M/S Odyssey Computers Thru. ... vs State Of ...
2017 Latest Caselaw 2051 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 2									A.F.R.
 

 
Case :- MISC. BENCH No. - 14618 of 2017
 

 
Petitioner :- M/S Odyssey Computers through Marketing Manager Sri Ajai Singh
 
Respondent :- State Of U.P. and others
 
Counsel for Petitioner :- Ravi Shanker Tewari,Shiv Pal Singh
 
Counsel for Respondent :- C.S.C,Sanjay Bhasin
 

 
Hon'ble Shri Narayan Shukla,J.

Hon'ble Virendra Kumar-II,J.

(Delivered by Hon'ble Virendra Kumar-II, J.)

1. Heard Sri Ravi Shanker Tiwari, learned counsel for petitioner, the learned Standing Counsel for the State and Shri Sanjay Bhasin, learned counsel for opposite party No.3.

2. This writ petition has been instituted on behalf of petitioner's firm by stating that his firm is dealing with the sale and supply of computers and its peripherals and has some repute in the market. Opposite party No.2 required computers (hardware and software) for its department for the purpose of BPL survey in Uttar Pradesh and related database and other works. Opposite party No.2 contacted opposite party No.3 for the same requirement. Opposite party No.3 made a formal offer on 28.06.2008 to the Department of Rural Development for supply of necessary computers and its peripherals. Price of amount to the tune of Rs.20,93,909/- was offered. Opposite party No.2 accepted the offer of opposite party No.3 and issued a purchase order on 01.07.2008 requiring opposite party No.3 to supply the hardware and software of computers for several offices under its department. Opposite party No.3 forwarded the said order to IBM which in turn vide its letter of authorization dated 04.07.2008 communicated to supply the computer peripherals through its authorized and empaneled partner, who is petitioner. On the basis of communication made by IBM the opposite party No.3 placed the order vide its order dated 04.09.2008 to the petitioner, requiring computer peripherals worth Rs.18,81,150/-. Therefore, petitioner has supplied the entire material within the stipulated time and installed the same as per the requirement of the opposite party No.2. Opposite party Nos. 1 and 2 had received the entire material and it was installed and supplied by the petitioner but no payment has been made to the opposite party No.3 by opposite party Nos. 1 and 2. Opposite party No. 3 has sent bill dated 16.06.2009 to the opposite party No.2 worth Rs.20,93,909/- which includes institutional charges and VAT. Opposite party No.3 has also sent reminder vide letter dated 07.08.2009. Details of other several reminders sent by opposite party No.3 is mentioned in para-13 of the petition. Reminder dated 01.09.2011 and 03.10.2011 was also addressed to the opposite party No.1. It is also mentioned in the grounds of the petition that Secretary, Government of U.P., vide letter dated 30.04.2013, directed the opposite party No.2 to fix the liability in delaying the payment to the opposite party No.3. Opposite party No.2 vide letter dated 15.10.2013 communicated to the opposite party No.1 for non availability of budget, for payment of amount of Rs.20,93,909/-, which was due for the petitioner. Secretary, Government of U.P., vide letter dated 02.06.2015 had communicated to the opposite party No.2 that financial accord has been given for payment of said dues. Opposite party No.2 has also provided details of name of Bank and account number, etc., for transfer of amount of Rs.20,94,000/- sanctioned by the Government. Letter dated 22.08.2015, 01.03.2016 and 29.03.2016 were sent by opposite party No.2 to opposite party No.3.

3. In these circumstances, due to non payment of cost of material supplied by petitioner, the petitioner sent a legal notice dated 13.07.2016 through its advocate, requiring the opposite parties to make payment, else face litigation. On these grounds, following reliefs have been sought by the petitioner:

"(i) to issue a writ, order or direction in the nature of mandamus commanding the Opposite Party Nos.1 & 2 to reallocate the budget to the tune of Rs.20,94,000/- as has been done by them earlier vide letter no. 'Sankhya-608/38-6-15-15(LC)/2013 dated 02.06.2015' for the payment of the price of the computer peripherals supplied to them by the Petitioner through Opposite Party No.3.

