MINI RAJENDRAN v. TRAVANCORE DEVASWOM BOARD

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 14[TH] DAY OF DECEMBER 2021/23RD AGRAHAYANA, 1943** **WP(C) NO. 18920 OF 2021** ## **PETITIONER:** **MINI RAJENDRAN, POOKOYIKKAL, CHALUMOODU P.O., ALAPPUZHA 690 505.** ## **BY ADV R.KRISHNA RAJ** ## **RESPONDENT:** **TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, NANTHANCODE, THIRUVANANTHAPURAM 695 003.** **R BY SRI.G.BIJU, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION** **ON 14.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- W.P.(C)No.18920 of 2021 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P2 communication dated 15.02.2014 and Ext.P4 communication dated 28.03.2015 of the Executive Officer, Sabarimala, addressed to the Manager, Sree Sakthi Chakra Manufacturers, Kayamkulam. The petitioner has also sought for a writ of mandamus commanding the respondent Travancore Devaswom Board to consider Ext.P6 representation dated 20.10.2015, Ext.P7 representation dated 06.06.2017 and Ext.P8 representation dated 21.03.2019 made by Sree Sakthi Chakra Manufacturers, Kayamkulam, against Ext.P4 communication dated 28.03.2015 of the Executive Officer, Sabarimala, addressed to the Manager, Sree Sakthi Chakra Manufacturers, Kayamkulam, and return an amount of Rs.3,10,700/- towards the Bank Guarantee and EMD forfeited by the Board, together with interest from 15.02.2014. By Ext.P4, the Manager of Sree Sakthi Chakra Manufacturers was informed that the Gold Plated Copper Lockets supplied pursuant to Board orders dated 21.12.2010 and 10.01.2011 -3- W.P.(C)No.18920 of 2021 were of sub-standard quality and as such the Board was forced to suspend the sale of lockets after 26.12.2012. Before the issuance of Ext.P4, the Manager of Sree Sakthi Chakra Manufacturers was issued with Ext.P2 notice dated 15.02.2014 to offer explanation. Since the explanation offered in Ext.P3 letter dated 17.02.2014 was not satisfactory, the Board decided to forfeit the Bank Guarantee towards the loss sustained in the contract. The Manager of Sree Sakthi Chakra Manufacturers submitted Ext.P5 representation dated 28.08.2014 before the Devaswom Commissioner, Exts.P6 and P7 representations dated 20.10.2015 and 06.06.2017 before the Travancore Devaswom Board, against forfeiture of Bank Guarantee, which were followed by Ext.P8 representation 21.03.2019. Thereafter the petitioner, who is stated to be the owner of Sree Sakthi Chakra Manufacturers, has filed this writ petition before this Court seeking the aforesaid reliefs. 2. Heard the learned counsel for the petitioner and also the learned Standing Counsel for the respondentTravancore Devaswom Board. 3. The subject matter of this writ petition is a contract -4- W.P.(C)No.18920 of 2021 entered by Sree Sakthi Chakra Manufacturers with the Travancore Devaswom Board for supply of Gold Plated Copper Lockets with five year warrantee. On the ground that the lockets supplied by Sree Sakthi Manufacturers were of substandard quality, Ext.P2 notice was issued by the Executive Officer, Sabarimala. The explanation offered in Ext.P3 was found not satisfactory and accordingly the Bank Guarantee and EMD were forfeited towards the loss sustained by the Board, as evidenced by Ext.P4 communication dated 28.03.2015. 4. The learned counsel for the petitioner would contend that the lockets were accepted by the Board after conducting proper quality tests. Therefore, the Board cannot forfeit the Bank Guarantee and EMD by merely saying that the lockets supplied were of low quality. Therefore Exts.P2 and P4 communications issued by the Executive Officer, Sabarimala, warrants interference in this writ petition. 5. Per contra, the learned Standing Counsel for Travancore Devaswom Board would contend that the Bank Guarantee and EMD were forfeited since the Gold Plated -5- W.P.(C)No.18920 of 2021 Copper lockets supplied by Sree Sakthi Chakra Manufacturers were of sub-standard quality, as stated in Exts.P2 and P4. Further, the claim made by the petitioner is hopelessly barred by limitation. Moreover, the issue raised in this writ petition, which involves adjudication of alleged breach of contract, is not amenable to the writ jurisdiction of this Court under Article 226 of the Constitution of India. 