High Court of KeralaSingle Judge2017-01-24Dismissed clearly

M/S ABB Limited (Formerly Known as ASEA BROWN BOVERI LIMITED) v. Kerala State Electricity Board and others

Case / Petition Number:WP(C).No. 19391 of 2005 (H)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2017-01-24
Court Decision / Holding: Writ petition dismissed; no costs.
Final Disposition: Dismissed clearly

Parties to the Case

Appellants / Petitioners

M/S. ABB Limited (formerly ASEA BROWN BOVERI Limited)

Respondents

Kerala State Electricity Board, Vaidyuthi Bhavan, Pattom, Thiruvananthapuram-695 004, Rep. by its Chairman
Chief Engineer (Distribution South), Kerala State Electricity Board, Vaidyuthi Bhavan, Pattom, Thiruvananthapuram-695 004
Deputy Chief Engineer, Electrical Circle, Thiruvananthapuram (Urban), Vaidyuthi Bhavan, Pattom, Thiruvananthapuram-695 004
State of Kerala, Government Secretariat, Thiruvananthapuram, represented by its Chief Secretary

Legal Representation & Advocates

Counsels for Petitioners

• Sri E.K. Nandakumar
• Smt. Priya Mahesh

Counsels for Respondents

• Sri P. Santhalingam, SC, KSEB
• Sri Sudheer Ganesh Kumar, SC
• Sri George Mathew Vadakkel

Case Synopsis & Summary

The writ petition arises from ABB Limited’s grievance that amounts due under a long-standing contract for the supply of goods to the Kerala State Electricity Board (KSEB) were not fully paid. The contract, entered in 1996-97, provided that the price would be firm for labour and material, with only exchange-rate variation on the US dollar to be passed through. Ext.P2 records the Board’s statement that the price would remain firm except for exchange-rate fluctuation, and Ext.P3 (dated 30.11.1999) confirms ABB’s supply of goods. ABB claims the balance amounts, including exchange-rate variation, were not paid; Ext.P6 (22.08.2001) shows a payment of Rs. 75,92,015, while the sanctioned exchange-rate variation was Rs. 1,02,84,495, which ABB contends is admitted. The Board defends the writ petition on two fronts: (i) maintainability under Article 226, arguing that there are factual disputes about whether ABB fully executed the contract and whether the supplied goods were defective; and (ii) that such disputes should be resolved in a civil forum, not by a writ. ABB relies on a dictum from LIC of India v. Consumer Education & Research Centre to suggest that arbitrariness in contractual terms warrants relief under Article 226. The High Court ultimately finds substantial factual questions and a four-year delay, concluding that a writ under Article 226 is not appropriate and dismisses the petition with no costs.

Provisions of Law Cited

Article 226 of the Constitution of India

Legal Doctrines & Maxims

Unconscionable terms of a contract
Equitable/extraordinary remedy under Article 226 of the Constitution of India

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that it performed the contract for supply of goods to KSEB as per the 1996-97 agreement, with price fixed for labour and materials and only exchange-rate variation on US dollars. Ext.P2 confirms the arrangement; Ext.P3 confirms supply; despite requests, payment of the balance amounts on exchange-rate variation was not paid. The sanction for variation was Rs. 1,02,84,495, of which only Rs. 75,92,015 was paid (Ext.P6). ABB argues the dispute is contractual and should be resolved by payment; it seeks relief under Article 226 on grounds of arbitrariness and references LIC v. Consumer Education & Research Centre to support that writ relief is available in such scenarios, though the court treats the unconscionability argument as not made out here. The petition involves factual disputes about contract execution and goods’ quality; the remedy, ABB asserts, should not be restricted by technical procedural limitations like limitation.

