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2023 Supreme(Ker) 426
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SHOBA ANNAMMA EAPEN, J.
Koppara Enterprises Printing And Copy Solutions (India) Pvt. Ltd., Represented By Its Director Rajeev Ramakrishnan – Petitioner
Versus
The State Of Kerala, Represented By The Principal Secretary To Government and Ors. – Respondents
WP(C) No. 9743 Of 2014
Decided On : 07-06-2023
For the Petitioner: Sri. S. Santhosh Kumar, Smt. P. Lissy Jose.
For the Respondents: Sri. Jayapradeep V., Sri. M. Sasindran, Sri. T. Jayan.
Point of Law: Section 73 of Contract Act reads as compensation for loss or damage caused by breach of contract.
Headnote:
Contract Act, 1872 - Section 73 - Constitution of India, 1950 - Article 226 - Kerala Revenue Recovery Act, 1968 - Contract - Breach of contract - Forfeiture of bill amount on termination of contract - To issue a writ of certiorari or any other appropriate writ or order quashing Ext.P7, P9 & P13 orders and Ext.P14 notice – If any of rights of parties is impaired by such termination, they have efficacious equal remedy before civil court to challenge such action - Para 12.
Finding of the Court: Amount now demanded is disputed by petitioner, without filing a suit, obtaining a decree and executing it, respondent Corporation cannot recover claim amount under Kerala Revenue Recovery Act - Ext.P9 to extent it fixes liability of Rs.6,00,000/- and decision taken not to make bill payment for diaries already supplied, are unsustainable in law - Learned counsel for petitioner sought for a direction to respondents to pay amount for diaries already supplied to respondents - Parties are being relegated to approach civil court for redressal of their grievance, prayer of petitioner for direction to respondents to disburse price of diaries supplied, cannot be allowed - It is made clear that Court have not gone into merits of case - Ext.P9 to extent it fixes liability of Rs.6,00,000/- and Ext.P14 revenue recovery proceedings are set aside.
Result: Petition disposed of.
JUDGMENT :
1. This writ petition is filed with the following prayers;
“i) to issue a writ of certiorari or any other appropriate writ or order quashing Ext.P7, P9 & P13 orders and Ext.P14 notice;
ii) to issue a writ of mandamus or any other appropriate writ or order declaring that the blacklisting of the petitioner and fixation of liability as well as forfeiture of bill amount on termination of contract are unauthorized and in violation of the stipulations in the General Conditions of Contract appended to Ext.P1 tender notification and Ext.P3 Agreement;
iii) to issue a writ of mandamus or any other appropriate writ or order directing the respondents 2 and 3 to disburse the price of the copies of Information Guide (Diary, 2013) supplied by the petitioner under Ext.P3 contract at once;
iv) to issue a writ of mandamus or any other appropriate writ or order declaring that imposition of risk and cost on the petitioner in Ext.P7 order is illegal and unenforceable;
v) to issue a writ of mandamus or any other appropriate writ or order prohibiting the respondents from enforcing Ext.P9, P13 & P14;”
2. The brief facts of the case of the petitioner is as follows;
2.1. The petitioner, a private limited company, running a printing press at Kilikolloor in Kollam district, is aggrieved by Ext.P9 order passed by the second respondent – the Kerala State Backward Classes Development Corporation Ltd., terminating the contract, blacklisting the petitioner and imposing a compensation of Rs.6,00,000/- along with forfeiture of bill payment of Rs.2,74,476/-, alleging delayed delivery of 'Information Guide, 2013' supplied to them, Ext.P13 Appellate Order and Ext.P14 revenue recovery notice.
2.2 The second respondent Corporation, by Ext.P1 notification dated 05.10.2012, invited sealed tenders for printing and supplying 10000 copies of 'Information Guide, 2013' for their use. The petitioner submitted tender and thereafter, the petitioner was invited for negotiation and after negotiation, the rate per copy of the diary was fixed at Rs.59.89. The petitioner deposited Rs.24,000/- as security deposit. The third respondent approved the proof of the diary on 12.12.2012, but the petitioner was directed to defer the printing and the final clearance of the proof was given on 19.12.2012. The petitioner started printing of the diaries and supplied a total number of 4608 diaries. Ext.P3 agreement was executed only on 18.01.2013. As per the tender condition and Ext.P3 agreement, the entire supply of diaries should be made within 15 days from the date of receipt of approval of proof. On 18.01.2013 itself, Ext.P4 notice was issued by the third respondent – Managing Director of the Kerala State Backward Classes Development Corporation Ltd., to the petitioner to show cause why their contract should not be terminated by blacklisting them due to the failure in supplying all the diaries within 15 days' time of approval of the proof. The petitioner filed Ext.P5 reply, stating that the work could not be completed as there was difficulty in getting proper supply of paper from Tamilnadu owing to a scheme for free supply of note books to students being enforced in Tamilnadu and due to the delay in getting import supply of material for making the outer cover of the diaries. Though the petitioner supplied 4563 diaries as on 31.01.2013, no payment was effected by the second respondent, however, Ext.P9 order was served on the petitioner, informing him that the Board of Directors of the Corporation, in its meeting held on 29.04.2013, decided to include the establishment of the petitioner in blacklist and to impose and realize an amount of Rs.6,00,000/- towards compensation for not supplying agreed copies of Information Guide within the stipulated time. It was further stated therein that the Board of Directors also decided not to give bill payment to the Information Guides already supplied by the petitioner. The petitioner filed Ext.P10 review application before the Board of Directors to revi
