IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 18TH JANUARY 2010 / 28TH POUSHA 1931 WP(C).No. 28522 of 2009(I) -------------------------- PETITIONER: --------------- M.T.ABDUL NAZAR, S/O.MOHAMMED, P W D CONTRACTOR,BEVINJA P.O., THEKKIL FERRY,CHENGALA,KASARGOD. BY ADV. SRI.A.K.ABDUL AZEEZ SRI.C.D.ANIL RESPONDENTS: --------------- 1. THE SECRETARY, KERALA STATE ELECTRICITY BOARD, PATTOM,THIRUVANANTHAPURAM. 2. THE DEPUTY CHIEF ENGINEER, TRANSMISSION CIRCLE,K.S.E.B.,MALAPPURAM. GOVERNMENT PLEADER SRI.P.NARAYANAN ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R1 & 2 SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R.RAMACHANDRAN NAIR, J. ------------------------------------------------ W.P.(C)No.28522 of 2009 ------------------------------------------------ Dated this the 18th day of January, 2010 JUDGMENT The petitioner was awarded the contract for construction of the retaining wall and earth filling at the site of 33 K.V. Sub station, Kakkad as per agreement dated 8/1/2007 and it had to be completed on or before 7/4/2007. According to the petitioner, there was delay on the part of the respondents in taking various measures for completing the work and the petitioner had also represented the matter to the authorities concerned. Ultimately, on 12/4/08 owing to the bad weather, ie on account of heavy rain, the work was stopped. The petitioner had approached this court earlier by filing W.P.(C)No.28002 of 2008 wherein this court directed the petitioner to approach first respondent in the matter. According to the petitioner no action was taken by first respondent which necessitated him to file another writ petition, viz. W.P.(C)No.33121 of 2008. Ext.P11 order was passed thereafter wherein the claim for escalation was found against. Again as per Ext.P12 he sought for revisal of agreement rate and the petitioner filed W.P.(C)No.1365 of 2009 seeking for appropriate orders in the matter. Ext.P13 is the order passed by W.P.(C)No.28522 of 2009 2 the first respondent finally. 2. According to the petitioner he is entitled for total amount of Rs.11,10,670/-. 3. Pursuant to the directions issued by this court the first respondent has filed a detailed counter affidavit. The sum and substance of the contentions raised is that the petitioner has really failed in completing the works in time. Therefore the claim raised in Ext.P13 cannot be supported. It is also pointed out that in W.P.(C)No.28002/2008 even though there was a direction to the petitioner to approach the Board with representation within two weeks from the date of judgment ie, 22/9/2008, and no representation was received by the second respondent within the above period and also till 3/11/2008. When the balance work was retendered petitioner filed W.P.(C) No.33121 of 2008 with a false averment ie, he had already approached second respondent vide letter dated 24/10/2008. But in tune with the directions issued by this court in the said judgment a notice was issued as per Ext.R1(k) to submit a request if he was willing to complete the balance works within two months at the same rates and conditions of the terminated W.P.(C)No.28522 of 2009 3 contract agreement on or before 25/11/2008. But that was not acceded to. It is the case of the first respondent the net amount payable to the petitioner is Rs.4,29,418.48/-. Along with the security deposit to the tune of Rs.96,500/-, the total amount comes Rs.5,25,918.48/-. The respondents by relying upon the agreement are disputing the claim of the petitioner for rate escalation. 4. The matter arises only under the realm of contract. This court in this jurisdiction will not be justified in considering the plea of the petitioner as the matter depends upon evidence to be adduced by both sides. The petitioner has to file a civil suit or move for Arbitration if such a clause is available. Without prejudice to the right of the petitioner to approach the civil court, this writ petition is dismissed. In the meanwhile it will be open to the respondents to pay the admitted amount within a period of two months from today. No costs. T.R.RAMACHANDRAN NAIR, JUDGE skj