THE HONOURABLE THE ACTING CHIEF JUSTICE
SRI M.S. RAMACHANDRA RAO
AND
THE HONOURABLE SRI JUSTICE T. VINOD KUMAR
Writ Appeal No.324 of 2021
JUDGMENT: (Per Sri Justice M.S.Ramachandra Rao)
This Writ Appeal is preferred challenging the order dt.07.06.2021
passed in Writ Petition No.15900 of 2020 passed by the learned single
Judge.
2. The said Writ Petition was filed before the learned single Judge
seeking a Writ of Mandamus to declare a letter dt.01.09.2020 passed by
the 3rd respondent advising to withhold Rs.86,27,120/- from the Bills to
be paid in respect of a contract dt.19.11.2018, to recover the said amount for an alleged defect in contract works carried out by petitioner, and to set it aside, and for a further direction to the 1st respondent to treat the existing four contracts of petitioner in Joint Venture with SRICO as independent and release amounts as agreed on the said contracts in the interest of justice.
3. Counter-affidavit was filed by respondents opposing the contentions in the Writ Petition and a specific defence was raised that there was an arbitration clause No.20 contained in the contract dt.07.12.2017.
HACJ & TVK,J
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4. While holding that the Writ Petition is not maintainable on the ground that petitioner has an effective alternative remedy in Clause 20 of the Agreement, the learned single Judge however gave certain findings on facts.
5. The counsel for appellant contends that the findings of the learned single Judge that the remedy of arbitration is an adequate remedy, is not proper; and the findings recorded by the learned single Judge in the impugned order are also not correct.
6. Sri J. Sreenivasa Rao, learned Standing Counsel for Singareni Collieries Company Limited (SCCL), appearing for respondents, supports the order passed by the learned single Judge.
7. Having given our anxious consideration of the respective contentions, we are of the opinion that there are several disputed questions of fact which arise for consideration, and a Writ Petition under Article 226 of the Constitution of India is not an appropriate remedy to consider disputes of this nature. When there is an arbitration Clause No.20 contained in the Agreement providing for dispute resolution methodology the appellant ought to have availed the said remedy instead of approaching this Court invoking Article 226 of the Constitution of India.
8. Having said so, we are also of the opinion that the learned single Judge ought not to have taken up any contentions on merits having been HACJ & TVK,J ::3:: wa_324_2021 satisfied that there was an effective alternative remedy available to appellant, and the learned single Judge ought not to have given any findings on the merits of those contentions raised by the respective parties in the Writ Petition.
9. Therefore, the Writ Appeal is partly allowed, and the findings / observations made by the learned single Judge on the merits of contentions raised by the parties, are set aside.
10. The appellant is granted liberty to avail the alternative remedy of arbitration under Clause 20 of the Agreement between the parties referred to supra; and if any such arbitral proceedings are initiated, the said dispute between the parties shall be adjudicated without reference to any observations or findings made by the learned single Judge in his order dt.07.06.2021 passed in Writ Petition No.15900 of 2020.
11. No order as to costs.
12. As a sequel, miscellaneous petitions pending if any in this Appeal, shall stand closed.
_______________________________ M.S.RAMACHANDRA RAO, HACJ _______________________ T.VINOD KUMAR, J Date: 03.09.2021 Ndr