work “Construction of the type-II Quarters at Kamaleswaram” Petitioner's tender was accepted and selection notice was issued to him as per Ext.P1 requiring him to execute an agreement within ten days. According to the petitioner, he was totally disabled in that regard by medical reasons and he therefore sought for extension of time to execute the agreement. He then submitted Ext.P2 representation for extension of such time along with Ext.P3 medical certificate. Going by Ext.P4, time was granted. But nevertheless, petitioner did not turn up within the extended time. Respondent then intimated the petitioner that petitioner's selection has been terminated and the work will be re-tendered at the risk and cost of the petitioner. This was also not responded to by the petitioner. Thereafter, the work was re-tendered with W.P ( C) No. 23077 of 2009 2 much higher rate and after forfeiting the EMD, petitioner has been called upon to make up the difference in the amount between the original bid made by the petitioner and the subsequent bid accepted by the Government. This is under challenge in the writ petition. 2. Heard learned counsel for the petitioner and learned Government Pleader. 3. Learned counsel for the petitioner submits that the petitioner was not given any notice regarding the proposal to recover damages from the petitioner. Earlier show cause notice was issued requiring him to execute an agreement and thereafter by Ext.P4 there was intimation that his request for extension of time has been rejected. 4. Learned Government Pleader submits that Ext.P6 itself will show that more than one notice was sent to the petitioner requiring him to execute the agreement. One of the notices was not even accepted by the petitioner. A telegram was also sent prior to the forfeiture of the EMD. There has been undue recalcitrance on the part of the petitioner. The stand taken by the respondent that W.P ( C) No. 23077 of 2009 3 there was failure on the part of the petitioner in executing an agreement in spite of notice is only to be affirmed. Exts.P4 and P6 eloquently speaks about default on the part of the petitioner. But there is force in the submission made by the learned counsel for the petitioner that the quantification of damages has been done without notice to the petitioner. Accordingly, Ext.P6 shall be set aside to the limited extent of quantification of damages and respondent shall pass fresh orders after hearing the petitioner on the ground on which, according to the respondent, the petitioner is liable to pay damages consequent on his failure to execute an agreement in spite of selection notice and the alleged loss suffered by the Government by way of re- tender at the risk and cost of the petitioner. Writ petition is disposed of as above. (V.GIRI,JUDGE) ma W.P ( C) No. 23077 of 2009 4 W.P ( C) No. 23077 of 2009 5