IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 WA.No. 1614 of 2011() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.23389/2011 Dated 29/08/2011 .................... APPELLANT(S): PETITIONER ------------------------ M.T.ABDUL NAZAR, S/O. MOHAMMED, P.W.D.CONTRACTOR, P.O.BEVINJA, THEKKIL FERRY, CHENGALA, KASARAGOD-671 545. BY ADV. SRI.A.K.ABDUL AZEEZ SRI.RENJIT GEORGE RESPONDENT(S): RESPONDENTS -------------------------- 1. THE SECRETARY, KERALA STATE ELECTRICITY BOARD, PATTOM, THIRUVANANTHAPURAM-695 004. 2. THE DEPUTY CHIEF ENGINEER, TRANSMISSION CIRCLE, K.S.E.B., 110 KV SUB-STATION COMPOUND, MALAPPURAM-676 509. MR.K.M.SATHYANATHA MENON, SC KSEB THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR, Ag.CJ. & P.S.GOPINATHAN, J. .................................................................... W.A. No.1614 of 2011 .................................................................... Dated this the 3rd day of November, 2011. J U D G M E N T Ramachandran Nair, Ag.CJ. The appellant/petitioner has filed several WP(C)s in this Court in respect of same matter, i.e. his claim for part payment in respect of the work done pursuant to the contract awarded which was cancelled and retendered by the Kerala State Electricity Board. Repeatedly this Court held that remedy, if any, to the appellant is before the civil court or in arbitration. We do not want to take a different view because breach of contract, if any, by either party has to be found based on evidence, which is to be done either by civil court or by in arbitration. However, in this case what we notice is that the very same work which was tendered at 35% below PAC was later retendered at 10% above PAC. Therefore, the appellant/petitioner obviously quoted unrealistic rate and that W.A.No.1614/2011 2 will be why he could not complete the contract. 2. As of now the KSEB has made a counter claim against the appellant towards the loss caused on account of retendering at the risk and cost of the appellant. There is nothing on record to prove as to whether the appellant/petitioner has done any substantial work and any bill for part payment is pending with the KSEB. In any case, for the value of the work done by the appellant, he is entitled to set off against counter claim by the Board, and if the work done by him has reduced the cost of the work later retendered then the appellant is entitled to payment for the work done over and above the loss payable by him to KSEB on retendering. 3. While we uphold in principle that the dispute should be settled in civil court or in arbitration if provided for, we feel an opportunity can be given to the appellant to approach the Chairman of the KSEB along with a copy of this judgment for him to consider objectively as to whether injustice was done to W.A.No.1614/2011 3 the appellant in the reawarding of contract and in not settling part bills for the work done and in the counter claim of loss caused to the KSEB. We leave it open to the appellant to file civil suit or to seek arbitration if the same is provided for, or otherwise to approach the Chairman of the KSEB with a copy of this judgment for him to call for the records, verify facts from the Engineering Department and grant appropriate relief to the appellant either by way of payment for the work done or reduction in the loss determined by the KSEB. This Writ Appeal is disposed of as above. (C.N.RAMACHANDRAN NAIR, ACTING CHIEF JUSTICE) (P.S.GOPINATHAN, JUDGE) jg