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 FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932 WA.No. 1489 of 2009 ----------------------- AGAINST THE JUDGEMENT IN WPC.32919/2003 Dated 04/06/2009 .................... APPELLANT/PETITIONER -------------------------- AKSH OPTIFIBRE LIMITED, REPRESENTED BY CHIEF FINANCIAL OFFICER, MR.UMARO KHIVASARA, F-1080, RIICO INDUSTRIAL AREA PHASE-III, BHIWADI-301 019, RAJASTHAN. BY ADV. SRI.MULLASSERIL P.UDAYABANU SRI.C.S.AJITH PRAKASH SRI.T.D.SALIM SRI.PAUL C THOMAS RESPONDENTS/RESPONDENTS IN WPC ------------------------------------------- 1. BHARAT SANCHAR NIGAM LIMITED, REP.BY ITS CHAIRMAN-CUM-MANAGING DIRECTOR, SANCHAR BHAWAN, 20, ASHOKA ROAD, NEW DELHI-110 001. 2. CHIEF GENERAL MANAGER, TELECOM, KERALA CIRCLE, BHARAT SANCHAR NIGAM LIMITED VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033. 3. CHIEF MANAGER, UNION BANK OF INDIA, INDUSTRIAL FINANCE BRANCH, G-39, CONNAUGHT-CIRCLE, NEW DELHI-110 001. ADV. SRI.MATHEWS K.PHILIP,SC, BSNL FOR R1 & R2 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. ------------------------------------------ W.A. No. 1489 of 2009 ------------------------------------------ Dated this the 3rd day of December, 2010 JUDGMENT J.Chelameswar, C.J. Aggrieved by a judgment dated 4th June, 2009 in W.P. (C) No.32919 of 2003, the unsuccessful petitioner therein preferred the instant writ appeal. 2. The appellant is a manufacturer of optic fibre cables and accessories. The first respondent issued a tender notification dated 1.8.2002 inviting tenders for supply of certain material. The appellant responded to the tender notification and in compliance with the condition of the tender notification the appellant furnished a bank guarantee for an amount of `316026/- secured from the third respondent Bank. The appellant became the successful bidder with reference to some of the items quoted by him. The first respondent issued a communication dated 15.11.2002 informing that the appellant is the successful bidder and calling upon him to supply the W.A.No.1489 of 2009 - 2 - various items specified in the said communication and comply with the various conditions specified therein. At that stage the appellant informed the first respondent that he is not willing to supply the material as demanded by the respondent in the above mentioned communication. It is not very relevant at this stage for us to go into the reasons which prompted the appellant to decline supply of the material. We are only concerned with the factum of the appellant's declination. As a consequence the respondents invoked the bank guarantee mentioned above. Therefore, the appellant approached this Court by way of the above mentioned writ petition with the prayers as follows: “a) Call for the records pertaining to the Petitioner's bid and purported acceptance thereof in respect of the Tender Enquiry No.NWP/6-15/12F/2002 dated 03.07.2002 of the Respondent. b) Issue a writ in the nature of certiorari or any other appropriate writ or direction, quashing Ext.P12 letter/order issued by the respondents 1 & 2 debarring the Petitioner from participating in tenders for a period of three years and encashing the Petitioner's Bank Guarantee dated 01.08.2002 given by way of bid security; W.A.No.1489 of 2009 - 3 - c) Issue a writ in the nature of mandamus or any other appropriate writ or direction, commanding the Respondents 1 & 2 not to encash the Petitioner's Bank Guarantee dated August 1, 2002 given by way of its bid security and receive any payment thereunder; d) In the alternative, issue a writ in the nature of mandamus or any other appropriate writ or direction, commanding the Respondent to restore the bank guarantee amount of Rs.3,16,026/- given by way of bid security to the Petitioner; e) to declare that respondents 1 & 2 are not entitled to encash bank guarantee executed by the petitioner as evidenced by the Ext.P3; f) To stay the operation of Exhibits P-12 & P-13 pending disposal of the Writ Petition; g) Award costs in favour of the Petitioner; and h) Any other writ direction or order in the facts and circumstances of the case.” 3. By the judgment under appeal the said writ petition was dismissed. Hence this appeal. 4. The facts mentioned above are not in dispute. The rights and obligations of the appellant to seek the various reliefs sought in the writ petition arise out of a contract. Whether the reasons sought to be given by the appellant for resiling from the offer made by him are legally justified or not is a matter which W.A.No.1489 of 2009 - 4 - depends on the examination of the various attendant circumstances which requires the evidence to be considered. It is also required after the establishment of the facts as to what are the exact legal rights and obligations of the appellant and the respondents in the context of the contract and the various other factual assertions made by the appellant. Such an exercise is not normally undertaken by this Court in its jurisdiction under Article 226 of the Constitution. In our opinion, the conclusion reached by the learned Judge by the judgment under appeal does not call for any interference. The writ appeal is therefore dismissed at the admission stage. However, it is open to the appellant to pursue such legal remedies as are available to him under law. J.Chelameswar, Chief Justice P.R.Ramachandra Menon, Judge vns