IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 12TH MARCH 2008 / 22ND PHALGUNA 1929 WP(C).No. 8035 of 2008(F) ------------------------- PETITIONER: ------------ ELITE INDIA EXPORTS, SHANAS VIHAR, TOWN WARD, P.O.NOORANAD, REPRESENTED BY ITS PROPRIETOR, A.S.SHANAVAS. BY ADV. SRI.MILLU DANDAPANI RESPONDENTS: ------------- TRAVANCORE DEVASWOM BOARD, TRIVANDRUM, REPRESENTED BY ITS SECRETARY. BY STANDING COUNSEL SRI U.K.RAMAKRISHNAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/03/2008, THE COURT 12/03/2008 DELIVERED THE FOLLOWING: P.R.RAMAN & V.K.MOHANAN, JJ. ------------------------------- W.P.(C)NO.8035 OF 2008 -------------------------------- Dated this the 12th day of March, 2008 JUDGMENT Raman, J. Petitioner was awarded a contract by the Travancore Devaswom Board for preparation, packing, storing and placement at sales counters of Aravana Prasadam at Sabari Mala during the Mandalam-Makara Vilakku, Meda Vishu and other days during the year 1183 M.E. as per proceedings, Ext.P1 dated 26/10/2007. That contract was terminated by Ext.P13 proceedings of the Travancore Devaswom Board dated 17/11/2007. This was the subject matter of challenge before this Court in W.P.(C).No.35092/2007 wherein the present order Ext.P13 was produced as Ext.P11. This Court rendered a common judgment in the above writ petition on 14th December, 2007, a copy of which is furnished to us by the learned Standing Counsel appearing for the Travancore Devaswom Board, in which it is seen that this Court after considering the contentions advanced by the parties, held as follows: "The law is well settled that in case there is violation of the terms of contract, the parties will have to approach appropriate civil court and this Court sitting in this jurisdiction under Article 226 of the Constitution is -2- WP(C).No.8035/2008 not justified in deciding who is at fault if both the parties find fault with each other. Further clause 9 of Ext.P2 contract states that all the disputes, questions or claims arising out of or ;under the agreement shall be tried and be subject to the exclusive jurisdiction of the Courts at Thiruvananthapuram only. Under such circumstance this Court under Article 226 of the Constitution is not justified in examining as to who is at fault especially, when disputed questions of facts are involved. Under such circumstance without expressing opinion on the merits of the case we are inclined to dismiss both the writ petitions leaving it open to the petitioner to avail other remedies available to them under law." 2. The petitioner seeks to quash the very same order of termination by filing a separate writ petition and further seeks to issue a writ of mandamus to pass orders on Ext.P16 representation. It is not in dispute that unless Ext.P13 order is considered on merits, no relief can be granted to the petitioner in this writ petition. According to the petitioner, the earlier judgment was rendered by this Court because correct statement of facts were not brought to the notice and that the sequence of misleading statements and reports had led to the cancellation of the contract. According to him, in such circumstances, the present writ petition is maintainable when an order is obtained by non-disclosure of certain facts amounting to fraud. Reliance is placed on the decisions of the Apex Court in S.P.Chengalvaraya Naidu v. Jagannath and thers ((1994) 1 SCC 1), -3- WP(C).No.8035/2008 United India Insurance Co.Ltd. v. Rejendra Singh and others ((2000) 3 SCC 581 and also the decision reported in A.V.Papayya Sastry and others Govt. of A.P. and others ((2007) 4 SCC 221). 3. The Standing Counsel appearing for the Travancore Devaswom Board however submits that the writ petition is not maintainable in the light of the earlier order passed by this Court. 4. Heard both sides. 5. It is true that any decision rendered based on misleading facts amounting to fraud could be challenged by any separate writ petition or appeal or review as the case may be, provided the decision is based on facts appreciated or decision rendered on merits. But in this case when the contract was terminated by the Travancore Devaswom Board, that was challenged before this Court; but this Court did not go into the merits of the contention raised and in the absence of any finding on the merits, there is no scope for applying the principle rendered by the Apex Court in the above decisions. This Court merely relegated the petitioner herein to seek civil remedy and this Court declined to interfere in the matter under Article 226 of the Constitution of India and there was no appeal therefrom. Therefore, it is still open to the petitioner to seek such remedy -4- WP(C).No.8035/2008 as available to him under law. In the factual background, we do not find any merit in the contention now raised, since the court declined to interfere in the matter without entering any finding on the merits. In case any such proceedings are taken by the petitioner before any civil court, we have no doubt that such matter will be decided in accordance with law, on merits and on the basis of the materials produced in the case. In such circumstances, we are not inclined to take a different view or to interfere in this matter in exercise of the power conferred under Article 226 of the Constitution of India. Hence, the writ petition is not maintainable and is dismissed. P.R.RAMAN, Judge. V.K.MOHANAN, Judge. kcv.