Decided on April 01,2003

DINESH V.PAI Appellant


- (1.) By letter dated 24-2-2003. the petitioner had requested the Chief Engineer, NAVAC, the first respondent herein to permit him to remove one Hyundai Excavator 210 LC. from the site of work of the Naval Academy, Ezhimala. He had pointed out that the earth - moving equipment, had been engaged in connection with the work done by Saravana Constructions Pvt. Limited, the fourth respondent herein. He understands that the contract between the first and fourth respondent stands cancelled. Being owner of earth - moving equipment, since they had to meet other commitments at other work sites, such permission had been sought for. but there was no response and recourse to remedy under Art.226 of the Constitution of India had been resorted to. He has already suffered colossal loss for no fault of his, and unless this Court interferes he is likely to be greatly prejudiced.
(2.) A counter affidavit has been filed. The first respondent had awarded a contract in favour of the fourth respondent, for providing external water supply, electrification etc., concerning the project at Ezhimala. The period stipulated for completion of the work was 24 months, which was to expire on 9th February, 2003. The fourth respondent had failed to show sufficient progress and on 13-2-2003, by Ext. R1(a). the work order had been cancelled. It is not seriously disputed that the excavator referred to earlier belongs to petitioner, that he is engaged in the business of hiring of moving equipment, and the fourth respondent had hired the equipment from him on 25-11-2002. The conditions under which such entrustment was made could be seen from Ext. P2.
(3.) The conduct of the first respondent was sufficient to make it clear that they were not prepared to hand over the equipment as requested for. The counter affidavit shows that in spite of expiry of the period of con - tract, less than 20 .per cent of the work had been carried out by the fourth respondent and there were proposals to re - tender the work, at the risk and loss of the fourth respondent, which they were entitled to, according to them, under the terms of contract. In answer to the claim urged by the petitioner which has led to these proceedings, the additional Central Government Standing Counsel had made particular reference to Ext. R1(b), which are extracts of general conditions of contract between the first respondent and the fourth respondent. The stand adopted by the first respondent was that it should have been permissible for them to retain all materials, tackle and machinery which had been brought to the site by the fourth respondent and they had a lien over such materials as in all probability, the loss suffered by the Department would have been substantial which the fourth respondent was liable to compensate. The materials that were brought to the site at the instance of the fourth respondent, therefore, would not have been released in view of the lien held by them under terms of contract.;

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