IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 20TH OCTOBER 2010 / 28TH ASWINA 1932 WA.No. 1760 of 2010 ----------------------- AGAINST THE JUDGEMENT IN WPC.4377/2010 Dated 07/06/2010 .................... APPELLANT/PETITIONER: --------------------------- M/S.SIVASAKTHI ENGINEERING & FABRICATORS, 142, CHANDRA NAGAR, PALAKKAD 678 007, REPRESENTED BY ITS MANAGING PARTNER, SRI.P.E.SUBRAMANIAN. BY SRI.K.JAYAKUMAR, SENIOR ADVOCATE ADV. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN RESPONDENTS/RESPONDENTS: ----------------------------------- 1. THE KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM- 695 004, REPRESENTED BY ITS CHAIRMAN. 2. THE MEMBER (DISTRIBUTION), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-694 004. 3. THE CHIEF ENGINEER (T.C & M), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004. ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R1TO3 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. ------------------------------------------ W.A. No.1760 of 2010 ------------------------------------------ Dated this the 20th day of October, 2010 JUDGMENT J.Chelameswar, C.J. Aggrieved by judgment dated 7th June, 2010 in W.P.(C) No.4377 of 2010, the unsuccessful writ petitioner therein preferred the present writ appeal. 2. The appellant entered into an agreement with the first respondent whereby the appellant agreed to supply certain materials to the respondents. It appears from the records that a substantial portion of the materials agreed to be supplied has already been supplied to the respondents. It also appears from the records that under the terms of the contract the respondents are making payments periodically for the materials received by them. It is also an admitted fact that the appellant received some payment for the materials already supplied to the respondents. At that stage, the W.A.No.1760 of 2010. - 2 - respondents believed that there was an excess payment made to the appellant herein for the materials which were already supplied. Such a conclusion, it appears, was drawn by the respondents on the ground that the transportation charges required to be paid by the respondents were wrongly calculated and paid in excess to the appellant. Therefore, the respondents demanded the appellant to repay certain amount which was allegedly paid in excess of the amount due to the appellant. 3. Aggrieved by such a demand, the appellant herein had earlier approached this Court by way of O.P.No.11794 of 1999. The said original petition was allowed by judgment dated 24th November, 2004 in substance holding that the claim of the respondents that there was an excess payment made to the appellant herein was a conclusion reached without affording any opportunity to the appellant and therefore is violative of the principles of natural justice. By the abovementioned judgment, the learned Judge of this Court also recorded that the respondents are at liberty to review W.A.No.1760 of 2010. - 3 - the entire matter afresh after giving an appropriate opportunity to the appellant. 4. Pursuant to the said judgment, the respondents reviewed the matter and once again came to the conclusion that there was an excess payment made to the appellant and issued the demand under Exts.P28 and P29 which are the impugned orders in the present writ petition. 5. Though the writ petition was admitted, by the judgment under appeal, the learned Judge of this Court closed the writ petition on the ground that the question such as the one raised in the writ petition requires evidence to be recorded. In other words, it is a question of fact and therefore opined that such an exercise could be more conveniently undertaken in a properly constituted civil suit, but not in a proceeding under Article 226 of the Constitution of India. The learned Judge also stayed the recovery pursuant to the orders impugned in the writ petition for a period of three months in order to enable the appellant to avail the remedy of W.A.No.1760 of 2010. - 4 - civil suit. 6. Sri.K.Jayakumar, the learned senior counsel appearing for the appellant, argued that in view of the fact that the writ petition was already admitted and in view of the fact that no counter affidavit was filed even by the date of the judgment under appeal, the learned Judge should have drawn a presumption that the facts stated in the writ petition are not disputed as there was no rebuttal on the part of the respondents by way of any counter affidavit. The learned counsel also submitted that in the said circumstances the conclusion of the learned Judge that adjudication of the questions involved in the writ petition requires recording of evidence is not justified and consequentially the learned Judge was not justified in closing the writ petition on the said ground. 7. We regret our inability to accept the submission of the learned senior counsel for the appellant. There is no rule of law which stipulates that the non-submission of a counter affidavit rebutting the allegations made in the writ petition should necessarily W.A.No.1760 of 2010. - 5 - lead to an irresistible conclusion in all cases that the averments made in the writ petition and the facts constituting to the averments are not disputed. There is a rule of evidence which requires this Court to draw an inference in an appropriate case that the facts stated and the averments made in the writ petition are to be accepted as true in the absence of any specific denial by the opposite party. However, in our opinion, such a rule is not a rule of universal application. It is a rule to be applied with circumspection depending upon the facts and circumstances surrounding the dispute in each and every case. Therefore, in our opinion, the judgment under appeal does not warrant any interference. The writ appeal is dismissed at the admission stage. 8. The learned senior counsel appearing for the appellant however prayed that in view of this order, this Court may consider the extension of the time for recovery of the impugned demands by some more reasonable period to enable the appellant to approach the appropriate civil court. In the circumstances, we deem it appropriate W.A.No.1760 of 2010. - 6 - to direct the respondents not to enforce the impugned demands for a period of another six weeks from today. J.Chelameswar, Chief Justice P.R.Ramachandra Menon, Judge vns