Dismissed

M/S.G.K.Granites v. Union of India

Kerala HC15 Dec 2010WP(C)/15939/2006

Case brief

AI extract

What is this about?

The Court held that factual disputes regarding a contract dispute between the petitioner and the 3rd respondent are not triable in a writ petition and must be litigated in the appropriate Civil Court. However, recognizing the delay caused, the Court allowed the petitioner to be repressed exclusively of the period spent in this Court while calculating limitation.

What did the court decide?

The writ petition is dismissed leaving it open to the petitioner to approach the appropriate Civil Court.

M/S.G.K.Granites Vs Union of India — Contract and Commercial Disputes | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE ANTONY DOMINIC

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WEDNESDAY, THE 15TH DECEMBER 2010 / 24TH AGRAHAYANA 1932

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WP(C).No. 15939 of 2006(V)

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----------------------------------

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PETITIONER(S):

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-------------------

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M/S.G.K.GRANITES, KIZHAKKAMBALAM.P.O, ERNAKULAM, REP. BY ITS MANAGING PARTNER, GEORGE ANTONY, AGED 54 YEARS, S/O.KORAN ANTONY.

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BY ADV. SRI.SAIBY JOSE KIDANGOOR

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RESPONDENT(S):

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--------------------

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1. UNION OF INDIA, REP. BY ITS SECRETARY TO GOVT., MINISTRY OF ROAD TRANSPORT AND NATIONAL HIGHWAY, ROOM NO.509, TRANSPORTS BHAVAN, PARLIAMENT STREET, NEW DELHI-1.

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2. THE CHAIRMAN, NATIONAL HIGHWAY AUTHORITY OF INDIA, G.5 AND 6 SECTOR 10, NEW DELHI-110 045.

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3. THE MANAGING DIRECTOR, M/S.LARSEN & TOURBO LIMITED, L & T HOUSE, BALLARD ESTATE, P.O.BOX NO.278, MUMBAI.400 001.

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R1 BY ADVS. SRI.T.P.M. IBRAHIM KHAN, ASST.SG. SRI.S.R.AJITH, ADDL.CGSC SRI.P.S.BIJU, CGSC. R2 BY ADVS.SRI. RAJESH VIJAYENDRAN SRI. C. AJITH KUMAR R3 BY ADVS.SRI. P.R. VENKETESH SRI.P.C.CHACKO SRI. RAJESH NARAYAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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svs/

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WP(C).No. 15939/2006(V)

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1: COPY OF THE NOTICE DATED 01/04/2005 TO THE 2ND RESPONDENT

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P2: COPY OF THE REPRESENTATION TO THE HON'BLE MINISTER FOR SHIPPING ROAD TRANSPORT AND NATIONAL HIGHWAYS.

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P3: COPY OF THE LETTER DATED 23/03/2005 REQUESTING FOR DISCUSSION WITH THE REGIONAL MANAGER.

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P4: COPY OF THE CONTRACT FOR THE SUPPLY OF BOULDERS FOR THE NATIONAL HIGH WAY WORKS CONTRACTS ENTERED IN TO BETWEEN THE PETITIONER AND THE L & T.

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P5: COPY OF THE CONTRACT FOR THE SUPPLY OF CRUSHED MATERIAL FOR THE NATIONAL HIGH WAY WORKS CONTRACTS ENTERED IN TO BETWEEN THE PETITIONER AND THE L & T.

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P6: COPY OF THE REPRESENTATION TO NHAI SUBMITTED BY THE PETITIONER.

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P7: COPY OF THE JUDGMENT DATED 21/02/2006 IN WPC.NO.20076/2005 PASSED DBDY THIS HON'BLE COURT.

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P8: COPY OF THE NOTICE ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT.

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P9: COPY OF THE ORDER DATED 02/05/2006.

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P10: COPY OF THE REVIEW PETITION BEFORE THE 1ST RESPONDENT FILED BY THE PETITIONER.

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P10: LETTER OF INTEND ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.

