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2012 Supreme(Online)(KER) 25782
HIGH COURT OF KERALA
ANTONY DOMINIC, J
SHARAFUDHEEN – Appellant
Versus
MANAGING DIRECTOR, ROADS & BRIDGES CORPO – Respondent
WRIT PETITION (CIVIL) 13707/2011
The court established that disputes involving contractual obligations and factual determinations are not resolvable in writ jurisdiction under Article 226.
Headnote:
Contract - Toll Collection - Constitution of India, Article 226 - The case revolves around a contractual dispute concerning toll collection dues, where the court emphasized the inability of resolving factual disputes under constitutional provisions.
Fact of the Case:
The petitioner was awarded a toll collection contract but defaulted on payments. The contract was terminated, and a notice was issued for dues, leading the petitioner to file a writ petition to avoid recovery proceedings.
Finding of the Court:
The court found that the dispute was essentially contractual and involved questions of fact unsuitable for resolution under Article 226 of the Constitution. The court noted the petitioner’s representations for waiving dues but did not rule on their merits.
Issues: Whether the petitioner could avoid recovery proceedings for unpaid contract dues under Article 226 of the Constitution due to his claims of loss and subsequent re-auction profits.
Ratio Decidendi: The court concluded that contractual issues with disputed facts should be addressed through appropriate forums rather than under constitutional provisions, directing consideration of the petitioner's representations.
Final Decision: Writ petition disposed of with directions for consideration of representations and maintenance of status quo.
J U D G M E N T
Petitioner was awarded a contract for toll collection at Pulamanthol Bridge for the period from 1/6/2007 to 31/5/2008 for a total contract amount of `31,86,000/-. Default was committed in the payment of dues as specified in the agreement between the parties, the details of which has been furnished in the counter affidavit filed by the respondents. Finally, by Ext.R1(e), the contract was terminated, when despite notice, petitioner failed to discharge the liability.
2. Thereafter, he was issued Ext.R1(f) notice intimating the dues. Payment was not made and after adjustment of the amounts deposited by the petitioner, balance due from the petitioner was quantified at `6,51,923/-. Again notice demanding payment was made. It was not complied with and at that stage the writ petition was filed to avoid recovery proceedings.
3. According to the petitioner, he could not collect sufficient amounts for payment of the contract amount and he suffered huge loss. It is also his case that when after termination WPC No. 13707/11 :2 :
re-auction was held and contract was awarded for the subsequent period from 1/11/2007 to 31/5/2008, respondents received substantial amounts, as a result of which, no actual damages was incurred by them. Therefore, it is contended that there is no justification for the demand now raised.
4. However, the counter affidavit indicates otherwise and the respondents have also given the basis of the quantification of the damages, which is now sought to be realised from the petitioner.
5. In my view, this essentially is a contractual issue and involves disputed questions of fact, which are incapable of resolution in a proceedings under Article 226 of the Constitution of India . Therefore the remedy of the petitioner lies elsewhere.
6. Be that as it may, it is pointed out by the learned counsel for the petitioner that by filing Ext.P2 representation and Ext.R1(c) request, he has sought the indulgence of the respondents for waiving the amount now sought to be recovered from him. It is stated that, in similar cases, such indulgence has been shown.
7. Taking note of the submission made by the learned WPC No. 13707/11 :3 :
counsel for the petitioner regarding the pendency of the aforesaid representations and without expressing anything on the merits of his contentions, I direct the 1st respondent to consider the said representations, which shall be done as expeditiously as possible, at any rate within one month of production of a copy of this judgment. It is directed that until then, status quo shall be maintained.
Writ petition is disposed of as above.
ANTONY DOMINIC, JUDGE Rp
