M/S.INDUSTRIAL SEWING SYNDICATE 39/3822, ALAPATT CROSS RAVIPURAM, COCHIN v. NONE

ORDER ON CMP. NO.30040/2001 IN OP. NO.18640/2001DISMISSED21.05.2009SD/- ANTONY DOMINIC, JUDGEAPPENDIXPETITIONER'S EXHIBITS P1:- COPY OF THE LETTER DT. 4.6.01 ISSUED BY CHITRA APPARALES.P2:- COPY OF THE COMMUNICATION ISSUED TO THE PETITIONER REGARDING OFSUPPLY OF MACHINE.P3:- COPY OF THE ORDER OF RESPONDENT DT. 19.2.01.P4:- COPY OF THE REF. NO.NSIC/BO/ HP2 KER 1916/2001 DT. 28.3.01.P5:- COPY OF THE PROFORMA INVOICE GIVEN BY THE PETITIONER TO THERESPONDENT DT. 14.3.01.P6:- COPY OF THE LETTE INFORMING THE PETITIONER TO PRODUCE CERTAINDOCUMENTS DT. 31.5.01.P7:- COPY OF THE INVOICE GIVEN BY THE PETITIONER DT. 4.5.01 CIVILMISCELLANEOUS PETITION.RESPONDENT'S EXHIBITS R1:- COPY OF THE SUPPLY OF DT. 1.2.01.R2:- COPY OF THE REVISED SUPPLY ORDER DT. 15.3.01.R3:- COPY OF THE COMMUNICATION DT. 28.3.01 ISSUED BY THE RESPONDENT TO THEIST PETITIONER.R4:- COPY OF THE INSPECTION REPORT DT. 9.5.01.R5:- COPY OF THE COMMUNICATION DT. 25.5.01 ISSUED BY THE RESPONDENT TO THEIST PETITIONER.R6:- COPY OF THE FAX MESSAGE DT. 15.5.01 SENT BY M/S. CHITRA APPARELS.R7:- COPY OF THE COMMUNICATION DT. 31.5.01 SENT BY THE IST PETITIONER.R8:- COPY OF THE LETTER DT. 12.6.01 ISSUED BY M/S. CHITRA APPARELS.R9:- COPY OF THE LETTER ISSUED BY THE RESPONDENT TO M/S. CHITRA APPARELSDT. 25.6.01.E10:- COPY OF THE LETTER DT. 14.6.2001 ISSUED BY SRI.V.POULOSE OFJ.J.GARMENTS.R11:- COPY OF THE COMPLAINT SUBMITTED BY THE RESPONDENT TO THE SUPDT. OFPOLICE (RURAL) ALWAYE, DT. 20.6.1.TRUE COPY P.A. TO JUDGETSS ANTONY DOMINIC, J.================OP NO. 18640 OF 2001 (R)=====================Dated this the 25th day of May, 2009 J U D G M E N TThe prayer sought in this original petition is for a direction tothe respondent to disburse an amount of Rs.3,32,532/- to thepetitioners towards the value of the Sewing Machines supplied bythem at the instance of the respondent. This claim is on the basisthat the first petitioner is a proprietary concern of the secondpetitioner and is engaged in the business of sale of sewingmachines throughout the state. It is stated that pursuant to thequotation submitted by the petitioners on 21/12/2000, therespondent issued Ext.P3 order to them for the supply of sewingmachines mentioned therein. Subsequently by Ext.P4, thepetitioners were directed to supply the machines to M/s. ChitraApparels, Thanur, Malappuram. 2.It is stated that accordingly the machines weresupplied and Ext.P5 is stated to be the proforma invoice, claimingRs.3,32,532 towards the value of the sewing machines supplied.According to the petitioners, they complied with all conditions ofthe purchase order and subsequently respondent issued Ext.P6 OP 18640/01:2 :calling for certain clarifications which was duly furnished. It isstated that they submitted Ext.P7 invoice claiming payment, buthowever, payment was not made. It is their case that in themeanwhile M/s.Chitra Apparels referred to above issued Ext.P1dated 4/6/01 confirming receipt of sewing machines and alsocertifying that the performance of the machines was good. 3.Despite all this, the petitioners complain, that respondentdid not pay the invoice value. It is contended that respondent beingan instrumentality of the State is bound to act fairly and reasonablyand that without any reason whatsoever, payment has been denied.It is in these circumstances, the petition has been filed praying thatthe respondent be directed to make payment of the amount due tothem for the sewing machines supplied.4.A detailed counter affidavit has been filed by therespondent producing supporting documents. They submit thatfacts have been suppressed and that petitioners have approachedthis Court with unclean hands disentitling them for relief in thispetition. In the counter affidavit, it is stated that oneSmt.P.Vijayalakshmi, who