Sunil Kumar Kukreti vs Managing Director And Others

Deepak Khot, J

The present petition under Article 226 of the Constitution of India has been filed seeking following reliefs :

"7.1. That this Hon'ble Court may be pleased to issue appropriate writ and quash the impugned order dated 20.06.11 (P/12) passed by respondent no.1, in the interest of justice.

7.2. That this Hon'ble Court may be pleased to direct the respondents authorities to pay a sum of Rs.38,57,242.31 alongwith interest till date @ 7% w.e.f. 1.1.1985 till the date of realization.

7.3 That any other relief as deemed fit by this Hon'ble Court may also be granted."

It is the case of the petitioner that the petitioner is engaged in transportation business and the petitioner has been working with respondent authority in regard to transportation work for them. The respondent-authority filed a claim before the Assistant Registrar, Cooperative Society, Shahdol against the petitioner under Section 64 of M.P. Cooperative Societies Act, 1960 claiming a sum of Rs.2,47,766/- on the ground that the sum is recoverable from the petitioner as the same is paid in excess to the petitioner. The Assistant Registrar, vide order dated 27.4.1998 directed the respondent authority to examine the matter and find the actual amount regarding the payments made to the petitioner. Being aggrieved by order dated 27.4.98, the respondents preferred an Appeal before Joint Registrar, Cooperative Societies, who vide order dated 11.5.2006 (Annexure P/2) upheld the order passed by the Assistant Registrar. In pursuance of order dated 11.5.2006, respondent No.1 by order dated 31.5.2006 directed respondent No.3 to pay the balance amount payable to the petitioner. Thereafter, respondent No.3 vide letter dated 15.01.2007 (Annexure P/4) addressed to respondent No.4 giving the detailed breakup of the amount payable to the petitioner and the amount recoverable from the petitioner sought permission for payment of amount due to the petitioner. Since thereafter despite repeated reminder letters, the amount was not paid to the petitioner. The petitioner filed W.P.No.5456/2008 before this Court which was disposed of vide order dated 13.05.2011 with direction to respondent No.1 to take a decision on the pending claim of the petitioner, if submitted by way of representation. In pursuance to the order dated 13.05.2011, petitioner submitted a representation dated 25.05.2011 (Annexure P/10), however, respondent No.1 vide order dated 20.06.2011 (Annexure P/12) has dismissed the claim of the petitioner on the ground that the petitioner has not validly claimed the amount till date before the Assistant Registrar or the Joint Registrar of Cooperative Societies and also found that some amount is recoverable from petitioner.

It has been submitted by learned counsel for the petitioner that the impugned order dated 20.06.2011 is illegal. It is submitted that vide letter dated 15.01.2007 (Annexure P/4) and 31.05.2006 (Annexure P/3) the respondents have accepted the amount due for payment to the petitioner. It has been submitted that vide order dated 27.04.1998 (Annexure P/1) and order dated 11.05.2006 (Annexure P/2), the respondents were directed to ascertain the claim of the petitioner. It is submitted that respondent No.2 and 3 in pursuance to the directions given by the Joint Registrar and Assistant Registrar had ascertained the claim of the petitioner to Rs.43,78,046.81/-which has not been paid to the petitioner.

Learned counsel for the respondents has opposed the submissions of the learned counsel for the petitioner. It is submitted that the Federation through its District Marketing Officer, Shahdol had entered into an agreement dated 12.12.1979 with the petitioner for transportation, loading, unloading and stacking of various agricultural produce including chemical fertilizers for the period 01.4.1979 to 31.3.1980 at the rate specified therein. The payment was to be made in accordance with clause 23 of the Agreement that as and when the petitioner submits the bills, 75% of the bill amount was to be paid immediately and remaining 25% of the amount was payable after scrutiny of the same, however, it was found that the petitioner had submitted inflated bills so as to cover the full amount. In the audit report of the financial year 1986-87 it was found that the Marketing Federation has to recover an amount of Rs.2,47,826.44/- from the petitioner on account of excess payment made to him towards transportation charges. Marketing Federation had filed a recovery dispute against the petitioner before the Assistant Registrar, Cooperative Societies, Shahdol under section 64 of the Act for recovery of an amount of Rs.2,47,766.44/- which was registered as Case No.64-92/87. The said dispute was disposed of on 27.4.1998 with a direction that parties should settle their accounts on the basis of terms and conditions mentioned in the agreement. Marketing Federation being aggrieved by such order filed an appeal under section 77 of the Act before the Joint Registrar, Cooperative Societies, Madhya Pradesh, Bhopal and the same was registered as Case No.77-40/1998, however, the same was dismissed vide order dated 11.05.2006. Thereafter, the Marketing Federation appointed District Marketing Officer, Shahdol for determination of the pending bills of the petitioner who submitted his report dated 15.01.2007 giving finding that official record has been destroyed by termites, therefore, it is not possible to reconcile the position of the bills. It is submitted that pursuance to the order dated 13.05.2011 passed in W.P.No.5456/2008, petitioner submitted representation dated 25.05.2011, however, alongwith the representation petitioner did not submit any documentary evidence in support of the claim. Respondent No.1 decided the said representation by order dated 20.06.2011 with specific reasons and finding that an amount of Rs.2,47,766.44/- is recoverable from the petitioner. It is submitted that if any amount was payable by the Federation to the petitioner, the petitioner would have raised a dispute under Section 64 of the Act before the Registrar Cooperative Societies for the claim but such dispute was never raised and prayed for dismissal of the petition.

