Calcutta High Court (Appellete Side)
M/S. Bharati Enterprise & Anr vs The State Of West Bengal & Ors on 6 September, 2022
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
(Appellate Side)
M.A.T. 383 of 2020
+
I.A. No. CAN/1/2020
(Old No. CAN/2726/2020)
With
F.M.A 792 of 2022
+
I.A. No. CAN/1/2020
(Old No. CAN/2727/2020)
M/s. Bharati Enterprise & Anr.
Vs.
The State of West Bengal & Ors.
Before: The Hon'ble Justice Arijit Banerjee
&
The Hon'ble Justice Rai Chattopadhyay
For the Appellant : Ms. Sanghamitra Nandy, Adv.
For the Appellant in : Mr. Sayantan Rakshit, Adv.
(M.A.T. 383 of 2020)
For the Bidhannagar Municipal : Mr. Sirsanya Bandopadhyay, Adv.
Corporation Mr. Arka Kumar Nag, Adv.
Mr. Tirthankar Dey, Adv.
Mr. J. Dey, Adv.
For the Respondents in : Mr. Debabrata Saha Roy, Adv.
(MAT 383 of 2020) Mr. Subhankar Das, Adv.
Heard On : 26.07.2022, 03.08.2022, 05.08.2022,
12.08.2022 & 22.08.2022
CAV On : 29.08.2022
Judgment On : 06.09.2022
Arijit Banerjee, J.:
1. These two appeals arise out of a judgment and order dated February
20, 2020, whereby two writ applications filed by the appellants being W.P.
2992 (W) of 2020 and W.P. 2995(W) of 2020, involving similar points of fact
and law, were disposed of by granting liberty to the writ petitioners to take
forward their claim for interest to an appropriate forum.
2. The appellants claim to have participated in a tender process initiated
by the Bidhannagar Municipality (presently Bidhannagar Municipal
Corporation, and in short 'BMC') in the year 2015. Two work orders were
issued in favour of the appellants. They claim to have completed the work to
the satisfaction of BMC in the year 2015 itself. However, their bills were not
paid nor the security deposit and earnest money refunded. They made
representations to the appropriate authorities which were in vain.
Accordingly, they approached the writ Court by filing two writ petitions
being W.P. No. 29853(W) of 2017 and W.P. No. 29856 (W) of 2017. The
primary prayer in such writ petitions was for a direction on the respondents
to disburse the bills of the writ petitioners including security money along
with 18 per cent interest for the work which had been completed on June
29, 2015.
3. By two similar orders dated January 5, 2018, the two writ petitions
were disposed of by directing the Commissioner of BMC to consider the
representations filed by the writ petitioners and dispose of the same within 4
weeks from the date of communication of the order, if necessary after
affording opportunity of hearing to the petitioners, by recording proper
reasons.
4. Pursuant to such order, the Commissioner, BMC, passed a reasoned
order holding "that the writ petitioner was not entitled to receive payment for
the work purportedly executed by him without the authentic completion
certificate from the concerned executive engineer".
5. The orders of the Commissioner, BMC were challenged by the
appellants herein by filing two writ petitions which were disposed of by two
similar orders dated March 5, 2019 by a learned Single Judge of this Court.
The operative portion of such orders reads as follows:-
"In such view of the matter even on the face of the records there
appears to be no good reason why the writ petitioners have been
deprived of its original claims in terms of running/final account
bill amounting to Rs. 59,32,024/- including the security money.
Since the amount of the bill is dated October, 2015 and since the
reasoned order at annexure P/6 was passed on September 7,
2018, I am not minded to award interest to the petitioners. In the
event that the respondent Corporation more particularly the
respondent Nos. 2 and 3 make payment of the said amount along
with security deposit within a period of four weeks from the date of
communication of this order, no interest shall be payable. In the
event of any default in addition to proceedings for contempt of
Court, the amount shall carry interest at the rate of 10 per cent
per annum (simple) from today till the date of recovery. The writ
petition is allowed as above."
6. The appellants say that within the time period indicated in the
aforesaid order, the respondent authorities paid the bill amounts including
security deposit. However, neither the earnest money nor any interest was
paid by the respondents.
7. The appellants thereafter made a representation dated July 10, 2019,
to the Commissioner, BMC, praying for refund of the earnest money as also
interest for delayed payment of the bill amount and earnest money. Such
representation not having been considered, the appellants approached this
Court a third time by filing W.P. No. 15669(W) of 2019 and a similar writ
petition in respect of the other work order. The said writ petition being W.P.
No. 15669(W) of 2019 was disposed of by a learned Single Judge by an order
dated August 14, 2019 by directing the Commissioner, BMC, "to consider
and take a decision in accordance with law in respect of the petitioner's
representation dated 10th July, 2019 within a period of six weeks from the
date of communication of this order. After giving an opportunity of hearing to
the petitioners or their authorise representative and thereafter communicate
the decision to the petitioners within one week." A similar order was passed
on the other writ petition.
