Annapurna Devi vs Allahabad Bank
2021 Latest Caselaw 501 Jhar

                IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       W.P.(C) No. 2798 of 2020
1. Annapurna Devi
2. Brajesh Kumar Mishra
                                                  .....   ... Petitioners
                                Versus
1. Allahabad Bank, Kolkata through its Chief Executive Officer
2. Assistant General Manager, Allahabad Bank, Zonal Office, Deoghar
3. Chief Manager, Allahabad Bank, Zonal Office at Deoghar
4. Branch Manager, Allahabad Bank, Bari Kodarjanna Branch, Sahibganj
                                                   .... .... Respondents
                                 --------

CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR

------

For the Petitioners : Mr. Saibal Mitra, Advocate For the Respondent-Bank : Ms. Amrita Sinha, Advocate

--------

Order No. 06 Dated: 03.02.2021

The present writ petition is taken up today through Video conferencing.

2. The present writ petition has been filed for issuance of direction upon the concerned respondents to pay the arrears of difference of rent to the petitioners for 'Bari Kodarjanna Branch' of Allahabad Bank, District- Sahibganj situated in their building premises. Further prayer has been made for issuance of direction upon the respondents to execute fresh lease agreement with the petitioners for the said premises. The petitioners have also prayed for issuance of direction to the D.G.M, Allahabad Bank, Zonal Office, Deoghar to take final decision regarding the matter of less payment of rent as forwarded to him by the respondent no. 4- the Branch Manager, Allahabad Bank, Bari Kodarjanna Branch vide letter no.107 dated 07.09.2016.

3. Learned counsel for the petitioners submits that Bari Kodarjanna Branch of Allahabad Bank was situated over 400 sq. ft. carpet area in the building premises owned by the husband of the petitioner no.1 (hereinafter to be called as "the landlord") for which a lease agreement was executed between the landlord and the respondent-Bank in the month of December 1984. Subsequently, on 09.03.2006, the Bank took additional carpet area of 900 sq. ft. in the said building premises on rent from the landlord. It is further submitted that the Bank was paying less rent than what was agreed between the respondent-Bank and the landlord. The landlord requested the bank to pay the actual rent for the premises by increasing 25% of the rent in every five years which was

mandatory as per the agreement but the respondent-Bank failed to act in terms with the same. The original rent agreement is in possession of the respondent-Bank. The respondent no. 4. though vide letter no.107 dated 07.09.2016 requested the D.G.M., Zonal Head, Allahabad Bank, Zonal Office, Deoghar to look into and take decision in the matter regarding less payment of rent to the landlord and after scrutinising the lease agreement so that dispute between the landlord and the respondent- Bank could be resolved, however no action has been taken as yet. It has been stated in the said agreement that the rent will be increased @ 25% in every five years, but due to some calculation mistake, the bank authorities were paying less rent. After death of the landlord on 06.05.2016, the petitioner no. 1 represented the Assistant General Manager, Allahabad Bank, Divisional Office, Deoghar through Branch Manager, Bari Kodarjanna Branch, District- Sahibganj on 06.09.2016 for renewal of agreement with fresh terms and conditions, however nothing has been done in this regard till date. It is further submitted that the petitioners have been paid less rent since December, 2004 and the Bank is duty bound to pay the difference of rent along with interest for the aforesaid period. It would be evident from the letter dated 07.09.2016 issued by the respondent no. 4 to the D.G.M., Zonal Head, Allahabad Bank, Zonal Office, Deoghar that due to calculation mistake, the enhancement of rent @ 25% in every five years could not be fixed properly due to which the landlord is getting less rent.

4. Heard the learned counsel for the petitioner and perused the materials available on record. The petitioners herein have sought direction of this Court to the respondent-Bank for making payment of arrears of rent pursuant to the terms and conditions of the lease agreement executed between the landlord and respondent-Bank.

5. In the case of "Joshi Technologies International Inc. Vs. Union of India and others", reported in (2015) 7 SCC 728, the Hon'ble Supreme Court has held as under:-

"69. The position thus summarised in the aforesaid principles has to be understood in the context of discussion that preceded which we have pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under certain

circumstances, it can refuse to exercise. It also follows that under the following circumstances, "normally", the Court would not exercise such a discretion:

69.1. The Court may not examine the issue unless the action has some public law character attached to it. 69.2. Whenever a particular mode of settlement of dispute is provided in the contract, the High Court would refuse to exercise its discretion under Article 226 of the Constitution and relegate the party to the said mode of settlement, particularly when settlement of disputes is to be resorted to through the means of arbitration. 69.3. If there are very serious disputed questions of fact which are of complex nature and require oral evidence for their determination.