Heard learned counsel for the parties and perused the record.

It is undisputed that the respondent authority had entered into an agreement with the petitioner for transportation work for the period 01.4.1979 to 31.3.1980. As per the respondents, in the audit report of the financial year 1986-87 it was found that the Marketing Federation has to recover an amount of Rs.2,47,826.44/- from the petitioner on account of excess payment made to him towards transportation charges. The respondents had filed dispute under Section 64 of the M.P. Cooperative Societies Act, 1960 by filing a recovery case, which was disposed of on 27.04.1998 with a direction for settlement and adjustment of accounts as per agreement. The appeal preferred under Section 77 of the M.P. Cooperative Societies Act, 1960 was dismissed on 11.05.2006, affirming the said order. The authority appointed the District Marketing Officer, Shahdol to reconcile the accounts, however, in his report dated 15.01.2007, it was stated that due to destruction of official records, it is not possible to reconcile the bills. The petitioner failed to produce any documentary evidence in support of his claim even while submitting representation pursuant to the order passed in W.P.No.5456/2008. Thus, there remains a controversy regarding the exact amount payable or recoverable to the petitioner. As such, the alleged dues are neither admitted nor conclusively determined.

The Hon'ble Apex Court in the case of Joshi Technologies International Inc. v. Union of India, (2015) 7 SCC 728 , has held :

"55. Law in this aspect has developed through catena of judgments of this Court and from the reading of these judgments it would follow that in pure contractual matters the extraordinary remedy of writ under Article 226 or Article 32 of the Constitution cannot be invoked. However, in a limited sphere such remedies are available only when the non-Government contracting party is able to demonstrate that it is a public law remedy which such party seeks to invoke, in contradistinction to the private law remedy simpliciter under the contract. Some of the case law to bring home this cardinal principle is taken note of hereinafter."

Further, the Hon'ble Apex Court in the case of Union of India v. Puna Hinda, (2021) 10 SCC 690, has held :

"24. Therefore, the dispute could not be raised by way of a writ petition on the disputed questions of fact. Though, the jurisdiction of the High Court is wide but in respect of pure contractual matters in the field of private law, having no statutory flavour, are better adjudicated upon by the forum agreed to by the parties. The dispute as to whether the amount is payable or not and/or how much amount is payable are disputed questions of facts. There is no admission on the part of the appellants to infer that the amount stands crystallised. Therefore, in the absence of any acceptance of joint survey report by the competent authority, no right would accrue to the writ petitioner only because measurements cannot be undertaken after passage of time. Maybe, the resurvey cannot take place but the measurement books of the work executed from time to time would form a reasonable basis for assessing the amount due and payable to the writ petitioner, but such process could be undertaken only by the agreed forum i.e. arbitration and not by the writ court as it does not have the expertise in respect of measurements or construction of roads."

It is further submitted by learned counsel for the petitioner that the demand raised by the respondent/authority through the impugned order is barred by the principle of Order 2 Rule 2 of CPC as in the earlier round of litigation when the dispute was raised under Section 64 of the Cooperative Societies Act, the demand was not raised, as raised in the impugned order. To bolster the contention, learned counsel has relied upon the judgment passed by the Hon'ble Apex Court in the case of Jayantilal Chimanlal Patel vs Vadilal Purushottamdas Patel (2017) 13 SCC 409.

From perusal of the order dated 27.04.1998 (Annexure P/1) passed by Assistant Registrar, Cooperative Societies under Section 64, it is found that the said dispute was raised by the respondents against the petitioner for not performing the obligation pursuant to contract, for excess payment made to the petitioner by the respondents and whether the respondents were entitled to recover the said amount from the petitioner.

In the said dispute, order was passed that the respondents shall examine all the bills and conduct an inquiry and accordingly, whatever is the amount due against the parties, that party shall be liable to pay the said amount.

On appeal been filed against the said order, same has been affirmed vide order dated 11.05.2006. Thereafter, the petitioner filed writ petition in the year 2008 which was disposed of vide order dated 13.05.2011 with direction to the respondents to take reasoned decision on the pending claim of the petitioner, if submitted through representation. The said representation (Annexure P/10) has been decided by the impugned order holding that the claim is of the year 1982-84, therefore, it is barred by limitation, no dispute has been raised before the competent Court and also because no copies of the bills have been submitted, the petitioner is not entitled for any amount, infact, in recalculation, recovery has been found to be due against the petitioner.

From perusal of both the orders, one passed under Section 64 of the Cooperative Societies Act and another on the representation of the petitioner, this Court could not gather that how the demand of Rs.2,47,766/-is barred under Order 2 Rule 2 of CPC, as vide order dated 27.04.1998, authority had directed parties to settle the claim on the basis of terms of agreement and documents. The case law cited by the counsel for the petitioner is on different footing i.e. on the question that in the later suit, the plaint of earlier suit has not been proved. Therefore, in the considered opinion of this Court, that has got no application in the present case.

Considering the totality of the facts of the case, this Court finds that there exists a dispute with regard to amount payable or recoverable between the parties. The petitioner contends that a substantial amount is due to him, whereas the respondents contends, that on the basis of audit report, an amount is recoverable from the petitioner. The dispute between the parties arises out of a contract and a writ petition under Article 226 of the Constitution of India, arising out of the dispute of the contract is not maintainable. Accordingly, the petition being bereft of merits is hereby dismissed.