(ii) to issue a writ, order or direction in the nature of mandamus commanding the Opposite Party No.2 to release the said funds upon the receipt of the same through budgetary provision to the tune of Rs.20,94,000/- in favour of Opposite Party No.3 and further the Opposite Party No.3 may also kindly be directed to pay the same immediately to the petitioner."

4. The learned counsel for petitioner has submitted that cost of material supplied by him has not been paid to the petitioner and funds have been allocated by the State Government, but this fund has not been transferred in the Bank account of opposite party No.3 by opposite party No.2, therefore, this Court may grant relief to the petitioner according to the provisions of Article 226 of the Constitution of India.

Per contra, learned counsel for opposite parties have submitted that it is a matter of contractual nature and alternate remedy for institution of suit for recovery of money/ amount due is available to the petitioner. Therefore, writ petition is not maintainable.

5. Learned counsel for petitioner has relied upon the decision dated 27.01.2016 passed by Division Bench in Writ Petition No. 1197 (M/B) of 2016, Vinay Kumar Vs. State of U.P. through Principal Secretary, Medical Health and Family Welfare, and argued that in this case petition was filed by the petitioner against the respondent to pay the amount of interest accrued on the payment made to him after the date notified in the agreement. In this case, Division Bench has directed the respondent-State to take decision on the petitioner's representation within two months from the date of communication of this order, therefore, merits of the case were not considered in this decision by the Division Bench.

6. Learned counsel for petitioner has also relied upon the decision of Division Bench of this Court in Lal Pratap Singh Vs. State of U.P. and others: 2010 (6) AWC 5520 (LB) and argued that since outstanding amount due regarding supply of material by the petitioner and liability is admitted by opposite party No.3 and he has made correspondences to the opposite party Nos. 1 and 2 for allocation of funds, therefore, petitioner cannot be legally relegated to the long and time consuming remedy for filing civil suit or pursuing arbitration proceedings.

7. Learned counsel for petitioner has also relied upon the case law propounded by Hon'ble Supreme Court of India in State of Kerala and others Vs. P. T. Thomas: 2005 12 SCC 346 and argued that in this case delayed payment of bill was made by the State Government to the contractor and Division Bench of Hon'ble Kerala High Court vide order dated 18.09.2002 directed that admitted bill amount shall be paid over to the contractors by 31.12.2002, failing which the disputed amount shall carry simple interest at the rate of 12% per annum from the date of registration of the respective bills. The appeal filed by the State Government of Kerala was dismissed.

8. We have perused the record and found that petitioner had served registered notice dated 13.7.2016 (Annexure-9) through his counsel Shri P. S. Mehra, Advocate to the opposite parties stating that "notice Nos. 1, 2 and 3, therefore, are called upon through this notice to pay a sum of Rs.18,81,150/- together with interest @ 18% from the date of actual payment within sixty days after receipt of this notice, failing which both civil and criminal legal action shall be taken against you in the competent court of law and in such inconvenience you shall be responsible for cost of litigation and other consequences besides a sum of Rs.11,000/- as cost of this notice". Therefore, petitioner has knowledge that due to non payment of cost of material supplied by him, can be recovered by filing suit for recovery of outstanding amount. As far as, correspondence made by opposite party No.3 with opposite party Nos.1 and 2 has been relied upon by the petitioner, it is relevant to mention here that in para-6 of the petition it is pleaded that opposite party No.3 forwarded the said order to IBM, which in turn vide its letter dated 04.07.2008 communicated to the petitioner to supply the computer peripherals through its authorized and empaneled partner, i.e., the petitioner. In para-7 it is pleaded that as per the communication from the IBM, opposite party No.3 placed the order vide its letter dated 04.09.2008, therefore, order for supply of computer peripherals was placed in the first place to IBM and IBM company communicated was the necessary and essential party for decision of controversy between the parties which has not been arrayed by the petitioner in this petition.

