BY AD vs SRI.RENJITH THAMPAN (SR.)

Guarantee furnished by the petitioner. It is contended that as per the terms of Ext.P1 agreement, all disputes arising out of Ext.P1 agreement are to be raised in the courts in Pathanamthitta District, and a writ petition under Article 226 of the Constitution is not the remedy.

5. The petitioner has filed a reply to the counter affidavit stating that, to his knowledge, there has been no production loss for the respondent due to the non-supply of ENA and hence they are not W.P.(C). No.31720 of 2023 6 entitled to recover any damages for the loss. The respondent has thereafter produced the audit report of the respondent as an additional document, to show the position as per their accounts.

6. Heard Sri.Renjith Thampan, Senior Advocate on instructions by Sri.V.M.Krishnakumar, on behalf of the petitioner and Sri.P.K.Rakesh Kumar, Standing Counsel for the respondent.

7. The facts are not much in dispute. As per Ext.P1, the agreement was to supply 13.5 lakh litres ENA, from 01.07.2021 to

31.12.2021 as per the supply order issued by the respondent. According to the petitioner, before the expiry of the agreement on

31.12.2021, the respondent had placed supply orders for 7.9 lakh litres of ENA only, and the said quantity had been supplied by the petitioner. It is seen that even after the expiry of the agreement on

31.12.2021, the respondent had placed a supply order on 07.01.2022. According to the petitioner, he is not bound to comply with the said supply order. The petitioner submits that except for supplying a quantity of 2.4 lakh litres, the rest of the quantity had been supplied. It is in the above circumstances that the petitioner has requested the refund of the EMD and the release of the Bank Guarantee. The writ petition itself was filed after more than 18 months of the expiry of the period stipulated in Ext.P1. W.P.(C). No.31720 of 2023 7

8. A reading of Ext.P1 agreement would show that the petitioner had to confirm the name of the supplier distillery, quantity etc. to the respondent in writing based on the delivery schedule given by the respondent so that NOC and import permits from Kerala Excise Department can be arranged in time by the respondent at their cost. Clause 12 of the agreement further says that in case of delay on the part of the petitioner in confirming the name of the supplying distillery, the responsibility will be solely that of the petitioner and the petitioner will be liable for the losses that may be sustained by the respondent due to the delay in the supply. The case of the respondent is that on

06.12.2021, they had requested the petitioner to send route and source of 3 lakh litres of ENA for applying for NOC and permit from the Excise Department. Reminder is stated to have been sent on

16.12.2021 and when no response was offered by the petitioner, the respondent had again sent an urgent reminder on 21.12.2021. It is stated that on 22.12.2021, the respondent sent an urgent request for 4 lakh litres of ENA and sent a reminder on 23.12.2021. It is stated that the petitioner provided the route and source only on 24.12.2021 and thereafter the respondent had applied for NOC and permit on

26.12.2021. The NOC, received on 30.12.2021 for 2 lakh litres having permit validity upto 29.03.2022, is stated to have been sent to the W.P.(C). No.31720 of 2023 8 petitioner by courier. It is hence submitted that the petitioner was under the legal obligation to supply 2 lakh litres of ENA as per Ext.P1 agreement itself. It is contended that even the said quantity was not fully supplied. The above facts are not seriously disputed. However, it is contended that even with the additional quantity required, the total order issued comes only to 10.09 lakh litres out of the agreed quantity of 13.5 lakh litres.