started M/s.Chitra Apparels referred toabove applied for supply of sewing machines producing a quotationgiven by the petitioner in the name of the respondent. It is stated OP 18640/01:3 :that the application was processed under the hire purchase schemeand ultimately Ext.P3 order was issued by the respondent for supplyof sewing machines for a total value of Rs.2,99,900/-. According tothe respondent subsequently by Ext.R2 dated 15/3/2001, therespondent amended Ext.P3 supply order and the value wasincreased to Rs.2,48,000/-. It is stated that subsequently, by Ext.R3,despatch instruction was given to the fist petitioner for supply ofmachines. Ext.R3 despatch instruction contains several conditions tobe complied with by the petitioners. 5.It is stated that these conditions were not complied withand finally the respondent inspected the premises of M/s.ChitraApparels and found that the petitioners had not supplied the fivethread over lock machine in confirmity with the original and revisedpurchase orders and the despatch instructions. Ext.R4 is theinspection report which discloses these findings. It is stated that inview of Ext.R4, petitioner was directed to produce the original billand supply the machines as per the specifications in the supplyorder. It is stated that the original bill was accordingly produced,but however, this did not tally with the photocopy that wasproduced earlier. It is stated that through Ext.R5, the respondentrequested the first petitioner to offer clarifications, but however, OP 18640/01:4 :there was no response. 6.In the meanwhile, according to the respondent, the hirersend Ext.R6 fax requesting that in view of the non compliance withthe supply order conditions, payment shall not be released to thepetitioner. In the meanwhile, petitioner was claiming paymentwithout curing the defects and finally according to the respondentpetitioner colluded with the hirer and got Ext.P1 issued by them. Itis stated that in the light of Ext.P1, the respondent inspected thepremises on 15/6/01 and found that the petitioner illegally paidmoney to the hirer agreeing to take back the machines after gettingpayment from the respondent. It is stated that they were alsoinformed later that the machines were taken back by the petitionerafter paying Rs.26,000/- to M/s.Chitra Apparels with a promise thaton receiving the payment from the respondent that a further sum ofRs.28,000/- will be paid to the hirer. It is stated that in the aforesaidcircumstances, the petitioner having not supplied sewing machinesas per the purchase order and also having taken the machines backin the dubious manner in which they have done, no amount is due tobe paid.7.Counter affidavit also makes reference to the previousinstance when petitioner committed fraud on the respondent and OP 18640/01:5 :on the basis of which they have made a complaint to theSuperintendent of Police, Aluva. 8.From the counter affidavit thus filed, it is evident that therespondent is not admitting their liability to pay the amount claimedin the original petition. On the other hand, they are contending thatthe machines supplied by the petitioners were not in compliancewith the purchase order and that the petitioners played fraud onthem. On this basis, they are contending that money is not actuallydue to the petitioners. 9.The dispute thus raised by the respondent in the counteraffidavit, which have not been contradicted by a reply affidavit ofthe petitioners show that these are not issues which can be resolvedin a petition under Article 226 of the Constitution of India. If thepetitioners have a case that money is legitimately due to it, theremedy available to the petitioners is to approach the Civil Court.Therefore, no relief can be granted in this original petition.Original petition fails and is dismissed.ANTONY DOMINIC, JUDGERp