KENNY MANUEL Vs. MANAGING DIRECTOR

JUDGEMENT

(1.) THE petitioner is a Contractor who had satisfactorily executed a work in connection with the construction of quarters at A. R. Camp, kottayam. He has approached this Court challenging Ext. P5 and seeking a declaration that respondents 1 and 2 are not entitled to withhold the retention amount and the security amount in respect of the work in question. By Ext. P5 the second respondent had directed the petitioner to extend the period of bank guarantee beyond 9. 12. 2001 threatening that failure shall result in invocation of the bank guarantee without any further notice.

(2.) CERTAIN facts are necessary for the disposal of the case. Facts are as follows.

(3.) IT is submitted by the counsel for the first respondent that Ext. P5 is a letter alone invoking certain provisions of the agreement entered into by the parties. Therefore it is not one liable to be judicially reviewed. IT is further contended by the first respondent that Ext. P5 is a notification of a clause in the agreement between the parties. Notwithstanding the expiry or performance of the contract, the bank guarantee is enforced. This court shall not interfere with, unless any irretrievable injury or injustice resulting therefrom is shown. IT is further contended relying on clause 25 of the agreement that whatever dispute arising out of the contract shall be amenable for the jurisdiction of the court in thiruvananthapuram. Therefore no writ petition will lie. IT is again contended that the clause agitated in this case is arising out of a contract and therefore based on the decision reported in Geetha Timbers & another v. State of Kerala & Ors. (1990 (1) KLJ 538) and Joy v. Superitnending Engineer (1990 (2) KLT 146), this court shall not interfere with the Ext. P5 whereby bank guarantee is threatened to be invoked. In respect of the invocation of the bank guarantee the petitioner relies on the recent decision of the Supreme Court in federal Bank v. V. M. Jog Engineering Ltd. and Ors. 2001 (I) SCC 663.