Soman Kuruvath v. State of Kerala, Guruvayoor Devaswom Managing Committee and Administrator, Guruvayoor Devaswom Managing Committee

## **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 31[ST] DAY OF MAY 2022 / 10TH JYAISHTA, 1944** **WP(C) NO. 2745 OF 2022** ## **PETITIONER:** **SOMAN KURUVATH AGED 58 YEARS S/O.SIDHARTHAN, RESIDING IN THE ADDRESS KURUVATH HOUSE, NEAR RAILWAY STATION, WEST CHALAKUDY, CHALAKUDY P.O., THRISSUR DISTRICT, PIN - 680 307.** **BY ADV G.SREEKUMAR (CHELUR)** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REP. BY THE SECRETARY TO THE GOVERNMENT, DEVASWOM DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM P.O., THIRUVANANTHAPURAM DISTRICT - 695 001.** - **2 THE GURUVAYOOR DEVASWOM MANAGING COMMITTEE REPRESENTED BY ITS ADMINISTRATOR, GURUVAYOOR DEVASWOM MANAGING COMMITTEE OFFICE, GURUVAYOOR P.O., GURUVAYOOR SREEKRISHNA TEMPLE, THRISSUR DISTRICT - 680 301.** - **3 ADMINISTRATOR GURUVAYOOR DEVASWOM MANAGING COMMITTEE, GURUVAYOOR P.O., GURUVAYOOR SREEKRISHNA TEMPLE, THRISSUR DISTRICT - 680 301.** - **BY ADV SHRI.T.K.VIPINDAS, SC, GURUVAYUR DEVASWOM BOARD** ## **SRI S.RAJMOHAN - SR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.2745 of 2022 2 ## **JUDGMENT** ## **Anil K. Narendran, J** . The petitioner is stated to be the Proprietor of M/s.Som Tech Computers. The said firm had entered into a contract with the Guruvayur Devaswom Board for annual maintenance of computers, UPS, printers, etc. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2[nd] respondent Guruvayur Devaswom Managing Committee to take note of Exts.P3 and P4, and to pay the amounts due to the petitioner after settling the accounts in a time bound manner. The document marked as Ext.P3 is a bill dated 22.01.2018 raised by the said firm for a sum of Rs.1,42,100/- and Ext.P4 is a representation dated 04.04.2019. 2. On 27.01.2022, when this writ petition came up for admission, it was noticed that the relief sought for in this writ petition is one in respect of an annual maintenance of contracts for a period of one year. The period of the said contract expired on 21.02.2014, 14.06.2014 and 18.08.2014, respectively. 3. Respondents 2 and 3 have filed a counter affidavit W.P.(C)No.2745 of 2022 3 dated 14.03.2022, opposing the relief sought for in this writ petition. In the counter affidavit, it is stated that, the Guruvayur Devaswom English Medium School is owned by the Guruvayur Devaswom. The petitioner has filed the writ petition demanding payment of the contract amount for the annual maintenance of computers and other connected accessories for the period of 01.08.2013 to 31.07.2014. The writ petition is not maintainable since none of the fundamental rights guaranteed to the petitioners under the Constitution of India have been infringed. The dispute raised in the writ petition is purely civil in nature, which cannot be adjudicated in a writ petition filed under Article 226 of the Constitution of India. Paragraphs 4 to 6 of the counter affidavit read thus; “4. It is submitted that as per Ext.P1 proceedings, the work order has been issued to the petitioner for the annual maintenance of computers and other connected accessories. Pursuant to Ext.P1, an agreement has been executed between the petitioner and this respondent. The total contracted amount is Rs.1,48,100/-. It is submitted that as per the agreement the petitioner was bound to solve all technical issues relating to the computers, server and other connected accessories. The petitioner failed to do his duty as per the norms of the conditions in tender notice. The IBM sever was not W.P.