M/S Allied Builders & Engineering ... vs Union Of India & Ors
2021 Latest Caselaw 550 j&K/2

                                                                      Serial No. 119
                                                                Supplementary 1 Causelist
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              HIGH COURT OF JAMMU AND KASHMIR
                        AT SRINAGAR
                                                             CM No. 3162/2021
                                                         In WP(C) No. 979/2021
                                                             CM No. 3163/2021
M/S Allied Builders & Engineering Private Limited.
                                                             ......Petitioner(s)

                          Through:     Mr Sheikh Manzoor, Advocate.
                                       vs
Union of India & Ors.
                                                             ......Respondent(s)

                          Through:     Mr T.M. Shamsi, ASGI.
CORAM:

              Hon'ble Mr Justice Ali Mohammad Magrey, Judge.

                                  ORDER

17.05.2021

CM No. 3162/2021;

On the set of facts and the ground urged coupled with submissions

made at Bar, the instant application is allowed and requirement of affixing the

court fee in the shape of stamps etc. is dispensed with for the time being.

However, the deficiency shall be made good by the applicant as and when the

Court starts functioning in the normal manner. CM disposed of accordingly.

WP(C) No. 979/2021 CM No. 3163/2021;

The relief prayed for in the instant petition is a subject of dispute, which

is already pending before the Arbitrator, therefore, the proper course for the

petitioner is to exhaust the remedy as available under law.

Learned counsel for the petitioner submits that the no recovery can be

made by the respondents from the work which is already executed by the

petitioner.

The instant writ petition involves disputed questions of fact, which

cannot be adjudicated in the writ jurisdiction under Article 226 of the Constitution of India. Law on the subject is no more res integra, as settled by

the Hon'ble Apex Court in case titled ABL International Ltd and Anr. Vs.

Export Credit Guarantee Corporation of India Ltd, and Ors reported in

(2004) 3 Supreme Court Cases 553. The relevant portion of the Judgment is

taken note of:-

"A writ petition involving serious disputed questions of facts which requires consideration of evidence which is not on record, will not normally be entertained by a Court in the exercise of its jurisdiction under Article 226 of the Constitution of India, but there is no absolute rule that in all cases involving disputed questions of fact the parties should be relegated to a civil suit. It has even been held in Gunwant Kaur case, (1969) 3 SCC 796, that in a writ petition, if the facts require, oral evidence can be taken. This clearly shows that in an appropriate case, the writ Court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact."

In view of above, the instant petition being without merit, shall stand

dismissed alongwith connected CM(s). However, the petitioner shall be at

liberty to exhaust the remedy as available under law.

(Ali Mohammad Magrey) Judge SRINAGAR:

17.05.2021 "Hamid"

ABDUL HAMID BHAT 2021.05.17 14:19 I attest to the accuracy and integrity of this document