IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FOURTEENTH DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 20791 of 2008 Between: M/s. Avenir Power Technologies Pvt. Ltd. Represented by its Managing Director Mr.P.Srinivas S/o. P.Vijay Kumar Resident of G3, Samata Nilayam, Plot No.82, Srinagar Colony, Hyderabad-73. ..... PETITIONER AND 1 The Chairman and Managing Director, Northern Power Distribution Company, Hanumakonda, Warangal District. 2 Northern Power Distribution Company of A.P. Ltd. (APNPDCL) Warangal, represented by its Chief General Manager, (P&MM), Door No. 1-1-504, Opp: REC Petrol bunk, Chaitanyapuri, Hanumakonda, Warangal - 506 004. .....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 writ or direction more particularly one in the nature of Writ of Mandamus declaring the action of the Respondents in not issuing dispatch instructions for receiving 65 thousand meters and as wholly arbitrary, illegal, and void and pass such other or further orders. Counsel for the Petitioner:MRS.K.LALITHA Counsel for the Respondent No.: O.MANOHAR REDDY(SC FOR APTRANSCO) The Court made the following : THE HON’BLE MS JUSTICE G.ROHINI W. P.No.20791 of 2008 ORDER The petitioner claims to be a registered supplier of meters with the Northern Power Distribution Company of Andhra Pradesh Limited which has been supplying meters to the respondents as per the orders issued from time to time. The 1st respondent by proceedings dated.03-03-2005 placed orders on the petitioner for procurement of 5 lakhs single phase electronic energy meters (5-20A) of Class 1.0 accuracy with pilfer proof box against speciﬁcation No.OT-202/04-05. It is not in dispute that pursuant to the said purchase order the petitioner supplied 4,35,000 meters from time to time in nine(9) diﬀerent lots. However after February 2007 the respondents did not issue dispatch instructions for the remaining 65000 meters in spite of repeated requests made by the petitioner. The petitioner was orally informed that the customers were not interested in taking the meters of the petitioner. The petitioner also came to know that the respondents are procuring the meters from other sources at higher prices. Aggrieved by the said action of the respondents, the present writ petition is ﬁled seeking a declaration that the action of the respondents in not issuing the dispatch instructions for the remaining 65000 meters, is arbitrary and illegal. While denying the allegation that the customers were not interested in taking the meters of the petitioner on account of inferior quality, the petitioner contended that the performance of the meters of the petitioner was found to be good in all the tests conducted at various MRT labs and out of the meters supplied by the petitioner 0.58% were only found to be defective as per the information available with the respondents. Even the said defects were promptly attended to by the service engineers of the petitioner by replacing/rectifying defective meters and therefore the action of the respondents in not issuing the dispatch orders for the remaining 65000 meters and taking steps to procure from other sources, not withstanding the prompt services rendered by the petitioner, is arbitrary and illegal. The 2nd respondent ﬁled a counter-aﬃdavit stating that as per the terms and conditions of the purchase order dated. 03-03-2005 the petitioner has to supply 5 lakhs meters before 30-11-2005 in phases speciﬁed there under. However, there was delay in supplying the meters and that apart there were many defective meters, to the extent of 16.84%. Though the said fact was informed to the petitioner on various dates, the petitioner was not in a position to rectify the defects. Because of the constant failure of the meters, the distribution Company sustained ﬁnancial loss apart from loss of image and credibility among consumers. On account of the poor performance of the meters supplied by the petitioner the consumers lost faith and sought for replacement on number of occasions. Consequently 20,000 meters supplied by the petitioner are lying with the distribution company unutilized. In the circumstances the respondents by letter dated.17-09- 2008 short-closed the purchase order dated.03-03-2005 and the petitioner was also requested to arrange for rectiﬁcation/replacement of 25,725 defective meters within 30 days. Having come to know of short-closing of the purchase order, the present writ petition was ﬁled on 22-09-2008 seeking a Mandamus directing the respondents to issue dispatch instructions for the remaining 65000 meters. Since the purchase order infavour of the petitioner was already short- closed on account of the poor performance of the meters supplied, the relief as prayed for cannot be granted and the interference by this court is not warranted. I have heard the learned counsel for the both parties and perused the material on record. Apparently the short-closure of the purchase order in favour of the petitioner is in terms of Clause.12 of the Purchase Order. The plea of the petitioner that the allegation of poor performance of the meters supplied to the respondents was incorrect and the extent of defective meters never exceeded 1.6% even by the calculation of the respondents, being disputed questions of fact, cannot be enquired into and decided by this Court in exercise of writ jurisdiction. At any rate, the contract between the petitioner and the respondents under the purchase order dated.03-03-2005 is not regulated by any statute. It is a voluntary act between the parties and both the parties are governed by the terms and conditions of the contract itself. Even assuming that there is breach of any of the terms and conditions of the contract, the remedy of the parties is elsewhere but they cannot seek enforcement of the non- statutory contract by invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. Hence on that ground alone, the writ petition is liable to be dismissed as not maintainable. Accordingly, the writ petition is dismissed leaving it open to the petitioner to work out the appropriate remedy before the proper forum. No costs. ___________ G.ROHINI,J 14th October 2008 *TSNR