Allahabad High Court
M/S Kaka Advertising Agency Thru. ... vs U.P. Technical University Thru. ... on 19 November, 2014
Bench: Dhananjaya Yeshwant Chandrachud, Chief Justice, Krishna Murari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Chief Justice's Court AFR
Case :- MISC. BENCH No. - 11435 of 2014
Petitioner :- M/S Kaka Advertising Agency Thru. Prop.Madan Gopal Gupta
Respondent :- U.P. Technical University Thru. Its Registrar & 3 Ors.
Counsel for Petitioner :- Apoorva Tewari
Counsel for Respondent :- H.K. Bhatt
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Krishna Murari,J.
The petitioner participated in a tender process floated by the first respondent and was awarded a contract for publication of advertisements in relation to the U.P. State Engineering Examination, on-line counseling and M.Tech/M.Pharm./M.Arc. Entrance Examinations.
The grievance of the petitioner, which has been put forward in these proceedings under Article 226 of the Constitution, is that though the petitioner complied with the requisitions in pursuance of the agreement dated 15 December 2011, it has not received payment in respect of seven bills between the months of March and July 2014 in the amount of Rs.2.65 crores. A representation dated 31 October 2014 not having elicited response, the writ proceedings have been filed for seeking a mandamus for the payment of amounts due under the seven bills which are annexed collectively as Annexure 9 to the writ proceedings.
The submission which has been urged on behalf of the petitioner is that the claim under the bills must be treated as being admitted and hence a writ petition under Article 226 would be maintainable and a mandamus can be issued by the Court directing the payment of the bills. Reliance in this regard has been placed on the judgement of a Full Bench of the Kerala High Court in State of Karala and others vs. T.V. Anil1
On the other hand, it has been urged on behalf of the first respondent that the claim under the bills has not been admitted by the University. The attention of the Court has been drawn to a letter dated 13 June 2014 addressed by the Assistant Commissioner (Prev.), Central Excise & Service Tax, Lucknow to the first respondent stating that his office was investigating a case of service tax evasion against the petitioner. The allegation is that the petitioner was collecting service tax from service tax recipients but this was not being paid into the government exchequer. The letter states that though documents/information was sought from the petitioner in order to ascertain its service tax liability, the petitioner has not produced any documents on one pretext or the other and is avoiding appearance before the officers investigating into the matter. Hence, it has been alleged that the petitioner has suppressed the facts from the revenue authorities with an intent to evade service tax and that the authorities intend to initiate proceedings for recovery of short paid service tax, which is yet to be ascertained as well as a penal action for violation of various provisions of the Finance Act, 1994.
The first respondent has also been placed on notice that the office of the Assistant Commissioner has obtained income tax returns of the petitioner and tax credit statement (Form 26AS) and a perusal thereof indicates that huge payments were made by the first respondent to the petitioner against which TDS was deducted. The first respondent has, accordingly, been directed to file the following documents with the Assistant Commissioner (Prev.), pertaining to the petitioner, namely (i) attested copies of bills raised upon the first respondent between 2008-09 and 2012-13; (ii) the ledger account of the petitioner together with details of the payment made during financial years 2008-09 to 2012-13; (iii) details of service tax charged by the petitioner and CENVAT Credit, if any, taken on the invoices; and (iv) attested copies of the contract/agreement signed between the first respondent and the petitioner during the period 2008-09 to 2012-13.
The issue before the Court is whether, in view of these facts, it would be appropriate for the Court to entertain these proceedings under Article 226 by issuing a mandamus for the payment of seven bills stated to be totaling an amount of Rs.2.65 crores.
The judgement of the Full Bench of the Kerala High Court, on which reliance has been placed on behalf of the petitioner, reiterates a well established principle that in contractual matters, it cannot be said in absolute terms that a writ petition is not maintainable. The restraint which is imposed while exercising the jurisdiction under Article 226 is a self-imposed limitation and the Kerala High Court emphasizes the relevant factors which must guide in exercising the self-imposed limitation under Article 226 of the Constitution in the matter of payments of contractors' bills. These are, as stated in the judgement:
"(1) When there is no disputed question of fact requiring adjudication on detailed evidence.
(2) When no alternate form is provided in the resolution of any disputes pertaining to a contract.
(3) When claim by one party is not contested by the other and the contest does not require adjudication requiring detailed enquiry into facts."
In the present case, once a serious matter relating to the evasion of service tax is alleged and drawn to the notice of the first respondent by the revenue authorities and the first respondent has been informed both of the pending investigation as well as to disclose documentary material, it cannot be held that the claim falls within that category where it can be ascertained that there is absolutely no defence or that a mandamus would be warranted. Even in the present case, we may reiterate that while exercising the discretion on whether or not to entertain a writ petition under Article 226 in a contractual matter where a mandamus is sought which would have the effect of decreeing a money claim, the Court must also deal with the issue as to whether a writ petition would be an appropriate remedy when other remedies under the ordinary civil law are available. For instance, a summary remedy in accordance with the procedure established under Order 37 of the Code of Civil Procedure, 1908 is available even where the claim is founded inter alia on a written contract for a liquidated sum. If such a claim is filed, the recipient is required to make a suitable defence for being granted leave to defend and the plaintiff is not relegated to the remedy of pursuing a long drawn trial, if the defence is frivolous. Exercising the jurisdiction under Article 226 evidently forecloses a defence of this nature, which would have to be evaluated on the facts of each case. This can more appropriately be carried out when a suit is filed.
In the light of the facts which have been brought to the notice of the Court, we are of the view that this is not a fit and proper case for exercising the discretion by the Court under Article 226 to entertain a petition seeking a mandamus for the payment of bills and the petitioner ought to be relegated to the ordinary civil remedy.
We clarify that we have not made any finding on the merits of the case since we have declined to exercise the extraordinary jurisdiction under Article 226.
The petition is, accordingly, dismissed. There shall be no order as to costs.
Order Date :- 19.11.2014 (Dr.D.Y.Chandrachud,C.J.)
RK
(Krishna Murari,J.)
