IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1760 of 2010()
1. M/S.SIVASAKTHI ENGINEERING & FABRICATORS
... Petitioner
Vs
1. THE KERALA STATE ELECTRICITY BOARD & ORS
... Respondent
For Petitioner :SRI.P.B.KRISHNAN
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :20/10/2010
O R D E R
J.Chelameswar, C.J. & P.R.Ramachandra Menon, J.
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W.A. No.1760 of 2010
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Dated this the 20th day of October, 2010
JUDGMENT
J.Chelameswar, C.J.
Aggrieved by judgment dated 7th June, 2010 in W.P.(C)
No.4377 of 2010, the unsuccessful writ petitioner therein preferred
the present writ appeal.
2. The appellant entered into an agreement with the first
respondent whereby the appellant agreed to supply certain materials
to the respondents. It appears from the records that a substantial
portion of the materials agreed to be supplied has already been
supplied to the respondents. It also appears from the records that
under the terms of the contract the respondents are making payments
periodically for the materials received by them. It is also an
admitted fact that the appellant received some payment for the
materials already supplied to the respondents. At that stage, the
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respondents believed that there was an excess payment made to the
appellant herein for the materials which were already supplied.
Such a conclusion, it appears, was drawn by the respondents on the
ground that the transportation charges required to be paid by the
respondents were wrongly calculated and paid in excess to the
appellant. Therefore, the respondents demanded the appellant to
repay certain amount which was allegedly paid in excess of the
amount due to the appellant.
3. Aggrieved by such a demand, the appellant herein had
earlier approached this Court by way of O.P.No.11794 of 1999. The
said original petition was allowed by judgment dated 24th
November, 2004 in substance holding that the claim of the
respondents that there was an excess payment made to the appellant
herein was a conclusion reached without affording any opportunity
to the appellant and therefore is violative of the principles of natural
justice. By the abovementioned judgment, the learned Judge of
this Court also recorded that the respondents are at liberty to review
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the entire matter afresh after giving an appropriate opportunity to the
appellant.
4. Pursuant to the said judgment, the respondents
reviewed the matter and once again came to the conclusion that
there was an excess payment made to the appellant and issued the
demand under Exts.P28 and P29 which are the impugned orders in
the present writ petition.
5. Though the writ petition was admitted, by the
judgment under appeal, the learned Judge of this Court closed the
writ petition on the ground that the question such as the one raised
in the writ petition requires evidence to be recorded. In other words,
it is a question of fact and therefore opined that such an exercise
could be more conveniently undertaken in a properly constituted
civil suit, but not in a proceeding under Article 226 of the
Constitution of India. The learned Judge also stayed the recovery
pursuant to the orders impugned in the writ petition for a period of
three months in order to enable the appellant to avail the remedy of
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civil suit.
6. Sri.K.Jayakumar, the learned senior counsel appearing
for the appellant, argued that in view of the fact that the writ
petition was already admitted and in view of the fact that no counter
affidavit was filed even by the date of the judgment under appeal,
the learned Judge should have drawn a presumption that the facts
stated in the writ petition are not disputed as there was no rebuttal
on the part of the respondents by way of any counter affidavit. The
learned counsel also submitted that in the said circumstances the
conclusion of the learned Judge that adjudication of the questions
involved in the writ petition requires recording of evidence is not
justified and consequentially the learned Judge was not justified in
closing the writ petition on the said ground.
7. We regret our inability to accept the submission of the
learned senior counsel for the appellant. There is no rule of law
which stipulates that the non-submission of a counter affidavit
rebutting the allegations made in the writ petition should necessarily
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lead to an irresistible conclusion in all cases that the averments made
in the writ petition and the facts constituting to the averments are
not disputed. There is a rule of evidence which requires this Court
to draw an inference in an appropriate case that the facts stated and
the averments made in the writ petition are to be accepted as true in
the absence of any specific denial by the opposite party. However,
in our opinion, such a rule is not a rule of universal application. It
is a rule to be applied with circumspection depending upon the facts
and circumstances surrounding the dispute in each and every case.
Therefore, in our opinion, the judgment under appeal does not
warrant any interference. The writ appeal is dismissed at the
admission stage.
8. The learned senior counsel appearing for the appellant
however prayed that in view of this order, this Court may consider
the extension of the time for recovery of the impugned demands by
some more reasonable period to enable the appellant to approach the
appropriate civil court. In the circumstances, we deem it appropriate
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to direct the respondents not to enforce the impugned demands for a
period of another six weeks from today.
J.Chelameswar,
Chief Justice
P.R.Ramachandra Menon,
Judge
vns