Delhi High Court
A.K. Bhutani vs Central Warehousing Corporation on 15 March, 2016
Author: Manmohan
$~37
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2181/2016
A.K. BHUTANI ..... Petitioner
Through: Mr. Ashish Kapur with Mr. Tribhuvan
Rathi and Ms. Chhavi Luthra, Advs.
versus
CENTRAL WAREHOUSING CORPORATION..... Respondent
Through: Mr. K.K. Tyagi, Adv.
% Date of Decision: 15th March, 2016
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
1. The present writ petition has been filed seeking a direction to
the respondent to release the payments to the petitioner with effect from
December, 2015. The prayers in the writ petition are reproduced
hereinbelow:-
"a)Issue a writ of mandamus or any other similar writ or
order directing the Respondent to release the payment w.e.f.
December 2015 till date.
b)Issuance of any other Writ or order or direction which this
Hon'ble Court may deem fit and proper in the circumstances
as pleaded.
c)The record of the Respondent relating to the present
matter be called for its appreciation.
d)Costs of this petition be awarded in favour of the
Petitioner against the Respondent."
2. It has been averred in the writ petition that an agreement dated
25th September, 2014 was executed between the respondent and the
petitioner in accordance with which the petitioner was to deploy 57
guards at the respondent's inland container depot.
3. It has further been averred that the respondent alleged theft of
imported cargo contained in one of its container and an FIR No.006 of
2016 was lodged.
4. Learned counsel for the petitioner states that the respondent has
not cleared the bills of the petitioner for the months of December, 2015,
January and February, 2016 without any valid reason.
5. From a perusal of the paper book, it transpires that the
respondent has withheld the payment of dues on the ground that in
accordance with general terms and conditions as well as specific
conditions of the contract, the petitioner is liable to compensate for
losses on account of theft/burglary/pilferage/robbery/dacoity etc.
6. In any event, this Court is of the opinion that a writ petition
solely praying for refund of money against the State is not maintainable.
In Suganmal v. State of Madhya Pradesh AIR 1965 SC 1740, the
Supreme Court has held as under:-
"6. On the first point, we are of opinion that though the High
Courts have power to pass any appropriate order in the
exercise of the powers conferred under Article 226 of the
Constitution, such a petition solely praying for the issue of a
writ of mandamus directing the State to refund the money is
not ordinarily maintainable for the simple reason that a
claim for such a refund can always be made in a suit against
the authority which had illegally collected the money as a
tax. We have been referred to cases in which orders had
been issued directing the State to refund taxes illegally
collected, but all such cases had been those in which the
petitions challenged the validity of the assessment and for
consequential relief for the return of the tax illegally
collected. We have not been referred to any case in which
the Courts were moved by a petition under Article 226
simply for the purpose of obtaining refund of money due
from the State on account of its having made illegal
exactions. We do not consider it proper to extend the
principle justifying the consequential order directing the
refund of amounts illegally realised, when the order under
which the amounts had been collected has been set aside, to
cases in which only order for the refund of money are
sought. The parties had the right to question the illegal
assessment orders on the ground of their illegality or
unconstitutionality and therefore could take action under
Article 226 for the protection of their fundamental right, and
the courts, on setting aside the assessment orders, excerised
their jurisdiction in proper circumstances to order the
consequential relief for the refund of the tax illegally
realised. We do not find any good reason to extend this
principle and therefore hold that no petition for the issue of
a writ of mandamus will be normally entertained for the
purpose of merely ordering a refund of money to the return
of which the petitioner claims a right.
xxx xxx xxx
9. We therefore hold that normally petitions solely praying
for the refund of money against the State by a writ of
mandamus are not to be entertained. The aggrieved party
has the right of going to the civil court for claiming the
amount and it is open to the State to raise all possible
defences to the claim, defences which cannot, in most cases,
be appropriately raised and considered in the exercise of
writ jurisdiction."
7. Since the petitioner also has an alternative effective remedy by
way of an arbitration, this Court is of the view that the present writ
petition is not maintainable.
8. Accordingly, the present writ petition is disposed of with liberty
to the petitioner to file appropriate proceedings in accordance with law.
The pleas and defences of all parties are left open.
MANMOHAN, J
MARCH 15, 2016
NG
