IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 WA.No. 209 of 2008() -------------------- AGAINST THE JUDGEMENT/ORDER IN OP.33008/2000 Dated 04/12/2007 .................... APPELLANT(S): PETITIONER: --------------------------------------------- AHAMMED ROLLER FLOUR MILLS LTD., REPRESENTED BY ITS MANAGING DIRECTOR, P.K.AHAMMED, PUTHIYANGADI, KOZHIKODE-673 021. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF FOOD AND CIVIL SUPPLIES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA STATE CIVIL SUPPLIES CORPORATION, P.B.NO.2030, MAVELI BHAVAN, GANDHI NAGAR, KOCHI-682 020, REPRESENTED BY ITS MANAGING DIRECTOR. R1 BY GOVERNMENT PLEADER SRI. BASANT BALAJI R2 BY ADV. SMT. MOLLY JACOB, SC, SUPPLYCO. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16/09/2010 ALONG WITH WA NO. 214 OF 2008 AND WA NO. 1316 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss C.N.RAMACHANDRAN NAIR & K. SURENDRA MOHAN, JJ. ------------------------------------------------------------- W.A NOS: 209/08, 214/08 & 1316 OF 2010 ------------------------------------------------------------- Dated this the 16th September, 2010. JUDGMENT Ramachandran Nair, J. The writ appeals are filed against identical judgments issued by two learned Single Judges dismissing the writ petitions filed by the appellants. We have heard counsel appearing for the appellants and standing counsel for the Kerala State Civil Supplies Corporation Limited (hereinafter called as 'Corporation'). 2. The appellant entered into a contract with the Corporation for supply of whole wheat atta. The terms of the contract specifically provided specifications such as moisture content, acidity and granularity etc. Provisions of the contract are such that for variation in the standards prescribed for the product the Corporation could either reject and demand from the appellant replacement or the Managing Director at the option of the Corporation could levy penalty for variations in standards of the products supplied. For the supplies made by the appellant in the course of time samples were taken in time. In accordance with the terms of the contract when samples were got tested by the agency W.A.Nos:209,214 & 1316/2008 2 notified it, was noticed that there was steady variation in the moisture content as well as in the percentage of granularity. However, since the Corporation had already accepted the goods and distributed in the course of supplies, the Managing Director imposed penalty vide orders impugned in all the three writ petitions. It is seen that penalty levied in all comes less than 50 paise per kilogram and in cases of minor variation it comes to 5 to 6 paise per kilogram. The appellants challenge against the penalty orders before the learned Single Judges were turned down by holding that penalty is levied strictly in terms of provisions of the contract. It is against these judgments separate writ appeals are filed by the appellants. 3. Before us counsel for the appellants raised the very same contentions advanced before the learned Single Judges. In the first place appellant alleges that there is a delay in getting the samples examined in the lab and penalty was levied without notice and without hearing him. Further, according to the appellant he was willing to take back the goods for replacement or otherwise he would have reprocessed the goods and returned the same in W.A.Nos:209,214 & 1316/2008 3 conformity with the standards prescribed. However, we find no merit in these contentions because in the first place demand for replacement or return for reprocessing was option given to the Corporation and not to the appellant. Further we find that the variations were not very serious in nature and the Corporation probably thought it unwise to return the goods which was already in the distribution line. Above all the penalty levied is not substantial and is in proportion to the percentage of variation particularly the moisture content. We therefore do not find any ground to interfere with the judgment of the learned Single Judges. Consequently writ appeals are dismissed. However, we make it clear that if accounts are not settled and after adjusting the penalty amounts balance amount due to the appellant is not paid by the Corporation it is open to the appellant to approach this Court either in contempt or otherwise. In other words, the directions of the learned Single Judge for adjustment of penalty and payment of the balance amount will stand confirmed and the writ appeals are dismissed only as regards the appellants' claim for cancellation of the penalty orders. The Corporation is directed to give details W.A.Nos:209,214 & 1316/2008 4 through statement of accounts for all periods showing the amounts payable under the bills already raised, amounts paid and adjustments made against penalty levied and the balance amount due along with payments within a period of one month from the date of receipt of a copy of this judgment. C.N.RAMACHANDRAN NAIR Judge K. SURENDRA MOHAN Judge jj W.A.Nos:209,214 & 1316/2008 5