M/S Devendra Kumar Amoriya vs State Of Madhya Pradesh & Ors.

This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:-

"i) That, the respondents may kindly be directed to make payment of undisputed amount of Rs.3,13,740/- along with interest @ 18% per annum, on account delayed payment.

ii) That, any other relief which is suitable in the facts and circumstances of the case in favour of the petitioner including the costs throughout may also be granted."

It is submitted by the counsel for the petitioner that the petitioner is a partnership firm registered under the Firms and Societies Registrikaran Adhiniyam and the respondents had issued a  NIT inviting tenders for execution of work of providing electrification/renovation and repairing in N.R.B./R.B. A/R., S/R., DEPOSIT/M.O.W. Work for E/M, Section Moti Mahal, Sub Division, Gwalior through tender No.13286. The petitioner had participated in the tender proceedings and was selected and, accordingly, an agreement Ex.P/3 was executed and work order was also issued on 26.2.2015 for execution of electrical work in District Court, Old High Court building. The total cost of the work was Rs.15,60,000/-. The work was executed by the petitioner which was duly verified by the respondents and the completion certificate was issued. Thereafter, after completion of work, the petitioner had made several representations for release of the remaining amount. It was submitted that accordingly, the Executive Engineer had written a letter dated 6.7.2017. Thereafter the respondent No.4, again issued a letter dated 9.6.2017 to the SDO and Sub-Engineer with regard to verification of the work and reminders were issued on 5.8.2017. Thereafter, the SDO and Sub-Engineer verified the work and submitted their report, however the respondent No.4 has failed to release the amount of Rs.3,13,740/-. Thereafter, the petitioner had issued a notice dated 13.9.2017, but the respondents are sitting tight over the amount of Rs.3,13,740/- causing serious and intentional harassment to the petitioner. Accordingly, it has been prayed that an amount of Rs.3,13,740/- be directed to be paid with 18% interest at the rate of 18% per annum.

Per contra, it is submitted by the counsel of the State that the petition is not maintainable. Even if the contention of the petitioner is accepted that the amount has not been paid, then that itself would give rise to a dispute. Under these circumstances, the petitioner has an alternative and efficacious remedy of approaching Madhyastham Adhikaran as the contract in question was a works contract. To buttress his contention, the counsel for the State has relied upon the judgment passed by a Division Bench of this Court in the case of Makhija Construction Company, Indore vs. Devi Ahilya Vishwavidyalaya, Indore & Anr. reported in 2014(3) MPLJ 419. In reply to the submissions made by the respondents, the counsel for the petitioner has relied upon the judgment passed by the Supreme Court in the cases of Verigamto Naveen vs. Government of A.P. & Ors. reported in (2001) 8 SCC 344 and Life Insurance Corporation & Ors. vs. Asha Goel (Smt.) & Anr. reported in (2001) 2 SCC 160.

Considered the submissions made by the counsel for the parties.

In the present case, it is the case of the petitioner that in spite of completion of his work, the respondents have not paid the remaining outstanding amount. However, it is submitted by the counsel for the petitioner that non-payment of outstanding does not amount to breach of contract and thus the petition under Article 226 of the Constitution of India is maintainable.

If the submissions made by the counsel for the petitioner are considered, then it is difficult to accept his submission that non- payment of money by the respondents cannot be said to be a breach of contract. The petitioner has not filed any document to show that the respondents have admitted their liability to pay the amount of Rs.3,13,740/-. Thus, it cannot be said that the amount claimed by the petitioner is not a disputed amount.

The Supreme Court in the case of Orissa Agro Industries Corporation Ltd. vs. Bharati Industries reported in 2005 AIR SCW 5715 has held as under:-

"11. In the instant case the High Court has itself observed that disputed questions of fact were involved and yet went on to give directions as if it was adjudicating the money claim in a suit. The course is clearly impermissible. [See: General Manager, Kisan Sahkari Chini Mills Ltd., Sultanpur U.P. vs. Satrughan Nishad and others, 2003(8) SCC 639), Rourkela Shramik Sangh vs. Steel Authority of India Ltd. and another, 2003(4) SCC 317].

Above being the position the High Court's judgment is clearly unsustainable and is set aside. However, our interference in the matter shall not stand in the way of the writ petitioner seeking any other remedy as is available in law."

