IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 WA.No. 1534 of 2007() --------------------- AGAINST THE JUDGEMENT/ORDER IN OP.32000/2002 Dated 06/02/2007 .................... APPELLANT(S): PETITIONER: --------------------------------------------- P. DIVAKARAN, S/O. RAGHAVAN, YOGASALA ROAD, KANNUR. BY ADVS.MR.MEIJO KURIAN PUVATHINGAL, SMT.PREMY MEIJO. RESPONDENT(S): --------------------------- 1. THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF WORKS & HOUSING, NIRMAN BHAVAN, PARLIAMENT STREET, NEW DELHI-110 001. 2. THE SUPERINTENDING ENGINEER, TRIVANDRUM CENTRAL CIRCLE, C.P.W.D.,TRIVANDRUM. 3. THE EXECUTIVE ENGINEER, CALICUT CENTRAL DIVISION, CENTRAL P.W.D., CALICUT-5. 4. THE SPECIAL DEPUTY TAHSILDAR (REVENUE RECOVERY) II, KANNUR. R1 TO R3 BY ADV. MR.BOBY JOHN, CGC R4 BY GOVERNMENT PLEADER SMT.K.MEERA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B.KOSHY, Ag.C.J. & P.BHAVADASAN, J. -------------------------------------- W.A.No.1534 of 2007 ------------------------------------- Dated 10th February, 2009 JUDGMENT Koshy, Ag.C.J . Appellant/petitioner entered into a contract with the second respondent for construction of Central School etc.. Ext.P11 is clauses of contract. Petitioner has not completed the contract within the stipulated time. Time was extended for eight months. Still petitioner was not able to complete the contract and the contract was terminated and there was dispute regarding the payment due to the petitioner. Because of the abandonment of the work and delay in completion of the work, the work has to be re-tendered on a higher cost. As per the provisions of the arbitration, an amount of Rs.3,29,058/= with interest was awarded to the petitioner. A counter claim of Rs.65 lakhs including claim for the contract being terminated at the risk of the petitioner was rejected by the Arbitrator. The arbitration award was not challenged and it was implemented. Even though claim for liquidated damages was raised by the respondents before the Arbitrator, since it was not an arbitrable issue as per the contract conditions, no award was passed for the liquidated damages by the arbitrator. Thereafter, Superintending Engineer demanded W.A.1534/2007 2 liquidated damages. Since that was not paid, recovery proceedings were taken. That was challenged by the petitioner before this court contending that recovery proceedings were time barred and also submitted that Superintending Engineer himself fixed the liquidated damages and if damages are payable, respondents ought to have approached the civil court and got a decree. He also relied on Circular No.TLC-27 of Government of India. In this case, it is admitted that the contract was not completed in time or even within the extended time and contract was abandoned by the petitioner. While considering the escalation of contract, the Arbitrator found in the award as follows: “I, therefore, find delays attributable to the claimants. The respondents have extended the validity of contract under clause 5 of the contract reserving right to recover liquidated damages. Therefore, the action taken by the competent authority to recover liquidated damages for the extended period of contract is justified. Hence the claim of the claimants is rejected.” Therefore, the arbitrator held that claim for liquidated damages is fulfilled. W.A.1534/2007 3 2. Now, we will refer clause 2 of the contract which provides for demand of liquidated damages. Clause 2 reads as follows: “CLUSE 2 If the contractor fails to maintain the required progress in terms of clause 5 or to complete the work and clear the site on or before the contract or extended date of completion, he shall, without prejudice to any other right or remedy available under the law to the Government on account of such breach, pay as agreed compensation the amount calculated at the rates stipulated below or such smaller amount as the Superintending Engineer (whose decision in writing shall be final and binding) may decide on the amount of tendered value of the work for every completed day/week (as applicable) that the progress remains below that specified in Clause 5 or that the work remains incomplete. This will also apply to items or group of items for which a separate period of completion has been specified. i) Completion period (as originally stipulated) not exceeding 3 months @ 1% per day. ii) Completion period (as originally stipulated) exceeding 3 months @1% per week. Provided always that the total amount of compensation for delay to be paid under this Condition shall not exceed 10% of the Tendered Value of work or of the Tendered Value of the item or group of items of work for which a separate period of completion is originally given. W.A.1534/2007 4 The amount of compensation may be adjusted or set- off against any sum payable to the Contractor under this or any other contract with the Government.” Here, liquidated damages payable is specifically mentioned in the contract and there is no necessity for any adjudication for assessing the quantum of damages and the parties agreed that Superintending Engineer is competent to demand liquidated damages. Even though arbitration award was satisfied by the respondents, petitioner challenged the claim for liquidated damages. Since the work was not completed, the Superintending Engineer demanded maximum amount of damages that is payable, i.e. 10% of the tendered value of work. Considering the facts and circumstances of the case, learned Judge reduced the same to 5% . Respondents did not file any appeal and it has become final. In view of the provision for liquidated damages and fixation of damages in Clause 2 and in view of the finding that delay was caused due to the petitioner's fault etc. we are of the view that the demand cannot be questioned by the petitioner in a writ petition. It cannot also be stated that the demand is time barred. The amount is due to the Government and the demand was made within time. If at all petitioner has got a case that termination W.A.1534/2007 5 of work was not on his fault, it is for the petitioner to approach the civil court instead of approaching this court. On the facts of this case, we are of the view that no interference is required in the impugned judgment. The appeal is dismissed. J.B.KOSHY ACTING CHIEF JUSTICE P.BHAVADASAN JUDGE tks