Allahabad High Court - Lucknow Bench Judgement

Allahabad High Court - Lucknow Bench Judgement

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JUDGEMENT HEADLINE : ....second Writ Petition Would Constitute An Abuse Of The Process Of The Court Since It Had Already Been....
JUDGEMENT TITLE : M/S Alaska Tech Thru Prop. Sanjeet Singh & Another Vs. State Of U.P. Thru Prin. Secy. Urban Development & Others On 08/05/2014 By Allahabad High Court - Lucknow Bench
CASE NO : MISC. BENCH NO. 3861 OF 2014
CORAM : Hon'ble Dhananjaya Yeshwant Chandrachud,Chief Justice And Hon'ble Devendra Kumar Upadhyaya,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Chief Justice's Court A.F.R.

Case :- MISC. BENCH No. - 3861 Of 2014

Petitioner :- M/S Alaska Tech Thru Prop. Sanjeet Singh & Another
Respondent :- State Of U.P. Thru Prin. Secy. Urban Development & Others
Counsel For Petitioner :- Laltaprasad Misra,Abhishek Misra
Counsel For Respondent :- C.S.C.,Anand Kumar Singh

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Devendra Kumar Upadhyaya,J.

The Petitioners Claim To Have Supplied Spare Parts During 2008-09, 2009-10, 2010-11, 2011-12 And 2012-13 To The Lucknow Nagar Nigam (the Second Respondent). According To The Petitioners, Their Bills For 2008-09 Was Cleared In 2010, But The Payments, For Which Bills Were Raised For The Period 2009 To 2013, Have Not Been Made. According To The Petitioners, A Deduction Of 22% Has Been Made From The Bills Without Justification. The Relief Which Is Sought In These Proceedings Is A Mandamus To The Respondents To Make Payment Of An Amount Of Rs.1,34,71,670/- In Respect Of The Spare Parts Allegedly Supplied By The Petitioners To The Central Works Shop Of The Second Respondent During Financial Years 2009-10, 2010-11, 2011-12 And 2012-13 Together With Interest At The Rate Of 18% Per Annum.
At The Outset, A Preliminary Objection Was Raised By The Learned Standing Counsel Appearing On Behalf Of The Respondents To The Maintainability Of This Petition Under Article 226 Of The Constitution.
We Are Of The View That, In A Matter Of This Nature Which Pertains To Alleged Non-payment Of Dues Under A Contract For Supply Of Goods, It Would Neither Be Prudent Nor Judicious For This Court, In Exercise Of Its Jurisdiction Under Article 226 Of The Constitution, To Grant Relief, Which Is In Substance, Is A Prayer For A Money Decree. These Matters, It Must Be Emphasized, Are Not Those Relating To Statutory Contracts But Are Purely Non-statutory Contracts. Whether Work Has Been Satisfactorily Performed, Whether The Rates Which Had Been Quoted Are In Accordance With The Terms Of The Contract, Whether The Goods Were Of A Quality As Mandated, And Above All, Whether The Claim Is Within Limitation Or Otherwise, Are Issues Which Cannot Appropriately Be Adjudicated Upon Under Article 226 Of The Constitution.
Increasingly, In Cases Like The One In Hand, Instead Of Taking Recourse To The Jurisdiction Of The Ordinary Civil Court Under Section 9 Of The Code Of Civil Procedure Code, 1908, Recourse Is Taken To The Writ Jurisdiction Under Article 226. That Is Not Permissible. The Jurisdiction Of The Civil Court Is Intended To Provide The Ordinary Civil Remedy For The Adjudication Of Such Claims. As A Matter Of Fact, We Also Indicated To The Learned Counsel That Even Within The Purview Of The Civil Procedure Code, Provisions Such As Those Under Order 37 Of The C.P.C. Contain An Adequate Safeguard By Laying Down A Summary Remedy Or Procedure Which Can Be Availed Of In Cases Where Under A Written Contract, Money Is Due And Payable. Under Order 37, The Defendant Has To Make Out A Triable Defence Before Being Granted Even Leave To Defend The Suit.
Hence, In The Present Case, We See No Reason Or Justification To Entertain The Petition Under Article 226 Of The Constitution.
Additionally, It Must Also Be Noted That The Petitioners Had Moved An Earlier Writ Petition Seeking A Mandamus In Terms Of The Very Same Prayer, Namely The Prayer For Payment Of An Amount Of Rs.1,34,71,670/- Together With Interest At 18% Per Annum. The Earlier Writ Petition (Misc. Bench No. - 6699 Of 2013)1 Was Dismissed By The Division Bench On 24 September 2013 On The Ground That A Mandamus Could Be Issued Only Where There Is A Violation Of A Statutory Duty. Disputed Questions Of Fact Can Only Be Adjudicated Through A Competent Court In A Regular Suit Or Before Any Other Statutory Forum And This Court In The Exercise Of Its Jurisdiction Under Article 226 Of The Constitution Would Ordinarily Not Adjudicate Upon Such Matters.
For Convenience Of Reference, It Would Be Appropriate To Extract The Relevant Part Of The Order Of The Division Bench Which Reads As Follows:
"Instant Writ Petition Under Article 226 Of The Constitution Of India Has Been Preferred By The Petitioner For Issuance Of Writ In The Nature Of Mandamus Commanding The Respondents To Pay An Amount Of Rs. 1,34,71,670/- Along With Interest @ 18 Per Cent As Outstanding Dues For Contractual Work.
According To Shri H.G.S. Parihar Learned Senior Counsel, Petitioner Had Supplied Spare Parts But In Spite Of Satisfactory Supply, Payment To The Tune Of Rs. 1,34,71,670/- Has Not Been Paid To The Petitioner.
Attention Has Been Invited Towards Para 8 Of The Counter Affidavit In Which It Has Been Stated That Outstanding Dues Is To The Tune Of Rs.1,20,00000/-.
However, Shri S.S.Chauhan Learned Counsel For The Nagar Nigam While Defending The Action Of Nagar Nigam Invited Attention Towards Para 14 Of The Counter Affidavit Wherein It Has Been Specifically Pleaded That Enquiry Is Pending With The Economic Offence Wing And Dinesh Kumar Foreman Has Been Charged For The Fabrication Of Bill. Submission Is That Economic Offense Wing Is Investigating The Matter With Regard To Liability Of Nagar Nigam.
According To Shri S.S.Chauhan Learned Counsel For The Nagar Nigam That Manipulation Has Been Done With Regard To Preparation Of Bill And Economic Offense Wing Has Been Directed To Hold An Inquiry. It Is Submitted That Amount In Question Is Also Subject Matter Of Inquiry By The Economic Offense Wing.
Keeping In View The Arguments Advanced And The Averments Contained In Counter Affidavit, No Case For Issuance Of Writ In The Nature Of Mandamus Is Made Out. Mandamus May Be Issued By This Court In Case, There Is Some Violation Of Statutory Duty Followed By Statutory Rights. Disputed Question Of Fact Can Be Adjudicated Only Through Competent Court In A Regular Suit Or Before Other Statutory Forum. It Is Not For This Court To Interfere Under Article 226 Of The Constitution Of India Where A Disputed Question Of Fact Is Raised. High Court In Exercise Of Jurisdiction Under Art. 226 Of Constitution, Would Ordinarily Not Adjudicate A Matter Where The Foundational Facts Are Disputed Vide Sughashree Das Vs. State Of Orissa 2012 (9) SCC 729.
In View Of Above, No Case For Interference Is Made Out. Dismissed.
However, Order Passed By This Court Shall Not Preclude The Petitioner To Approach Appropriate Forum Or Authority Concerned."

