IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRTY FIRST DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 6771 of 2007 Between: M/s.Klen & Marshalls Manufacturers & Exporters Ltd., having its Branch Office at Flat No.312, 3rd Floor, Amarchand Sharma Complex, 83 & 84, S.P.Road, Secunderabad-500 003, represented by its Authorised Signatory, R.Vijaya Kumar. ..... PETITIONER AND 1 M/s.Eastern Power Distribution Company of Andhra Pradesh Limited (Operation and Maintenance) having their Corporate office at Seethamma Dhara Visakhapatnam represented by Chairman and Managing Director. 2 M/s.Eastern Power Distribution Company of Andhra Pradesh limited, Operation Circle, Eluru, West Godavari District. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to to issue a writ, order or direction, more particularly one in the nature of writ of mandamus declaring the impugned letter No.SE/D/ELR/SAO/AO(E)/AAO/JAO/APS/U1/D.No.212 dated 23-03-2007 of respondents is arbitrary, capricious and illegal and consequently direct the respondents to release the eligible operational lease rental payments to the petitioner for the bills processed and passed by the Second respondent and pass such other order or orders as this Hon'ble Court may deem ﬁt and proper in the circumstances of the case and in the interest of justice. Counsel for the Petitioner:MR.B.CHANDRASEN REDDY Counsel for the Respondent No.: MR.O.MANOHER REDDY WRIT PETITION NO : 12436 of 2008 Between: M/s.Keln & Marshalls Manufacturers & Exporters Ltd., having its Branch office At.Flat No.312, 3rd floor, Amarchand Sharma complex, 83&84, S.P.road Secunderabad-500003, rep.by its Authorised signatory R.Vijaya Kumar ..... PETITIONER AND M/s.Northern Power Distribution Company of Andhra Pradesh Limited, having their corporate office Near REC Petrol Pump, Subedari, Warangal-560010 .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to to issue a writ order or direction more particularly one in the nature of writ of mandamus by declaring the action of the respondent in withholding the monthly operational lease rental payments payable to the petitioner from Februaru 2005- to December 2007 is arbitrary, capricious and illegal by consequential directing the respondent to release the operational lease rental payments to the petitioner for the months from February 2005 to December 2007 and pass Counsel for the Petitioner:MR.B.CHANDRASEN REDDY Counsel for the Respondent No.: MR.O.MANOHER REDDY The Court made the following : THE HON’BLE SRI JUSTICE GODA RAGHURAM W.P.No. 6771 of 2007 And W.P.No. 12436 of 2008 Common Oral Order: The same petitioner has ﬁled these two writ petitions aggrieved (i) in W.P.No. 6771 of 2007 by a letter dated 23- 03-2007 of the 2nd respondent whereby it is stated that the bills received from the Divisional Engineer M & P, Eluru towards lease rental bills of the petitioner are returned by the Corporate Oﬃce, Vishakapatnam on the ground that the payment could not be made as the lessor had neither maintained the Capacitor Banks nor had attended to the rectiﬁcation of defective Capacitor Banks during the period September, 2005 to October, 2006 as revealed in the report dated 10-11-2006 of the Divisional Engineer/M & P, Eluru; and (ii) in W.P.No. 12436 of 2008 seeking a declaration that the action of the respondent in withholding the monthly operational lease rental payments for February, 2005 to December, 2007 is arbitrary, capricious and illegal and for a consequent direction to release these lease rental payments to the petitioner for the said months. The petitioner entered into a contract with the 1st respondent a component of the Andhra Pradesh Transco, for installation, commissioning and maintenance of 11 KV 2 MVAR Capacitor Bank System Units (for short ‘CBSUs’) at various sub-stations in the State of Andha Pradesh. The CBSUs are power saving equipment to arrest voltage ﬂuctuations and reduce transmission losses thereby enabling quality power supply to the end users. There is a dispute between the parties as to the performance under the contract. The petitioner asserts to have duly performed the maintenance obligations during the period September, 2005 to October, 2006. The respondents however take the stand, as is apparent from the letter of the 2nd respondent dated 23-03-2007, that the petitioner failed to maintain the CBSUs and to attend to the rectiﬁcation of the Capacitor Banks, during the period September, 2005 to October, 2006. It would prima facie appear that under the terms of the contract there are no distinct payment schedules speciﬁed separately for installation, commissioning and maintenance. Perhaps they are integrated obligations under the terms of contract or perhaps not. At any rate, the dispute as to the performance or default of the reciprocal obligations under the terms of contract essentially involves disputed questions of fact. The contract between the parties is not a statutory contract covered by statutory terms. The dispute is therefore a post threshold one under a non-statutory instrument, contractual in nature. In view of the decision of the Supreme Court in Radhakrishna Agarwal M/s. v. State of Bihar1 such disputes are more appropriately adjudicated before the arbitral tribunal if there is one or before the Civil Court of competent jurisdiction. It is the conjoint submission of the learned counsel for the petitioner and the learned standing counsel for the respondents that there is no arbitration clause and that therefore the matter must be resolved by the Civil Court of competent jurisdiction in appropriate proceedings. In view of the availability of such alternative and eﬃcacious remedy and since disputed questions of fact are involved and in the context of the non-statutory contractual relationship between the parties, this Court is not inclined to adjudicate upon the matter. The writ petitions are accordingly dismissed with liberty to the petitioner to pursue appropriate alternative remedy before the appropriate forum in accordance with law. No costs. ____________________ GODA RAGHURAM, J Dated: 31-07-2008 pvks 1 AIR 1977 SC 1496