High Court of KeralaWP(C)/16177/2013disposed of

Kesoram Industries Ltd v. Kerala State Road Transport Corporation

2015-03-04Honourable Mr.Justice V.Chitambaresh4 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE V.CHITAMBARESH WEDNESDAY, THE 4TH DAY OF MARCH 2015/13TH PHALGUNA, 1936 WP(C).No. 16177 of 2013 (V) ------------------------------------- PETITIONER:

--------------------- KESORAM INDUSTRIES LTD BIRLA TYRES DIVISION, 9/1 R.N.MUKHERJEE ROAD KOLKOTA-700 001 REPRESENTED BY ITS POWER OF ATTORNEY HOLDER K.C.MADHUSUDANAN S/O.K.P.CHELLAPPAN PILLAI, BIRLA TYRES 40/7035 JEW STREET, KOCHI-682 035.

BY ADVS.SRI.SAJI VARGHESE KAKKATTUMATTATHIL SRI.P.BENJAMIN PAUL RESPONDENTS:

---------------------------- 1.

KERALA STATE ROAD TRANSPORT CORPORATION REPRESENTED BY THE MANAGING DIRECTOR TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM. 695 023. * ADDL. R2 IS IMPLEADED 2.

THE DEPUTY TAHSILDAR (RR) KANAYANNUR TALUK, ERNAKULAM, KOCHI 682 011.

ADDL. R2 IS IMPLEADED AS PER ORDER DATED 03.03.2015 IN IA.2794/2015 R1 BY ADVS. SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC SRI.M.GOPIKRISHNAN NAMBIAR, SC, KSRTC DR. THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-03-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No. 16177 of 2013 (V) -------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- P1TRUE PHOTO COPY OF NOTARIZED POWER OF ATTORNEY DATED 28.9.2012.

P2PHOTO COPY OF THE PURCHASE ORDER NO.SRA1/1181/09 DATED 25.6.2009 ISSUED BY THE RESPONDENT.

P3TRUE COPY OF THE SUPPLY SCHEDULE OF THE PETITIONER AGAINST THE PURCHASE ORDER NO.SRA 1/1181/09 DATED 25.6.2009. P4PHOTO COPY OF PURCHASE ORDER NO.SRA 1/001470/10 DATED 21.08.2010 ISSUED BY RESPONDENT.

P5TRUE COPY OF SUPPLY SCHEDULE OF THE PETITIONER AGAINST THE PURCHASE ORDER NO.SRA I/001470/10 DATED 21.08.2010. P6PHOTO COPY OF PURCHASE ORDER NO.SRA1/036563/10 DATED 28.02.2011 ISSUED BY THE RESPONDENT.

P7PHOTO COPY OF LETTERNO.BT/EKM/KSRTC/85/2011-12 DATED 30.8.2011 ISSUED BY PETITIONER.

P8PHOTO COPY OF LETTER NO.SRAI/1181/09 DATED 01.08.2011. P9PHOTO COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA IN W.P[C]NO.31483/2012 DATED 1.1.2013. P10PHOTO COPY OF LETTER NO.SRAI/001470/2010 DATED 18.9.2010 ISSUED BY RESPONDENT.

P11PHOTO COPY OF ORDER NO.SRAI/1181/09 DATED 28.3.2013 ISSUED BY RESPONDENT.

P16 (I.A. NO. 2794 OF 2015)- TRUE COPY OF THE DEMAND NOTICE DATED 09.02.2015 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER RESPONDENT(S)' EXHIBITS:- --------------------------------------- R1(a)- COPY OF THE TENDER NOTICE DATED 28.06.2010 ISSUED BY THE RESPONDENT CORPORATION R1(b)- COPY OF THE CERTIFICATE DATED 14.07.2010 SUBMITED ON BEHALF OF THE PETITIONER R1(c)- COPY OF THE LETTER DATED 31.07.2010 ISSUED BY M/S. BIRLA TYRES /TRUE COPY/ P.A. TO JUDGE

V. CHITAMBARESH, J --------------------------------------- W.P.(C). NO. 16177 OF 2013 ---------------------------------------- Dated this the 04th day of March, 2015

JUDGMENT

It is trite law that one of the litigating parties cannot act as an arbitrator of the dispute. The petitioner claims a sum of Rs. 19,97,528/- towards the price of tyres, tubes and flaps supplied to the first respondent. The sum of Rs. 20,00,000/- furnished as bank guarantee and a sum of Rs. 2,00,000/- given as earnest money deposit is also sought to be realised from the first respondent. 2.

The first respondent contends that there has been a short supply of material by the petitioner necessitating purchase from other quarters. The first respondent relies on Clauses 6 and 15 of the agreement entered into between the parties. The contention of the first respondent is that expenses incurred to the tune of Rs. 45,06,000/- for purchasing material from other quarters is liable to be recovered from the petitioner. 3.

As to who has committed breach of the terms of the agreement is a matter to be established by evidence.

W.P.(C). NO. 16177 OF 2013 2 An independent forum has to assess the situation after extending opportunity to both the parties. The initiation of revenue recovery proceedings based on the rejection of a representation put in by the petitioner cannot be appreciated. Ext. P16 revenue recovery notice served on the petitioner without a proper adjudication of damages for alleged breach of contract cannot be sustained. 4.

Ext. P16 revenue recovery notice is accordingly quashed leaving open the right of the parties to move the Civil Court for adjudication of their claims. The writ petition is disposed of.

V. CHITAMBARESH JUDGE