IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 11TH JANUARY 2008 / 21ST POUSHA 1929 W.A.No.2691 of 2007 ------------------------------------------------ AGAINST THE JUDGEMENT IN W.P.(C).NO.29589/2003 DATED 28/11/2006 .................... APPELLANT/PETITIONER:- -------------------------------------- MALWA FASTENERS (P) LIMITED, REGD. OFFICE: 63, INDUSTRIAL AREA, SECTOR-1, PARWANOO-173 220, HIMACHAL PRADESH, REPRESENTED BY ITS EXECUTIVE (MARKETING) SHRI. H.K.AGARWAL. BY ADV. SRI.MILLU DANDAPANI RESPONDENTS/RESPONDENTS 1 AND 2:- ------------------------------------------------------------ 1. KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE CHIEF ENGINEER (PS & GL), KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM. BY STANDING COUNSEL SMT.S.AMBIKA DEVI. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- H.L.Dattu, C.J. & K.M.Joseph, J. ---------------------------------------------- W.A.No.2691 of 2007-E ---------------------------------------------- Dated, this the 11th day of January, 2008 JUDGMENT K.M.Joseph,J. The petitioner is the appellant. The petitioner sought for the following reliefs in the writ petition:- “(i). Call for the records relating to the case and issue a writ of certiorari quashing Exts.P34, P44 and P53 as well as all actions taken pursuant thereto; (ii). Issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to release payment of the outstanding dues with interest till date to the petitioner, forthwith; (iii). Issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to return pipes worth Rs.98,84,902/- at the expenditure of the 1st respondent to the petitioner or release the value thereof with interest”. (2) The learned Single Judge found, having regard to the facts present in the case, that it is a case where the petitioner has to be relegated in pursuit of his remedies by filing a civil suit. The learned Single Judge has proceeded to direct that the period spent in prosecuting the writ petition be excluded in the matter of computing the period of limitation, if a civil suit is filed. (3) We have heard Sri.Millu Dandapani, learned counsel appearing for the appellant and Smt.S.Ambika Devi, learned Standing Counsel appearing for the respondents. W.A.No.2691 of 2007 2 - (4) The learned counsel appearing for the appellant would contend that it is a case where the appellant was given Exhibit P4 supply order for the supply of PVC pipes. On account of certain contingencies, the appellant could not manufacture and supply the pipes as contemplated in the agreement. Therefore, a request was made for extension of time. The extension sought for was granted. Thereafter, the appellant proceeded to effect supply of pipes. He would contend that Exhibits P13 to P24 would show that the consignees to whom the pipes were distributed have expressed their satisfaction regarding quality of the pipes. The pipes were taken delivery of. He would submit that it is a fit case where the writ Court, in exercise of its powers under Article 226 of the Constitution, should have directed payment of the amounts due to the appellant. He would take us through the various documents in an attempt to contend that it is not a case where the disputed facts could not be resolved in a proceedings under Article 226 of the Constitution. In this connection, he relies on the decision of the apex Court in the case of ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd. [(2004) 3 SCC 553]. (5) On the contrary, the learned counsel appearing for the respondents would draw our attention to the decision of the apex Court in Orissa Agro Industries Corpn. Ltd. v. Bharati Industries [(2005) 12 SCC 725], to contend that the judgment of the learned Single Judge is only to be sustained. (6) In order to consider whether the contention of the appellant is correct, we have to ascertain whether the dicta laid down by the apex Court in the case of ABL International case (supra) applies to in the case on hand. In the aforesaid decision, the apex Court has held as follows: W.A.No.2691 of 2007 3 - “A writ petition involving serious disputed questions of facts which requires consideration of evidence which is not on record, will not normally be entertained by a court in the exercise of its jurisdiction under Article 226 of the Constitution, but there is no absolute rule that in all cases involving disputed questions of fact the parties should be relegated to a civil suit. It has even been held [in Gunwant Kaur case, (1969) 3 SCC 769] that in a writ petition, if the facts require, oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact. Merely because the first respondent wants to dispute the meaning of a clause of the insurance contract it does not become a disputed fact. However, if such an objection as to disputed questions or interpretations is raised in a writ petition the courts can very well go into the same and decide that objection if facts permit; the same as in this case”. Therefore, it is not open to the respondents to raise bogey of dispute to oust the jurisdiction of this Court under Article 226 of the Constitution of India and in appropriate cases this Court is very much entitled to render findings on questions of fact and this Court is entitled to entertain disputes also of breach of contract in exercise of its powers under Article 226 of the Constitution. (7) However, it has to be noted that the dicta has to be understood and applied with reference to the facts of each case. The question would ultimately be as to what is the area of the dispute and whether the dispute is such as can be resolved without leading oral evidence. We would W.A.No.2691 of 2007 4 - think, having regard to the facts present in the case and also the documents that were produced before us, it is not a case where the writ Court can render findings of fact as we feel that it is a fit case where oral evidence has to be adduced, so that findings of fact can be rendered. In this view of the matter, we would think, the learned Single Judge was right in relegating the appellant to pursue his remedy by way of civil suit. We find no merit in this Writ appeal and it is accordingly dismissed. H.L.Dattu Chief Justice K.M.Joseph Judge vku/-