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Karnataka High Court · body

2013 DIGILAW 757 (KAR)

Vaps Technosoft Pvt. Ltd. Rep. by its Managing Director R. Siddesh Kumar v. State of Karnataka, Health & Family Welfare Department

2013-07-03

A.S.BOPANNA

body2013
Judgment : 1. The petitioner is before this Court assailing the order dated 18.05.2012 impugned at Annexure-F to the petition. The petitioner is also seeking for issue of direction to respondents No. 2 to 5 to pay the balance amount due with interest as claimed therein. 2. Heard the learned counsel for the parties and perused the petition papers. 3. The brief facts are that the petitioner who had successfully tendered for installation of hardware, net working and providing smart cards, was entrusted with the work. In that regard, the petitioner and the respondents have entered into a contract as at Annexure-'A3' to the petition. The said contract relates to the second respondent-Institute. Similar contracts are said to have been executed with respondents No. 3 to 5. According to the petitioner, the work which was required to be carried out by the petitioner by putting the system in place has been completed. In that regard, reference is made to the communication dated 13.12.2010 (Annexure-A5) wherein the Senior Programmer of Directorate of Health and Family Welfare has informed the Director and Dean of respondent No.2 that the hardware items have been supplied and the same has been installed and is working satisfactorily. It is therefore contended that, when the Department through a Senior Programmer has accepted that the work has been performed satisfactorily by the petitioner, the petitioner was entitled to receive the amounts which was due and payable by the respondents. Reference is also made to the statement of work as at Annexure-'B4' indicating the terms and conditions therein with regard to the manner in which the work is to be completed and also relating to the future maintenance. In that circumstance, when the petitioner sought for payment relating to the work which according to the petitioner was satisfactorily complied, respondent No.1 has issued the communication dated 18.05.2012 as at Annexure-F requiring inspection of the work undertaken by the petitioner by a third party to be appointed for the said purpose. 4. The contention put forth on behalf of the petitioner is that the said third party inspection is beyond the scope of the contract entered into between the petitioner and respondents No. 2 to 5. 4. The contention put forth on behalf of the petitioner is that the said third party inspection is beyond the scope of the contract entered into between the petitioner and respondents No. 2 to 5. It is alleged that such indication in Annexure-F has been made only due to the note submitted by the Minister concerned as at Annexure-E. Hence, it is contended that such action on the part of the respondents is not justified and the impugned Annexure-F is to be quashed and a direction is to be issued for payment of the amounts. 5. The respondents have filed their objection statement. They seek to sustain the action of the respondents in seeking for third party inspection. That apart, it is contended that the contention of the petitioner that the work has been completed cannot be accepted since there are several defects in the installation. It is their contention that the visit by the Certifying Officer cannot be deemed as a certification of the correctness of the work which has been carried out by them. 6. In such circumstance, it is contended that in order to enable the process to be completed, a third party inspection has been suggested so that the matter could be settled one way or the other, if the third party making the inspection indicates that the work has been performed by the petitioner satisfactorily. In the alternative, it is contended that if the petitioner is not willing to have the work certified through a third party inspection, certainly the petitioner in a writ petition cannot seek for the relief of payment when there are several disputed questions with regard to correctness or otherwise of the work performed. 7. In the light of the above, I have perused the document at Annexure-'A3' i.e., one of the specimen contract entered into between the petitioner and respondent No.2. A perusal of the same and the subsequent documents relating to the contract does not indicate that for certification of satisfactory completion of the work, a third party inspection is provided for. However, insofar as the satisfactory completion of the work, several terms are agreed between the parties which would indicate that apart from installation of the hardware, the entire process of installation of the system is to be completed by the petitioner and it should perform to the satisfaction of the respondents. However, insofar as the satisfactory completion of the work, several terms are agreed between the parties which would indicate that apart from installation of the hardware, the entire process of installation of the system is to be completed by the petitioner and it should perform to the satisfaction of the respondents. That apart, it also provides for Post Implementation Support as well as Annual Maintenance Contract. In any event, Post Implementation Support is to be performed satisfactorily by the petitioner and in that regard, if any of the defects as pointed out by the respondents with regard to installation is brought to the notice of the petitioner, the same is to be rectified. 8. If this aspect of the matter is kept in view, certainly, though the respondents would be entitled to indicate that the work has not been satisfactorily performed by specifying the defects therein, the third party inspection ordered by the respondents is beyond the scope of the contract. Therefore, the third party inspection as directed under Annexure-F would not be sustainable. To the said extent, the communication dated 18.05.2012 would stand quashed. 9. Having arrived at the said conclusion, it is to be clarified that the second prayer as made in the instant petition to direct the respondents to pay the amount with interest cannot be decided in the instant petition inasmuch as the objection statement filed by the respondents would refer to several aspects of the matter whereunder they contend that the work has not been satisfactorily performed by the petitioner and these are all disputed questions of fact. Therefore, the respondents would now intimate the petitioner with regard to nature of the defects which according to them would indicate 'non satisfactory' completion of the work. 10. Further, such indication would be made only after the joint inspection of the installation by the petitioner and the competent officers of the respondents. In such inspection, if it is found that the work has been satisfactorily completed and the earlier defects indicated have been rectified by the petitioner, the respondents would consider the request of the petitioner in terms of the contract and if any amounts are due, the same would be paid. 11. In such inspection, if it is found that the work has been satisfactorily completed and the earlier defects indicated have been rectified by the petitioner, the respondents would consider the request of the petitioner in terms of the contract and if any amounts are due, the same would be paid. 11. However, on the other hand, in the joint inspection, if it is found that the work is not satisfactory and any defects that have been pointed out have not been rectified by the petitioner, the same may be intimated to the petitioner in writing. Thereafter the disputed questions can only be considered in an appropriate proceedings before an appropriate forum for which liberty is reserved to the petitioner in that regard. 12. To enable the expeditious completion of the process, the petitioner shall now furnish a copy of this order to the respondents within two weeks from the date of receipt of a copy of this order. The joint inspection if desired by the respondents shall be fixed within a period of three weeks thereafter by fixing a date and intimate the same to the petitioner. The further process shall thereafter be completed as expeditiously as possible. In terms of the above, the petition stands disposed of.