9. Vide letter dated 04.07.2008 inquiry was made by opposite party No.3 from the Business Manager(North), IBM India Private Limited for supply of material mentioned in this letter and rates were communicated by IBM company to opposite party No.3. It was requested in this letter as follows:

"We therefore request you to place this order on M/S Odyssey Computers and release the payment to them."

10. Order was placed to the petitioner firm by opposite party No.3, through Shri Vishnu Mohan, Marketing Officer, vide letter dated 04.09.2008 to supply material to opposite party No.3 on the basis of communication made by IBM Company. The cost of Rs.18,81,150/- was mentioned in this letter dated 04.09.2008. Therefore, order/ contract was executed between the petitioner firm and opposite party No.3 through IBM Company.

11. The following precedents/ case law of Hon'ble Supreme Court and Division Bench, several Division Benches of this Court and Full Bench of this Court are relevant in the facts and circumstances of this case:

Hon'ble Supreme Court in the case of Hindustan Petroleum Corporation Ltd. and Another Vs. Dolly Das : (1999) 4 SCC 450 has observed as follows:

7. In the absence of constitutional or statutory rights being involved a writ proceeding would not lie to enforce contractual obligations even if it is sought to be enforced against the State or to avoid contractual liability arising thereto. In the absence of any statutory right Article 226 cannot be availed to claim any money in respect of breach of contract or tort or otherwise.

Hon'ble Supreme Court in the case of Kerala State Electricity Board & Anr. vs. Kurien E. Kalathil & Ors. : (2000) 6 SCC 293 has observed as follows:

10. ..... The interpretation and implementation of a clause in a contract cannot be the subject-matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract? If a term of a contract is violated, ordinarily the remedy is not the writ petition under Article 226. We are also unable to agree with the observations of the High Court that the contractor was seeking enforcement of a statutory contract. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. We are also unable to agree with the observation of the High Court that since the obligations imposed by the contract on the contracting parties come within the purview of the Contract Act, that would not make the contract statutory. Clearly, the High Court fell into an error in coming to the conclusion that the contract in question was statutory in nature.

11. A statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge Its functions. Dispute arising out of the terms of such contracts or alleged breaches have to be settled by the ordinary principles of law of contract. The fact that one of the parties to the agreement is a statutory or public body will not of itself affect the principles to be applied. The disputes about the meaning of a covenant in a contract or its enforceability have to be determined according to the usual principles of the Contract Act. Every act of a statutory body need not necessarily involve an exercise of statutory power. Statutory bodies, like private parties, have power to contract or deal with property. Such activities may not raise any issue of public law......

....... The disputes relating to interpretation of the terms and conditions of such a contract could not have been agitated in a petition under Article 226 of the Constitution of India. That is a matter for adjudication by a civil Court or in arbitration if provided for in the contract. Whether any amount is due and if so, how much and refusal of the appellant to pay it is justified or not, are not the matters which could have been agitated and decided in a writ petition.

The Full Bench of this court in the case of Indian Sugar Mills Association through its President Shri Hari Raj Swarup Vs. Secretary to Government, Uttar Pradesh, Labour Department and Others : AIR 1951 All 1 has observed as follows:

11. Those remarks are with reference to a suit. They are much more applicable to proceedings under Article 226 which are of a summary and of a coercive nature without providing for a normal trial or a right of appeal except in those cases where a substantial question of interpretation of the constitution arises. This Court is being flooded with applications under Article 226 of the Constitution which is seriously, affecting the normal work of the Court. We feel that the time has come when we may point out that Article 226 of the Constitution was not intended to provide an alternative method of redress to the normal process of a decision in an action brought in the usual courts established by law. The powers under this article should be sparingly used and only in those clear cases where the rights of a person have been seriously infringed and he has no other adequate and specific remedy available to him.

The Division Bench of this Court in the case of WRIT - C No. - 42697 of 2002 M/S Jai Goswami Electric Works Alld. Vs. Union Of India Thru' D.R.M. & Others has observed as follows:

In this case in para 3 facts have been narrated

3. Petitioner is Railway Contractor and pursuant to an agreement for work, he has performed some work but his payment has not been made. Since payment has been approved by competent authority, therefore, prayer has been made that respondents be directed to make payment.