69.4. Money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances.

70. Further, the legal position which emerges from various judgments of this Court dealing with different situations/aspects relating to contracts entered into by the State/public authority with private parties, can be summarised as under:

70.1. At the stage of entering into a contract, the State acts purely in its executive capacity and is bound by the obligations of fairness.

70.2. State in its executive capacity, even in the contractual field, is under obligation to act fairly and cannot practise some discrimination.

70.3. Even in cases where question is of choice or consideration of competing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 of the Constitution could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. In such cases the Court can direct the aggrieved party to resort to alternate remedy of civil suit, etc.

70.4. Writ jurisdiction of the High Court under Article 226 of the Constitution was not intended to facilitate avoidance of obligation voluntarily incurred. 70.5. Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the licence if he finds it profitable to do so: and he can challenge the conditions under which he agreed to take the licence, if he finds it commercially inexpedient to conduct his business. 70.6. Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for

specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages.

70.7. Writ can be issued where there is executive action unsupported by law or even in respect of a corporation there is denial of equality before law or equal protection of law or if it can be shown that action of the public authorities was without giving any hearing and violation of principles of natural justice after holding that action could not have been taken without observing principles of natural justice.

70.8. If the contract between private party and the State/instrumentality and/or agency of the State is under the realm of a private law and there is no element of public law, the normal course for the aggrieved party, is to invoke the remedies provided under ordinary civil law rather than approaching the High Court under Article 226 of the Constitution of India and invoking its extraordinary jurisdiction.

70.9. The distinction between public law and private law element in the contract with the State is getting blurred. However, it has not been totally obliterated and where the matter falls purely in private field of contract, this Court has maintained the position that writ petition is notmaintainable. The dichotomy between public law and private law rights and remedies would depend on the factual matrix of each case and the distinction between the public law remedies and private law field, cannot be demarcated with precision. In fact, each case has to be examined, on its facts whether the contractual relations between the parties bear insignia of public element. Once on the facts of a particular case it is found that nature of the activity or controversy involves public law element, then the matter can be examined by the High Court in writ petitions under Article 226 of the Constitution of India to see whether action of the State and/or instrumentality or agency of the State is fair, just and equitable or that relevant factors are taken into consideration and irrelevant factors have not gone into the decision-making process or that the decision is not arbitrary.

70.10. Mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirements of due consideration of a legitimate expectation forms part of the principle of non- arbitrariness.

70.11. The scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes."

6. In view of the aforesaid judicial principles, I am of the considered view that it is not a fit case to exercise discretionary jurisdiction under Article 226 of the Constitution of India as the matter is in the realm of

pure contract and for enforcement of any terms and conditions of the contract, the petitioners may seek civil remedy as provided under law.

7. One of the contentions of the learned counsel for the petitioners is that the petitioners have sought recovery of admitted dues of rent for which necessary directions can be issued under writ jurisdiction. In support of the said contention, learned counsel for the petitioners has heavily relied upon the letter issued by the respondent no. 4 (Annexure-2 to the writ petition). However on bare perusal of the said letter, it appears that no final determination has yet been made for payment of alleged dues of the petitioners. The respondent no. 4 vide letter dated 07.09.2016 requested the D.G.M, Zonal Head, Allahabad Bank, Deoghar Zone to take decision in the matter which has not yet been determined. In view of the aforesaid fact, the argument of the petitioners that the amount claimed is an admitted one, cannot be accepted. Moreover, I do not find such exceptional circumstance so as to entertain the money claim of the petitioners under a private contract in extraordinary writ jurisdiction of this Court.

8. Learned counsel for the petitioners has also contended that there is no provision for recovery of arrears of rent under the Jharkhand Building (Lease, Rent and Eviction) Control Act, 2011, and as such under the given facts and circumstances of the case, this Court may exercise its power under the writ jurisdiction to give relief to the petitioners. I am of the view that recovery of amount due under any agreement can be claimed by invoking civil remedy. Thus, I find no substance in the said contention of the learned counsel for the petitioners.

9. In view of the aforesaid factual and legal position, without entering into the merit of the case, the present writ petition is disposed of with a liberty to the petitioners to seek appropriate remedy before the competent court of civil jurisdiction for redressal of their grievances.

10. I.A No. 5820 of 2020 also stands disposed of accordingly.

(Rajesh Shankar, J.) Ritesh/-