IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 10TH FEBRUARY 2010 / 21ST MAGHA 1931 WP(C).No. 15243 of 2007(M) -------------------------- PETITIONER(S): --------------- ANWAR HUSSAIN RAWTHUR, THAIVILAYIL HOUSE, KOLLAKADAVU P.O., CHENGANOOR. BY ADV. SRI.JOMY GEORGE RESPONDENT(S): --------------- 1. EXECUTRIVE ENGINEER, P.I.P. DIVISION, CHENGANOOR. 2. SUPERINTENDING ENGINEER, PROJECT CIRCLE, PIRAVOM. 3. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARAIT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.V.MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 15243 of 2007 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF THE ORDER DATED 26.9.06 ISSUED BY THE 1ST RESPONDENT EXT.P2- TRUE COPY OF THE LETTER DATED 3.10.06 SENT BY THE PETITIONER EXT.P3- TRUE COPY OF THE ORDER DATED 27.4.07 BY THE 1ST RESPONDENT EXT.R1(a)- TRUE COPY OF SPECIFIC CONDITIONS DATED 19.8.97 EXT.R1(b)- TRUE COPY OF NOTICE DATED 2.2.06 EXT.R1(c)- TRUE COPY OF NOTICE DATED 26.9.06 (TRUE COPY) P.A TO JUDGE ANTONY DOMINIC, J ------------------- W.P.(C).15243/2007 -------------------- Dated this the 10th day of February, 2010 JUDGMENT 1. Challenge in the writ petition is against Exts.P1 and P3. According to the petitioner, on 10.7.2000, he executed an agreement with the 1st respondent for the work of urgent rectification work to the trestles of the 1st aqua duct near RBC of Vallamkulam branch Kanal. Petitioner submits that the site was handed over only on 28.5.2002 and that he completed the work on 30.8.2002. It is stated that payments were made and the final bill was paid in the year 2003 and security deposit was also released. Petitioner also says that at the time when the final bill was paid, respondents certified that the petitioner has no further liability to the respondents. 2. However, in 2006, he received Ext.P1 dated 26.9.2006 stating that in the audit conducted by the Accountant General, it has been found that for delayed completion of work, an amount of Rs.1,21,670/- ought to have been recovered from the petitioner. It is stated that only Rs.5,448/- was recovered and W.P.(C).15243/07 2 therefore, the petitioner should remit the balance amount of Rs.1,16,222/- within ten days. On its receipt, petitioner filed Ext.P2 reply disputing his liability to pay any amount. According to the petitioner, the delay in completion of the work occurred due to the delay on the part of the respondents in handing over the site to him. He also raised other contentions disputing his liability. However, without adverting to any of those contentions, 1st respondent issued Ext.P3 order dated 27.4.2007, directing recovery of an amount of Rs.1,16,222/- from the final bill that is due to the petitioner towards some other work. It was thereupon that this writ petition was filed. 3. In the counter affidavit filed, respondents are mainly relying on Ext.R1(a), additional condition of the agreement. It is stated that for the extension of time granted, fine is liable to be imposed at the rates as indicated therein and that therefore, they are entitled to recover the amount demanded 4. As already seen, petitioner disputes his liability to pay the amount demanded from him mainly on the ground that the delay occurred was not for reasons attributable to him, but are W.P.(C).15243/07 3 attributable entirely to the respondents. Therefore, this is a case where liability is disputed. As the agreement between the parties does not authorize one of the parties therein to unilaterally quantify the damages, there cannot be a unilateral quantification and fixation of liability. In such a case, the remedy is to get the liability quantified in an appropriate proceedings either before a Civil Court or before an arbitrator or such other agreed forum for dispute resolution. Counter affidavit does not disclose that any such agreement condition is available in this case. If that be the situation, fixation of liability and quantification thereby cannot be done by one of the parties to the agreement. Therefore, Ext.P3 cannot be sustained and is accordingly quashed. 5. It is made clear that this judgment will not prevent the respondents from initiating appropriate legal proceedings for fixation of liability and quantification thereby. ANTONY DOMINIC, Judge mrcs