........ Hon'ble division Bench after considering the above mentioned proposition of law propounded by Hon'ble Supreme Court and various precedents / decision of Division Benches of this court has observed in para 12 as follows:

12. In view thereof, we are clearly of the view that mandamus sought by petitioner is nothing but grant of a money decree in extraordinary equitable jurisdiction under Article 226 which ought not to have been granted.

The Division Bench of Hon'ble Allahabad High Court in the case of Kaka Advertising Agency vs. U.P. Technical University and Ors. (ALLHC) 2014 (11)ADJ 227 has observed as follows:

7. 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.

The Division Bench of Hon'ble Allahabad High Court in the case of Budh Gramin Sansthan vs. State of U.P. (ALLHC) 2014 (7)ADJ 29 has observed as follows-:

3. In view of the defence which has been set up by the State, it would not be appropriate, in our view, to entertain the petition under Article 226 of the Constitution and pass an order, that would essentially be a money decree. At the least, the defence would raise issues on which evidence would have to be adduced before a Civil Court. Quite independently of that, in a matter of this nature, remedies are available either in the form of a suit under Order XXXVII of the Code of Civil Procedure, 1908 or in the form a complaint under section 138 of the Negotiable Instruments Act, 1888. The High Court must exercise a great deal of circumspection in granting relief of the nature sought, particularly when facts are brought to the notice of the Court which indicate that the State seeks to establish a defence on facts.

4. In a judgment of this Court dated 24 February, 2014 in M/s. R.S. Associate v. State of U.P. and others, (Writ-C No. 11544 of 2014), this Court declined to entertain a similar petition. The Court, inter alia, held as follows:

"2. These are purely contractual matters and we are not inclined to entertain a petition under Article 226 of the Constitution in this regard. Whether the work under the contract has been satisfactorily carried out; whether the rates quoted are in accordance with the terms of the agreement and the applicable schedule of rates; whether the work has been carried out properly are issues which have to be addressed, among other questions, by the competent authority before an appropriate decision is taken. The jurisdiction of the Court under Article 226 of the Constitution cannot appropriately be exercised in such matters. The remedy of the contractor, if he is aggrieved by non-payment, would be to either file an ordinary civil suit or if there is an arbitration agreement between the parties, to invoke the terms of the agreement.

3......

4. On the other hand, we have heard this petition for final disposal and we are firmly of the view that it will not be appropriate for this Court to exercise jurisdiction in the matter. It is true that there is no absolute bar in entertaining a petition in a contractual matter. However, in cases such as the present, several issues on facts which have been noted in the earlier part of this judgment have to be determined by the competent authority. The exercise of jurisdiction under Article 226 is not warranted for what the petitioner seeks in essence is a decree in a civil suit which cannot be granted in this proceeding, particularly having regard to the nature of the issues involved. The Court, therefore, declines to entertain this petition."

The Division Bench of Hon'ble Allahabad High Court in the case of Alaska Tech vs. State of U.P. ( ALLHC) 2014 (6)ADJ 591 has observed as follows:

6. For convenience of reference, it would be appropriate to extract the relevant part of the order of the Division Bench which reads as follows:

Instant writ petition under Article 226 of the Constitution of India has been preferred by the petitioner for issuance of writ in the nature of mandamus commanding the respondents to pay an amount of ` 1,34,71,670/- alongwith interest @ 18 per cent as outstanding dues for contractual work.

According to Shri H.G.S. Parihar learned Senior Counsel, petitioner had supplied spare parts but in spite of satisfactory supply, payment to the tune of ` 1,34,71,670/- has not been paid to the petitioner.

Attention has been invited towards para 8 of the counter-affidavit in which it has been stated that outstanding dues is to the tune of ` 1,20,00,000/-.

However, Shri S.S. Chauhan learned Counsel for the Nagar Nigam while defending the action of Nagar Nigam invited attention towards para 14 of the counter-affidavit wherein it has been specifically pleaded that enquiry is pending with the Economic Offence Wing and Dinesh Kumar Foreman has been charged for the fabrication of bill. Submission is that Economic Offence Wing is investigating the matter with regard to liability of Nagar Nigam.

