IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 OP.No. 32496 of 2002(R) ----------------------- PETITIONER(S): --------------- A.V.M.CATTLE & POULTRY FEEDS MANUFACTURING INDUSTRIES, 25/327, RANGAI GOWDAR STREET, COIMBATORE, A REGISTERED PARTNERSHIP FIRM REPRESENTED BY ITS PARTNER, SRI.A.A.MOHAMMED ZIYAUDEEN. BY ADV. SRI.SHAJI P.CHALY RESPONDENT(S): --------------- 1. KERALA AGRICULTURAL UNIVERSITY, VELLAYANIKKARA, THIRUVANANTHAPURAM, REPRESENTED BY ITS REGISTRAR. 2. COLLEGE OF VETERINARY & ANIMAL SCIENCES, MANNUTHY, REPRESENTED BY ITS DEEN. 3. ACCOUNTANT GENERAL, OFFICE OF THE ACCOUNTANT GENERAL, KERALA. BY GOVERNMENT PLEADER SMT. SMITHA SUKUMAR FOR R3 ADV. SRI.N.D.PREMACHANDRAN, SC, AGRL.UNTY. FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 30/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 32496 of 2002(R) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF TENDER NOTICE NO.G1/1363/97 DATED 4.4.1997 OF THE 2ND RESPONDENT EXT.P2 - TRUE COPY OF ORDER CANCELLING THE TENDER ACCEPTED BY THE 1ST RESPONDENT DATED 1.8.1997. EXT.P3 - TRUE COPY OF THE PLAINT O.S. 348/98 FILED BY THE PETITIONER AGAINST THE 1ST RESPONDENT BEFORE THE HON'BLE SUB COURT, THRISSUR. EXT.P4 - TRUE COPY OF WRITTEN STATEMENT FILED BY THE 1ST RESPONDENT IN THE ABOVE SUIT O.S. 348/98. EXT.P5 - TRUE COPY OF ORDER NO. GA/12/10578/98 DATED 8.10.2002 OF THE 1ST RESPONDENT. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... O.P. No. 32496 of 2002 ................................................. Dated this the 30th day of September, 2009 J U D G M E N T The 1st respondent invited tenders for supply of cattle feed and other products. The petitioner who is a manufacturer of such products responded to the notification inviting tenders. The tender of the petitioner was accepted and the petitioner had been supplying cattle feed as per the agreement entered into pursuant to the tender. Thereafter without any notice, by Ext.P2 dated 1.3.1997, the 1st respondent cancelled the tender on the alleged ground that the quantity of milk produced by the cattle which consumed the cattle feed supplied by the petitioner has gone down considerably, which is attributable to the cattle feed so supplied. Thereafter, the contract was awarded to two other persons. The petitioner alleges that it is for giving the contract to those two persons that the petitioner's contract was cancelled on untenable grounds. While so, the petitioner filed a suit for recovery of an amount of Rs.1,29,863/- towards the value of the feeds already supplied. The 1st respondent entered appearance and was contesting the suit. While so, by Ext.P5 order an amount of O.P. No. 32496 of 2002 -2- Rs.2,25,915/- was demanded from the petitioner as damages for alleged breach of contract committed by the petitioner. The petitioner is challenging Ext.P5 order seeking the following reliefs: “i) issue a writ of mandamus or any other appropriate writ, direction or order calling for the files leading to the issue of Exhibit P5, examine its legality, propriety and quash the same by issuing a writ of certiorari; ii) to declare that the recovery threatened in Exhibit P5 is barred under the law of limitation;” 2. The contention of the petitioner is that the petitioner is manufacturing good quality cattle feed, which was supplied to the 1st respondent and at no point of time, had the 1st respondent informed the petitioner that the cattle feed so supplied by the petitioner is of inferior quality. No scientific test has been conducted on the cattle feed supplied by the petitioner to ascertain whether the same lack in quality. At no point of time, the petitioner was directed to show cause why such an action should not be taken against the petitioner for supply of inferior qualify of cattle feed. The petitioner would contend that Ext.P5 is only a unilateral action based on which no amount can be demanded by the University from the petitioner as damages. He relies on the decision of the Supreme Court in State of Karnataka v. K. Krishnappa Naidu & Co. [AIR 1987 SC 1359] and the decision of O.P. No. 32496 of 2002 -3- this court in P.R. Ramavarma Raja v. Tahasildar & others [1987 KLJ 1490] in support of the proposition that one of the parties to a contract cannot unilaterally adjudicate upon whether there is a breach of contract and assess damages also except in cases where the breach is admitted, even where that party is the Government. According to the petitioner since the petitioner strongly disputes that there is any breach, without an independent body deciding that disputed question the University cannot demand damages from the petitioner for the alleged breach of contract. 3. No counter affidavit has been filed by the respondents 1 and 2 in the matter. On behalf of the 3rd respondent, a statement is filed in support of the impugned order. 4. I have considered the rival contentions in detail. 5. As rightly pointed out by the petitioner, there is not even an adjudication of liability of the petitioner with notice and hearing to them. Even Ext.P2 order of cancellation of contract was not after a show cause notice and hearing to the petitioner. Ext.P2 refers to a feed purchase committee meeting convened on 29.7.1997. But there is no evidence to show that any test has been conducted in respect of cattle feed supplied by the petitioner. So also, Ext.P5 has been issued without going through any accepted procedure for recovery of damages for breach of contract. Not O.P. No. 32496 of 2002 -4- even a show cause notice was issued to the petitioner at any time. There absolutely no evidence to show that the feed supplied by the petitioner was inferior in quality. Ext.P5 is violative of principles of natural justice also. The University cannot also unilaterally decide that the petitioner has committed breach of contract and unilaterally fix the quantum of damages, which is the settled law as is clear from the decisions cited by the petitioner referred to above. For all the above reasons, Ext.P5 is unsustainable and is therefore quashed. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE rhs