High Court Kerala High Court

M/S.Tata Global Bevaraes Limited vs The Kerala State Electricity … on 9 December, 2010

Kerala High Court
M/S.Tata Global Bevaraes Limited vs The Kerala State Electricity … on 9 December, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 1735 of 2010()


1. M/S.TATA GLOBAL BEVARAES LIMITED,(FORMER
                      ...  Petitioner

                        Vs



1. THE KERALA STATE ELECTRICITY BOARD.
                       ...       Respondent

2. DEPUTY CHIEF ENGINEER,

3. THE ASSISTANT EXECUTIVE ENGINEER,

4. THE EXECUTIVE ENGINEER,

5. ASSISTANT ENGINEER,

                For Petitioner  :SRI.JOSEPH KODIANTHARA (SR.)

                For Respondent  : No Appearance

The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MRS. Justice M.C.HARI RANI

 Dated :09/12/2010

 O R D E R
              K.M.JOSEPH & M.C.HARI RANI, JJ.
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                     W.A.No.1735 of 2010
           ----------------------------------------------
         Dated, this the 9th day of December, 2010

                         J U D G M E N T

K.M.Joseph, J.

Appellant is the writ petitioner. The writ petition

was filed seeking to declare that the respondents are bound

by Ext.P1 agreement and they have absolutely no right to vary

or modify the agreed terms and conditions in Ext.P1

agreement unilaterally and also for a direction to comply with

Ext.P1 agreement strictly in terms of the obligation

thereunder. A writ of certiorari is also sought to quash Exts.P4,

P7, P9, P10, P17, P18, P19 and P20.

2. The appellant company entered into Ext.P1

agreement which is the Minimum Guarantee Agreement on

8.12.1993 with the Ist respondent Board for electrification of

its labour quarters and other installations. The case of the

appellant is that it is a one sided agreement. By Ext.P2 dated

9.4.1994 the appellant requested the 2nd respondent for

extending the electrical supply in terms of Ext.P1. Petitioner

again wrote on 16.7.1997 vide Ext.P3 to comply with the

WA No.1735/2010 -2-

agreement. There is no reply and it is after seven years in

2000 vide Ext.P4 the respondent informed the appellant that

the work will be started soon and the appellant was requested

to arrange for revising the Minimum Guarantee Agreement of

the work. There is reference to various correspondence

between the parties. The Board took the stand that the

amounts fixed in Ext.P1 agreement was liable for variation.

The appellant came to Court complaining that there is clear

delay on the part of the respondents in honouring the

obligations under Ext.P1 agreement and the hike in cost and

insistence of execution of revised Minimum Guarantee

Agreement whereunder the appellant is called upon to pay a

larger sum is totally unjustified.

3. The learned Single Judge took the view that it

is not a fit case for consideration under Article 226 and

relegated the appellant to pursue the remedies open to it

otherwise. It is feeling aggrieved by the above, the appellant

is before us.

4. We heard the learned counsel for the appellant

and also the learned standing counsel for the Electricity Board

WA No.1735/2010 -3-

Sri.C.K.Karunakaran.

5. Learned counsel for the appellant would submit

that the documentary evidence itself would establish that

there is delay on the part of the respondents, and, therefore

the learned Single Judge erred in relegating the appellant to

prefer civil suit.

6. Per contra, the learned standing counsel for the

Electricity Board would submit that as to what exactly the

reason for the delay are all matters which can be only

considered after oral evidence is adduced. He would also

point out that the work was taken up when it was ripe in

terms of the priority and the lines were drawn around 6 k.ms

over difficult terrain and this is not a matter which can be

decided in these proceedings.

7. In Ext.P1 Minimum Guarantee Agreement it is

inter alia stated as follows. The amount guaranteed as shown

in column five is liable to variation if the actual cost of the

work exceeds the estimated cost. The case of the Board is

that the actual cost of work has exceeded the estimated cost.

The definite question would be as to whether the increase in

WA No.1735/2010 -4-

the actual cost is attributable to the delay on the part of the

Board. In Ext.P3 the appellant had sought for out of turn

priority in terms of a Board order and the case of the Board is

that the appellant is not entitled to preference.

After having perused the documents and heard

the counsel we are of the view that the learned Single Judge

was right in relegating the appellant to pursue its remedies

elsewhere if so advised. We see no merit in the appeal.

The appeal fails and it is dismissed.

(K.M.JOSEPH)
JUDGE.

(M.C.HARI RANI)
JUDGE.

MS