According to Shri S.S. Chauhan learned Counsel for the Nagar Nigam that manipulation has been done with regard to preparation of bill and Economic Offense Wing has been directed to hold an inquiry. It is submitted that amount in question is also subject-matter of inquiry by the Economic Offence Wing.

Keeping in view the arguments advanced and the averments contained in counter-affidavit, no case for issuance of writ in the nature of mandamus is made out. Mandamus may be issued by this Court in case, there is some violation of statutory duty followed by statutory rights. Disputed question of fact can be adjudicated only through competent Court in a regular suit or before other statutory forum. It is not for this Court to interfere under Article 226 of the Constitution of India where a disputed question of fact is raised. High Court in exercise of jurisdiction under Art. 226 of constitution, would ordinarily not adjudicate a matter where the foundational facts are disputed vide Sughashree Das v. State of Orissa 2012(9) SCC 729.

In view of above, no case for interference is made out. Dismissed.

However, order passed by this Court shall not preclude the petitioner to approach appropriate forum or authority concerned.

The Division Bench of Hon'ble Allahabad High Court in the case of MISC. BENCH No. - 3898 of 2015 Uttaranchal Paper Converters & Publishers Thru. Prop. Vs. The State Of U.P. Thru. Secy. Basic Education & 10 Ors. has observed as follows:

.......

In our view, granting the relief which is sought in these proceedings, would virtually amount to a money decree. Since there is an arbitration agreement between the parties, the petitioner will have to invoke the terms of the agreement.

In a similar case, M/s R.S. Associate Vs. State of U.P. & Ors.1, a Division Bench of this Court had declined to entertain a prayer for similar reliefs with the following observations:

"These are purely contractual matters and we are not inclined to entertain a petition under Article 226 of the Constitution in this regard. Whether the work under the contract has been satisfactorily carried out; whether the rates quoted are in accordance with the terms of the agreement and the applicable schedule of rates; whether the work has been carried out properly are issues which have to be addressed, among other questions, by the competent authority before an appropriate decision is taken. The jurisdiction of the Court under Article 226 of the Constitution cannot appropriately be exercised in such matters. The remedy of the contractor, if he is aggrieved by non payment, would be to either file an ordinary civil suit or if there is an arbitration agreement between the parties, to invoke the terms of the agreement.

............It is true that there is no absolute bar in entertaining a petition in a contractual matter. However, in cases such as the present, several issues on facts which have been noted in the earlier part of this judgement have to be determined by the competent authority. The exercise of jurisdiction under Article 226 is not warranted for what the petitioner seeks in essence is a decree in a civil suit which cannot be granted in this proceeding, particularly having regard to the nature of the issues involved.

The Court, therefore, declines to entertain this petition."

Following the earlier view of the Division Bench and for the reasons indicated above, we decline to entertain the petition and relegate the petitioner to invoke the terms of the arbitration agreement.

The petition is, accordingly, dismissed. There shall be no order as to costs.

The Division Bench of Hon'ble Allahabad High Court in the case of MISC. BENCH No. - 3472 of 2014 Major Travels Thru. Prop. Mujtaba Ali Khan Vs.State Of U.P. Thru Princ. Secy. Minorities Welfare Waqf And . has observed as follows:

......The reliefs which are claimed are purely in terms of money decree for the payment of work allegedly due in respect of bills submitted for execution of certain work orders. Such reliefs cannot be granted in exercise of a writ jurisdiction under Article 226 of the Constitution. Significantly, the contract in the present case is not a statutory contract where a limited exception has been made by the Supreme Court. The petitioner would have to take recourse to the ordinary civil remedy for espousing the claim.

The petition is, accordingly, dismissed. There shall be no order as to costs.

