Writ Jurisdiction Can't Be Invoked When Contract Provides Arbitration Remedy: Kerala High Court

The Division Bench comprising Chief Justice Soumen Sen and Justice Syam Kumar V.M. was delivering the judgment in a writ appeal challenging the termination of an EPC contract by the Cochin Port Authority.

The appellant, who is a contractor assigned with the work of construction of international and domestic cruise terminal and other allied facilities at Mormugao Port Authority through EPC contract approached the Court on the termination of his contract.

A show cause notice was issued by the Cochin Port Authority on 21.11.2025 in which it was alleged that the contract was liable to be terminated for wrongful delay or suspension of work or slow progress or inferior workmanship. A period of 10 days was given for a satisfactory reply, on failure of which the contract would be terminated.

The appellant replied to the show cause notice on 01.12.2025 and stated that the delay in work was non availability of the valid CRZ approval and indemnity. It was also stated that arbitration proceedings were underway concerning variations in scope and consequential payments which forms the core contractual financial structure of the Cochin Port. It was further submitted that since the arbitration proceedings were pending, the termination of the contract would be unfair.

Despite the timely reply, the contract was terminated by the Port authority. Hence, the petitioner approached the High Court.

The appellant argued that the termination order was vitiated because it relied on grounds not mentioned in the show cause notice, violating settled principles of natural justice. The appellants relied on Supreme Court precedents such as Gorkha Security Services v Government (NCT of Delhi) and Others [(2014) 9 SCC 105] and UMC Technologies Private Ltd. v Food Corporation of India and another [(2021) 2 SCC 551, which require that a show cause notice must clearly specify allegations and proposed actions and the final orders cannot travel beyond the scope of the notice.

The Court made a conceptual distinction between “maintainability” and “entertainability,” noting that while Article 226 powers are not statutorily barred, courts exercise self-imposed restraint when alternative remedies exist.

It held that the presence of an arbitration clause does not legally bar writ jurisdiction. However, where effective remedies are available under Arbitration and Conciliation Act, 1996, the High Court would be reluctant to entertain a writ petition.

“However, the fact remains that if the parties have agreed to a specific forum to which the dispute is required to be referred, this Court would be extremely reluctant to entertain a writ petition on the issue, in view of the existence of such an alternative remedy. It cannot be contended that the remedy which the petitioner has sought in this writ petition cannot be granted in a proceeding under Section 9 of the Act, which is a Code in itself. It is noted that the remedy which has been claimed in this proceeding, can be conveniently granted by a court deciding an application under Section 9 of the Act or even by the Arbitrator in a proceeding under Section 17 of the Act.” the Court said.

The Court underscored that writ jurisdiction should be invoked only where there is an absence of an efficacious alternative remedy or in cases of manifest injustice.

The Court further acknowledged that prima facie discrepancies may exist between the show cause notice and termination grounds. However, it held that such issues are fact intensive and contractual in nature and they can be more appropriately adjudicated in arbitration proceedings.

“It is trite law that mere existence of disputed questions of fact would not stand in the way of the writ court in deciding the matter, provided such disputed questions of fact can be tried and decided by the writ court. There is no bar per se even for the writ court to take evidence in this regard, but having regard to the fact that there are efficacious alternative remedies available where such issues can be more conveniently dealt with and decided, the writ court in appropriate situations decline to exercise this discretionary remedy ", the Court added.

The Court thus disposed of the writ appeal was disposed with liberty to the appellant to pursue remedies under the Arbitration Act. The Court clarified that its refusal to entertain the writ would not prejudice such proceedings.

Recognizing practical constraints due to the summer recess, the Court granted limited interim protection and directed that no coercive steps shall be taken against the appellant for six weeks, and joint measurement of work to be conducted in the interim.

Case Title: M/S RCC-ACC (JV) v Board of Major Port Authority for Port of Cochin and Anr.

Case No: WA 834/ 2026

Citation: 2026 LiveLaw (Ker) 235

Counsel for Appellant: Amritha Pande, Ranjith Varghese, Rahul Varghese, Ralitzine Mendes, Akhil Sunil Nedungadi

Counsel for Respondent: Pooja Menon, Joseph, Abraham Joseph Markose