The Supreme Court in the case of Life Insurance Corporation & Ors. vs. Asha Goel (Smt.) & Anr. reported in (2001) 2 SCC 160 has held as under:-

"10. Article 226 of the Constitution confers extraordinary jurisdiction on the High Court to issue high prerogative writs for enforcement of the fundamental rights or for any other purpose. It is wide and expansive. The Constitution does not place any fetter on exercise of the extraordinary jurisdiction. It is left to the discretion of the High Court. Therefore, it cannot be laid down as a general proposition of law that in no case the High Court can entertain a writ petition under Article 226 of the Constitution to enforce a claim under a life insurance policy. It is neither possible nor proper to enumerate exhaustively the circumstances in which such a claim can or cannot be enforced by filing a writ petition. The determination of the question depends on consideration of several factors like, whether a writ petitioner is merely attempting to enforce his/her contractual rights or the case raises important questions of law and constitutional issues, the nature of the dispute raised; the nature of inquiry necessary for determination of the dispute etc. The matter is to be considered in the facts and circumstances of each case. While the jurisdiction of the High Court to entertain a writ petition under Article 226 of the Constitution cannot be denied altogether, courts must bear in mind the self-imposed restriction consistently followed by High Courts all these years after the constitutional power came into existence in not entertaining writ petitions filed for enforcement of purely contractual rights and obligations which involve disputed questions of facts. The courts have consistently taken the view that in a case where for determination of the dispute raised, it is necessary to inquire into facts for determination of which it may become necessary to record oral evidence a proceeding under Article 226 of the Constitution, is not the appropriate forum. The position is also well settled that if the contract entered between the parties provide an alternate forum for resolution of disputes arising from the contract, then the parties should approach the forum agreed by them and the High Court in writ jurisdiction should not permit them to bypass the agreed forum of dispute resolution. At the cost of repetition it may be stated that in the above discussions we have only indicated some of the circumstances in which the High Court have declined to entertain petitions filed under Article 226 of the Constitution for enforcement of contractual rights and obligation; the discussions are not intended to be exhaustive. This Court from time to time disapproved of a High Court entertaining a petition under Article 226 of the Constitution in matters of enforcement of contractual rights and obligation particularly where the claim by one party is contested by the other and adjudication of the dispute requires inquiry into facts. We may notice a few such cases; Mohd. Hanif v. State of Assam; Banchhanidhi Rath v. State of Orissa; Rukmanibai Gupta v. Collector, Jabalpur; Food Corpn. of India v. Jagannath Dutta and State of H.P. v. Raja Mahendra Pal.

The position that emerges from the discussions in the decided cases is that ordinarily the High Court should not entertain a writ petition filed under Article 226 of the Constitution for mere enforcement of a claim under a contract of insurance. Where an insurer has repudiated the claim, in case such a writ petition is filed, the High Court has to consider the facts and circumstances of the case, the nature of the dispute raised and the nature of the inquiry necessary to be made for determination of the questions raised and other relevant factors before taking a decision whether it should entertain the writ petition or reject it as not maintainable. It has also to be kept in mind that in case an insured or nominee of the deceased insured is refused relief merely on the ground that the claim relates to contractual rights and obligations and he/she is driven to a long-drawn litigation in the civil court it will cause serious prejudice to the claimant/other beneficiaries of the policy. The pros and cons of the matter in the context of the fact-situation of the case should be carefully weighed and appropriate decision should be taken. In a case where claim by an insured or a nominee is repudiated raising a serious dispute and the Court finds the dispute to be a bona fide one which requires oral and documentary evidence for its determination then the appropriate remedy is a civil suit and not a writ petition under Article 226 of the Constitution. Similarly, where a plea of fraud is pleaded by the insurer and on examination is found prima facie to have merit and oral and documentary evidence may become necessary for determination of the issue raised, then a writ petition is not an appropriate remedy."

Considering the totality of the facts and circumstances of this case, this Court is of the view that the petitioner by filing this writ petition has prayed for enforcement of the contract and he has alleged the breach of works contract. Under these circumstances, this Court is of the considered opinion that the petitioner has an efficacious and alternative remedy and this writ petition is not maintainable for enforcement of contract.

Accordingly, this petition fails and is hereby dismissed.