Contentions of Respondents

The Board contends the writ petition is not maintainable under Article 226 as there are disputed facts about the goods’ quality (defective ring-main units) and about whether ABB fully complied with the contract. It argues this is a matter requiring civil adjudication, not a writ, and notes the four-year gap from the order (2001) to the petition (2005), suggesting delay and improper use of extraordinary jurisdiction.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
LIC of India and another v. Consumer Education & Research Centre and others	(1995) 5 SCC 482	Mentioned Only	Cited in argument by the petitioner; the court references it to discuss arbitrariness but does not apply its principle to grant relief in this case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 24TH DAY OF JANUARY 2017/4TH MAGHA, 1938** **WP(C).No. 19391 of 2005 (H)** **----------------------------** **PETITIONER(S):** **-------------** **M/S. ABB LIMITED (FORMERLY KNOWN AS ASEA BROWN BOVERI LIMITED), REGISTERED OFFICE: "KHANIJA BHAVAN", 2ND FLOOR, EAST WING, NO.49, RACE COURSE ROAD, BANGALORE-560 001, BANGALORE-560 001, REP. BY ITS VICE PRESIDENT AS COMPANY SECRETARY.** **BY ADVS.SRI.E.K.NANDAKUMAR SMT.PRIYA MAHESH** **RESPONDENT(S):** - **--------------** **1. KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004, REP. BY ITS CHAIRMAN.** **2. CHIEF ENGINEER (DISTRIBUTION SOUTH), KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004.** **3. DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, THIRUVANANTHAPURAM (URBAN), VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004.** **4. STATE OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHIEF SECRETARY.** **R1-R3 BY ADVS. SRI.P.SANTHALINGAM, SC, KSEB SRI.SUDHEER GANESH KUMAR, SC R4 BY GOVERNMENT PLEADER SRI.GEORGE MATHEW VADAKKEL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 19391 of 2005 (H) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** - **P1 TRUE COPY OF THE LETTER OF ACCEPTANCE OF OFFER BY THE PETITIONER, ISSUED BY THE 1ST RESPONDENT ON 17.9.1996.** - **P2 TRUE COPY OF THE LETTER DTD.10.12.1996 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** - **P3 TRUE COPY OF THE LETTER DTD.30.11.1999 BY THE 1ST RESPONDENT TO CHIEF ENGINEER, WITH COPY TO THE PETITIONER.** - **P4 TRUE COPY OF THE LETTER DTD.4.9.2001 FROM THE PETITIONER TO THE 2ND RESPONDENT, WITH ENCLOSURE.** - **P5 TRUE COPY OF THE LETTER FROM THE 2ND RESPONDENT TO THE 1ST RESPONDENT DTD.8.6.2001.** - **P6 TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT ON 22.8.2001.** - **P7 TRUE COPY OF THE LETTER DTD.20.11.2002 BY THE PETITIONER TO THE 1ST RESPONDENT.** - **P7(a) TRUE COPY OF THE LETTER DTD.28.6.2001 BY THE PETITIONER TO THE 2ND RESPONDENT.** - **P7(b) TRUE COPY OF THE LETTER DTD.8.12.2004 BY THE PETITIONER TO THE HON'BLE MINISTER OF ELECTRICITY, KERALA.** - **P7(c) TRUE COPY OF THE LETTER DTD.5.6.2004 BY THE PETITIONER TO THE 2ND RESPONDENT.** - **P8 TRUE COPY OF THE LETTER FROM THE SECRETARY TO GOVERNMENT POWER (C) DEPARTMENT TO THE 1ST RESPONDENT DTD.18.12.2002.** - **P9 TRUE COPY OF THE LETTER FROM THE 2ND RESPONDENT TO THE PETITIONER DTD.16.122.2003.** - **P9(a) TRUE COPY OF THE LETTER DTD.16.1.2004 FROM THE 2ND RESPONDENT TO THE PETITIONER.** - **P9(b) TRUE COPY OF THE LETTER DTD.10.6.2004 FROM THE 2ND RESPONDENT TO THE PETITIONER.** **msv/** **-2-** **-2-** ## **WP(C).No. 19391 of 2005 (H)** ## **---------------------------** ## **RESPONDENT(S)' EXHIBITS** ## **-----------------------** - **EXT.R1(a): TRUE COPY OF THE FAX DTD.29.4.1998 FROM ASEA BROWN BOVERI LTD., TO THE EXECUTION ENGINEER, MASTER PLAN DIVISION, KSE BOARD, THIRUVANANTHAPURAM.** - **EXT.R1(b): TRUE COPY OF THE LETTER DTD.13.5.1998 FROM CHIEF ENGINEER, KSE BOARD, THIRUVANANTHAPURAM.** - **EXT.R1(c): TRUE COPY OF THE LETTER DTD.25.2.1999 ISSUED BY THE EXECUTIVE ENGINEER, MASTER PLAN (WBP) DIVISION, POWER HOUSE, TRIVANDRUM TO M/S.ABB LTD. NASIK.** - **EXT.R1(d): TRUE COPY OF THE MINUTES OF THE CONFERENCE CONVENED BY THE CHIEF ENGINEER ON 18.6.1999 WITH KSE BOARD OFFICIALS AND REPRESENTATIVES OF M/S.ABB.** - **EXT.R1(e): TRUE COPY OF THE LETTER DTD.6.10.2001 ISSUED BY CHIEF ENGINEER (DISTN. SOUTH) TO THE ASST. EXECUTIVE ENGINEER, CABLE SUB DIVISION, THIRUVANANTHAPURAM.** - **EXT.R1(f): TRUE COPY OF THE MINUTES OF THE MEETING OF DA PROJECT HELD ON 19.12.2001 ISSUED BY DY. CHIEF ENGINEER IN CHARGE, CORPORATE PLANNING.