IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 33149 of 2010(P)
1. PAREED KUNJU
... Petitioner
Vs
1. KALAMASSERY MUNICIPALITY,
... Respondent
2. THE MUNICIPAL ENGINEER,
3. KALAMASSERY MUNICIPAL COUNCIL,
For Petitioner :SRI.BABU JOSEPH KURUVATHAZHA
For Respondent :SRI.M.K.ABOOBACKER
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :13/12/2010
O R D E R
P.N.RAVINDRAN, J.
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W.P.(C) No. 33149 OF 2010
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Dated this the 13thday of December, 2010
J U D G M E N T
The petitioner is a contractor. The respondents awarded to
him the work of construction of the kitchen block for H.M.T.
Educational Society School at Kalamassery. After the work was
executed, the petitioner submitted his final bill as per which he
claimed the sum of Rs.4,15,000/-. However, the work was not
check measured and the bill amount paid. The petitioner thereupon
sent Ext.P6 letter to the second respondent followed by Ext.P8 letter
to the Secretary of the Kalamassery Municipality and the Municipal
Engineer. He thereafter sent Ext.P9 letter to the Chairperson of the
Kalamassery Municipality seeking expeditious payment. Later, he
filed W.P.(C) No.1672 of 2010 in this Court seeking a direction to
the respondents to consider the request made by him in Exts.P6 to
P9 representations. By Ext.P10 judgment delivered on 19.1.2010, a
learned single Judge of this Court directed the Secretary of
Kalamassery Municipality to consider the petitioner’s request and
take a decision thereon within four weeks from the date of
production of a copy of the judgment. Pursuant to the said direction,
Ext.P12 memo was issued by the Secretary of the Kalamassery
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Municipality on 5.3.2010 informing the petitioner that though the
H.M.T. Educational Society School is an aided school, the
management of the school has not been handed over to the
Municipality and therefore the beneficiary of the work done by the
petitioner namely the H.M.T. Educational Society School should pay
for the work done by the petitioner. Reliance was placed on section
70 of the Contract Act to justify the said stand. Upon receipt of
Ext.P12 memo, the petitioner submitted Ext.P13 appeal before the
Municipal council requesting that the payment may be effected for
the work done by him. This writ petition is filed challenging Ext.P12
and seeking a direction to the respondents to check measure the
work executed by the petitioner and to release payment together with
interest at the treasury rate with effect from 18.9.2009 the date on
which the execution of the work was completed.
2. The first respondent has filed a counter affidavit reiterating
the stand taken in Ext.P12. It is contended that the H.M.T.
Educational Society School is owned and manged by H.M.T.
Educational Society, which is receiving aid from the Government and
that the school has not so far been transferred to the Kalamassery
Municipality and therefore, the Municipality is not bound to pay for
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the work done by the petitioner. It is also contended that the
H.M.T. School management is the beneficiary of the work and has
enjoyed the benefit of the work done by the petitioner. Relying on
section 70 of the Indian Contract Act, the first respondent contend
that the beneficiary being the HMT School management, they are
bound to make payment for the work done by the petitioner.
3. It is evident from the pleadings and the materials on record
that the execution of work in question was tendered by the
Kalamassery Municipality after the administrative sanction of the
Government was obtained for execution of the work. If the school did
not belong to the Kalamassery Municipality, it ought not have invited
tenders for execution of the work. The work was awarded to the
petitioner, whose tender was found to be the lowest. It was also
completed within the stipulated time. Apart from the contention that
the school belongs to the H.M.T. Educational Society, the
respondents have not given any other reason for withholding
payment. They have no case that the work was not properly
executed by the petitioner or was belatedly executed. They have
also no case that the workmanship is shoddy or that the work was
executed without administrative sanction. In such circumstances, I
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am of the opinion that the respondents are not justified in withholding
payment for the work done by the petitioner. If as stated by the
respondents, the school belongs to HMT Educational Society, it will
be open to the Kalamassery Municipality to make good the loss if any
sustained by them, after effecting payments to the petitioner, by
realising the same from the H.M.T. Educational Society. The
petitioner who had undertaken the work cannot in my opinion be
visited with the consequences of the mistake, if any, committed by
the respondents.
I accordingly dispose of the writ petition with a direction to the
respondents to check measure the work executed by the petitioner
pursuant to the Ext.P1 agreement and release payment for the work
done by him expeditiously and in any event within three months from
the date on which the petitioner produces a certified copy of this
judgment before the Secretary of Kalamassery Municipality, failing
which the petitioner will be entitled to simple interest at the rate of 6%
per annum on the bill amount from this day onwards.
P.N.RAVINDRAN,
(JUDGE)
vps
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