9. The main contention of the respondent is that the petitioner has to approach the competent civil court since these are disputed matters relating to a contract, which cannot be agitated under Article 226 of the Constitution of India. Reliance is placed on Ext.R1(f) judgment of a learned Single Judge of this Court in WP(C) No.37921/2008, which relates to a claim by another supplier of ENA of the respondent. This Court held that adjudication into inter se liabilities has to be done by a competent authority and cannot be the subject matter of a writ petition under Article 226 of the Constitution. The counsel for the petitioner relied on the decision of a learned Single Judge of this Court in Julie Sabu V. State Election Commission, Tvm. (2024 (2) KHC 106) to submit that there can be no illegality in entertaining a writ petition when there are no disputed questions of fact. Reliance was also placed on a judgment of the Hon'ble Supreme W.P.(C). No.31720 of 2023 9 Court in Deputy Commissioner, Central Excise and Another V. Sushil and Company (2016 (13) SCC 223) to canvas the said contention. The counsel also relied on the judgment of the Hon'ble Supreme Court in Municipal Committee Katra V. Ashwani Kumar (2024 KHC OnLine 8219), wherein the Hon'ble Supreme Court had held that disputes arising out of purely contractual obligations cannot be entertained by the High Court in exercise of its extraordinary jurisdiction under Article 226. Reliance was also placed on the decision in Union of India and Others V. M/s.Puna Hilda [(2021 KHC OnLine 6426 = (2021 (10) SCC 690)]. The Hon'ble Supreme Court in the said decision held that a dispute arising out of terms of a contract or a breach of a contract has to be settled by the ordinary principles of the law of contract and the mere fact that one of the parties to the agreement is a statutory or public body will not by itself make a difference. The said observation was an extract from an earlier judgment of the Hon'ble Supreme Court in Kerala State Electricity Board & Another V. Kurien E. Kalathil & Others (2000 (6) SCC 293), wherein it was held that such matters cannot be decided in a petition under Article 226.

10. Having gone through the pleadings on either side, it cannot be said that there are no disputed facts in the case on hand. I find W.P.(C). No.31720 of 2023 10 considerable force in the contention raised by the respondent that these are not matters that can be settled in a writ petition under Article 226. The petitioner has to approach the competent civil court for relief.

11. The writ petition fails and is dismissed, without prejudice to the right of the petitioner to approach the competent civil court and the period spent before this Court in this writ petition shall be excluded for calculating the period of limitation. Sd/- T.R. RAVI JUDGE Pn/dsn W.P.(C). No.31720 of 2023 11 APPENDIX OF WP(C) 31720/2023 PETITIONER'S EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 TRUE COPY OF THE AGREEMENT DATED 01.07.2021 TRUE COPY OF THE RECEIPT DATED 02.06.2021 EVIDENCING DEPOSIT OF EARNEST MONEY DEPOSIT OF RS.7,50,000/ TRUE COPY OF THE RECEIPT DATED 08.09.2021 FOR FURNISHING BANK GUARANTEE OF RS.6,75,000/- TRUE COPY OF THE LETTER SENT BY THE PETITIONER TO THE RESPONDENT DATED 10.05.2023 TRUE COPY OF LETTER ISSUED BY THE TRAVANCORE SUGARS AND CHEMICALS LTD, LETTER NO.TSCL/CMD/ENA/RE-TENDER/2022-2023 DATED 27.07.2023 RESPONDENTS' EXHIBITS Exhibit R1 (a) PHOTOCOPY OF THE TENDER CONDITIONS FOR SUPPLY OF ENA DATED 17.5.21 Exhibit R1 (b) PHOTOCOPY OF THE EMAIL COMMUNICATION DATED 6.12.21 Exhibit R1 (c) PHOTOCOPY OF THE EMAIL COMMUNICATION DATED NIL Exhibit R1 (d) PHOTOCOPY OF THE NOC BEARING NO: NOCIPS/2021/01022 DATED 30.12.21 Exhibit R1 (e) PHOTOCOPY OF THE NOC BEARING NO: NOCIPS/2021/01023 DATED 30.12.21 W.P.(C). No.31720 of 2023 12 Exhibit R1 (f) PHOTOCOPY OF THE JUDGMENT IN WP (C) NO: 37921/2008 DATED 5.2.15 Exhibit R1 (G) PHOTOCOPY OF THE AUDIT INSPECTION REPORT BEARING NO: AMG-II/HQ II/A/12-9058/ 2021- 23/38 DATED: 05.01.2024 OF THE ACCOUNTANT GENERAL OF KERALA