IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 6TH MARCH 2009 / 15TH PHALGUNA 1930 WP(C).No. 34540 of 2008(J) -------------------------------- PETITIONER(S): ------------------ M/S. APAR INDUSTRIES LTD., 301, PANORAMA COMPLEX, R.C CUTT ROAD, BADODARA-390007 REP. BY SRI.S.K. AGARWAL, SENIOR DEPUTY GENERAL MANAGER, (IA & CC). BY ADV. SRI.SAJEEV KUMAR GOPAL RESPONDENT(S): ------------------- 1. THE SECRETARY TO THE GOVERNMENT, POWER DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. KERALA STATE ELECTRICITY BOARD, REP. BY SECRETARY TO THE GOVERNMENT, POWER DEPARTMENT, SECRETARIAT, TRIVANDRUM. 3. THE CHIEF ENGINEER (TRANSMISSION), NORTH, K.S.E.B, VYDYUTHI BHAVAN, GANDHI ROAD, CALICUT. ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R2 TO 3 GOVT.PLEADER SRI.P.N.SANTHOSH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ============== W.P.(C) NO. 34540 OF 2008 (J) ==================== Dated this the 6th day of March, 2009 J U D G M E N T The prayer sought in this writ petition is to direct the respondents to reconsider Exts.P1 to P4 representations submitted by the petitioner seeking extension of time and waiver of liquidated damages and to release the amount retained by the Board for the supply of ACSR dog conductors manufactured by the petitioner. 2. A reading of the writ petition shows that the petitioner had supplied 625 kms of ACSR cables to the Kerala State Electricity Board. According to the Board, breach of contract was committed resulting in recovery of amounts towards liquidated damages as well as the performance guarantee furnished by the petitioner. Petitioner sought release of these two amounts by fling Exts.P1 to P4 and this was rejected by the Board as per Ext.P5 order dated 10/11/2006. It is in these circumstances, at this belated stage, this writ petition has been filed and that too without a prayer to quash Ext.P5, but seeking reconsideration of Exts.P1 to P4. WPC 34540/08 :2 : 3. Counsel for the petitioner contends that reasons for the delay in effecting supply in terms of the purchase order were attributable to the Board only. It is also argued that by Ext.P6, waiver was allowed in respect of another supplier. Counsel also makes reference to Ext.P7 judgment where the Chairman of the Board was appointed as Arbitrator to resolve a dispute with a supplier, which according to the petitioner, is identical in nature. 4. In so far as Ext.P6 is concerned, a reading of this document itself shows that there is a finding that extension of time for delivery was granted and that is stated to be the reason for waiving liquidated damages. There has not been any extension in the case of the petitioner and therefore the petitioner's case prima facie is not comparable with the case dealt with in Ext.P6. 5. In so far as Ext.P7 judgment is concerned, petitioner has no case that the contract they entered into with the Board has a clause providing for resolution of disputes by arbitration. It is the settled position of law that in the absence of an agreement for arbitration, one of the parties cannot insist that the dispute should be resolved by arbitration and that in such a case, court cannot WPC 34540/08 :3 : appoint an arbitrator. Similarly, the plea that reasons for delay, are attributable to the Board is a matter which can be established only in a civil suit. 6. In any case, this being an issue arising under a contract, I do not think that this Court can resolve the disputed questions of fact involved and order release of the liquidated damages and the performance guarantee amount. In my view, if at all, the petitioner is aggrieved, the remedy lies in approaching the Civil Court and therefore, without expressing anything on the merits of the controversy, the writ petition is dismissed. ANTONY DOMINIC, JUDGE Rp