Arijit Pasayat, J. - (1.) Challenge in these appeals is to the judgment of a Division Bench of the Kerala High Court holding that quantification of damages done and demanded from the respondent No.1 cannot be legally sustained and accordingly they were set aside. The writ petition was directed to be placed before the Division Bench by a learned Single Judge. But the question referred by learned Single Judge i.e. question of limitation was left open to be adjudicated by the appropriate authority in accordance with law.
(2.) The background facts in a nutshell are as follows :- The respondent No.1 had entered into Ext. P1 agreement with the appellant-Kerala State Science and Technology, Thiruvananthapuram which is a society registered under the Travancore Cochin Literary and Scientific Societies Registration Act, 1995, on 16.05.1988 for the construction of planetarium building of the Kerala State Science and Technology Museum and allied Civil Works. Dispute having arisen between the parties the agreement came to be terminated by Ext. P2 termination notice dated 03.11.1989 issued by the appellant. Ext. P2 was followed by Ext. R1(c) letter from the managing Partner of the respondent No.1 allegedly admitting the breach of contract. Suit notice dated 06.11.1990 issued by the appellant to the respondent No.1 which was replied by it as per Ext. P3 dated 31.12.1990 repudiating the alleged breach and raising a counter-claim. According to the respondent No.1 there was a long silence after Ext. P3 which was broken on 12.01.1998 on which date it received Ext. P4 demand notice from the Deputy Tahsildar (RR, Thiruvananthapuram under Section 34 of the Revenue Recovery Act, 1968 calling upon it to remit an amount of Rs.22,10,303/- with future interest at the rate of 12% from 01.04.97. On receipt of Ext. P4 the respondent No.1 moved the High Court with Arbitration Request No.2/98 under Section 11 of the Arbitration and Conciliation Act, 1996 for the appointment of an arbitrator for resolution of all disputes and differences between the parties concerning the performance of the work under Ext. P1 agreement. The request was resisted by the appellant contending, inter alia, that there is no provision for arbitration in Ext. P1 agreement. It was also contended that as per clause 54 of Ext P1 agreement, there is a specific exclusion of resolution of disputes by arbitration and the Civil Courts at Thiruvananthapuram alone are clothed with jurisdiction to resolve the disputes arising between the parties out of Ext.P1 agreement. In other words, not only Ext. P1 does not contain an arbitration clause, on the contrary, Ext. P1 specifically rules out arbitration as a mode of settlement of disputes or claims arising out of Ext. P1. Accepting the said contentions the High Court rejected the request. After the said order was passed by the High Court, the respondent No.1 filed writ petition, being O.P. No. 22633/98 to quash Ext. P4 demand notice and for other reliefs which came to be disposed of by judgment dated 17.11.98 directing the District Collector to consider and pass orders on the representation preferred by the respondent No.1 within one month from the date of receipt of a copy of the judgment. Pending issuance of orders by the District Collector as aforesaid, the demand notice as evidenced by Ext. P4 was stayed. As a sequel to the judgment, the District Collector passed an order rejecting Ext. P8. Upon rejection of Ext.P8 by District Collectors order Ext.P4 was revived and the respondent No.1 was called upon to pay the amount mentioned therein being the loss suffered by the appellant in re-arranging the work at the risk and cost of the respondent No.1. It was at this stage, that the said respondent moved the High Court by filing a writ petition praying for the issuance of a writ of certiorari or any other appropriate writ, direction or order quashing the order and Ext.P4 demand notice as illegal and arbitrary and for the issuance of a writ of mandamus declaring that revenue recovery proceedings may be initiated against the respondent No.1 only after prior adjudication by a court of law or any other independent judicial/quasi-judicial body and other reliefs.
(3.) When the writ petition came up for hearing before learned Single Judge, it was contended by the learned counsel for the writ-petitioner that since breach of contract is not admitted, the first respondent (present appellant, standing in the position of another party to the contract, cannot unilaterally assess the damage alleged to have sustained by it on account of the alleged default on the part of the writ-petitioner. It was also contended that the amount demanded as per Ext. P4 is time barred. Further contention of the writ-petitioner was that since the entire proceedings are barred, a time barred debt cannot be recovered by recourse to revenue recovery proceedings. Stand of the first respondent (present appellant) it is a society owned by the State and, therefore, Article 112 of the Limitation Act, 1963 (in short the Limitation Act) is applicable and in that view, the demand raised is well within time. In view of the nature of the contentions raised, learned Single Judge felt that the matter should be placed before a Division Bench.;