(C)No.2745 of 2022 4 functioning for 7 months and the said facts has been intimated to the petitioner as a contractor and his employees reported that it was due to some defaults in SMPS of server. However, this was not rectified by the petitioner or his employees. On several occasions the petitioner intimated that it would be rectified, but the petitioner was unable to restore the server. This fact has been intimated by the Deputy System Administrator to the Expert Committee. The true copy of the report of Deputy System Administrator to the Expert Committee is produced herewith and marked as Exhibit R2(a). The expert committee has discussed and decided to issue notice to the petitioner and decided to black list the petitioner. The truce copy o the proceedings of expert committee dated 23.07.2017 in EDP 1277/12 is produced herewith and marked as Exhibit R2(b). 5. It is submitted that Ext.P2 final bill has been submitted before this respondent in 2018. It was found to be a time barred claim since the contract period was from 01.08.2013 to 31.07.2014. The petitioner ought to have submitted the bill in time. This respondent has disbursed the earnest money deposit and security charge to the petitioner and the same has been acknowledged by the petitioner also. True copy of the receipt issued by the petitioner after receiving the earnest money deposit dated 28.06.2016 is produced herewith and marked as Exhibit R2(c). 6. The petitioner is not entitled to any of the reliefs claimed in the writ petition. The writ petition is devoid of any merit and is liable to be dismissed. The contentions W.P.(C)No.2745 of 2022 5 raised are totally untenable in the eye of law and hence liable to be dismissed.” (underline supplied) 4. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for the 1[st] respondent and also the learned Standing Counsel for Guruvayoor Devaswom Managing Committee for respondents 2 and 3. 5. The issue involved in this writ petition is covered against the petitioner by the judgment of the Apex Court in **State of Kerala v. M.K. Jose [(2015) 9 SCC 433]** . 6. In **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]** , 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. 7. 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** W.P.(C)No.2745 of 2022 6 **Committee, Bhatinda [(1969) 3 SCC 769]** and **Century Spinning and Manufacturing Company Ltd. v. Ulhasnagar** **Municipal Council [(1970) 1 SCC 582]** 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. 8. 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 W.P.(C)No.2745 of 2022 7 observed that, the procedure adopted by the High Court is quite unknown to exercise of powers under Article 226 in a contractual matter. Accordingly, the plaintiff filed O.S.No.18 of 2018 before the Sub Court, Hosdurg seeking the aforesaid reliefs. 9. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that this writ petition cannot be entertained under Article 226 of the Constitution of India, since the issue raised is breach of contract involving disputed questions of fact. In the result, this writ petition fails on the ground of maintainability and the same is accordingly dismissed. Sd/- **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR** **JUDGE** **yd** W.P.(C)No.2745 of 2022 8 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **Exhibit P1** **A TRUE COPY OF THE COMMUNICATION BY THE 2ND RESPONDENT DATED 24/7/13.** **Exhibit P2 A TRUE COPY OF THE COMMUNICATION BY THE PETITIONER TO THE SECOND RESPONDENT DATED 1/8/13.** **Exhibit P3 A TRUE COPY OF THE BILL RAISED BY THE PETITIONER DATED 22/1/18.** **Exhibit P4 A TRUE COPY OF THE REPRESENTATION OF THE PETITIONER DATED 4/4/19.** **RESPONDENT EXHIBITS** **Exhibit R2(A) TRUE COPY OF THE REPORT OF THE DEPUTY SYSTEM ADMINISTRATOR TO THE EXPERT COMMITTEE Exhibit R2(B) TRUE COPY OF THE PROCEEDINGS OF THE EXPERT COMMITTEE DATED 18/07/2017 IN EDP 1277/2012** **Exhibit R2(C) TRUE COPY OF THE RECEIPT ISSUED BY THE PETITIONER AFTER RECEIVING THE EARNEST MONEY DEPOSIT DATED 28/06/2016** **TRUE COPY** **P.A. TO JUDGE**