IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.16807 of 2011
Kems Services Private Limited, through its Managing Director Mr. Mohan
Kumar Khandelwal, son of Sri Durga Prasad Khandelwal, 76, B1/B Maurya
Lok Complex, Dak Bunglow Road, P.S. Kotwali, Patna-800001 (Bihar).
... Petitioner
Versus
1. The State Of Bihar through the Principal Secretary, Water Resources
Department, Bihar, Patna
2. The Engineer-in-Chief (North), Water Resources Department, Bihar,
Patna
3. The Chief Engineer, Water Resources Department, Bhagalpur
4. The Superintending Engineer, Water Resources Department, Sinchai
Anchal, Bhagalpur
5. The Executive Engineer, Flood Control Division, Naugachia. District
Bhagalpur.
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For the Petitioner : M/s Raghib Ahsan, Sr. Advocate and
Manish Sahay, Advocate
For the Respondents : Mrs. Binita Singh, Asstt. Counsel to
A.A.G.-I.
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02/ 26.09.2011 Heard learned counsel for the petitioner and learned
counsel for the respondents.
2. This writ petition has been filed by the petitioner for
the following reliefs :-
(i) For commanding the concerned respondents to pay
admitted bill amount i.e. Rs.1,09,44,266/- (Rupees one
crore nine lakh forty four thousand two hundred sixty
six) only to the petitioner along with interest @ 18%
per annum for belated period, because after admitting
total bill amount of 4th on account bill (i.e.
Rs.1,74,77,286/-), the respondent no.5 (i.e. the
Executive Engineer) had paid only Rs.65,33,000/- due
to lack of sufficient fund but rest amount i.e.
Rs.1,09,44,266/- is still pending for payment.
(ii) For commanding and directing the concerned
respondent to pay all admissible amount which relates
to final bill as well as entire security deposit amount to
the petitioner after closing the agreement along with
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interest @ 18% per annum for belated period, relates
to work namely ” Anti Erosion work for Restoration of
Damage Spur nos. 3, 4, 5, 6 & 7 of Ismailpur-Bind Toli
Embankment D/S Vikramshila Setu for the year 2011-
12″ belong to Agreement no. 1 SBD of 2011-12,
because balance work of the petitioner has been handed
over to another agency without closing the agreement
in question and clearing the liability of the petitioner.
(iii) For further directing the concerned respondent to
refund Rs.12,24,990/- (Rupees twelve lacs twenty four
thousand nine hundred ninety) only which were
deducted from 3rd & 4th running account bills of the
petitioner relates to time of extension, but it is admitted
fact the said work was completed within extended time
(i.e. till 10.07.2011), so deduction with regard to time
of extension is totally illegal and liable to refundable to
the petitioner immediately.
(iv) For further directing the concerned respondent to not
take any coercive steps against the petitioner till the
disposal of this instant writ application, because the
authorities are giving threatening to the petitioner for
black-listing as well as forfeiting entire security deposit
amount as well as all payable amount after rescinding
the contract in question.
(v) For passing such an order or orders for which, the
petitioner is entitled under the law in the facts and
circumstances of the case.
3. Learned counsel for the petitioner submits that the
petitioner is a registered Contractor with the Department of Water
Resources, Government of Bihar and in response to a notice inviting
tender, it participated in the tender and was selected and final
agreement dated 25.04.2011 was entered into between the parties for
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the anti erosion work for restoration of damage spur nos. 3, 4, 5, 6 & 7
of Ismailpur-Bind Toli Embankment D/S Vikramshila Setu,
Naugachia within the district of Bhagalpur. Learned counsel for the
petitioner further submits that the work order was passed on
25.04.2011 and the date for completion of work was fixed as
31.05.2011, which was subsequently extended by the authorities up to
10.07.2011 and within that time the petitioner had completed the
work, but full payment has not been made for want of fund and only
part payment was made.
4. Learned counsel for the respondents submits that it is
a contractual matter and for payment of the alleged amount, the
petitioner should have moved the authorities concerned and there is no
occasion for this Court to interfere in such matters, specially when an
F.I.R. has been lodged against the petitioner.
5. Be that as it may, if the amount claimed by the petitioner or
any part thereof is admitted by the respondents, they are duty bound to pay
the same. In the aforesaid facts and circumstances, this writ petition is
disposed of with liberty to the petitioner to file an application before the
Executive Engineer, Flood Control Division, Naugachia within the district
of Bhagalpur raising its entire claim giving details of the amount to be paid
and interest thereon. If such an application is filed by the petitioner within
fifteen days from today along with a copy of this order, the said authority
shall decide the same by a speaking order in accordance with law within
two months thereafter and if any amount or interest is found to be admitted
and payable, the same should be paid to the petitioner by the said authority
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immediately thereafter. However, if any amount or interest is not found
payable and admitted in the said order, the petitioner will be at liberty to
challenge the same before an appropriate forum.
MPS/ (S.N.Hussain, J.)