IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 WP(C).No. 30129 of 2010(M) ---------------------------------- PETITIONER(S): ------------------- JOE PAUL VITHAYATHIL, AGED 46 YEARS, S/O.PAUL V.J., VITHAYATHIL HOUSE, VARAPUZHA P.O., ERNAKULAM DISTRICT. BY ADV. SRI.JOHNSON P.JOHN RESPONDENT(S): -------------------- 1. STATE OF KERALA, REP. BY PRINCIPAL SECRETARY TO GOVERNMENT, PWD (ROADS), THIRUVANANTHAPURAM. 2. ROADS AND BRIDGES CORPORATION LTD., 2ND FLOOR, PREETHI BUILDING, M.V.ROAD, PALARIVATTOM, KOCHI-25, REP. BY ITS MANAGING DIRECTOR. R2 BY ADV. SRI. M. VIJAYAKUMAR, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SVS/ ANTONY DOMINIC, J. ``````````````````````````````````````````````````````` W.P.(C) No. 30129 of 2010 M ``````````````````````````````````````````````````````` Dated this the 4th day of October, 2010 J U D G M E N T Challenge in the writ petition is mainly against Ext.P14, terminating the toll collection agreement entered into between the petitioner and the second respondent. 2. Ext.P1 is the agreement entered into between the parties on 07-06-2010, for collection of toll at Pullepady bridge of the second respondent. The period of the agreement is till 06-06-2011 and the tender was awarded the petitioner for an amount of Rs.65,43,210/-. In terms of the provisions of the agreement petitioner also submitted bank guarantee for an amount of Rs.16,68,522/-. 3. Accordingly, petitioner started collection of toll as well. Petitioner states that on different occasions the second respondent committed breach of contract and that all those issues were brought to the second respondent and various other authorities by Exts.P2 to P11 complaints. WPC.30129/10 : 2 : 4. It is stated that when the second respondent did not remedy the grievances, the petitioner had no option but to stop collection of toll from 28-08-2010. It is stated that thereafter, the petitioner was issued Ext.P12 notice, requiring him to resume collection of toll and informing that in the event of its violation, the agreement will be terminated. To that notice, petitioner gave Ext.P13 reply but, however, he was issued Ext.P14 order, terminating the agreement. Even thereafter, petitioner made Ext.P15 representation requesting the second respondent to withdraw the termination order. There was no response and that led the petitioner to file this writ petition. 5. Although various contentions have been raised by the petitioner accusing the second respondent of having violating the terms of Ext.P1 agreement, counsel for the second respondent submits that it was only on account of the breaches committed by the petitioner the agreement had to be terminated. It is also their case that on termination of the WPC.30129/10 : 3 : agreement the work has been awarded to another person. 6. Thus, the agreement between the parties stands terminated and work has been awarded to another person also. That apart, both sides are accusing each other of having breach of contract. 7. In such circumstances, adjudication of various factual issues is necessary for resolving the controversy which is impermissible in a proceedings under Article 226 of the Constitution of India. Having regard to the termination of the agreement and the award of contract made by the second respondent, the remedy of the petitioner at this stage is only for damages which will have to be claimed in a regular suit. Therefore, relief sought in this writ petition for interfering with Ext.P14 cannot be granted. Further, the person who is now awarded the contract is also not a party to this writ petition. 8. Learned counsel for the petitioner contended that the second respondent should be prevented from invoking bank guarantee that has been furnished. It is contended that WPC.30129/10 : 4 : bank guarantee can be invoked only for the due amount and that as the termination of the contract was for the breach committed by the second respondent, the bank guarantee cannot be invoked. 9. However, in terms of the provisions of the bank guarantee, if a demand invoking bank guarantee is made, the bank is liable to honour that request, without any demur. In this case, termination of the contract is at the risk and cost of the petitioner. If the awarder quantifies the dues and demands payment, the bank is liable to honour such demand. It is the settled law that only if an irretrievable injury is caused, the person in whose favour the bank guarantee is furnished, can be prevented from invoking the bank guarantee. In my view, such a case has not been made out and, therefore, this Court cannot pass any such order. Writ petition is dismissed accordingly. (ANTONY DOMINIC, JUDGE) aks