IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 22606 of 2009(U)
1. K.A.JELTON, GOVT.CONTRACTOR,
... Petitioner
Vs
1. THE SUPERINTENDING ENGINEER,
... Respondent
2. THE EXECUTIVE ENGINEER,
For Petitioner :SRI.BABU JOSEPH KURUVATHAZHA
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :18/05/2010
O R D E R
Thottathil B.Radhakrishnan
&
S.S.Satheesachandran, JJ.
= = = = = = = = = = = = = = = = = = = = = = = =
W.P.(C).No.22606 of 2009-U
= = = = = = = = = = = = = = = = = = = = = = = =
Dated this the 18th day of May, 2010.
Judgment
“CR”
Thottathil B.Radhakrishnan, J.
1.This matter comes to the Division Bench on a
reference by learned single Judge.
2.Petitioner is a licensed Government contractor to
whom an amount of Rs.7,50,000/- is stated to be
due from the Government for certain works done.
After responding to Exts.P1 and P3 tender
notifications inviting sealed tenders for certain
other works, the petitioner submitted a
representation, inter alia, requesting that the
WPC22606/09 -: 2 :-
actual remittance of Earned Money Deposit be
dispensed with and that the amounts due to him
under different bills pending with the second
respondent be adjusted towards such E.M.D. He,
thereafter, filed this writ petition seeking the
issuance of a direction commanding the
respondents to permit him to submit the tenders
for the works included in Exts.P1 and P3 tender
notices, without remitting EMD on condition of
adjustment as claimed by him. In support, the
petitioner projected Exts.P5 to P8 judgments of
this Court as having been rendered considering
similar issue. He also sought that the
respondents be directed to consider and dispose
of his Exts.P2 and P4 representations, in the
light of those judgments.
3.The learned single Judge, on hearing the writ
petition, found no way to concede to the
aforesaid request since there was no condition in
the tender document either to waive EMD or to
relax the provision that the EMD shall be
WPC22606/09 -: 3 :-
forfeited. It was also found that there is no
specific provision in the tender document
authorising the Superintending Engineer to make
any relaxation. Therefore, disagreeing with the
views in Exts.P5 to P8 judgments, the matter has
been referred for consideration by the Division
Bench.
4.Before us, with the passage of time, it is
pointed out on the strength of the affidavit of
the Department that the amounts due to different
contractors till 31.3.2009 have been disbursed
and obviously, there is no question of inordinate
delay in disbursing the amounts which are
admittedly due to the different contractors.
5.Exts.P5 to P8 judgments were issued directing the
respondents to permit the petitioners therein, to
effect the Earnest Money Deposit by adjusting the
same against amounts which were claimed to be due
to the respective petitioners therein. The
petitioner, according to his counsel, is
WPC22606/09 -: 4 :-
similarly situated to the beneficiaries of those
judgments.
6.Going by the submissions of the learned counsel
for the petitioner as also the learned Government
Pleader, we notice that there was an exceptional
dearth of funds for the Government to support the
different works, including in the Public Works
Department. Large amounts remained due to the
contractors. The works being done by those
contractors are essentially for governmental
purpose. Obviously, therefore, to strike a
balance between the entitlement of the Government
to be provided more time to make payment and also
to have the contractors to do the work, different
orders could have been issued by the executive
Government. This Court would have also felt, as
is evident from Exts.P5 to P8, that there can be
some adjustments of the nature as ordered in
Exts.P5 to P8. But, we are clear in our mind that
Exts.P5 to P8 do not lay down any principle of
law which could bind as a precedent. This is
WPC22606/09 -: 5 :-
particularly so because in the realm of
contracts, each individual contract is a separate
transaction even if the identity of the parties
remains the same. This is so even in relation to
Government and other public works. Otherwise, the
determination of rights and liabilities of
parties who may have different agreements between
them could be inter-twined resulting in
administrative chaos rather than a smooth
completion of works in which lot of public
interest and public funds are involved.
7.Not only that, one of the fundamental principles
of contracts, is that, as regards a contract,
there should be certainty as to; the identity of
the parties to the contract; its subject matter
and other attendant factors which would provide
the identity of each and every contract as a
separate transaction. Exts.P1 and P3
notifications, admittedly, provide for Earnest
Money Deposit. When the person or authority
notifying the invitation of tenders explicitly
WPC22606/09 -: 6 :-
says that the offeror has to provide EMD, such a
condition cannot be taken away except by the
person or authority notifying the invitation of
tenders. This means that the tender document
itself should contain the explicit provision, if
it were the intention of the Government to waive
or, in any manner, relax the term requiring that
EMD be provided. Without that, the subordinate
officers, including the Superintending Engineer
and Executive Engineer, as the case in hand,
would not be within authority to make any
relaxation whatsoever. Also, it would definitely
be out of the judicial realm for the courts to
direct adjustment of funds which may be due to a
contractor from the Government under a particular
contract, towards EMD that an intending bidder
may have to provide in support of his offer on
the basis of a subsequent invitation of tenders.
The courts would not re-write the terms of
contracts, as also of invitations of offers.
8.For the aforesaid reasons, the reference made to
WPC22606/09 -: 7 :-
the Division Bench would stand answered by
stating that there is no legal right for a
tenderer to claim relaxation of the mandatory
condition in the notification stipulating the
furnishing of an EMD, by adjustment against
amounts which are claimed to be due to the
contractor. Any such claim would be in violation
of the conditions of the tender notification and
the courts would not issue any direction to the
Government officials to grant such relaxation. As
a corollary, no writ, direction or order would
issue directing consideration of any request in
that regard, since it is not founded on any legal
right.
9.Having answered the reference as aforesaid and
having regard to an order passed in this case by
the Division Bench on 27.8.2009, we direct that
if any funds are retained by the respondents from
undisputed bill amounts due to the petitioner as
claimed by him in the writ petition, such amounts
would be released at the earliest, at any rate,
WPC22606/09 -: 8 :-
within one month from the date of receipt of a
copy of this judgment. The writ petition is
ordered accordingly.
Thottathil B.Radhakrishnan,
Judge.
S.S.Satheesachandran,
Judge.
Sha/3105