Kamal Verma (Male) vs State Of Uttarakhand And Others

Sharad Kumar Sharma, J

The petitioner, who is a registered government contractor, and in whose favour, a work contract, being Contract No. 277/EE dated 23.06.2020, was

executed. He has filed this writ petition, contending thereof that, as a consequence of the execution of the aforesaid work contract, under the terms of

the aforesaid contract, an amount of Rs. 11,99,213.63 for the work done by him, is due to be paid to him, under the terms of the contract for the work,

which the petitioner was directed to be undertaken with regard to the construction of the parking place at H.P. Band on Upper Lower Link Mall

Road, Almora.

Learned counsel for the petitioner submitted that despite having approached the respondents on number of occasions, they have not yet remitted the

amount, which, according to the petitioner, is due to be paid to him since having satisfactorily completed the work, and amount claimed to be paid

would fall to be an admitted due; hence, he has filed this writ petition, praying for the following reliefs:-

“i) issue a writ, order or direction in the nature of mandamus directing the respondents to pay the entire payment relating to the assigned work

performed under the contract no. 277/E.E. dated 23-6-2020 to the petitioner

ii) issue a writ, order or direction in the nature of mandamus directing the respondents to pay interest on the delayed payment of contract no. 277/E.E.

dated 23-6-2020 to the petitioner @ 18% per annum w.e.f. 28-9-2020.

iii) issue a writ, order or direction in the nature of mandamus directing the respondents to release the performance security and additional performance

security of Rs. Rs. 3,35,600/- to the petitioner

iv) issue any other writ, order or direction which this Hon'ble Court may deem just and proper in the circumstances of the case,

v) award the costs of the writ petition in favour of the petitionerâ€​

It is a simplicitor and rather a settled law of mandamus, that a writ petition under Articles 226/227 of the Constitution of India for a relief of a writ

of mandamus could be entertained by the High Court by issuing, a writ of mandamus under satisfaction of certain pre conditional norms, where the

party respondent is a State, and they are liable to perform a statutory duty under the Statute, which they, on a prior request being made by the

petitioner had declined to perform their duty or have denied to perform their duty. Its then only a writ of mandamus could be issued under Article 226

of the Constitution of India.

This is not the case at hand governing the interse relationship of the parties. The case at hand is exclusively governed by the terms of the Contract,

which admittedly was executed on invitation of tenders on 19.05.2020, which governs the interse relationship of the petitioner with the respondent,

who had executed a contract Bond and which, in itself, in its Clause (24), provides that wherever there arises a factual dispute, out of the terms of the

contract, the agreed remedy available for the contracting parties would be for seeking a reference to be sought before an Arbitrator for an

adjudication of a dispute.

Since the terms of the contract are binding on the signatories to the contract under the contracting laws, and particularly, the petitioner, in whose

favour it was executed, he would be simultaneously bound by the aforesaid arbitration clause, which already provided a platform which is available to

the petitioner to be approached for redressal of his grievance.

Accordingly, this Court, in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, declines to exercise its

equitable jurisdiction of interference, since the amount sought to be remitted is disputed by the counsel for the respondents, alleging non completion of

work. The petitioner may get his remedies resorted to in terms of the contract.

Accordingly, the writ petition is dismissed.

After conclusion of the judgement, the learned counsel for the petitioner had sought and harped upon that this Court may consider his two

arguments and recorded its findings.

The arguments, which he has sought to be addressed are:-

(i) That the copy of the contract was not supplied to him despite of his request.

(ii) The amount, as per the correspondence of the respondent is not disputed.

This Court is of the view that as per the provisions contained under the Contract Act, once a work contract is executed interse between the

parties, and as per the provisions or terms contained under Chapter II of the Contract Act of 1872, where it contemplates and its effective execution

by a duly endorsement made by the parties to the contract, which includes that the petitioner has to be one of its signatories, presumption is that

petitioner under law is expected to have its copy, which he has not placed on records. Because its under these terms of contract that the petitioner

claims to have completed the work assigned to him, which is the foundation of his claim in the writ petition.

In view of the provisions contained under Chapter II, once the petitioner has signed a work contract for performance of the work under it and

which regulates the terms of performance of his work, it is an inevitable proposition, which at least this Court is of the view that the presumption lies

against the petitioner, that the terms of the contract was not handed over to him on which he has acted upon and that can be excused to be resorted

by him to institute the writ petition; under the pretext that he had file a representation before the Executive Engineer on 11.01.2021, for procuring a

copy of the contract to be placed before this Court.

There is another reason why the request, which was made by the petitioner on 11.01.2021, cannot be accepted by this Court. The petitioner had

filed this writ petition on 31.12.2020, and obviously, the relief which has been claimed by him would be definitely governed by the terms of the contract

only, and in such an eventuality, it was the responsibility of the petitioner himself to have substantiated his stand in relation to the relief sought for to be

pressed in the writ petition by placing the work contract on record itself. He cannot have a defence that since he has subsequently filed an Application

on 11.01.2021, and he has not been supplied with the terms of the contract, which otherwise he was entitled to already have it, when it was executed,

cannot be treated as to be a defence to sustain his writ petition.

Secondly, he has submitted that there is no dispute of the amount in question and hence the writ petition would be tenable for the relief of writ of

mandamus.

During the course of the arguments, and particularly, as per the order sheet, it shows that the coordinate Bench of this Court, vide its order dated

06.11.2020, directed the respondents to complete their instructions; and when the matter was taken up yesterday also, and on the basis of the

instructions supplied, by Mr. N.S. Pundir, the learned Deputy Advocate General for the State, submits that the amount sought to be remitted by the

petitioner by way of a writ petition is a disputed amount, because he submits that the work which the petitioner was supposed to perform under the

terms of the contract, was not completed by him and hence since the said fact is controverted by the learned Deputy Advocate General, the writ

petition under Article 226 of the Constitution of India, would not be sustainable and the same is accordingly dismissed.