However, The Petitioners Have Now Relied Upon The Last Sentence Contained In The Order Of The Division Bench By Which The Court Clarified That This Would Not Preclude The Petitioner To Approach The Appropriate Forum Or Authority Concerned. The Petitioner Submitted A Representation To The Municipal Commissioner Of The Nagar Nigam On 3 January 2014. On The Basis Of Certain Queries Which Had Been Replied Under The Right To Information Act, It Is Now Submitted That A Second Writ Petition Would Be Maintainable.
We Are Categorically Of The View That A Second Writ Petition Would Constitute An Abuse Of The Process Of The Court Since It Had Already Been Expressed By The Division Bench In The Earlier Proceedings That Disputed Questions Of Facts Which Were Raised Before The Court, Could Not Be Entertained Under Article 226 Of The Constitution. We Are In Respectful Agreement With The View Which Was Expressed By The Earlier Division Bench While Dismissing The Writ Petition On 24 September 2013.
That Apart, We Must Also Note That On 13 January 2014, An Order Was Passed By Another Division Bench Of This Court In M/s Super Spares Thru. Prop Tajender Singh Talwar & Anr. Vs. State Of U.P. And 5 Others2. The Division Bench After Recording The Rival Submissions Disposed Of The Petition With The Following Observations:
"Considering The Facts And Circumstances Of The Case, It Is Provided That The Admitted Amount For Which Supply Has Been Made And The Articles Have Been Accepted By The Authorities Of The Nagar Nigam, Same Shall Be Released At The Earliest I.e. 31.03.2014. "

This Order Of The Division Bench Was Set Aside By The Supreme Court On 13 March 2014 In Civil Appeal No. 3890 Of 20143 With The Following Observations:
"We Have Perused The Record As Well As The Impugned Judgement And Orders. The High Court Has Disposed Of The Writ Petitions In A Criptic Manner Without Adjudicating Upon The Real Issues Involved In The Case And Even Without Calling For The Inquiry Report Which According To The Learned Counsel Appearing For The Respondents Before Us, Has Been Submitted Before The State Government. Thus, In View Of The Above, The Judgments Impugned In Both The Matters Are Set Aside And The Case Is Remanded To The High Court To Adjudicate Upon The Issues And Dispose It Of, As Early As Possible Preferably Within A Period Of Two Months From The Date Of Production Of Certified Copy Of This Order Before The High Court, After Calling The Inquiry Report And Examining The Other Material On Record. Needless To Say That The Parties Are At Liberty To Raise All Factual And Legal Issues Before The High Court.
Both These Appeals Stand Disposed Of Accordingly. "

The Division Bench Having Entertained The Petition Which Had Been Filed By Another Petitioner, That Exercise Was Corrected By The Judgement Of The Supreme Court. The Supreme Court Remanded The Proceedings For Adjudication Upon The Issues.
In The Present Case, For The Reasons Which We Have Noted, We Are Of The View That It Would Be Inappropriate For The Court To Determine The Wholly Disputed Questions Of Fact Which Arise In The Present Proceedings. Particularly Having Regard To The Earlier Order Passed By The Division Bench Of This Court Inter Partes On 24 September 2013, Which Had Attained Finality, The Second Writ Petition Seeking The Same Relief Ought Not To Be Entertained.
For The Aforesaid Reasons, We Find No Merit In The Petition. The Petition Is, Accordingly, Dismissed. There Shall Be No Order As To Costs.
However, We Clarify That This Order Will Not Preclude The Petitioners From Seeking Remedies Before The Ordinary Civil Court.

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