** - **EXT.R1(g): TRUE COPY OF THE LETTER DTD.28.1.2002 DEALT WITH BY S.UDAYASHANKAR, DY.MANAGER MARKETING, ABB LTD TO THE CHIEF OF DISTRIBUTION, K S E BOARD, PATTOM.** - **EXT.R1(h): TRUE COPY OF THE LETTER DTD.12.5.2003 DEALT WITH BY T.A.JAYAKUMAR, ASST. VICE PRESIDENT, M/S.ABB LTD TO THE DY. CHIEF ENGINEER, KSE BOARD, POWER HOUSE, THIRUVANANTHAPURAM.** ## **//TRUE COPY//** ## **P.S.TO JUDGE** **msv/** ## K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No.19391 of 2005 H - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24[th] day of January, 2017 ## J U D G M E N T The petitioner is aggrieved with the fact that the entire amounts due under a contract; which was also undertaken by the Kerala State Electricity Board by a separate communication at Ext.P2 has not been disbursed to the petitioner. The contract is of supply of certain goods to the KSEB which was entered into as early as in 1996-97. The dispute is with respect to the fluctuation of exchange rate on the US dollars for certain goods having been imported from US. Ext.P2 is the communication of the Board, in addition to Ext.P1 agreement, in which it has been stated that the price quoted would be firm in respect of cost of labour and material WPC.No.19391/2005 : 2 : and was variable only with respect to the exchange rate of US dollars with Indian Rupees. 2. The petitioner had supplied goods as per the contract which is confirmed, according to the petitioner, by Ext.P3 dated 30.11..1999. Despite the request made by the petitioner for payment of balance amounts based on the exchange rate variation, the petitioner was issued with Ext.P6 dated 22.08.2001 in which only, Rs.75,92,015/- was paid while the sanction for exchange rate variation amounted to Rs.1,02,84,495/-. The amounts sanctioned are admitted; is the contention raised and hence there could be no dispute in disbursement of the same. 3. The learned Senior Counsel appearing for the respondent Board would contend that the writ petition is not maintainable and in any event, there were defects in the goods supplied which the petitioner did not rectify at the WPC.No.19391/2005 : 3 : appropriate time. The 'ring main units' which were supplied by the petitioner, to be installed in the open; were said to be maintenance free. On installation many defects were noticed and the petitioner did not rectify the same; is the contention. 4. Admittedly, there are factual disputes whether the petitioner had fully executed the contract and had complied with the conditions thereon. In such circumstance, the petitioner ought to have filed a suit and the remedy under Article 226 cannot be invoked. It is also to be noticed that Ext.P6 is an order issued on 22.08.2001. A suit ought to have been filed within three years, on failure of which definitely, the remedy for recovery would have been hit by limitation. The petitioner has invoked the remedy under Article 226 after the WPC.No.19391/2005 : 4 : limitation for initiating a civil dispute. In such circumstance this Court is not inclined to exercise the extra ordinary jurisdiction under Article 226. 5. The petitioner has relied on LIC of India and another v. Consumer Education & Research Centre and others [(1995) 5 SCC 482] to contend that the decision was arbitrary and in such circumstance, the petitioner has a remedy under Article 226 also. There the issue raised was the unconscionable terms of a contract of life insurance, which were also found to be unconstitutional by the Hon'ble Supreme Court. Here there is no such contention taken and the plea if at all could be the absence of fairness in having not paid up the amounts agreed upon. The plea is resisted by the Board on the contention that the goods supplied were WPC.No.19391/2005 : 5 : defective; against the terms of the contract. Such factual disputes ought to have been taken up before the appropriate forum, at the appropriate time. True there could not be any limitation in filing a writ petition but it should be within a reasonable time from issuance of the order itself. The above writ petition has been filed after four years; after the limitation period provided for recovery of money was long over. The remedy under Article 226 also has been found to be not proper to decide upon the questions raised herein too. The writ petition would hence be dismissed declining the equitable extraordinary remedy. No costs. Sd/- jma - (K. VINOD CHANDRAN, JUDGE) - //true copy// P.A to Judge