IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 WP(C).No. 13154 of 2007(N) -------------------------------------- PETITIONER(S): ---------------------- A.C. HARIDAS, HAPPY CONSTRUCTIONS, HAPPY VILLA, CSEZ P.O., KAKKANAD, KOCHI-682 037. BY ADV. MR.LEGY ABRAHAM MR.RAGHAVAKUMAR.V.S. RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF EDUCATION, THIRUVANANTHAPURAM. 2. THE DIRECTOR, INSTITUTE OF HUMAN RESOURCES DEVELOPMENT, PRAJOE TOWERS, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 014. 3. THE ASSISTANT EXECUTIVE ENGINEER, INSTITUTE OF HUMAN RESOURCES DEVELOPMENT, PRAJOE TOWERS, VAZHUTHACAUD, THIRUVANANTHAPURAM -695 014. 4. THE SITE ENGINEER, INSTITUTE OF HUMAN RESOURCES DEVELOPMENT, PRAJOE TOWERS, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 014. 5. THE PRINCIPAL, COLLEGE OF ENGINEERING, ADOOR, MANAKKALA P.O., ADOOR, PIN - 691 551. R1 BY GOVERNMENT PLEADER SMT.SMITHA SUKUMAR R2 TO R5 BY MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE SC, IHRDE ADV. MR.S.SUJIN, SC, IHRD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 13154/2007-N APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SUPPLEMENTARY AGREEMENT DATED 12/12/2005. EXT.P2: COPY OF THE LETTER NO.FIN B4/4917/95 DATED 21/12/2005 EXT.P3: COPY OF THE LETTER OF MODARCHS CONSULTANTS DATED 05/04/2006. EXT.P4: COPY OF THE CHIEF MINISTER OF KERALA DATED 27/02/2006. EXT.P5: COPY OF THE INVITATION LETTER OF THE 2ND RESPONDENT. EXT.P6: COPY OF THE ADVERTISEMENT PUBLISHED IN MADYAMAM DAILY DATED 02/03/2006. EXT.P7: COPY OF THE ORDER DATED 12/01/2006 OF THE 2ND RESPONDENT NO. FIN B4/4276/96/HRD. EXT.P8: COPY OF THE LETTER DATED 01/03/2006 OF THE PETITIONER TO THE 2ND RESPONDENT. EXT.P9: COPY OF THE LETTER DATED 07/02/2006 OF THE PETITIONER TO THE 2ND RESPONDENT. EXT.P10: COPY OF THE LETTER DATED 15/01/2007 OF THE PETITIONER TO THE 2ND RESPONDENT. EXT.P11: COPY OF THE LETTER DATED 28/02/2007 OF THE FEDERAL BANK LTD., PACHALAM BRANCH. EXT.P12: COPY OF THE LETTER DATED 19/03/2007 OF THE FEDERAL BANK LTD., PACHALAM BRANCH. RESPONDENT'S EXHIBITS: EXT.R2(a): COPY OF THE LETTER DATED 21/04/2006. EXT.R2(b): COPY OF THE LETTER DATED 11/12/2006. EXT.R2(c): COPY OF THE LETTER OF THE ARCHITECT DATED 29/01/2006. EXT.R2(d): COPY OF THE BILL SUBMITTED BY THE CONTRACTOR DATED 07/10/2006. EXT.R2(e): COPY OF THE LETTER FROM THE DIRECTOR TO THE CONTRACTOR DATED 14/03/2007. //TRUE COPY// P.S. TO JUDGE Rs/ S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 13154 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 22nd May, 2009. J U D G M E N T The petitioner is a contractor engaged in the business of construction of buildings on contract. He entered into an agreement with the 2nd respondent for construction of of the administrative block building of the College of Engineering, Adoor. The petitioner's grievance in this writ petition is regarding non-payment of bill amounts in respect of the execution of the work and recovery of Rs.60,750/- from the retention money alleged as liquidated damages for delayed completion of the workshop building. The petitioner seeks the following reliefs: “(a) issue a writ of certiorari to call for all records leading to Ext. P7 and to quash the same; (b) issue a writ of mandamus commanding the 2nd respondent to return the amount recovered by him as per Ext. P7; (c) issue a writ of mandamus commanding the 2nd respondent to pay all the dues including final bill amount and security retention money to the petitioner within one month.” 2. As far prayer No. (c) is concerned, I do not think that in view of the averments in the counter affidavit filed by the 2nd respondent disputing that the petitioner has satisfactorily completed the construction, such prayer cannot be entertained in this writ petition. Since disputed questions of fact, resolution of which requires evidence exists, such disputed questions cannot be gone into in a writ petition. Therefore, the petitioner's remedy in that regard lies in approaching the civil court, if, at this distance of time, he can validly do so. 3. But, the petitioner's challenge against Ext. P7 can be disposed of on the materials on record. By Ext. P7, which relates to W.P.C. No. 13154/2007 -: 2 :- construction of the workshop building alone, the petitioner is entitled to release of the retention money. It is not disputed before me by the 2nd respondent that the petitioner has satisfactorily completed the construction of the workshop building. But, in Ext.P7, from the retention money of Rs.1 lakh, liquidated damages for delayed completion amounting to Rs.60,750/- has been recovered. The petitioner has produced Ext. P2 minutes of the meeting dated 12-12-2005 between the parties in this regard. By clause 8 of the same, the 2nd respondent had agreed that the final bill of the workshop building will be paid before 24th December, 2005 and by clause 10 thereof, it has also been agreed that retention money/security deposit of the workshop building shall be released before 23rd December, 2005. Nothing is stated in Ext. P2 about the delay in completion of the construction of the workshop building nor recovery of liquidated damages. As I have already stated, the 2nd respondent has no case that the construction of the workshop building has not been completed satisfactorily. That being so, the 2nd respondent could not have arbitrarily recovered any liquidated damages from the retention money as done in Ext. P7. Therefore, recovery of that amount in Ext. P7 is clearly unsustainable. Accordingly, Ext. P7 to the extent it recovers an amount of Rs.60,750/- from the retention money payable to the petitioner is set aside. I direct the 2nd respondent to release the said amount of Rs.60,750/- also within one month from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/