CREZIN INFRA LLP Vs. STATE OF KERALA

JUDGEMENT

(1.) The above writ petition is filed challenging Exts.P4 and P9 and for other consequential reliefs.

(2.) Brief facts necessary for the disposal of the writ petition are as follows: Petitioner, a Limited Liability Partnership, was awarded a contract by the respondents for "FD work-2018-19 Flood rectification works to Chiyyaram Convent Road from ch.2/150 to ch.3/000, providing BM & BC (Balance Works)" on issuing Letter of Acceptance dtd. 24/1/2022 for works valued Rs.79,95,465.20, sent by registered post on 28/1/2022, directing to furnish security deposit of Rs.3,99,800.00 and additional performance guarantee for Rs.7,66,300.00, to execute an agreement for carrying out the works, within 14 days of registration of the same. The copy of the said letter of acceptance, dtd. 24/1/2022, and the postal cover are produced as Ext.P1. The specific case of the petitioner is that the period of 14 days stipulated is to be reckoned from 28/1/2022 since the postal application was registered on 28/1/2022, and the said time limit will expire only on 11/2/2022. But, the 3 rd respondent has sent Ext.P2 letter dtd. 8/2/2022, intimating that the agreement could be executed within a period of 10 days up to 17/2/2022, with a fine of Rs.25,000.00, and directing to furnish security deposit and other documents required. Petitioner would submit that the further period of 10 days to execute an agreement with a fine of Rs.25,000.00 reckoned from 11/2/2022 expired only on 21/2/2022 and therefore, the direction in Ext.P2 to execute the agreement before 17/2/2022 is unauthorised, arbitrary and illegal. Ext.P3 stamp papers were purchased by the petitioner on 14/2/2022 and on 17/2/2022, petitioner remitted fine of Rs.25,000.00 as evident from Ext.P3(a) and further that as per Ext.P3(b) petitioner deposited Rs.2,00,000.00 and Rs.3,83,500.00 at the District Treasury, Kasaragod towards 50% of the security deposit and additional performance guarantee. It is submitted that on 17/2/2022 petitioner had deposited Rs.2,00,000.00 and Rs.3,83,200.00 at the South Indian Bank, duly pledged to the 3rd respondent towards 50% of security deposit and additional performance guarantee as evident from Ext.P3(c). on 17/2/2022 insurance policy for an amount of Rs.2,00,000.00 was taken from United India Insurance Company Ltd., Kasaragod as evident from Ex.P3(d). The contention of the petitioner is that they are entitled to execute an agreement till 21/2/2022. But, on 18/2/2022, Ext.P4 order was issued illegally, terminating the contract at the risk and costs of the petitioner. On 21/2/2022, the 3rd respondent sent Ext.P5 communication illegally denying the legitimate right of the petitioner to execute an agreement for carrying out the works specified in Ext.P1 within the period available up to 21/2/2022, relying on the e-mail dtd. 25/1/2022, pretending unawareness of the clear intimation in Ext.P1 that agreement is to be executed within 14 days of registration of the same on 28/1/2022. On 23/2/2022, the petitioner sent Ext.P6 letter to the 3 rd respondent requesting the release of Ext.P3 series of fixed deposits pledged. On 24/2/2022, the petitioner sent Ext.P8 letter to the 2nd respondent requesting to revoke the unauthorised and illegal termination of the contract and to waive the risk and cost unlawfully imposed. Thereafter, Ext.P9 letter was issued by the 3rd respondent to the petitioner, illegally demanding payment of Rs.25,87,506.00 allegedly towards 30% of the value of work of Rs.79,95,465.20 based on Ext.P4. Petitioner submits that the said demand is absolutely illegal, without jurisdiction, arbitrary, and invalid. It is in the said circumstance that the petitioner has approached this Court.

(3.) A detailed statement has been filed by the 3 rd respondent, wherein the stand taken is that the petitioner's quotation was accepted and the petitioner was informed, as per e-mail on 25/1/2022, of the selection. The letter was also communicated by registered post on 28/1/2022. It is further submitted that intimation of letter of acceptance (selection notice) is permissible by e-mail as per Clause 2009.6 of Kerala PWD Manual in urgent situations and it is clearly specified in Clause 2009.6 of PWD Manual that the date of registration shall be the date of acceptance of tender irrespective of the date when the communication is actually delivered to the bidder and the selection notice specifies to execute the agreement without fine within 14 days of registration of the communication of letter of acceptance and it could be reckoned from the date of communication of the selection notice by e-mail i.e, from 25/1/2022. The petitioner did not turn up to execute the agreement within the stipulated time, i.e, up to 7/2/2022 and another communication was sent to him to execute the agreement with a fine within a further period of 10 days, i.e, up to 17/2/2022, as per Ext. P2. Since the extended time for execution of the agreement by payment of fine expires on 17/2/2022, and the petitioner had approached the 3rd respondent's office with the documents for executing the agreement only on 18/2/2022, which is beyond the period stipulated as per Kerala PWD Manual, the contention raised by the petitioner cannot be accepted. Since, as per the PWD Manual, the department is entitled to send notice of acceptance of tender by way of an e-mail, the reliance placed by the petitioner on the communication through registered post is not sustainable.