IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930 WP(C).No. 29735 of 2007(M) -------------------------- EP.21/2006 of II ADDL. DISTRICT COURT, KOLLAM .................... PETITIONER: ------------ A.K.RAJAN, ALUVILLA HOUSE, PERINAD, KOLLAM. BY ADV. SRI.ANIL XAVIER SRI.M.RISHIKESH SHENOY RESPONDENT: ------------- DEPUTY GENERAL MANAGER, TELECOM DISTRICT, BHARAT SANCHAR NIGAM LIMITED, KOTTAYAM. BY ADV. SRI.C.S.RAMANATHAN, SC, BSNL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO 29735/07 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. COPY OF THE AWARD DT. 19.7.97 PASSED BY THE ARBITRATOR EXT.P2. COPY OF THE SUMMONS DT. 4.5.07 EXT.P3. COPY OF THE EXECUTION PETITION FILED BY THE RESPONDENT EXT.P4. COPY OF THE OBJECTION DT. 28.9.07 FILED BY THE PETITIONER RESPONDENT'S EXHIBITS: EXT.R1(A). COPY OF THE AGREEMENT BETWEEN THE COMPANY AND THE RESPONDENT /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 29735 OF 2007 --------------------- Dated this the 25th day of March, 2008 JUDGMENT This writ petition is filed with a prayer to quash Ext.P3 execution proceedings in EP 21/06 on the file of the District Court-II, Kollam. 2. The respondent entered appearance through the learned Standing Counsel. What is put into execution can be found from the copy of the execution petition filed by the party. It is stated that “ the contractor is liable to pay the penalty claimed by the Department and the Department will take necessary legal action to realise the amount.” A copy of the award passed by the arbitrator is also made available before me. In Para.17 of the award the learned arbitrator agrees with the submission of the contractor that it is not a matter to be determined by arbitration and holds that if the Department finds the contractor not fulfilling his obligations as per the terms and conditions of the contract the remedy open to the Department is to initiate legal proceedings to realise the amount due to the Department from the contractor. WPC NO 29735/07 2 3. At the most what the arbitrator has done is an advisory jurisdiction whereby he has directed the Department to initiate legal proceedings. Initiation of legal proceedings does not mean that they can arbitrarily fix the amount and lay an application for execution. Initiation of legal proceedings means to take action to fix the amount in accordance with law and after obtaining the decree to execute the same. Therefore, I am in full agreement with the contention of the writ petitioner and hold that there is no executable decree in this matter. Therefore the execution petition has to be dismissed and I do so. It is made clear that the Department can initiate action for fixing the amount in accordance with law. M.N.KRISHNAN, JUDGE vps WPC NO 29735/07 3 WPC NO 29735/07 4