V.E. Commercial Vehicles Limited vs State of Karnataka, Karnataka State Road Transport Corporation, Bangalore Metropolitan Transport Corporation and Chief Mechanical Engineer Bangalore Metropolitan Transport Corporation

A.S. Bopanna J.

The Petitioner in W.P. No. 26934/2009 (GM RES) is before this Court in this intra-Court appeal assailing the order dated 23.11.2010 passed by the learned Single Judge. The learned Single Judge, while adverting to the dispute involved in the petition, was of the view that the same would constitute a civil dispute which requires to be adjudicated by a Civil Court. Accordingly, the Appellant herein has been relegated to the civil remedy. The Appellant claiming to be aggrieved by the said course adopted by the learned Single Judge has assailed the order.

Sri Rupinder Singh Suri, learned senior counsel along with Sri B.N. Prakash, learned Counsel for the Appellant while assailing the order of the learned Single Judge contended that learned Single Judge was not justified in holding that the Appellant has to approach the Civil Court. It is contended that there are no serious disputed questions to be decided in the instant case inasmuch as the terms of the contract are clear and pursuant to the same, when the vehicles have been supplied and the same is also being used by the second and third Respondent-Corporation, the money due to the Appellant cannot be withheld by them. The second and third Respondents are instrumentalities of the State and as such any arbitrary action on their part is open to review by this Court even in a petition under Article 226 of the Constitution. It is also the contention of the learned senior counsel that the Appellant has not committed any default nor is there any breach of conditions at their end. The specifications in fact were changed by the Respondents themselves and thereafter, when ultimately the vehicles have been received by them, they are neither entitled to withhold the security deposit or the amount payable to the Appellant. In such circumstances, the learned Single Judge ought to have considered the matter on its merits.

In the light of the contention put forth by the learned senior counsel, a perusal of the papers would indicate that the Appellant had filed the writ petition seeking mandamus to Respondent Nos. 1 to 4 to release the amount of Rs. 8,93,41,248/-. Further prayer for mandamus was sought to declare that the letter dated 12.12.2006 is null and void and to direct the Respondent Nos. 3 and 4 not to encash the bank guarantee in possession of the Respondents. Though the prayer in the writ petition is made in the nature of seeking mandamus, the perusal of the facts pleaded and the grounds raised would indicate that the ultimate prayer based on the pleading and documents is in the nature of seeking a money decree in respect of a commercial transaction. To this effect, it is not in dispute that the Appellant-company formed a joint venture with Volvo Group and Eicher Motors. The transaction relates to the supply of chasis. The purchase order in this regard is dated 14.10.2006 (Annexure-F) which also indicates the terms and conditions. The learned senior counsel made specific reference to condition Nos. 2 and 5 to point out. with regard to the acceptance of the supplies and also the payment to be made. It is also contended that though the same contains a penalty clause with regard to the delay in delivery schedule, the Respondents themselves had addressed the communication dated 28.11.2006 (Annexure-J) wherein changes with regard to specifications were made. It is in that context contended that neither can the Respondents make any deductions nor withhold the payment. In our view, the very contentions raised would indicate that in a commercial transaction where the parties herein are regulated by certain terms and conditions and also when there are disputes as to whether the supplies were made in time and as to whether the same was as per the specification, they are all matters, which require consideration before a Civil Court or such other forum if the parties have agreed on any alternate dispute resolution and not in writ proceeding merely because the Respondents are instrumentalities of State.

The learned senior counsel though mentioned certain judgments of the Hon''ble Supreme Court ultimately placed reliance on the decision in the case of ABL International Ltd. and Another Vs. Export Credit Guarantee Corporation of India Ltd. and Others, to contend that a writ petition under Article 226 would be maintainable even when there are disputed questions of fact and in case where recording of evidence is required. A perusal of the said judgment would indicate that the Hon''ble Supreme Court, after referring to the earlier decisions, has arrived at the conclusion that the maintainability or otherwise is not laid down as an absolute rule. The said decision in fact reiterates the position that the High Court having regard to the facts of the case has a discretion to entertain or not to entertain a writ petition. Having stated so, in the said case the Hon''ble Supreme Court was of the view that the matter involved therein merited consideration. In the said case, the facts were that the Appellant therein had the cover of risk from the Respondent based on the direction issued by the Reserve Bank of India and in the circumstances stated therein, the cover of risk by way of guarantee was invoked. However, in the instant case, as noticed, the transaction involved is a commercial transaction where several factual aspects require determination and as such it is not one such case where this Court would exercise its discretion to entertain the writ petition.

In view of the above, we are of the opinion that the learned Single Judge was justified in coming to the conclusion that the Appellant herein should avail their remedy before a Civil Court. Hence, we see no merit in this appeal.

Accordingly, writ appeal stands dismissed with no order as to costs.