IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 WA.No. 2166 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN OP.7170/1996 Dated 25/06/2009 .................... APPELLANT(S): PETITIONERS ------------------------- 1. G.RAMESHAN, PROPRIETOR, HOTEL CHOLA INTERNATIONAL, THIRUVANANTHAPURAM. 2. B.RAVEENDRAN, PROPRIETOR, HOTEL CHALUKYA INTERNATIONAL, THIRUVANANTHAPURAM. BY ADV. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW RESPONDENT(S): RESPONDENTS -------------------------- 1. BOARD OF REVENUE (EXCISE), REP.BY THE SECRETARY, BOARD OF REVENUE, THIRUVANANTHAPURAM. 2. THE MANAGING DIRECTOR, KERALA STATE BEVERAGES (M&M) CORPORATION LTD., SASTHA KRIPA OFFICE COMPLEX, SASTHAMANGALAM, THIRUVANANTHAPURAM. 3. THE MANAGER, KALLIPALAM WARE HOUSE, KERALA STATE BEVERAGES (M&M) CORPORATION LTD., KILLIPALAM, THIRUVANANTHAPURAM. GP SHRI.NOBLE MATHEW FOR R1 SHRI.ELVIN PETER FOR R2 SHRI.PIRAPPANCODE V S SREEDHARAN NAIR )( SHRI.PIRAPPANCODE V S SUDHEER )( FOR R3 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ WA No.2166 of 2009 ------------------------------------------------------------------ Dated 5th October 2009 Judgment Balakrishnan Nair, J. The appellants are holders of FL-3 licences. They have to purchase liquor from the Kerala State Beverages (M&M) Corporation Limited. They placed orders for liquor before the said Corporation, on 18th and 19th March 1996. When there was delay from the part of the Corporation in releasing the consignments, the Writ Petition was filed, seeking the following reliefs : “i. issue a writ of mandamus or order or direction to the 3rd respondent to deliver the liquor already purchased by the petitioners as per Exts.P1 and P3 indents without insisting on payment of increased rate of excise duty. ii. declare that there is no further liability on the petitioners to pay duty of excise in respect of the liquor purchased by them on 18th and 19th March 1996”. 2. Pursuant to the interim order passed by this court in the Writ Petition, the consignments of liquor as per the orders placed by the appellants, were released. In the meantime, the rate of excise duty payable on liquor was enhanced and therefore, the appellants had to WA 2166/09 2 make payment of excise duty, at the enhanced rate. The release of consignments was made, subject to furnishing bank guarantee for the difference in price. In the Writ Petition, they pressed only the second prayer, i.e., to declare that there is no further liability on the petitioners to pay excise duty in respect of the liquor purchased by them. The learned Single Judge dismissed the Writ Petition, holding that as the subject matter of the case is a commercial transaction, the Writ Petition was not maintainable and the remedy of the appellants/petitioners was to file a suit for damages. This Writ Appeal is filed, contending that since the Writ Petition was pending before this court for the last 13 years, this court should have decided the matter on merits. In the alternative, this court may pass appropriate orders, so that the bar of limitation may not affect them in moving the civil court, if the Division Bench also finds that their remedy is to move the civil court. 3. Heard both sides. We have no doubt in our mind that the subject matter of the Writ Petition should have been agitated in a properly constituted civil suit. This court cannot judicially review the actions of a dealer in foreign liquor, to ascertain whether the omission of the dealer to release in time the consignments for which WA 2166/09 3 orders were placed earlier, was justified or not. The dispute does not fall within public law domain. So, the Writ Petition should not have been entertained. Further, we notice that on merits also, the appellants do not have any case. If the consignments are released belatedly, the goods would attract excise duty, which is applicable at the relevant time. We find no right in the appellants to claim release of the goods, paying excise duty at the pre-revised rate. In the absence of any legal right concerning the same, they cannot claim any relief from any forum. This court cannot issue any direction to the trial court to ignore the period of limitation. No statutory provision has been brought to our notice, conferring a duty on the civil court to ignore the period of limitation and a legal right on the appellant, to the performance of that duty by the said court. Therefore, the prayer in this regard is unsustainable. In the result, the Writ Appeal fails and it is dismissed. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta WA 2166/09 4 WA 2166/09 5