6. In **State of Bihar v. Jain Plastics and Chemicals** **Ltd. [(2002) 1 SCC 216]** the Apex Court held that a writ petition under Article 226 is not the proper proceedings for adjudicating disputes in respect of enforcement of contractual obligations. Under the law, it was open to the respondent to approach the court of competent jurisdiction for appropriate relief for breach of contract. It is settled law that when an alternative and equally efficacious remedy is open to the litigant, he should be required to pursue that remedy and not to invoke the writ jurisdiction of the High Court. Equally, the existence of alternative remedy does not affect the jurisdiction of the High Court to issue writ, but ordinarily that would be a good ground in refusing to exercise the discretion under Article -6- W.P.(C)No.18920 of 2021 226. It is true that many matters could be decided after referring to the contentions raised in the affidavits and counter-affidavits, but that would hardly be a ground for exercise of extraordinary jurisdiction under Article 226 of the Constitution in case of alleged breach of contract. On the facts of the case on hand, the Apex Court observed that, whether the alleged non-supply of road permits by the appellants would justify breach of contract by the respondent, would depend upon facts and evidence and is not required to be decided or dealt with in a writ petition. Such seriously disputed questions or rival claims of the parties with regard to breach of contract are to be investigated and determined on the basis of evidence which may be led by the parties in a properly instituted civil suit rather than by a court exercising prerogative of issuing writs. 7. In **National Highways Authority of India v. Ganga Enterprises [(2003) 7 SCC 410]** the Apex Court reiterated that, in contractual disputes writ court is not the proper forum. Thus on the ground of maintainability the petition should have been dismissed. In the said decision, the -7- W.P.(C)No.18920 of 2021 Apex Court was dealing with a case in which the respondent therein had filed a writ petition before the High Court for refund of security deposit. The High Court posed two questions, namely, (a) whether the forfeiture of security deposit is without authority of law and without any binding contract between the parties and also contrary to Section 5 of the Contract Act, 1872; and (b) whether the writ petition is maintainable in a claim arising out of breach of contract. While dealing with the said issue, the Apex Court opined that, it is settled law that disputes relating to contracts cannot be agitated under Article 226 of the Constitution of India. It has been so held in **Kerala State Electricity Board v. Kurien E. Kalathil [(2000) 6 SCC 293]** , **State of U.P. v. Bridge and Roof Company (India) Ltd. [(1996) 6 SCC 22]** and **Bareilly Development Authority v. Ajai Pal Singh [(1989) 2 SCC 116]** . This is settled law. On the facts of the case on hand, the Apex Court noticed that, the dispute was regarding the terms of offer. They were thus contractual disputes in respect of which a writ court was not the proper forum. In **Verigamto Naveen v. State of A.P. [(2001) 8** -8- W.P.(C)No.18920 of 2021 **SCC 344]** and **Harminder Singh Arora v. Union of India [(1986) 3 SCC 247]** the Apex Court was dealing with cases where the writ court was enforcing a statutory right or duty. These decisions do not lay down that a writ court can interfere in a matter of contract only. 8. In **State of Kerala v. M.K. Jose [(2015) 9 SCC 433]** , after referring to the law laid down in **Jain Plastics and Chemicals Ltd. [(2002) 1 SCC 216]** and **Ganga Enterprises [(2003) 7 SCC 410]** , the Apex Court reiterated that a writ court should ordinarily not entertain a writ petition under Article 226 of the Constitution of India, if there is a breach of contract involving disputed questions of fact. 9. In **M.K. Jose [(2015) 9 SCC 433]** the Apex Court noticed that, in **ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd. [(2004) 3 SCC 553]** a Two-Judge Bench after referring to various judgments as well as the pronouncement in **Gunwant Kaur v. Municipal Committee, Bhatinda [(1969) 3 SCC 769]** and **Century Spinning and Manufacturing Company Ltd. v. Ulhasnagar Municipal Council [(1970) 1 SCC 582]** -9- W.P.