P.S. Koshy (Petitioner) v. The Principal Secretary, Directorate of Industries and Commerce; The Managing Director, Silk Industries Kerala Ltd.; The Manager, Silk Steel Fabrication Unit, Silk Industries Kerala Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 30[TH] DAY OF NOVEMBER 2022 / 9TH AGRAHAYANA,** ## **1944** ## **WP(C) NO. 8681 OF 2022** ## **PETITIONER/S:** P.S.KOSHY AGED 60 YEARS S/O.P.V.SAMUEL, PARTNER, M/S.STRAIGHT LINE ENGINEERING WORKS, RENOSH BHAVAN, KALLIMEL P.O., KALLIMEL MURI, VETTIYAR VILLAGE, MAVELIKARA TALUK, ALAPPUZHA DISTRICT, PIN- 690 509. BY ADV S.K.SAJI ## **RESPONDENT/S:** 1 THE PRINCIPAL SECRETARY DIRECTORATE, OF INDUSTRIES AND COMMERCE, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN - 695 033. 2 THE MANAGING DIRECTOR STEEL INDUSTRIES KERALA LTD., REG. OFFICE AT ATHANI P.O., MULAMKUNNATHUKAVU, TRISSUR, PIN - 680 581. 3 THE MANAGER SILK STEEL FABRICATION UNIT, STEEL INDUSTRIES KERALA LTD., S.N.PURAM, CHERTHALA, ALAPPUZHA DISTRICT, PIN - 688 582. BY ADV LATHA ANAND ## **OTHER PRESENT:** GP AMMINIKUTTY K ; SC T V GEORGE FOR SILK ## **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **26.07.2022, THE COURT ON 30.11.2022 DELIVERED THE FOLLOWING:** W.P.(C) No.8681 of 2022 -2- ## **JUDGMENT** Dated this the 30[th] day of November, 2022 The petitioner's proprietory concern, 'Straight Line Engineering Works', was awarded the work of installation of 1600 ton Sulfuric Acid Storage Tank inside the premises of the Travancore Titanium Products Ltd ('TTPL' for short). The work order was issued on 02.05.2019 by the Steel Industries Kerala Ltd ('SILK' for short). The scope of work included unloading, leading, erection, welding, painting and testing of an acid storage tank. The work was to be completed within three months of the date of award of contract. According to the petitioner, he commenced the work in right earnest, but could not achieve the desired progress due to the recalcitrant attitude of respondents 2 and 3 in supplying materials and in providing support. The petitioner relies on certain e-mail W.P.(C) No.8681 of 2022 -3- communications to contend that, all throughout, he had been requesting to provide timely support. As the requests were not responded to in a positive manner, the time limit for completing the work had to be extended. While so, at the final stage of the work, the contract was unilaterally terminated on 24.01.2020. Out of the contract value of Rs.15,63,050/-, the petitioner was paid only Rs.10,24,787/-. The petitioner claimed the balance amount of Rs.5,38,263/- and an amount of Rs.6,30,300/- towards extra works done. The respondents having failed to pay the amount of Rs.11,68,563/- due to the petitioner, this writ petition is filed seeking the following reliefs; _“a. Issue a writ of mandamus or any other appropriate writ, or order commanding the 1st respondent to re-consider the Exhibit P12 statement and directing the respondents to recalculate the amount payable to the petitioner based on the Exhibit P1 work order and the claim of the_ W.P.(C) No.8681 of 2022 -4- _extra work done by the petitioner and disburse the amount to the petitioner._ _b. Issue such other relief order as the Hon'ble Court deem fit and necessary in the facts and circumstances of the case.”_ 2. Heard Adv.S.K.Saji for the petitioner, Government Pleader Adv.K.Amminikutty for the State and Adv.Latha Anand for respondents 2 and 3. 3. Learned Counsel for the petitioner contended that the work was promptly and efficiently done by the petitioner's team and the delay had occurred due to the irresponsible attitude of respondents 2 and 3. As such, termination of contract is illegal and at any rate, the respondents are bound to pay the amount for the works already executed. 4. Learned Standing Counsel for respondents 1 and 2 raised a preliminary objection regarding maintainability of the writ petition by contending that the dispute being contractual in W.P.(C) No.8681 of 2022 -5- nature, cannot be decided in a writ petition under Article 226. In support of the contention, reliance is placed on the decisions in _**Kerala State Electricity Board and others v. Kurien E.Kalathil and others [(2000) 6 SCC 293], State of Bihar and others v. Jain Plastics and Chemicals Ltd [(2002) 1 SCC 216]** and_ _**State of Kerala and others v. M.K.Jose [(2015) 9 SCC 433]**_ . It is argued that as no public law element is involved, the writ petition ought to have been dismissed _in limine_ and the petitioner relegated to the civil court. On merits, it is submitted that the work should have been completed by 02.08.2019, but the petitioner's team abandoned the work mid-way and the work was delayed inordinately. In spite of latches on the part of petitioner and his workers, the SILK extended the period of contract up to 31.10.2019 and thereafter, up to 12.12.2019. As the petitioner failed to complete ## W.P.