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Judgment
Aggrieved by the order dated 28.4.2016 passed by the learned
Single Judge in W.P.(C ) No.4137 of 2014, the respondents of the writ petition has
preferred this Letters Patent Appeal.
The writ petition being W.P.(C ) No.4137 of 2014 was filed by M/s.
Tiwary Electrical and Engineering Works against South Eastern Railway praying
therein to make payment of the materials supplied by them to South Eastern
Railway. The writ petitioner claimed that some purchase order was issued by the Senior Divisional Material Manager, South Eastern Railway, Adra in favour of the
petitioner. Pursuant to the said order, some materials were supplied which was
received by Section Engineer (Electric), Bhaga, South Eastern Railway on 22.2.2011.
Claim of the writ petitioner is that in spite of receipt of the materials and submission
of bills, the price of the said materials was not released in their favour. Since the
money was not paid to the writ petitioner, the writ petitioner filed the instant writ
application claiming the dues of Rs.16,42,779/-.
The respondents were noticed and they filed their counter affidavit in
the writ petition. In their counter affidavit, they have stated that against purchase
order No.CI/Elect (G)/42/98/11/5159/0046/0/26046 dated 13.2.2012, no material has
been supplied by the writ petitioner. Further they mentioned that materials supplied
is much less than the claim made by the firm, and the firm has demnded money by
raising false bill. Further they submitted that in respect of several purchase orders,
materials and bills were not supplied to the consignee as such, no occasion arises
for making any payment.
After hearing the parties, learned Single Judge, vide impugned order
dated 28.4.2016, directed the respondent nos.2 to 8 to make payment of
Rs.16,42,779/-.
Aggrieved by the said order, Railway Administration has preferred this
appeal.
Counsel for the petitioner submits that the materials were accepted by the
respondents without any objection. He submits that after accepting the materials,
the respondents cannot refuse to make payment to the petitioner. He submits that
learned Single Judge has correctly directed the respondents to make payment since
they have accepted the materials which was supplied by the petitioner.
Counsel for the Union of India by referring to several paragraphs of the
counter affidavit submits that the writ petition involved disputed question of facts
thus, the impugned order could not have been passed. He submits that in the
counter affidavit, there is no admission on the part of the respondents that the
petitioner is entitled to receive the amount of Rs.16,42,779/-.
We have heard learned counsel for both sides at length and have
perused the record of the case.
Admittedly in the writ petition, the petitioner has made money claim for
alleged supply of materials to the Railway Administration. The learned Single Judge
while passing the impugned order has relied upon the submission of the petitioner
and has come to conclusion that when the materials were received by the Railway
Administration and there is nothing in the counter affidavit to show that payment
was made, then in that circumstances the amount claimed becomes payable and
thus directed to make payment of Rs.16,42,779/-.
In the writ petition, the petitioner had claimed supply of several articles
to the respondents. In the counter affidavit filed by the Railways, there is no
admission that the writ petitioner was entitled to receive Rs.16,42,779/-. On the
contrary, in the counter affidavit in paragraph 10, it has been specifically stated that
no material had been supplied by M/s. Tiwary Electrical & Engineering Works
against purchase order no. CI/Elect (G)/42/98/ 11/5159/0046/0/26046 dated
13.2.2012,Further in paragraph 11, it has been categorically stated that writ
petitioner had claimed supply of large quantity of materials under different heading
whereas supply was of much less quantity. In paragraph 12, they have stated that
the firm is demanding money by raising false bill. In paragraph 15, they have also
stated that materials and bills were not supplied to the consignee, so question of
payment of cost does not arise. Same is the averment made in paragraph 16 also.
From the pleading of the parties, it is crystal clear that there are serious
disputed question of fact in respect of supply of materials. The petitioner claimed
that they have supplied the materials but the Railway Administration denied. The
above statement made in the counter affidavit has not been taken note of by the
learned Single Judge. The learned Single Judge only on the fact that the counter
affidavit does not mention about making any payment by the Railways, have
directed in the order impugned to pay Rs.16,42,779/-.
Further the writ petition is in the nature of money claim. There is no
admission on the part of the respondents in respect of the claim made by the petitioner. Thus, the learned Single Judge could not have directed to make payment
of Rs.16,42,779/- in a proceeding under Article 226 of the Constitution
In view of the above finding the impugned order dated 28.4.2016
passed by the learned Single Judge in W.P.(C) No.4137 of 2014 is set aside and
accordingly, this appeal is allowed.