IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 WP(C).No. 16649 of 2004(F) ------------------------------------ PETITIONER(S): --------------------- P.M.SIVADAS, PANTHAPLACKAL HOUSE, CHIRAKKADAVU P.O., KOTTAYAM. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENT(S): ----------------------- 1. THE CORPORATION OF COCHIN, ERNAKULAM, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, PARK AVENUE, KOCHI-682 011. 2. REVENUE OFFICER, CORPORATION OF COCHIN, CORPORATION OFFICE, PARK AVENUE, KOCHI-682 011. 3. THE KERALA STATE ELECTRICITY BOARD, TRIVANDRUM, REPRESENTED BY THE ASST.EXECUTIVE OFFICER, ELECTRICAL MAJOR SECTION (DISTRIBUTION), KALOOR, ERNAKULAM. 4. THE KERALA STATE WATER AUTHORITY, TRIVANDRUM, REPRESENTED BY THE EXECUTIVE ENGINEER, WATER AUTHORITY BUILDING, OLD THEVARA ROAD, ERNAKULAM. 5. THE DEPUTY TAHSILDAR (REVENUE RECOVERY) KANJIRAPPALLY. R1 & R2 BY ADV.SRI.CHANDRAMOHAN DAS, SC – KOCHI CORPN. R3 BY ADV.SRI.C.K.KARUNAKARAN, SC – KSEB. R4 BY ADV. SRI.BABU VARGHESE, SC, KWA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 16649/2004-F APPENDIX PETITIONER'S EXHIBITS : EXT.P1 COPY OF THE LETTER DT.3-4-2004 ISSUED BY PETITIONER TO RESPONDENTS. EXT.P2 COPY OF THE RECEIPT DT.3-4-04 ISSUED BY RESPONDENTS TO THE PETITIONER. EXT.P3 COPY OF THE RELEVANT PORTION OF TENDER NOTIFICATION DT.1-3-2004 ISSUED BY R1. EXT.P4 COPY OF THE NOTICE DATED 29-4-04 ISSUED BY R1 TO PETITIONER. EXT.P5 COPY OF THE REPLY NOTICE DT.14-5-2004 ISSUED BY PETITIONER TO R2. EXT.P6 COPY OF THE POSTAL RECEIPT DT. 15-5-2004. EXT.P7 COPY OF THE NOTICE DT.6-1-2005 ISSUED BY R1 TO THE PETITIONER. EXT.P8 COPY OF THE NOTICE DT. 31-1-2005 ISSUED BY R1 TO THE PETITIONER. EXT.P9 COPY OF THE ELECTRICITY BILL DT. 14-9-2004. EXT.P10 COPY OF THE ELECTRICITY BILL DT. 16-11-2004. EXT.P11 COPY OF THE NOTICE DT.29-7-08 ISSUED BY ADDL.R5 TO THE PETITIONER. EXT.P12 COPY OF THE PLAINT IN OS.114/08 ON THE FILE OF SUBORDINATE JUDGE'S COURT, ERNAKULAM. EXT.P13 COPY OF THE WRITTEN STATEMENT IN OS.144/08 ON THE FILE OF SUBORDINATE JUDGE'S COURT, ERNAKULAM. RESPONDENTS' EXHIBITS : NIL / TRUE COPY / PA TO JUDGE dkr. V.GIRI, J. ---------------------------------------- W.P.(C).No.16649 of 2004 ---------------------------------------- Dated this the 22nd day of June, 2009. JUDGMENT The petitioner bid the right to collect fees for conducting a comfort station near the private bus stand in Kaloor auctioned by the Cochin Corporation, for an amount of Rs.8,77,777/-. According to the petitioner 1/4th of the bid amount, amounting to Rs.2,19,558/- was deposited with the 1st respondent and possession was given on 1.4.2004, but, he was not able to conduct the comfort station thereafter because of the damage to the building and want of timely repairs and maintenance and due to disconnection of water and electricity. Apparently for the said reason, the petitioner did not pay the balance amount due. 2. Dispute, therefore, arose between the petitioner and the Corporation, in the Corporation demanding the balance amount and the petitioner W.P.(C).No.16649 of 2004 :: 2 :: asking for a refund. It has come about that the Corporation has now filed a suit as O.S.No.144/08 before the Sub Court, Ernakulam for recovery of the balance amount due from the petitioner as evidenced by Ext.P12. It seems that the petitioner has, apart from filing a written statement, raised a counter claim for 1/4th of the bid amount, originally deposited alleging frustration of contract. The suit and counter claim are pending. 3. This writ petition was filed at a point of time when the Corporation was compelling the petitioner to execute the agreement, and later when steps were taken for recovery of amounts as evidenced by Ext.P11. 4. In circumstances where the Corporation itself has approached the civil court for recovery of the balance due under the contract, the eligibility therefor has to be decided by the civil court. The period of contract itself has expired on 31.3.2005. It W.P.(C).No.16649 of 2004 :: 3 :: is appropriate that the rights of the parties are governed by the decree to be passed by the civil court. 5. It is accordingly declared and the respondents are directed to keep in abeyance enforcement of Ext.P11, until a decision is taken by the civil court in O.S.No.144/08. The recovery thereafter shall abide by the decree to be passed by the civil court. The writ petition is disposed of as above. Sd/- (V.GIRI) JUDGE sk/ //true copy//