Delhi High Court
Brahmaputra Infrastructure Ltd. vs Delhi Development Authority on 14 December, 2009
Author: Ajit Prakash Shah
* IN THE HIGH COURT OF DELHI AT NEW DELHI
9.
+ LPA 533/2009
BRAHMAPUTRA INFRASTRUCTURE LTD ..... Appellant
Through: Dr. Venkataramani, Sr. Adv. with
Mr. Amith Pung, Mr. A.K. Joseph, Advs.
versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: Mr. P.K. Mittal, Adv.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE DR. JUSTICE S.MURALIDHAR
ORDER
% 14.12.2009
1. This appeal is directed against the impugned order dated 4.9.2009
passed by the learned single Judge dismissing W.P.(C) No. 11435/2009. The
prayer in the writ petition was for a direction to the Respondent DDA to
reimburse to the Appellant a sum of Rs.60,19,872/- on account of service tax
along with interest @12% from the date of the first payment of the service
tax which had been declined by the DDA.
2. We have heard the submissions of Mr. Venkataramani, learned Senior
Counsel appearing for the Appellant. Reliance is placed on a letter dated
30.11.2007 written by the DDA to the Appellant awarding it the work for
which the DDA had invited tenders. The relevant paragraphs of the said
letter, relied upon by the Appellant, read as under:
"You shall be required to contribute towards P.F/ESI and
Pay service tax and other taxes to the Concerned
Authorities. Nothing extra shall be paid on the aforesaid
contributions/recoveries, if any.
xxxxx
xxxxx
You are also requested contact Assistant Engineer-V of this
office and start the work at once. Please note that the
time allowed for carrying out the work as entered in the
tender form shall be reckoned from the 10th day after the
date of issue of this letter to commence the work. Your
letter Dated 25.07.07, 30.08.07, 20.09.07 & 04.10.07
extending the validity of the tender and negotiation letter
dated 28.07.07 reducing their quoted rates in respect of
certain items shall form part of the agreement."
3. Although in the first quoted paragraph, it was made clear by the DDA
that the Appellant was required to pay the service tax, in the last paragraph,
according to the appellant, the DDA had also indicated that the Appellant's
letter dated 28.07.2007 would form part of the agreement. It is stated that
in its letter dated 28.7.2007, the Appellant had informed the DDA that the
rates quoted by it were exclusive of service tax and that the liability of
service tax would be reimbursed by the DDA. It is sought to be contended
that it is the subsequent paragraph of the letter dated 30.11.2007 which
would govern the contract between the parties and in terms thereof, the
DDA was liable to reimburse the service tax. It is also sought to be
contended that inasmuch as the matter involves no disputed question of
fact, the plea of the Appellant ought to be entertained in a writ petition
under Article 226 of the Constitution.
4. We are unable to accept this submission for more than one reason.
First the DDA has in its affidavit dated 2.12.2009 disputed the claim of the
Appellant by pointing out the first quoted paragraph of the letter dated
30.11.2007 whereby the Appellant was told that it had to pay the service
tax. It is denied that "there is any agreement between the petitioner and the
respondent to reimburse the Service Tax by the Respondent to the
Petitioner". Secondly, the averments made by the parties call for
interpretation of the terms of the contract and for evidence to be led for that
purpose. This exercise obviously cannot be undertaken in a petition under
Article 226 of the Constitution. (See e.g. Karnataka Power Corporation Ltd. v.
West Asia Trading Corporation, JT 1999 (10) SC 414; State of U.P. v. Bridge &
Roof Co. (India) Ltd., AIR 1996 SC 3515)
5. Consequently, we seen no merit in this appeal and the same is
accordingly dismissed.
CHIEF JUSTICE
S.MURALIDHAR, J
DECEMBER 14, 2009
pk
