IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 16TH DECEMBER 2008 / 25TH AGRAHAYANA 1930 WP(C).No. 34079 of 2008(F) -------------------------- PETITIONER: --------------- S.CHENTAMARAI, PROPRIETOR, SABARI ELECTRIC COMPANY, ELECTRICAL ENGINEERS & CONTRACTORS, 42, CHINMAYA MISSION ROAD,INDIRANAGAR IIND STATE, BANGALORE- 560 038 REPRESENTED BY POWER OF ATTORNEY HOLDER P.B.C.THAMARA. BY ADV. SRI.K.JAGADEESCHANDRAN NAIR SMT.DIVYA C BALAN RESPONDENTS: --------------------- 1. THE CHIEF ENGINEER BSNL ELECTRICAL DIVISION, BSNL ELECTRICAL CIRCLE, THIRUVANANTHAPURAM. 2. SUPERINTENDING ENGINEER (E),BSNL ELECTRICAL CIRCLE, THIRUVANANTHAPURAM. 3. THE EXECUTIV ENGINEER, BSNL ELECTRICAL DIVISION, 3RD FLOOR, BSNL BHAVAN, SOUTH BAZAR, KANNUR. 4. THE SUB DIVISIONAL ENGINEER (E)BSNL ELECTRICAL SUB DIVISION-II, KANNUR. ADV. SRI.C.M.SURESH BABU,SC,B.S.N.LTD. FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI,J. ------------------------- W.P ( C) No. 34079 of 2008 -------------------------- Dated this the 16th December, 2008 J U D G M E N T Petitioner, a qualified electrical contractor, was awarded the work of SITC of 100 KVA Plinth mounted Outdoor Substation at TE Iritty, SH ITC of Sub Station and balance works for the BSNL. According to the petitioner, there was delay in handling over the site and this resulted in delay in commencement of the work. There was further delay in approval of drawings. This also contributed to the delay in the completion of work. Petitioner submits that 95% of the work was over by 11.11.2008 when he was served with Exhibit P4 termination order. This has been challenged in this writ petition. 2. On instructions, a statement has been filed by respondents and they have taken up the stand that 95% of the work has not been completed. They also submit that there is an arbitration clause in the agreement referred to in Exhibit-P2. 3. I heard Sri.K.Jagadeesachandran Nair, learned counsel for the petitioner and Sri.C.M.Suresh Babu, learned W.P ( C) No. 34079 of 2008 2 standing counsel for the BSNL. 4. There is a serious dispute as to whether the petitioner is in breach for not having completed the work within the stipulated time. In my view, since several disputed question of fact are involved, proceedings under Article 226 of the Constitution of India are not appropriate for adjudication of the dispute. 5. Sri.Jagadeesachandran Nair submits that the petitioner is ready to complete the remaining work on the premise that 95% of the work has been completed. He refers to the fact that the remaining work has been re-tendered for an amount that is much higher than what would be required if he is permitted to complete the same. Obviously this might be a factor that could be pleaded by the petitioner, if the BSNL proposes to mulct him with any damages on a later occasion. But it is not possible for this Court to decide the question as to the quantum of the work remaining to be done. 6. I take note of the existence of an arbitration clause and it is therefore open to the petitioner to seek an arbitration of the dispute. It is up to the petitioner to avail W.P ( C) No. 34079 of 2008 3 his remedies. 7. For all these reasons, I decline jurisdiction on the ground that there is a remedy available to the petitioner either to move the Civil Court or an arbitration of the dispute raised by him as regards the alleged illegality of the termination and refusal on the part of the authorities to permit him to complete the remaining part of the work. Since the arbitration clause refers to a named Arbitrator namely the Chief Engineer of the BSNL, if the petitioner moves for appointment of an Arbitrator within one month from today, the Arbitrator shall complete the proceedings and pass an award within six months from the date of filing the claim petition. It is open to the BSNL to move for extension of the power allocation order. If an application is made, the official of the Kerala State Electricity Board shall definitely take note of the dispute raised herein and grant a suitable extension of time. Writ petition is disposed of as above. (V.GIRI,JUDGE) ma W.P ( C) No. 34079 of 2008 4 W.P ( C) No. 34079 of 2008 5