V D SWAMI AND CO LTD Vs. CHIEF ENGINEER PUBLIC HEALTH ENGI NEERING DEPARTMENT GOVT OF KERALA TRIVANDRUM KERALA STATE

JUDGEMENT

(1.) IN this Writ Appeal, the order of V. Ramaswami, J, dismissing the Writ Petition No.3452 of 1978 in limine has been challenged.

(2.) THE appellant herein entered into a contract with the Chief Engineer, Public Health Engineering Department for the supply of 10 Nos. of Chlorine Tonne Containers at the rate of Rs.8,240 each F.O.R. Ernakulam Goods Shed. As per the terms of the contract, the appellant despatched 10 Nos. of Chlorine Tonne Containers after due inspection by Lloyds Register of Industrial Services along with their certificate to Ernakulam Goods Shed on 3rd December, 1973 and a bill dated 4th December, 1973 for a sum of Rs.93,359.20 to the Executive Engineer, Public Health Central Stores, Cochin. As per the contract, 90 per cent of the total value Rs. 84,023.28 was paid to the appellant on presentation of the documents and the balance of 10 per cent was payable on a later day. However, the Chief Engineer, Public Health Engineering Department, not only withheld the balance of 10 per cent but also raised a demand for repayment of the sum of Rs.84,023.28 earlier paid to the appellant. When the appellant resisted the said demand for repayment of 90 per cent of the value of the goods supplied, the 1st respondent has proceeded to invoke the provisions of the Revenue Recovery Act and to take coercive proceedings under the provisions of that Act for recovery of the amount of Rs.-84,023.28 from the appellant. It is at that stage, the petitioner came to the Court seeking a writ of certiorari to quash the notices, dated, 17th April, 1978 and 23rd May, 1.978 issued by respondents 3 and 4 threatening to recover the amount by invoking the provisions of the Revenue Recovery Act. THE said writ petition was dismissed by the learned single Judge at the stage of admission on the ground that it is not possible to go into the disputed questions under Art.226 of the Constitution, as lot of evidence is necessary to find out as to whether there is any breach of the contract on the part of the appellant, or whether" the breach was on the part of the Government and whether any amount is due by the appellant to the Government or by the Government to the appellant. Such being the position, the proper remedy� for the parties would be to go before the Civil Court. THE said decision of the learned single Judge has been challenged in this appeal mainly on the ground that the liability of the appellant to refund the amount representing 90 per cent of the contract value having been disputed, it is not open to the respondents to invoke the Revenue Recovery Proceedings.

(3.) THUS, the legal position as culled out from the relevant decisions may be stated as under: