The petitioner has approached this Court with the following reliefs:
“i. Issue a writ of mandamus or any other appropriate writ, order or direction directing the 2nd respondent to consider Ext.P7 and recover the amount from the 4th respondent in the capacity of Garnishee;
ii. Issue a writ of mandamus or any other appropriate writ, order or direction directing the 4th respondent to return the amount to the petitioner which was retained towards performance guarantee;
iii. Issue a writ of mandamus or any other appropriate writ, order or direction directing the 3rd respondent to consider Ext.P5 and pass orders and not to proceed till a decision is taken on Ext.P7 by the 2nd respondent;
iv. Issue any other appropriate order or direction, which this Honourable Court deems fit to grant in the facts and circumstances of the case.”
2. The grievance of the petitioner is mainly in respect to the coercive proceedings taken at the instance of the additional 5th respondent for realisation of the amount of about 2.84 lakhs towards 'Rubber Cess' for the period from 2005 to 2009. The case of the petitioner is that, even though there is no dispute with regard to the claim made by the additional 5th respondent, the petitioner is not in a position to satisfy the same in view of the ongoing dispute between the petitioner and the 4th respondent, for the balance payment to be effected to the petitioner in respect of the various supplies of 'Tread Rubber' made at different points of time. The petitioner has also sought for intervention by the 2nd respondent- the District Head of the Revenue, by passing appropriate orders on Ext.P7, referring to the pendency of dispute between the petitioner and the KSRTC. The concerned respondents have filed counter affidavit/additional counter affidavit/statement as the case may be and the petitioner has filed a reply affidavit as well.
3. Heard both the sides in detail.
4. The learned counsel for the petitioner submits that the petitioner was running a small scale industry engaged in the manufacture and sale of 'Tread Rubber' and pursuant to Ext.P2-work order awarded to the petitioner, he was supplying 'Tread Rubber' at different points of time. By virtue of the terms agreed, the petitioner had to deposit a sum of Rs.4.7 lakhs as security deposit, which is still remaining at the hands of the 4th respondent. In respect of the supplies effected, only 80% used to be released and the balance 20% was retained as performance guarantee. A total sum of about 55 lakhs is still to be cleared, to be released to the petitioner. Several requests were made in this regard but turned to be futile. The unit came to be closed in the year 2009 and the petitioner is lying paralysed, living at the mercy of his daughter. On receipt of the notice issued at the instance of the additional 5th respondent, referring to various steps under the R.R. Act, the petitioner has approached this Court seeking for a direction to be given to the 2nd respondent to consider and pass appropriate orders on Ext.P7, simultaneously seeking a direction to the 3rd respondent to consider Ext.P5 and pass appropriate orders till a decision is taken on Ext.P7, by the 2nd respondent .
5. The learned standing counsel for the KSRTC submits that, as per Ext.P2, the quality of the product had to be maintained assuring a minimum mileage of 26,000 Kms. In the very same proceeding, it was clearly stipulated that the retention amount (20%) will be released only according to assessment of the final performance of the materials and any loss due to shortfall in the guaranteed mileage will be realised on pro-rata basis. The learned counsel further submits that two supplies were effected by the petitioner; first one on 18.10.2005, which could obtain only a mileage of 70.53% and in respect of the next supply effected on 9.10.2006, it could generate a mileage of only 69.91%. By virtue of the shortfall as above, the KSRTC was put to great loss. Under such circumstances, the Civil Court has already been moved by filing O.S.No.1371/2009 which is pending before the Sub Court, Thiruvananthapuram. It is also stated that the suit was dismissed for default once, but an I.A. has already been filed seeking to have the same restored.
6. After hearing both the sides, this Court finds that the dispute between the petitioner and the KSRTC which is the subject matter of O.S. No.1371/2009, cannot form the subject matter of the present Writ Petition and since the issue is pending before the Civil Court, the 2nd respondent does not have any jurisdiction to deal with the issue. The parties have to work out their remedies before the Civil Court.
7. Coming to the claim put up by the 5th respondent, leading to the R.R. Notices, it is seen that there is no dispute with regard to the extent of liability to be cleared to the said respondent. In such circumstances, this Court finds that the petitioner is not entitled to have any relief in the Writ Petition.
In the above circumstance, interference is declined. Writ Petition is dismissed. However, considering the particular facts and circumstances, the petitioner is permitted to clear the liability to the additional 5th respondent by way of 'five' equal monthly instalments; the first of which shall be effected on or before the 15th of January, 2015, followed by similar instalments to be effected on or before the 15th of the succeeding months. Subject to this, the coercive steps shall be kept in abeyance for the time being. If any default is committed, the benefit given will automatically stand withdrawn. It is made clear that this Court has not expressed anything with regard to the merits of the case or the rights and liberties of the parties concerned.
Sd/-
P.R. RAMACHANDRA MENON, JUDGE jjj