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Judgment
Manjula Chellur, C.J.—The appellant herein before us is aggrieved by the judgment of the learned Single Judge in W.P.C. No. 8302/2012. The admitted facts are, the appellant got a contract from the respondents pertaining to construction of a Reinforce Cement Concrete (RCC) Jetty on bored pile foundation including two numbers "Mooring Dolphin" at the eastern side of Kavarathy Island in Lakshadweep. This is evidenced by agreement bearing terms and conditions of the contract as enumerated at Ext. P1. It is not in dispute that the period of completion of contract is fixed as 24 months. According to the appellant/petitioner, in the month of May 2007, on account of natural disaster, entire piling gantry along with machineries and materials put up by him belonging to him was washed away resulting in huge loss to the appellant. On account of this, several consequential difficulties were to be faced by the appellant including transportation of men and material apart from the difficulties faced by him to obtain sand for completing the contract. He also refers to Clause 14 of the agreement indicating right of the respondent authorities in imposing compensation at 10% of the tender amount. According to him, as per the details, admitted amount of work already completed and the work to be completed is evidenced by number of documents addressed to the appellant by the Executive Engineer and Chief Engineer on several occasions. Ext. R1(c1) is the document showing list of tools and plants apart from material at site indicates good number of material belonging to appellant are still at the work site and the authorities have no right to retain the same. Even otherwise, according to learned Senior Counsel, letter dated 16/5/2012 addressed to the appellant by the Executive Engineer (Mechanical Division) of respondent authority indicates different columns. Column (a) refers to liabilities of the appellant on account of incompletion of work and Column (b) indicates securities available with the department.
According to Learned Counsel, as per this document, except a difference of an amount of Rs. 5,99,693/-, as on 16/5/2012 no other amount was payable by him and there was no justification in obstructing lifting of tools, plants and other materials belonging to the appellant by the department as indicated at Ext. R1(e). Aggrieved by the same, writ petition W.P.C. No. 8302/2012 came to be filed seeking the following reliefs:
i) Issue a writ in the nature of mandamus commanding the respondents to permit the petitioner to return the materials mentioned in Ext. P2 from the work site at Kavarathy within such time as may fixed by this Hon''ble Court.
ii) In the alternative issue a writ in the nature of mandamus commanding the respondents to get the materials mentioned in Ext. P2 valued by an independent agency with notice to the petitioner, take over the same and pay the value to the petitioner within such time as may be fixed by this Hon''ble Court.
iii) Issue a writ in the nature of mandamus commanding the respondents to finalize the amount due to the petitioner pursuant to Ext. P1 and disburse of the amount due to the petitioner less 10% of the tender amount as per clause 14 of Ext. P1, within such time as may be fixed by this Hon''ble Court.
iv) Issue a writ in the nature of mandamus commanding the 3rd respondent to consider and pass orders on Ext. P5 after affording an opportunity of hearing the petitioner within such time as may be fixed by this Hon''ble Court.
v) Issue such other orders, writs or directions as are deemed fit by this Hon''ble Court.
vi) award cost of this proceedings to the petitioners.
When the matter came up for consideration, learned ASGI filed counter affidavit indicating that all the details are not reflected in Ext. R1(e). Therefore more than Rs. 6,00,000/- is due to the department. Hence Clause 14 of the agreement entitles them to retain tools, machinery and materials belonging to appellant. In support of his contention, he wanted to file a detailed counter affidavit which is apparently filed. Paragraph 25 of the counter affidavit specifically indicates certain items of materials which had to be accounted by the appellant which reads as under:
It is submitted that the total liability of the appellant has been intimated by the Department as per Exhibit R1(e). The liabilities shown in Exhibit R1(e) is only an approximate cost and hence it may vary as per actual execution. In addition to the above, the department had issued the following materials to the appellant for which they have not settled the account yet.
The above accounts are also to be settled by the appellant. It is submitted that if the appellant is not settling this account, the same will also add as the liability from the appellant.
During the course of arguments, it was brought to our notice that cost of the material mentioned at paragraph 25 of the counter affidavit may not exceed Rs. 2,00,000/-. However, the fact remains, it may not cross, in all, more than Rs. 10,00,000/- as of now. It is not the case of the department that financial condition of the appellant is so poor that they may not be able to recover the money. It is brought to our notice by Learned Counsel for appellant that apart from this particular contract for the department, appellant is doing other contracts and they are reputed contractors.
Learned Counsel for appellant is ready to even pay Rs. 6,00,000/- demanded at Ext. R1(e) subject to the settlement of accounts or determination of amounts due against each other in an arbitration proceedings as contemplated by the appellant.
Learned ASGI submits, it is not just Rs. 6,00,000/-; but department is also entitled for interest on this amount. Relief sought in the writ petition was only for a direction to the department to allow the appellant to remove the tools, plants and materials belonging to him from the work site. In that view of the matter, when the appellant is coming forward to pay the amount shown at Ext. R1(e), we find no justification in denying the said relief to the appellant as no prejudice is caused to the department. Even otherwise, having regard to the financial status of the appellant, it may not be a case where the department is left without any remedy to recover the amount in case such determination is done in accordance with a procedure known to law.
In the light of above reasoning, we are of the opinion, the department must allow the appellant to remove the tools, plants and materials belonging to the appellant after entering all the details in an inventory in the presence of the department officials. So far as the contention of learned ASGI that the appellant has to settle the amount for the materials supplied by the department, we note that a bank guarantee was furnished and the same is invoked. However, nothing prevents the appellant from settling that amount also, if there is no dispute. Otherwise, the same has to be determined in the arbitration proceedings. In the light of above observations, we allow the appeal setting aside the judgment of the learned Single Judge. The appellant/petitioner is directed to pay an amount of Rs. 6,00,000/-(Rupees six lakhs only) to the department within a period of one month from the date of receipt of a copy of this judgment and the department is directed to allow the appellant/petitioner to remove the tools, plants and materials belonging to the appellant after making an inventory of all the items to be removed from the work site within a period of one month from the date of payment of the said amount.