Abhishek Bansal vs State Of U.P. And Others
2015 Latest Caselaw 2148 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 3
 
Case :- WRIT - C No. - 70975 of 2010
 
Petitioner :- Abhishek Bansal
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Nalin Kumar Sharma
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Krishna Murari, J.

Hon'ble Mahesh Chandra Tripathi, J.

Heard Sri N. K. Sharma, learned counsel for the petitioner and learned Standing Counsel for the State-respondents.

Main relief claimed in this petition is a mandamus commanding the respondents to pay Rs.9,37,000/- with 12% interest to the petitioner for the work done by him in pursuance of agreement no. 40/EE/07-08 executed by respondent no. 2 with the petitioner.

It is contended on behalf of the petitioner that he is a registered Class-I contractor with the respondents-Irrigation department and tender submitted by him in pursuance of advertisement inviting the same for construction of Yamuna River bank was accepted and he was awarded contract and registered agreement no. 40/EE/07-08 was executed between the parties. It is further submitted that petitioner completed the work within time fixed in the agreement and after inspection of the work, final measurement bill was prepared and submitted before respondent no. 2. When the payment was not made, petitioner and certain other similarly situated contractors made application under Right to Information Act. In response whereof, they were provided a reply dated 07.07.2010 (Annexure '1' to the writ petition) wherein in respect of the petitioner, it was stated that Rs.9,37,000/- was payable to him. The said letter further records that payment shall be made as and when the grant is received.

Aggrieved by inaction in making payment, the present writ petition has been filed.

A counter affidavit of R. K. Agarwal, Assistant Engineer, Uppar Division, East Yamuna Canal, Saharanpur has been filed on behalf of respondent no. 2. It is stated in paragraph 9 of the said affidavit that a sum of Rs.8,27,681/- was paid to the petitioner during running period of the work agreement and regarding outstanding amount, request letter has been sent to the competent authority in the State level for allotment of necessary fund and the delay is being caused at the level of the competent authority. It is the office of  the respondent to get the amount of  fund allotted and released so that the balance outstanding dues may be paid to the petitioner. A copy of the letter written to State Government has been filed as Annexure CA '1' wherein it has been admitted that a sum of Rs.9,37,000/- is due to be paid to the petitioner along with 0.73 lacs towards income tax and sales tax, total amounting to Rs.10.00 lacs. Thus, in effect, it has been admitted by the respondents in the counter affidavit that payment was due but for want of sanction of budget from the State Government, the amount could not be paid.

A supplementary affidavit has been filed on behalf of respondent no. 2 stating that a sum of Rs.9,31,800/- after deducting income tax, service tax and draft commission charges has been paid to the petitioner vide Demand Draft dated 10.04.2015 and the receipt issued by the petitioner dated 27.05.2015 for having received the said amount of draft has been filed as Annexure SA '2' to the supplementary affidavit. Photo copy of the draft made in the name of the petitioner has been filed as Annexure SA '1'.

In the light of the averments made in the counter affidavit, and the supplementary affidavit, learned Standing Counsel submitted that since the outstanding payment has been made to the petitioner, the cause of action does not survive any further.

However, learned counsel for the petitioner submits that since the respondents have delayed the payment for no good reason, the petitioner is entitled for payment of interest on the delayed payment.

Learned Standing Counsel relying upon the judgment dated 23.07.2014 passed on Writ Petition No. 37639 of 2014, judgment dated 11.03.2014 passed on Writ Petition No. 15127 of 2014 and judgment dated 02.05.2014 passed on Writ Petition No. 25126 of 2014, submitted that the writ petition seeking a direction to make payment of the bills submitted for the work performed under a contract, is not liable to be entertained.

On the contrary, learned counsel for the petitioner placing reliance upon another Division Bench judgment of this Court passed in the case of Chitra Gupta Trading Vs. U.P.P.W.D. & Ors., 2010 (4) AWC 3911, urged that where the payment has been delayed for no rhyme or reason and there is no dispute about the bill or the quantum of payment, the writ petition is maintainable and direction should be issued for payment of interest for the delayed payment.

In the three cases relied upon by the learned Standing Counsel, since the liability was not admitted and there was dispute, hence, it was held that when the liability is disputed, writ petition is not liable to be entertained as the adjudication would require investigation into the questions of facts and evidence and, as such, the petitioners therein were relegated to either pursue the ordinary civil remedy or to invoke the arbitration clause, if there is any, in the agreement.

However, in the case is hand, there is no dispute about the bills or quantum of payment. In the counter affidavit, the respondents have not only admitted that the payment could not be made for want of sanction of funds, but as a matter of fact, have made the payment during the pendency of the writ petition. In view of these facts, the case law relied upon by the learned Standing Counsel are not attracted to the facts of the present case.

In the case of Chitra Gupta Trading (supra), a Division Bench of this Court has held that where there is no dispute about the bill/quantum of payment, the payment should be ensured to the petitioner by issuing an appropriate writ. The Division Bench has placed reliance upon earlier Division Bench judgment of this Court dated 13.07.2009 passed on Writ Petition No. 14821 of 2008, Vijay Kumar Yadav Vs. State of U.P. & Ors.

The facts of the case in hand, are identical to that of Chitra Gupta Trading (supra). Since the payment of outstanding bill has already been made to the petitioner during the pendency of the writ petition, the sole question, which survives is to consider the grant of interest for the delayed payment. Since the respondents have admitted in the counter affidavit that the only reason for non-payment was for want of sanction of funds, in our opinion, the same could not constitute any valid ground to withhold or delay in making the payment.

Thus, the respondents are under a liability to pay interest at the rate, which we quantify 12% per annum for the period, viz., from the date, payment became due till the date of actual payment. The payment of interest, as directed above, shall be made by the respondents within a period of two months from the date of production of a certified copy of this order.

The writ petition, accordingly, stands allowed to the extent directed above. However, in the facts and circumstances, there shall be no order as to costs.

Order Date :- 4.9.2015/Dcs