(C) No.8681 of 2022 -6- the work even within the extended period, the SILK was compelled to terminate the contract on 24.01.2020. All throughout the SILK was having a very cordial relationship with TTPL. Unfortunately, after entrusting the petitioner with the construction work of the sulfuric tank, relationship between the SILK and the TTPL became strained. The breach of contract by the petitioner, resulted in the TTPL recovering of Rs.6,11,283/- from the SILK. After termination of petitioner's contract, the SILK completed the work by 15.02.2020 and handed over the site to TTPL. As per the SILK's account an amount of Rs.3,59,938/- is due to it from the petitioner. The following statement of accounts is referred to in support of the claim; |Sl.<br>No.|Item|Amount<br>(Rs.)| |---|---|---| |1|Total amount paid to the petitioner|14,77,114/-| |2|Value of work not done by the<br>petitioner|1,15,940/-| |3|Amount deducted from SILK by TTPL<br>(LD)|6,11,283/-| W.P.(C) No.8681 of 2022 -7- |4|**Total**|**22,04,337/-**| |---|---|---| |5|Total contract value inclusive of<br>GST|18,44,399/-| |6|Total amount payable by the<br>petitioner to SILK (4-5)|3,59,938/-| 5. Learned Government Pleader reiterated the contention as to maintainability of the writ petition advanced by the Standing Counsel for respondents 2 and 3. 6. Replying to the contention on maintainability, learned Counsel for the petitioner contended that the rule of exclusion of writ jurisdiction by reason of availability of alternative remedy is only a rule of discretion. If the State or its instrumentality acts contrary to unfairly, unjustly, unreasonably, and in violation of Article 14 of the Constitution of India in its contractual or statutory obligation and if such action is against public interest, a petition would be maintainable. The decisions in _**Zonal Manager, Central Bank of India v. Devi**_ W.P.(C) No.8681 of 2022 -8- _**Ispat Ltd and others [(2010) 11 SCC 186]** and_ _**Harbanslal Sahnia and another v. Indian Oil**_ ## _**Corporation Limited and others [(2003) 2 SCC 107]**_ are cited in support of the contention. 7. From the arguments advanced, what emerges is a dispute between the parties as to who is at fault and what exactly is the amount payable under the contract. The dispute is therefore entirely based on the agreement executed between the parties. It is settled law that, as far as contractual disputes are concerned, the remedy of the aggrieved person to approach the civil court or other appropriate forum. The legal position has been succinctly laid down by the Apex Court in _**Jain Plastics and Chemicals Ltd** (supra),_ the relevant portion of which is extracted hereunder; _“7. In our view, it is apparent that the order passed by the High Court is on the face of it illegal and erroneous. It is true that many matters could be decided after_ -9- ## W.P.(C) No.8681 of 2022 _referring to the contentions raised in the affidavits and counter-affidavits, but that would hardly be ground for exercise of extraordinary jurisdiction under Article 226 of the Constitution in case of alleged breach of contract. 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 t 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 an properly instituted civil suit rather than by a Court exercising prerogative of issuing writs.”_ I am unable to accept the contention that this writ petition is maintainable despite the availability of alternative remedy. Even going by the decisions relied on by the learned Counsel for the petitioner, the alternative remedy can be bypassed only if the State's act is contrary to public good, public interest or is unfair, unjust, unreasonable or discriminatory. In the ## W.P.(C) No.8681 of 2022 -10- instant case, there is no material to show that the respondents have acted in an unjust or unreasonable manner or in violation of the principles of natural justice. As such, the petitioner's remedy is to seek relief before the competent civil court. For the aforementioned reasons, the writ petition is dismissed. Sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) No.8681 of 2022 -11- ## **APPENDIX OF WP(C) 8681/2022** PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF THE WORK ORDER DATED| |---|---| ||02/05/2019.| |Exhibit P2|TRUE COPY OF THE COMPUTER-GENERATED| ||PRINTOUT OF E-MAIL MESSAGE DATED| ||26/05/2019 BY THE PETITIONER.| |Exhibit P3|TRUE COPY OF THE COMPUTER-GENERATED| ||PRINTOUT OF E-MAIL MESSAGE WITH PHOTO| ||EVIDENCE BY THE PETITIONER DATED| ||01/06/2019.| |Exhibit P4|TRUE COPY OF THE COMPUTER-GENERATED| ||PRINTOUT OF E-MAIL MESSAGE DATED| ||07/06/2019 BY THE PETITIONER.| |Exhibit P5|TRUE COPY OF THE COMPUTER-GENERATED| ||PRINTOUT OF E-MAIL MESSAGE DATED| ||13/08/2019 BY THE PETITIONER.| |Exhibit P6|TRUE COPY OF COMPUTER-GENERATED| ||PRINTOUT OF E-MAIL MESSAGE DATED| ||21/10/2019 BY THE PETITIONER.| |Exhibit P7|TRUE COPY OF THE COMPUTER-GENERATED| ||PRINTOUT OF E-MAIL MESSAGE BY THE 2ND| ||AND 3RD RESPONDENTS DATED 14/01/2020.| |Exhibit P8|TRUE COPY OF THE COMPUTER-GENERATED| ||PRINTOUT OF E-MAIL MESSAGE BY THE 2ND| ||AND 3RD RESPONDENTS DATED 15/01/2020.| |Exhibit P9|TRUE COPY OF THE COMPUTER-GENERATED| ||PRINTOUT OF E-MAIL MESSAGE BY THE| ||PETITIONER DATED 24/01/2020.| |Exhibit P10|TRUE COPY OF THE COMPUTER-GENERATED| ||PRINTOUT OF E-MAIL MESSAGE BY THE 2ND| ||AND 3RD RESPONDENTS DATED 24/01/2020.| |Exhibit P11|TRUE COPY OF THE COMPUTER- PRINTOUT OF| ||E-MAIL MESSAGE BY THE 2ND AND 3RD| ||RESPONDENTS DATED 28/01/2020.| |Exhibit P12|TRUE COPY OF STATEMENT BY THE| ||PETITIONER BEFORE THE 1ST RESPONDENT| ||ON 03/09/2021.|