SP SUGAR AND AGRO PVT. LTD. v. TRAVANCORE DEVASWOM BOARD & OTHERS

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 22ND DAY OF NOVEMBER 2019 / 1ST AGRAHAYANA, 1941** ## **WP(C).No.30145 OF 2019(P)** ## **PETITIONER:** **SP SUGAR AND AGRO PVT. LTD., K.TADWALE, TALUKA AND DISTRICT OSMANABAD, MAHARASHTRA, INDIA-413405, REPRESENTED BY ITS MANAGING DIRECTOR, SAMEER PATIL, AGED 27 YEARS, S/O. SURESH PATIL.** ## **BY ADV. SRI.PEEYUS A.KOTTAM** ## **RESPONDENTS:** - **1 THE SECRETARY, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, TRIVANDRUM-695033.** - **2 THE DEVASOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, TRIVANDRUM-695033.** - **3 THE EXEUCUTIVE OFFICER, SABARIMALA DEVASWOM, TRAVANCORE DEVASWOM BOARD, PAMPA, PIN-689662.** - **4 M/S. VARDHAN AGRO PROCESSING LTD, REGD.OFFICE 1049 DATTA CHOUK, PUSEAWALI, TAL-KHATAV, DIST.SATARA, PIN-415512.** **R1 BY SRI.S.RAJMOHAN, SC, TDB** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.30145 OF 2019(P)** 2 ## **JUDGMENT** **Dated this the 22nd day of November 2019** ## Ravikumar, J The petitioner is a company in respect of whom the contract for supplying Jaggery powder to Travancore Devaswom Board at Pampa for the year 2018-2019 (to be precise from 01.10.2018 to 30.09.2019) was finalised. Going by the agreement the petitioner was to supply 40 lakhs kilograms of Jaggery powder within the contract period. Ext.P1 is the agreement executed in that regard on 04.10.2018. Going by the agreement the aforesaid quantity of Jaggery powder is to be supplied within the contract period, at the rate of Rs.25.90 per kilogram. Since the petitioner could not supply 12,22,289 kilograms out of the agreed quantity within the contract period the respondents initiated appropriate action. They have initiated action to invoke Ext.P11 bank guarantee. It is in the said circumstances that the captioned writ petition has been filed seeking the following reliefs:- “i) Issue a writ of mandamus or any other appropriate writ, **WP(C).No.30145 OF 2019(P)** 3 order or direction and thereby command the respondents to consider petitioner's Ext.P10 letter and take a favourable decision in favour of the petitioner considering the real and true fact narrated in the writ petition and in the representation ii) Issue a writ of mandamus or any other appropriate writ, order or direction and thereby command the 2[nd] respondent not to invoke Ext.P11 bank guarantee before taking a decision on Ext.P8 and P10 pending before the Devaswom Board iii) Issue a writ of mandamus or any other appropriate writ, order or direction and thereby command the Devaswom Board to relieve the petitioner since his contract period has already expired on 30.09.2019 and also holding that there is no latches or negligence on the side of the petitioner for the non-supply of jaggery powder during the time slot given by the Devaswom Board in the month of August and September and also direct the petitioner to release his bank guarantee without delay” 2. In regard to the basic facts there is no dispute. The execution of Ext.P1 agreement and the fact that the petitioner was having the liability to supply 40 lakhs kilograms of Jaggery powder, within the contract period, on or before 30.09.2019 are not in dispute. The fact that within the contract period the petitioner could not supply 12,22,289 kilograms of Jaggery powder is also not in dispute. The petitioner submitted Ext.P10 representation explaining the delay and the circumstances **WP(C).No.30145 OF 2019(P)** 4 which made it impossible for the company to supply the entire quantity of Jaggery powder in terms of Ext.P1 contract. It is also stated therein that there was no absolute laches or negligence on the side of the petitioner and requested the Board to relieve the company from all liabilities and also to release the bank guarantee to enable the petitioner to clear liability to the bank. As noticed hereinbefore, in view of the breach of contract the respondent initiated action to invoke the bank guarantee. 3. The pleadings in the writ petition would reveal that the petitioner assigned various reasons that made it impossible for him to comply with the conditions in Ext.P1 agreement, in other words, to fulfill his liability to supply the entire quantity of Jaggery powder in terms of Ext.P1. The subsequent developments pursuant to a concluded contract cannot be a reason for one of the parties to wriggle out the liability arising out of the concluded contract. This position was settled by the Hon'ble Apex Court in the decision in **Travancore Devaswom Board v. Thanath International** reported in (2004)13 Supreme Court Cases 44. In the said circumstances, **WP(C).No.30145 OF 2019(P)** 5 whatever be the reasons assigned by the petitioner to explain the circumstances that made it impossible for him to comply with the conditions once the petitioner admits the existence of the concluded contract viz., Ext.P1 and also his liability arising out of the said contract to supply 40 lakhs kilograms of Jaggery powder within the contract period and when once it is evident that he could not perform his part based on the said concluded contract, we do not think that an interference with the action initiated by the respondents based on the breach of