IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 WP(C).No. 22800 of 2004(L) -------------------------- PETITIONER(S): ------------------ M/S. UNIVERSAL POWER BUILDERS ELECTRICAL CONTRACTORS XXXII/877, UNIVERSITY JUNCTION, CUSAT P.O., SOUTH KALAMASSERY, COCHIN-22, REPRESENTED BY ITS PARTNER, SUNIL KUMAR P.M., "GEETHANJALLY, KOTHAKULANGARA, ANGAMALY P.O., ERNAKULAM DISTRICT. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA RESPONDENT(S): ------------------- 1. KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION LTD., KESTON ROAD, KOWDIAR, THIRUVANANTHAPURAM, REPRESENTED BY ITS GENERAL MANAGER. 2. CHIEF ENGINEER, KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION LTD., KESTON ROAD, KOWDIAR, THIRUVANANTHAPURAM. 3. M/S. PRASANT & ASSOCIATES, 4/451, NEAR 4TH GATE, A.G. ROAD, KOZHIKODE-3, REPRESENTED BY ITS CHIEF ARCHITECT, A.K. PRASANT. 4. M/S. S. MADHU & ASSOCIATES, MINERVA BUILDING, M.G. ROAD, COCHIN-35, REPRESENTED BY ITS MANAGER, S. MADHU. ADV. SRI.M.A.MANHU, SC, SIDCO FOR R1 & 2 SRI.PREMJIT NAGENDRAN FOR R4 SRI.G.S.REGHUNATH FOR R1 SRI.K.VINOD CHANDRAN FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.22800/04 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE LETTER BEARING REF.NO.KSIDC/IGC/2- 34/6578 DT 24.3.2001 ISSUED BY THE 2ND RESPONDENT. EXT.P2: TRUE COPY OF THE REPRESENTATION DTD 17.10.2001 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P3: TRUE COPY OF THE REPRESENTATION DTD 9.11.2001 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P4: TRUE COPY OF THE LETTER DT 10.11.2001 SENT BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P5: TRUE COPY OF THE PROCEEDINGS NO.P&A/KID/E7 DTD. 15.11.2001 OF THE 3RD RESPONDENT. EXT.P6: TRUE COPY OF THE LETTER BEARING REF.NO.KSIDC/IGC/2- 34/3945 DTD 15.11.2001 SENT BY THE 2ND RESPONDENT. EXT.P7: TRUE COPY OF THE LETTER BEARING NO.P&A/KID/E7 DTD 13.2.2002 ISSUED BY THE 3RD RESPONDENT. EXT.P8: TRUE COPY OF THE NOTICEBEARING REF.NO.KSIDC/KGC/2- 34/215 DT 2.4.2002 ISSUED BY THE 2ND RESPONDENT. EXT.P9: TRUE PHOTOCOPY OF THE COVERING LETTER DTD 5.4.2002 OF THE 4TH RESPONDENT. EXT.P10: TRUE COPY OF THE REPRESENTATION DTD 24.4.2002 FILED BY THE PETITIONER BEFORE THE DEPUTY GENERAL MANAGER OF THE 1ST RESPONDENT. EXT.P11: TRUE COPY OF THE LETTER BEARING REF.NO.KSIDC/IGC/2- 34/635 DTD 26.4.2002 ISSUED BY THE 1ST RESPONDENT. EXT.P12: TRUE COPY OF THE PROCEEDING BEARING REF.NO.KSIDC/IGC/2-34/1793 OF THE 1ST RESPONDENT DATED 4.8.2003. EXT.P13: TRUE COPY OF THE PROCEEDING BEARING REF.NO.KSIDC/IGC/2-34/4490 DTD 25.2.204 OF THE 1ST RESPONDENT. EXTS. OF R1 EXT.R1(a): TRUE COPY OF THE LETTER DTD. 20/4/202 OF M/S.UNIVERSAL POWER BUILDERS. WPC NO.22800/04 -2- EXT.R1(b): TRUE COPY OF THE RELEVANT PAGES OF THE SPECIAL CONDITIONS OF TENDER DOCUMENT WHICH FORMS PART OF THE AGREEMENT. EXT.R1(c): TRUE COPY OF THE RELEVANT PAGES OF 29 TO 57 FORMING THE TENDER DOCUMENTS. EXT.R1(d): TRUE COPY OF THE RELEVANT PAGESOF TENDER DOCUMENT CONTAINING NOTICE INVITING TENDER FOR WORK. EXT.R1(e): TRUE COPY OF THE LETTER DTD.7/9/2001 SENT TO THE PETITIONER BY THIS RESPONDENT. EXT.R1(f): TRUE COPY OF THE LETTER DTD.27/9/2001 BY THIS RESPONDENT SENT TO THE PETITIONER. EXT.R1(g): TRUE COPY OF THE LETTER DTD.4/10/2001 SUBMITTED BY THE PETITIONER TO THIS RESPONDENT. EXT.R1(h): TRUE COPY OF THE LETTER DTD.8/10/2001 SENT BY THIS RESPONDENT TO THE PETITIONER. EXT.R1(i): TRUE COPY OF THE LETTER DTD. 27/3/2001 SENT BY THIS RESPONDENT TO THE PETITIONER. EXT.R1(j): TRUE COPY OF THE LETTER DTD 16/5/2001 SENT BY THIS RESPONDENT TO THE PETITIONER. EXT.R1(k): TRUE COPY OF THE LETTER DATED 10/8/2001 SENT BY THE PRASANTH AND ASSOCIATES TOT HE 1ST RESPONDENT. EXT.R1(l): TRUE COPY OF THE LETTER DATED 17/10/2001 SENT BY THE PETITIOENR TO THIS RESPONDENT. EXT.R1(m): TRUE COPY OF THELETTER ISSUED BY THE 2ND RESPONDENT DATED 26/12/2001 TO THE PETITIONER. EXT.R1(n): TRUE COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DATED 14/1/2002 TO THE PETITIONER. EXT.R1(o): TRUE COPY OF THE LETTER DATED 30/11/2001 SENT BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.R1(p): TRUE COPY OF THE LETTER DATED 12/12/2001 SENT BY THE PETITIOENR TO THE 1ST RESPONDENT. EXT.R1(q): TRUE COPY OF THE LETTER DATED 19/12/2001 SENT BY THE PRASANTH AND ASSOCIATES TO THIS RESPONDENT. WPC NO.22800/04 -3- EXT.R1(r): TRUE COPY OF THE LETTER DATED 4/3/2002 SENT BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.R1(s): TRUE COPY OF THE LETTER DATED 11/3/2002 SENT BY PRASANTH AND ASSOCIATES TO THE 1ST RESPONDENT. EXT.R1(t): TRUE COPY OF THE LETTER DATED 2/4/2002 SENT BY THE 1ST RESPONDENT. EXT.R1(u): TRUE COPY OF THE TERMINATION ORDER DT 4.8.2003 BY THE 1ST RESPONDENT SENT TO THE PETITIONER. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 22800 OF 2004 (L) ===================== Dated this the 9th day of June, 2009 J U D G M E N T Petitioner was awarded a contract for providing power supply and electrification work in connection with a water treatment plant. An agreement was entered into between the petitioner and respondents 1 and 2 on 8/6/2001. It is stated that in terms of the said agreement, the work ought to have been completed within six months and according to respondents 1 and 2, it was the responsibility of the petitioner to obtain approval of the Electrical Inspector. On the basis that the petitioner had delayed the work and that the work was not even commenced, the contract awarded in favour of the petitioner was terminated on 2/4/2002. 2. It is stated that accordingly the work was awarded to another person for a higher amount and that in the process, the respondents suffered loss, which is liable to be made good by the petitioner. Accordingly, after forfeiting the security deposit, the 1st respondent quantified the loss at Rs.2,11,047/-. Thereupon, by Exts.P12 and P13, petitioner was called upon to remit the amount WPC 22800/04 :2 : and was threatened that in the event of the non payment, the amount will be recovered by taking recourse to the procedure as laid down under the Revenue Recovery Act. It was at that stage the writ petition is filed challenging Exts.P11 and P12 proceedings and for consequential reliefs. 3. A reading of the writ petition show that according to the petitioner, he could commence the work only after obtaining the approval of the Electrical Inspector. His case is that the consultant appointed by respondents 1 and 2 did not approve and hand over the drawings which caused the delay in obtaining approval of the Electrical Inspector. Therefore, essentially it is a case where the petitioner is disputing the breach alleged against him by respondents 1 and 2. The question is whether in such circumstances, respondents 1 and 2, who are one of the parties to the agreement with the petitioner can unilaterally decide on the breach, quantify the damages that is due and recover the same by taking recourse to the provisions of the Revenue Recovery Act. The fact that in such a situation one of the parties cannot decide the breach, quantify the damages and take coercive action for recovery, has been settled by a series of decisions of this Court as WPC 22800/04 :3 : also the Apex Court. See in this connection, the decisions of State of Karnataka v. Rameshwara Rice Mills, Thirthahalli (AIR 1987 SC 1359), V.P.Kunhammed v. State of Kerala (1999 (2) KLJ 678) and Paily v. State of Kerala (2000(3) KLT 343). 4. In view of the law as laid down in the aforesaid judgments and in view of the relevant Clauses of the agreement, which is produced as Ext.R1(b), I hold that the 1st respondent is incompetent to unilaterally adjudicate on the breach, quantify the damages and recover the same and for that reason quash Exts.P11 and P12. In such a situation, the remedy available to the 1st respondent is to approach the civil court, establish the breach, get the damages quantified and thereafter take recourse for recovery of the amount due in accordance with law. 5. Needless to say that it will be open to the respondents to approach the Civil Court and this judgment will not be taken as a pronouncement on the merits of the respective contentions. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp