Jharkhand High Court
M/S. B.K. Enterprises Through Its ... vs M.S.T.C. Limited Through General ... on 1 February, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 3532 of 2009
M/s. B.K. Enterprises through its Proprietor namely M. Anupama
Aggarwal, w/o late Bijay Kumar Aggarwal, Jora Phatak Road,
Dhanbad, P.O. and P.S. Dhanbad, District - Dhanbad, Jharkhand
... ... Petitioner
Versus
1. M.S.T.C. Limited through General Manager (ERO), Calcutta,
having its Eastern Regional Office at 225-F, A.J.C. Bose Road,
Calcutta - 700020
2. Deputy Manager (ERO), MSTC Limited, having its Eastern
Regional Office at 225-F, A.J.C. Bose Road, Calcutta - 700020
3. Managing Director, Project and Development India Limited P.O.
Sindri, District - Dhanbad, Jharkhand
4. General Manager, Project and Development India Limited, P.O.
Sindri, District Dhanbad, Jharkhand
5. Project and Development India Limited, P.O. Sindri, District
Dhanbad, Jharkhand through Head of the Department (Material
Manager), Sindri, Dhanbad ... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Prashant Kr. Singh, Advocate
For the Resp. Nos.3 to 5 : Mr. Amit Sinha, Advocate
For the Resp. No.1 : Ms. Shreesha Sinha, Advocate
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21/01.02.2023 Heard Mr. Prashant Kumar Singh, learned counsel appearing on
behalf of the petitioner.
2. Heard Mr. Amit Sinha, learned counsel appearing on behalf of
the respondent nos.3 to 5.
3. Heard Ms. Sheesha Sinha, learned counsel appearing on behalf
of the respondent no.1.
4. This writ petition has been filed for the following relief:
"For a direction upon the respondents to return the amount
which the petitioner has deposited for lifting the scrap materials and
the petitioner was not allowed to lift the scrap materials from Project
and Development India Limited, Sindri which comes to Rs.4,36,718.42
and also the security deposit amounting to Rs.1,02,000/- which the
petitioner is entitled to get as per the terms and conditions of the
tender alongwith 18% interest."
5. The learned counsel for the respondents have file a counter-
affidavit in the present case and a specific plea has been taken that the
claim of the petitioner arises out of an agreement and there is an
arbitration clause and instead of availing the remedy through
arbitration, the petitioner has filed this writ petition and therefore, this
writ petition is not maintainable. The learned counsel have also
submitted that there are disputed question of facts involved in the
present case. The learned counsel further submit that the petitioner has
filed one interlocutory application challenging the termination of
agreement/forfeiture of security, the same may not be allowed in view
of the fact that the challenge to termination of agreement/forfeiture of
security and consequences flowing thereof are also subject matter of
arbitration.
6. The learned counsel for the petitioner in response has relied
upon two judgments passed by Hon'ble Supreme Court reported in
(2011) 5 SCC 697 (Union of India and Ors. Vs. Tantia Construction
Private Limited) para 33 and (2021) 6 SCC 15 (Uttar Pradesh Power
Transmission Corporation limited and Anr. Vs. CG Power and
Industrial Solutions Limited and Anr.) para 66 and 67 to submit that
the present writ petition is maintainable irrespective of availability of
alternative remedy through arbitration.
7. After hearing the learned counsel for the parties and
considering the facts and circumstances of this case, this Court finds
that, on the one hand, the claims of the petitioner/challenge to the
impugned actions arise out of contract having arbitration clause and,
on the other hand, there are disputed question of facts involved in the
present case. On the face of the objection which has been raised by the
respondents regarding the existence of alternative remedy on the basis
of arbitration clause for resolution of dispute, this Court is not inclined
to proceed any further in this writ petition and this Court is of the
considered view that on the face of the arbitration clause between the
parties, the present writ petition itself is not maintainable.
8. Para 66 and 67 of the judgment reported in (2021) 6 SCC 15
(supra) relied upon by the petitioner indicates that during the writ
proceedings, no objection was taken on the point of existence of an
arbitration clause and accordingly writ petition was entertained. In this
background, it was held that the existence of an arbitration clause does
not debar the court from entertaining a writ petition. It was also
observed that the High Court may entertain a writ petition,
notwithstanding the availability of an alternative remedy, particularly:
(i) where the writ petition seeks enforcement of a fundamental right;
(ii) where there is failure of principles of natural justice or (iii) where
the impugned orders or proceedings are wholly without jurisdiction or
(iv) the vires of an Act is under challenge.
So far as the judgment relied upon by the petitioner reported in (2011)
5 SCC 697 (supra) is concerned, the same is also on the same line on
the point of the jurisdiction of the writ court under Article 226 of the
Constitution of India to entertain a writ petition at least on the
aforesaid circumstances, but certainly it would depend upon the facts
of a particular case.
9. The aforesaid judgements relied upon by the petitioner do not
apply to the facts and circumstances of this case as the respondents
have raised a specific objection through the counter affidavit that there
is an arbitration clause to resolve the disputes and further this Court
finds that there are disputed questions of facts involved in this case.
10. Therefore, this Court is of the considered view that on the face
of the admitted fact that there exists an arbitration clause in the
contract between the parties, and the disputes arise out of such
contract, this Court is not inclined to grant any relief as prayed for in
this writ petition. However, it will be open to the parties to avail the
alternative remedy for the resolution of disputes in accordance with
law.
11. Interim order, if any, stands vacated.
12. Pending interlocutory application, if any, stands closed.
(Anubha Rawat Choudhary, J.)
Saurav/