contract is permissible. In the light of the decision cited (supra) the respondents have initiated further action in accordance with law. Even then, when the matter is taken up for consideration, showing some indulgence the respondents submitted that they would withhold the proceedings to invoke the bank guarantee in case the petitioner supplies the remaining quantity of Jaggery powder viz., 12,22,289 kilograms in terms of expiry of the following schedule:- The following time schedule may be allowed to M/s.S.P.Sugar and Agro Pvt. Ltd, K.Tadwala, Taluk & District, Osamanabad, Maharashtra-413405 to perform the balance supply of jaggery powder of 12,22,289 **WP(C).No.30145 OF 2019(P)** 6 ## kilograms at Pampa. On or before 27.11.2019 3,00,000 Kg “ 05.12.2019 3,00,000 Kg “ 15.12.2019 3,22,289 Kg '' 20.12.2019 3,00,000 Kg The above supply should be completed with utmost priority in timing. Besides, these time schedule have to be finalized after consulting the Hon'ble Devaswom Commissioner, Travancore Devaswom Board.” 4. Heard Sri.Hrithwik D. Namboothiri, the learned counsel representing the learned counsel for the petitioner and the learned standing counsel for the Travancore Devaswom Board. 5. The learned counsel Sri.Hrithwik D. Namboothiri sought for adjournment. It is to be noted that on four occasions this Court granted adjournment in the matter and hence, we are not inclined to adjourn the matter. 6. The learned counsel appearing for the TDB submitted that the bank guarantee would expire on 28.12.2019 and rescheduling as noticed hereinbefore was done only to enable the petitioner to supply the materials before the expiry of the period of bank guarantee. Taking note of all such circumstances we are inclined to proceed with consideration of **WP(C).No.30145 OF 2019(P)** 7 the writ petition on merits. On seeing the re-schedule, noted hereinbefore, we have not doubt that, it is impossible to start supply of Jaggery powder from 20.11.2019. We have already found, in the light of the decision in **Thanath International** case (supra), that the petitioner cannot wriggle out his liability under the contract. The learned standing counsel suggested fairly that it can be rescheduled to make the petitioner supply the remaining quantity of Jaggery powder prior to the expiry of Ext.P11 bank guarantee. It is further submitted that in case the petitioner fails to effect supply of the Jaggery powder in terms of the reschedule, liberty may be granted to the TDB to take appropriate action as originally proposed, in terms of the agreement. 7. In the said circumstances this writ petition is disposed of on the following lines:- The petitioner viz., the M/s.SP Sugar & Agro Pvt. Ltd. represented by its Managing Partner Sameer Patil is permitted to supply balance Jaggery powder of 12,22,289 kilograms at Pampa on or before 20.12.2019 by following the undermentioned time schedule:- **WP(C).No.30145 OF 2019(P)** 8 On or before 05.12.2019 - 3,00,000 Kg “ 15.12.2019 - 3,00,000 Kg '' 20.12.2019 - 3,22,000 Kg “ 25.12.2019 - 3,00,000 Kg It is made clear that in case of failure on the part of the petitioner to supply the balance Jaggery powder, in terms of the above schedule, it will be open to the respondents to invoke the bank guarantee as proposed and also to take appropriate action for breach of contract in accordance with law. In case the petitioner is proposing to avail the liberty granted and to supply the balance Jaggery powder before effecting actual supply on any of the days the petitioner shall give advance intimation to the respondents therefor. **Sd/C.T.RAVIKUMAR JUDGE Sd/N.NAGARESH** dlk/23.11.19 **JUDGE** **WP(C).No.30145 OF 2019(P)** 9 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN THE PETITIONER AND TRAVANCORE DEVASWOM BOARD DATED 04.10.2018.** - **EXHIBIT P2 THE TRUE COPY OF THE LETTER DATED 09.08.2019 SENT BY THE PETITIONER TO THE EXECUTIVE OFFICER THROUGH MAIL DATED 10.08.2019.** - **EXHIBIT P3 THE TRUE COPY OF THE E-MAIL LETTER SENT BY THE PETITIONER TO THE EXECUTIVE OFFICER, SABARIMALA ON 13.09.2019.** - **EXHIBIT P4 TRUE COPY OF THE WHATSAPP MESSAGE SENT BY THE PETITIONER TO MR. RAJENDRA PRASAD TO HIS MOBILE PHONE NO. 9495315998.** - **EXHIBIT P5 THE TRUE COPY OF THE NEWS REPORTED IN MALAYALA MANORAMA DAILY, ERNAKULAM EDITION DATED 21.09.2019 PERTAINING TO THE LABOUR DISPUTE AT PAMPA AND SANNIDHANAM (WITH ENGLISH TRANSLATION)** - **EXHIBIT P6 THE TRUE COPY OF THE LETTER SENT BY THE TRAVANCORE DEVASWOM BOARD TO THE PETITIONER DATED 26.09.2019.** - **EXHIBIT P7 THE TRUE COPY OF THE REPLY SENT BY THE PETITIONER DATED 27.09.2019 TO THE DEVASWOM COMMISSIONER.** - **EXHIBIT P8 THE TRUE COPY OF THE LETTER DATED 23.10.2019 SENT BY THE PETITIONER TO THE 2ND RESPONDENT THROUGH THE PETITIONERS MAIL.** - **EXHIBIT P9 THE TRUE COPY OF THE LETTER DATED 30.10.2019 SENT BY THE BANK TO THE PETITIONER.** - **EXHIBIT P10 THE TRUE COPY OF THE LETTER DATED 01.11.2019 ISSUED BY THE PETITIONER TO THE BOARD.** - **EXHIBIT P11 TRUE COPY OF THE BANK GUARANTEE DATED** **WP(C).No.30145 OF 2019(P)** 10 **29.09.2018 EXECUTED BY THE PETITIONER WITH BOARD,** **EXHIBIT P12 TRUE COPY OF THE SUPPLY ORDER ISSUED BY THE EXECUTIVE OFFICER DATED 26.07.2019. EXHIBIT P13 TRUE COPY OF THE SUPPLY ORDER DATED 06.11.2018.**