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P11: COPY OF ORDEER DATED 04/10/2007 IN CRP NO.687/2007 PASSED BY THIS HON'BLE COURT.

Svs/

.........2/-...

...2...

RESPONDENT'S EXHIBITS:

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R3(a):COPY OF THE REPLY DATED 04/05/2005 ISSUED BY THE COUNSEL TO THE 3RD RESPONDENT TO THE PETITIONER.

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R3(b):COPY OF THE JUDGMENT DATED 28/03/2009 OF THE SUB COURT, PERUMBAVOOR IN OS NO.139/2007.

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R3(c):COPY OF THE JUDGMENT DATED 31/07/2009 IN CMP.NO.143/2008 OF THE HIG COURT OF KARNATAKA.

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R3(d):COPY OF THE LETTER DATED 27/05/2008 ISSUED BY THE PETITIONER THROUGH THEIR COUNSEL TO THIS RESPONDENT.

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R3(e):COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT DATED 20/06/2008 TO THE PETITIONER.

/TRUE COPY/

P.A. TO JUDGE

svs/

ANTONY DOMINIC, J

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W.P.(C).No. 15939 OF 2006

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Dated this the 15^th day of December, 2010

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JUDGMENT

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The 3^rd respondent entered into a contract with the 2^nd respondent in relation to the construction of a National Highway. In connection with the said work, a contract was entered between the petitioner and the 3^rd respondent for the supply of boulders and crushed aggregates at the quantity specified in the agreement and subject to other terms and conditions.

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According to the petitioner, though supplies were made, the third respondent refused to issue completion certificate or to pay the amounts due for the materials supplied as per the contract. Petitioner made several representations and the representations also did not yield any result. Therefore, they approached this court and filed W.P(C) No.20076/2005, seeking a direction to the 1^st respondent for settling their claim. That Writ Petition was disposed of by Ext.P7 judgment directing the Union of India to consider the representations made.

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It is stated that in pursuance to the directions in the judgment, Ext.P9 order was passed by the 1^st respondent directing that the issue should be settled between the petitioner

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W.P.(C).No. 15939 OF 2006

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and the 3^rd respondent. This thereupon that this writ petition has been filed challenging Ext.P9 order and also seeking a declaration that the petitioner is entitled to be paid Rs.9,68,91,608/- from out of the amount due from the 2^nd respondent to the 3^rd respondent.

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A counter affidavit has been filed by the 3^rd respondent. In the affidavit, the 3^rd respondent has denied all allegations of breach of contract alleged against them and on the other hand they accuse the petitioner of having committed breach of contract. The 3^rd respondent also dispute their liability to pay any amount to the petitioner.

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In the nature of the factual disputes that are raised by both parties, it is obvious that the questions raised in the writ petition cannot be resolved in a proceedings under the Article 226 of Constitution of India. Therefore, the remedy of the petitioner is to file a suit, before the appropriate Civil Court and in view of the matter, the relief sought for in the writ petition will have to be declined and I do so.

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At this stage, counsel for the petitioner pleaded that since the claim relates to the year 2005 and they had filed this writ petition on 19.6.2006 which is now dismissed by this Court

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W.P.(C).No. 15939 OF 2006

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relegating the petitioner to approach the Civil Court, the petitioner should be given the benefit of Section 14 of the Limitation Act, by excluding the period spent before this Court, while calculating the period of limitation. Although, the counsel for the petitioner had his reservations against this submissions, having considered the submissions made by both sides, I am of the view that, since this Court is now taking of the view that the petitioner will have to seek his remedies before the Civil Court and as they were prosecuting this case before this Court, the petitioner should be entitled to the benefit of exclusion of the period as provided in Section 14 of the Limitation Act.

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Subject to the above, this writ petition is dismissed

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leaving it open to the petitioner to approach the appropriate Civil Court.

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ANTONY DOMINIC JUDGE

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dmb

M/S.G.K.Granites v. Union of India

Case brief

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M/S.G.K.Granites v. Union of India

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