The Division Bench of Hon'ble Allahabad High Court in the case of MISC. BENCH No. - 1909 of 2014 M/S A.K. Constructions Through Its Partner A. K. Chaturvedi Vs. State Of U.P.Thr.Prin.Secy.Deptt.Of Forests,Lucknow & Others has observed as follows:

......In the event, the contract contains an arbitration agreement, the petitioner would have an ordinary remedy of invoking arbitration and if there is no arbitration clause, then the petitioner would have an ordinary civil remedy for claiming money decree by way of filing a civil suit. The petitioner may either invoke the arbitration clause (if it exists) and if there is no arbitration clause, may file a money claim before the competent civil court but the relief sought in this petition cannot be granted in exercise of the writ jurisdiction under Article 226 of the Constitution, as this Court cannot entertain a claim of this nature seeking essentially a money decree in a contractual matter.

The writ petition is, accordingly, dismissed. We leave it open to the petitioner to take recourse to the remedies available to him in law.

The Division Bench of Hon'ble Allahabad High Court in the case of MISC. BENCH No. - 10971 of 2015 M/S Goyal Stationary Mart Thru Its Prop. Ajay Kr. Goyal Vs. State Of U.P.Thru Prin.Secy.Medical And Health Lko.& Ors. has observed as follows:

.......We may observe that while exercising the discretion as to whether a writ petition under Article 226 of the Constitution of India, in a contractual matter, where a writ in the nature of mandamus is sought for payment of money (which would have the effect of passing a money decree) may be entertained, the Court has also to deal with the issue as to whether the writ petition would be an appropriate remedy when other remedies are available under ordinary civil law.

Admittedly, the claim of the petitioner is that the payment in respect of the work done pursuant to the award of a contract for carrying out certain construction work has not been made. This Court in a judgment dated 07.03.2014 in Writ Petition No. 1942 (MB) of 2014 has declined to entertain such a writ petition raising an issue similar to the issue raised in this writ petition. The relevant observations made by the Division Bench in its judgment dated 07.03.2014 in Writ Petition No. 1942 (MB) of 2014 are as follows:-

"The claim of the petitioner is that the final payment in respect of the work done pursuant to the award of a contract for carrying out certain civil work has not been effected.

In our view, it will not either be appropriate or proper for the Court under Article 226 of the Constitution to entertain a petition of this nature. The grant of relief of this nature would virtually amount to a money decree. The petitioner is at liberty to take recourse to the remedies available by raising such a claim either invoking an arbitration clause (if it exists in the contract between the parties) or if there is no provision for arbitration, to move the competent civil court with a money claim.

We, accordingly, dismiss the petition, however, reserving liberty to the petitioner to pursue appropriate remedy available in law."

In view of the above settled position of law, we are not inclined to interfere in this writ petition.

The Division Bench of Hon'ble Allahabad High Court in the case of WRIT - C No. - 25075 of 2014 M/S Prabhu Construction Company Through Its Proprietor Vs. State Of U.P.And Another has observed as follows:

......This is a purely contractual matter and we are not inclined to entertain a petition under Article 226 of the Constitution in this regard. Whether the work under the contract has been satisfactorily carried out and whether the rates quoted are in accordance with the terms of the agreement and the applicable schedule of rates are issues which have to be addressed, among other questions, by the competent authority before an appropriate decision is taken. The jurisdiction of the Court under Article 226 of the Constitution cannot appropriately be exercised in such matters.

This court after considering precedents of Hon'ble Supreme Court in Kerala State Electricity Board & Anr. Vs. Kurien E.Kalathil & Ors.(2000)6SCC293 and In Hindustan Petroleum Corporation Limited & Anr. Vs. Dolly Das (1994)4SCC450 , also observed as follows -

......In the present case, there is nothing on the record which may persuade us to hold that the contract is a statutory contract. The remedy of the contractor, if he is aggrieved by non-payment, would be to either file an ordinary civil suit or if there is an arbitration agreement between the parties, to invoke the terms of the agreement.

Recently, this Bench in M/s R.S. Associate Vs. State of U.P. & Ors.3 declined to entertain a petition which had been filed for making payment of bills under a contract.

Following the aforesaid decisions, we decline to entertain this petition. It is, accordingly, dismissed.

