Mahanagar Telephone Nigam Ltd. vs M/S. Vichitra Construction Pvt. ...
1995 Latest Caselaw 726 Del

JUDGMENT

Usha Mehra, J.

1. Vichitra Construction Pvt. Ltd. respondent (hereinafter called the contractor) had entered into rate contract with Mahanagar Telephone Nigam Limited (in short MTNL) in the year 1991-92. Pursuance to the said contract work was allotted to the contractor which according to the respondent was completed to the satisfaction of the MTNL. After completion of the job, the contractor submitted its nearly 13 bills of various amounts for the period from April, 1992 to December, 1992 totalling Rs. 2,61,763/-. As per the terms of the contract the MTNL was to make the payment within the scheduled time. But MTNL refused to do so, hence the disputes. The said agreement also contained an arbitration clause. When dispute arose and MTNL failed to settle then the Contractor invoked the arbitration clause by filing a petition under Section 20 of the Arbitration Act (hereinafter called the Act) for appointment of an Arbitration to adjudicate upon the disputes mentioned in that petition.

2. The MTNL contested the said petition, inter alia, on the grounds that no dispute existed and that the amount was not due to the contractor as the payment against all the 13 bills had been adjusted against the excess amounts paid to the contractor by the MTNL. Along with that petition under Section 20 of the Arbitration Act, the contractor also filed an application under Section 41 read with Schedule II of the Act, seeking ad-interim ex-parte injunction restraining the MTNL from recovering/adjusting or withholding the amount of Rs. 2,57,767/- against the alleged excess amounts paid to the contractor. By the impugned order the learned trial court beside directing the MTNL to appoint an arbitration also restrained the MTNL from withholding/adjusting or appropriating the payments against 13 bills of the contractor. It however put a condition that the amount of 13 bills be released subject to the contractor furnishing bank guarantee for that amount to the satisfaction of the MTNL. It is against this order passed on contractor's application under Section 41 of the Act directing the MTNL to release the amount which had already been adjusted by the MTNL, that the present petition has been directed. So far as the appointment of an arbitrator is concerned, the petitioner has no objection.

3. The short point for determination is whether the trial court could give such a direction under Section 41 of the Act without first getting the matter adjudicated by an arbitrator. The main dispute between the parties is release of the amounts against 13 bills of the contractor wrongfully withheld by the MTNL and the defense of the MTNL that the amount against those 13 bills had been adjusted against the excess amount paid by the MTNL to the contractor. This dispute has been referred to the arbitrator. The arbitrator will determine whether the MTNL had paid excess amount and hence could adjust the same or action of the MTNL was wrong, illegal and arbitrary in withholding and adjusting the so-called excess payment made to the contractor. That dispute has yet to be determined by the arbitrator, therefore, to my mind, the direction given by the trial court thereby directing the MTNL to make the payment of 13 bill and not to withhold the excess amounts paid would tentamount to decide the case which is referred to the arbitrator.

4. The reliance by the respondent on the decision of the Supreme Court in the case of Union of India v. Rama Iron Foundry is misplaced. In that case the Apex Court clearly spelt out the power of the High Court to grant injunction under Section 41 of the Act. After considering the facts of that case the Supreme Court observed that High Court was justified in issuing order of interim injunction which is clearly within the scope of Section 41(b) because the claim for damages formed the subject matter of the arbitration proceedings and the court could always say that untill such a claim is adjudicated upon the purchaser shall be restrained from recovering it by appropriating other amounts due to the contractor. To the same effect are the observations of the Supreme Court in the case of Southern Alloy Foundries v. Union of India (1976 RLR (Note) p. 30). In this case the court observed that if Government had any claim by way of damages against the contractor then it cannot arbitrarily withheld or adjust the same against other bills without having its claims duly adjudged as really due. The observations of the Supreme Court in the above cases and in particular of Southern Alloy Foundries (supra) were in context where the Government's claim was based on "damages" which it alleged, it suffered. "Damages" were in realm of speculation i.e., whether actual loss had been suffered or not ? But that is not the case in hand. The Supreme Court opined that at that stage it was only a claim and unless that was adjudicated upon it remain the the realm of a claim. Hence could not be adjusted, Thus it was observed that Union of India had no authority to appropriate the amount due under other bills of the contractor towards the satisfaction of its claim for the damages which is yet to proved. But in the instant case, the MTNL has not based its claim of adjustment on account of a claim for damages. A specific plea has been taken by the MTNL that the excess amount was paid to the contractor in other bills which has to be recovered. Therefore, this alleged adjustment is not in speculation or in the realm of a claim. Hence Mr. Behl's contention that documents ought to have been filed before the court to prove the excess amounts paid and the bills in which excess amounts paid, to my mind, has no force. These submissions pertains to the facts set up in defense which have to be gone into before the arbitrator. This court cannot look into the controversy or facts in a petition under Section 20 of the Act nor can say whether excess amounts were paid or not. These have to be looked into and gone through by the Arbitrator. At this stage suffice it to say, the injunction order restraining the MTNL on the facts of this case cannot be granted. Hence the order of the Trial Court in this regard is liable to be set aside. To arrive at this conclusion support can be had from the observations of the Supreme Court in the case of Kamaluddin Ansari & Co. v. Union of India , while dealing with the power to the court to grant interim relief under Sections 41(a) and (b) of the Act, the Apex Court observed that an injunction order restraining the Union of India from withholding the amount due to the contractor under other pending bills virtually amounts to a direction to pay the amount to the contractor appellant. Such an order is beyond the purview of clause (b) of Section 41 of the Act.

5. In view of the law laid down by the Supreme Court in Kamaluddin Ansari's case (Supra) it can safely be said that the trial court exceeded its jurisdiction. Therefore, the petition is liable to be accepted and the order of the trial court thereby giving direction under Section 41 read with Schedule II of the Act to the MTNL is liable to be set aside. The same is accordingly set aside with no order as to costs.