9911796707
TMI Blog2006 (8) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant clearly established admission of a breach of contract. The portion of the order of learned Single Judge, quoted above, suggests that there was no dispute when read in the context of the letter. As rightly contended by learned counsel for the appellant the basic issue related to the question whether the demand was barred by limitation. As noted above the Division Bench of the High Court did not examine this question. Above being the question we set aside the order of the Division Bench and remit the matter back for fresh consideration limiting the examination to the question whether the demand by barred by limitation. Interim order shall be operative till the disposal of the matter by the Division Bench. We make it clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived 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. When the writ petition came up for heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in termination of the contract, the respondent No.1 disputed the position and submitted that no breach of contract can be spelt out as seen from the document Ex.P3. High Court came to the conclusion that one of the contracting parties cannot adjudicate upon a disputed question of breach as well as assess the damage arising from the breach. It, however, noted that the position would be different where there is no dispute or there is consensus between the contracting parties regarding breach of conditions. In such a case an officer of the State even though a party to the contract will be well within its right in assessing the damages in view of the specific terms of clause 12 of the Contract. In support of the appeals, learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... importance of that matter, learned single judge felt that the matter should be heard by a Division Bench. It was submitted that when a reference is made by learned Single Judge to the Division Bench on a particular issue, the Division Bench cannot travel beyond that issue and decide other matters. In response, learned counsel for the respondent No.1 submitted that in fact there was no reference by learned Single Judge, who only held that considering the importance of the matter the case should be heard by a Division Bench. It is also submitted that there was dispute regarding breach of conditions of contract. It is fairly well settled that when reference is made on a specific issued either by a learned Single Judge or Division Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue recovery proceedings. Stand of the appellants on the contrary was that the society is owned by the State and, therefore, Article 112 of the Limitation Act, 1963 is applicable and the demand was raised within time. Considering the rival submissions learned Single Judge held that in view of the nature of contention the matter should be heard by a Division Bench. Unfortunately the Division Bench did not consider the contentions which were raised before the learned Single Judge. It also did not record any positive finding as to whether the document relied upon by the appellant clearly established admission of a breach of contract. The portion of the order of learned Single Judge, quoted above, suggests that there was no dispute wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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