8. Pursuant to the aforesaid order the Commissioner, BMC, disposed of
the representation of the appellants by a reasoned order, the operative
portion whereof reads as follows:-
"From the above submission it is revealed that as per the direction
of the Hon'ble High Court the Corporation had already disbursed
the entire amount claimed by the petitioner. Considering the facts
and circumstances of the above matter, it is directed that the
petitioner is entitled to receive the payment of earnest money for
the work purportedly executed by him without any interest
thereof. The Controller of Finance, Bidhannagar Municipal
Corporation is directed to disburse the earnest money deposited by
the petitioner for the abovementioned work at an early date."
9. It is not in dispute that subsequently the appellants have received the
earnest money. However, being aggrieved by the refusal of the respondents
to pay any interest, the appellants once again and for the fourth time
approached the learned Single Judge claiming interest, by filing two writ
petitions being W.P. No. 2992 (W) of 2020 and W.P. No. 2995 (W) of 2020,
being the present writ petitions.
10. Before the learned Single Judge the appellants contended that there
had been wrongful withholding of their legitimate dues on account of the bill
amount including security deposit and refund of earnest money, entitling
them to receive interest thereon. Learned Advocate for BMC disputed the
claim for interest. The learned Judge disposed of the two writ petitions by
the common order impugned in these two appeals, observing: "This dispute
cannot be decided in a writ petition. Petitioners are at liberty to take forward
their claim for interest in appropriate forum."
11. Being aggrieved the writ petitioners have filed the present appeals.
12. Learned Advocate for the appellants argued that admittedly there was
delay on the part of BMC in disbursing the bill amount including security
money and also earnest money. Payments on account of bill amount
including security deposit and on account of earnest money were made only
after the writ petitioners obtained orders from Court directing the
respondents to make such payment. They are entitled to receive interest on
the delayed payment by way of compensation for the loss they have suffered
by reason of wrongful withholding of their legitimate dues.
13. On behalf of BMC, learned Counsel argued, firstly, there is no
provision in the subject contract for payment of interest. Secondly, the
appellant's claim for interest is barred by limitation. Thirdly, the order of the
learned Single Judge dated March 5, 2019 passed in W.P. No. 26178 (W) of
2018, relevant portion whereof has been extracted above, has attained
finality. The learned Judge had directed that if the payment was made
within the stipulated time period, no interest shall be payable. This direction
was not assailed by the appellant before a higher forum. Payment was made
within the stipulated time period. Hence, the appellants cannot claim any
interest. That order is binding on the parties.
14. We have considered the rival contentions of the parties.
15. We are in agreement with learned advocate for BMC. In the first writ
petition, the appellants had prayed for a direction on the respondents to
disburse the bill amount including security money along with interest at the
rate of 18% per annum. The learned Single Judge referred the matter to the
commissioner, BMC for taking a decision.
16. In the second writ petition a learned Single Judge directed payment of
the bill amount including security money within a stipulated period of time
i.e., four weeks from the date of communication of the order. It was
categorically stated in the order that if payment was made within the
prescribed time period, no interest would be payable. If payment was not
made within the prescribed time period, the principal amount shall carry
interest at the rate of 10 per cent per annum till the date of recovery. That
order attained finality and is binding on the parties, not having been
challenged before a higher forum. It is not in dispute that BMC paid the
principal bill amount including security deposit within four weeks from the
date of communication of that order. Hence, the appellants' claim for
interest does not survive any more. They having accepted the terms of the
order dated March 5, 2019, to the effect that if payment of the principal sum
was made within the prescribed time period, no interest would be payable to
them, and BMC having paid the principal sum within the stipulated time
period, the appellants' claim for interest stood extinguished in so far as
interest on the bill amount including security money is concerned.
17. The order under appeal is cryptic. It merely records that the writ
petitioners' claim for interest is disputed by BMC. The order does not record
what the dispute is. However, we agree with the conclusion of the learned
Single Judge. We are also of the view that since the appellants' claim for
interest is not an admitted one and the disputes raised by BMC have been
indicated hereinabove, the writ Court is not the appropriate forum for
adjudication of such claim of the appellants. The appellants would be at
liberty to approach the appropriate forum with their claim for interest on
alleged delayed refund of earnest money if they are entitled to do so in law. If
any competent forum is approached by the appellants with their claim, it
shall be decided in accordance with law without being influenced by any
observation in the present judgment and order.
18. M.A.T 383 of 2020 with I.A. No. CAN/1/2020 (Old No. C.A.N. 2726 of
2020) and F.M.A 792 of 2022 with I.A. No. CAN/1/2020 (Old No. CAN 2727
of 2020) are accordingly disposed of.
19. There will be no order as to costs.
20. Urgent certified website copies of this judgment, if applied for, be
supplied to the parties subject to compliance with all the requisite
formalities.
I agree.
(Rai Chattopadhyay, J.) (Arijit Banerjee, J.)