(C)No.18920 of 2021 granted the relief as the facts were absolutely clear from the documentary evidence brought which pertain to interpretation of certain clauses of contract of insurance. The issue that had arisen in **ABL International** was that an instrumentality of a State was placing a different construction on the clauses of the contract of insurance and the insured was interpreting the contract differently. The Court thought it apt merely because something is disputed by the insurer, it should not enter into the realm of disputed questions of fact. In fact, there was no disputed question of fact, but it required interpretation of the terms of the contract of insurance. Similarly, if the materials that come on record from which it is clearly evincible, the writ court may exercise the power of judicial review. 10. In **M.K. Jose [(2015) 9 SCC 433]** the Apex Court was dealing with a case in which the High Court has appointed a Commission to collect the evidence, accepted the same without calling for objections from the respondent, and quashed the order of termination of contract. The Apex Court observed that, the procedure adopted by the High Court is quite unknown to exercise of powers under Article 226 in a -10- W.P.(C)No.18920 of 2021 ## contractual matter. 11. In this writ petition the contention raised by the petitioner is that Ext.P2 notice and Ext.P4 communication issued by the Executive Officer, Sabarimala cannot be sustained in law, since the Gold Plated Copper Lockets supplied pursuant to Board orders dated 21.12.2010 and 10.01.2011 were accepted by the Board after conducting proper quality test. Therefore, the Board cannot forfeit the bank guarantee and EMD by merely saying that the lockets supplied were of low quality. 12. It is not in serious dispute that Gold Plated Copper Lockets were supplied with five year warranty. In Ext.P2 notice and Ext.P4 communication the specific stand taken by the Travancore Devaswom Board is that the lockets supplied were of sub-standard quality and as such, the Board was forced to suspend the sale of lockets after 26.12.2012. 13. The question as to whether the Gold Plated Copper Lockets supplied pursuant to Board orders dated 21.12.2010 and 10.01.2011 were of sub-standard quality or not is a disputed question of fact. The said dispute in respect of the -11- W.P.(C)No.18920 of 2021 contract in question cannot be decided invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, in view of the law laid down in the decisions referred to supra. In such circumstances, this writ petition is dismissed as not maintainable, without expressing anything on the merits of the rival contentions. No order as to costs. **==> picture [30 x 13] intentionally omitted <==** ## **ANIL K.NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** AV/15/12 -12- W.P.(C)No.18920 of 2021 ## **APPENDIX OF WP(C) 18920/2021** **PETITIONER EXHIBITS** **Exhibit P1 COPY OF THE LETTER ISSUED BY THE SRI SAKTHI CHAKRA MANUFACTURERS DTD. 01.02.2011.** **Exhibit P2 COPY OF THE LETTER OF THE RESPONDENT DTD. 15.02.2014. Exhibit P3 COPY OF THE LETTER ISSUED BY THE SRI SAKTHI CHAKRA MANUFACTURERS DTD. 17.02.2014.** **Exhibit P4 COPY OF THE LETTER OF THE RESPONDENT DTD. 28.03.2015. Exhibit P5 COPY OF THE LETTER ISSUED BY THE SRI SAKTHI CHAKRA MANUFACTURERS DTD. 28.08.2014** **Exhibit P6 COPY OF THE LETTER ISSUED BY THE SRI SAKTHI CHAKRA MANUFACTURERS. DTD 20.10.2015. Exhibit P7 COPY OF THE LETTER ISSUED BY THE SRI SAKTHI CHAKRA MANUFACTURERS DTD. 06.06.2017. Exhibit P8 COPY OF THE LETTER ISSUED BY THE SRI SAKTHI CHAKRA MANUFACTURERS DATED 21.03.2019.**