The Division Bench of Hon'ble Allahabad High Court in the case of WRIT - C No. - 11544 of 2014 M/S R.S. Associate Thru' Prop. Reeta Singh Vs. State Of U.P. & 3 Others has observed as follows:

The petitioner entered into a contract on 23 September 2010 with the Irrigation Department inter alia for the supply of bolders, ropes for labourers and sand bags. The grievance is in regard to non payment of the bills. The petitioner seeks a mandamus to the State, the Chief Engineer and the Executive Engineer in the Irrigation Department to pay the bills together with interest.

2. These are purely contractual matters and we are not inclined to entertain a petition under Article 226 of the Constitution in this regard. Whether the work under the contract has been satisfactorily carried out; whether the rates quoted are in accordance with the terms of the agreement and the applicable schedule of rates; whether the work has been carried out properly are issues which have to be addressed, among other questions, by the competent authority before an appropriate decision is taken. The jurisdiction of the Court under Article 226 of the Constitution cannot appropriately be exercised in such matters. The remedy of the contractor, if he is aggrieved by non payment, would be to either file an ordinary civil suit or if there is an arbitration agreement between the parties, to invoke the terms of the agreement.

......4. On the other hand, we have heard this petition for final disposal and we are firmly of the view that it will not be appropriate for this Court to exercise jurisdiction in the matter. It is true that there is no absolute bar in entertaining a petition in a contractual matter. However, in cases such as the present, several issues on facts which have been noted in the earlier part of this judgement have to be determined by the competent authority. The exercise of jurisdiction under Article 226 is not warranted for what the petitioner seeks in essence is a decree in a civil suit which cannot be granted in this proceeding, particularly having regard to the nature of the issues involved. The Court, therefore, declines to entertain this petition.

5. The petition is, accordingly, dismissed. There shall be no order as to costs.

12. Case law relied upon by the petitioner firm is of no help for it.

13. It is pertinent to mention here that on perusal of Annexure-7 G.O. dated 2.6.2015, it revealed that on the 'directions' issued by Finance Department of the Government of U.P. remaining amount of Rs. 59.30344 lac was deposited on 25.5.2009 in PLA of DRDA of BPL Survey Lucknow. Therefore payment of petitioner could not be made. On the basis of representations of opposite party no. 3 and opposite party no. 2 sanction was accorded for amount of Rs. 20,94,000.00/- in financial 2015-16 by opposite party No. 1-State of U.P. opposite party No. 3 vide letter dated 22.8.2015, 1.3.2016 and 29.3.2016 apprised opposite party No. 2 Commissioner Rural Development about transfer of sanctioned amount by providing details of bank account etc.

14. The fact that why sanctioned amount was not released by opposite party No. 2 in favour of opposite party No. 3 or equipments supplied by the petitioner firm are in working order is not clear on perusal of above mentioned correspondences made by opposite party No. 3. These facts can only be decided on the basis of evidence adduced by both the parties regarding violation of conditions of contract/order. The pleadings of the petition revealed that it is purely a private contractual matter between the parties and it was not a statutory contract indicating violation of any constitution right as alleged by the petitioner. The petitioner has alternative civil and criminal remedy as alleged in the legal notice dated 13.7.2016 sent by it to the opposite parties.

15. Further, learned counsel for petitioner, relying upon the correspondences made by opposite party No.3, has argued that liberty may be given to the petitioner to make representation for release of funds before the State Government. In the facts and circumstances of the case, the petitioner firm, if wishes, may make representation before the opposite party Nos. 1 and 2.

16. In view of the above exposition of law, it is trite that in contractual matters, it is not appropriate to exercise extra ordinary equitable jurisdiction under Article 226 of the Constitution of India. The petitioner is unable to disclose this fact that the order placed and contract executed between opposite party no. 3, the IBM company and the petitioner firm was a statutory contract, therefore, this petition devoid of merit and liable to be dismissed.

Order Date :- 7.7.2017

Mustaqeem

(Virendra Kumar-II, J.)(Shri Narayan Shukla, J.)